In a lawsuit over whether a woman should have lost her housing subsidy, the Houston Housing Authority's lawyer asked a judge not to force the agency to prevent the woman's eviction while the case was being decided. The brief, submitted by a law firm that frequently represents cities and agencies in the Houston area, cited over a dozen cases in support of its argument.
The only problem? Almost none of the quotes actually exist, a Chronicle analysis shows….
The firm's managing attorney "said in an email that because the court required the brief to be filed within a short timeframe, the quick turnaround 'prevented our usual multi-attorney review.'"
But he did not address why 11 of the 13 cases directly quoted did not actually contain those quotes or why many did not seem related to what his firm had quoted them as saying. He also did not respond when asked if artificial intelligence, which is known to "hallucinate," or say things that are not true, had been used to draft the brief.
The United States has filed an amicus brief in Barnett v. Raoul, the challenge to Illinois' ban on semiautomatic rifles and standard magazines pending in the Seventh Circuit. This is the first time the Department of Justice has ever argued against such a ban. It defended the federal ban that was enacted in 1994 and expired in 2004.
As the brief recalls, in Bruen (2022) the Supreme Court emphatically reinforced the Heller rule that the Second Amendment protects firearms in common use by law-abiding persons for lawful purposes. "Regrettably, not every State got the message. Just a few months after Bruen, Illinois outlawed some of the most commonly used rifles and magazines in America via a so-called 'assault weapons' ban." And after that, in Bevis v. City of Naperville, the Seventh Circuit overturned the district court's preliminary injunction against enforcement of the ban on the basis that the plaintiffs were unlikely to prevail.
As the United States argues, Bevis got it wrong even under pre-Bruen precedents. Thereafter, multiple Supreme Court Justices have expressed disagreement with Bevis, and Justice Kavanaugh said that the Court is likely to grant certiorari "in the next Term or two." (See my post here.) Moreover, the district court in Barnett heard critical, unrebutted evidence in a multi-day bench trial and found that the ban violates the Second Amendment.
The brief covers familiar ground, but does condition some of its statements with an eye toward future defense of federal law. It says that "many" (not all) of the banned firearms, particularly the AR-15, are "Arms" under the Second Amendment, which per Heller "extends, prima facie, to all instruments that constitute bearable arms." For purposes of the brief, it does not challenge the district court's findings that .50 caliber rifles and pistols are not protected. (The district court was "not convinced that any law-abiding citizen would keep a .50 caliber sniper rifle at home for self-defense purposes," although that ignores militia use.) But the brief adds "cf." the Supreme Court's recent statement in Smith & Wesson Brands v. Estados Unidos Mexicanos that ".50 caliber sniper rifles . . . are both widely legal and bought by many ordinary consumers."
While in the future the Department of Justice will continue to be called upon to defend the restrictions of the National Firearms Act, the NFA's definition of a "destructive device" does not include .50 caliber (= one half inch) barreled firearms. It instead covers a weapon "the barrel or barrels of which have a bore of more than one-half inch in diameter," excluding shotguns found to be "particularly suitable for sporting purposes." The brief adds that "at least one type of weapon banned by the Act—grenade launchers—may not qualify as an 'Arm' because it is more like artillery or explosives." All of these items are within the NFA's definition of "destructive device."
The brief also touches on another NFA device, silencers, which Congress (with the apparent approval of the Administration) is currently seeking to remove from the NFA. (See my post here.) In explaining that the Illinois Act violates the Second Amendment by banning magazines that are in common use, the brief generalizes that "firearm attachments that are useful to the exercise of the right, including magazines, suppressors, and other firearm attachments" are protected. It references its recent Supplemental Response in United States v. Peterson arguing that "a complete ban on suppressors would be unconstitutional." That concession may assist in challenging state laws that totally ban suppressors. But the Response also argues that the NFA's tax and registration requirements survive Second Amendment scrutiny.
Most of DOJ's Barnett brief is devoted to the familiar theme that the banned rifles meet the Heller-Bruen common-use test. The district court's multi-day bench trial made extensive factual findings that are not clearly erroneous. If it wants to overturn these findings, the Seventh Circuit will have to engage in substantial judicial antics to reach a preconceived result.
There is one legal point on which the brief uniquely took issue with the Bevis claim that "militaristic" firearms are not even "Arms." It goes without saying that, lacking capacity for full auto, the semiautomatic AR-15 simply "is not a military weapon," which explains why no military force in the world issues it as a standard service arm. Textually, the Second Amendment's prefatory clause—"A well regulated Militia, being necessary to the security of a free State"— does not limit the scope of its operative clause. It protects arms both for individual self-defense and collective self-defense.
Historically, "the English and American people were the first line of defense from military invasion, insurrection or public unrest, and even government oppression." Precedents from the nineteenth and early-twentieth centuries confirm protection for possession of arms for the common defense. As Thomas Cooley wrote in The General Principles of Constitutional Law in the United States, "The arms intended by the Constitution are such as are suitable for the general defen[s]e of the community against invasion or oppression[.]"
The brief was signed by Chad Mizelle, Acting Associate Attorney General, and Harmeet K. Dhillon, Assistant Attorney General, Civil Rights Division.
[P]laintiffs seek a preliminary injunction requiring Defendants to pay out to non-party The Trustees of Columbia University in the City of New York … "approximately $400 million in federal grants and contracts to Columbia," funded by the American taxpayers, which several executive agencies recently terminated because, among other reasons, the grants and contracts "no longer effectuate[d] … agency priorities" and "for the convenience of the Government." Plaintiffs further seek to prospectively enjoin Defendants from terminating, "pausing," "or otherwise interfering with" more than $5 billion in active taxpayer-funded grants and contracts to Columbia. Conspicuously, Columbia, whose grants and contracts were terminated and whose funding is the subject of the relief Plaintiffs seek, is not a plaintiff.
With no apparent sense of irony, lawyers for an organization called "Protect Democracy" insist that a district court judge should order the Executive Branch immediately to restore the flow of taxpayer dollars to an elite university, which funding Defendants represent is inconsistent with the priorities of the duly elected President of the United States. Our democracy cannot very well function if individual judges issue extraordinary relief to every plaintiff who clamors to object to executive action. Neither the Executive Branch nor the Legislature ever awarded the grants and contracts at issue to Plaintiffs or any of their members. The funding that Plaintiffs ask this Court to commandeer was awarded to Columbia, which is conspicuously absent from this case. If any funds have been wrongfully withheld, such funds may be recovered at the end of a successful lawsuit by the appropriate plaintiff in an appropriate forum.
Plaintiffs lack standing to assert the claims they purport to allege in this case. They are inserting themselves into a quarrel between the Executive Branch and non-party Columbia, which, Plaintiffs' own submissions make clear, Columbia wishes to resolve cooperatively, and perhaps through administrative appeals, without resorting to litigation that might further imperil Columbia's resources and reputation. Indeed, Plaintiffs' and Columbia's different assessments of the litigation risks simply underscores that non-party Columbia is the party with "the personal stake in the litigation." This Court has no authority to opine on the legality of Executive Branch actions against an entity that is not a party to this case.
This March, Proba-3 achieved what no other mission has before – its two spacecraft, the Coronagraph and the Occulter, flew 150 metres apart in perfect formation for several hours without any control from the ground.
Demonstrating the degree of precision achieved, the two spacecraft use their formation flying time to create artificial total solar eclipses in orbit – they align with the Sun so that the 1.4 m large disc carried by the Occulter spacecraft covers the bright disc of the Sun for the Coronagraph spacecraft, casting a shadow of 8 cm across onto its optical instrument, ASPIICS.
And here's the actual corona, with the full occulting:
Jodi Kantor published a detailed expose about Justice Barrett. Very little here surprises me. I've laid out the case manytimes. Based on Barrett's record, she should have never been nominated for the Seventh Circuit, she should have never been put on the Supreme Court "short list" before she decided a case, she should have never been a finalist for Justice Kennedy's seat barely a year into her tenure on the Seventh Circuit, and she should have never been elevated to Justice Ginsburg's seat with so much unknown about her. Yet, all the while, people who held important positions in the conservative legal movement assured us that Barrett was "solid." They could point to nothing tangible to make this case, other than their personal connections with Barrett, her academic credentials, and her Scalia clerkship. In the end, Kantor writes, President Trump picked the candidate he thought would help him get re-elected.
As President Trump was leaning toward appointing Amy Coney Barrett to the Supreme Court five years ago, some advisers shared doubts about whether she was conservative enough. But he waved them away, according to someone familiar with the discussions. He wanted a nominee religious conservatives would applaud, and with an election approaching, he was up against the clock.
Justice Barrett is who she is. I think it is a mistake to say she is "drifting," since she really didn't have a starting place for jurisprudence. She is figuring things out as she goes along. So it is hard to blame Justice Barrett for doing what was entirely predictable. Indeed, I think Barrett is doing exactly what an untested and inexperienced law professor would do if elevated to the Supreme Court. Truly, I don't blame her. People misunderstand my criticism of Justice Barrett.
Other than some members of the Scalia clerk family, Barrett's biggest defenders are in the academy. It's hard to blame law professors--especially those who were friends with Barrett before she was nominated. Moreover, when law professors defend Justice Barrett, they are not merely defending ACB. They are defending their own guild--the notion that a law professor can be the ideal type of judge.
Finally, the blame should not lie with President Trump. He made the best decision he could based on the names put before him. It's not the President's job to vet the pool of Supreme Court nominees. I think he is already experiencing buyer's remorse.
So who bears the blame? The blame should lie with those who pushed Barrett forward at every stage of the process. Despite everything we learned from the Roberts and Souter nominations, people just wanted to believe Barrett would be something she is not. And we will pay the price for that hubris for decades to come.
Kantor quotes Barrett who drew an analogy between the Constitution and Odysseus.
In classroom lectures, she used to say that the country had bound itself to the Constitution the way Odysseus had tied himself to the mast of his ship, to resist whatever political sirens swam up.
To continue the mythological theme, I feel like Cassandra. I predict what will happen, but no one will listen to me. Maybe that will change.
From U.S. v. Allam, decided today by Fifth Circuit Judge Cory Wilson, joined by Judges James Graves and Stephen Higginson:
In August 2022, Allam embarked on a road trip in his father's SUV from his home in Brooklyn, New York. By early January 2023, he pulled into Beaumont, Texas, via a circuitous, cross-country route. By the time he arrived in Texas, he possessed an AR-15-style rifle that he had purchased along the way in Pennsylvania. Since leaving New York, he had also been living in the SUV; he continued to do so while he was in Texas.
In Beaumont, Allam began parking his SUV for extended periods next to St. Anthony Cathedral Basilica School, a private school for students from pre-kindergarten through 8th grade. The Beaumont Police Department (BPD) was first alerted to his presence near the school on January 5. When approached by a BPD officer and asked if he had any guns or weapons, Allam replied that he did not. After being advised to park elsewhere, Allam was sighted in the following days near the Beaumont Civic Center and in front of a nearby Jewish synagogue for extended periods, prompting synagogue members to call BPD repeatedly.
Allam returned to the vicinity of St. Anthony around January 22 and remained parked next to the school almost continually, causing "fear and concern" among the school community. Attempts by teachers, BPD, and members of the public to get Allam to leave were unsuccessful. Due to Allam's presence, the school "stopped having any type of outside … activity," including "softball[,] … cheerlead[ing,] … [and] recess," and the school prohibited students from "walking between classes outside."
On Sunday afternoon, January 29, a school parent confronted Allam, who was sitting in his SUV parked adjacent to the school, and asked him to leave the area. Allam responded that he had a "mission" and that no one would ever see him again after Monday. Alarmed by Allam's ominous statement and based on a strong suspicion that Allam possessed a gun, the parent immediately prompted BPD to post an officer near Allam's SUV. Later that Sunday, when Allam began to drive the SUV from its parked location, the officer stopped him for various alleged traffic violations. When Allam refused to comply with the officer's instructions, he was arrested. In Allam's car, the police discovered the rifle, 150 rounds of ammunition, and a loaded thirty-round magazine.
This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.
In Friday's Perez v. City of San Antonio, the Texas Supreme Court concluded that this provision, when it applies, "is absolute and categorical, meaning it forbids governmental prohibitions and limitations on religious services regardless of the government's interest in that limitation or how tailored the limitation is to that interest." It also concluded that it's a substantive protection, not just an antidiscrimination rule that bars "orders that treated religious services less favorably than secular activities." And it concluded that "the Clause protects not only the right to gather for religious services but also worship practices that are part of religious services."
But the court also concluded that the provision is limited in scope, in relevant part reasoning:
[T]he Clause protects only "religious services"; it does not, for example, purport to protect the broader concept of the "free exercise of religion." … [I]t [also] protects only religious services "conducted … in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief." And … it forbids only government actions that "prohibit[] or limit[]" such services….
Because the Clause supplements and does not supplant the protections already provided by the Free Exercise Clause, the Freedom of Worship Clause, and the Texas RFRA, the linguistic context suggests that the Religious Services Clause does not attempt to independently and comprehensively address all governmental limitations on religious freedoms. And the historical context also confirms that those who drafted and proposed the amendment did not intend that its scope be unlimited.
For nearly a decade, the Roman Catholic Diocese of Albany has challenged New York's law mandating that insurance policies cover abortions. A cert petition was first filed in April 2021.But in November 2021, the Court GVR'd the case in light of Fulton. In May 2024, the New York Court of Appeals found that Fulton changed nothing.
In July 2024, the Diocese petitioned for cert a second time. The case sat on the docket for nearly a year. On June 5, the Court decide Catholic Charities Bureau. On June 9, the Court scheduled the Diocese petition for the June 12 conference. The Diocese urged the Court to summarily reverse in light of the Wisconsin case:
This Court's unanimous ruling in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, 605 U.S. ----, 2025 WL 1583299 (June 5, 2025), controls the initial question presented in this matter. Unless the Court wishes to grant the petition for other reasons, summary reversal is warranted. Granting the petition to vacate the decision below for a second time and remanding for yet further consideration would needlessly prolong this matter, imposing significant burdens on Petitioners and other religious organizations.
Unsurprisingly, New York sought a remand to keep the case on ice.
Today, nearly a year after the most recent cert petition was filed, and more than four years after the first petition was filed, the Court GVR'd the case in light of Catholic Charities Bureau.
It is difficult to describe how much time and effort has been spent on this case, amid two major landmark rulings. Yet, at least five members of the Court sent the Diocese back to New York purgatory. And I'm willing to bet that Justice Barrett, the Court's premier procedural formalist, was unwilling to grant a summary reversal. Much more on Justice Barrett tomorrow.
Last month I noted a provision in the "Big, Beautiful Bill" (sic) that would place limits on the issuance of preliminary injunctive relief against the federal government. The provision was apparently inspired (at least in part) by this Wall Street Journal op-ed.
Though largely a means to ensure compliance with FRCP 65(c), the provision may have also been overbroad and had a retroactive effect.
The Senate has adopted a similar measure, albeit one that is different in multiple respects. My co-blogger Ilya Somin notes Justice Clint Bolick's deep concerns about the provision here. Over at the Divided Argument substack, Samuel Bray offers a more sanguine take, calling the Senate provision a "vast improvement."
Here is the text of the Senate version:
No court of the United States may issue a preliminary injunction or temporary restraining order against the Federal Government (other than a preliminary injunction or temporary restraining order issued in a case proceeding under title 11, United States Code) if no security is given, in an amount proper to pay the costs and damages sustained by the Federal Government, when the injunction or order is issued pursuant to rule 65(c) of the Federal Rules of Civil Procedure after the date of enactment of this Act. No court may consider any factor other than the value of the costs and damages sustained when making its determination of the proper value of such security, and that determination shall be appealable upon issuance of the preliminary injunction or temporary restraining order under an abuse of discretion standard.
In Bray's view,
the Senate version is a dramatic improvement over the House version—it avoids the serious constitutional problems that were likely to doom the House bill, and it is more effective and harder to evade in requiring meaningful injunction bonds in suits against the federal government. The effect of that change will be to give more weight in the preliminary injunction calculus to the regulatory cost of preliminary injunctions to the federal government—not just in the current administration, but in future administrations, both Republican and Democratic.
That does not mean the provision is perfect. Bray also notes the effect of this provision (should it be adopted) will also depend on how it is interpreted and applied. It also remains to be seen whether this provision will be successfully included in the reconciliation bill. In any event, if this issue is of interest, Bray's analysis is definitely worth a read.
The Roberts court has long been characterized as a "probusiness" court, given the ostensible orientation of the court's Republican-appointed majority and assumptions that President Trump's appointments have magnified that orientation. But there are reasons to question this characterization. Quantitative analyses often fail to account for the relative importance of individual decisions, the broader legal context in which the court's decisions are made, or the ways in which decisions can alter or depart from preexisting legal baselines. I show that President Trump's appointments to the court have fairly consistently voted to restrain the power of administrative agencies, but they have not consistently supported outcomes that are beneficial to business. In cases involving state laws that may fragment or burden national markets, the Roberts court may actually be less sympathetic to business interests than it was prior to Trump's appointments.
The article is part of an interdisciplinary symposium edited by Lee Epstein and Rogers M. Smith on "Donald J. Trump, the Supreme Court, and American Constitutionalism." Other contributors to the symposium include Amanda Hollis-Brusky, Charles M. Cameron, Jonathan P. Kastellec, Adam Liptak, Rogers M. Smith, Gillian E. Metzger, Cristina M. Rodríguez, Olatunde Johnson, Terri Peretti, Linda Greenhouse, Vincent Phillip Muñoz, Rebecca L. Brown, Mitu Gulati, Keren Weinshall, and James L. Gibson.
Yesterday, there were massive nationwide "No Kings" protests against Donald Trump and his authoritarian tendencies. Like most political slogans, "No Kings" is an oversimplification. But it is in fact true that Trump is repeating many of the abuses of the British monarchs, which precipitated the English Civil War, and eventually the American Revolution.
A less widely recognized parallel between the Stuarts and Trump is that Trump is imitating King Charles in imposing taxes without legislative authorization, and in the process trying to convert an emergency power into a tool that the executive can deploy anytime he wants. As I have explained previously, Trump is trying to use the the International Emergency Economic Powers Act of 1977 (IEEPA) - a relatively narrow delegation of emergency powers - to wage a massive trade war over issues that are in no way an emergency, and impose up to $2.2 trillion in new taxes on Americans. Two federal courts have ruled (including one in a case brought by the Liberty Justice Center and myself) that IEEPA grants no such authority and it would be unconstitutional if it did, though the litigation continues on appeal.
Ship money… [was] a nonparliamentary tax first levied in medieval times by the English crown on coastal cities and counties for naval defense in time of war. It required those being taxed to furnish a certain number of warships or to pay the ships' equivalent in money. Its revival and its enforcement as a general tax by Charles I aroused widespread opposition and added to the discontent leading to the English Civil Wars.
After bitter constitutional disputes, Charles dismissed Parliament in 1629 and began 11 years of personal rule; during this time, deprived of parliamentary sources of revenue, he was forced to employ ship money as a financial expedient. The first of six annual writs appeared in October 1634 and differed from traditional levies in that it was based on the possibility of war rather than immediate national emergency. The writ of the following year increased the imposition and extended it to inland towns. The issue of a third writ in 1636 made it evident that Charles intended ship money as a permanent and general form of taxation. Each succeeding writ aroused greater popular discontent and opposition, and upon the issue of the third writ John Hampden, a prominent parliamentarian, refused payment.
His case, brought before the Court of Exchequer in 1637, lasted six months. The judges, headed by Sir John Finch (later Baron Finch), decided 7 to 5 in favour of the crown; but the highhanded opinions of Finch provoked widespread distrust of Charles's courts, whereas the narrowness of the decision encouraged further resistance…. In 1641, by an act of the Long Parliament, ship money was declared illegal.
Note the many parallels to our present situation: Like Trump, Charles I imposed massive taxes without congressional authorization, attempted to convert a narrow emergency power into "a permanent and general form of taxation," and provoked widespread resistance. And, like Trump, Charles I claimed he had an absolute, unreviewable prerogative to determine whether an emergency justifying the use of extraordinary authority existed. Trump claims he alone gets to decide whether there is an "emergency" and an "unusual and extraordinary threat" of the kind needed to invoke IEEPA. Similarly, King Charles I claimed he alone was entitled to determine whether there was threat of invasion or naval attack of the kind that could justify imposition of ship money.
Reading Henry Parker's 1640 Leveller Tract against Ship Money, "The Case of Shipmoney Briefly Discoursed," gives me a strong sense of de ja vu. Parker was a leading contemporary critic of royal absolutism and defender of civil liberties and parliamentary rights.
Parker notes that "[t]he Quaere then is, whether the King bee sole Judge of the danger, and of the remedy, or rather whether he be so sole Judge, that his meere affirmation and notification of a danger foreseene by him at a distance, or pretended only to be foreseene, shall be so unquestionable, that he may charge the Kingdome thereupon at his discretion, though they assent not, nor apprehend the danger as it is forewarned." Trump, too, is claiming to be the "sole Judge of the danger" and asserting that his "mere affirmation" is enough to impose massive taxes any time he wants.
Parker also emphasized "that in nature there is more favour due to the liberty of the subject, than to the Prerogative of the King, since the one is ordained only for the preservation of the other; and then to solve these knots, our dispute must be, what prerogative the people's good and profit will beare, not what liberty the King's absolutenes or prerogative may admit." He also notes that "in this dispute it is more just that wee appeale to written lawes, than to the breasts of Kings themselves." In our situation, too, the liberty of the people must take precedence over the asserted prerogatives of the executive, and the latter must be bound by written law. The people must be free to trade with foreign nations, and free of arbitrary detention, unless, at the very least, the executive can prove by overwhelming evidence there is a genuine emergency in which written law authorizes him to use extraordinary power.
Parker further emphasizes that "questionlesse sole judgement in matters of State, does no otherwise belong to the King, than in matters of Law, or points of Theology. Besides, as sole judgement is here ascribed to the King, hee may affirme dangers to be foreseene when he will, and of what nature he will." The same is true for us. If the president can "affirme dangers to be foreseene when he will, and of what nature he will," and use them as pretexts to wield vast emergency powers, there is no end to the abuses of power that are likely to occur.
Parker also warns against simply relying on the King's word about there being a genuine emergency:
It is ridiculous also to alledge… that it is contrary to presumption of Law to suspect falsity in the King…. Nay there is nothing more knowne, or universally assented to than this, that Kings may be bad; and it is more probable and naturall that evill may bee expected from good Princes, than good from bad. Wherefore since it is all one to the State, whether evill proceed from the King mediately or immediately, out of malice, or ignorance. And since wee know that of all kindes of government Monarchicall is the worst, when the Scepter is weilded by an unjust or unskilfull Prince, though it bee the best, when such Princes as are not seduceable (a thing most rare) reigne, it will bee great discretion in us not to desert our right in those Lawes which regulate and confine Monarchy, meerly out of Law-presumption, if wee must presume well of our Princes, to what purpose are Lawes made?
The parallel to our own situation is obvious. Presidents too may be "bad," and they too often try to exploit real and imagined emergencies to make dangerous power grabs. Politicians, like princes, are rarely immune to temptation and "seduction," and therefore - for us, too 'it will bee great discretion in us not to desert our right in those Lawes which regulate and confine" the executive power.
The American Founding Fathers, of course, were greatly influenced by the British experience, and shared many of the concerns of Parker and other English opponents of royal absolutism. For that reason, they made sure the power to impose taxes (including tariffs) was given to the legislature, and confined emergency powers to narrow circumstances (e.g. - the writ of habeas corpus can only be suspended "when in Cases of Rebellion or Invasion the public Safety may require it" and "invasion" was understood narrowly as a military attack, not cross-border smuggling or illegal migration). Nor did they trust to the good will and discernment of the executive to decide for himself when extraordinary powers should be wielded. As James Madison (as if echoing Henry Parker) famously warned, "Enlightened statesmen will not always be at the helm." At least for originalist judges, this history - and its influence on the Founders - should also bolster the legal case against Trump's tariffs.
The British eventually defeated Charles I and curbed their monarchs' absolutist pretensions, albeit only after much oppression and bloodshed. The Founding Fathers learned from that awful experience. We would do well to learn from it, as well, and act accordingly.
From New York trial court judge Mary Rosado's opinion Thursday in Council of City of N.Y. v. Adams (see also N.Y. Times [Luis Ferré-Sadurní], Judge Blocks ICE Plan to Open Rikers Office Indefinitely):
This case, at its essence, seeks to maintain the rule of law. Plaintiff-Petitioner seeks to nullify an Executive Order issued allegedly because Mayor Adams negotiated away sanctuary city protections for a dismissal of his ongoing criminal prosecution. On January 31, 2025, Mayor Adams met with President Donald J. Trump's Deputy Attorney General, Emil Bove ("Mr. Bove"), to discuss Mayor Adams' ongoing criminal prosecution's impact on his ability to "work[] with the federal government on important issues of immigration enforcement" Danielle R. Sassoon, Esq., Acting United States Attorney for the Southern District of New York, attended the January 31, 2025 meeting, and said "Adams'[] attorneys repeatedly urged what amounted to a quid pro quo, indicating that Adams would be in a position to assist with [immigration] enforcement priorities only if the indictment were dismissed."
On February 3, 2025, Mayor Adams' criminal defense attorney, Alex Spiro, wrote to Mr. Bove that Mayor Adams' criminal prosecution will "become increasingly problematic as the Trump administration seeks to aggressively enforce immigration laws and remove undocumented immigrants …. [T]he federal government cannot possibly rely on Mayor Adams to be a fully effective partner in all situations in ongoing public-safety missions while he is under federal indictment …." Mr. Spiro further wrote that Mayor Adams' "abilities to exercise his powers have also been complicated by his indictment" including his powers to "prevent[] the Office of the Corporation Counsel from litigating challenges to immigration enforcement, prevent[] appointed city employees from taking public stances against enforcement efforts, [and to] re-open[] the ICE office on Rikers Island …." On February 10, 2025, Mr. Bove directed federal prosecutors to dismiss without prejudice the pending criminal charges against Mayor Adams.
On February 13, 2025, just after meeting President Donald J. Trump's "Border Czar," Thomas Homan ("Mr. Homan"), Mayor Adams announced he would issue an executive order allowing federal immigration authorities on Rikers Island. One day later, on February 14, 2025, Mr. Homan appeared alongside Mayor Adams on Fox & Friends, where he stated if Mayor Adams did not deliver "I'll be back in New York City, and we won't be sitting on the couch. I'll be in his office, up his b ___, saying, 'Where the hell is the agreement we came to?'" That same day, the Department of Justice filed a motion to dismiss all pending criminal charges against Mayor Adams.
While the motion to dismiss was pending, numerous deputy mayors resigned from Mayor Adams' administration. On March 20, 2025, First Deputy Mayor Mastro was appointed by Mayor Adams. On March 24, 2025, Mayor Adams issued Executive Order No. 49. This order provides First Deputy Mayor Mastro shall "[r]eport directly to the Mayor." It also delegated to First Deputy Mayor Mastro the authority to "[p]erform any function, power or duty of the Mayor in negotiating, executing and delivering any and all agreements, instruments and any other documents necessary or desirable to effectuate any of the matters" related to public safety.
On April 2, 2025, United District Judge Dale Ho dismissed the criminal charges with prejudice, writing "[e]verything here smacks of a bargain: dismissal of the [i]ndictment in exchange for immigration policy concessions." Judge Ho further wrote the suggestion "that public officials may receive special dispensation if they are compliant with the incumbent administration's policy priorities … is fundamentally incompatible with the basic promise of equal justice under law." Ultimately, Judge Ho found that he "cannot force the Department of Justice to prosecute a defendant" and did not have the authority "to appoint an independent prosecutor" which precluded him from denying the Department of Justice's motion to dismiss. Six days later, on April 8, 2025, First Deputy Mayor Mastro issued Executive Order No. 50, which authorized the Department of Correction to enter a Memorandum of Understanding with federal law enforcement agencies allowing them to maintain office space on Department of Correction property, specifically Rikers Island.
The court concluded that Mayor Adams' actions likely violated N.Y. conflict of interest law:
Today's New York Times features an extensive profile of Justice Amy Coney Barrett by Jodi Kantor. The article opens with a tidbit that I had not seen reported previously.
As President Trump was leaning toward appointing Amy Coney Barrett to the Supreme Court five years ago, some advisers shared doubts about whether she was conservative enough. But he waved them away, according to someone familiar with the discussions. He wanted a nominee religious conservatives would applaud, and with an election approaching, he was up against the clock.
Soon after Justice Barrett arrived at the court she began surprising her colleagues. Chief Justice John G. Roberts Jr. assigned her to write a majority opinion — among her first — allowing the seizure of state property in a pipeline case, according to several people aware of the process. But she then changed her mind and took the opposite stance, a bold move that risked irritating the chief justice.
PennEast was an interesting case in many ways. Among other things, it produced an interesting lineup. The Chief wrote for the Court, joined by Justices Breyer, Alito, Sotomayor, and Kavanaugh. The dissenters were Justices Barrett, Thomas, Kagan, and Gorsuch, and in my view they had the better of the argument, doctrinally and prudentially. (Indeed, if all you told me about a case was this lineup, I'd be inclined to assume the dissenters got it right.)
For those who forget, Justice Barrett's dissent began:
A straightforward application of our precedent resolves this case. Congress passed the Natural Gas Act in reliance on its power to regulate interstate commerce, and we have repeatedly held that the Commerce Clause does not permit Congress to strip the States of their sovereign immunity. Recognizing that barrier, the Court insists that eminent domain is a special case. New Jersey has no sovereign immunity to assert, it says, because the States surrendered to private condemnation suits in the plan of the Convention. This argument has no textual, structural, or historical support. Because there is no reason to treat private condemnation suits differently from any other cause of action created pursuant to the Commerce Clause, I respectfully dissent.
A provision inserted into the Senate GOP version of Trump's "Big Beautiful Bill" would, if enacted, pose a serious threat to federal courts' ability to protect your constitutional rights. It does so by requiring litigants seeking a preliminary injunction against a federal government policy to post potentially enormous bonds.
Arizona Supreme Court Justice Clint Bolick - who is also an experienced public interest litigator, having served as Director of Litigation at the libertarian Institute for Justice and VP for Litigation at the Goldwater Institute - has an excellent article outlining the danger this provision poses:
[The Senate bill] targets temporary restraining orders and preliminary injunctions. These are rulings that demand that the government halt the enforcement or implementation of a policy immediately, pending the final outcome of the case, if the judge concludes that it is likely the plaintiffs will prevail against the government in the end.
Just imagine, for instance, that during Covid, courts could not stop executive orders closing down houses of worship unless millions of dollars were posted in bonds. Or an executive order confiscating guns. The basic idea of a temporary restraining order or preliminary injunction is to prevent the damage to the rights and well-being of citizens from the government carrying out an action or policy that is likely to be found illegal or unconstitutional.
The new Senate version turns that logic on its head, instead seeking to protect the government from any costs that might be incurred from citizens asserting their rights.
This new version no longer tries to take away the power to enforce rulings through contempt. Nor does it apply retroactively, which could have caused chaos and brought settlements in many old cases into doubt. But it imposes a requirement that plaintiffs suing the federal government post a bond "in an amount proper to pay the costs and damages sustained by the Federal Government." Crucially, "No court may consider any factor other than the value of the costs and damages sustained." That could mean that they can't consider the potential damage to the plaintiffs from the government's actions, nor can they consider the plaintiffs' ability to pay.
Requiring potentially massive bonds to enjoin government action could prevent many or even most such lawsuits from being filed in the first place, because few would have the means to pay upfront. That is especially true in cases involving sweeping policies where the government could claim "costs" in the billions. Only state governments could conceivably post bonds in that amount, though they would also balk at the potential hit to their budgets.
This means that many parties would have no choice but accept violations of their rights rather than seek legal redress, severely undermining the Constitution.
As Justice Bolick explains, this Senate provision is actually worse than the previous House version of this idea, which targeted judges' contempt powers, though the latter was also bad, and likely unconstitutional. My Cato Institute colleague Walter Olson makes additional points along the same lines. As he notes, if this provision passes, the government could impose even blatantly illegal and unconstitutional policies for long periods of time, unless and until litigation reaches a final conclusion. That could inflict grave harm on the victims of illegality. Consider media subject to illegal censorship during a crucial news cycle, illegally deported immigrants, people imprisoned without due process, and more.
Right now, Republicans are seeking to enact these restrictions in order to block injunctions constraining a GOP administration's policies. But, as Bolick notes, under a more left-wing administration the same tool can easily be turned against rights conservatives value. Consider a left-wing president who targets gun rights or religious liberty rights, or tries to censor speech DEI activists consider offensive.
Ultimately, it is more important to ensure the vast powers of the federal government cannot be used to undermine the Constitution and take away our rights than to ensure an administration can swiftly implement all its preferred policies. And if a rogue district court does impose an injunction improperly, higher courts can quickly stay or overturn it, as has happened a number of times in recent months.
If this Senate provision gets enacted, there is a chance courts might invalidate it as an unconstitutional assault on the power of judicial review - which it is. But it would be better if Congress does not go down this dangerous road in the first place.
NOTE: Clint Bolick was one of my superiors at the Institute for Justice, when I worked there as a law student clerk in the summer of 1998.
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