Last week, the President fired the Librarian of Congress, and then the Register of Copyrights, who is the Librarian's subordinate. I will set aside the question of whether that was a good idea, and focus on the legal question—how can the President fire the Librarian of Congress?
The answer appears to be that the Library of Congress is actually an Executive Branch department for legal purposes, though it also provides some services to Congress. Indeed, I think it has to be such a department in order to have the authority that it has over the implementation of copyright law (via the Register of Copyrights): As Buckley v. Valeo(1976) made clear, in a less famous part of its holding, Congress can't appoint heads of agencies that exercise executive powers.
Indeed, the U.S. Court of Appeals for the D.C. Circuit held last year,
As we have recognized, the Librarian is a "Head of Department" within the Executive Branch.
And that is particularly true when it comes to the appointment of the Librarian: A federal statute expressly provides that,
Today's long decision by Senior Judge John Steele (M.D. Fla.) in Naples Pride, Inc. v. City of Naples so holds (to oversimplify matters slightly). First, the court concludes the drag performance is symbolic expression that's presumptively protected by the First Amendment:
To determine whether conduct is inherently expressive, "we ask whether [a] reasonable person would interpret it as some sort of message, not whether an observer would necessarily infer a specific message." In making that determination, a court looks to the context and circumstances surrounding the conduct. For example, the Supreme Court has found that nudity is not protected by the First Amendment, but that nude dancing is protected expressive conduct….
For purposes of this preliminary injunction motion, the Court finds that Naples Pride's drag performance is symbolic conduct that is inherently expressive and constitutes "speech" within the meaning of the First Amendment. The circumstances surrounding the drag performance would lead a reasonable person to view the performance as conveying some sort of message. The performance is part of a festival conducted in a month associated with LBGTQ+ issues. Pridefest and the drag performance raise matters of concern to the community, as shown by the vigorous debate before the City Council regarding this year's Permit and those of prior years.
Those who weighed in on the proposed drag performance understood that their disagreement was with the performance's inherently expressive meaning. Some strenuously oppose the performance's symbolic message, others are ardently in favor of it. The City Council made its permitting decision after considering the expressive meaning conveyed by the anticipated drag performance. The very nature of the restrictions imposed by the City Council — the indoor-only and age restrictions and a portion of the increased security fees — indicate that the performance's message was a motivation for the restrictions….
The court then concludes that ordering the performance to be moved indoors was likely unconstitutional:
Prof. Michael McConnell at the Stanford Law School, a leading constitutional law scholar (and former Tenth Circuit judge), passed this along, and I'm delighted to be able to post it:
As of this writing, seven lawsuits have been filed challenging the legality of President Trump's unilateral imposition of tariffs. The briefing is farthest along in V.O.S. Selections, Inc. v. Trump, pending in the Court of International Trade. That court has scheduled a hearing for May 13 on all pending motions, including a motion for a preliminary injunction. Appeals from the Court of International Trade go to the Federal Circuit. Arguably, of all the cases challenging Trump administration actions, the tariff cases have the greatest consequence for the national economy as well as the division of authority between Congress and the Executive.
Both sides agree that the President has no inherent constitutional authority to set tariffs. President Trump's power, if it exists, must come from statute. The government relies on the International Emergency Economic Powers Act of 1977 (IEEPA). IEEPA gives the President power to take certain actions upon declaration of an emergency. The statute does not contain any reference to a power to impose, raise, withdraw, or alter tariffs or any other taxes. Until President Trump, no President ever asserted a tariff power under IEEPA. Instead, IEEPA has always been used to impose non-tariff economic sanctions, such as the freezing of assets. The government contends, however, that the statutory phrase to "regulate … imports" is broad enough to include the power to set tariffs.
I thought it would be helpful to quickly summarize the arguments on both sides (note that I am a signatory to an amicus brief supporting the challengers). Boiled down to its essentials, the government's argument on the merits is as follows:
From the introduction to his April 24 post, which is much worth reading in its entirety:
Imagine this scenario.
The interior minister of a country that considers itself a democracy reports scores of citizens to the police for making critical statements about her while she is in office. Many of them are given hefty monetary fines or even prison sentences.
In protest, a journalist publishes a satirical meme. It features a real photograph of the interior minister holding a sign that is digitally altered so that, apocryphally, it reads: "I hate freedom of speech."
As if to prove the point, the interior minister reports the journalist to the police. He is duly prosecuted and, after a brief trial, given a seven-month suspended prison sentence.
Would you say that this nation has a problem with free speech?
If you do, then you should be very concerned about what has happened in Europe over the last few years. For, as you may have suspected, this scenario is not fictional; rather, it depicts the true facts of a recent German court case—one that is far less of an outlier than most otherwise well-informed observers recognize….
Mounk goes on to offer many examples and analysis, and closes with:
Friday's Alabama Supreme Court decision in Flickinger v. King stemmed from a June 2020 Facebook post "apparently regarding the death of George Floyd" by Flickinger:
Things I think about: If I were a seven-time felon, with my most recent prison stint stemming from robbing and holding a pregnant woman at gunpoint in her home, would I choose to die in a fentanyl and methamphetamine numbed strangulation if it meant being worshipped in a nationwide funeral and my family receiving millions of dollars? Purely hypothetical.
King then got in touch with Flickinger's employer, Wainwright, Pope & McMeekin, P.C. (a law firm at which Flickinger had worked 11 years) about the post. The firm threatened to fire Flickinger unless he resigned, which he did. He then sued (among others) King, alleging that King "had shared a 'counterfeit' social-media profile that appeared to show that Flickinger was making a controversial political statement on behalf of WPM":
According to Flickinger, the allegedly "counterfeit" social-media profile contained a professional photograph "appropriated" from WPM's Web site that, he said, he had never used on any of his personal social-media platforms as well as the name of Flickinger's employer, which, he maintains, he had "never advertised or shared in conjunction with any of his personal social media posts."
According to Flickinger, digitally merged with this "counterfeit" social-media profile were additional social-media posts appropriated from his personal social-media platforms that were critical of the mass nationwide violence that had been going on in the wake of George Floyd's death….
The court held that Flickinger's claim against King could proceed under a theory of tortious interference with a business relationship; Alabama follows the Restatement (Second) of Torts approach to the tort, under which such intentional interference can be actionable even without a showing that the defendant's conduct was independently tortious. (Many other states bar such liability unless the defendant's conduct was independently tortious, e.g., defamatory, threatening of violence, etc.; that is now the Restatement (Third) of Torts approach.)
The court first held there was sufficient evidence that King's communication to Flickinger's employer caused Flickinger's firing:
Ofer Raban, who is a professor at the University of Oregon School of Law (but who, even more clearly than usual for a law professor, is speaking on behalf of himself and not the law school), passed along this item. I have no direct personal knowledge of the matter, but I thought Prof. Raban's report was interesting and potentially important. I have tried to obtain statements for publication from the law school and the law review, but have not gotten any; naturally, if I do get contrary accounts or perspectives, I'd be happy to pass them along.
From Prof. Raban:
The University of Oregon, the state's flagship public university, is presently investigating a claim of discrimination against an Israeli professor by the Oregon Law Review. Several law school administrators apparently knew of the discrimination, and a high-ranking administrator had even approved it. The target of the discrimination holds an American law degree and has been teaching intermittently in the U.S..
The events unfolded in 2024, after an Oregon Law Review editor recommended the publication of an article written by the Israeli professor. Conceding the article's merits, a second law review editor rejected the recommendation because the author was a faculty member at an Israeli university. The law review management agreed, claiming that publishing the article would be perceived as an endorsement of Israel in the Israeli-Palestinian conflict—although the article dealt with environmental law and had nothing to do with that conflict.
When the original reviewer objected that this may amount to unlawful discrimination, the matter was taken to a high-ranking law school official. A meeting was held, and the official reportedly gave the green light to the discrimination. At least two law school administrators, possibly more, were aware of the stated basis for the rejection and connived in it. A concerned member of the law review (who did not attend the meeting) was told that the law school's administration had cleared the discrimination.
The allegations may involve violations of state and federal anti-discrimination statutes, violations of the state and federal constitutions, violations of the university and the law school's own policies and regulations, and infringements of federal policies, the policy of the Association of American Universities (of which the University of Oregon is a member)—and the university's own statement—regarding academic boycotts of Israel.
Specifically, the court holds that parents can't sue under a pseudonym together with their minor child, even though state rules provides that minors' names are pseudonymized.
Federal courts have long had a strong presumption against pseudonymity; the cases I discuss in The Law of Pseudonymous Litigation are mostly federal cases. Some states have done the same, but many states don't have a lot of caselaw on the subject. In Friday's Doe v. Western Dubuque Comm. School Dist., the Iowa Supreme Court (in a unanimous opinion by Justice Christopher McDonald), generally adopted the federal approach:
Minor Doe, Father Doe, and Mother Doe filed suit against a school district and several school district officials and employees after Minor Doe was attacked by another student during school. The Does asserted claims for negligence, breach of fiduciary duty, and loss of consortium….
On January 12, 2023, Minor Doe was an eighth-grade student attending Drexler Middle School in the Western Dubuque Community School District. She was participating in an industrial arts technology class when another student assaulted her over the head with a board…. According to the petition, the school did not contact proper medical personnel or Minor Doe's parents after the assault…. Minor Doe was diagnosed with a concussion and other injuries….
The substantive analysis in the decision discussed governmental immunities, fiduciary duties, and related matters, but the court had this to say about pseudonymity:
On Thursday, the Supreme Court will hear oral argument in the birthright citizenship cases. The government's emergency application presents several significant issues about the scope of the nationwide injunctions and other pressing procedural issues. Will the Court settle any of these long-standing, nagging issues? I doubt it. There are certainly five votes, and probably seven votes, and maybe even eight votes, to declare the executive order unconstitutional on its face. That ruling would bring all litigation to a halt. But I doubt there are five votes to reach a consensus about nationwide injunctions. That's why the Court rushed oral arguments: to put together a merits ruling against Trump, and make this case vanish. Chief Justice Roberts has bigger fish to fry in his quest to save democracy from itself.
I think the Court will do something similar with the Alien Enemies Act cases. There are a host of complex procedural issues. Can you certify a class under Rule 23 for a TRO? What is the interaction between the APA and Habeas Corpus? What level of deference is due when the President declares an invasion? And so on. It is far simpler to find that Trump's order was invalid because reasons. The Chief will make up some rationale that does not foreclose a future president from exercising his statutory powers. I offered this prediction a few weeks ago:
I actually think the Court will bypass the 5th Circuit and all of the procedural issues by simply ruling against Trump on the merits.
Meanwhile, deep in the heart of Texas, Judge Hendrix declined to certify a class of the aliens in Abilene Division, even though the Supreme Court's granted relief to the "putative" class on a temporary basis nearly a month ago. I doubt the Supreme Court will ever let a case arrive from the Fifth Circuit. Far easier to affirm a ruling from one of the sensible judges in the Beltway who orders planes to turn around.
Shortly after President Trump's inauguration in 2017, he was sued for violating the Constitution's Foreign Emoluments Clause. That litigation stretched the entirety of Trump's first term in office, but did not reach a clear resolution. After Trump's term concluded, all of those cases fizzled out. Now, we are more than 100 days into Trump's second term. And, to my surprise, there has been zero litigation about the Foreign Emoluments Clause. Likewise, there has been no litigation following Trump v. Anderson about whether Section 3 disqualifies Trump from office. I suppose these were not the constitutional crises that we were told.
Yet, the Foreign Emoluments has still returned to the fore. ABC News reports that the royal family of Qatar will gift a 747-8 jumbo jet to the Air Force for its use as Air Force One. And at the end of Trump's term, the plane will be transferred to the Trump Presidential library foundation. ABC reports that White House Counsel, David Warrington, asked the Department of Justice for an opinion on the gift. The opinion has not (yet) been made public, but ABC offers this account:
Anticipating those questions, sources told ABC News that lawyers for the White House counsel's office and the Department of Justice drafted an analysis for Defense Secretary Pete Hegseth concluding that is legal for the Department of Defense to accept the aircraft as a gift and later turn it over to the Trump library, and that it does not violate laws against bribery or the Constitution's prohibition (the emoluments clause) of any U.S. government official accepting gifts "from any King, Prince or foreign State."
Sources told ABC News that Attorney General Pam Bondi and Trump's top White House lawyer David Warrington concluded it would be "legally permissible" for the donation of the aircraft to be conditioned on transferring its ownership to Trump's presidential library before the end of his term, according to sources familiar with their determination.
The sources said Bondi provided a legal memorandum addressed to the White House counsel's office last week after Warrington asked her for advice on the legality of the Pentagon accepting such a donation. . . .
Both the White House and DOJ concluded that because the gift is not conditioned on any official act, it does not constitute bribery, the sources said. Bondi's legal analysis also says it does not run afoul of the Constitution's prohibition on foreign gifts because the plane is not being given to an individual, but rather to the United States Air Force and, eventually, to the presidential library foundation, the sources said.
It would be useful to see this opinion at some point. It is not presently posted on the OLC web site.
Still, I can imagine what one of the leading authorities might be.
In 1963, there was discussion whether Ireland could confer honorary Irish Citizenship on President Kennedy. The Office of Legal Counsel provided an opinion on this potential gift. Seth Barrett Tillman and I discussed the gift in Part V of our ten-part series. Here is an excerpt:
In what may be the most valuable gift ever extended to the United States from a foreign government, the Trump administration is preparing to accept a super luxury Boeing 747-8 jumbo jet from the royal family of Qatar -- a gift that is to be available for use by President Donald Trump as the new Air Force One until shortly before he leaves office, at which time ownership of the plane will be transferred to the Trump presidential library foundation, sources familiar with the proposed arrangement told ABC News.
The gift is expected to be announced next week, when Trump visits Qatar on the first foreign trip of his second term, according to sources familiar with the plans.
Trump toured the plane, which is so opulently configured it is known as "a flying palace," while it was parked at the West Palm Beach International Airport in February.
One might think this gift raises legal issues. Administration lawyers apparently have those bases covered:
sources told ABC News that lawyers for the White House counsel's office and the Department of Justice drafted an analysis for Defense Secretary Pete Hegseth concluding that is legal for the Department of Defense to accept the aircraft as a gift and later turn it over to the Trump library, and that it does not violate laws against bribery or the Constitution's prohibition (the emoluments clause) of any U.S. government official accepting gifts "from any King, Prince or foreign State."
Sources told ABC News that Attorney General Pam Bondi and Trump's top White House lawyer David Warrington concluded it would be "legally permissible" for the donation of the aircraft to be conditioned on transferring its ownership to Trump's presidential library before the end of his term, according to sources familiar with their determination. . . .
Both the White House and DOJ concluded that because the gift is not conditioned on any official act, it does not constitute bribery, the sources said. Bondi's legal analysis also says it does not run afoul of the Constitution's prohibition on foreign gifts because the plane is not being given to an individual, but rather to the United States Air Force and, eventually, to the presidential library foundation, the sources said.
One might also think a gift of this sort could raise security concerns, particularly given the Qatari government's efforts to influence U.S. policy (and universities). Apparently such concerns will be addressed when the plane is modified to meet the requirements for presidential use.
According to the story, the plane is to be transferred to the Trump Presidential Library Foundation no later than January 1, 2029, at the federal government's expense. The story estimates the value of the plane at approximately $400 million.
In unrelated news, the Associated Press reported on April 30:
The Trump family company struck a deal Wednesday to build a luxury golf resort in Qatar in a sign it has no plans to hold back from foreign dealmaking during a second Trump administration, despite the danger of a president shaping U.S. public policy for personal financial gain.
The project, which features Trump-branded beachside villas and an 18-hole golf course to be built by a Saudi Arabian company, is the first foreign deal by the Trump Organization since Donald Trump took office and unlike any done in his first term. Back then, he forswore foreign deals in an extraordinary press conference surrounded by stacks of legal documents as he pledged to avoid even the appearance of conflict of interest.
5/11/1942: Gordon Hirabayashi "failed to report to the Civil Control Station within the designated area." The Supreme Court upheld the constitutionality of his conviction in Hirabayashi v. U.S. (1943).
WJLA (Ida Domingo) reports that a Virginia McDonald's put up a sign that states,
Due to repeated incidents of student violence, this McDonald's location is temporarily closed for dine-in service to anyone under 21 years of age. This decision was made to protect our staff, our guests, and our community.
According to the story,
To enter, customers must ring a doorbell to be allowed entry by an employee. A spokesperson for the franchise said student violence and disrespectful behavior occur at least once a week, causing frustration among staff and customers.
"The fighting is a problem and they're pretty brazen. The management tries to step in and these kids are pretty violent," said longtime customer Robert Hancasky, who said he has frequented this McDonald's for nearly 50 years. "They're just trying to stop the violence because it's not fair to any other customer who comes in for the sandwich, a hard-working person, they got to put up with a bunch of idiots."
Despite the restrictions, customers under 21 can still use the drive-thru, order via a mobile app for curbside pickup, and dine inside if accompanied by a chaperone.
I sympathize with the management's concerns, and with the concerns of the quoted customers. But my tentative thinking is that this violates Virginia public accommodations law, which provides,
Yesterday, federal District Judge William K. Sessions, III, of the District of Vermont ordered the immediate release of Tufts graduate student Rumeysa Ozturk, whom ICE had detained and slated for deportation based on her anti-Israel speech. There does not appear to be a written decision in the case. But here is a summary of the background of the case, and what the judge said orally:
Tufts University doctoral student Rümeysa Öztürk was released from a Louisiana detention center Friday, six weeks after masked federal agents took her into custody amid the Trump administration's effort to deport noncitizens who have protested against the war in Gaza.
Hours after US District Judge William K. Sessions III ordered her immediate release, a smiling Öztürk was surrounded by a group of supporters who chanted "Rümeysa! Rümeysa!" as she walked out of the detention center Friday evening….
The Department of Homeland Security claimed that Ozturk "engaged in activities in support of Hamas, a foreign terrorist organization that relishes the killing of Americans." However, the only evidence it could provide, even after prodding from Sessions, was an op-ed Ozturk helped write that called on Tufts to divest from Israel.
Ozturk filed a habeas corpus petition challenging her arrest and detention….
Her arrest came a year after Öztürk co-authored a campus newspaper op-ed that was critical of Tufts University's response to the war in Gaza, and her attorneys have said that she was targeted by the administration in an attempt to chill pro-Palestinian speech in violation of her constitutional rights. The 30-year-old, originally from Turkey and on a valid F-1 student visa, was shuttled through multiple states after her arrest and suffered through a series of asthma attacks without adequate medical care, according to her attorneys.
Öztürk, who has not been charged with any crime, was accused by the Trump administration of participating in activities in support of Hamas. Neither the administration nor attorneys for the Department of Justice presented any evidence of her alleged activities in court.
Sessions presided over the more than three-hour hearing, where four witnesses – including Öztürk – testified about her community engagement work and her asthma. Sessions said Öztürk had raised "substantial claims" of both due process and First Amendment violations.
"Continued detention potentially chills the speech of the millions and millions of individuals in this country who are not citizens. Any one of them may now avoid exercising their First Amendment rights for fear of being whisked away to a detention center," Sessions said.
Sessions noted that for multiple weeks, except for the op-ed, the government failed to produce any evidence to support Öztürk's continued detention. "That is literally the case," Sessions said. "There is no evidence here as to the motivation absent the consideration of the op-ed."
The judge ordered her release without any travel restrictions or ICE monitoring.
It is obvious that Ozturk's op ed was the kind of speech protected by the First Amendment. I have previously written on why there is no immigration exception to the First Amendment, nor does it matter that a student visa is not itself a constitutional right:
The text of the First Amendment is worded as a general limitation on government power, not a form of special protection for a particular group of people, such as US citizens or permanent residents. The Supreme Court held as much in a 1945 case, where they ruled that "Freedom of speech and of press is accorded aliens residing in this country."
A standard response to this view is the idea that, even if non-citizens have a right to free speech, they don't have a constitutional right to stay in the US. Thus, deporting them for their speech doesn't violate the Constitution. But, in virtually every other context, it is clear that depriving people of a right as punishment for their speech violates the First Amendment, even if the right they lose does not itself have constitutional status. For example, there is no constitutional right to get Social Security benefits. But a law that barred critics of the President from getting those benefits would obviously violate the First Amendment. The same logic applies in the immigration context.
The Cato Institute/FIRE amicus brief in Ozturk's case elaborates on the reasons why the First Amendment applies in much greater detail.
In earlier posts on this topic, I have urged universities to file lawsuits challenging Trump's speech-based deportation policy, rather than letting students like Ozturk fend for themselves. I was happy to see that many schools (including my undergraduate alma mater Amherst College) filed an amicus brief supporting a lawsuit brought against the policy by the American Association of University Professors (the court recently issued a preliminary ruling in favor of AAUP, allowing the case to go forward). But universities should do more to protect their students.
As I have previously noted, I have little sympathy for recent anti-Israel campus protests, and for the views of many of the foreign students targeted for deportation. But freedom of speech applies regardless of the merits of the opinions targeted by censors. And the sorts of vague standards used to justify deporting Ozturk can easily be turned against adherents of a wide range of other views, including those espoused by people on the political right, as well as the left.
The litigation over speech-based deportations will continue in this and other cases, and this ruling may well be appealed. But it's a good sign, nonetheless.
Environmental Protection Agency Administrator Lee Zeldin has announced that the agency will reconsider the so-called endangerment finding, which triggers the regulation of greenhouse gases under various provisions of the Clean Air Act. For reasons I explained in this post, I believe this is a fool's errand, no matter what one thinks about the threat posed by climate change or the utility of federal regulation.
On Friday, I participated in a webinar discussing the legal and practical issues concerning an attempted rescission of the endangerment finding with regulatory analyst Richard Belzer and attorney Michael Buschbacher of Boyden Gray. The program was moderated by Laura Stanley of Gibson Dunn. The webinar was sponsored by the Regulatory Transparency Project of the Federalist Society and is viewable below.
As has become traditional, the sitting and retired justices of the Supreme Court have issued statements regarding the death of Justice David Souter. All of the justices participated, including those who did not serve with him on the Court. The statements may be found here.
The matter before us concerns a lawsuit that was filed in March of 2023 by six women against their sorority and against Artemis Langford, a member of that sorority who had been admitted through normal procedures the previous fall. {… KKG considers itself a "fraternity" in its governing documents. However, emulating Plaintiffs and our national discourse, the Court refers to KKG as a "sorority."}
Plaintiffs, upset by the fact that Ms. Langford is transgender, asked this Court to void her admission, find that the President of Kappa Kappa Gamma (KKG) violated her fiduciary obligations to the sorority, and prevent other transgender women from joining the sorority nationwide. We dismissed the complaint without prejudice in August of 2023, holding, inter alia, that KKG's freedom of expressive association allows it to interpret the word "woman" in its bylaws however it wishes.
In June of 2024, Plaintiffs' appeal to the Tenth Circuit was also dismissed, on the grounds that our dismissal without prejudice was not a final judgment because we implicitly gave Plaintiffs leave to amend.
