The Volokh Conspiracy Archive

Last week, the road-rage killer of an Arizona man was sentenced to 10 1/2 years in prison after his victim "spoke" to the court via a victim impact statement (VIS) created through artificial intelligence. The trial court judge allowed the victim's family to play an AI-generated video with a version of the victim—including his face and body and a lifelike voice—which appeared to ask the judge for leniency. The family has posted the statement here on YouTube. The defendant was apparently sentenced to the maximum term and has promised to challenge the statement on appeal. In my view, this kind of statement seems like a useful technological innovation that should be generally allowed, subject to reasonable limitations imposed by the trial court (which I discuss at the end of this post).

In this post, I discuss this AI-generated victim-impact statement against the backdrop of the existing legal landscape in this country. All fifty states and the federal system allow victims to deliver victim impact statements, as I outline in this article. (Interestingly, many other countries use some form of victim impact statement as well.) In homicide cases such as this Arizona case, the victim's family members step into his shoes as his representative to deliver the statement. I have made the general case for allowing victim impact statements in two papers, "In Defense of Victim Impact Statements" and "How Victim Impact Statements Promote Justice: Evidence from the Content of Statements Delivered in Larry Nassar's Sentencing" (co-authored with Professor Edna Erez). The U.S. Supreme Court has also approved victim impact statements even in capital cases, in Payne v. Tennessee (1991). To be sure, academics such as Professor Susan Bandes and Professor Mike Vitiello have raised objections to VISs. But for purposes of this post, I will assume that the legitimacy of VISs and address the narrower question of whether an AI-generated statement should be permitted.

This question should be assessed in light of the recognized purposes of victim impact statements. The first purpose is to provide relevant information to the sentencers, often (as in this Arizona case) a judge. This purpose has been described as the "informational rationale" for victim impact statements. Through a VIS, the victim's family members are allowed to provide "a quick glimpse of the life" the defendant "chose to extinguish," thereby reminding the sentencer that "the person whose life was taken was a unique human being," as Justice O'Connor explained in her concurring opinion in Payne. An AI-generated statement simply builds on that approach.

An AI-generated statement is not too far removed from previously used technologies, which help to provide the glimpse into the victim's life. For example, in homicide trials, it has long been the practice to allow the prosecution to introduce a photograph of the victim taken when the victim was alive. For example, a Utah statute (enacted in 1994 to enforce Utah's Victims' Rights Amendment) provides that "[i]n any homicide prosecution, the prosecution may introduce a photograph of the victim taken before the homicide to establish that the victim was a human being, the identity of the victim, and for other relevant purposes." Of course, in a criminal case by the time of sentencing, the defendant has been proven guilty beyond a reasonable doubt, and so issues related to potential bias while determining guilt are no longer in play.

At sentencing, appellate courts have approved of video montages of photographs of a victim and even videos of a victim. For example, in 2009, the California Supreme Court considered the admissibility in a death penalty case of an eight-minute video of the victim and his family enjoying a trip to Disneyland. The Court rejected a defendant's challenge, calling the tape an "awkwardly shot 'home movie'" lacking the elements generally designed to stir up emotions." People v. Dykes, 209 P3d 1, 44-45 (Cal. 2009).

However, such videos can go too far. For example, in 2004, a federal district court excluded a victim video in a death penalty case. The court explained that the video, made for a memorial service, "was about twenty-seven minutes in length and featured over 200 still photographs of the victim, in roughly chronological order, from the time he was born until the time just before his death. The pictures were set to evocative contemporary music, including that of the Beatles and James Taylor." This video, the court concluded, when too far "because its probative value was outweighed by the danger of unfair prejudice, and created a danger of provoking undue sympathy and a verdict based on passion as opposed to reason." United States v. Sampson, 335 F. Supp. 2d 166, 191 (D. Mass. 2004). At the same time, however, the district court noted that other courts had allowed some video clips to be used, but in "each of these cases, the admitted video was brief and found to be probative of some aspect of the victim's life."

An AI-generated statement is simply a technological advance on this tradition of victim videos, and thus helps to address one of the core problems that VIS are designed to address. If no victim statement is allowed, it turns the killer's victim "into a faceless stranger" and thus "deprives the State of the full moral force of its evidence," as the U.S. Supreme Court recognized in Payne. Through the AI-generated statement in this Arizona case, the victim—Christopher Pellkey—was no longer a "faceless stranger" to the proceedings but rather a unique human being whose life the defendant extinguished.

In determining whether an AI-generated statement should be allowed, it is also useful to compare two situations. Suppose the defendant has seriously injured a victim by striking a non-deadly blow. In that case, the victim himself is allowed to deliver a victim impact statement about what happened. For comparison, suppose that the defendant has killed a victim by intentionally striking a lethal blow. In that case, the victim is obviously unavailable to deliver his own statement. An AI-generated statement is simply a technological substitute for the fact that the defendant has criminally chosen to make the victim unavailable. In balancing the equities between an innocent victim and a killer, of course, the equities lie with the victim and his family representatives. Because the defendant has chosen to commit his deadly crime, any doubts should be resolved against him in deciding whether an artificially created substitute for the victim is an appropriate response to the victim's absence . Read More

From Jan v. People Media Project, decided Tuesday by Judge Tiffany Cartwright (W.D. Wash.):

This case arises from the kidnapping of Plaintiffs Almog Meir Jan, Shlomi Ziv, and Audrey Kozlov by Hamas during the terrorist attack of October 7, 2023. Plaintiffs are Israeli citizens who were kidnapped at the Nova Music Festival and held hostage by Hamas operative Abdallah Aljamal before being rescued by the Israel Defense Forces. Defendants are People Media Project, doing business as the Palestine Chronicle, its individual officers Ramzy Baroud and John Harvey, and unnamed Doe Defendants 1 through 10.

Plaintiffs allege that Defendants employed and compensated Aljamal for work as a journalist before and after the October 7 attack, despite knowing Aljamal was a Hamas operative. Plaintiffs assert that through these actions, Defendants aided and abetted their kidnapping and imprisonment as well as aided and abetted terrorism in violation of the Alien Tort Statute ("ATS") ….

The following facts are those alleged in the amended complaint. Because the Court is considering a motion to dismiss …, Jan's factual allegations must be taken as true and construed in the light most favorable to him ….

Plaintiffs allege that beginning in May 2019, Aljamal worked as a journalist for the Palestine Chronicle, which regularly published his articles. However, "Aljamal also served as an official spokesperson for Hamas's Ministry of Labor" and "Defendants knew that … Aljamal was an operative and official spokesperson for Hamas." For example, Plaintiffs allege that Aljamal's Facebook page included a photo of his son wearing Hamas headbands posted on June 6, 2023, and a graphic that is the symbol for Hamas's internal security bureau. Following October 7, Plaintiffs allege that Aljamal posted on his Facebook page and TikTok account a message supporting the attack. They assert that individual "Defendants regularly viewed and interacted with" Aljamal's social media posts.

After October 7, Aljamal's publications on the Palestine Chronicle "increased exponentially, often publishing two to three pieces per day[.]" And to receive and publish Aljamal's articles, Plaintiffs allege that "Defendants were in consistent, direct, and substantial contact with Aljamal, using electronic and internet means." Specifically, "Defendants used electronic and internet means, including, but not limited to, WhatsApp and Skype, to communicate with Hamas Operative Aljamal following October 7, 2023 to coordinate Defendants' publishing of Hamas propaganda, including the publishing of justifications for Aljamal's imprisonment of Israeli citizens." Plaintiffs further assert that "Defendants knew that Aljamal was a terrorist participating in kidnapping and hostage-taking through their close employment relationship and their personal connections, e.g., Aljamal and Defendant Baroud are from the same hometown in Gaza."

From Adams v. Cox, decided last week by the Florida Court of Appeal (Judge John MacIver, joined by Judges Harvey Jay and Adrian Soud):

Cox petitioned for injunction for protection against dating violence, alleging that Adams had committed acts of violence against her and that she feared imminent future violence. In her petition, Cox described two incidents of past violence by Adams and claimed that she had recently received harassing phone calls and text messages from unknown numbers, which she believed were initiated by Adams….

At the hearing, Cox testified that Adams had physically attacked her two times during their relationship. Adams, in turn, denied ever harming Cox. Cox also testified that over the months preceding the hearing, she had been repeatedly called or texted by three unfamiliar phone numbers. She stated that one voicemail message left by an unknown caller sounded like Adams's voice, and that some text messages contained personal information (such as her home address and her child's school) that led her to suspect Adams was behind them. Yet Cox admitted she was not certain that Adams was the caller, and she did not present the actual voicemail or text messages as evidence.

For his part, Adams tried to introduce documentary evidence—apparently phone records or other proof—to show that the phone numbers were not associated with him, but the trial court declined to admit these documents. The judge told Adams to "hold on" to his papers and explained, "I need to figure out whether two people should legally be separated from one another. That's why I need to talk to you. Your words are what matter." The court did not permit Adams to call any other witnesses or to authenticate his proof regarding the messages.

From last week's Ohio Court of Appeals decision in Edelstein v. Edelstein:

Father claimed that Mother denied him the opportunity to retrieve his personal items from the marital home. Father testified he had left behind familial memorabilia, religious heirlooms, and other personal items when he had moved out. Father explained that while he was given a brief opportunity to collect a few of his personal items from the home, Mother never gave him a sufficient opportunity to meaningfully collect his belongings. Mother told Father that she put the items he had left behind in storage and that he would be able to retrieve them the next time she was in Ohio.

Despite communicating to Father that his possessions were in storage and that he would be able to retrieve them, Mother testified that after she had determined that storage was too much of an inconvenience, she called a trash service and had Father's personal property destroyed. Mother admitted that she did not notify Father prior to having his belongings destroyed….

Mother takes issue with the court's $5,000 contempt penalty for having Father's items destroyed. This penalty, however, constitutes an equitable offset, given that Mother denied Father the opportunity to collect his equitable distribution of household goods and furnishings. This offset included all "remaining household goods, keepsakes, and furnishings," which would include the bottle of 1976 Glenrothes Single Malt Scotch. Thus, Mother's claim that the court failed to include the value of the bottle of scotch in the marital assets is without merit….

If you want to celebrate this decision, you can buy such a bottle yourself.

5/8/1884: President Harry S. Truman's birthday. He would make four appointments to the Supreme Court: Chief Justice Vinson, and Justices Burton, Clark, and Minton.

I have posted a revised draft of my forthcoming article, The Two Tests of Search Law: What is the Jones Test, and What Does That Say About Katz?, which will be published in the Washington University Law Review. You can download it here, and the abstract is below.

Fourth Amendment law has two "search" tests: The Katz privacy test and the Jones property test. Lower courts don't know what the difference is between them, however, or whether the Jones test is based on trespass law or the mechanics of physical intrusion. The result is a remarkable conceptual uncertainty in Fourth Amendment law. Every lower court recites that there are two search tests, but no one knows what one test means or how it relates to the other.

This Article argues that the Jones test hinges on physical intrusion, not trespass law. Jones claimed to restore a pre-Katz search test, and a close look at litigation both before Katz and after Jones shows an unbroken line adopting an intrusion standard and (where it has arisen) rejecting a trespass standard. This understanding of Jones is not only historically correct, but also normatively important. How we understand Jones tells us how to understand Katz. The intrusion approach offers an appealing interpretation of both tests that may prevent Katz's rejection by a Supreme Court otherwise inclined to overturn it.

A prison guard transfers Alien Enemies Act deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)

Earlier today, federal District Judge Charlotte Sweeney of the District of Colorado issued a ruling against the Trump Administration in an Alien Enemies Act (AEA) case. Trump has been trying to use the Alien Enemies Act of 1798 as a tool for deporting Venezuelan migrants with virtually no due process. But the Act can only be used to detain and deport immigrants in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government." In today's decision, Judge Sweeney built on her own earlier ruling imposing a temporary restraining order (TRO) against AEA deportations in her district, and also a recent AEA ruling by a federal district court in Texas. Her new decision replaces the TRO with a longer-lasting preliminary injunction.

Like those other rulings, Judge Sweeney's most recent opinion concludes that none of the requirements for invocation of the AEA has been met. The activities of the Tren de Aragua drug gang (cited by Trump as justification for using the AEA) don't qualify as an "invasion" or a "predatory incursion," and TdA is pretty obviously not a "nation or government" (Judge Sweeney is the sole federal judge to have addressed this latter issue, so far). Moreover, US intelligence agencies have concluded that TdA probably isn't even acting at the direction of the Venezuelan government. It is a private criminal organization.

I have defended the view that "invasion" requires a military attack, in greater detail in my previous writings on the meaning of the term in the AEA and the Constitution. The two meanings are necessarily intertwined, as several federal courts have now recognized.

Judge Sweeney's ruling reaches the right result, and is generally well-reasoned. But there is one regrettable aspect of her analysis, adapted from a recent ruling by Judge Fernando Rodriguez of the Southern District of Texas. Like him, she concludes that the meaning of "invasion" is not an unreviewable "political question," but also suggests that the factual determination of whether an "invasion" exists is. This is irrelevant to the current state of AEA litigation because Trump has not - so far - alleged that a foreign government is invading the US in the sense of launching a military attack. But he could potentially make such an assertion, and I would not put it past this administration to make bogus claims of that sort.

For that reason, among others, my reservations about Judge Rodriguez's reasoning on this point also apply to the Colorado ruling:

Making determinations about relevant facts is a standard function of the judiciary. If the law says the government is allowed to do X whenever Y occurs, courts must make a determination on whether Y has actually happened or not. Otherwise, the government could do X anytime it wants simply by asserting Y has happened, even if the claim is false. This is especially dangerous in case of emergency wartime powers that severely curtail civil liberties, like those authorized by the AEA (detention and deportation with little due process, even for legal immigrants)….

[U]nder the Constitution, a state of "invasion" allows state governments to "engage in war" in response and the federal government to suspend the writ of habeas corpus (thereby empowering it to detain people - including US citizens - without due process). Such sweeping authority cannot simply be left to the unreviewable discretion of one person. That's the kind of arbitrary royal prerogative the Founders sought to prevent.

It may be reasonable to defer to the executive on factual issues when the evidence is close, and ambiguous, and the government is making use of some kind of superior expertise. But not when the assertion that an "invasion" exists is pretty obviously false, and pretextual.

Despite this one flaw, the new Colorado ruling is yet another indication of a growing consensus among federal judges that Trump has invoked AEA illegally because "invasion" and "predatory incursion" are forms of organized armed attack. Illegal migration and drug smuggling don't qualify. Both lower-court judges and the Supreme Court have also uniformly rejected the notion that invocation of the AEA isn't subject to judicial review.

The legal battle over the AEA will continue, and this ruling, like other lower-court decisions going against the administration, is likely to be appealed. But, so far, Trump is has suffered an almost unbroken series of well-deserved losses in AEA litigation.

The administration's only notable win to date was on the procedural issue of where AEA detainees must file their claims. And that victory has been undercut by the ongoing willingness of judges' to rule against him on the merits, and certify class actions. For reasons I summarized here and here, class action certification is crucial to ensuring that poor migrants and those with limited English proficiency are able to secure meaningful judicial protection for their rights.

From Bingham v. Wilson, decided today by Judge Richard Gergel (D.S.C.):

In the wake of Dobbs v. Jackson Women's Health Organization (2022), the South Carolina Legislature enacted a ban on abortions after nine weeks of pregnancy. The Act [criminalizes] "perform[ing] or induc[ing] an abortion on a pregnant woman with the specific intent of causing or abetting an abortion" if an embryonic or "fetal heartbeat" has been detected on an ultrasound…. The Act contains three exceptions where abortions may be performed after nine weeks of pregnancy:

the "Health Exception," which exempts abortions performed "to prevent the death of the pregnant woman," where the physician determines that a "medical emergency" exists, or "to prevent the serious risk of a substantial or irreversible impairment of a major bodily function, not including psychological or emotional conditions";

the "Fatal Fetal Anomaly Exception," which exempts abortions after a physician determines in his or her "reasonable medical judgment, the unborn child has a profound and irremediable congenital or chromosomal anomaly that, with or without the provision of life-preserving treatment, would be incompatible with sustaining life after birth"; and

the "Rape or Incest Exception," which allows a physician to "perform, induce, or attempt to perform or induce an abortion" if the pregnancy was the result of rape or incest and "the probable gestational age of the unborn child is not more than twelve weeks" after the first day of the patient's last menstrual period ("LMP") and where the physician "report[s] the allegation of rape or incest to the sheriff in the county in which the abortion was performed" within 24 hours of performing the abortion" including the patient's name and contact information."

From Gerwaski v. Nevada ex rel. Bd. of Regents, decided Monday by Chief Judge Andrew Gordon (D. Nev.):

Plaintiff Corey Gerwaski sues the University of Nevada, Las Vegas (UNLV), its president, and several advocacy organizations. Gerwaski alleges that demonstrations on the UNLV campus caused him mental anguish, violated his constitutional rights, and caused him to lose his job at the UNLV library. Gerwaski also sues AJP Educational Foundation, doing business as American Muslims for Palestine (AMP), and the UNLV chapter of Students for Justice in Palestine (SJP-UNLV) for aiding and abetting terrorism and for intentional infliction of emotional distress (IIED)….

AMP is a nonprofit organization incorporated in California and headquartered in Virginia. It is "dedicated to advancing the movement for justice in Palestine by educating the American public about Palestine and its rich cultural, historical and religious heritage through grassroots mobilization and advocacy."

Gerwaski alleges that AMP controls the National Students for Justice in Palestine (NSJP) group, of which SJP-UNLV is an affiliate. He further claims that AMP uses NSJP "to operate a propaganda machine for Hamas and its affiliates across American college campuses to influence, wreak havoc and intimidate Jewish students on university campuses across the Nation." According to Gerwaski, NSJP supports Hamas, justifies Hamas's terroristic activities through its rhetoric and messaging, and perceives itself as a part of the group. Hamas, in turn, allegedly welcomes support from NSJP and its affiliates and encourages them to be "part of this battle" in the United States.

The day after Hamas's October 7, 2023 terrorist attack in Israel, NSJP released a "Day of Resistance Toolkit" to students on American campuses and on the internet. The toolkit contained instructions and templates for users to create online announcements to organize protests. Some of the slogans in this toolkit mirror the messaging used by Hamas.

After this toolkit came out, SJP-UNLV organized several protests both on and off the UNLV campus, called for an economic boycott at UNLV, and called for UNLV to divest from investment in Israeli companies. At one of the demonstrations organized by SJP-UNLV, protestors chanted "[f]rom the river to the sea, Palestine will be free" and "[l]ong live the intifada." Gerwaski alleges that these chants call for eliminating the country of Israel and express support for terrorist campaigns.

Gerwaski is a Jewish student at UNLV who wears the Jewish skullcap, or kippah, at all times. Gerwaski serves in the UNLV student government and briefly worked at the UNLV Lied Library. He alleges that he has been exposed to verbal assaults by members of Nevada Palestine Liberation, another nonstudent group, who made hateful, antisemitic comments to him. Gerwaski has elected to cover his kippah with a baseball cap or other head covering due to the antisemitic chants and chaos on the UNLV campus. Due to the conditions on UNLV's campus, Gerwaski suffered "severe and extreme emotional distress manifested as great humiliation, embarrassment, shame, and other pain and suffering."

More from the "[Kanye West] is not merely a creator; he is art" motion to dismiss; the motion is dealing with this allegation:

On June 4–5, 2024, Ye sent a series of text messages to Plaintiff that Plaintiff
characterizes as belligerent, abusive, harassing, antisemitic, and otherwise offensive. The messages included statements such as "Shut the fuck up bitch," "Hail Hitler," and "You ugly as fuck," among others. Plaintiff alleges that these messages constituted harassment. Defendants assert that the messages are protected artistic expression …, and were sent in furtherance of Ye's constitutionally protected right to resist unwanted interference with his creative work and his rehearsal of his iconic artistic style of advancing grievances in dramatic vernacular.

Here's the defense lawyers' response:

A perhaps somewhat over-the-top argument in a motion to dismiss an employment lawsuit (Doe v. Yeezy, LLC).

The motion itself may have merit as to some of its facets, and certainly raises some interesting legal issues; I look forward to seeing what the court makes of it. An excerpt:

5. Plaintiff Jane Doe, a self-proclaimed Hollywood publicist, aggressively sought to represent Ye, fully aware of his reputation as the world's most provocative artist. Retained in late 2023 to promote Vultures Vol. 1, she publicly positioned herself as Ye's media liaison. The irony is striking: the compensation she received—and now seeks to augment through this litigation—was generated exclusively by the controversial art she herself promoted. Having knowingly immersed herself in Ye's unapologetically boundary-defying artistic environment, she now claims retroactive offense at performative expressions such as "I Am A NAZI" and "You Ugly as Fuck"—works that plainly reflect Ye's artistic critique of censorship, identity, and beauty standards, and which were wholly consistent with his public artistry and presentation long before Plaintiff explicitly sought employment….

40. In January 2024, Ye texted Plaintiff, "I Am A NAZI," in response to her unsolicited suggestion that he publicly condemn Nazism amid controversy over the Nazi-inspired cover art for Vultures Vol. 1. Plaintiff alleges this message constitutes antisemitic harassment and discrimination.

41. Vultures Vol. 1, which Plaintiff was hired to promote, featured aesthetic choices reminiscent of imagery related to Nazism, invoking debates about artistic expression, antisemitism, and censorship.

5/7/1873: Chief Justice Salmon P. Chase died. One month earlier, he dissented in the Slaughter-House Cases, and was the lone dissenter in Bradwell v. Illinois.

On Monday, Steve Inskeep of NPR interviewed me about the case against Trump's "Liberation Day" IEEPA tariffs filed by the Liberty Justice Center and myself. This interview only went for about five minutes, so we didn't cover the issues as thoroughly as in some previous interviews I have done, such as those with KQED and Forbes. But this is a good, short introduction to the case (helped by the pointed questions Inskeep asked) and a lot of people contacted me to say they liked it. So I am posting the audio, which is also available here.

I cover the legal issues at stake in much greater detail in my Lawfare article, "The Constitutional Case Against Trump's Trade War." In a recent post, I explained why Trump's tariff agenda threatens the rule of law, in addition to damaging the US economy.

In March 2022, the Supreme Court partially granted the Biden Administration's emergency application in Austin v. U.S. Navy Seals 1-26. This order allowed the Navy to discharge many service member who refused to receive the COVID vaccine. The vote here was (likely) 6-3. Justice Kavanaugh wrote separately to explain that the commander in chief should receive deference in military affairs. Justices Thomas, Alito, and Gorsuch dissented, and would have denied the stay. I wrote about the ruling at the time here.

Today, the Supreme Court granted the Trump Administration's emergency application in United States v. Shilling. This order allows the military to discharge transgender service members. The vote here was (likely) 6-3. Justices Sotomayor, Kagan, and Jackson dissented.

Was Shilling based on the likelihood of success on the merits, or the risk of irreparable harm? I suspect the former. The Court likely determined that the transgender service members are unlikely to prevail. There are approximately 4,000 transgender service members who will be discharged. Then again, the experience with the COVID vaccine teaches that a service member who is discharged can later be re-instated. Trump ultimately reinstated nearly 9,000 service members who refused the jab.

I suppose that the Chief Justice and Justices Kavanaugh and Barrett are being consistent. I suspect the troika thought that the Navy Seals and transgender service members were likely to lose. And I think Justices Thomas, Alito, and Gorsuch thought that the Navy Seals were likely going to win and the transgender service members will likely lose. Justice Sotomayor and Kagan allowed the discharge for those who refused the vaccine, but would have blocked the discharge of the transgender service members.

One last point: how does Shilling interplay with Skrmetti? It's possible the Court will rule against the transgender service members, on the grounds of military deference, but rule in favor of the Tennessee plaintiffs. But I think that split is unlikely. This order probably signals that Tennessee will prevail.

On an orange background, Trump's head and shoulders in black and white, with $100 bills over one shoulder and a stack of shipping containers over the other. — Donald Trump. (lllustration: Eddie Marshall | Maksym Velishchuk | Dreamstime.com | Midjourney)

In recent days, the Trump Administration has made two damaging admissions that should hurt its already dubious positions in litigation over the Alien Enemies Act and illegal deportations of migrants to imprisonment in El Salvador.

Last week, Trump himself publicly admitted he "could" secure the return of illegally deported Salvadoran immigrant Kilmar Abrego Garcia, who is currently imprisoned in El Salvador at the behest of the US government. That should put an end to the ongoing legal debate over how to apply the Supreme Court's ruling that the administration must "facilitate" Abrego Garcia's return. Given that Abrego Garcia is only incarcerated by El Salvador because of an agreement under which the US is paying the Salvadoran government to do so, it was already obvious that Trump could easily secure his return, if he wanted to. But Trump's admission is additional evidence on this point. And, given that the entire arrangement is an unconstitutional violation of the Due Process Clause of the Fifth Amendment (deportees are imprisoned without ever having any opportunity to defend themselves in court), there is no legitimate foreign policy interest in maintaining it, and therefore no reason for courts to defer to the executive. And what is true of Abrego Garcia is also true of dozens of others illegally deported to imprisonment in El Salvador. It is blatantly obvious that Trump could easily return them, and the administration has a legal and moral obligation do so.

Trump did later claim he could only return Abrego Garcia if the attorney general says its legal to do so. But there is no doubt that it's legal to return a person whose deportation was itself illegal.

Meanwhile, a declassified US intelligence community memorandum concluded that, contrary to Trump Administration claims, the Tren de Aragua drug gang is not acting under the direction of the Venezuelan government and is not significantly responsible for the flow of Venezuelan migrants to the US. Reason writer Jacob Sullum has a helpful summary of the memo and its significance:

In a March 15 proclamation, President Donald Trump declared that suspected members of the Venezuelan gang Tren de Aragua were "alien enemies" subject to immediate deportation. He invoked the Alien Enemies Act (AEA), a rarely used, 227-year-old law that applies when "there is a declared war" between the United States and a "foreign nation or government" or when a "foreign nation or government" has "perpetrated, attempted, or threatened" an "invasion or predatory incursion against the territory of the United States."

To support that dubious interpretation of the AEA, Trump averred that Tren de Aragua (TDA) is "is closely aligned with" the Venezuelan government. He said the gang was "undertaking hostile actions and conducting irregular warfare against the territory of the United States…at the direction, clandestine or otherwise, of the Maduro regime in Venezuela." A newly revealed memo from the National Intelligence Council (NIC) casts doubt on those assertions….

The declassified April 7 memo, which the Freedom of the Press Foundation obtained under the Freedom of Information Act, says "Maduro regime leadership probably sometimes tolerates TDA's presence in Venezuela, and some government officials may cooperate with TDA for financial gain." But it adds that "the Maduro regime probably does not have a policy of cooperating with TDA and is not directing TDA movement to and operations in the United States."

The U.S. intelligence community, which includes the CIA, the FBI, and the National Security Agency, "bases this judgment on Venezuelan law enforcement actions demonstrating the regime treats TDA as a threat," the memo says, describing "an uneasy mix of cooperation and confrontation" rather than the "top-down directives" that characterize "the regime's ties to other armed groups."

This revelation undercuts Administration claims that TdA's actions are at the behest of the Venezuelan government, and therefore undermines the argument those activities are undertaken by a "foreign nation or government," which is one of the requirements for using the AEA to detain and deport immigrants.

Trump's use of the AEA is illegal for other reasons, as well. Among other things, regardless of who controls TdA, the gang's illegal activities do not qualify as an "invasion" or "predatory incursion" - as multiple federal courts have now ruled. I have defended the view that "invasion" requires a military attack, in detail in previous writings on the meaning of the term in the AEA and the Constitution. But the intelligence community report further weakens the Administration's legal position.

Today, without opinion, the Supreme Court stayed a district court injunction barring implementation of President Trump's Executive Order on military readiness that would bar individuals from serving in the military other than in accordance with their biological sex. The order notes that Justices Sotomayor, Kagan, and Jackson would have denied the federal government's stay request.

The Trump Administration has appealed the district court's order in the U.S. Court of Appeals for the Ninth Circuit. Parallel litigation is ongoing in the U.S. Court of Appeals for the D.C. Circuit.

The outcome of these case is likely to be influenced (if not controlled) by the Court's pending decision in Skrmetti, as that case will almost certainly answer whether classifications based upon one's gender identity or on being transgender are subject to any form of heightened scrutiny, and whether courts should presume that such classifications are based upon impermissible bias or animus. So depending on how the Court ultimately resolves Skrmetti, this litigation may or may not return to One First Street.

Professor Evan Bernick recently guest blogged here about birthright citizenship, challenging those who have put forward revisionist arguments about the scope and import of the citizenship clause in Section One of the Fourteenth Amendment.

Bernick recently debated one of those revisionists, Professor Ilan Wurman, at the recent Federalist Society Third Circuit Chapters Conference. It was a civil and highly substantive debate focusing on the original meaning of the Fourteenth Amendment. I confess it did not change my views on the subject, but I found it quite worthwhile. It can be viewed below.

To my mind, Prof. Wurman's arguments challenging the conventional account of birthright citizenship are interesting, but ultimately fail to establish the lawfulness or constitutionality of the Trump Executive Order. At most, they suggest that there might be some room for Congress (should it choose to legislate on the topic) to redefine the conventional understanding of what it means for someone to be born in the United States "subject to the jurisdiction thereof." They do not suggest that the President may unilaterally redefine the settled and long-followed meaning of the citizenship clause embodied in federal law.

I should add that the Bernick-Wurman debate--like much of the recent public debate on birthright citizenship--proceeds on the assumption that the question should be resolved by reference to the original public meaning of the Fourteenth Amendment, and not on various living constitutionalist theories. As I have noted before, though, if one rejects this premise, the case for the conventional account of birthright citizenship becomes less clear. If one believes either that courts should be particularly deferential to the political branches or should embrace evolving constitutional meanings in response to political and other developments (such as an election in which a prevailing candidate advocated a contrasting constitutional interpretation), one might well conclude that the traditional understanding of citizenship is up for grabs. Similarly, if one embraces a capacious understanding of Congress's power to enforce the Fourteenth Amendment under Section Five, it would seem to follow that Congress has more authority to redefine the contours of birthright citizenship than some suppose. Food for thought.

The Volokh Conspiracy

Should a Killer's Victim Be Able to "Speak" at a Sentencing Through AI?

Claim Can Go Forward Against American Publisher That Allegedly Knew Knew Author It Paid Was Hamas Hostage-Holder

Dating Violence Restraining Order Reversed Because Court Relied on Unauthenticated Anonymous Communications

Penalty Based Partly on Divorcing Wife's Destroying $1800 Bottle of Scotch

Today in Supreme Court History: May 8, 1884

Updated draft: The Two Tests of Search Law

Colorado Federal District Court Issues Additional Alien Enemies Act Ruling Against Trump

Wednesday Open Thread

South Carolina Abortion Restriction May Be Void for Vagueness, But Doesn't Violate Free Exercise Clause

Court Throws Out Emotional Distress Lawsuit Brought by Jewish Student Over UNLV Anti-Israel Protests

Festivus + Jews + Kanye West + Litigation

Kanye West "Is Not Merely a Creator; He Is Art" (Say His Lawyers)

Today in Supreme Court History: May 7, 1873

NPR Interview on Legal Challenges to Trump's IEEPA Tariffs

SCOTUS Permits Discharge In COVID and Transgender Cases

Trump Administration Makes Damaging Admissions on Alien Enemies Act and Deportations

Supreme Court Stays District Court Injunction Against Trump Administration Policy on Transgender Individuals in the Military

Bernick v. Wurman on Birthright Citizenship and the 14th Amendment

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

For America's 250th, Get 2 Years of Reason for $17.76