6/10/1916: Justice Charles Evans Hughes resigns.
Today in Supreme Court History: June 10, 1916
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
My New UnPopulist Article on Synergies Between Litigation and Political Action in Resisting Trump
The article describes how the two can be mutually reinforcing, building on lessons from previous episodes in constitutional history.
Today, the UnPopulist published my article on synergies between litigation and political action in resisting Trump 2.0's multi-faceted assaults on the Constitution. I explain how the two tracks can be mutually reinforcing.
As I was writing the article, it occurred to me that - with my role in the tariff case - I am directly involved in implementing these ideas; we are, of necessity, litigating this case in both the court of law and the court of public opinion. That kind of direct involvement in the subject of my own writings is not an accustomed role for an academic, at least not for me. Whether it gives me greater insight, reduces my objectivity or some combination of both, is for readers to judge.
Here is an excerpt from the article:
The Trump administration has launched a multi-faceted assault on many aspects of our constitutional system, ranging from illegal deportations of immigrants to blocking legal migration by unconstitutionally declaring a state of "invasion," to usurpation of congressional authority over federal spending and tariffs. These efforts have, in turn, encountered resistance by means of both litigation and political mobilization. But there has been little consideration of how the two types of resistance to Trumpism relate to each other. There are often important synergies between litigation and political action. Each can bolster the other. Such synergies don't always happen—and there are situations where litigation might actually undermine political efforts. Still, activists and litigators can act in ways that maximize synergies, while mitigating potential downsides.
Throughout modern history, successful constitutional reform movements have generally combined litigation and political action, not relied exclusively on one or the other. That was true of the Civil Rights Movement, the women's rights movement, same-sex marriage, and movements to expand property rights and gun rights, among others. Litigation can bolster political action, and vice versa.
These dynamics are also evident in the early results of litigation against some of Trump's abuses of power, most notably in immigration and trade.
The rest of the article discusses how these synergies have played out over the last few months, and notes some potential lessons we can learn.
Second Amendment Roundup: S&W Sí, Mexico No
“The AR–15 is the most popular rifle in the country.”
On June 5, in an unanimous decision by Justice Elena Kagan, the Supreme Court ruled in Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos that Mexico failed plausibly to plead that the American firearm industry aided and abetted unlawful sales routing guns to Mexican drug cartels. The decision not only adds teeth to the Protection of Lawful Commerce in Arms Act (PLCAA), it also recognizes that semiautomatic rifles like the AR-15 are in wide use by Americans, verifying that they meet Heller's common-use test.
While the Court does not expressly mention that PLCAA reaffirms Second Amendment rights, it does reference the preamble of the law, which explicitly set forth one primary purpose of PLCAA is to protect the Second Amendment rights of Americans. The Court then explained how the law protects the firearm industry from civil lawsuits blaming the industry for crimes and torts committed by third parties. It provides that "a qualified civil liability action" – defined as a civil suit against a manufacturer or seller of a firearm or firearm part (called a "qualified product") – may not be brought in any federal or state court.
Excluded from PLCAA is the "predicate exception," defined as "an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought…." That includes acts in which a dealer or manufacturer knowingly makes false entries in records or conspires to sell a firearm to a prohibited person. If such violation is the proximate cause of harm, then liability arises from a third party's misuse of a gun.
Mexico claimed that Smith & Wesson and other manufacturers aided and abetted the third-party misuse of guns in Mexico. First, they supplied guns to dealers who sold guns to traffickers. Second, they allegedly failed to impose extra-legal controls on their distribution networks. And third, they supposedly make "design and marketing decisions" to stimulate cartel demand, such as production of "'military-style' assault weapons" and use of inscriptions that appeal to cartel members (like the "Emiliano Zapata 1911" pistol).
But Mexico's complaint failed to allege any specific criminal transactions by the manufacturers. Its claim that they sell guns to "known rogue dealers" (which it did not even identify) did not count as aiding and abetting. That claim could not be taken at face value, as "Mexico never confronts that the manufacturers do not directly supply any dealers, bad-apple or otherwise. They instead sell firearms to middlemen distributors, whom Mexico has never claimed lack independence."
Monday Open Thread
What's on your mind?
The Divisions Among the Court's Originalists
Professor Joel Alicea on how to understand what may be the most important jurisprudential divisions on the Supreme Court.
Professor Joel Alicea has a thoughtful and perceptive op-ed in the New York Times, "The Supreme Court Is Divided in More Ways Than You'd Think," discussing the issues that divide the Supreme Court's five originalist justices. It begins:
When Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined the Supreme Court during President Trump's first term, originalism found itself in an unfamiliar and challenging position.
All three of the court's new members were avowed originalists, holding that judges ought to interpret the Constitution according to the meaning it had when it was ratified. As a result, a majority of the justices, including Clarence Thomas and Samuel Alito, now subscribed to this theory. Originalism, long seen as an insurgent force at the Supreme Court, had become its reigning philosophy.
For the originalists on the court, the shift from backbenchers to decision makers brought new responsibilities and presented new difficulties. Problems that had mostly been hypothetical debates within the court's originalist minority became central questions of constitutional law. How readily should an originalist court overturn a precedent at odds with the original meaning of the Constitution? What should an originalist judge do when the original meaning of the Constitution does not fully address a modern dispute?
As Professor Alicea notes, the five originalist justices often disagree on a range of issues that can affect how cases are decided and how quickly the Court's doctrine changes, including the extent to which the Court should respect non-originalist precedent and whether originalism, on the margin, should be more focused on constraining judicial discretion or on fulfilling the original meaning of the Constitution.
These differences matter because in a fair number of high-profile cases, such disagreements may control case outcomes and the contours of case holdings. Writes Alicea:
For originalists such as myself, these fractious dynamics pose the greatest threat to the urgent effort to restore the rule of law that was so badly damaged by the Supreme Court in the 1960s and '70s under Chief Justices Earl Warren and Warren Burger. But for all observers of the court, regardless of judicial or political inclination, these disputes are key to understanding its decisions.
He concludes:
This Supreme Court, contrary to accusations that it is lawless and political, is more committed to a particular constitutional theory than any Supreme Court has been since at least the 1940s. Understanding the deep theoretical roots of the conservative justices' agreements and their disagreements is crucial to appreciating what has happened since Mr. Trump transformed the court during his first term — and what may happen in the years to come.
Should the Seventh Amendment Civil Jury Trial Right Apply to the States?
The right to a civil jury trial is far more deeply rooted in American history and tradition than is the right to own guns, which the Supreme Court was right to incorporate.
This coming Thursday, June 12th, the Court will decide whether to grant certiorari (or whether to request a response) to the Institute for Justice's petition for certiorari in Thomas v. County of Humboldt, a case which asks the Court to incorporate the Seventh Amendment civil jury trial right through the Fourteenth Amendment against the States.
The Bill of Rights was originally enacted in 1791 to constrain Congress; protections against state overreach were left to state constitutions. But the Fourteenth Amendment was created to provide federal protection against state power; and since the Civil War, the Court has held (through a process called "incorporation") that nearly all the Bill of Rights applies to the states via the Fourteenth Amendment.
The right to civil jury trial was among the three civil rights most deeply rooted in American history and tradition at the time of the framing of the federal Bill of Rights along with the right to criminal jury trial and the right to the free exercise of religion. The right is by far and away the most important right in the Bill of Rights that has not yet been incorporated; the other two unincorporated rights are the Third Amendment's protection against the quartering of soldiers in peoples' homes (a practice that no longer happens) and the right to indictment by a grand jury (which is meaningless since prosecutors can persuade grand juries to indict even "a ham sandwich").
Cases like Thomas v. County of Humboldt, which involve a dispute between the government and a private citizen, where petitioners are challenging millions of dollars of fines assessed against impoverished litigants in administrative proceedings by the government with no right to a civil jury trial, show that incorporation of the Seventh Amendment is as urgent as was incorporation of the Excessive Fines Clause in Timbs v. Indiana, 586 U.S. 146 (2019). As the Supreme Court held last year in SEC v. Jarkesy, 603 U.S. 109 (2024) (requiring the SEC to litigate fraud cases in federal district court with a Seventh Amendment right to a civil jury trial), "[t]he right to trial by jury is 'of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right' has always been and 'should be scrutinized with the utmost care.'" Id. at 121. A continuing failure by the Supreme Court to incorporate the civil jury trial right against the States would thus be an embarrassing omission from the Court's caselaw given that this right is even more deeply rooted in American history and tradition than are almost any other right including especially the right to own a gun for one's own self-defense.
The Thomas case seeks to change that, and I think the Court should agree on this with the petitioners.
No First Amendment Violation in Excluding Associated Press from "the Room Where It Happens"
In Friday's AP v. Budowich, the D.C. Circuit stayed the preliminary injunction that required the White House to let the AP back into White House, Air Force One, and Mar-a-Lago briefings. Judge Neomi Rao, joined by Judge Greg Katsas, wrote a statement explaining the ruling; here's a short excerpt from the 27-page opinion.
The Associated Press wants to be in the room where it happens. But in February 2025, White House officials excluded the AP from the Oval Office and other restricted spaces. Officials announced that access was denied because the AP continued to use the name Gulf of Mexico in its Stylebook, rather than the President's preferred Gulf of America. The AP sued, alleging that its exclusion violated the First Amendment. The district court held the AP was likely to succeed on its constitutional claims, and it issued a preliminary injunction prohibiting White House officials from denying, on the basis of viewpoint, access to press events held in the Oval Office, on Air Force One, and at the President's home in Mar-a-Lago.
We grant in part the government's motion for a stay pending appeal. The White House is likely to succeed on the merits because these restricted presidential spaces are not First Amendment fora opened for private speech and discussion. The White House therefore retains discretion to determine, including on the basis of viewpoint, which journalists will be admitted. Moreover, without a stay, the government will suffer irreparable harm because the injunction impinges on the President's independence and control over his private workspaces….
Court Dismisses Justin Baldoni's Defamation Claims Against Blake Lively and Others (Stemming from the Making of It Ends With Us)
The opinion (132 pages long) by Judge Lewis Liman (S.D.N.Y.) is here; the court also rejects the Baldoni side's civil extortion, breach of contract, false light, promissory fraud, and breach of contract claims. The opinion is too long to summarize here, but the key arguments that the court accepted as to the defamation claims are:
- Statements quoting from Lively's California Civil Rights Department complaint are protected by the "fair report" privilege, which covers fair reports of court filings (and which is especially broad in California).
- Statements that go beyond the CRD complaint, made by Lively's publicist (Leslie Sloane), Lively's husband (Ryan Reynolds), and the New York Times, were not made with knowledge that they were false or likely false (what libel law calls "actual malice").
You can see much more in the opinion.
Free Speech Unmuted: Free Speech, Public School Students, And "There Are Only Two Genders"
My co-host Jane Bambauer and I discuss the First Amendment rules pertaining to public school students. The occasion: The Supreme Court just declined to consider a federal appeals court case that led a public school to punish a student for wearing a T-shirt saying "There Are Only Two Genders." Did the lower court get that right?
See also our past episodes:
Defending the Court of International Trade Ruling Against Trump's Tariffs - A Reply to John Yoo
Yoo's criticisms are off the mark, for a variety of reasons. But, tellingly, he actually agrees Trump's IEEPA tariffs are illegal, merely disagreeing with the court's reasons for reaching that conclusion.
In a previous post, I responded to Prof. Jack Goldsmith's critique of the recent US Court of International Trade decision striking down Donald Trump's massive "Liberation Day" tariffs in a case brought by the Liberty Justice Center and myself. In this one, I respond to a critique by UC Berkelely law Prof. John Yoo. Like Goldsmith's arguments, Yoo's fall short - and for some of the same reasons.
Like Goldsmith, Yoo doesn't actually conclude that the CIT got the result wrong, but instead has various reservations about its reasoning. Indeed, he seems to agree that the court reached the right result, merely disagreeing with the way it got there.
Yoo acknowledges that "the trade deficit does not amount to an actual national emergency and that tariffs make no economic sense." If there is no actual national emergency, then the president cannot use the International Emergency Economic Powers Act ("IEEPA") at all, much less start what Yoo describes as an "unprecedented trade war." IEEPA states that the law can only be invoked if the president declares a "national emergency" with respect to an "unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States." No emergency, no tariffs!
Yoo also recognizes that the CIT "could have agreed to reject the tariffs on the straightforward ground that the trade deficit does not qualify as 'an unusual and extraordinary threat' to the national security, foreign policy, or economy of the United States, as required by IEEPA." I agree again! And, as I noted in my response to Goldsmith, the CIT in fact did emphasize that these IEEPA requirements "impose meaningful limits on any such authority it confers," and therefore rejected the Administration's claim that the statute authorizes unlimited presidential discretion to impose tariffs. Only such unlimited discretionary power could possibly justify the "Liberation Day" tariffs, as Yoo himself recognizes when he concedes that trade deficits aren't actually an emergency or an "an unusual and extraordinary threat."
It is extremely telling that Yoo believes Trump was wrong to declare an emergency here and to label trade deficits "an unusual and extraordinary threat." And he apparently rejects the administration's argument that these are "political questions" exempt from judicial review. If academia's leading advocate of sweeping executive power over foreign affairs thinks an invocation of emergency powers goes too far, that's a strong sign it's illegal!
Yoo complains that the CIT wrongly relied on the "major questions doctrine," which which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." He argues that "[m]ajor questions orders courts to stop the executive branch from seizing broad economic, political, or social powers by reading vague statutes too broadly," yet "IEEPA is no vague statute" because it "directly addresses international emergencies…. and intentionally vested the President with broad economic powers to meet them." But the key question here is whether IEEPA clearly gives the persistent virtually unlimited discretion to impose tariffs. Since the statute doesn't actually mention tariffs at all, and it can only be invoked at all if there is an emergency and an "unusual and extraordinary threat," there is no such clear grant of unlimited tariff authority. And there is also no doubt that the power to start a massive trade war raises a "major question." For those reasons, MQD clearly does apply, and leads to the conclusion that the administration's tariffs are illegal.
Yoo argues that courts have previously held that IEEPA's grant of power to "regulate . . . importation . . . of . . . any property in which any foreign country or a national thereof has any interest" includes various authorities that are not specifically mentioned. But, as discussed in my response to Goldsmith, "regulation" and imposition of tariffs are historically distinct powers. At the very least, it is not unequivocally clear that the grant of the former authority necessarily includes unlimited power to use the latter. Under MQD, that means the administration should lose.
Yoo also argues that MQD and the nondelegation doctrine - which limits congressional delegation of legislative power to the president - do not apply to "foreign affairs." He cites United States v. Curtiss-Wright Export Corp. (1936) to support that position. But Curtiss-Wright did not endorse unlimited foreign-affairs delegation. It merely ruled greater discretion must often be granted to the President in the foreign affairs realm, but not unlimited discretion. It reasoned that legislation "within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved" A greater degree of discretion need not be unlimited. Moreover, the Supreme Court has specifically repudiated the notion that Curtiss-Wright grants the President unlimited authority over foreign affairs. In Zivotofsky v. Kerry (2015), the Court emphasized that "Curtiss-Wright did not hold that the President is free from Congress' lawmaking power in the field of international relations" and that "[t]he Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue."
This is particularly true when, as the CIT noted, we are dealing with a power that the Constitution explicitly assigns to Congress. The CIT ruling rightly emphasizes that "The Constitution assigns Congress the exclusive powers to 'lay and collect Taxes, Duties, Imposts and Excises,' and to 'regulate Commerce with foreign Nations.'" There is no reason to apply MQD and nondelegation to the tariff power any differently from any other congressional authority.
Yoo claims a distinction is warranted because sudden crises arise in foreign policy "while In domestic affairs, problems usually do not suddenly arise that inflict great harm on the nation." But sudden crises happen in domestic affairs, as well, as witness such events as the Great Depression, the Civil War, and the Covid pandemic. If a special exception to nondelegation is warranted with respect to foreign policy, it should at least be limited to genuine emergencies. And Yoo himself acknowledges that trade deficits don't qualify as such.
Like Goldsmith, Yoo complains that the CIT was wrong to reject the fentanyl tariffs against Canada, Mexico, and China on the grounds they don't "deal" with the supposed "threat" at issue. But, like Goldsmith, he overlooks the fact that the administration's rationale for those tariffs requires virtually unlimited tariff authority.
Yoo worries that the CIT's reasoning would prevent the use of IEEPA to impose "economic sanctions aimed at specific countries, based on specific findings of their threat to U.S. national security and foreign policy." But, at least in many cases, such sanctions do directly "deal" with a "threat" in a way the fentanyl tariffs do not. While the latter ostensibly aim to create "leverage" to force the foreign power to address a drug-smuggling trade it is not responsible for, the former punish that government's own wrongdoing and diminish its resources so as to reduce its ability to continue to pose a threat. And, as noted in my response to Goldsmith, the amount of fentanyl entering the US from Canada is negligible, and most of that from Mexico is brought in by US citizens (whom the Mexican government cannot and should not prevent from returning home). If that is enough of a linkage to an "unusual and extraordinary threat" to justify imposition of massive tariffs under IEEPA, then anything is.
Like Yoo, I will be happy if appellate courts uphold the CIT ruling on the ground that there is no genuine national emergency here or because there is no "unusual and extraordinary threat." But they would also be justified in striking down Trump's IEEPA tariffs under MQD or nondelegation, or - like the recent US District Court of DC (DDC) ruling against the tariffs - because IEEPA doesn't authorize the use of tariffs at all.
As the CIT and DDC both recognized, the tariffs can also be invalidated under the rule of constitutional avoidance, which requires courts to avoid interpreting federal statutes in ways that raise constitutional problems, so long as there is a "fairly possible" alternative. Here it is obviously "fairly possible" for courts to avoid the nondelegation issue by concluding that IEEPA doesn't authorize tariffs, that there is no national emergency, that there is no "unusual and extraordinary threat," or that the administration should lose under the major questions doctrine. Indeed, Yoo himself agrees with two of these arguments.
Seth Barrett Tillman Interviewed in Ami Magazine
I have been honored to work so closely with Seth Barrett Tillman on so many important matters. I learn a lot from Seth about so many substantive areas of the law. But I've also learned a lot from Seth about how the world works. Seth has a keen insight into government, politics, and society. Recently, Seth was interviewed by Ami Magazine, a Jewish publication, and shared some of his insights. If you want to understand what makes Tillman tick, read it all. Here are a few excerpts:
Well, sometimes presidents do commit illegalities.
Every administration is going to look back at the alleged wrongs of the prior administration as illegality. Not every mistake and not every policy misjudgment is illegality. As a young adult, I don't remember our political system being weaponized in this way. Maybe that is because I was very young during Nixon, who certainly made grievous errors.
You might remember that there was a big imbroglio over the leak of the Dobbs Supreme Court decision. Almost immediately, you saw people in the media, including the right-of-center media, talking in the language of criminality—that someone had committed a crime and ought to be prosecuted.
Why do you think that is?
The problem is that a lot of the people in the media today are former state and federal prosecutors. When you are a former prosecutor and the only thing you know is to prosecute people, it seems that more than a few often forget that there are things that are just bad but are not crimes. A bad thing can happen—a bad thing can be done—but that doesn't mean that anyone committed a crime, and we don't prosecute people just because they did something bad. This is one of the basic lessons that seems to be dying from our society. And by the way, I am a law-and-order person. …
I will also suggest another possibility: The Dobbs draft was not leaked; rather, its release may have been authorized. A Justice may have said to one of his clerks: "I'm unhappy with the way this draft is developing—I'm unhappy with ill-informed reports in the media predicting our decision and its reasoning—I'm going to tell one of my clerks that he has my permission to give it to a journalist." That might be a very egregious thing for a Justice of the Supreme Court to do, and it might be daring for a clerk to follow such guidance, but I don't know of any rule or law against such behavior. I don't know that you can prosecute a Justice or judge for leaking a draft opinion from his own court.
Seth also opines on the Hamilton Documents Imbroglio from 2017:
Even a cursory examination of the hand writing, and the purported signatures within the American State Papers document and its annexes, should have revealed that the Hamilton list in American States Papers was not signed by Hamilton. Once I explained that to the[] [self-characterized 'Legal Historians'], the five historians retracted. That was in 2017. At least, I thought they had retracted. A few days ago, one of the five historians filed a document in litigation in a federal trial court in Maine and participated in a deposition based on his filing. My reading of that deposition is that in 2025 he retracted his 2017 retraction. At least, that is how it appears to me. Or, perhaps, he simply forgot about his 2017 retraction? I suppose that is possible. But it is odd. Very odd. …
What started in 2017 was a real eye opener. It was part and parcel of a series of events, continuing to this day, revelatory of a decline of civility in US academic institutions, law and other fields. A large part was driven by Trump derangement syndrome. But it's more than that. It's really quite shocking when academics who have preached civility in front of large audiences depart, in their own publications, from the standards they have regularly espoused elsewhere. But that is where we are. This behavior is omnipresent among the woke left. But it's not just there. Among right-of-center legal academics, you will find some who will not give the time of day to other academics who have departed, in even the most minor way, from what the former believe to be acceptable legal orthodoxy. It is miserable, m[ean-spirited fanaticism borne of misplaced self-pity.
Finally, Seth has a wide range of interests beyond our own legal system:
The issue of if, when and how apex government officials should be treated differently from other government officials and from citizens (and from foreigners) is a perennial problem—not just in our legal system. See, for example, Sanhedrin19a, Shevuot 31b and Maimonides' Laws of Kings and Their Wars3:7, which discusses the amenability of kings and high priests to suit and to giving testimony. The issue comes up even in fiction: e.g., when Prime Minister Cao Cao inadvertently, but in violation of his own legal decree, rode through a privately owned field of grain as told in Luo Guanzhong's Romance of the Three Kingdoms—by many considered the greatest Chinese novel, first printed circa 1522. I am in the process of writing a book review of the latter, albeit, it is about 500 years too late.
As I often say, Tillman gets to things on his own time, even five centuries late.
Today in Supreme Court History: June 9, 1970
6/9/1970: Justice Harry Blackmun (no relation) takes oath.
Defending the Court of International Trade Ruling Against Trump's Tariffs - A Reply to Jack Goldsmith
The CIT ruling is much stronger than Prof. Goldsmith contends. The same is true of a related ruling by federal District Court Judge Rudolph Contreras.
Many prominent legal scholars and former government officials across the political spectrum have supported the lawsuit challenging Trump's "Liberation Day" tariffs brought by the Liberty Justice Center and myself, and backed the recent US Court of International Trade decision in our favor. But the ruling does have its critics, and one of the most prominent is Harvard law Prof. Jack Goldsmith. He doesn't actually conclude the ruling is wrong. But he clearly has serious reservations about it, outlined in a notable article on the Executive Functions substack, where he also criticizes the recent US District Court of DC (DDC) ruling against the tariffs. In this post, I explain why those reservations are generally misplaced.
As the CIT opinion emphasized, the key factor behind the decision was the "unbounded" nature of the tariff authority claimed by Trump: "The question in the two cases before the court is whether the International Emergency Economic Powers Act of 1977 ("IEEPA") delegates…. to the President…. authority to impose unlimited tariffs on goods from nearly every country in the world." The CIT ruled IEEPA did not grant such limitless power, and that it would be an unconstitutional delegation of legislative power if it did.
Goldsmith contends "the administration did not claim an unbounded or limitless power" because "Trump's tariffs complied with IEEPA's substantive and procedural requirements." He notes that Trump declared a "national emergency" with respect to trade deficits and further claimed the deficits are an "unusual and extraordinary threat" to the US economy and national security, thus supposedly meeting IEEPA's requirements.
But Goldsmith overlooks the fact that the administration consistently maintained that the president has absolute, unreviewable discretion to determine what qualifies as a "national emergency" and an "unusual and extraordinary threat." And if trade deficits - which are completely normal and not a threat at all - qualify as an "unusual and extraordinary threat," so can virtually anything. This is undeniably a claim to unlimited tariff authority. And the CIT rightly concluded as much.
As CIT Judge Jane Restani put it in oral argument, the administration's position would allow the president to impose tariffs for any "crazy" reason, such as a "peanut butter shortage." Indeed, the hypothetical peanut shortage tariff would be less abusive and ridiculous than Trump's trade-deficit rationale. Peanut butter shortages are at least somewhat unusual, and would be a genuine problem, whereas trade deficits are neither.
The CIT also rightly concluded that IEEPA doesn't leave determination of what tariffs to impose entirely up to the president: "IEEPA's provisions… impose meaningful limits on any such authority it confers." Such boundless discretion would render the words "unusual and extraordinary threat" superfluous (thereby violating a basic rule of statutory interpretation), and also create an unconstitutional delegation of "unbounded tariff authority to the President."
Goldsmith also criticizes the CIT and DDC's reliance on the "major questions" doctrine, which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." Trump's gargantuan IEEPA tariffs - starting the biggest trade war since the Great Depression and imposing some 1.4 to 2.2 trillion dollars in new taxes on Americans - raise a major question, if anything does. And the fact that no previous president has used IEEPA to impose any tariffs at all satisfy the additional criterion that MQD scrutiny is stronger when an assertion of power is unprecedented.
Goldsmith notes that a 1975 United States Court of Customs and Patent Appeals (CCPA) ruling in the Yoshida case upheld the Richard Nixon's imposition of tariffs under the Trading with the Enemy Act (TWEA), the predecessor statute to Yoshida. But, as the CIT ruling explains at length, Yoshida did not rule that TWEA authorizes unlimited tariff authority, and indeed emphasized that such unlimited delegation would be unconstitutional. Moreover, in enacting IEEPA, Congress sought to limit previous presidential emergency powers, not perpetuate them. As a House of Representatives report leading to the enactment of IEEPA put it, the legislation is based on "a recognition that emergencies are by their nature rare and brief, and are not to be equated with normal ongoing problems." Using IEEPA emergency powers to address "normal ongoing problems" is precisely what Trump is trying to do here.
Goldsmith also raises (without endorsing) the possibility that MQD does not apply to policies adopted by the president, as opposed to subordinate executive branch officials. I responded to that argument in detail here.
While not addessed in our case, a similar lawsuit filed by 12 states led by Oregon and decided in the same CIT ruling, also challenged Trump's fentanyl-related IEEPA tariffs against Canada, Mexico, and China. The CIT ruled that those tariffs would not meaningfully "deal with" any "unusual and extraordinary threat" created by fentanyl smuggling. Trump argued the tariffs address the threat by creating "leverage" against the three countries, which was not a direct enough link, according to the court. Goldsmith contends that an indirect link is enough. But if creating potential leverage against some government - including one that isn't even causing the threat - is enough of a connection then we have a backdoor to unlimited power. Virtually any tariff can potentially be used as leverage against some government to try to get them to do something that might potentially help curb a threat.
The amount of fentanyl entering the US from Canada is negligible, and most of that from Mexico is brought in by US citizens (whom the Mexican government cannot and should not prevent from returning home). If that is enough of a linkage to an "unusual and extraordinary threat" to justify the imposition of massive tariffs under IEEPA, then anything is. Thus, CIT was right to reject Trump's fentanyl tariffs, as well as the Liberation Day ones.
Goldsmith also criticizes the DDC decision, which unlike the CIT (which did not address this issue), ruled that IEEPA doesn't authorize the imposition of tariffs at all. IEEPA nowhere even uses the word "tariff" or any synonym. Instead, it authorizes the president to "regulate . . . importation . . . of . . . any property in which any foreign country or a national thereof has any interest." DDC Judge Rudolph Contreras rightly concluded that regulation and taxation are distinct powers, and thus the former does not include the latter. If the power to "regulate" includes an unlimited power to impose tariffs, then the Constitution's grant to Congress of the power to "lay and collect Taxes, Duties, Imposts and Excises" would be superfluous, since Congress also has the authority to "regulate Commerce with foreign Nations." At the very least, the power to "regulate" cannot create an unlimited power to impose tariffs. Judge Contreras' opinion includes a detailed discussion of the distinction between the two powers that Goldsmith largely fails to address.
I do agree with Goldsmith that the major questions doctrine is likely to be an important issue as these cases proceed on appeal. But appellate courts also have plenty of other reasons to affirm the CIT and DDC rulings against Trump's tariffs.
New Study Highlights Housing Shortages Caused by Regulatory Barriers to Construction
The study by leading housing economists Edward Glaeser and Joseph Gyourko finds there are 15 milion fewer housing units in the US than there would be if construction in 2000-2020 had continued at the same pace as in 1980-2000.
An important new National Bureau of Economic Research study by leading housing economists Edward Glaeser and Joseph Gyourko concludes that reductions in housing construction - likely caused by regulatory barriers such as zoning restrictions - have greatly exacerbated housing shortages and increased prices since 2000. Here is the abstract:
Housing prices across much of America have hit historic highs, while less housing is being built. If the U.S. housing stock had expanded at the same rate from 2000-2020 as it did from 1980-2000, there would be 15 million more housing units. This paper analyzes the decline of America's new housing supply, focusing on large sunbelt markets such as Atlanta, Dallas, Miami and Phoenix that were once building superstars. New housing growth rates have decreased and converged across these and many other metros, and prices have risen most where new supply has fallen the most. A model illustrates that structural estimation of long-term supply elasticity is difficult because variables that make places more attractive are likely to change neighborhood composition, which itself is likely to influence permitting. Our framework also suggests that as barriers to building become more important and heterogeneous across place, the positive connection between building and home prices and the negative connection between building and density will both attenuate. We document both of these trends throughout America's housing markets. In the sunbelt, these changes manifest as substantially less building in lower density census tracts with higher home prices. America's suburban frontier appears to be closing.
This adds to an already extensive body of research reaching similar conclusions. The new NBER paper is notable because it covers such a wide swath of evidence, particularly with respect to Sunbelt cities.
In a 2024 Texas Law Review article coauthored with Josh Braver, we argue that exclusionary zoning that greatly limits housing construction violates the Takings Clause of the Fifth Amendment, and outline ways in which a combination of litigation and political action can be used to combat it. See also our much shorter non-academic article on the same topic, in the Atlantic.
ICE, the LA Protests, and Trump's Domestic Use of the Military
Trump's domestic use of the military to counter anti-deportation protests in LA is so far very limited. But that could change. A big part of the root of the problem is the lawless behavior of federal immigation-enforcement agencies.
President Donald Trump has deployed some 2000 National Guard troops to Los Angeles in response to protests against ICE deportation operations. As yet, the authority he has invoked for this domestic use of the military is very limited. See the detailed analyses of the relevant law by legal scholars Chris Mirasola and Steve Vladeck. That could change if Trump decides to invoke the Insurrection Act, which grants far broader authority to use the military for domestic law enforcement. Whether and to what extent that power is subject to significant limitations is controversial. For details, see this analysis by Elizabeth Goitein of the Brennan Center, a leading expert on this subject.
In the meantime, I worry that the current, relatively limited, deployment of troops, might lead to dangerous escalation. An unfortunate incident caused by malicious, reckless, or foolish behavior by one or a few individuals on either side could lead to broader violence, or be used as an excuse for more extensive military intervention. So far, at least, I have not seen reports of rioting or other violence on anything like the scale that could justify the extreme expedient of domestic use of the military. But it's a fast-moving situation, and things might be different by the time you read this.
However things turn out, it's important to emphasize that the anti-ICE protests and resulting confrontations are in large part a result of federal immigration enforcers' own lawless behavior. Under Trump, ICE has routinely engaged in such illegal and arbitrary practices as deporting people (including many legal immigrants) to imprisonment without due process and kidnapping children as they and their families show up for legally required court appointments. More generally, this administration has repeatedly invoked bogus emergencies to circumvent constitutional and other legal constraints on executive power, and such abuses have been particularly severe in the field of immigration.
When law enforcement agencies themselves engage in systematic lawlessness, they are not entitled to the deference and cooperation they might otherwise expect from civilians. The latter have a right to resist in ways that would otherwise be illegal and unjustified. This point is distinct from traditional rationales for civil disobedience that may apply even in situations where government officials are acting completely legally, but the underlying laws are themselves severely unjust (as is also often true in the immigration field). There is additional justification for civilian resistance to and noncooperation with law enforcement, when it is the latter who are acting unlawfully.
None of this suggests that protestors are entitled to do whatever they want. Rioting and other violence that harms innocent people is still both illegal and wrong. What I wrote in 2020 at the time of the George Floyd protests - many of which degenerated into riots and looting - remains applicable today:
Much can be done to roll back abusive law enforcement practices…. But one tactic that must be avoided is the kind of rioting and looting that has occurred over the last few days…
Most of the damage caused by rioting is inflicted on innocent people who are in no way responsible for police abuses. Destruction and looting of stores and other businesses not only hurts the owners and employees of those enterprises, but also impoverishes the broader communities of which they are a part. Violence and violation of property rights reduce investment and economic development, which predictably exacerbates the poverty of minority inner-city neighborhoods. The negative economic effects can persist for many years.
It may be tempting to say that rioting and other similar violence is justified if you are doing it in the name of a just cause. But even people with legitimate grievances must still observe moral limits on tactics they use to pursue them. Ignoring this principle is a recipe for disaster.
The 2020 protestors had a legitimate grievance: widespread racial profiling by law enforcement. But many reacted in ways that were themselves unjust. So far, we have not seem large-scale rioting in LA. Hopefully, it can be prevented. We must oppose ICE lawlessness and injustice without harming innocent people ourselves.
Today in Supreme Court History: June 8, 1925
6/8/1925: Gitlow v. People of the State of New York decided.
The Nondelegation Case Against Trump's Massive New Travel Ban
Trump v. Hawaii may block a challenge based on unconstitutional discrimination. But it does not preclude a nondelegation case. Other recent developments may actually bolster that approach.
In my previous post on Trump's massive new travel ban, I noted that the Supreme Court's badly flawed ruling in Trump v. Hawaii (2018) probably precludes challenges based on discriminatory intent. But I also noted there is an alternative path to striking down the new travel ban: nondelegation doctrine. That path remains open because Trump v. Hawaii did not consider nondelegation issues; indeed the word "nondelegation" isn't even mentioned in any of the majority, concurring, and dissenting opinions in that ruling. In this post, I outline how it can be done.
The basic idea is very simple. The Supreme Court has held that there must be at least some limit to congressional abdication of legislative power to the executive. If anything violates that constraint, unlimited delegation of a major power does so. That's exactly what two federal courts recently held in striking down Trump's assertion of virtually unlimited power to impose tariffs.
Trump's sweeping new travel ban can only be justified by a virtually unlimited grant of authority to impose immigration restrictions. Unlimited delegation of power over immigration is unconstitutional for much the same reasons as unlimited tariff authority. Both are sweeping powers with vast impact on millions of people. Indeed, immigration restrictions may be even more impactful than tariffs, as they are literally matters of life and death for many migrants fleeing oppression and violence.
The statute Trump cites to justify the new travel ban, 8 U.S.C. Section 1182(f), gives the president the authority to "bar the entry of any aliens or of any class of aliens into the United States" whose admission he finds "would be detrimental to the interests of the United States." That seems like virtually limitless authority to restrict migration and other entry into the United States, and the Supreme Court more or less interpreted it that way in Trump v. Hawaii, in upholding Trump's first-term "Muslim ban" barring nearly all entry by citizens of several Muslim-majority nations. Chief Justice John Roberts' majority opinion describes Section 1182(f) as a "comprehensive delegation" that "exudes deference to the President in every clause."
The current travel ban is far more sweeping, forbidding nearly all or most immigration and other entry by citizens of nineteen nations. It would cause enormous economic and humanitarian harm. As my Cato Institute colleagues (and leading immigration policy experts) Alex Nowrasteh and David Bier explain in two excellent posts (see here and here), the Administration's rationales for the ban are extremely flimsy, at best. Despite claims that the ban will protect the US against crime and terrorism, migrants from the covered nations have extremely low rates of terrorism and much lower crime rates than native-born Americans. Bier and Nowrasteh also shred the administration's infomation-sharing and visa overstay theories. I would add that overstays by visitors on short-term temporary visas can't possibly justify barring long-term migrants and refugees. The latter get permanent residency (or are on track for it) and therefore pose little or no risk of overstaying.
If such extremely weak arguments are enough to show that the banned migrants would be "detrimental to the interests of the United States," and that a gargantuan travel ban can be imposed, then virtually any immigration restrictions can be justified on the same basis. One can argue that keeping out even a very small number of criminals or terrorists serves the national interest. But virtually any immigration restrictions can be justified in that way. After all, any substantial number of immigrants is likely to include at least a few who go on to commit crimes, even if their crime rate is extremely low. The same goes for visa overstays or any other problem potentially caused by migration. Such "one criminal is one too many" rationales for restriction unavoidably devolve into rationalizations for unlimited power.
There are ways to interpret Section 1182(f) more narrowly. For example, one can argue that it implicitly applies only to large negative effects on US interests, or that its use is constrained by other statutes authorizing the issuance of immigrant visas, work visas, and other modes of legal migration. But if the discretion granted by the law is limited in any substantial way, much of Trump's travel ban becomes illegal.
In sum, the new travel ban can only be upheld if Section 1182(f) gives the president virtually unlimited power to exclude migrants and other non-citizens from entering the United States. He must be able to declare pretty much any potential migrant's entry "detrimental to the interests of the United States" and thereby ban them. That sure seems like a nondelegation problem to me!
As discussed in my previous post, there is one important difference between tariffs and immigration that might make a nondelegation argument harder in this case. Article I of the Constitution specifically gives Congress power over tariffs, while the Constitution does not clearly indicate which branch of government has the power to restrict immigration That is probably because the federal government wasn't supposed to have that power at all. But if the power does exist (as longstanding Supreme Court precedent holds), the most plausible account of where it lies suggests it belongs to Congress.
In the 1889 Chinese Exclusion Case - the awful decision establishing that the federal government h power over immigration - the Supreme Court states that the authority belongs to "the legislative department." The Chinese Exclusion Case famously did not link immigration authority to any specific enumerated power, instead holding that it exists because it is an "inherent incident of sovereignty." Some scholars have argued that the immigration power arises from the power to regulate foreign commerce or the Naturalization Clause (which gives Congress the power to grant citizenship). Both of these are enumerated congressional powers, much like the tariff power, and presumably subject to the same nondelegation constraints.
A few academics have argued that the immigration power is actually an inherent executive power. The Supreme Court's 1950 decision in U.S. ex rel. Knauff v. Shaughnessy nods in this direction, stating that "[t]he right to do so stems not alone from legislative power, but is inherent in the executive power to control the foreign affairs of the nation." But the executive power theory makes little sense. If the president has inherent, virtually unlimited power to exclude non-citizens, there would be no need for the many congressional statutes that grant him some degree of authority to do so, going all the way back to the Alien Enemies Act of 1798, a wartime authority that Trump has been (illegally) trying to use to facilitate peacetime deportations without due process.
Under the inherent executive power theory, all such laws would become superfluous. The president could just exclude any immigrants he wants without any need for legislative authority. Indeed, there would be no need for Section 1182(f), either. The president would also then be free of any obligation to obey any statutory restrictions on his authority in this sphere. Presumably, Congress cannot not take away or constrain an inherent executive authority.
A broad interpretation of Knauff is therefore at odds with centuries of practice and precedent. In addition, there are ways to distinguish that case from a potential challenge to Trump's new travel ban. Knauff dealt with a limited statute that "authorizes…. special restrictions on the entry of aliens only when the United States is at war or during the existence of the national emergency proclaimed May 27, 1941," and does not apply "during normal times." The Court emphasized that a "state of war still exist[ed]" during the relevant time period. The President, as commander-in-chief of the armed forces obviously has greater discretion in wartime.
In addition, Knauff did not endorse unlimited delegation to the executive, noting that "[n]ormally, Congress supplies the conditions of the privilege of entry into the United States." The executive is only "entrusted with the duty of specifying the procedures for carrying out the congressional intent." That suggests there are limits to the extent of permissible delegation.
Finally, Justice Robert Jackson's eloquent dissent in Knauff gives courts powerful reasons to avoid applying that flawed precedent any more broadly than absolutely necessary:
I do not question the constitutional power of Congress to authorize immigration authorities to turn back from our gates any alien or class of aliens. But I do not find that Congress has authorized an abrupt and brutal exclusion of the wife of an American citizen without a hearing….
Security is like liberty, in that many are the crimes committed in its name. The menace to the security of this country, be it great as it may, from this girl's admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern. In the name of security, the police state justifies its arbitrary oppressions on evidence that is secret, because security might be prejudiced if it were brought to light in hearings….
Congress will have to use more explicit language than any yet cited before I will agree that it has authorized an administrative officer to break up the family of an American citizen or force him to keep his wife by becoming an exile.
More can be said, and I in fact made additional points in a 2020 post, where I first suggested using nondelegation doctrine to challenge Trump's February 2020 travel ban covering six nations. Little came of that idea, as the Covid pandemic and Trump's departure from office in January 2021 ensured there was little opportunity to challenge that ban before Joe Biden revoked it upon taking office. This time around, we cannot count on Trump's travel ban ending any time soon - unless he is forced to do it.
I will likely expand on the ideas developed here in future writings, and address additional potential objections. For now, I conclude by saying that a nondelegation challenge to the new travel ban strikes me as viable, and that it seems more promising than any other possible approach.
Others might come up with different and better ideas. If so, I look forward to seeing them.
Today in Supreme Court History: June 7, 1965
6/7/1965: Griswold v. Connecticut is decided.
