While we cite relevant caselaw, the article is primarily an attempt to answer this question: "You believe in freedom of speech. You also think that Jewish university students should be protected from discrimination. What should you advocate universities do about campus antisemitism in the post-10/7 climate?"
It turns out that our perspective is broadly consistent with the state of First Amendment and Title VI law. To the extent it isn't or it's unclear, we believe the law should move in the direction we advocate, but absent legal constraints universities should pursue the relevant policies regardless. I will probably blog a few excerpts over the next week.
Here is the abstract:
This article addresses what university leaders should do about the surge of antisemitism on American college campuses following Hamas's October 7, 2023 atrocities from the perspective of committed free speech liberals—who both happen to be named David Bernstein—who also wish to protect the civil rights of Jewish students.
The authors first note that many antisemitic incidents on campus have involved vandalism, assault, and disruptive and illegal protests (e.g., building occupations and illicit encampments) and other acts that violate content-neutral regulations. While the perpetrators of these acts have often defended themselves as engaging in freedom of expression, these acts can and should be punished without infringing free speech.
Similarly, while faculty should be free to advocate anti-Israel positions, even extremist ones, universities must draw the line when such advocacy turns into discrimination against individuals with ties to Israel or with "Zionist" political positions, or when a professor participates in the BDS movement's boycott guidelines in ways that conflict with university policy or the law.
The article also tackles "harder" cases, where offensive speech, such as pro-Hamas chants and extremist anti-Zionist rhetoric, tests the limits of free expression. The authors argue that universities should protect such speech, in part because of liberal principle, and in part because of the pragmatic judgment that in long-run Jews thrive where liberalism, including free speech liberalism, thrives.
On the other hand, universities may not enforce double standards in speech regulation, exemplified by Harvard and the University of Pennsylvania's tolerance of antisemitic rhetoric while punishing other offensive speech. The authors agree that the proper solution to such double standards is to protect speech across-the-board, though they disagree on the proper strategy with regard to universities that insist on enforcing double standards.
The article concludes that universities must consistently apply content-neutral rules, maintain institutional neutrality, and protect both free speech and nondiscrimination to create an environment where Jewish students and others can thrive. By disentangling speech from unlawful conduct and addressing administrative hypocrisy, the authors offer a nuanced liberal framework for resolving these campus challenges.
[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong.]
The proto-infobahn of today—the Internet, bulletin boards, and various commercial services—has already generated quite a few First Amendment controversies. Professor Anne Branscomb has ably summarized many of them in another Essay in this Symposium.
Some of these may only be transplants of conventional questions into a new but essentially similar environment. For instance, there's already a lively debate about the propriety of regulating sexually harassing speech; harassing speech on electronic bulletin boards should just be a special case of this. The mens rea requirements imposed by the Supreme Court on libel actions may be adequate for protecting bulletin board operators from liability for messages whose contents they had no way of knowing. Likewise, the advent of electronic communications may change how child pornography is distributed, but I don't see how it would change the rules relating to child pornography.
Other conflicts, though, may well require changes to existing doctrine, because they reflect ways in which the new media genuinely differ from the old. The law of speech is premised on certain (often unspoken) assumptions about the way the speech market operates. If these assumptions aren't valid for new technologies, the law may have to evolve to reflect the changes.
"Because Congress intended for the Civil Service Reform Act to strip district courts of jurisdiction only if federal employees were otherwise able to receive adequate and independent review of their claims, we vacate and remand to the district court to consider whether the text, structure, and purpose of the Civil Service Reform Act has been so undermined that the jurisdiction stripping scheme no longer controls"
An excerpt from today's long Fourth Circuit decision in Nat'l Ass'n of Immig. Judges v. Owen (Judge Nicole Berner, joined by Judges Pamela Harris and Toby Heytens):
The National Association of Immigration Judges brought this [First Amendment] challenge to an employee policy that requires immigration judges to obtain permission before speaking publicly on issues relating to immigration…. The district court dismissed the case …, concluding that the policy could only be challenged through the administrative procedures established by the Civil Service Reform Act…. When a federal employee seeks relief from an action covered by the Civil Service Reform Act, she is required to comply with the prescribed scheme of administrative and judicial review and may not generally bring an initial claim in federal court. Constitutional challenges and pre-enforcement challenges are no exception.
When the Civil Service Reform Act functions as designed, we agree with the district court that the National Association of Immigration Judges would be required to bring its case through its administrative scheme.
It is not clear, however, that the Civil Service Reform Act is currently so functioning. The Civil Service Reform Act requires a strong and independent Merit Systems Protections Board and Special Counsel. That foundational principle, that functioning and independent bodies would receive, review, and decide in the first instance challenges to adverse personnel actions affecting covered federal employees, has recently been called into question. Because Congress intended for the Civil Service Reform Act to strip district courts of jurisdiction only if federal employees were otherwise able to receive adequate and independent review of their claims, we vacate and remand to the district court to consider whether the text, structure, and purpose of the Civil Service Reform Act has been so undermined that the jurisdiction stripping scheme no longer controls….
My Hoover Institution colleague Philip Zelikow was kind enough to pass this along; he is an emeritus history professor at the University of Virginia, but also a lawyer:
On June 1, Yale's Jed Rubenfeld published an essay on The Free Press criticizing the recent legal ruling on Trump's tariffs. "The Judges Got It Wrong: Trump's Tariffs Are Legal." The subtitle adds: "The words of a 100-year-old law are clear, says Jed Rubenfeld. So why didn't Trump's lawyers mention it?" Professor Rubenfeld is referring to broad empowering language in a section of the infamous Smoot-Hawley act of 1930 that allowed a president to impose tariffs of up to 50% on countries that burdened U.S. commerce.
There is a straightforward answer to the question of why Trump's lawyers didn't mention this. Well, no one cites it because this part of Smoot-Hawley was superseded long ago. The issue has never been litigated because this section has never been used to impose a tariff. The office of the U.S. Trade Representative presumably knows this.
Professor Rubenfeld had staked out a position on the legality of the tariffs right away, on April 7 (also on The Free Press), arguing that the tariffs were probably legal. He now wishes to offer this argument for why he wasn't mistaken in that initial judgment.
The legal standard for a superseding statute (also called 'implied repeal') is well known. There are two situations. The first is "irreconcilable conflict." The second situation, as the Supreme Court explained in Posadas v. National City Bank, 296 U.S. 497 (1936), is "if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act." 296 U.S. at 503.
The original Smoot-Hawley language that Rubenfeld cites was in section 338(d) of the Tariff Act of 1930 [19 U.S.C. §1338(d)], which granted the President this broad tariff power if a foreign country "places any burden or disadvantage upon the commerce of the United States." Similar language had been used in the Fordney-McCumber tariff act of 1922.
This particular section was effectively repealed and superseded by section 252 of the Trade Expansion Act of 1962. (One can quibble about the effect of the 1934 Reciprocal Trade Act, but no need.)
Sunday, Prof. Jed Rubenfeld (Yale) published an article called The Judges Got It Wrong: Trump's Tariffs Are Legal in The Free Press; here's an excerpt, though you can read the whole thing—and you can read Philip Zelikow's response here:
Legally speaking, the key holding in both cases is that Trump's tariffs are not authorized by the statute his executive orders invoked—the International Emergency Economic Powers Act (IEEPA). The IEEPA allows the president to "regulate" the "importation" of foreign goods in certain emergency circumstances. According to both courts, the phrase "regulate… importation" is too generic to serve as statutory authority for Trump's tariffs. If Congress had intended to give the president the power to impose tariffs of up to 50 percent on countries all over the world in response to what the president believes is unfair discrimination against U.S. commerce, Congress would have said so explicitly.
That's not a crazy position. But both courts—and, it seems, the administration's lawyers—have overlooked something important.
Congress has expressly and precisely given the president the power to impose worldwide tariffs of up to 50 percent on countries he finds to be discriminating against U.S. commerce. Congress didn't do so in the IEEPA, but it did in the Tariff Act of 1930, also called the Smoot-Hawley Tariff Act.According to a provision in that 1930 statute titled "duties to Offset Commercial Disadvantages":
Whenever the President shall find as a fact that any foreign country places any burden or disadvantage upon the commerce of the United States [through any discrimination in duties or regulations], he shall, when he finds that the public interest will be served thereby, by proclamation specify and declare such new or additional rate or rates of duty as he shall determine will offset such burden or disadvantage, not to exceed 50 per cent… on any products of… such foreign country.
Okay, apparently no president has ever invoked this statutory provision and imposed a tariff under it, and admittedly the name "Smoot Hawley" is not exactly covered in glory these days. But the provision quoted above remains in the United States Code, unrepealed and unamended, and appears to fit Trump's trade policy like a glove. In his China tariffs, Trump temporarily exceeded the 50 percent limit, before bringing them down to below that threshold. Everywhere else, he has never exceeded that limit….
Thursday's decision in Dotson v. Faulkner (Judge Frank Easterbrook, joined by Judges Michael Brennan and Doris Pryor) stems from a lawsuit by a woman who was forced into sex (and at one point choked unconscious) by a prison guard. The guard (Faulkner) was sentenced to prison, and the woman (Dotson) sued the guard and prison officials. "The district court granted summary judgment in favor of [the officials], ruling that none of them knew or had reason to suspect that Faulkner posed a danger to prisoners," and Dotson didn't appeal that; but here's what happened with the lawsuit against Faulkner:
Faulkner did not answer the complaint. The district court entered a default and held a hearing to determine damages. Dotson contended that the assaults reduced her expected income and would require long-term medical expenses. She sought damages to cover these losses, plus pain and suffering; she also requested punitive damages. The district judge awarded $1 million for pain and suffering plus $3 million in punitive damages but found the proof of other loss insufficient.
Although represented by counsel (Joseph W. Seifert of Milwaukee), Dotson did not introduce any evidence about her anticipated future income—either how much she would have expected to make in the absence of Faulkner's crimes, or how they affected her earning capacity. Counsel did proffer an expert report estimating the expenses that Dotson would incur for mental-health care, but the expert did not testify and the report was not authenticated. Nor did the report reduce future outlays to present value. The district judge generously gave Seifert 14 days after the hearing to fix those problems.
Instead of having the expert authenticate her report through an affidavit or a declaration under 28 U.S.C. § 1746, Seifert drafted, and the expert signed, a document that did not satisfy either option. It was not sworn before a notary, and it did not meet the statute, which requires language in substantially this form: "I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date)." The document that Seifert drafted for the expert says that it is "under penalty of perjury" but does not declare that the report's substance "is true and correct". The judge could not fathom why Seifert failed to copy the statutory words or use a notary. The judge concluded that the document did not comply substantially with § 1746.
David Boaz did not write much on immigration. But what he did say on the subject indicates his understanding that breaking down harsh migration restrictions should be a high-priority issue for all who value liberty.
In David's final public speech, "The Rise of Illiberalism in the Shadow of Liberal Triumph," he emphasized the enduring value of "equal rights for people regardless of color, gender, religion, sexuality or language. Equal rights based on our common humanity." He warned that the liberal ideal of "inalienable rights" to a "life, liberty, and the pursuit of happiness" for all people is "incompatible with political ideas based on 'blood and soil' or treating people differently because of race or religion." In our time, there is no greater example of that incompatibility than immigration restrictions, which severely undermine liberty based simply on the fact that would-be migrants were born in the wrong place, to the wrong parents, or are members of the wrong "race or religion." Severe immigration restrictions, of course, are central to the ideology of "blood and soil" nationalists in the US and Europe, the greatest enemies of liberty in the Western world today.
In a 2006 article, David praised the immigration policy of pre-Chinese Exclusion Act America, in which "there were no restrictions on immigration and thus no "illegal immigrants". There were rules governing naturalisation and citizenship, but anyone who could get here could live and work here." That is an ideal we should aspire to return to.
In David's contribution to National Review's 2016 "Against Trump" symposium, he wrote that "From a libertarian point of view…. Trump's greatest offenses against American tradition and our founding principles are his nativism and his promise of one-man rule." He was right then, and remains right today. Nativism – the main source of support for migration restrictions – is indeed an offense against America's founding principles, and those of liberalism, more generally.
Later in the essay, I describe how immigration restrictions are inimical to the principles of the American Founding and critique libertarian rationales for exempting migration restrictions from our general presumption in favor of liberty and against government intervention.
[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong.]
The new technologies will have at least three significant effects on advertising:
First, it will be easier and cheaper to have advertising-free media. Consumers generally don't like commercials on radio and TV, because (unlike in newspapers) the ads interrupt the program content. Some consumers dislike commercials enough that they would be willing to pay extra for advertising-free media, as they now do for some cable movie channels.
Other consumers would prefer to have free (or cheaper) entertainment, and would be willing to sit through the commercials to get it. Still, as the costs of providing services-such as custom-mix cable radio-fall, the amount of advertising on free services will fall, too, as services compete with one another based on how few commercials they have.
Advertisements in newspapers and magazines are less intrusive, so there'll be less pressure to reduce their quantity. Some publications might refuse ads to prove their independence from outside pressure, but this seems unlikely to become common.
Second, newspapers will lose a vast amount of classified ad revenue. This revenue accounted for forty percent of total newspaper ad revenue in the late 1980's; one commentator projects it will reach sixty percent by 2000. But paper classifieds are far inferior, for both buyers and sellers, to electronic classifieds that are untied to any newspaper.
Particularly since our win in the US Court of International Trade, there has been considerable public interest in the case against Donald Trump's "Liberation Day Tariffs" filed by the Liberty Justice Center and myself, on behalf of five small businesses harmed by the tariffs. For the benefit of the media, legal commentators, and other interested readers, this post compiles links to all my writings about the case and related issues.
Unless otherwise noted, all links are to pieces originally published right here on the Volokh Conspiracy blog. I omitted posts that simply link to media appearances, or to pieces I published elsewhere. I will likely update the list below, as needed.
UPDATE (February 21, 2026): For at least some time, I will keep adding links to this page in the aftermath of the Supreme Court decision in our favor. Stay tuned!
UPDATE: (July 24, 2026): I will continue to post links here to new writings about the IEEPA case and the Section 122 tariff case. But not necessarily writings about other tariff issues.
"Trump's Tariff Power Grab May not be Over," Feb. 4, 2025. I suggested the suspension of Trump's first set of IEEPA tariffs wouldn't end the tariff power grab. The prediction proved accurate.
"Why Trump's 'Liberation Day' Tariffs are Illegal,"Apr. 3, 2025. In this post, I first outlined the main arguments against the "Liberation Day" tariffs (which were announced by the White House the day before).
"A Victory for Separation of Powers," The Atlantic, May 30, 2025 (non-paywalled version here). My most extensive analysis of the judicial rulings against the IEEPA tariffs, and their broader implications.
Many courts are quite willing to allow plaintiffs to proceed as Jane or John Does in sexual assault cases, see pp. 1430-34 of The Law of Pseudonymous Litigation. But for reasons that I can't explain (and that might just be path-dependent, based on the outcomes of a few early precedents), the U.S. District Court for the Southern District of New York appears to be much more skeptical of that. The many cases against Sean Combs have turned in that direction, with a few early decisions tentatively allowing pseudonymity being later reconsidered; see this May 13 decision by Judge Valerie Caproni, which is the ninth S.D.N.Y. lawsuit against Combs saying no to pseudonymity.
The same has been true of many still other cases. Here, for instance, is Judge Colleen McMahon's decision May 14 in A.P. v. Weinstein(S.D.N.Y.); it turns out that A.P. is Crystal McKinney, who has alsosued Sean Combs (P. Diddy) for sexual assault:
A.P. brings the latest in a series of "Me Too" lawsuits against the notorious Harvey Weinstein, his former company Miramax, and the Walt Disney Company, which owned Miramax between 1993-2009, the period during which the incidents underlying this lawsuit allegedly took place. She has filed her one count complaint pursuant to the New York City Victims of Gender Motivated Violence Protection Action, alleging that Weinstein sexually assaulted her and a friend in 2003. She seeks leave to proceed anonymously.
That motion is denied.
There is a strong presumption against allowing a plaintiff to proceed anonymously, even in a lawsuit where the events in suit are unsavory—as the events in suit here surely are. Federal court proceedings and records are presumptively public absent a showing of exceptional circumstances. Sealed Plaintiff v. Sealed Defendant (2d Cir. 2008); Rapp v. Fowler (S.D.N.Y. 2021). There follows an analysis of the ten factors identified by the Second Circuit's as matters to consider when deciding an application for leave to file suit anonymously:
From a Minnesota Tax Court decision Thursday, Delano Crossing 2016 v. County of Wright (Chief Judge Jane N. Bowman and Judges Bradford S. Delapena and Beverly J. Luther Quast):
In support of a motion for summary judgment, which the court denies in a concurrent order, the County submitted a brief that included five case citations generated by Artificial Intelligence (AI); none of the five citations referred to an actual judicial decision. Indeed, much of the County's brief appeared to be written by AI. We subsequently ordered Wright County to show cause why it should not be sanctioned and why Ms. Pence, who signed and filed the brief, should not be reported to the Minnesota Lawyers Professional Responsibility Board. For the reasons below, although we believe Ms. Pence's conduct violated Rule 11, we decline to order sanctions. Additionally, we refer this matter to the Minnesota Lawyers Professional Responsibility Board for further review….
[When asked to explain the situation,] Ms. Pence generally characterized her filing of a brief containing AI-hallucinated case citations as a mistake, stating: "I believe I inadvertently filed a draft Motion that was never intended to be the final product. I did not intend to file an AI-generated pleading; however, I have been unable to locate any other documents containing my research."
Ms. Pence further averred that she did not realize her brief contained fake case citations until approximately 6:48 p.m. the night before the motion hearing, prompting Ms. Pence to conclude that the best time to deal with the situation was at the impending hearing. Ms. Pence further attested that although the case citations in her brief were fake, "the legal contentions in the motion are warranted by existing law as cited [orally during the hearing]." Ms. Pence generally attested, in other words, that although she "erroneously filed a document with hallucinated cases," the County's arguments were otherwise legally sound. Ms. Pence added that she has taken several remedial measures to ensure this does not happen again, and she understands "the seriousness of [her] mistake."
Rule 11.02 states that, "by presenting to the court … a pleading, written motion, or other document," an attorney certifies "to the best of [their] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances" that "the claims, defenses, and other legal contentions therein are warranted by existing law…." "Thus, rule 11 prescribes an affirmative duty on counsel to investigate the factual and legal underpinnings of a pleading." …
From Saturday's Washington Post story; the subhead is,
[Title:] It's Called the Library of Congress. But Trump Claims It's His
[Subtitle:] The case is the latest example of efforts by the Trump administration to erase the traditional lines that separate the branches of government.
[First two paragraphs:] The Trump White House has a new target in its campaign to expand executive power: the Library of Congress. Never mind the name—administration lawyers are now arguing that the main research library of the legislative branch doesn't actually belong to Congress at all.
A legal push to claim the Library as executive turf isn't a one-off. It's the latest move in a broader effort by President Donald Trump and his administration to erase the traditional lines that separate the branches of government….
Later paragraphs likewise give the Administration's actions with regard to the Library as part of "the Trump administration's disregard for the separation of powers."
But this material seems to entirely ignore (with one exception I'll note below) what courts have actually said about this legal question. Those precedents have routinely recognized that the Library of Congress, despite its name, is indeed part of the Executive Branch and subject to Presidential control—and that the President's power to remove the Librarian is a feature of the traditional separation of the branches, not a violation. The U.S. Court of Appeals for the D.C. Circuit held last year,
And the Intercollegiate Broad. Sys. D.C. Circuit decision said (emphasis added),
To be sure, [the Library of Congress] performs a range of different functions, including some, such as the Congressional Research Service, that are exercised primarily for legislative purposes. But … the Librarian is appointed by the President with advice and consent of the Senate, and is subject to unrestricted removal by the President. Further, the powers in the Library and the [Copyright Royalty] Board [which is part of the Library -EV] to promulgate copyright regulations, to apply the statute to affected parties, and to set rates and terms case by case are ones generally associated in modern times with executive agencies rather than legislators. In this role the Library is undoubtedly a "component of the Executive Branch."
[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong.]
When I say the new technologies will shift power to listeners, I mean of course listeners who can afford the new technologies. But what about consumers who can't buy a computer, a digital recorder, a printer, a cbook, and an infobahn hookup?
Music: Poor consumers should benefit from electronic music delivery. Even if they can't afford the hardware, they should be able to buy their music from public vending machines. While it may cost more to buy from these machines than it would to buy from home, it should still cost less than it does now. Of course consumers will still need devices that play these recordings, but there's no reason to think they'll end up costing more than about what CD players do now.
Short Opinion Articles: Opinion articles may be different. Home delivery of selected opinion articles will work because subscribing to the articles and getting them each morning is easy. If your favorite columns are there on your printer when you wake up, you'll read them. But if you must go every day (or even every week) to a public terminal, select what you want, and wait for it to print, the result will be much less useful to you. And the cost of such public access may be a good deal higher as a proportion of the normal price than it would be for music.
On the other hand, this system might not be much worse for poor people than the existing one. People who can't afford the needed computer hardware might also be unable to afford a $200-per-year subscription to The Los Angeles Times. And with over eighty percent of all U.S. households owning VCRs, the affordability of home electronics to even the not-so-rich shouldn't be underestimated.
After fifteen re-listings, on June 2 the Supreme Court denied cert in Snope v. Brown, which concerns Maryland's ban on semiautomatic rifles, and Ocean State Tactical v. Rhode Island, which concerns Rhode Island's magazine ban. I previously discussed these cases here.
Cert denial in Ocean State was more predictable, even though Justices Thomas, Alito, and Gorsuch would have granted the petition, as it sought review of denial of a preliminary injunction. But in Snope (styled Bianchi v. Brown in the 4th Circuit) – which has a final judgment based on a full record –Justices Alito and Gorsuch are listed as having been in the "would have granted" category, with Justice Thomas writing a dissent from denial. The big news is that Justice Kavanaugh issued a statement in Snope concluding that "this Court should and presumably will address the AR–15 issue soon, in the next Term or two."
According to Justice Kavanaugh, "Americans today possess an estimated 20 to 30 million AR–15s," which are "legal in 41 of the 50 States, meaning that the States such as Maryland that prohibit AR–15s are something of an outlier." That suggests that AR–15s meet Heller's "common use" test, as then-D.C. Circuit Judge Kavanaugh opined in Heller 2. "If so, then the Fourth Circuit would have erred by holding that Maryland's ban on AR–15s complies with the Second Amendment."
Moreover, Justice Kavanaugh continues, "it can be analytically difficult to distinguish the AR–15s at issue here from the handguns at issue in Heller." Most handguns are semiautomatic, as is the AR–15 rifle, and law-abiding citizens use both for lawful purposes such as self-defense in the home.
Several circuits are considering the issue, including the 1st, 2nd, 3rd, 7th, and 9th, and more cert petitions will likely come before the Court. Further appellate decisions will be forthcoming that "should assist this Court's ultimate decisionmaking on the AR–15 issue." That's the basis for Justice Kavanaugh's prediction that the Court will decide the issue in the near future.
Justice Thomas dissented from the denial of certiorari. Contrary to the Fourth Circuit, AR–15s are "arms" under the plain text of the Second Amendment, shifting the burden to Maryland to show that banning them is "consistent with this Nation's historical tradition of firearm regulation." The lower court's "reasoning is dubious at least twice over" by placing too high a burden to show that the Amendment presumptively protects the conduct and by claiming that AR–15s are "dangerous and unusual." In more detail:
The Fourth Circuit erred by requiring the challengers to prove that the Second Amendment protects their right to own AR–15s—or, in the terms of our Second Amendment jurisprudence, that their conduct falls outside the historical exceptions to the right to keep and bear arms. A challenger need only show that "the plain text" of the Second Amendment covers his conduct. Bruen, 597 U. S., at 32. This burden is met if the law at issue "regulates" Americans' "arms-bearing conduct." Rahimi, 602 U. S., at 691. Once the challenger makes this initial showing, it is the government's burden to show that a historic limit on the right to bear arms nevertheless justifies its regulation. The Fourth Circuit placed the burden of producing historical evidence on the wrong party.
Further, the Fourth Circuit "eschewed any inquiry into the commonality of AR–15s and the purposes for which they are used, which it dismissed as an 'ill-conceived popularity test.'" Instead, it invented its own tests of "utility for self-defense," "military origin," "firepower," and "muzzle velocity." But the American people, not the government, decides which arms to use for self-defense. Contrary to the lower court, that does not lead to absurd results, such as individual use of a nuclear warhead, which would never come into common use for self-defense. "To fend off the fantastical threat of Americans lobbing nuclear warheads at one another, the Fourth Circuit has allowed the very real threat of the government depriving Americans of the rifle that they most favor for protecting themselves and their families."
Justice Thomas would not wait to decide the issue, which the Court has now avoided for a decade. "And, further percolation is of little value when lower courts in the jurisdictions that ban AR–15s appear bent on distorting this Court's Second Amendment precedents…. I doubt we would sit idly by if lower courts were to so subvert our precedents involving any other constitutional right."
* * *
In resisting Heller's common-use test, the Fourth Circuit in Bianchi repeated the myth that "approximately 740,000 machineguns [were] registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives as of May 2021." Not even close. By letter dated May 29, 2025, ATF responded to a Freedom of Information Act request from attorney George L. Lyon showing "the number of MGs [machineguns] added to the NFRTR [National Firearms Registration and Transfer Record]" from the enactment of the National Firearms Act through 1986, when new machineguns were banned from private hands by 18 U.S.C. § 922(o). Excluding machineguns held by government agencies or which are otherwise non-transferable, the total comes to 169,100. The actual number is lower, as the ATF report states that some of these would have been double counted.
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)
Today, in the Fifth Circuit case of W.M.M. v. Trump, we submitted an amicus brief opposing the Trump Administration's use of the Alien Enemies Act of 1798 as a tool for peacetime detention and deportation of immigrants. The brief was filed on behalf of the Brennan Center for Justice at NYU, the Cato Institute, prominent law-of-war scholar Prof. John Dehn, and myself. I coauthored it with Brennan Center attorneys Katherine Yon Ebright and Leah Tulin, with the aid of valuable advice from Elizabeth Goitein (Brennan Center), and Prof. Dehn. Katherine is a leading expert on the AEA and its history, and Liza one of the nation' leading experts on emergency powers.
The fact that this brief is backed by organizations as ideologically diverse as Cato and the Brennan Center is a testament to the egregious nature of Trump's invocation of the AEA.
Here is a summary of the brief I prepared for the Cato Institute website:
The Alien Enemies Act of 1798 (AEA) is a wartime authority. Congress enacted the AEA under its constitutional war powers as an implementation of the law of war, which in 1798 allowed the government to detain or expel supposed "alien enemies." The AEA may be invoked only in the event of a declared war or "invasion" or "predatory incursion" by a foreign nation or government against U.S. territory. It has no peacetime applicability and has never previously been used outside of a major conflict. Before now, the only time the AEA was invoked absent a declared war was after Japan's attack on Pearl Harbor on December 7, 1941, just days before Congress declared war.
The Trump Administration's current invocation of the AEA, "Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua," falls well outside the law's scope. By its text, the President's Proclamation addresses unlawful migration, narcotics trafficking, and gang violence, none of which constitute an "invasion" or "predatory incursion." Under no interpretation of the law of war could these civil and criminal matters trigger the AEA's exceptional powers. The designation of the Venezuelan drug gang Tren de Aragua as a foreign terrorist organization (FTO) does not transform its activities into acts of war.
This case does not present a political question exempted from judicial review. But even if it did, established exceptions to that doctrine would apply. Courts may always check obvious mistakes and manifestly unauthorized exercises of power. And the judiciary's ability to act is at its apex when civil liberties are at stake. Courts have the power to correct the president's misappropriation of the AEA in peacetime — and can rely on the judicially manageable standards historically used to identify acts of war.
Should courts adopt the government's unfounded interpretation of the AEA or hold that the executive's pronouncements are unreviewable, there would be dire consequences. The president could leverage the law's power against any group of immigrants, including legal ones, the federal government could suspend the writ of habeas corpus at will, and states could "engage in War" at any time.
We plan to file similar briefs in other AEA cases working their way through the courts.
I have previously criticized Trump's invocation of the AEA as beyond the scope of the statute in a variety of writings. See, e.g., here, here, here, and here. I have also explained why Trump's AEA deportations violate the Due Process Clause of the Fifth Amendment.
UPDATE: The link to the brief in original version of this post was broken. I have now updated with a workable link.
David Boaz (August 29, 1953–June 7, 2024) was one of the most influential libertarians of the 20th century, and a driving force behind The Cato Institute for many decades. The breadth of his interests and his consistent application of his principles to real world challenges were obvious and inspiring to those who knew him. The authors in this series are connected by their work with Boaz and inspired by his demonstrated careful and courageous thought and action. Authors were asked to respond to one of two prompts: "What is an issue that you think David would want to bring forward today and what do you think he would have said about it?" or "What is an issue about which David's influence helped you see the importance, and how does what he taught you shape your thought about it?" On the one year anniversary of his death, we hope to show the continuing relevance of his legacy.
When David passed away last June, I posted an obituary, and a transcript of his final speech, "The Rise of Illiberalism in the Shadow of Liberal Triumph." The speech is, if anything, even more relevant today than it was a year ago.
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The All-Argentina Issue is Here
New from Reason: a look into what Javier Milei
has accomplished and what it will take to make the most of Argentina’s window for real change. Out now
for subscribers.
