Since our win in the tariff case before the US Court of International Trade a couple days ago, there have been several informative media articles about the history of the case, and how the Liberty Justice Center and I decided to undertake it, and found our clients. In this post, I compile links to what I think are the most interesting ones.
Ruth Simon and James Fanelli of the Wall Street Journal have an article entitled "How a Small Wine Importer Took On Trump's Tariffs" (paywalled) It tells the story of our lead plaintiff Victor Schwartz of VOS Selections. Also, it describes how the idea for the lawsuit originated with a post right here on the Volokh Conspiracy blog, which led Jeff Schwab of the Liberty Justice Center to reach out to me in hopes of pursuing the issue. We eventually agreed I would put up another post seeking potential clients for the case, which is how we found Victor and other potential clients. As the article describes we deliberately sought small businesses that directly import products from countries subject to the "Liberation Day" tariffs.
Mark Gollom tells the same story in a bit less detail in an article for the Canadian CBC news site. Unlike the Wall Street Journal article, this one isn't paywalled!
Finally, Callum Sutherland of Time has an article profiling all five of our clients: VOS Selections, FishUSA, Microkits, Terry Precision Cycling, and Genova Pipe. Between them, they represent a a wide range of industries, from toys to wine to cycling apparel for women; a veritable cross-section of the many small businesses imperiled by Trump's trade war. We are proud to represent them!
Some of the more informative interviews I have done about our win in the case against Trump's tariffs, in lawsuit filed by the Liberty Justice Center and myself.
Over the last two days, since our victory in the tariff case before the US Court of International Trade, I have done more media interviews than in any other comparable period in my entire life. That's not because I've become a celebrity or a great media personality (I'm not), but because of the significance of the issue. Because of the enormous magnitude of Trump's trade war, it affects people all over the world. In this post, I include links to a few of the more informative interviews.
This episode features a conversation with co-blogger Eugene Volokh, the Thomas M. Siebel Senior Fellow at the Hoover Institution. He blogged about the Harvard situation here.
On May 22, the Department of Homeland Security announced that Harvard University has lost its certification to participate in the Student and Exchange Visitor Program. As a consequence, international students enrolled at Harvard University will no longer be given student visas. Harvard quickly filed suit, and received a temporary restraining order from the federal district court in Massachusetts.
On the podcast we discuss what the Trump administration is doing with international students at Harvard, the implications for the university and other universities that might find themselves in the crosshairs of the administration, and the First Amendment questions raised by the latest step by the administration to bring Harvard to heel.
This is a judicial complaint against a district judge who has participated in a hiring boycott against graduates of Columbia University in an effort to influence the university's administration. The subject judge was one of thirteen federal judges who signed a letter in May 2024 to the president of the university.
The letter asserted that "[s]ince the October 7 terrorist attacks by Hamas, Columbia University has become ground zero for the explosion of student disruptions, anti-semitism, and hatred for diverse viewpoints on campuses across the Nation." The letter stated that the signatories, as "judges who hire law clerks every year to serve in the federal judiciary," had "lost confidence in Columbia as an institution of higher education." The letter then set forth three "steps" that the university would take if it "were serious about reclaiming its once-distinguished reputation," to wit: (1) "Serious consequences for students and faculty who have participated in campus disruptions and violated established rules," (2) "Neutrality and nondiscrimination in the protection of freedom of speech and the enforcement of rules of campus conduct," and (3) "Viewpoint diversity on the faculty and across the administration—including the admissions office." {Under Rule 24(a) of the Rules for Judicial-Conduct and Judicial-Disability Proceedings, the names of the complainant and the subject judge are not disclosed.}
The letter informed the university president that "[c]onsidering recent events, and absent extraordinary change, we will not hire anyone who joins the Columbia University community—whether as undergraduates or law students—beginning with the entering class of 2024." An essay published around the same time by one of the judges characterized the effort as a boycott aimed at the university, and explained that "[t]he purpose of any boycott is to change the behavior of the target."
The judicial complaint alleges that the action of the subject judge in joining the boycott is "prejudicial to the effective and expeditious administration of the business of the courts," and is therefore cognizable misconduct under Rule 4(a). In particular, the complaint asserts that the judge (1) used his office "to obtain special treatment for friends" and to engage "in partisan political activity" and to make "inappropriate partisan statements," see Rule 4(a)(1)(A), (D); (2) engaged in "abusive behavior in that his statements demonstrate that he presently is and will be treating litigants, attorneys, judicial employees, or others in a demonstrably egregious and hostile manner," see Rule 4(a)(2)(B), (3) "used the 'Columbia University community' as a proxy to discriminate against various races, religions, and national origins that may share in the views of his targeted community," see Rule 4(a)(3), and (4) engaged in conduct outside the performance of his official duties and was "reasonably likely to have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people." See Rule 4(a)(7).
[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.]
Opinion Articles: With opinion articles as with music, we'll soon have many more options than most consumers will want to slog through. There's something valuable-as well as limiting-in the fact that your daily paper offers four op-ed pieces rather than forty thousand.
But as I noted in the music discussion, information overload isn't a new phenomenon. There are far more books than any consumer can personally browse, and yet we're quite happy with this, and don't clamor for less selection. We generally prefer to go to bigger bookstores rather than smaller ones, even though smaller ones have done some extra preselection for us.
True, we partly rely on the screening done by publishers, who'll at least have rejected the total garbage, but we also rely on reviewers, word-of-mouth, our familiarity with particular writers and artists, the possibility of browsing, and advertising. These mechanisms will still exist for the new media, even if publisher selection doesn't. People will still read reviews and hear about good items from friends. People will also be familiar with existing popular columnists and existing organizations that are starting newsletters.
Moreover, electronic distribution can make possible new selection devices. One particularly useful new service—similar to the custom-mix radio I discussed above—would be a subscription that delivers a different column every day, perhaps selected by general topic or political perspective. Thus, together with my daily William F. Buckley, Libertarian Report, and Column Left/Column Right on the First Amendment, I could also download a different center-to-right-wing column every day, and twice a week random (but well-regarded) columns from all points on the spectrum.
From Derewal v. Vance, decided today by Judge Jia Cobb (D.D.C.):
Turning to the complaint itself, Derewal alleges that the "25th Amendment must be invoked due to this constitutional crisis of our lifetime from senior's SSA improperly withheld to our eco-damage and not honoring the role of POTUS," and that "J.D. Vance, in his official-capacity, must call for 25th Amendment vote of Cabinet and enforcement." She requests that this Court enjoin the constitutional crisis "by calling for 25th Amendment vote and enforcement," and provide "any additional relief that th[e] Court deems just and proper." …
[T]o the extent that Derewal's sought-after relief is an injunction removing the President from office under the Twenty-Fifth Amendment, the Court has no power to issue such an order. See Ballard v. Ohio Elections (S.D. Ohio 2025) (dismissing pro se complaint requesting that the court "invoke the Twenty-Fifth Amendment of the United States Constitution to forcibly remove the current President from office" because "neither the Twenty-Fifth Amendment nor any federal statute gives the Court such a broad power"). The Twenty-Fifth Amendment vests the Vice President and "a majority of … the principal officers of the executive departments"—not this Court—with the discretion to initiate any attempt to remove a sitting President….
The decision by Judge Rudolph Contreras of the US District Court for the District Columbia holds IEEPA doesn't authorize the president to impose tariffs at all.
It was issued by Judge Rudolph Contreras of the federal District Court for the District of Columbia (DDC). Unlike the CIT ruling, it applies only to tariffs imposed against the two toy manufacturers that brought the case. But it is notable that Judge Contreras concluded IEEPA doesn't grant the president the power to impose tariffs at all, thereby going further than the CIT decision does. If it did grant the sweeping authority claimed by Trump, Judge Contreras, like the CIT panel, noted that would be an unconstitutional delegation of legislative power, and "render IEEPA unconstitutional." While the impact of the DDC ruling is very limited, it further bolsters the case against Trump's abusive tariff power grab.
In our case, we too argued that IEEPA doesn't grant any power to impose tariffs at all. The CIT decision equivocates on that issue, limiting itself to holding that IEEPA at least doesn't grant the sweeping virtually unlimited power claimed by Trump, and necessary to justify the "Liberation Day" tariffs. By contrast, Judge Contreras concludes that IEEPA doesn't grant any tariff authority of any kind. Here is an excerpt from his ruling:
Since the Founding, the Constitution has vested the "Power to lay and collect Taxes, Duties, Imposts and Excises" with Congress. U.S. Const. art. I, § 8, cl. 1. The President has no independent discretion to impose or alter tariffs. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). Any Presidential tariffing authority must be delegated by Congress….
IEEPA does not use the words "tariffs" or "duties," their synonyms, or any other similar terms like "customs," "taxes," or "imposts." It provides, as relevant here, that the President may, in times of declared national emergency, "investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit" the "importation or exportation" of "property in which any foreign country or a national thereof has any interest." 50 U.S.C. § 1702(a)(1)(B). There is no residual clause granting the President powers beyond those expressly listed. The only activity in Section 1702(a)(1)(B) that could plausibly encompass the power to levy tariffs is that to "regulate . . . importation…."
The Court agrees with Plaintiffs that the power to regulate is not the power to tax… The Constitution recognizes and perpetuates this distinction. Clause 1 of Article I, Section 8 provides Congress with the "Power To lay and collect Taxes, Duties, Imposts and Excises." Clause 3 of Article I, Section 8 empowers Congress "To regulate Commerce with foreign Nations." If imposing tariffs and duties were part of the power "[t]o regulate [c]ommerce with foreign [n]ations," then Clause 1 would have no independent effect. As Chief Justice Marshall put it in an early leading case, "the power to regulate commerce is . . . entirely distinct from the right to levy taxes and imposts." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 201 (1824)….
"Tariff" and "regulate" also take different plain meanings. To regulate something is to "[c]ontrol by rule" or "subject to restrictions." Regulate, The Concise Oxford Dictionary of Current English 943 (6th ed. 1976); see also Regulate, New Webster's Dictionary of the English Language 1264 (1975) ("to govern by or subject to certain rules or restrictions")… Tariffs are, by contrast, schedules of "duties or customs imposed by a government on imports or exports." Tariff, Random House Dictionary of the English Language 1454 (1973). To regulate is to establish rules governing conduct; to tariff is to raise revenue through taxes on imports or exports… Those are not the same….
Judge Contreras has several additional justifications for his ruling on this point that are too long to excerpt here. But they are good points, as well.
Like the CIT decision, Judge Contreras argues that interpreting IEEPA to grant the sweeping authority claimed by Trump would render it unconstitutional, which is an additional reason to rule against the administration:
Defendants' interpretation could render IEEPA unconstitutional. IEEPA provides that the President may "regulate . . . importation or exportation." 50 U.S.C. § 1702(a)(1)(B). The Constitution prohibits export taxes. See U.S. Const. art. I, § 9, cl. 5 ("No Tax or Duty shall be laid on Articles exported from any State."). If the term "regulate" were construed to encompass the power to impose tariffs, it would necessarily empower the President to tariff exports, too. The Court cannot interpret a statute as unconstitutional when any other reasonable construction is available. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 563 (2012).
I think Judge Contreras' analysis here is compelling, and other judges should follow it.
Judge Contreras' decision is in large part a jurisdictional ruling on whether cases challenging the IEEPA tariffs must be filed in CIT (he concludes they need not be, because IEEPA doesn't authorize tariffs). I will not try to assess this jurisdictional issue here. I will only note I believe CIT does have jurisdiction over such cases (which is why we filed our case there), but I have no strong view on whether CIT's jurisdiction is exclusive, as the Trump Administration has argued. As Judge Contreras notes, two other district courts have ruled that it is indeed exclusive, and ordered the relevant cases to be transferred to CIT.
It's possible that an appellate court will ultimately overturn this decision on the jurisdictional issue. But his substantive reasoning is still strong, and deserves to be adopted by other courts, even if it is not a binding precedent.
This is a standard order imposing a brief stay of the trial court ruling, while the parties litigate the issue of whether a longer stay should be imposed.
As expected, the Trump Administration is appealing the decision to the US Court of Appeals for the Federal Circuit, the appellate court with jurisdiction over appeals from the CIT. Today, the Federal Circuit issued an "administrative stay" temporarily blocking the CIT ruling. This is not an indefinite stay blocking the CIT injunction for as long as it takes to complete the appellate process. Rather, an administrative stay is just a brief temporary block imposed while the issue of whether a more permanent stay pending appeal should be implemented gets litigated. I anticipate that process will take no more than two or three weeks. To put it different way, this is a brief temporary stay intended to give the court time to consider whether a longer stay should be imposed.
We and the plaintiffs in the Oregon case intend to oppose the government's motion to impose an indefinite stay, and we think we have strong arguments against it.
The difference between administrative stays and regular stays pending appeal is one of those confusing technicalities that makes ordinary people hate lawyers. I'm a law professor, and I find it annoying myself. I have tried to explain it as best I can. If you want a more detailed explanation, see this article by University of Virginia law Prof. Rachel Bayefsky.
Here, just for historical purposes, is the federal bribery statute (18 U.S.C. §201(b)), a heart-warming relic of the days when accepting a cash payment in exchange for committing an official act was considered disqualifying for public officials - even/especially for Presidents:
"Whoever, being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:
(A) being influenced in the performance of any official act;
(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
(C) being induced to do or omit to do any act in violation of the official duty of such official or person; . . .
shall be fined under this title not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.
Notoriously difficult to prove beyond a reasonable doubt (though don't remind former Senator Bob Menendez of that!). I suppose that there are some readers who actually believe that Dear Leader's pardon of Paul Walczak was not "influenced" or "induced" by the $1,000,000 that his mother paid to Trump's PAC (MAGA, Inc.) a few weeks before the pardon was issued - that it simply reflects the soft spot in Dear Leader's heart for tax cheats who steal money from doctors and nurses (AKA "suckers") in order to buy yachts and other luxury goods.
I guess we'll never know for sure. To the best of my knowledge, the White House has not issued any statement regarding the pardon. And, of course, we'll never see Trump indicted for bribery, not just because the DOJ is not interested in pursuing charges against our D.L. or those who shower money upon him, but also because he is almost certainly acting within the presidential immunity announced last year in the [aptly-named] Trump v. United Statescase.
The opinion makes for interesting reading in light of this new grift Trump has concocted. As you no doubt recall, the Court found that there was a "presumptive immunity" from criminal prosecution for a President's "official acts" - acts within "the outer perimeter of his official responsibility." Such an immunity is "required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution."
"An official act is one taken by the President pursuant to constitutional and statutory authority to perform the functions of his office. Determining whether an action is covered by immunity thus begins with assessing the President's authority to take that action. . . . In dividing official from unofficial conduct, courts may not inquire into the President's motives."
"[C]ourts cannot examine the President's actions on subjects within his 'conclusive and preclusive' constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President's actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority."
And the pardon power, of course, is within the President's exclusive sphere of constitutional authority, given the express language in Article II of the Constitution that the President "shall have Power to grant Reprieves and Pardons for Offences against the United States."
To the executive alone is intrusted the power of pardon, and the legislature cannot change the effect of such a pardon any more than the executive can change a law." The President's authority to pardon, in other words, is "conclusive and preclusive," "disabling the Congress from acting upon the subject."
I assume this means that our D.L. could set up a little pop-up stand near the White House, out in the open, and dispense pardons to anyone willing to pay the price he sets, and the only remedy available is impeachment.
Today's Supreme court decision in Seven County Infrastructure Coalition v. Eagle County (which I discussed here) augurs a substantial change in how courts review agency compliance with the National Environmental Policy Act (NEPA). It is, as Justice Kavanaugh's opinion for the Court explains, a "course correction" intended to "bring judicial review under NEPA back in line with the statutory text and common sense." In this regard, the decision is a substantial rebuke to lower courts that have expanded and inflated NEPA's requirements.
Fitting for this moment in time, Seven County Infrastructure Coalition is something of a requel to Vermont Yankee. In that 1978 opinion, the Court had explained that "courts are to play only a limited role" in reviewing agency compliance with NEPA, an admonition many lower courts (including the D.C. Circuit) had seemed to forget.
This rebuke of lower courts is not confined to the Kavanaugh opinion. The court was unanimous in concluding that the D.C. Circuit had adopted an unduly expansive interpretation of agency obligations under NEPA--an interpretation contrary to the statutory text and the Supreme Court's own prior decisions. As Justice Sotomayor's opinion concurring-in-the-judgement makes clear, the D.C. Circuit opinion below was hard to square with the Court's prior decisions in Department of Transportation v. Public Citizen and Metropolitan Edison v. PANE, particularly insofar as the D.C. Circuit sought to require the Surface Transportation board to consider environmental impacts from other projects over which the STB has no control and could not address.
Even more significant is the Court's declaration that "the central principle of judicial review in NEPA cases is deference." So there is no confusion, Justice Kavanaugh makes the point again a few pages later: "The bedrock principle of judicial review in NEPA cases can be stated in a word: Deference."
As Justice Kavanaugh explains, this is a consequence of recognizing that judicial review of an EIS is to be conducted under the arbitrary and capricious standard, and represents only one element in reviewing an agency action:
So the Ninth Circuit held today, by a 2-1 vote. I tentatively think the majority got it right as a matter of First Amendment law and statutory interpretation, though I think such statutes ought to be written to include some privacy exceptions as to gender identity and not just sex.
From Olympus Spa v. Armstrong, decided today by Ninth Circuit Judge Margaret McKeown, joined by Judge Ronald M. Gould:
In 2020, the HRC [Human Rights Commission], the agency tasked with enforcing WLAD [Washington Law Against Discrimination], received a complaint from a transgender woman. The complaint alleged that Olympus Spa "denied [her] services and stated that transgender women without surgery are not welcome because it could make other customers and staff uncomfortable." Specifically, the Spa excluded preoperative transgender women who have not yet received gender confirmation surgery affecting their genitalia….
WLAD is a wide-reaching law that prohibits discrimination in a variety of areas, including employment, real estate, public accommodations, credit, and insurance. The public accommodations section covers discrimination in the "right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement." WLAD proscribes discrimination based not only on race but also categories including "age, sex, sexual orientation, and disability." … WLAD … [defines] "sexual orientation" … to mean:
heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, "gender expression or identity" means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.
WLAD's governing regulations permit the maintenance of certain "gender-segregated facilities," such as "restrooms, locker rooms, dressing rooms," and similar spaces, so long as the facility does not remove or otherwise take action against a person for reasons "[]related to their gender expression or gender identity." … The Spa does not dispute that WLAD's proscription of discrimination on the basis of sexual orientation applies to its conduct here. Nor could it…. The statutory language is undoubtedly expansive, and its definition of sexual orientation is bespoke. But it is also unambiguous, and it applies to the Spa's entrance policy….
First, the backstory of the lawsuit itself, from an earlier decision in Alexander v. Trump, decided today by Florida Court of Appeal Justices Jeffrey Kuntz, Burton Conner, and Ed Artau:
President Donald J. Trump, a Florida resident, sued nineteen individual members of the Pulitzer Prize Board, an unincorporated association, for defamation and conspiracy. Trump alleged that he sent letters on his personal letterhead to members of the Pulitzer Prize Board. The letters demanded the Pulitzer Prize Board take action to strip The Washington Post and The New York Times of the Pulitzer Prize awarded in 2018 for articles on purported Russian interference in the 2016 presidential election and alleged connections to Trump.
After Trump sent the letters, the Pulitzer Prize Board met remotely and concluded "no passage or headlines, contentions or assertions in any of the winning submissions were discredited by facts that emerged subsequent to the conferral of the prizes." The Board then issued the following statement on its website, with links to the original articles:
A Statement from the Pulitzer Prize Board
The Pulitzer Prize Board has an established, formal process by which complaints against winning entries are carefully reviewed. In the last three years, the Pulitzer Board has received inquiries, including from former President Donald Trump, about submissions from The New York Times and The Washington Post on Russian interference in the U.S. election and its connections to the Trump campaign--submissions that jointly won the 2018 National Reporting prize.
These inquiries prompted the Pulitzer Board to commission two independent reviews of the work submitted by those organizations to our National Reporting competition. Both reviews were conducted by individuals with no connection to the institutions whose work was under examination, nor any connection to each other. The separate reviews converged in their conclusions: that no passages or headlines, contentions or assertions in any of the winning submissions were discredited by facts that emerged subsequent to the conferral of the prizes.
The 2018 Pulitzer Prizes in National Reporting stand.
Now, from yesterday's Florida Court of Appeal opinion in Alexander v. Trump, written by Chief Judge Mark Klingensmith and joined by Judges Martha Warner and Melanie May:
Petitioners assert they are entitled to a stay of the underlying proceedings, including discovery, because the Plaintiff-Respondent is the current President of the United States. They argue a stay of the case will avoid the constitutional conflicts arising from allowing Respondent to proceed as a plaintiff in a state court civil action on claims that may involve his official conduct as the President….
[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.]
[a.] More Diversity
Even more than with music, the lower distribution costs will change what is available, as well as how it's available. High distribution costs have meant that media organs-newspapers, magazines, radio stations, TV stations-control which commentators are available and which aren't. Media organs may control based on their own political opinions, and they also control based on what their readers are likely to want. Even if a million people nationwide want to hear the Libertarian—or Socialist—view of things, there may be too few such people in each major market to make it worthwhile for newspapers to carry columns that appeal to these readers.
Lower distribution costs mean columnists and organizations can thrive if they appeal to even as few as several thousand people. Say columns cost one-half cent for transmission, one cent for paper, and one-half cent for royalties to the author. If even 30,000 people nationwide are willing to subscribe to a daily column—for about $7.50 a year—the columnist will make $150 a day, enough to keep body and soul together.
An organization like the ACLU, which might get one million subscribers, can make $3.5 million yearly on these terms, enough to hire editors, writers, and news gatherers, and perhaps even fund the organization's other public interest activities. Poor speakers will get a soapbox; listeners with unusual tastes will find more material that will please them; and the mix of available commentary will be much less bland than it is today.
The same will happen for books. Besides making books cheaper and largely eliminating the problem of books being out-of-print, the new technologies will also allow more books to be published. Publication, in fact, will consist simply of the writer sending the book to some electronic databases. There'll be no publisher, no veto power on the publisher's part, and no need for the book to have mass appeal before someone will invest in it.
Today the Supreme Court decided Seven County Infrastructure Coalition v. Eagle County, which challenged the U.S. Court of Appeals for the D.C. Circuit's capacious understanding of agency obligations under the National Environmental Policy Act. The justices unanimously rejected the D.C. Circuit's approach, but split 5-3 over what the D.C. Circuit did wrong. Justice Kavanaugh wrote for the Court, joined by the Chief Justice and the Court's conservative justices (other than Justice Gorsuch, who was recused). Justice Sotomayor wrote an opinion concurring in the judgment, joined by Justices Kagan and Jackson.
At first read, the biggest significance of this opinion is that it clarifies that NEPA does not require Environmental Impact Statements to consider upstream and downstream effects of projects that are caused by third-parties. This is particularly significant for infrastructure projects, such as pipelines or transmission lines, and should help reduce NEPA's burdens (at least at the margins). The opinion will also likely hamper any future efforts, perhaps by Democratic administrations, to expand or restore more fulsome (and burdensome) NEPA requirements.
Justice Kavanaugh's introduction does a nice job of laying out the issues and the Court's conclusions. Here it is:
At present there are two vacant seats on the Third Circuit: first, Judge Joseph A. Greenaway Jr. sat in New Jersey; and second, Judge Kent A. Jordan sat in Delaware. Yesterday, President Trump nominated Emil Bove to one of those seats, though it is not yet clear which one. I am not aware that Bove has connections to New Jersey or Delaware, though I understand he has ties to Pennsylvania, which is the other state in the Third Circuit. Contrary to common belief, a circuit seat does not belong by statute to a state. Only custom or tradition keeps a seat for a particular state. But once confirmed, the judge must live in that circuit, and that statute makes no reference to a particular state. (This requirement is observed inconsistently.)
So here is my question: in the wake of the Blue Slip's demise, can the President ignore any geographic connection with a circuit vacancy, and just nominate the best available candidate? In a state with two Republican Senators, there may be political pushback. But Trump will suffer no additional political harm if he alienates the Democratic senators from New Jersey or Delaware. Those Senators would convict and remove Trump the first chance they get.
If so, the process of picking circuit judges becomes a national search. The pool for potential candidates becomes much deeper.
With regard to this particular nomination, I worked with Emile Bove on the special counsel litigation. I found him to be a very smart, careful, and collegial attorney. In the leadup to oral argument, Bove was very responsive to my communications, and carefully considered our positions. Even where the defense disagreed with me and Tillman on particular points, Bove explained our position fairly to Judge Cannon. He had an encyclopedic knowledge of the very complex case. After I argued as amicus, Bove sent me a very gracious thank you note. He didn't have to do that, but he expressed his appreciation for our contributions to the case. It was a kind gesture.
It is true Bove lacks many of the elite credentials that some people value; I see that resume as a plus, and not a negative. Moreover, Bove took a case that few other lawyers would have taken: representing Donald Trump in a slew of criminal lawfare prosecutions. And he prevailed in the face of persistent criticism! This is the very sort of courage that I think will serve a federal judge well, far more than seeking access to yet another "inner ring."
[I thought it would be fun to serialize 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.]
[1.] Introduction
Text is even easier to send electronically than music, because it requires much less space, and therefore less transmission time; it can even be transmitted feasibly through today's relatively slow communications mechanisms. Some newspapers already put much of their news online. There are already special electronic-only news services, such as Clarinet Communications' ClariNews, which contains everything from business news to sports to a few columnists (such as Miss Manners) and cartoons (such as Dilbert and Bizarro).
There are also libraries of electronic books. Project Gutenberg at Illinois Benedictine College has created a database of 160 books, including the Bible, Alice in Wonderland, and the collected works of Shakespeare, all available free on the Internet. The Internet Bookstore service sells new books—though at the moment, rather few of them—from various publishers, including Paramount MacMillan, Oxford University Press, and the National Review. The books sell for somewhat less than the print price.
The problem, of course, is that computer screens are harder to read than books. Modern large-screen workstations, with black-on-white display and proportionally spaced fonts, are better than the old 24-by-80 displays that most of us still use. Still, they're not as easy to read as a book, and they certainly aren't as portable.
There are two ways to deal with this: Some text might be not only electronically delivered, but also printed out on home printers; and laptop computers might be made so readable and portable that reading text on them will be as easy as reading a book. I'll deal with these two possibilities in turn.
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