The Volokh Conspiracy Archive

Christ Episcopal Church, Toms River, NJ.

The New York Times reports that the town of Toms River, New Jersey is planning to use eminent domain to condemn a church, raze it, and build a park and pickleball courts on the spot. The planned condemnation may be motivated by a desire to prevent the church from opening a small homeless shelter on part of its land:

Leaders of Christ Episcopal Church in Toms River, N.J., were preparing for a Cinco de Mayo festival late one night when the news began to spread: The mayor planned to use eminent domain to seize their church and its 11 acres of land.

Under his plan, the church, which was founded in 1865, would be replaced by 10 pickleball courts, a soccer field and a playground with a nautical theme, according to an engineer's drawing. The first vote by the Township Council, Toms River's governing board, was the next afternoon.

The proposal represented a curious new twist in an ongoing battle in the large Jersey Shore community. An affordable housing nonprofit that rents space from the church had asked to create a small homeless shelter on the very land the mayor now wanted to turn into a park. The request was unpopular with neighbors, and the organization was awaiting approval from a zoning board.

The mayor, Daniel T. Rodrick, called the timing a "coincidence." But opponents have condemned the park plan as a thinly disguised way to block the shelter.

The effort to buy or take the land is all but certain to face legal challenges. But it has unleashed an emotional debate over property rights, religious liberty and the limits of a community's responsibility to care for poor people….

"I am outraged," said Rabbi William Gershon of Congregation B'nai Israel, a conservative synagogue that has been in Toms River for 75 years. "If you can do it to them, you can do it to any of us."

Rabbi Gershon said members of the town's interfaith council were united in their opposition to the effort, which he considers an attempt to use "political levers to cudgel a community, almost vindictively."

Rabbi Gershon is right. This sort of use of eminent domain is abusive and unjust. As the NY Times article notes, there is substantial public opposition to the taking. The Mayor of Toms River (who supports the taking) has postponed the final town council vote on it until July 30.

If the town decides to proceed with the condemnation, it will likely be challenged in court under the state and federal constitutions, as not being for a "public use." Unfortunately, US Supreme Court precedents, such as the notorious ruling in Kelo v. City of New London (2005), hold that almost anything that might benefit the public in some way qualifies as a "public use," even if the land is going to be transferred to a private party (see my critique of this position in my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain).

However, Kelo does allow courts to strike down "pretextual" condemnations where the official rationale for the taking is really a pretext for a scheme to benefit a private party. What qualifies as a pretextual taking is anything but clear! Lower courts have developed at least five different approaches for addressing such issues. For details, see my recent amicus brief urging the Court to revisit Kelo. But if the plan to condemn the church really is motivated by neighbors' complaints abut the potential homeless shelter, there is at least a plausible argument that the taking here is pretextual. That would be even more true if the plan provides for transferring some or all of the condemned property to a private owner.

New Jersey is within the jurisdiction of the US Court of Appeals for the Third Circuit. In Carole Media v. N.J. Transit Corp., 550 F.3d 302 (3d Cir. 2008), that court ruled that a key criterion for identifying a pretextual taking is whether there is a private beneficiary (usually the new owner) whose identity is known in advance.

I won't go into detail here. But New Jersey courts applying their state constitutional public use clause are much less deferential than federal courts applying Kelo and other Fifth Amendment public use precedents. Just ask Donald Trump, whose effort to use eminent domain condemn a widow's home to build a parking lot for one of his casinoes got struck down by a New Jersey court in CRDA v. Banin (1998) [I had a very small role in working on that case as a law student clerk at the Institute for Justice, which represented the property owners].

Whether the Toms River Church condemnation can be successfully challenged in court is likely to depend on facts such as how detailed and extensive the development plan is, whether some or all of the property will be transferred to a new private owner (public use challenges are much more likely to succeed if the answer is "yes"), and the extent of evidence of pretextual motivation.

I intend to reach out those involved to learn the answers to these questions, and - if possible - offer assistance to the Church in fighting this condemnation. If readers have relevant contacts, please let me know.

Afghan evacuees arrive at Dulles International Airport in Virginia — Afghan evacuees arrive at Dulles International Airport in September 2021 (Rod Lamkey - CNP/Polaris/Newscom)

The Washington Post reports that Trump will lift Temporary Protected Status (TPS) from thousands of Afghans who fled persecution by the Taliban, after the radical Islamist movement took over their country in 2021:

The Trump administration's move to end deportation protections for wartime allies who fled to the United States after the fall of Afghanistan has infuriated veterans of the 20-year conflict there, who say the U.S. government is betraying a sacred promise made to some of America's most vulnerable partners.

This month Homeland Security Secretary Kristi L. Noem announced the administration's termination of temporary protected status, or TPS, for Afghans, exposing thousands, potentially, to deportation by Immigration and Customs Enforcement (ICE) as soon as July, when the policy is to take effect.

The fear, veterans and other advocates say, is that anyone who returns to Afghanistan will almost certainly face reprisal by the Taliban, the extremist militant group that in 2021 overran the U.S.-trained Afghan military and toppled the government in Kabul…..

Advocacy groups estimate that about 10,000 Afghans in the United States have been dependent on TPS while they navigate the lengthy and complex process for obtaining permanent residency, a process made all the more difficult, they say, by the absolute chaos that defined Afghanistan's collapse — and by the guidance they received from the U.S. government while trying to escape.

The veterans' groups are right. Afghans deported back to Afghanistan - especially those who worked with the US during the war - will indeed face harsh persecution by the Taliban. Deporting them would be profoundly unjust, and also a betrayal of wartime allies that will make it more difficult for the US to recruit local support in any future conflict. If we don't stand by our allies, why would anyone trust us?

I'm old enough to remember a time when Republicans saw themselves as fighters against radical Islamism. Now they seek to deport Afghan allies back to the tender mercies of the Taliban, under the ludicrous pretext that conditions in Afghanistan are improving under the Taliban's rule.

This move is part of Trump's broader cruel assault on legal immigration, which includes barring nearly all refugee admissions, and targeting other groups for deportation back to repressive regimes in their countries of origin. Virtually the only group the Trump Administration sees as worthy of refuge are Afrikaner white South Africans, prioritized for refugee status under a February executive order.

I don't object to admitting the Afrikaners, and doing so might even set a useful precedent. But the idea that South African whites face worse persecution than Afghan opponents of the Taliban and other victims of oppressive regimes is utterly ridiculous. It reflects the racial obsessions of elements of the far right, not any objective reality.

Trump's abrogation of TPS for the Afghans is likely to be challenged in court. But the Supreme Court recently stayed a lower court decision blocking revocation of TPS for Venezuelans (despite the fact that they too face deportation to a brutally repressive government), and it seems likely, even if not certain, that the justices would do the same in a case involving the Afghans.

The lifting of TPS doesn't immediately imperil all Afghans in the United States. Many have parole status, granted and extended during the Biden Administration. But Trump could try to pull that, as well (as he has sought to do in the case of Cubans, Haitians, Nicaraguans, and Venezuelans), and in any event parole status is only temporary, and will eventually run out.

While Trump deserves severe condemnation for this cruel policy, Congress also deserves a hefty share of the blame. For years, veterans groups and others lobbied them to pass the Afghan Adjustment Act, which would have granted permanent residency rights to Afghans who fled the Taliban. I repeatedly advocated this, as well. But Congress dithered, and so here we are.

From Friday's order by Magistrate Judge Susan van Keulen in Concord Music Group, Inc. v. Anthropic PBC (N.D. Cal.)

At the outset, the Court notes that during the hearing, Publishers asked this Court to examine Anthropic's expert, Ms. Chen and strike her declaration because at least one of the citations therein appeared to have been an "AI hallucination": a citation to an article that did not exist and whose purported authors had never worked together. The Court gave Anthropic time to investigate the circumstances surrounding the challenged citation. Having considered the declaration of Anthropic's counsel and Publishers' response, the Court finds this issue is a serious one—if not quite so grave as it at first appeared.

Anthropic's counsel protests that this was "an honest citation mistake" but admits that Claude.ai was used to "properly format" at least three citations and, in doing so, generated a fictitious article name with inaccurate authors (who have never worked together) for the citation at issue. That is a plain and simple AI hallucination. Yet the underlying article exists, was properly linked to and was located by a human being using Google search; so, this is not a case where "attorneys and experts [have] abdicate[d] their independent judgment and critical thinking skills in favor of ready-made, AI-generated answers…."

A remaining serious concern, however, is Anthropic's attestation that a "manual citation check" was performed but "did not catch th[e] error." It is not clear how such an error—including a complete change in article title—could have escaped correction during manual cite-check by a human being. Furthermore, although the undersigned's [i.e., the Magistrate Judge's] standing order does not expressly address the use of AI by parties or counsel, Section VIII.G of [District] Judge Lee's Civil Standing Order requires a certification "that lead trial counsel has personally verified the content's accuracy." Neither the certification nor verification has occurred here. In sum, the Court STRIKES-IN-PART Ms. Chen's declaration, striking paragraph 9 [which contains the footnote that contains the citation with the hallucination], and notes for the record that this issue undermines the overall credibility of Ms. Chen's written declaration, a factor in the Court's conclusion.

Thanks to ChatGPT Is Eating the World for the pointer; it also discusses more about the substantive role of paragraph 9 in the declaration. Here's more backstory (from an earlier post):

From M.B. v. C.B., decided May 15 by Westchester County (N.Y.) trial court judge James Hyer:

During the conference Plaintiff's counsel indicated that his client was concerned about Defendant's continued erratic behavior including his use of the social media platform TikTok (hereinafter "TikTok"), including representations made during recordings of Defendant on TikTok that he had gifted significant sums of funds believed to be in excess of twenty or thirty thousand dollars:

"TikTok has the ability for individuals to give gifts to other people on TikTok, so you go live on TikTok and then it's showing what you're doing live. [Defendant], from what we can tell, has given away well in excess of twenty or thirty thousand dollars in the last two months to just third parties, individuals, and bragged about it very openly. We have recorded video of all of this. He talks about giving Pegasuses, giving universes. A universe costs $532 to the individual who gives it and it has a cash value that's redeemable by the person who receives it of around $500."

Plaintiff's counsel marked as Court Exhibit 1 a summary of certain TikTok recordings wherein he noted the following including asserted quotes of Defendant:

… "I'm gonna pegasus" with a woman as the background. Pegasus is a virtual gift you get after reaching the highest "gifter level." … To reach level 50 gifter, you need to spent a significant amount of real money on gifts (estimated around $845,000.00). You can then send Pegasus during a tick tok live….

"That's the Lord Marcellus one. I don't even know how many of these I sent but I send a lot of these. I sent a lot of Lord Marcellus'. That's a vault gift. It's the best gift you can send other than the Pegasus" … Lord Macellus is a Tik Tok gift worth $10 ….

"You wanna be like me. You wanna drop the uni's. You wanna drop the vaults." … Tick tok Universe $500 ….

Plaintiff's counsel also played several TikTok recordings of Defendant, one of which was asserted to have been made the day before the conference referring to this action, two of which were asserted to have been recorded just prior to the last conference in this courthouse with one being filmed in the hallway outside the courtroom and the other being filmed in the courthouse bathroom:

"I would note, your Honor, this is all while my client is not receiving child support, spousal support, has received no temporary counsel fees.

5/26/1868: Senate acquitted President Andrew Johnson and adjourned as court of impeachment. Chief Justice Chase presided over that trial. Johnson is one of four presidents that did not appoint any Supreme Court Justices. The others are William Henry Harrison, Zachary Taylor, and Jimmy Carter.

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)

President Trump has been trying use the Alien Enemies Act of 1798 as a tool for mass deportation. The AEA allows detention and deportation of foreign citizens of relevant states (including legal immigrants, as well as illegal ones) "[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." Multiple federal courts have ruled against Trump on the grounds that his invocation of the AEA is illegal because there is no declared war, and the activities of the Venezuelan drug gang Tren de Aragua (which Trump cites as justification for using AEA) are not an "invasion" or a "predatory incursion."

One federal judge has issued a badly flawed ruling holding that TdA's actions qualify as a "predatory incursion." But with that exception, courts have rejected the Administration's interpretation of the AEA, and there has been unanimous agreement that the meaning of terms like "invasion" is subject to judicial review and interpretation.

But some judges have held that the Administration does deserve deference on its factual determinations about whether a war, "invasion," or "predatory incursion" have occurred, and if so whether they were perpetrated by a "foreign nation or government." I previously critiqued such deference here. Legal scholar Rebecca Ingber has now published a more detailed critique in an insightful article for Just Security:

The question of who gets to make the predicate determination of whether the United States is at war or facing invasion or predatory incursion is as or more important as the assessment itself. That who should involve Congress, first and foremost, as the branch constitutionally assigned decisions to go to war. But in the case at hand, I mean, do judges get to review the president's factual assertions that the United States is at war or facing invasion or predatory incursion, or is that left entirely to the executive's discretion? This question, so framed, has implications far beyond the AEA cases. Given just how much extraordinary power the courts have recognized for the president during times of war, this power would be all-encompassing if it is left to turn on or off by the president alone – especially if the president can declare a situation is one of war or the like with no judicial check on whether that claim is completely unfounded….

Judge Haines' favoring "substantial deference" to the President's factual analysis is of a piece with years of judicial reticence to look too closely at what the President is doing when he claims war powers. Judges quite regularly question the competence of courts to "second guess" national security judgments the executive branch puts forward. As Judge Rodriguez states, they worry that the President's decisions might be based on some secret intelligence or "sensitive and confidential information" they do not have, and which they should not push the President to divulge….

This supposed expertise or information gap is one basis on which courts often defer to the executive…"

Yet while courts are often invested in the idea that there is some special process happening behind the closed doors of the executive, they are typically loath to delve behind it. As a result they defer aimlessly, often to what is simply the litigation position the executive branch puts forward in court. They may seem willfully blind to clear unconstitutional animus by the president because they are comforted that an internal, and secret, "review process undertaken by multiple Cabinet officials and their agencies" sufficed to remove its taint.

In the AEA cases, deferring to the President's expertise and secret intelligence is an especially transparent legal fiction. We have seen the publicly released work of those experts and intelligence sources, and they fundamentally undermine the President's assertions….

Moreover, not all courts have been so blindly deferential on questions of national security. Indeed, federal judges regularly adjudicate highly sensitive foreign intelligence and surveillance matters in cases before the Foreign Intelligence Surveillance Court (FISC); they review classified information using the Classified Information Procedures Act (CIPA) in a range of criminal cases; they adjudicate whether the military detention of alleged "enemy combatants" is lawful in Guantanamo Bay habeas cases relying on the government's classified information about an ostensibly ongoing armed conflict… In the Guantanamo habeas cases in particular I have seen firsthand how much of the government's initial assertions dissolve like sand through one's fingers in the face of adversarial process and judicial review. Our nation's history is also replete with examples of federal courts making much weightier determinations, stretching from policing the executive's use of the limited war powers granted to it by Congress in the quasi-war with France to determining the legality of Lincoln's blockade of southern ports at the outset of the Civil War….

When the President exploits the concept of war, or emergency, or national security, to claim extreme power over all aspects of our lives, we should scrutinize that power with a rigorous lens. And when we are talking about basic civil liberties – and a President's attempt to turn off constitutional due process with the flick of a pen – these questions are well within the province of the courts.

The war powers that Congress and the courts have over time granted the President are extraordinary. When the courts cede to the President absolute discretion to turn them on, this makes them virtually limitless. Today, the President claims authority to snatch people off the streets by masked federal agents and ship them to a foreign gulag, in the name of an invasion he alone has the power to name. It is almost too on the nose. This cannot possibly be a plausible exercise of the exceptional war power that the courts and Congress have long ceded to the President. But it is certainly an opportunity to rein those powers in.

I agree completely! The key point here is that an unreviewable power to make a "factual" determination that a war or an "invasion" has occurred turns into an unreviewable power to wield vast authorities intended to be limited to wartime emergency situations anytime the president wants. For example, in the event of a real "invasion" the federal government the power to suspend the writ of habeas corpus, thereby authorizing detention without due process for migrants and US citizens, alike.

And, as Prof. Ingber emphasizes, claims to deference based on superior expertise should be viewed with great skepticism, especially in a situation like this one where the appeal to expertise is a transparent pretext. The Administration has in fact ignored the expert conclusions of its own intelligence agencies, and fired those experts who dared to tell the Boss things he didn't want to hear.

I would add that specialized expertise isn't much needed to ascertain the existence of a genuine "invasion" or "predatory incursion," when these concepts are properly defined as military attacks, rather than mere illegal migration or drug smuggling. Such assaults are anything but subtle or hard to detect! Perhaps deference is still appropriate in close, ambiguous cases. But it is not justified in situations where the presence or absence of a military attack is pretty obvious. That is, in fact, our situation right now.

Conservative Boston Globe columnist Jeff Jacoby rightly decries a pernicious provision in Trump's "Big Beautiful Bill":

Buried near the end of the ludicrously named "One Big Beautiful Bill Act" approved by the House Budget Committee over the weekend is a new 5 percent tax on remittances [now reduced to 3.5%], the gifts of money that tens of millions of foreign-born US workers regularly send to family members abroad.

As a rule, Republicans promote themselves as the party of lower taxes. Indeed, a key goal of the "big, beautiful" legislative package is to permanently extend the tax cuts passed by Congress in 2017 and signed by President Trump during his first term….

But it's a different story for immigrants sending some of their hard-earned wages to loved ones in their homelands.

Tax cuts may be important to the GOP brand, but these days so is ill will toward migrants. A new tax on remittances would generate some revenue for the federal government, but as with so many of the administration's actions, its primary purpose is to make life more difficult for immigrants….

I would add that the GOP is also supposed to be the party of "family values." Yet this tax targets people sending funds to their families, many of whom suffer from severe poverty in their countries of origin. Remittances are a valuable lifeline for millions of poor people, and targeting them for discriminatory taxation is cruel and unjust. Immigrant workers should pay the same taxes as everyone else, and should not be subject to additional taxation when they use some of their hard-earned pay to send remittances to their families.

Jacoby rightly points out that the remittance tax may well incentivize rather than deter illegal migration. I would add that the vast majority of remittances are actually sent by legal migrants. Even if you think it's just to punish illegal migrants in this way (I generally do not because the moral import of the legal-illegal distinction is vastly overblown), that's no reason to harm legal ones.

Jacoby also highlights the flaws in the argument that remittances somehow drain money from the US economy:

Nativists also argue that remittances drain money from the United States — that dollars earned here should stay here. "Remittance-Senders (Mostly Illegals) Ship $25 Billion a Year Out of the U.S.," the Center for Immigration Studies argued in 2010…

As most economists will confirm, dollars sent abroad — as remittances, to pay for imports, or to buy foreign currency — are not "lost" to the US economy. In almost every case, they make their way back. Foreign entities generally cannot use dollars domestically within their own countries. So when businesses or banks abroad accumulate US currency, they can only use it to buy American goods and services or to invest in American assets. The bottom line: No matter how many billions of dollars Americans send abroad, virtually all those dollars must ultimately return to the United States.

This is just basic Economics 101 of dollar-denominated remittances. Assume, however, that some family members receiving remittances just stuff the money in their mattresses or wallow in it, like Scrooge McDuck. Americans still benefit! By taking this money out of circulation in the US, the family members would cause a small amount of deflation at the margin, thereby marginally increasing the value of dollars held by everyone else - and most such dollars are held by Americans. This point also largely applies to the use of remittance dollars in countries like El Salvador, which has adopted the US dollar as its own currency.

Rereading a 1995 article of mine reminded me of the late Vernor Vinge's then-recent A Fire Upon the Deep (1992) (one of my favorite science fiction books). Referring to an interstellar communications network seemingly modeled on the 1992 Internet, the characters say, like it's a proverb: "It's not called the Net of a Million Lies for nothing."

The U.S. Capitol is seen underneath $100 bills — Photo 181642336 © Zimmytws | Dreamstime.com

The Trump Administration has been trying to leverage federal grants in ways that force various people and organizations to give up their constitutional rights or submit to constraints that go beyond the constitutional authority of the federal government. A standard response to criticisms of such policies is that people have no right to these grants in the first place. Receiving federal grants and other government benefits, it is said, is a "privilege, not a right." Thus, the federal government can impose whatever conditions it wants on recipients. In an excellent recent Washington Post article, University of Pennsylvania law Prof. Mitchell Berman has a great explanation of why such reasoning is badly wrong:

Universities refuse to fully dismantle their DEI programs? The Trump administration withdraws billions of dollars in federal funding, and cancels visas for their foreign students. Law firms won't donate their services to causes that President Donald Trump favors? Trump cancels their lawyers' security clearances and refuses to deal with their clients. Journalists still call the Gulf of Mexico "the Gulf of Mexico"? Trump pulls their credentials for press briefings. The state of Maine allows some transgender athletes to compete on some girls' and women's sports teams? Trump threatens to cut off federal funding for its public schools.

Different targets, but one common tool: leverage. Trump uses federal funds and other government benefits to pressure individuals and institutions into exercising their constitutional rights as he prefers. This is extortionate. And therefore unconstitutional….

If Trump can use threats over tariffs to pressure nations into opening their markets or strengthening their currencies or ordering more U.S. arms, why can't he do the same with American institutions?

Because foreign nations have no constitutional rights, but American universities, lawyers, journalists and states do — rights protected by the First, Fifth, Sixth and Tenth Amendments. Trump's efforts to leverage government benefits against them violate those rights by penalizing their exercise.

When [Trump Council of Economic Advisers Chair Stephen] Miran defended high tariffs to gain concessions from trading partners, he noted that "access to the U.S. consumer market is a privilege that must be earned, not a right." The same applies to federal funding for education, research and other governmental benefits. They, too, are privileges, not rights. But it's impermissible to withhold benefits for the purpose of shaping or punishing American institutions for exercising the rights they do have — including free speech.

This is a well-established legal principle. More than 50 years ago, in Perry v. Sindermann, the Supreme Court thought it already well-established that "even though a person has no 'right' to a valuable governmental benefit … there are some reasons upon which the government may not rely" in denying that benefit. In particular, government may not deny a benefit to punish someone for exercising their constitutional rights or to pressure them into exercising their rights in the way the government dictates.

The reason is simple: "if the government could deny a benefit to a person because of his constitutionally protected speech or associations," his rights would thus be "penalized and inhibited." Because the Constitution doesn't "allow the government to 'produce a result which [it] could not command directly,'" the government cannot make the exercise of a right costly to force compliance with its agenda….

Yet that's precisely what Trump is doing. He threatens to withdraw funding from research to cure Parkinson's or Alzheimer's to punish universities for exercising their First Amendment rights to express views on American history and racial justice. He would pull school lunch funding for underprivileged kindergartners to pressure states into accepting his edicts on gender. But the Constitution prohibits this.

This is exactly right, and I have made similar points myself (albeit less eloquently), in the context of speech-based deportations of foreign students, sanctuary cities, and other issues.

I would add that Trump's use of tariffs as leverage is also unconstitutional, because he is usurping a power the Constitution granted to Congress, not the president. American businesses and consumers have a right to be free of unconstitutional taxation imposed by executive.

Berman goes on to point out that conservative judges, no less than liberal, have sought to prevent this kind of unconstitutional coercion:

Conservatives have historically been at least as vigilant as liberals in guarding against the selective granting and withholding of government benefits as a tool to pressure right-holders into exercising their rights the government's preferred way. Take the Affordable Care Act decision from more than a decade ago. The Supreme Court invalidated a portion of the act that conditioned all Medicaid funding on states' agreement to partner with the feds to provide health care to a new beneficiary class. Chief Justice John G. Roberts Jr. rightly reasoned that it was unconstitutional for Congress "to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding" — even though, unquestionably, Medicaid funding is a privilege, not a right.

A quarter-century earlier, the court held that a state zoning authority could not leverage its control over land-use variances (also a privilege, not a right) to pressure a family into conveying a public easement across its private beach. To threaten to withhold permits because of how landowners exercise their property rights, Justice Antonin Scalia reasoned, was "an out-and-out plan of extortion."

He's right on this point, too! And it's great to see a prominent left-liberal legal scholar praise the much-vilified Medicaid ruling in NFIB v. Sebelius and Justice Scalia's takings jurisprudence (also oft-maligned by left-of-center academics). Neither of these precedents is a model of clarity, and I have some reservations about both myself (see here and here). But both are much better than simply letting the government do whatever it wants, thereby severely compromising constitutional rights and structural limits on federal power. More generally, people across the political spectrum have a strong interest in maintaining constitutional constraints on the use of federal benefits and grants as leverage. Even if you trust Trump to use such leverage responsibly, I bet you wouldn't trust a Democratic president to do so (and vice versa).

5/25/1861: John Merryman arrested. Chief Justice Taney ruled that his detention was unconstitutional in Ex Parte Merryman.

The Circuit Justices do not apply uniform rules when it comes to emergency applications. Justice Jackson, for example, refused to promptly call for a response in Libby v. Fectau, a case where the majority ultimately granted emergency docket relief.

I have also been keeping my eye on Trump v. AFGE. On May 9, A federal district court issued a TRO against the Trump Administration to block the removal of certain employees. On May 16, the Solicitor General applied for an emergency stay with Circuit Justice Kagan. And Kagan did absolutely nothing. She didn't even call for a reply.

On May 22, the District Court entered a preliminary injunction, which the government promptly appealed. On May 23, the Solicitor General filed a letter with the Supreme Court, withdrawing the stay application. The short letter states:

On May 16, 2025, we filed in the above-captioned case an application for a stay of an order issued on May 9, 2025, by the United States District Court for the Northern District of California. Labeled as a temporary restraining order, that order barred numerous executive-branch agencies from taking various actions related to an executive order and guidance memorandum concerning federal agencies' reductions in force. The order also directed the disclosure of certain deliberative executive-branch planning documents. Yesterday, May 22, the district court issued a preliminary injunction succeeding its temporary restraining order. Today, the United States filed a motion in the United States Court of Appeals for the Ninth Circuit to stay that new order pending appeal. In light of those developments, the United States withdraws its May 16 stay application in this Court.

I think I figured out what happened here. Justice Kagan realized that the District Court would almost certainly replace the unappealable TRO with an appealable PI. So she didn't lift a finger. She would rather wait for the normal appellate process to play out in the Ninth Circuit. Apparently, Justice Kagan did not think much of the government's urgent desire for a ruling.

As a practical matter, Kagan's delay extends by at least a month how long the government would be subject to an injunction. There isn't even the chance for an administrative stay. This case illustrates how much power and discretion the Circuit Justice has.

One of my proposals for bilateral judicial reform is to rotate the circuit justices annually. How is it fair that Justice Kagan always has authority over the Ninth Circuit while Justice Alito always has authority over the Fifth Circuit? Neither Justice has any geographic ties to the area. These should shift every year. And while I'm on the topic, the Court should consider a standard timeline for responses with emergency applications. It seems unfair that individual Circuit Justices can game the system.

A draft of the Environmental Protection Agency's proposed regulation to undo the Biden Administration's regulations governing greenhouse gas emissions from power plants is undergoing White House review. If finalized, this rule would end EPA regulation of greenhouse gases from power plants, and put on ice greenhouse gas regulation of other stationary sources under the Clean Air Act.

The EPA is not seeking to undo the Biden power plant rules by challenging the EPA's 2009 endangerment finding. Though urged by some, this would have been foolhardy. Rather, according to this New York Times report, the EPA appears to be taking a more strategic approach along the lines of what I suggested in this post last week.

From the NYT story:

In its proposed regulation, the agency argued that carbon dioxide and other greenhouse gases from power plants that burn fossil fuels "do not contribute significantly to dangerous pollution" or to climate change because they are a small and declining share of global emissions. Eliminating those emissions would have no meaningful effect on public health and welfare, the agency said.

The key word in the statutory language is "significantly." The EPA is not claiming that climate change does not pose a threat, nor is the EPA claiming that greenhouse gases do not contribute to climate change. Rather, the EPA is saying that fossil fuel-fired power plants in the United States to not contribute "significantly" to global greenhouse gas concentrations in the atmosphere.

In proposing to lift regulations on power plants, the E.P.A. points to the fact that the U.S. share of global power sector emissions represented about 3 percent of worldwide greenhouse gases in 2022, down from 5.5 percent in 2005. So, it argued, even if American power plants erased all their greenhouse gases from the power sector, the risk to public health would not be "meaningfully" improved.

As global climate change is a global concern--and is driven by global concentrations of greenhouse gases in the atmosphere, it does not matter that power plants are a large share of domestic emissions. And, as U.S. emissions decline as a share of global emissions, the significance of domestic power plants will decline over time.

If the EPA goes ahead with this approach, the final rule will certainly be challenged. A key question in such litigation will be whether reviewing courts accept the EPA's definition of what it means for a category of sources to contribute "significantly" to a type of air pollution. Absent Chevron deference the EPA's interpretation of the the statutory language will not carry much wait, but courts may be convinced that this is nonetheless a question upon which courts should respect agency expertise and accommodate the EPA Administrator's exercise of discretion. But as noted above (and as I told the Times), if the EPA is successful with such a rule, it will effectively end the regulation of greenhouse gases from stationary sources under Section 111 of the Clean Air Act.

On May 21, The US Court of International Trade (CIT) held oral arguments in Oregon v. Trump, a case challenging Trump's massive IEEPA tariffs filed by twelve states led by the state of Oregon. The Oregon case is similar to that filed by the Liberty Justice Center and myself on behalf of five US businesses harmed by the tariffs, though there are some distinctions (see here for a more detailed discussion).

I won't try to go over the entire two hour argument here. Interested readers can listen to the audio available at the CIT website. And, as always, it is difficult to predict judicial decisions based purely on oral arguments. But I will say that, as in the argument in our case on May 13, the judges seemed highly skeptical of the government's claim that the International Emergency Economic Powers Act of 1977 (IEEPA) gives the president virtually unlimited power to impose tariffs. Judge Restani repeatedly noted that the government's position would allow the president to declare an "emergency" for any "crazy" reason, and then impose whatever tariffs he wanted. In response to the government lawyer's assertion that the delegation of nearly boundless tariff authority was clear enough to satisfy the requirements of the major questions doctrine (a key issue in the case for reasons I describe here), Judge Restani said "[w]e're having a lot of argument for something that's clear" and that "It's not clear to everybody." Amen.

Unlike the argument in our case, this one included some discussion of the scope of the remedy should the plaintiffs prevail. Should there be a nationwide injunction against the tariffs, or one limited to the plaintiffs? I could easily be wrong about this. But it seemed to me the judges were leaning towards s broader remedy. The judges also asked about the standing of the states, especially those who do not directly import goods subject to the tariffs. This issue did not come up in our case, as all our clients are businesses that directly import.

In my view, if even one state is entitled to standing (as Oregon likely is, based on their direct importation), the same goes for the rest, based on the "standing for is standing for all" rule recently applied by the Supreme Court in Biden v. Nebraska (the red state lawsuit challenging Biden's student loan forgiveness program). The Court ruled Missouri had standing, and therefore there was no need to consider whether the other state plaintiffs did.

At one point, the government's lawyer complained that an injunction against the tariffs would "kneecap the president" in his efforts to use the tariffs as leverage against our trading partners. I say the kneecapping would be a feature, not a bug. The Constitution requires a trade system based on the rule of law, not the whims of one man able to impose tariffs whenever he feels like it, in hopes that they might be useful leverage. Otherwise, consumers, investors, and businesses like our clients won't have the stable legal regime they need to make plans and function effectively. I develop these and related points in more detail in my Lawfare article, "The Constitutional Case Against Trump's Trade War," and my post on why Trump's tariffs threaten the rule of law.

While there is no set schedule for the court to issue its decisions in either our case or Oregon's, I would not be surprised if they come relatively quickly. I would also expect them to be issued at the same time, or in close succession.

An excerpt from Judge Ho's concurrence in the Little v. Llano County en banc decision (he also joined the majority opinion as to listener interests and the seven-judge decision as to library curation decisions being government speech):

The Constitution protects "the freedom of speech." That freedom ensures that citizens are free to speak—not that we may force others to respond. It's the First Amendment, not FOIA.

So "[t]here is … no basis for the claim that the First Amendment compels others—private persons or government—to supply information." The Supreme Court "has never intimated a First Amendment guarantee of a right of access to all sources of information within government control." "The First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government."

Our Founders enacted a charter of negative liberties. "[L]iberty in the eighteenth century was thought of much more in relation to 'negative liberty'; that is, freedom from, not freedom to." …

The fundamental distinction between negative and positive rights is essential to a proper understanding of the First Amendment.

Consider how the law treats public museums. It's well understood that you have no First Amendment claim just because a public museum won't feature the art or exhibit you wish to view. That's because, as today's en banc majority opinion explains, when a government funds and operates a museum, it necessarily acts as a curator for the public's benefit—and there is no First Amendment claim when the government is curating, not regulating.

As I noted yesterday, a ten-judge Fifth Circuit majority held that the Free Speech Clause doesn't secure a right of readers to access material in a public library, and thus generally doesn't constrain public library selection and removal decisions. But seven of the ten judges in the Fifth Circuit (led by Judge Kyle Duncan) also argued that the government speech doctrine provides a separate basis for this decision; the seven judges in the dissent disagreed. This government speech reasoning thus isn't a binding precedent on the question, but it will doubtless come up in other circuits, and in the Supreme Court if the Court agrees to hear the case (perhaps because of the circuit split between the Fifth and Eighth circuits):

"[T]he Free Speech Clause … does not regulate government speech." … [W]hen Llano County shapes its library collection, choosing some books but not others, is the county itself speaking or is the county regulating private speech?

The judges began by citing cases in which the Court recognized that private entities—social media platforms curating their news feeds (see last Term's Moody v. Netchoice), parade organizers choosing floats, newspapers choosing what submissions to publish, and so on—often speak by "present[ing] a curated collection of third-party speech." "Deciding on the third-party speech that will be included in or excluded from a compilation—and then organizing and presenting the included items—is expressive activity of its own." Moody. And, they reasoned,

Like a private person, a government may express itself by crafting and presenting a collection of third-party speech. See, e.g., Ark. Educ. Television Comm'n v. Forbes (1998) ("When a public broadcaster exercises editorial discretion in the selection and presentation of its programming, it engages in speech activity."). A key precedent illustrating this point is City of Pleasant Grove v. Summum (2009), [where] … the City created displays in a public park by accepting privately donated monuments …. The City's selecting some monuments over others[, the Court held,] "constitute[s] government speech." It did not matter that the monuments were works by private sculptors. The relevant expression was the City's choosing the ones it wanted. The City could "express its views," [and thus could pick and choose which monuments to accept -EV,] the Court explained, even "when it receives assistance from private sources for the purpose of delivering a government-controlled message."

Summum maps neatly onto our case. Just as the City of Pleasant Grove selected private speech (monuments) and displayed that speech in a park, the Llano County library selects private speech (books) and features them in the library. The relevant expression lies not in the monuments or the books themselves, but in the government's selecting and presenting the ones it wants. And in both cases the government sends a message. Pleasant Grove said, "These monuments project the image we want." Llano County says, "These books are worth reading."

5/24/1870: Justice Benjamin Cardozo's birthday.

I took part in a recent National Constitution Center panel on "The War Over Constitutional Meaning." The other participants were Prof. Amanda Shanor (Univ. of Pennsylvania), Prof. Alan Trammell (Washington and Lee), and Prof. Wilfred Codrington, III (Cardozo School of Law, Yeshiva University, serving as moderator). Here is the video:

We covered a lot of ground, ranging from the pros and cons of originalism, to whether the Reconstruction amendments are "underrated" to whether we need fundamental constitutional reform. On the latter issue, I made the case that many of our current problems stem not from inherent flaws in the Constitution but from failure to enforce it more fully.

The panel was part of a larger conference on "Constitutional Meaning in the Shadow of the Articles of Confederation." Video of the full conference and the full list of participants (including many prominent legal scholars and Rep. Jamin Raskin, himself a former legal scholar) are available here.

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