Friday Open Thread
What's on your mind?
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
District Court Declines to Stay Order Reinstating Fired U.S. Institute of Peace Board Members, Holds Trump v. Wilcox Doesn't Apply
From today's order by Judge Beryl Howell (D.D.C.) in U.S. Institute for Peace v. Jackson:
[On Monday, t]his Court declared that President Trump's termination of USIP Board members violated the statutory removal protections in 22 U.S.C. § 4605(f), and because those protections posed no constitutional problem, the terminations were null and void. This Court also declared null and void actions taken as a result of those improper removals, including the removal and replacement of USIP President Ambassador Moose, as well as the transfer of property and other actions taken by those illegitimately installed replacements. This Court then ordered that plaintiff Board members and Ambassador Moose remain in their leadership positions for USIP and may not be treated as having been removed, among other concomitant relief.
Defendants sought a stay of this order while it's being appealed, but the court said no:
Whether a stay is appropriate depends on four factors: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." "The first two factors of the traditional standard are the most critical," and the showing of likelihood of success must be "substantial."
For all of the reasons explained in this Court's Memorandum Opinion, defendants have not made the requisite showing that they are likely to succeed on the merits. President Trump removed the USIP Board members without complying with the statutory requirements in 22 U.S.C. § 4605(f). Defendants did not argue that the President met those requirements but rather challenged the constitutionality of the statutory removal restrictions, arguing that USIP is part of the Executive branch and its Board members are subject to at-will presidential removal under Article II of the Constitution.
As the Court explained, however, while USIP may be considered part of the federal government, USIP does not exercise executive power and thus is not part of the Executive branch, so the President does not have absolute constitutional removal authority over USIP Board members but must comply with the statute in exercising his removal power. Further, even if USIP were part of the Executive branch, Congress's restrictions on the President's exercise of constitutional removal authority in 22 U.S.C. § 4605(f) would be permissible under Humphrey's Executor v. United States (1935), and its progeny, given USIP's Board's multimember structure and de minimis, if any, exercise of executive power. Thus, whether USIP is or is not part of the Executive branch, the President must comply with the various mechanisms at his disposal, as provided in the statute to remove members of USIP's Board.
Baude on Trump v. Wilcox: "Predictable and Reasonable"
A defense of the Supreme Court's decision to let President Trump remove members of the NLRB and MSPB.
Yesterday, by a vote of 6-3, the Supreme Court stayed district court orders blocking President Trump from removing members of the Gwynne Wilcox from the National Labor Relations Board and Cathy Harris from the Merit Systems Protection Board. As I noted before, this case targeted Humphrey's Executor and had the potential to effectively eliminate independent regulatory agencies as a category.
In today' New York Times, Will Baude has an op-ed largely defending the Court's order as both "predictable and reasonable" that largely captures my views on the subject (thus freeing me from writing a longer blog post on the case). He writes:
We have plenty of things to worry about in constitutional law today. But those worried about how the court will confront the unprecedented and sometimes unlawful actions of the Trump administration should save their outrage for other cases.
In the two cases here, the court held that the president was likely to prevail in his unitary executive claim, that the administration was unduly harmed by allowing the officials to keep their offices while the case was pending, and that this reasoning would not imperil the independence of the Federal Reserve. It did all of this in an emergency order, rather than waiting for the issues to arrive on the court's regular docket.
All four of these things are noteworthy and provoked a powerful dissent by Justice Elena Kagan. But in this particular case, all four can be justified.
It was reasonable for the Court to conclude that the NLRB and MSPB are more like the Consumer Financial Protection Board than they are like the 1930s Federal Trade Commission, and thus limitations on presidential removal of board members conflicted with Seila Law and should not be saved by Humphrey's Executor. Indeed, it is not clear the current FTC would qualify. The "quasi-legislative" functions of the FTC the Court considered important in Humphrey's were the FTC's responsibilities for assisting and informing Congress, not promulgating regulations.
But what about the Federal Reserve? Baude writes:
The court's declaration that the Federal Reserve is different also has a plausible basis. In the decades after the nation's founding, practice and precedent firmly established the constitutionality of the Bank of the United States, which operated as a corporation with some independence from the president. This suggests that monetary policy is not necessarily executive power. While the Federal Reserve today does many things beyond its core mission of monetary policy, the court would have several options for preserving at least some independent functions for the Federal Reserve.
I would go a little further and note that all the Court said in its order is that allowing the removal of NLRB and MSPB members does not "necessarily" mean that members of the Federal Reserve Board are also removable. It is simply a separate question, and it may well be the case that the Fed's primary responsibilities (monetary policy) can be insulated from executive control, whereas some of its regulatory functions cannot. Those are all questions courts can sort out another day.
More Baude:
Officially, the court was careful not to completely prejudge the legal issues, nor to state definitively that previous precedents about independent agencies would be narrowed or overruled. It made an honest judgment about the likelihood of success on the merits, as the law calls for.
Even if it had gone further and made such definitive statements, this is not the kind of case where that should especially concern us. It is bad when the emergency docket forces the justices to quickly take positions on tough issues that they have not had time to consider carefully. But the unitary executive question has been before the court multiple times in recent cases, with extensive briefing and argument. All of the justices have thought carefully about the legal issues and made up their minds about most of them.
The president's ruinous tariffs, purported cancellation of birthright citizenship, renditions to foreign prisons and retaliations against his political opponents all raise far graver constitutional problems than the court's ultimately unsurprising order in these cases. We should focus our concern there.
That seems right to me.
Does the Big, Beautiful Bill Contain a Threat to Judicial Independence? (Updated)
Is it a problem if a provision requires judges to comply with the Federal Rules of Civil Procedure?
The New York Times reports on an ominous provision in the House passed "Big Beautiful Bill" through which Republicans are trying to "weaken federal judges." From the story:
The sprawling domestic policy bill Republicans pushed through the House on Thursday would limit the power of federal judges to hold people in contempt, potentially shielding President Trump and members of his administration from the consequences of violating court orders. . . .
The language in the House-passed bill would block federal judges from enforcing their contempt citations if they had not previously ordered a bond, a provision that Republicans said was intended to discourage frivolous lawsuits by requiring a financial stake from those suing. . . .
Democrats have argued that House Republicans' measure would rob courts of their power by stripping away any consequences for officials who ignore judges' rulings. They also noted that the measure would effectively shield the Trump administration from constitutional challenges by making it prohibitively expensive to sue.
"We've never said to American citizens and constituents that in order to vindicate their rights in federal court, they're going to be required to provide a security when their constitutional rights have been violated by their government," Representative Joe Neguse, Democrat of Colorado, said.
Curious, I looked up the relevant provision in the House-passed bill. It reads:
No court of the United States may use appropriated funds to enforce a contempt citation for failure to comply with an injunction or temporary restraining order if no security was given when the injunction or order was issued pursuant to Federal Rule of Civil Procedure 65(c), whether issued prior to, on, or subsequent to the date of enactment of this section.
So the issue, then, is what is required by FRCP Rule 65(c). It provides:
The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.
So it would seem that Rule 65(c) already requires security to be given before such orders issue, subject to the judge's discretion as to what constitutes a "proper" amount.
This has become an issue because many judges use this discretion to set the security amount at zero. From the story:
The amount is supposed to be set at what "the court considers proper" to cover any costs that might be suffered if that injunction is later found to have been incorrectly issued. But federal judges have wide discretion to set their bonds, and often refrain from doing so.
Samuel L. Bray, a Notre Dame law professor, said many judges do not order injunction bonds in cases where people are seeking to stop government actions that they claim are unconstitutional.
"It doesn't wind up getting used as much as it's supposed to," he said, "and it especially doesn't wind up getting used when people sue the federal government."
I'll defer to Prof. Bray on this point, but it seems to me that the common practice of waiving any security is contrary to the rule as written. After all, if the rule were intended to give judges the discretion to set the security amount at zero, might it have been drafted to make requiring security at all a matter of judicial discretion? That is, giving judges discretion to set an amount is not the same thing as giving judges the discretion as to whether to require security at all.
In any event, this may all be moot as it is not clear that this provision will survive the Senate. Among other things, it is not clear how this provision is sufficiently budget-related for a reconciliation bill, but we will see.
UPDATE: It's a good thing I said I'd defer to Prof. Bray, as he was ahead of me in flagging this provision, and notes that it does more than I suggest. Indeed, in a post at Divided Argument he suggests the provision is "underinclusive, overinclusive, and likely unconstitutional." Going forward, judges could effectively evade its requirements by setting the security required at $1. But since the provision is also retroactive, it could blow up all sorts of federal court injunctions on the books (as in school desegregation orders or antitrust remedies). And, most significantly, he suggests the provision "is probably unconstitutional as an attempt to interfere with the inherent power of a court of equity to enforce its decrees with contempt." Duly noted.
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Helicopter accidents, nasty feuds, and serial lies.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Not in my backyard! In which IJ goes full NIMBY: IJ client Dalton Boley used to enjoy camping with his three little boys in the 10-acre woods immediately behind his house. That is, until he learned that Alabama game wardens have been spying on them without warrants. On multiple occasions, these armed agents have trespassed onto the property, tampering with Dalton's trail cameras, while ignoring No Trespassing signs. So this week, IJ filed suit on Dalton's (and others') behalf, seeking to vindicate the Alabama Constitution's protections against unreasonable searches and the state's common-law right against trespasses. Click here to learn more. And click here for a special podcast episode explaining why this isn't a Fourth Amendment case.
This week on the Short Circuit podcast: Dirt biking around the nondelegation doctrine and unmooting free speech.
- We wish we could tell you if, in 2017, two FBI officials unlawfully leaked info from a classified FISA warrant to the press in order to besmirch the reputation of a Trump adviser. But the D.C. Circuit (over a dissent) says the suit claiming as much is time-barred.
- North Carolina helicopter pilot dies when his crop-dusting chopper collides with a steel wire strung between a tall pole and a distant tree. Negligence on the part of the farm's owners and the pesticide company that hired the crop-duster? District court: No. The risk posed by the wire wasn't reasonably foreseeable to the defendants, since they're farmers, not pilots. Fourth Circuit: Under North Carolina law, which governs here, summary judgment is basically never appropriate in negligence cases. To trial the case must go! (Your summarist must confess to not being entirely sure the court faithfully applied the Erie doctrine in placing such weight on North Carolina's fondness for jury trials, but … who knows? Not us!) Read More
The Fifth Circuit on Library Selection and Removal Decisions and First Amendment Rights of Listeners
The primary argument supporting a claimed First Amendment prohibition on public libraries' excluding books based on viewpoint was the First Amendment right of listeners. The majority in today's Little v. Llano County en banc decision held that this right doesn't give people an entitlement to have the government provide the materials in the library:
We hold that plaintiffs cannot invoke the right to receive information to challenge the library's removal of the challenged books.
First, plaintiffs would stretch the right far beyond its roots. As discussed, the [Supreme Court's right-to-receive-information precedents] teach that people have some right to receive information from others without government interference.
It is one thing to tell the government it cannot stop you from receiving a book. The First Amendment protects your right to do that. It is another thing for you to tell the government which books it must keep in the library. The First Amendment does not give you the right to demand that.
Second, if people can challenge which books libraries remove, they can challenge which books libraries buy. "[A] library just as surely denies a patron's right to 'receive information' by not purchasing a book in the first place as it does by pulling an existing book off the shelves." For good reason, no one in this litigation has ever defended that position.
Judge Temporarily Blocks DHS's Revocation of Harvard's Ability to Allow Foreign Students and Exchange Visitors to Get Visas
This is the matter I wrote about yesterday; the judge issued a temporary restraining order "to preserve the status quo pending a hearing" on Harvard's preliminary injunction motion. The hearing is set for next Thursday morning (May 29). You can read Harvard's arguments for the TRO here; I expect its arguments for a preliminary injunction will be similar. From the Introduction:
For more than 70 years, Harvard University … has been certified by the federal government to enroll international students under the F-1 visa program, and it has long been designated as an exchange visitor program sponsor to host J-1 nonimmigrants. Harvard has, over this time, developed programs and degrees tailored to its international students and invested millions to recruit the most talented such students and integrate them into all aspects of the Harvard community. Yesterday, the government abruptly revoked Harvard's certification to host F-1 and J-1 students without process or cause, to devastating effect for Harvard and more than 7,000 Harvard students and affiliates on F-1 and J-1 visas.
The government's revocation of Harvard's certification was not a product of the ordinary review process set out in detailed regulations that define the limited circumstances under which a school's certification may be revoked and put a premium on the due process rights of institutions and students. On its face, the revocation is part of the government's broader effort to retaliate against Harvard for its refusal to surrender its academic independence.
In response to the government's disagreement with the perceived viewpoints of Harvard, its faculty, and its students, the government issued a series of demands requiring Harvard to submit to government oversight of the faculty it hires, the students it admits, and the courses it teaches. When Harvard declined, the Administration unleashed the full power of the federal government, freezing billions in federal grants, proposing to eliminate Harvard's tax-exempt status, opening multiple federal investigations, and—most relevant here—threatening to terminate Harvard's participation in the F-1 and J-1 visa programs.
Yesterday, the government made good on that threat—and it did so via a letter that makes plain that DHS is not even pretending to follow its own regulations, either as to process or as to substance. Instead, DHS all but announced that the revocation is blatantly in retaliation for Harvard's exercise of its academic freedom.
Revoking Harvard's certification is unlawful many times over. It is a pillar of our constitutional system that the government cannot "invok[e] legal sanctions and other means of coercion" to police private speech, especially when the government's treatment is animated by viewpoint discrimination. NRA v. Vullo (2024) (quoting Bantam Books, Inc. v. Sullivan (1963)). Prohibitions on viewpoint discrimination and on retaliation for protected speech are at the core of the First Amendment's protections. And especially so here, because "academic freedom" is "a special concern of the First Amendment." Keyishian v. Bd. of Regents (1967). The government's effort to punish the University for its refusal to surrender its academic independence and for its perceived viewpoint is a patent violation of the First Amendment.
Judge Burroughs Grants TRO In Favor Of Harvard Within Hours Of Filing
Did she even read the 72-page complaint, 59-page motion for a TRO, and two-dozen exhibits?
On the morning of Friday, May 23, Harvard filed a 72-page complaint and a 59-page motion for a temporary restraining order against the Department of Homeland Security and other officials. There were nearly thirty exhibits.
Shortly after the case was filed, the case was assigned to Judge Allison D. Burroughs. (She presided over the Harvard affirmative action trial). And almost immediately she granted an Ex Parte TRO.
Accordingly, Defendants, their agents, and anyone acting in concert or participation with Defendants are hereby enjoined from: A. Implementing, instituting, maintaining, or giving effect to the revocation of Plaintiff's SEVP certification; B. Giving any force or effect to the Department of Homeland Security's May 22, 2025 Revocation Notice.
ECF does not have time stamps, but the case could not have been on her docket for more than a few hours.
I have a serious question: did Judge Burroughs even read the 72-page complaint and 59-page motion for a TRO? What about all of the pages of exhibits? Did she have any time to reflect upon it or consider countervailing arguments?
I think of Judge Hendrix. The ACLU expected him to resolve a complex case in the span of hours. The judge, prudently, said that it was not possible to move that quickly. But the Supreme Court in A.A.R.P indicated that lower court judges should just reflexively enter ex parte TROs to preserve the status quo. This mode of judging is reckless, but the Supreme Court has given it a green light.
"Statement on Academic Freedom and Harvard by Right-of-Center Scholars, Lawyers, and Former Government Officials"
Published in today's Chronicle of Higher Education (registration required there, reprinted here with permission):
We write as generally right-of-center lawyers, scholars, and former government officials to affirm the central importance of academic freedom and to speak out against the Trump Administration's attempts to restrict the speech of Harvard and other universities. We see plenty of problems with the academy, including those related to antisemitism. But having the federal government control the viewpoints that are taught and tolerated at universities is not the solution. Under the First Amendment, such decisions are to be left to universities, not commandeered by government officials, even when the government is attaching conditions to grants and other subsidies. As Chief Justice William Rehnquist wrote in Rust v. Sullivan (1991):
The university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.
The demands the Administration has made of Harvard University are especially troubling. The requirement that Harvard "audit those programs and departments that most fuel antisemitic harassment or reflect ideological capture" expressly targets the expression of disfavored viewpoints. We do not share those viewpoints ourselves, but the First Amendment protects all viewpoints, whether they are anti-Israel or pro-Israel or anti-Palestinian or pro-Palestinian, or even when they supposedly "fuel" antisemitism, racism, sexism, or other such beliefs. Title VI hostile educational environmental rules may permissibly ban certain kinds of harassment based on race or national origin. But Title VI does not, and cannot, require that universities generally suppress the expression of offensive views or ideologies where they fall short of discriminatory harassment.
If the demand that Harvard "immediately shutter all diversity, equity, and inclusion (DEI) programs, offices, committees, positions, and initiatives" were confined to programs that actually engage in illegal discrimination, it would likely be permissible (if the proper procedural requirements were followed). But "DEI … programs … and initiatives" seems to embrace programs that merely aim to teach "diversity, equity, and inclusion" viewpoints. Again, whether we support such programs or not, they are protected by the First Amendment against federal government attempts to suppress them because of their viewpoint.
The Supreme Court Hasn't Resolved Whether Libraries May Remove Books Based on Viewpoint
The Fifth Circuit decision holding that libraries may remove books based on the books' viewpoint may lead some to ask: Hasn't the Court resolved this before, in Bd. of Ed. v. Pico (1982)?
[1.] It turns out that it hasn't. Four Justices (led by Justice Brennan) took the view that "local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books." Four other Justices (led by Chief Justice Burger) expressly rejected this view (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans). And the swing vote, Justice White, expressly refused to opine on this issue:
The plurality … issue[s] a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point….
[This case] poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here.
Justice White concurred with Justice Brennan's opinion solely as to the propriety of remanding for a trial on whether the school board removed the books based on viewpoint or instead based on their being "in essence, vulgar" (which even the challengers "implicitly conceded" would be a permissible basis for removing the books, at least if they "were pervasively vulgar"). But he disagreed with Justice Brennan on the consequence of any such finding:
- Justice Brennan's view was that, if there was a finding that the removals were based on viewpoint, that would mean the removals violated the First Amendment.
- Justice White's view as that, if there was such a finding, "there will be time enough to address the First Amendment issues that may then be presented" (which echoes his conclusion that he saw "no necessity for" resolving those questions in his opinion).
So, as a Fifth Circuit en banc held in 1982, "the Supreme Court [in Pico] decided neither the extent nor, indeed, the existence vel non [i.e., existence or not], of First Amendment implications in a school book removal case.").
Fifth Circuit: Public Libraries May Select or Remove Books Based on Viewpoint
Such removal doesn't violate the First Amendment, the Court holds by a 10-7 vote, because readers don't have a "right to receive information" via government-run libraries.
From today's majority en banc opinion by Judge Kyle Duncan in Little v. Llano County; I hope to blog more about the case, including the dissents, later today:
We consider whether someone may challenge a public library's removal of books as violating the Free Speech Clause.
Patrons of a county library in Texas sued the librarian and other officials, alleging they removed 17 books because of their treatment of racial and sexual themes. The district court ruled that defendants abridged plaintiffs' "right to receive information" under the Free Speech Clause and ordered the books returned to the shelves. On appeal, a divided panel of our court affirmed in part. We granted en banc rehearing.
We now reverse the preliminary injunction and render judgment dismissing the Free Speech claims. We do so for two separate reasons.
First, plaintiffs cannot invoke a right to receive information to challenge a library's removal of books. Yes, Supreme Court precedent sometimes protects one's right to receive someone else's speech. But plaintiffs would transform that precedent into a brave new right to receive information from the government in the form of taxpayer-funded library books. The First Amendment acknowledges no such right.
That is a relief, because trying to apply it would be a nightmare. How would judges decide when removing a book is forbidden? No one in this case—not plaintiffs, nor the district court, nor the panel—can agree on a standard. May a library remove a book because it dislikes its ideas? Because it finds the book vulgar? Sexist? Inaccurate? Outdated? Poorly written? Heaven knows. The panel majority itself disagreed over whether half of the 17 books could be removed. For their part, plaintiffs took the baffling view that libraries cannot even remove books that espouse racism.
Washington Court Holds (2-1) Prosecutors Didn't Improperly "Play[] into Religious or Cultural Prejudices" in Trial of Iraqi Immigrant Husband for Murdering Wife
Some short excerpts from yesterday's long opinion in State v. Darraji (Wash. App.), written by Judge Tracy Staab and joined by Chief Judge Robert Lawrence-Berrey:
Prosecutors are prohibited from injecting improper bias into a trial by playing into religious or cultural prejudices. But not all references to religion or culture play into improper bias. When relevant and grounded in the evidence, it is not improper for a prosecutor to present testimony or argument related to religion and culture. Indeed, such evidence may be necessary to prove a fact at issue, such as motive. That is what happened in this case.
The State charged Yasir Darraji with second degree felony murder …. The State's evidence was that Yasir, an Iraqi immigrant, was upset that his former wife, Ibtihal Darraji, had changed her behavior and beliefs in ways that did not conform to Iraqi culture. Yasir himself framed his concerns about Ibtihal in terms of his Iraqi culture and Islamic beliefs.
After police found Ibtihal's murdered body inside a burning vehicle, the investigation focused on Yasir, largely due to evidence of his admitted disapproval of Ibtihal's behavior, which he described as culturally and religiously motivated. Given this specific factual circumstance, Yasir's religious beliefs and cultural affiliation were relevant to the State's case. It therefore was not improper for the State to present evidence and arguments pertaining to religion and culture to the jury….
In February 2020, the State charged Yasir with second degree murder against an intimate partner, committed during the course of a second degree assault by strangulation….
At trial, the State's theory was that Ibtihal's rejection of traditional Iraqi culture and Islamic beliefs, and her embrace of American culture and Christianity, was the source of conflict between the former spouses. Their fighting and insults escalated until Yasir strangled Ibtihal to death in her car, drove the vehicle to a different location, and lit the car on fire with Ibtihal's body inside.
Today in Supreme Court History: May 23, 1991
5/23/1991: Rust v. Sullivan is decided.
What Does AI Think Will Happen In The Birthright Citizenship Cases?
A guest post from Professor Seth Chandler.
I am happy to share this guest post from Seth Chandler, the Foundation Professor of Law at the University of Houston Law Center. I think the AI gets some things quite right and some things quite wrong. Then again, my own track record of predictions is not great, so perhaps GPT will soon beat me!
Trump v. CASA in an AI Crucible: An Experiment in Simulating Supreme Court Opinions
Last week, the Supreme Court heard arguments in Trump v. CASA, Inc., a case scrutinizing "universal injunctions" in the context of President Trump's controversial executive order on birthright citizenship. This prompted me to conduct a novel experiment: could a large language model, given only the argument transcript and its background knowledge, realistically simulate the forthcoming Supreme Court opinions? I tasked an AI with predicting each justice's vote, drafting abridged versions of the various opinions, and even considering the strategic interplay between justices—and the output was surprisingly coherent.
Here's the outcome as reported by a simulated Linda Greenhouse (leading American legal journalist).
In a sharply divided 6-3 decision, the Supreme Court significantly curtailed the power of federal courts to issue "universal" or "nationwide" injunctions, a ruling with immediate and far-reaching consequences for a controversial executive order seeking to limit birthright citizenship. While stopping short, for now, of deciding the ultimate constitutionality of President Trump's order, the majority opinion, authored by Justice Amy Coney Barrett, effectively allows the administration to implement its policy for many, even as it keeps protections in place for the specific plaintiffs involved in the lawsuits.
The ruling, handed down in Trump v. CASA, Inc., represents a major victory for the executive branch in its efforts to rein in what it has long decried as judicial overreach by individual district judges halting federal policies across the entire country. Justice Barrett, joined by Chief Justice John Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh, grounded the decision in Article III's "case-or-controversy" requirement, asserting that judicial relief must generally be confined to redressing the specific injuries of the plaintiffs before the court, not every person potentially affected by a policy.
The Court vacated the nationwide injunctions previously entered by three lower courts, which had barred enforcement of the executive order that aims to deny U.S. citizenship to children born in the U.S. if either parent is in the country unlawfully or on a temporary visa. The majority found that such broad relief was "legally and historically dubious" and an abuse of discretion, arguing that traditional equitable remedies authorized by the Judiciary Act of 1789 did not encompass injunctions benefiting non-parties in ordinary cases. However, the Court left a sliver of possibility for universal relief in "rare cases" where it is "necessary to fully redress a plaintiff's own injury," a standard it found was not met in this instance.
While the majority opinion recognized "serious questions about the executive order's constitutionality under the Fourteenth Amendment's Citizenship Clause," it deliberately sidestepped a definitive ruling on that "momentous question" at this preliminary stage. Instead, the focus remained narrowly on the scope of injunctive power. Justice Barrett emphasized that the decision was not a final adjudication of the merits and that the Court was prepared to address the underlying constitutional issue "expeditiously".
The decision effectively means the executive order can be implemented against newborns whose families are not part of the current lawsuits or residents of the plaintiff states (like New Jersey and Washington), for whom protections remain. This outcome, the majority acknowledged, means "some number of U.S.-born children will be denied recognition as citizens in the short term".
"Harvard University Loses Student and Exchange Visitor Program Certification for Pro-Terrorist Conduct"
"This means Harvard can no longer enroll foreign students and existing foreign students must transfer or lose their legal status."
So the Department of Homeland Security announced today. A few tentative thoughts; if it turns out that I have erred in my understanding of the facts or of the program, I'll update them as necessary:
[1.] Unsurprisingly, student and exchange visitor visas are issued only to people who can show that they really are students and exchange visitors, and at recognized institutions that fulfill the visa program's goals. There are therefore procedures both for certifying and decertifying educational institutions as eligible for the Student and Exchange Visitor Program.
[2.] Equally unsurprisingly, institutions have to provide various information about students and the students' conduct. The DHS letter claims that:
On April 16, 2025, Secretary Noem demanded Harvard provide information about the criminality and misconduct of foreign students on its campus. Secretary Noem warned refusal to comply with this lawful order would result in SEVP termination….
Harvard University brazenly refused to provide the required information requested and ignored a follow up request from the Department's Office of General Council. Secretary Noem is following through on her promise to protect students and prohibit terrorist sympathizers from receiving benefits from the U.S. government.
I can't speak to what Harvard's alleged failures were, or whether they are sufficient under the statute to justify decertifying it.
[3.] At the same time, as with other broadly available benefits, the government generally can't deny them based on the viewpoints that Harvard expresses, declines to express, or tolerates and indirectly supports. And the letter suggests that the government's actions stem at least in part from such viewpoints. Consider, for instance, the list of "Facts about Harvard's toxic campus climate":
Supreme Court Stays Reinstatement of Fired NLRB and MSPB Members
"Because the Constitution vests the executive power in the President, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents."
From today's majority opinion in Trump v. Wilcox (see also Josh's post below):
The Government has applied for a stay of orders from the District Court for the District of Columbia enjoining the President's removal of a member of the National Labor Relations Board (NLRB) and a member of the Merit Systems Protection Board (MSPB), respectively. The President is prohibited by statute from removing these officers except for cause, and no qualifying cause was given.
The application for stay presented to The Chief Justice and by him referred to the Court is granted. Because the Constitution vests the executive power in the President, see Art. II, §1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents, see Seila Law LLC v. Consumer Financial Protection Bureau (2020). The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power. But we do not ultimately decide in this posture whether the NLRB or MSPB falls within such a recognized exception; that question is better left for resolution after full briefing and argument. The stay also reflects our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty. A stay is appropriate to avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation.
Finally, respondents Gwynne Wilcox and Cathy Harris contend that arguments in this case necessarily implicate the constitutionality of for-cause removal protections for members of the Federal Reserve's Board of Governors or other members of the Federal Open Market Committee. We disagree. The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States. See Seila Law footnote 8.
And an excerpt from the considerably longer dissent by Justice Kagan, joined by Justices Sotomayo and Jackson:
For 90 years, Humphrey's Executor v. United States (1935), has stood as a precedent of this Court. And not just any precedent. Humphrey's undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.
The two such agencies involved in this application are the National Labor Relations Board (NLRB) and Merit Systems Protection Board (MSPB). But there are many others—among them, the Federal Communications Commission (FCC), Federal Trade Commission (FTC), and Federal Reserve Board. Congress created them all, though at different times, out of one basic vision. It thought that in certain spheres of government, a group of knowledgeable people from both parties—none of whom a President could remove without cause—would make decisions likely to advance the long-term public good. And that congressional judgment, Humphrey's makes clear, creates no conflict with the Constitution. Rejecting a claim that the removal restriction enacted for the FTC interferes with "the executive power," the Humphrey's Court held that Congress has authority, in creating such "quasi-legislative or quasi-judicial" bodies, to "forbid their [members'] removal except for cause." Indeed, that conclusion "cannot well be doubted."
Justice Kagan Tells Us What She Really Thinks About President Trump
The Court "hand[s] the President the most unitary, meaning also the most subservient, administration since Herbert Hoover (and maybe ever)."
The briefing in Trump v. Wilcox concluded on April 16. The case has been pending for nearly a month. Who knows what sorts of negotiations took place to get to this faux-Solomonic ruling. Justice Kagan's eight-page dissent, however, did not take a month to write. She could have probably cranked this out in an afternoon.
In this dissent, Kagan tell us what she really thinks about President Trump. A few excerpts stand out.
First, she issues a not-so-subtle rebuke that Trump must "follow existing precedent."
It should go without saying that the President must likewise follow existing precedent, however strong he thinks the arguments against it—unless and until he convinces us to reject what we previously held. Yet here the President fired the NLRB and MSPB Commissioners in the teeth of Humphrey's, betting that this Court would acquiesce. And the majority today obliges—without so much as mentioning Humphrey's.
So much for departmentalism. Indeed, Trump's own Solicitor General acceded to the myth of judicial supremacy. Then again, Humphrey's Executor concerned the FTC. As far as I can recall, there is no Supreme Court precedent on point concerning the NLRB and MSPB. Indeed, there is an argument that the FTC as it existed in the 1930s is quite different than the FTC of today. So Trump didn't violate any existing Supreme Court precedent. And really, the only way for the President to challenge a precedent is to take some action inconsistent with the precedent.
Second, Kagan asks "Why is this President different from all other Presidents?"
And as to the President's interest in firing Wilcox and Harris, the majority gives it more weight than it has borne in almost a century. Between Humphrey's and now, 14 different Presidents have lived with Congress's restrictions on firing members of independent agencies. No doubt many would have preferred it otherwise.
Kagan would probably think that Trump is the wicked son.
Third, Kagan engages in some word play. She says the Court's decision to uphold the removal makes Trump's administration more "subservient."
But can it really be said, after all this time, that the President has a crying need to discharge independent agency members right away—before this Court (surely next Term) decides the fate of Humphrey's on the merits? The impatience to get on with things— to now hand the President the most unitary, meaning also the most subservient, administration since Herbert Hoover (and maybe ever)—must reveal how that eventual decision will go.
But the import here is greater. Kagan is calling out Trump's administration as a bunch of toadies and lackeys. Indeed, I've written that Roberts cannot stomach overruling Humphrey's Executor if it would mean giving Trump more power.
We will have to just sit and wait until June 2026 to figure out the fate of Humphrey's Executor. Yawn.
On the plus-side, my workload for the next few weeks got a tad lighter. I was planing to edit St. Isidore's and Wilcox for our casebook supplement, and maybe even for inclusion in the Fifth Edition of our casebook (forthcoming in November 2025). Now, neither case warrants inclusion. I've checked my records, and usually by Memorial Day, there is at least one case already decided that warrants placement in the supplement. But as of today, I have nothing. This term will remain unsatisfying, at least till the end.
Roberts Swings To The Left In St. Isidore, To The Right In Wilcox
In the span of a single day, Chief Justice Roberts continues his attempts at moderation for the sake of moderation without any actual reasoning.
At One First Street, life comes at you fast. On May 22 at 10:00 a.m., the Court 4-4'd in St. Isidore v. Drummond, letting the Oklahoma Supreme Court's decision stand. I wrote:
Before the case was even argued, I made a crude prediction to several reporters that the Chief would take the easy-out, and just vote to 4-4 affirm. There would be no opinion, and the Court could focus on more important issues. The children of Oklahoma really didn't matter.
What was that "more important issue"? Trump v. Wilcox. After 5:00 p.m. on May 22, after the markets closed, right before a holiday weekend, the Court issued a two-page per curiam opinion in the removal power case. (I'm sure Roberts was humming the Jimmy Buffet song when planning the release time.) The Court, by an (ostensible) 6-3 vote, stayed the lower court rulings that reinstated a member of the NLRB and a member of the MSPB. The actual legal analysis can be compressed in a single sentence:
The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.
Nowhere does the Court mention Humphrey's Executor. It's like Voldemort! I'm not at all convinced Roberts actually overrules Humphrey's Executor when push comes to shove. But he at least signals Wilcox will lose.
Then, the Court includes a bizarre throwaway line about the Federal Reserve, which is in no way even relevant to the parties in this case.
The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.
Why is this argument even in here? Roberts is doing damage control. I agree with Justice Kagan's dissent:
Because one way of making new law on the emergency docket (the deprecation of Humphrey's) turns out to require yet another (the creation of a bespoke Federal Reserve exception). If the idea is to reassure the markets, a simpler—and more judicial—approach would have been to deny the President's application for a stay on the continued authority of Humphrey's.
John Roberts is not a judge. He is a mediator. He issues a conservative ruling against the MSPB and the NLRB (which frankly no one cares about) but issues a liberal advisory opinion in favor of the Fed (which everyone cares about).
At some point, the five conservatives should stop joining these missives. Just rule on the case as you think best, and let Roberts spin his wheels. These sorts of rulings do nothing to instill confidence in the Court as an actual legal body. No one actually believes that Roberts is behaving as a judge when he issues rulings like this. And I say this as someone who thinks Humphrey's Executor should have been overruled decades ago.
Now, the issue will linger in the D.C. courts for some time, and come to the Supreme Court in a cert petition next term.
My essay about the Chief Justice keeps writing itself.
