The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

Environmental Protection Agency Administrator Lee Zeldin announced that the agency will consider rescinding the so-called endangerment finding that triggers the regulation of greenhouse gases under the Clean Air Act. In a prior post, I explained why this is a fool's errand, and elaborated on some of the relevant points in this webinar.

My prior comments assumed that the agency was planning to do what Zeldin and others had publicly suggested: Rescind the primary finding that the emission of greenhouse gases "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." Given the precautionary nature of this language, taking this course would have required the Agency to disavow virtually everything it has said in the past 35 years about the potential consequences of climate change, among other things. It would be a morass.

Yet if the EPA's primary goal is to rescind greenhouse gas regulations imposed on stationary sources, and prevent the adoption of new such regulations, it has an alternative approach--an approach that is more of a targeted bank shot than a frontal assault on the endangerment determination and, judging from this E&E News story, it is a potential approach that is getting more attention.

The initial endangerment finding was made under Section 202 of the Clean Air Act, which governs motor vehicles. Under this provision, the EPA is obligated to adopt emission standards for pollutants about which such a finding is made. Other provisions of the Act have similar language, but they are not all the same, and the differences in the language found in different opinions could matter.

Section 231, governing aircraft, has identical endangerment language to Section 202. Section 111, governing stationary sources (including power plants), on the other hand, has slightly different language. Under 111, the EPA is required to adopt regulations for a category of sources if the category:

causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.

Here, unlike under Section 202 and 231, it is not enough that the emissions in question "contribute" to potentially harmful pollution. The emissions, from the source category in question, must contribute significantly. In other words, even taking endangerment as a given, there are some sources of greenhouse gas emissions that need not be regulated under Section 111 because their contributions to the accumulation of greenhouse gases in the atmosphere is not significant enough to justify action.

What this means is that the EPA could seek to disarm the Clean Air Act's regulatory threat to stationary sources by defining what it means to contribute "significantly" so as to exclude most (if not all) such source categories as those that must be regulated. This is not a sure-fire strategy, as it may be difficult to argue that power plants in particular are not a "significant" contributor to climate change. Power plants are responsible for approximately 30 percent of domestic greenhouse gas emissions. By contrast, most other source categories are far smaller, and would be easier to exclude, particularly if the EPA emphasizes that the significance of a source category's contribution to climate change must be evaluated on a global basis (and the fact that the United States produces a declining share of global greenhouse gas emissions).

The virtue of this approach for EPA is that it does not require contesting basic claims about climate science or reversing the agency's prior interpretation of that science or the meaning of Section 2020. Yet there are risks. One in particular is that it would require the agency to reverse course on what constitutes a "significant" contribution of greenhouse gases. Back in 2021, the Trump EPA said this applied to any source responsible for more than three percent of emissions. The EPA is no longer eligible to receive Chevron deference on the meaning of this statutory language, and its change in position will reduce the amount of respect its new interpretation receives.

We should soon see whether the EPA is going to adopt this more targeted approach to cutting back EPA regulation of greenhouse gases, or whether it will insist on running headlong into the maw of the original endangerment finding. The agency's choice should reveal quite a bit about the extent to which it is prioritizing meaningful and sustainable deregulatory initiatives over blunderbuss, base-pleasing initiatives.

From today's decision by Judge Patrick Schiltz (D. Minn.) in Miller v. Macone:

This matter is before the Court on plaintiff's motion to lift the filing restriction, which, absent court permission, restricts plaintiff from filing anything but a single notice of appeal.

Plaintiff's motion is denied, as plaintiff's voluminous flow of frivolous filings shows no sign of abating. For example, the packet of materials plaintiff recently submitted included a "Motion to Protect Global Media Defenders of Truth and to Compel the Transparent Identification of All Public Satanic Allegiances" and an "Emergency Motion to Halt Unjust Wars, Defund Global Conflict, and Protect the Human Race under Natural Law and Spiritual Covenant." The Court will not permit plaintiff to consume court resources with such bizarre and nonsensical filings.

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I blogged earlier this week about AI hallucinations in court filings by prominent law firms, as well as an incorrect citation in an expert's declaration stemming a lawyer's use of AI to try to format the citation. But I thought I'd blog a bit more about AI hallucinations in court filings, just to show how pervasive the problem is: I'm seeing court decisions about this every few days. And those decisions are likely just the tip of the iceberg, since many hallucinations won't be noted in court decisions, and the great majority of court decisions are state trial court decisions that don't show up on Westlaw.

Here's an example: In Judge Margaret Strickland's decision last week in Dehghani v. Castro (D.N.M.), a filing "cited to numerous cases that Respondents were 'unable to locate.'" When asked about this by the Magistrate Judge (Damian Martinez), the petitioner's lawyer explained "that he 'did not have the time to devote to the project'" and had used "a company called LAWCLERK" to find a contract attorney who would write the filing.

Mr. Millan [the petitioner's lawyer] further advised that he "did not read the caselaw or verify the cases used in support of the propositions [in the Brief], trusting that the licensed lawyer from Lawclerk would perform her work in an ethical and competent manner." …

Mr. Millan confirmed that the cases listed by the Court in its third Order to Show Cause do not exist. Specifically, Mr. Millan stated that when his staff asked Ms. Lewis [the contract lawyer] for PDF copies of the cases she used in the purchased response, she provided seven cases. A review of the cases provided revealed that the case names and citations did not match those listed in Petitioner's Response to the second Order to Show Cause.

Although Petitioner's response states that the case citations are corrected, in the March 26, 2025 hearing, Mr. Millan stated the cases he listed as corrected citations were cases that he believed most closely reflected the non-existent cases cited in the Petitioner's March 7, 2025 Response. Mr. Millan's response further explains that the remaining thirteen cases cited in his purchased response to the second Order to Show Cause "do not support the propositions stated in the quoted language and are not from the cited cases."

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5/16/1918: The Sedition Act of 1918 is enacted. The Supreme Court upheld prosecutions brought under this law in Schenck, Debs, and Abrams.

Justice Sotomayor is pretty predictable. She walks into oral argument with a set of questions she wants to ask, and she will keep asking them, whether or not she gets the answer she wants. I imagine advocates get frustated, but that is part of the game.

During the birthright citizenship cases, Justice Sotomayor asked the same line of questions several times--apparently she thought it was clever. To illustrate the limits of the government's position concerning nationwide injunction, she would change the hypo: what would happen if the government sought to confiscate every gun in America; would every gunowner have to bring an individual law suit to seek relief?

Page 13: JUSTICE SOTOMAYOR: --so, when a new president orders that because there's so much gun violence going on in the country and he comes in and he says, I have the right to take away the guns from everyone, then people --and he sends out the military to seize everyone's guns --we and the courts have to sit back and wait until every named plaintiff gets --or every plaintiff whose gun is taken comes into court?

Page 41: JUSTICE SOTOMAYOR: If we're afraid that this is or even have a thought that this is unlawful executive action, that it is Congress who decides citizenship, not the executive, if we believe, some of us were to believe that, why should we permit those countless others to be subject to what we think is an unlawful executive action, as unlawful as an executive taking the guns away from every citizen?

Page 44: JUSTICE SOTOMAYOR: --it got rejected repeatedly. We can go into the history of citizenship, but I still go back to my question. You claim that there is absolutely no constitutional way to stop, put this aside, to stop a president from an unconstitutional act, a clearly, indisputably unconstitutional act, taking every gun from every citizen, we couldn't stop that.

Does Justice Sotomayor really want to know what the remedy would be if the government confiscated everyone's gun? This remedy would not involve Rule 23.

Nearly 250 years ago, King George III and General Gage tried to confiscate the firearms from the Americans. What happened next? Lexington and Concord, the Shot Heard Round the World. As best as I can recall, the patriots did not go to a Court of Chancery to seek an equitable remedy.

We have a similar story in Texas history. During the Texas Revolution, the Mexican Army demanded that the Texians in the City of Gonzales surrender their cannon. What did the Texians say? Come and Take It! The remedy here was not equitable; it was belligerent. The Texians did not reply with a canon of construction; they replied with a cannon of destruction. This was the Lexington of Texas. And the Battle of Gonzales led to the Battle of the Alamo, which led to Texas Independence. Sensing a pattern of what happens when the government tries to disarm the people?

I took this photo during my visit to the museum in Gonzales.

I'm reminded of Judge Kozinski's opinion in Silviera v. Lockyer:

The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten.

There is an important lesson to be learned here. Courts cannot solve all problems. Courts should not solve all problems. Courts will not solve all problems.

During oral argument in the birthright citizenship cases, Justices Kagan and Barrett seemed very troubled by Solicitor General Sauer's description of the Department of Justice's "general" policy concerning circuit precedent. It seems pretty clear that the Solicitor General was talking about DOJ's policy concerning intracircuit nonacquiescence. What is intracircuit nonacquiescence, you might ask? I discuss this topic in my 2019 article in the Georgetown Law Journal, The Irrepressible Myth of Cooper v. Aaron:

Despite these criticisms, there have been efforts to extend the principle of judicial universality to the lower courts—what oxymoronically might be called "inferior universality." At various times, the U.S. government has asserted a policy known as "intracircuit nonacquiescence." Under this controversial doctrine, the Executive Branch directs agencies to disregard certain unfavorable circuit precedent, even if their decisions will ultimately be appealed in that circuit.183 The courts have uniformly rejected this practice for flouting circuit law.184

183. See, e.g., Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 YALE L.J. 679, 687 (1989) (defining "intracircuit nonacquiescence" as a circumstance "when the relevant venue provisions establish that [judicial] review will be to a particular court of appeals and [an administrative] agency nonetheless refuses to follow, in its administrative proceedings, the case law of that court"); Note, Collateral Estoppel and Nonacquiescence: Precluding Government Relitigation in the Pursuit of Litigant Equality, 99 HARV. L. REV. 847 (1986).

184. See Estreicher & Revesz, supra note 183, at 699–704; see also Collateral Estoppel and Nonacquiescence, supra note 183, at 856–57.

Yet, despite pushback from the courts, intracircuit non-acquiescence remains the Department of Justice's policy. And I can prove it. In March 25, 2010, the Office of Legal Counsel issued an opinion concerning the Obama Administration's decision to no longer defend the Defense of Marriage Act. Who was the Solicitor General at the time? Elena Kagan. This topic was actually a big deal at her confirmation hearing: DOJ filed a petition for cert before judgment in Windsor, even though the government agreed with the ruling declaring DOMA unconstitutional.

OLC Head David Barron, now a First Circuit Judge, stated the issue plainly:

As explained below, this conclusion accords with the longstanding position of this Office, and the consistent, publicly declared position of the Executive Branch, that an executive agency may "nonacquiesce" in a court of appeals ruling—a practice whereby the agency, despite an adverse court of appeals decision, continues to act in accordance with its own contrary interpretation of the law with respect to persons who were not parties to the judgment. The Executive Branch's traditional view that nonacquiescence is permissible includes even "intracircuit" nonacquiescence, or nonacquiescence in situations where the adversely affected persons could challenge the administrative decision in a case that would be governed by the law established by the relevant adverse court of appeals decision.5

FN5: 5 See, e.g., Federal Agency Compliance Act: Hearing on H.R. 1544 Before the Sub-comm. on Commercial and Administrative Law of the H. Comm. on the Judiciary, 105th Cong. 43 (1997) (statement of Stephen W. Preston, Deputy Assistant Attorney General, Civil Division) ("Preston Testimony"); see generally Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679, 692–718 (1989) (describing agency practice).

There you have it. DOJ has a longstanding practice of nonacquiescence. Consider a classic example. The Second Circuit issues a ruling concerning the Social Security Act. Even though that judgment only binds a single claimant, that precedent may affect thousands of individual claimants. The executive branch will chose to either seek en banc, or certiorari. In the process, the executive will not acquiesce to the circuit precedent, and continue applying the earlier precedent to the thousands of other claimants. This has long been DOJ's policy. Solicitor General Rex Lee wrote an influential opinion on this topic.

This issue arose again during the Obama Administration. In the run-up to King v. Burwell, the Department of Justice stated that it would limit any adverse D.C. Circuit precedent to the named parties.

I discussed this litigation in National Review:

Second, in March of 2014, the administration repeated its claim that a single federal court could not stop Obamacare. The week before oral arguments were to be held in Halbig v. Burwell in the D.C. Circuit Court of Appeals, the Justice Department submitted a letter informing the judges that they were constitutionally prohibited from denying subsidies to millions of Americans. In short, the government argued that people who were not parties to the suit had a due-process right to be heard before their subsidies were extinguished — as if Obamacare were some sort of constitutionally protected property interest!

[Mike Carvin representing] The plaintiffs shot back, incredulous that the government had an "apparent intention to lawlessly flout this Court's binding order." In August, the D.C. Circuit ruled for the plaintiffs, and sent the case back to the lower court with instructions to "vacate the IRS Rule" in its entirety — not merely with respect to the named plaintiffs. Again, the Justice Department had questioned the power of a federal court to put the kibosh on an illegal federal action, and the judges emphatically rejected this executive hubris.

The DOJ letter stated the issue plainly: in the absence of class certification, the relief will be limited to the named parties.

We respectfully submit a supplemental authority that bears on plaintiffs' assertion, made for the first time in reply, that "[i]t does not matter that this 'is not a class action'" and that the Court could extinguish the tax-credit claims of individuals who live in "states like Texas." Pl. Reply 26. In Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), and prior decisions, the Supreme Court held that the protections for non-parties are grounded in Due Process. Even when (unlike here) a suit is a class action, "before an absent class member's right of action [is] extinguishable due process require[s] that the member 'receive notice plus an opportunity to be heard and participate in the litigation'" and "'an opportunity to remove himself from the class.'" Id. at 848 (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985)). Moreover, there is a "constitutional requirement" that a "'named plaintiff at all times adequately represent the interests of the absent class members.'" Id. at 848 n.24 (quoting Shutts, 472 U.S. at 812). Plaintiffs did not seek to represent a class, and their suit could not satisfy these constitutional requirements. For millions of people across the country, premium tax credits are not burdens to be avoided but federal benefits that they need to afford health insurance.

Sounds familiar?

Will Baude defended this strategy in a then-controversial New York Times Op-Ed:

But luckily the Constitution supplies a contingency plan, even if the administration doesn't know it yet: If the administration loses in King, it can announce that it is complying with the Supreme Court's judgment — but only with respect to the four plaintiffs who brought the suit.

This announcement would not defy a Supreme Court order, since the court has the formal power to order a remedy only for the four people actually before it. The administration would simply be refusing to extend the Supreme Court's reasoning to the millions of people who, like the plaintiffs, may be eligible for tax credits but, unlike the plaintiffs, did not sue. . . .

There are legal wrinkles, of course. Lower courts have sometimes claimed legal authority to invalidate a regulation (which is at issue in this case) even for parties who aren't before the court. And some employers might be able to bring lawsuits that would call their employees' subsidies into question. But the administration has already raised legal defenses to those potential problems in other lawsuits and could press those defenses here, too.

In hindsight, Baude was right and I was wrong. I criticized Baude in harsh terms. I was mistaken, and I apologize. In candor, I didn't quite understand the policy of non-acquisence at the time. Indeed, Baude's op-ed brought me down the path of learning about this topic--long before anyone ever thought about a nationwide injunction.

Back to the oral argument in the birthright cases.

There is much to say about the oral argument yesterday in Trump v. CASA. For now, I stand by my prediction from Tuesday:

A few colleagues said I was wrong, and that the merits issue was not adequately briefed. I'm not so concerned. The Court can always restore the case to the docket for the fall and order supplemental briefing. Injunctions are in place now, so time is not of the essence.

Justice Gorsuch asked General Sauer, point blank, "How do you suggest we reach this case on the merits expeditiously?" Gorsuch asked NJ Solicitor General Feigenbaum , "how would you get the merits of this case to us promptly." Gorsuch asked again, "I appreciate that. How do we get to the merits fast?"

I expect this case to be restored to the docket with argument in the fall. The Court could follow the timeline from Citizens United v. FEC. Recall that case was initially argued in March 2009. Malcolm Stewart (infamously) said that the government could ban books. That argument did not go over so well. The majority apparently was prepared to declare unconstitutional the campaign finance regulation. According to Jeffrey Toobin, Justice Souter and other prevailed on the Chief Justice to re-argue the case to ensure the issue was clearly presented. Roberts went along with this strategem. On the very last day of the October 2008 Term, the Court restored the case to the docket for reargument during a special September sitting:

This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: For the proper disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. 441b? The briefs, not to exceed 6,000 words, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, July 24, 2009. Amicus briefs, not to exceed 4,500 words, may be filed with the Clerk and served upon counsel to the parties by 2 p.m., Friday, July 31, 2009. Reply briefs, not to exceed 3,000 words, may be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Wednesday, August 19, 2009. The case is set for oral argument at 10 a.m., Wednesday, September 9, 2009.

September 9 was Justice Sotomayor's first day on the Supreme Court, and Elena Kagan's first oral argument, ever. Justice Kagan said the government could not ban books, but her explanation why did not make any sense. The case was decided on January 21, 2010, shortly before the State of the Union. And the rest is history.

I think the Court will follow a similar trajectory.

This evening I spoke to the Orlando Federalist Society Chapter, one of my favorite chapters, about a new topic. It was titled "President Trump Has To Obey The Constitution, But So Does Chief Justice Roberts." This speech is based on a forthcoming piece in Deseret Magazine. I've written quite a bit of late about the three Trump appointees. I thought it was time to focus on the Chief Justice as well.

I apologize for not writing about the birthright citizenship case yet. This speech took up much of my day. Stay tuned for more.

From an article Tuesday in The Times of Israel:

According to the reports in Hebrew media, Judge Ehud Kaplan of the Hadera Magistrate's Court reacted in astonishment to the police's argument, saying: "I thought I had seen everything in 30 years on the bench."

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The Declaration filed by a "Data Scientist at Anthropic" in Concord Music Group, Inc. v. Anthropic PBC includes this citation:

But the cited article doesn't seem to exist at that citation or at that URL, and Google found no other references to any article by that title.

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Today, Lawfare published my article "Trump's 'Emergencies' Are Pretexts for Undermining the Constitution." Here is an excerpt:

The Trump administration has exhibited a dangerous pattern of invoking spurious emergencies to undermine the Constitution, threatening liberty and circumventing Congress. This is most evident in the fields of immigration and trade policy. If not stopped, or at least curtailed, these policies could harm millions of people, imperil civil liberties, and compromise our constitutional system. Abuse of emergency powers is far from unique to the current administration. But Trump has taken this tendency to new heights…..

On immigration, Trump asserts vast emergency powers by claiming that illegal migration and drug smuggling amount to an "invasion," issuing an executive order to that effect. He further claims that this authorizes him to invoke the Alien Enemies Act (AEA)—a 1798 law that can be used only in the event of war, "invasion," or a "predatory incursion" by a foreign government. Trump's invocation of the AEA is—so far—limited to alleged members of the Venezuelan drug gang Tren de Aragua (TdA). But similar reasoning could be used to target migrants from almost any country that is a source of illegal migration or drugs….

Trump has also declared an "emergency" at the southern border, despite the fact that illegal entries have been low since his term started. The "emergency" and the "invasion" executive orders have been invoked to shut down most legal migration across the southern border, inflicting grave harm on immigrants fleeing oppression (many thousands of whom will be denied the opportunity to seek asylum).

These measures set the stage for the administration's dangerous—and illegal—uses of the AEA. Trump's "invasion" theory goes against extensive evidence that, under the Constitution and the AEA itself, "invasion" means an "operation of war" (as James Madison put it), not mere illegal border crossing or drug smuggling. Before Trump, the AEA had been used only three times, all during major wars against foreign powers: the War of 1812, World War I, and World War II. As several courts have now ruled, a "predatory incursion" (which is an alternative ground for invoking the AEA) is also a type of military attack. If illegal migration and drug smuggling qualify as "invasion," then the U.S. must necessarily be in a state of "invasion" at all times, since these phenomena are ubiquitous….

Trump has used the AEA as justification for deporting people to imprisonment in El Salvador without due process (and, in many cases, in error)—and then claiming that they cannot be returned on the grounds that they are in the custody of a foreign power. This is a blatant violation of the Fifth Amendment, which requires "due process of law" before anyone can be deprived of "liberty…."

With his "Liberation Day" executive order, Trump has imposed massive tariffs on goods from almost every nation in the world, triggering the biggest trade war since the Great Depression. This order relied on the 1977 International Emergency Economic Powers Act (IEEPA), which can be invoked only in the event of an "emergency" arising from an "unusual and extraordinary" threat from abroad. Trump's invocation of emergency powers to impose the "Liberation Day" tariffs suggests that the president can impose a tariff of any amount, on goods from any country, for any reason. If long-standing (and generally harmless) trade deficits that supposedly justify these measures qualify as an "emergency" and an "extraordinary and unusual threat," the same can be said of virtually anything. Indeed, Trump now threatens to use IEEPA to impose 100 percent tariffs on foreign-produced movies, based on the dubious claim that they pose "a National Security threat…"

Trump is far from the first president to abuse emergency powers. President Biden, for example, used the coronavirus emergency as a pretext to raid the Treasury to forgive some $400 billion in student loan debt (the Supreme Court rightly ruled against him). More generally, the National Emergencies Act of 1976, at least as currently interpreted, has made it too easy for presidents to declare an "emergency" in a wide range of circumstances that do not merit it.

But Trump's abusive emergency power claims are distinctive in the enormity of their scope. Using claims of "invasion" to shut down most legal migration across the southern border and engage in deportation and imprisonment without due process is unprecedented. Shutting down asylum condemns hundreds of thousands of migrants to poverty and oppression. If allowed to continue, deportation without due process could similarly be used against others, including legal immigrants and even U.S. citizens.

Using a fabricated "emergency" as a pretext to start the biggest trade war since the Great Depression is also an unprecedented abuse of the system of emergency powers, one that will impose some $1.4 to 2.2 trillion in tax increases on Americans over the next decade. By comparison, Biden's $400 billion student loan forgiveness power grab seems relatively modest….

In the long run, constraining dangerous emergency powers requires both judicial and legislative vigilance. Courts would do well to enforce the ordinary language definition of "emergency" as a sudden unexpected crisis, not just any possible public policy problem. As a House of Representatives report leading to the enactment of IEEPA explained, "emergencies are by their nature rare and brief, and are not to be equated with normal ongoing problems…."

Congress should adopt legislation limiting presidentially declared emergencies to 30 days, unless it affirmatively votes to extend such emergencies. This would represent a marked improvement on the current system, under which Congress can terminate a presidentially declared emergency only by passing a new law—a near-impossible feat, given the two-thirds supermajority required to override a nearly inevitable White House veto….

On Monday, Chief Justice Roberts spoke at the Georgetown Law School. Among other things, the Chief repeated his concern about threats to the rule of law and judicial independence. From Politico's report:

Chief Justice John Roberts described the rule of law as "endangered" and warned against "trashing the justices," but speaking in Washington Monday he didn't point fingers directly at President Donald Trump or his allies for publicly excoriating judges who've ruled against aspects of Trump's agenda.

"The notion that rule of law governs is the basic proposition," Roberts said during an appearance at Georgetown Law. "Certainly as a matter of theory, but also as a matter of practice, we need to stop and reflect every now and then how rare that is, certainly rare throughout history, and rare in the world today."

While the Chief Justice may not have "point[ed] fingers" at President Trump or his allies in these remarks, the Chief Justice has responded to President Trump's criticisms of federal judges and calls for impeachment. Indeed, contrary to Politico's suggestion, the Chief Justice has been rather consistent in calling out threats to judicial independence and the rule of law from all quarters--and in this he is the exception.

As I discuss in my latest Civitas Outlook piece, the Chief Justice has been consistent in his appeals to and defense of these principles, whereas most of his critics have not been.

Speaking in Buffalo on May 7, the Chief Justice reiterated his views, noting, "impeachment is not how you register disagreement with decisions." As Roberts explained, judicial independence is "central" to the constitutional structure, adding that "the only real political science innovation in our constitution… is the establishment of an independent judiciary." Alexander Hamilton in Federalist No.22 lamented that the lack of a federal judiciary "to expound and define" the "true meaning" of the laws was among the crowning "defects" of the Articles of Confederation. For the judiciary to play that role, Roberts noted, it cannot be under the sway of either of the other branches. The "innovation" embodied in Article III "doesn't work if the judiciary is not independent."

Donald Trump is hardly the only one to have earned rebukes from the Chief Justice for unwarranted attacks on the judiciary. The Chief Justice's most recent year-end report on the state of the judiciary—released before Trump returned to office – inveighed against threats of violence, intimidation, misinformation about judicial decisions, and threats to defy court orders as serious threats to judicial independence. Though some may have forgotten by December 2024, some prominent progressive voices had suggested that the Biden Administration should consider defying court orders and ignoring the Supreme Court's decisions on high profile matters.

And we should not forgot the Chief Justice's forceful statement in response to Senator Schumer's threatening remarks in front of the Court in 2020.

Those who care more about judicial independence and the rule of law than they do about policy victories or partisan advantage would do well to emulate the Chief Justice's approach. Alas, it seems most commentators only raise concerns about the rule of law when the threats come from an opposing tribe. This feeds cynicism about appeals to such principles and undermines efforts to defend the rule of law.

The failure of legal elites to call out the efforts of prior Democratic administrations to ignore legal constraints and evade judicial review does not excuse the Trump Administration's conduct. Two wrongs do not make a right, and there are plenty of wrongs.

But if one is concerned about defending the rule of law, recognizing that threats may come from multiple directions is necessary, as a matter of prudence and civic hygiene. If one wants to be taken seriously as a defender of neutral values, and not merely a partisan wielding whatever rhetorical sword is useful in the moment, one has to aspire toward consistency. . . .

When legal elites turn a blind eye to threats to judicial independence and the rule of law from their political allies, they degrade the value of their voices. The ability to identify transgressions against one's own interests is a sign of good faith and demonstrates that the principle actually matters and is not simply a useful cudgel to wield in political combat. Conspicuous failures to call out offenses and transgressions by one's allies undercut the speaker's moral authority and make it easy for others to write them off as mere partisan actors deploying aspirational rhetoric. Appeals to neutral principles are heard as political subterfuge—perhaps with reason.

Current concerns about the rule of law are justified. The Trump Administration has shown insufficient regard for legal constraints on executive power and has been unduly adversarial with the federal courts. Some of the administration's actions reek of deliberate indifference to constitutional constraints and a lack of good faith. At the same time, some lower court judges have overreacted, stretching their authority to issue nationwide injunctions and block contestable exercises of executive power. If the rule of law is to be defended, it must be defended on principle, with neither fear nor favor for the direction from which such threats emerge.

Many conservatives concerned about the Trump Administration's legal transgressions will nonetheless refuse to play by rules the opposition will not abide by. Rule of law constraints for thee, but not for me, is not a viable option. Asking constitutionalist conservatives to play Charlie Brown trying to kick the football will end the game, and likely on terms no one will like. Those who would preserve judicial independence and rule of law values should heed this message and emulate the Chief Justice's even-handed concerns before it is too late.

I disagree, on the merits, with President Trump's executive order denying birthright citizenship to children of non-citizens who are born in the United States because their parents were here without a green card. I will explain my reasons for disagreeing with the President in more detail in a future blog post. My reading of the Constitution, the caselaw, the scholarly commentary, and of our history leaves me persuaded that United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898), was correctly decided 127 years ago. Justice Gray's opinion in that case for six justices of the Supreme Court is far more persuasive and more thorough than is Chief Justice Fuller's dissent.

I disagree, however, with the increasingly aggressive issuance of nationwide injunctions by the federal district courts, including the nationwide injunctions at issue in Trump v. CASA, a birthright citizenship case which is presently before the Supreme Court. Article III, Section 2 of the Constitution explains that "The judicial Power shall extend" to nine, and only nine, categories of specific cases or controversies. The federal courts do not have the power to decide issues nor are they the sole expositors of the meaning of the Constitution.

The Constitution never mentions the word "interpretation." It never expressly grants any actor a power of interpretation and does not expressly grant courts a power of judicial review. The only powers granted by the Constitution are legislative, executive, and judicial powers. All of those powers require those who exercise them to engage in interpretation to ascertain the scope and limits of their powers (and the powers of other actors), but those powers of interpretation are incidental to the exercise of [the legislative, the executive, and the judicial power]. [Steven Gow Calabresi & Gary Lawson, The Meese Revolution: The Making of a Constitutional Moment 192 (2024).]

As former Attorney General Ed Meese explained in his October 21, 1986 speech on "Departmentalism" at Tulane University, all three departments of the federal government must interpret and enforce the Constitution when they perform their own distinctive functions. Congress must interpret and follow the Constitution when it makes the laws, the President must interpret and follow the Constitution when he executes the laws, and the Article III federal courts must interpret and follow the Constitution when they are deciding one of the nine categories of cases or controversies that they have jurisdiction to decide. Presidents Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin D. Roosevelt all said precisely the same thing as did Attorney General Ed Meese. [Steven Gow Calabresi & Gary Lawson, The U.S. Constitution: Creation, Reconstruction, the Progressives, and the Modern Era 111-114 (2020).]

It is true, as President Madison wrote, that "Without losing sight … of the co-ordinate relations of the three department to each other, it may always be expected that the judicial bench, when happily filled, will … most engage the respect and reliance of the public as the surest expositor of the Constitution" because of "the qualities implied in its members; … the gravity and deliberation of their proceedings; and by the advantage their plurality gives them over the unity of the Executive department, and their fewness over the multitudinous composition of the Legislative department." [Id. at 111-112.]

Steven Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law, where he specializes in constitutional law. He also teaches regularly at the Yale Law School. Before going into teaching, he worked in the Reagan White House, and was a Special Assistant for Attorney General Edwin Meese III. He has written or co-written many law review articles and several books, including The Meese Revolution: The Making of a Constitutional Moment (2024) (with Gary Lawson).

Federal Courts Birthright Citizenship

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Adding to Mark Movsesian's tribute to his former boss - a "true gentleman," Movsesian calls him - I thought I might share a couple of stories about the "gentlemanly" side of Justice Souter. Though I knew Justice Souter hardly at all, he lodged himself in my memory as a result of a couple of encounters.

As many of you may know, there was (and, I trust, still is) a tradition at the Supreme Court that each chamber's clerks invite each of the other Justices, one at a time, to join them for lunch at some eatery near the Court. The year I clerked (1993-94, for RBG), we ended up having lunch with four of the Justices (Souter, Scalia, Rehnquist, and Thomas), missing out, for one reason or another given everyone's busy schedules and the general chaos that often prevails at the Court, on Kennedy, O'Connor, Stevens, and Blackmun.

Lunch with Souter was delightful, but what I remember most was that each of the clerks received a nice handwritten note from the Justice, thanking us for treating him to lunch. In each of the notes he inserted something that was pegged specifically to something we had said at lunch; in my case, he made reference to a couple of things I had mentioned regarding my kids, who were both in elementary school at the time - something about Sam's upcoming piano recital and Sarah's decision about which middle school she wanted to attend.

We were thoroughly charmed - he was actually listening to what we were saying!

Then, on the last weekend of the Term, when all the decisions had been issued and everyone was packing up for the summer break, I went down to Souter's chambers to see if any of his clerks were still around; I had become pretty good friends with a couple of them, and I wanted to say good-bye and see them off. As it happened, none of them was around - but the Justice was there, standing in his outer office chatting with his secretary. He immediately invited me in for a chat, and we spent the next 15 minutes or so sitting in his office talking about this and that - our plans for the summer, where I was going to be working next, the intriguing similarities and differences between New Hampshire (where his heart is) and Vermont (where mine is), and the like. It felt, more than just a bit, like we were old pals, just chewing the fat on a summer afternoon.

The ability to put people at ease like that is very rare, certainly among Supreme Court Justices; Souter managed to communicate a genuine warmth of spirit that was quite remarkable - "gentlemanly" in the best sense of the term. May he rest in peace.

From Elagha v. Northwestern Univ., decided Tuesday by Judge Charles Kocoras (N.D. Ill.):

The following facts come from the amended complaint and are presumed true for purposes of this motion. All reasonable inferences are drawn in Elagha's favor.

Plaintiff Yasmeen Elagha … is a Palestinian Muslim woman who wears a hijab. She graduated from Northwestern's Pritzker School of Law … in May 2024 and is currently a licensed attorney practicing in Illinois….

While a law student, Elagha was very active in Pro-Palestinian, anti-war causes and organizations on campus. On or about November 16, 2023, Elagha attended a protest. Several law students followed and recorded Elagha and the other students participating in the protest, even when asked to stop. During the protest, other members of the Northwestern community made threatening remarks about the protesters' status at the university and their future job prospects, saying things like "we know people high up in university" and "good luck getting jobs after this."

Following the protest, pictures and videos of the protestors were shared on social media, including one post by another law student that garnered significant attention and attracted racist and harmful comments. Elagha had her private scholarship status exposed in a tweet by a fellow law student, though it was later deleted.

After the protest, a group of students, including Elagha, met with unknown Northwestern administrators to express their safety concerns and asked the school to issue a statement to promote civility on campus and to hold students accountable for doxing and harassment. {"Doxing" … "involves releasing someone's personal details onto the Internet in an easily accessible form … [and] [i]t may be used to humiliate, intimidate, threaten, or punish the identified individual."} Despite assurances that Northwestern would follow up on the students' concerns, no concrete actions were taken to address the threats or the doxing incidents. Since at least November 2022, Elagha made complaints in writing to Northwestern regarding the harassment and targeting she faced by other students, but Elagha did not receive any protections like other students of different racial and ethnic backgrounds had received.

In November 2022, Elagha filed a report with Northwestern's Office of Civil Rights ("OCR") against fellow law student Anita Kinney after Kinney publicly stated that she was "personally gunning for" Elagha after she sent a school-wide email supporting Palestine. Elagha asked Northwestern to issue a no-contact directive against Kinney as it customarily would have done when requested by students of other races. Northwestern ignored Elagha's request.

Free Speech Campus Free Speech

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From a Justice Department press release last week:

An indictment was unsealed today in the Southern District of New York charging Tarek Bazrouk 20, of New York, New York, with three counts of committing hate crimes in connection with his repeated assaults of Jewish victims in New York City between 2024 and 2025. Bazrouk was arrested this morning ….

"As alleged, on three separate occasions, Tarek Bazrouk deliberately targeted and assaulted Jewish victims at protests relating to the Israel/Gaza war," said U.S. Attorney Jay Clayton for the Southern District of New York. "Despite being arrested after each incident, Bazrouk allegedly remained undeterred and quickly returned to using violence to target Jews in New York City. This Office is dedicated to seeking justice for victims of hate crimes and will aggressively prosecute those who spread bigotry and discrimination through violence."

According to court documents, other public filings, and statements previously made on the record in this case, over the course of approximately nine months, Bazrouk physically assaulted three Jewish individuals at protests concerning the Israel/Gaza war. First, on April 15, 2024, Bazrouk — while wearing a green headband typically worn by Hamas terrorists — attended a protest concerning the Israel/Gaza war in Lower Manhattan, outside the New York Stock Exchange. During the protest, Bazrouk was arrested by officers from the New York City Police Department (NYPD) after lunging at a group of pro-Israel protestors. As Bazrouk was being escorted to an NYPD vehicle, Bazrouk kicked a different individual — Victim-1, a Jewish college student — in the stomach. At the time of the assault, Victim-1 was standing near other Jewish protestors, who were wearing kippahs (that is, brimless skullcaps traditionally worn by Jewish men), carrying Israeli flags, and singing Jewish songs.

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