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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Second Amendment Roundup: Washington Supreme Court Upholds Mag Ban
It’s déjà vu all over again.
On May 8, in its 7-2 decision by Justice Charles Johnson in State v. Gator's Custom Guns, the Washington Supreme Court upheld the state ban on the import and sale of magazines that hold over ten rounds. Last year I posted "Injunction Against Washington Magazine Ban Stayed Within Minutes," explaining how Superior Court Gary B. Bashor's 55-page preliminary injunction against the ban was stayed just 49 minutes after the state filed its appeal brief with the Supreme Court. The case is now remanded to consider the State's consumer-protection enforcement action against Gator's for alleged violation of the ban.
The court followed the now-familiar script that "large capacity magazines (LCMs) are not 'arms' within the meaning of either constitutional provision, nor is the right to purchase LCMs an ancillary right necessary to the realization of the core right to possess a firearm in self-defense." That is the case both under the federal Second Amendment and under Washington's guarantee that "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired…."
Based on Heller's quotation from a 1771 dictionary defining "arms" as anything that a man "useth in wrath to cast at … another," the court said that "the LCM itself does not cast the round but feeds the round into the firearm." Further, such magazines are supposedly not "integral components" of firearms because no firearm requires a magazine of the subject capacity to operate.
It goes without saying that no specific part of a firearm – the barrel, sights, safety, or stock – is used "to cast at another." And a magazine is necessary to feed a round into a semiautomatic firearm. The assumption that a magazine that holds ten or under rounds may be protected but one that holds over ten is not, has no constitutional basis. (As an aside, semiautomatics with a "magazine safety" won't fire at all without a magazine inserted.)
Recall that Heller held that "arms 'in common use at the time' for lawful purposes like self-defense" are protected. The Gator's court rejects "ownership statistics" on the basis that "whether LCMs are common in circulation does not inform this court whether they are 'commonly used for self-defense,' as how many LCMs are owned has no bearing on what those LCMs are actually used for." They are allegedly not so used because "the average number of shots fired in self-defense is merely 2.2."
It turns out that the Gator's opinion simply parrots the same playbook as the Ninth Circuit in its recent decision in Duncan v. Becerra upholding California's ban on mere possession of magazines that hold more than ten cartridges. See my post here. How did it come to this?
Trump Administration Likely Violated American Bar Association's First Amendment Rights
A federal court holds that "a series of grants with the ABA that funded services to victims of domestic and sexual violence" were terminated because the ABA had joined a lawsuit against the Administration.
A bit of legal background: Generally speaking, the government may not cancel contracts with private organizations based on the organizations' First Amendment activities (see, e.g., Bd. of Comm'rs v. Umbehr (1997)). The same is true of cancellation or denial of grants (see, e.g., Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l (2013)). And filing lawsuits is generally seen as protected by the First Amendment right to "petition the Government for a redress of grievances."
Now, from today's opinion by Judge Christopher Cooper (D.D.C.) in American Bar Ass'n v. U.S. Dep't of Justice (what follows is just a short excerpt from a longer analysis):
Last month, Deputy Attorney General Todd Blanche issued a memorandum prohibiting all Department of Justice ("DOJ") lawyers from participating in events sponsored by the American Bar Association ("ABA") on official time. The reason, Blanche candidly explained, was that the ABA had recently joined a lawsuit against the Trump Administration {challenging the Administration's freeze on international development grants to the U.S. Agency for International Development and the Department of State}. The next day, DOJ cancelled a series of grants with the ABA that funded services to victims of domestic and sexual violence. The only explanation offered for the cancellation was a terse statement indicating that the grants "no longer effectuate[ ] … [DOJ] priorities." …
"[T]he First Amendment bars [government] retaliation for protected speech." … The ABA has made a strong showing that Defendants terminated its grants to retaliate against it for engaging in protected speech…. First, the Blanche Memo "openly acknowledges that plaintiff engaged in speech and other activities protected by the First Amendment." It identifies the catalyst for the memo and DOJ's change in policy as to the ABA: "[T]he ABA filed a lawsuit against the United States." And it describes the ABA's history of "tak[ing] positions on contentious legal, policy, and social issues" that "frequently have not aligned with the positions advanced by [DOJ]" and its "litigat[ion] in support of activist causes." This activity is protected under the First Amendment.
Trump (Partially) Wins an Alien Enemies Act Case
In a badly flawed decision, a federal district court ruled that Trump can invoke the AEA because the Tren de Aragua drug gang's activities amount to a "predatory incursion."
For the last few weeks, there has been ongoing litigation over President Trump's effort to use the Alien Enemies Act of 1798 as a tool for mass deportation. The AEA allows detention and deportation of foreign citizens of relevant states (including legal immigrants, as well as illegal ones) "[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." Four federal judges - three district courts and Judge Henderson of the DC Circuit - have ruled that Trump's invocation of the AEA is illegal because there is no declared war, and the activities of the Venezuelan drug gang Tren de Aragua (which Trump cites as justification for using the AEA) do not qualify as an "invasion" or "predatory incursion."
Yesterday, the Trump administration finally partially won one of these AEA cases, because Judge Stephanie Haines of the Western District of Pennsylvania (a Trump appointee) ruled in ASR v. Trump, that TdA's activities qualify as a "predatory incursion."
Importantly, the judge did not accept the Trump Administration's ultra-broad view of what counts as an "invasion." The focus is on "predatory incursion," a less clear and less well-understood term. Judge Haines rejected both the government's and the plaintiffs' proposed definitions and more or less split the difference between them. She decided that "predatory incursion" means "a hostile entry into the United States by a cohesive group of individuals, such as a military detachment or a designated Foreign Terrorist Organization, who are united by a common goal of causing significant disruption to the public safety—whether that be the safety of persons, properly, or pecuniary interests—of those within the United States."
This is less bad than accepting a broad definition of "invasion" (a move that would have terrible constitutional implications, such as giving the federal government the power to suspend the writ of habeas corpus at all virtually all times). It is also a bit less bad than adopting the administration's interpretation of "predatory incursion," which would include any illegal migration or drug smuggling.
Nonetheless, I still think Judge Haines got this question seriously wrong. Among other things, her definition of "predatory incursion" is broad enough to render "invasion" superfluous. By her definition, any "invasion" would also be a "predatory incursion." Any military attack or "operation of war" (as James Madison defined "invasion" in his Report of 1800 discussing the Alien and Sedition Acts, of which the AEA was a part) necessarily involves "a hostile entry into the United States by a cohesive group of individuals…. who are united by a common goal of causing significant disruption to the public safety." A longstanding rule of interpretation holds that courts should not interpret statues in a way that renders any part superfluous. This is particularly true of the "invasion" provision of the AEA, which has traditionally been considered a central element of the statute.
In addition, Haines' definition has the implication that the US experiences "predatory incursions" at virtually all times. After all, virtually any organized crime organization of international scope qualifies as "a cohesive group of individuals… who are united by a common goal of causing significant disruption to the public safety" especially if "public safety" includes protection of "pecuniary interests" (which Judge Haines says it does). Any organized group engaged in smuggling contraband qualifies! By that standard, the US was constantly undergoing "predatory incursions" during Prohibition, when there was constant illegal cross-border smuggling of alcoholic beverages, and that smuggling surely impacted the "pecuniary interests" of various US businesses that competed with bootleggers. This implication of Judge Haines' definition renders it absurd, and it thus violates the longstanding canon against absurdity.
Four other court decisions (including 2 by conservative judges) have more properly defined predatory incursion as a kind of lower-level military attack, smaller than invasion. This is in accordance with Founding-era evidence, and avoids the redundancy and absurdity created by Judge Haines' definition.
Judge Haines is also unpersuasive in concluding that TdA's "predatory incursion" is undertaken by "a foreign nation or government." She gives too much credence to the Administration's assertions - rejected by its own intelligence agencies - that TdA is operating at the behest of the Venezuelan government. More generally, she errs in following Judge Rodriguez of the Northern District of Texas (who nonetheless ruled against Trump), in giving broad deference to the administration's factual (as opposed to legal) claims about whether an "invasion" or "predatory incursion" has occurred.
I explained why such deference is misguided in my critique of Judge Rodriguez's opinion:
Making determinations about relevant facts is a standard function of the judiciary. If the law says the government is allowed to do X whenever Y occurs, courts must make a determination on whether Y has actually happened or not. Otherwise, the government could do X anytime it wants simply by asserting Y has happened, even if the claim is false. This is especially dangerous in case of emergency wartime powers that severely curtail civil liberties, like those authorized by the AEA (detention and deportation with little due process, even for legal immigrants). I would add that, under the Constitution, a state of "invasion" allows state governments to "engage in war" in response and the federal government to suspend the writ of habeas corpus (thereby empowering it to detain people - including US citizens - without due process). Such sweeping authority cannot simply be left to the unreviewable discretion of one person. That's the kind of arbitrary royal prerogative the Founders sought to prevent.
It may be reasonable to defer to the executive on factual issues when the evidence is close, and ambiguous, and the government is making use of some kind of superior expertise. But not when the assertion that an "invasion" [or a "predatory incursion"] exists is pretty obviously false, and pretextual.
I would add the same goes for claims that a private organization is actually acting on behalf of a state.
Judge Haines' decision is not all good news for Trump. She also ruled that the government isn't providing detainees adequate notice of their potential deportation, so for now deportation remains on hold for those covered by her ruling (not clear how many people are involved). Furthermore, (like earlier AEA decisions decisions by other judges), she at least implicitly rejected the view that the definitions of "invasion" and "predatory incursion" are unreviewable political questions.
But, overall, this is a poorly reasoned decision on several key points. I hope it will be reversed on appeal.
First Amendment Challenge to Texas State University Speech Code Can Go Forward
From today's Fifth Circuit decision in Speech First, Inc. v. McCall, written by Judge James Ho and joined by Judges Kyle Duncan and Andrew Oldham:
"Education should not be intended to make people comfortable; it is meant to make them think." Comm. on Freedom of Expression, Univ. of Chicago, Report of the Committee on Freedom of Expression (2015) (quoting President Hanna Holborn Gray).
But according to Speech First, Texas State University has adopted a harassment policy that reflects the opposite principle—and thus conflicts not only with basic pedagogical principles, but also the First Amendment.
Rather than welcome debate, the University prohibits "unwelcome verbal" or "written … conduct." The policy does not define what is "unwelcome," nor what constitutes "verbal" or "written" "conduct." But it appears to forbid speech that some individuals or groups could find uncomfortable—namely, speech about "race, color, national origin, age, sex, religion, disability, veterans' status, sexual orientation, gender identity, or gender expression" that some "reasonable person" could find "offensive" or "hostile."
Speech First contends that this policy will be used to target politically disfavored speech on sensitive topics like abortion, immigration, racial preferences in educational admissions, and transgender ideology. So it brought this suit challenging the policy under the First Amendment.
AI Hallucination Case Stemming from Use of a Paralegal's AI-Based Research
I blogged yesterday about AI hallucinations in court filings by prominent law firms, as well as a nonexistent source cited in an expert's declaration (the expert works for leading AI company Anthropic, though at this point it's not yet clear whether the error stemmed from an AI hallucination or from something else). But I thought I'd blog a bit more in the coming days 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 the first case that showed up in my daily WestClip query related to the subject, an opinion yesterday by Judge Rachel Kovner (E.D.N.Y.) in Ramirez v. Humala:
Plaintiff Ramirez's response letter, … signed by [her lawyer,] Ms. Stillman, cites eight cases. Of the eight, the Court was unable to locate four: (1) London v. Polish Slavic Fed. Credit Union, No. 19-CV-6645, 2020 WL 1275619 (E.D.N.Y. Mar. 17, 2020); (2) Rosario v. 2022 E. Tremont Hous. Dev. Fund Corp., No. 21-CV-9010, 2023 WL 1993700 (S.D.N.Y. Feb. 14, 2023); (3) Paniagua v. El Gallo No. 3 Corp., No. 22-CV-7073, 2024 WL 1046856 (S.D.N.Y. Mar. 11, 2024); and (4) Luna v. Gon Way Constr., Inc., No. 20-CV-893, 2022 WL 826856 (S.D.N.Y. Mar. 18, 2022). The Court ordered Ms. Stillman to either provide copies of the four cases or show cause why she should not be sanctioned for citing nonexistent cases pursuant to Federal Rule of Civil Procedure 11(b) and the inherent power of the Court.
Stillman explained that this originated in the work of her paralegal:
Ms. Ruiz[, Ms. Stillman's paralegal,] explains that she took the initiative to assist with the legal research for the reply and generated the citations at issue "using secondary tools, including public search resources and AI-based research assistants."). Ms. Ruiz did not check that the citations she had generated corresponded to real cases before passing them to Ms. Stillman. Ms. Stillman, in turn, relied on Ms. Ruiz, "a diligent and trusted member" of the team, and "did not independently verify each citation prior to filing."
New Republic Podcast Interview on Our Case Against Trump's "Liberation Day" Tariffs [Updated With Embedded Audio]
Greg Sargent of the New Republic interviewed me.
Yesterday, Greg Sargent of the New Republic interviewed me for his Daily Blast podcast about the case against Trump's "Liberation Day" tariffs filed by the Liberty Justice Center and myself on behalf of five US businesses harmed by this abusive policy. The case was argued before the US Court off International Trade yesterday.
The podcast, which runs about twenty minutes, is available here. We discussed some of the dangers of Trump's tariff policies, the state of the case, and what we learned about the Court's views from what was said at oral argument.
UPDATE: I am now able to embed the audio in this post. See below:
Should Funding Crime Victims' Rights Be a Justice Department Priority?
Yes! Funding crime victims' rights initiatives is a useful measure for ensuring that the criminal justice system focuses on protecting victims, which should always be a high priority.
Recently, of course, the Trump Administration has been searching for ways to reduce federal government spending, searching for wasteful or duplicative programs. As part of that comprehensive effort, the Justice Department recently announced that some of its programs will be cut, including some programs involving services for crime victims. Catholic University law professor Mary Leary has recently published this op-ed calling attention to the cuts and urging the Department to exercise caution in cutting these programs. While I don't know the details as well as Professor Leary does, I want to join her in generally urging the Department to maintain as much funding as possible for crime victim support, particularly for legal services to victims in criminal cases.
I've seen news reports that Attorney General Bondi is restoring some funding that was initially slated to be cut. I hope that some of the other funding can be restored as well. And, more important, going forward it is critical that funding for crime victims' services continues to be one of the Justice Department's priorities.
As one example of the cuts, the National Crime Victim Law Institute (NCVLI) had a substantial part of its funding slashed. In 2004, funding for NCVLI was linked to the passage of the Crime Victims' Rights Act (CVRA). Since then, NCVLI has helped establish legal clinics in a number of states across the country, including in my home state of Utah. These clinics assist crime victims to protect their rights in criminal proceedings. I discuss some of these long-standing and important efforts by the legal clinics in my article about the history of the Crime Victims' Rights Movement (at pp. 93-94).
One of the often-overlooked benefits of supporting crime victims in protecting their rights in criminal cases is that it allows an independent voice to be presented. Victim service providers help to amplify that voice, by supporting efforts of crime victims to present arguments that might otherwise be overlooked—creating a valuable and independent perspective on how criminal cases should proceed. An example comes from an amicus brief, which I helped NCVLI, the National Center for Victims of Crime (NCVC), and other crime victims' rights organizations to file. This brief supported Dr. Carter Page's motion to be recognized as a "crime victim" during the sentencing of Kevin Clinesmith. Clinesmith was an FBI agent who made false and material misstatements in a high-profile case. Specifically, Clinesmith provided false statements during the Crossfire Hurricane investigation into whether individuals associated with the Donald J. Trump for President Campaign were coordinating activities with the Russian Government. Clinesmith lied in an application to the Foreign Intelligence Surveillance Court (FISC) to renew a FISA warrant to surveil Dr. Page's private communications. Clinesmith's false statements resulted in a warrant application that the FISC approved without having before it all relevant information.
My amicus brief for crime victims' rights organizations explained why Dr. Page was directly and proximately harmed by Clinesmith's interference with the fair judicial consideration to which he was entitled. This harm made Dr. Page a "crime victim" with protected CVRA rights. Accordingly, the organizations argued (without addressing, one way or the other, the merits or demerits of the Crossfire Hurricane investigation) Page was entitled to speak at Clinesmith's sentencing. The brief explained:
This criminal case has been widely discussed across the country, with strongly held and differing views resolutely expressed. This brief, however, is entirely agnostic on any such views and any resulting political ramifications. Instead, this brief takes a more limited—but extremely important—foundational procedural position. Amici believe that in enacting the CVRA, Congress required this Court to hear from any victim who was harmed by the Defendant's crime, with the definition of "victim" being expansive. And it is precisely because differing views exist about this case that hearing from the victim here is extremely important. If this Court grants Dr. Page the opportunity to provide a victim impact statement before it imposes sentence, then the public will have greater confidence in the case's outcome—which is one of the reasons why Congress included victims in the criminal justice process by enacting the CVRA.
The issue was squarely presented to the district judge handling the matter, Judge James Boasberg, who surprisingly ducked the issue. Judge Boasberg ruled that he would allow Dr. Page to speak at sentencing for ten minutes as a matter of discretion, rendering it unnecessary for a formal determination of whether Dr. Page was a "crime victim." But the important point is that, through crime victim advocacy, an additional perspective was heard on the how false warrant applications can have far reaching harms—highlighting an issue that otherwise might not have received judicial attention.
NCVLI also joined with Brad Edwards and me, when we advocated for victims of Jeffrey Epstein's sex trafficking organization. A Florida district court rejected the victims' efforts to throw out a non-prosecution agreement blocking prosecution of Epstein's co-conspirators. We sought review in the Eleventh Circuit. And NCVLI filed an excellent amicus brief, arguing that Epstein's victims should be able to press the case for prosecuting Epstein's co-conspirators in Florida federal court. (Ultimately, Epstein's lead co-conspirator, Ghislaine Maxwell, was successfully prosecuted in the Southern District of New York.)
By highlighting NCVLI and NCVC, with whom I have worked frequently, I don't mean to overlook many other crime victim service providers, including other legal service providers. These organizations form a vital part of contemporary criminal justice efforts to ensure that crime victims' voices are heard. As Professor Leary points out in her op-ed, the modern crime victims' rights movement traces its roots back to President Reagan's 1982 Task Force on Victims of Crime. The Task Force found that the nation's criminal justice system was "appallingly out of balance" for victims, with a "neglect of crime victims" that was "a national disgrace." The Task Force identified the need to have Congress provide federal funding "to assist in the operation of federal, state, local and non-profit victim/witness assistance agencies that make comprehensive assistance available to all victims of crime." That recommendation remains just as valuable today.
I began this post with a question: Should funding crime victims' rights be a DOJ priority? Ultimately, each Administration and each Attorney General will have to answer that question for themselves. Fortunately, for this Administration, it appears that the answer is straightforward. President Trump has promised his Administration's "unending support to every victim of crime." As the process of reviewing crime victims' funding moves forward, I hope that organizations providing legal services to victims in criminal cases—such as NCVLI, NCVC, and others—will receive the support that they deserve.
Vice President Vance Will Look For SCOTUS Nominees With "Real Courage" Who Have "Stood Up To The Crowd"
Vance mentions Justices Thomas and Alito as exhibiting this courage, but none of the Trump appointees.
Over the years, I have written at length about judicial courage. And I'm not alone. Both President Donald Trump and Vice President Kamala Harris have cited this virtue. Now, Vice President J.D. Vance has done the same.
Hugh Hewitt interviewed Vance about what he would look for in a Supreme Court nominee. Vance replies that a Justice should have demonstrated "real courage" by standing up to the crowd. Critically, they must identify a time in which they faced that sort of pressure, and did not back down. It is not enough to talk the talk; you have to walk the walk.
HH: "I know Vice President Pence, when he was serving in your office, he had the last interview with every Supreme Court nominee potential. And if you are in that position down the road, what do you want to know about a Supreme Court nominee?
[Vance:] Oh, that's a good question. I've never been asked that question, Hugh. You always ask the best questions, man. But, you know, I guess what I would try to understand is how persuadable they are by the mob. Because what we've learned from our Supreme Court over the last 10, 15 years, but especially over the last few years, is that the mob really comes after these guys for high-profile decisions. And obviously, you don't want to prejudge an outcome, but I just want a person with real courage. I think this is what makes Alito and Thomas so special, is that they're just willing to stand in defiance of a lot of incredible media and social pressure. I mean, if you're in the Supreme Court, you are literally inside the beltway. You consume beltway media. That's who you see day to day. You have to have a particular special character. And so I guess I'd ask some questions that try to tease that out a little bit. I'd ask them, you know, when have they ever stood up to the crowd? When have they ever, you know, had people attack them for their views? And if they've never, ever had to stand up to public pressure, they're probably not the right person for the Supreme Court."
Vice President Vance is 100% correct. It is telling that Vance did not identify any of the Trump appointees as demonstrating judicial courage.
I would also point to Judge Ho's recent interview in the Wall Street Journal. Ho explains that judges cannot fear being booed:
Without naming names, Judge Ho complains about "fair-weather originalists" on the bench: "If you're only an originalist when it leads to the results you want to reach, then you're not really doing originalism at all." Even when judges want to follow the law, they may face temptations to do otherwise. "It's been said that judges are like umpires and referees," Judge Ho says, alluding to Chief Justice John Roberts's 2005 confirmation hearing, in which he promised to "remember that it's my job to call balls and strikes."
Judge Ho doesn't find that metaphor comforting. He says actual umpires tend to be biased in favor of the home team. He refers me to a 2011 book, "Scorecasting: The Hidden Influences Behind How Sports Are Played and Games Are Won." The authors note that home teams have an edge in every major sport and argue, as Judge Ho summarizes it, "that the leading cause of home-field advantage is the referees, and it's because the referees are worried about the booing of the crowd." I read the chapter and found the evidence credible. The home crowd in Judge Ho's analogy isn't the spectators in the courtroom but "cultural elites," who cheer as well as boo.
Ho connects this theme with the Chief Justice's ongoing whirlwind tour to save the Republic. A group of elite New York lawyers give Roberts a round of applause, so he obviously thinks he is on the right side of the issue. But in reality, the crowd is just working the refs.
Five days after I interviewed Judge Ho, Chief Justice Roberts spoke at an anniversary celebration for the U.S. District Court in Buffalo, N.Y. He said the judiciary's role is "to obviously decide cases but in the course of that to check the excesses of Congress or the executive, and that does require a degree of independence."
"At that," the New York Times reported, "the crowd applauded."
"In sports there's a term for this, right?" Judge Ho says. "It's known as 'working the refs.' And this is a phenomenon that I've seen affect judges throughout my career."
I am currently working on essay about the Chief's role in causing our current morass. Stay tuned.
No Injunction for 8th-Grade Student Disciplined for Wearing "Let's Go Brandon" T-Shirt to School
From Senior Judge Christopher Boyko's decision Monday in Conrad v. Madison Local School Dist. Bd. of Ed.:
According to his Verified Complaint, C.C. wore the shirt on November 25, 2024, underneath a flannel shirt. Plaintiff alleges:
The phrase "Let's Go Brandon" communicates criticism of certain media outlets for a well-documented pattern of misreporting facts in a politically biased fashion. In this particular incident, a large crowd at a NASCAR race was heard shouting a profane disdain for then-President Joseph R. Biden, chanting "F*** Joe Biden." The reporter on the scene reported the chant as "Let's go Brandon," as if the chant was actually praise for the winner of the race, whose first name was Brandon. From that point forward, that moment was perceived as a microcosm of a larger problem, and "Lets Go Brandon" became a popular expression of certain people's opinion toward the media and American politics.
Plaintiff alleges C.C. wore the shirt the previous school year without complaint. However, on this particular day, Defendant Krista Ferini, a teacher and registered democrat, told C.C. to "button that up. I know what that means." C.C. complied and buttoned up his flannel shirt. Later that day, while in a classroom that lacked air conditioning, C.C. took off his flannel shirt. When Ferini saw C.C. without the flannel covering up his Let's Go Brandon t-shirt she wrote him up. Due to the write-up C.C. reported to Defendant Andrew Keeple, Principal of C.C.'s school. Keeple instructed C.C. to wear the flannel the rest of the day and to never wear the shirt to school again.
Today in Supreme Court History: May 14, 1973
5/14/1973: Frontiero v. Richardson decided.
Today in Supreme Court History: May 14, 1973
5/14/1973: Frontiero v. Richardson decided.
Thoughts on Today's Oral Argument in Our Case Against Trump's IEEPA Tariffs
Outcomes are hard to predict. But the judges seemed skeptical of the government's claim that Trump has virtually unlimited authority to impose tariffs.
Earlier today, a three-judge panel of the US Court of International Trade heard oral arguments in the case challenging Donald Trump's massive "Liberation Day" tariffs brought by the Liberty Justice Center and myself on behalf five US businesses harmed by the tariffs. The Administration claims that the President's imposition of 10% or higher tariffs on virtually every nation in the world is authorized by the International Emergency Economic Powers Act of 1977 even though IEEPA doesn't mention tariffs at all, and its invocation requires the existence of a "national emergency" and an "unusual and extraordinary threat" to the United States.
Audio of the oral argument is available at the Court of International Trade website. It's generally difficult to predict the outcome of a case based on oral argument. Judges will sometimes rule on issues that get little or no play in argument. Still, I was encouraged by the fact that all three judges seemed skeptical of the government's claim that IEEPA gives the president virtually unlimited power to impose tariffs. And, as we have argued from the beginning, the government's position amounts to saying that the president can impose tariffs of any amount, on any nation, at any time, for as long as he wants.
The issue of limits came up again and again during the argument. Judge Restani noted to the government's lawyer that "[t]here's no limit, is what you're saying — there's no limit." She also suggested that the government's position would enable the president to declare that a shortage of peanut butter qualifies as a "national emergency" and an "unusual and extraordinary threat" justifying tariffs. She did not strike me as happy with that state of affairs.
Judge Katzmann suggested that the government's position amounted to "deleting" the role of the judiciary from reviewing the legality of tariffs. Judge Reif - whom some observers believed was the judge least likely to support our case - seemed troubled by the fact that the government's ultra-broad interpretation of IEEPA would allow the president to bypass a number of other statutes that authorize the executive to impose tariffs in narrower circumstances, but only after following mandated procedural rules. If IEEPA grants the kind of sweeping authority Trump claims, there would be little point to these other laws.
In fairness, the judges also had some tough questions for LJC Senior Counsel Jeffrey Schwab, who argued the case for us. In particular, they focused on the issue of whether we have a standard for judging what qualifies as an "emergency" or an "unusual and extraordinary threat."
I think, as Jeff noted in oral argument, the longstanding and entirely normal trade deficits that the administration cites in this case, are so obviously neither an emergency nor unusual and extraordinary that the court could simply say they don't meet any plausible standards. As Jeff put it, an umpire doesn't have to precisely define the strike zone to call a ball on a pitch that's so far from the plate that it goes behind the batter and can be considered a wild pitch.
But if the court wants to articulate a standard, they should, as Jeff later indicated, conclude that, as the House of Representatives report leading to IEEPA put it, "emergencies are by their nature rare and brief, and are not to be equated with normal ongoing problems." Trade deficits are pretty obviously neither rare nor brief, and they are clearly "normal ongoing problems." Similarly, as even the government's counsel suggested, an "unusual and extraordinary threat" must be something that is "not usual." Trade deficits are in fact entirely "usual."
I was also struck by the fact that none of the judges asked about remedies or the scope o the injunction that should be imposed against the tariffs if we prevail, including whether the injunction should be nationwide or limited to our clients.
Overall, I am guardedly optimistic, though it's always possible that the judges' statements in oral argument don't fully indicate their thinking. We tentatively expect a ruling from the court within the next few weeks.
I have gone over the legal issues in the case in greater detail in my Lawfare article, "The Constitutional Case Against Trump's Trade War." See also my post on why these sweeping tariffs threaten the rule of law.
There are also several other cases challenging the tariffs, including one filed by twelve states led by Oregon, which will be heard by the same CIT panel on May 21. In addition, there is the aptly named Princess Awesome case filed by the Pacific Legal Foundation on behalf of ten businesses (also before the CIT), a case filed by the state of California in federal district court, one by the New Civil Liberties Alliance (challenging tariffs against China on behalf of an importer, filed in district court), and one brought by members of the Blackfeet Nation Native American tribe (challenging tariffs against Canada, filed in district court; that court ruled the case should be transferred to CIT, and the plaintiffs have appealed that ruling).
Florida Ban on "Depict[ing] or Simulat[ing] … Lewd Conduct" in Performances Where Children Are Present Struck Down
A short excerpt from the long opinion today in HM Florida-ORL, LLC v. Governor, decided by Judge Robin Rosenbaum, joined by Judge Nancy Abudu:
Justice Potter Stewart famously offered a non-definition of obscenity: "I know it when I see it." Jacobellis v. Ohio (Stewart, J., concurring). Many know Justice Stewart's quip. But it's not, in fact, the law.
The Constitution demands specificity when the state restricts speech. Requiring clarity in speech regulations shields us from the whims of government censors. And the need for clarity is especially strong when the government takes the legally potent step of labeling speech "obscene." An "I know it when I see it" test would unconstitutionally empower those who would limit speech to arbitrarily enforce the law. But the First Amendment empowers speakers instead.
Yet Florida's Senate Bill 1438 (the "Act") takes an "I know it when I see it" approach to regulating expression. The Act prohibits children's admission to "live performances" that Florida considers obscene for minors. But by providing only vague guidance as to which performances it prohibits, the Act wields a shotgun when the First Amendment allows a scalpel at most. And Florida's history of arbitrarily enforcing other, similar laws against performances that are far from obscene only deepens our concerns. We therefore hold that the Act is likely unconstitutional on its face and affirm the lower court's injunction against its enforcement….
Secretary Griffin argues that the Act dutifully observes [the] requirements [in Miller v. California (1973), the leading precedent on obscenity] so it reaches only unprotected speech. The Act, she argues, "specifically defines" the activities that constitute an adult live performance: anything "depict[ing] or simulat[ing] nudity, sexual conduct, sexual excitement, or specific sexual activities as those terms are defined in [Section] 847.001, lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts."
She continues, asserting the Act then bars children's admittance to performances that feature such representations and meet all three prongs of the Miller test: appeal to the prurient interest, patent offensiveness, and the lack of serious value. And, Griffin says, the statute adjusts the standards for the second and third prongs of the Miller test to be "for the age of the child present." That is, prohibited performances must lack serious "value for the age of the child present" and be "patently offensive … with respect to what is suitable material or conduct for the age of the child present." …
But the court concluded that the term "lewd conduct" goes beyond the boundaries of Miller, in part because it's not well-defined:
Defamation Lawsuit Against Def Con Cybersecurity Conference Dismissed
"[I]t is irrelevant that Defendant Def Con did not know at the time the Transparency Reports were published whether Hadnagy had or had not engaged in sexual misconduct. Rather, if the sexual misconduct implications were in fact true at the time the Transparency Reports were published, Def Con is shielded by the truth defense."
A short excerpt from today's long decision by Magistrate Judge Brian Tsuchida in Hadnagy v. Moss (W.D. Wash.):
This case involves a defamation claim brought by Plaintiff, a past participant of the Def Con annual cybersecurity and hacking conference, against Defendant, the Def Con conference organizer. Plaintiff Hadnagy hosted a social-engineering village called SEVillage at the Def Con conference. Def Con's Code of Conduct prohibits "harassment," which includes "deliberate intimidation and targeting individuals in a manner that makes them feel uncomfortable, unwelcome, or afraid" and Def Con reserves the right to expel participants for harassment. Def Con permanently bans "repeat offenders and those who commit more egregious offenses."
Based on a report of retaliation by Hadnagy made by a former employee and a Zoom call in which others complained of Hadnagy's conduct, Def Con banned Hadnagy from its conferences and on February 9, 2022, issued the following "Transparency Statement":
We received multiple CoC [Code of Conduct] violation reports about a DEF CON village leader, Chris Hadnagy of the SE Village. After conversations with the reporting parties and Chris, we are confident that the severity of the transgressions merits a ban from Def Con.
Hadnagy alleges in his lawsuit that this statement led to wide-spread speculation the transgressions were sexual in nature.
AI Hallucination in Filings Involving 14th-Largest U.S. Law Firm Lead to $31K in Sanctions
The judge finds "a collective debacle"—possibly caused, I think, by two firms working together and the communications problems this can cause—though "conclude[s] that additional financial or disciplinary sanctions against the individual attorneys are not warranted."
I should note up front that both of the firms involved (the massive 1700-lawyer national one and the smaller 45-lawyer predominantly California one) have, to my knowledge, excellent reputations, and the error is not at all characteristic of their work. As to the lawyer whose outline apparently started this, the court notes that he "candidly admitted … what happened, and is unreservedly remorseful about it." Likewise, the court adds, "In their declarations and during our recent hearing, [the lawyers'] admissions of responsibility have been full, fair, and sincere. I also accept their real and profuse apologies."
But that I think just shows that all firms, however large and respected, need to be extra careful about having all their submissions thoroughly checked.
From Special Master Michael Wilner's order last week in Lacey v. State Farm Gen. Ins. Co. (C.D. Cal.):
The attorneys representing Plaintiff in this civil action submitted briefs to the Special Master that contained bogus AI-generated research. After additional proceedings and considerable thought, I conclude that an award combining litigation sanctions against Plaintiff and financial payments from the lawyers and law firms is appropriate to address this misconduct.
I also conclude that additional financial or disciplinary sanctions against the individual attorneys are not warranted. This was a collective debacle, and is properly resolved without further jeopardy.
Amy Coney Barrett's "Suspension and Delegation" Revisited
One of the justices wrote extensively about when and whether the writ of habeas corpus may be suspended.
Last week, President Trump and Stephen Miller commented that the Administration is "looking" at whether the privilege of the writ of habeas corpus may be suspended. Insofar as Administration officials are actually looking at this question, they may want to revisit "Suspension and Delegation," an article from the Notre Dame Law Review written by then-Professor Amy Coney Barrett. (I blogged about this article in 2020 when then-Judge Barrett was nominated to the Supreme Court.)
In "Suspension and Delegation," Barrett concurred with the conventional understanding that only Congress has authority to suspend the writ of habeas corpus. More provocatively, she also suggested that there are limits on the extent to which Congress can delegate suspension authority to the President, and that some such prior suspensions were unconstitutional.
Here is the abstract:
A suspension of the writ of habeas corpus empowers the President to indefinitely detain those suspected of endangering the public safety. In other words, it works a temporary suspension of civil liberties. Given the gravity of this power, the Suspension Clause narrowly limits the circumstances in which it may be exercised: the writ may be suspended only in cases of "rebellion or invasion" and when "the public Safety may require it. " Congress alone can suspend the writ; the Executive cannot declare himself authorized to detain in violation of civil rights. Despite the traditional emphasis on the importance of exclusive legislative authority over suspension, the statutes that Congress has enacted are in tension with it. Each of the suspension statutes has delegated broad authority to the President, permitting him in almost every case to decide whether, when, where, and for how long to exercise emergency power. Indeed, if all of these prior statutes are constitutional, Congress could today enact a law authorizing the President to suspend the writ in Guantanamo Bay if he decides at some point in the (perhaps distant) future that the constitutional prerequisites are satisfied. Such a broad delegation undermines the structural benefits that allocating the suspension decision to Congress is designed to achieve. This Article explores whether such delegations are constitutionally permissible. It concludes that while the Suspension Clause does not prohibit Congress from giving the President some responsibility for the suspension decision, it does require Congress to decide the most significant constitutional predicates for itself that an invasion or rebellion has occurred and that protecting the public safety may require the exercise of emergency power. Congress made this determination during the Civil War, but it violated the Suspension Clause in every other case by enacting a suspension statute before an invasion or rebellion actually occurred and in some instances, before one was even on the horizon.
Assuming that Justice Barrett still adheres to these views, she is unlikely to embrace Administration arguments in favor of suspending the writ or limiting its use by individuals alleged to be unlawfully present in the country or otherwise subject to deportation.
Solicitor General Is Still Waiting For An Actual Ruling In A.A.R.P. v. Trump
Nearly a month has elapsed since the ACLU's very good Friday.
On Friday, April 18, the Supreme Court issued an administrative stay of the alien's removal in the case formerly known as A.A.R.P. v. Trump.
There is before the Court an application on behalf of a putative class of detainees seeking an injunction against their removal under the Alien Enemies Act. The matter is currently pending before the Fifth Circuit. Upon action by the Fifth Circuit, the Solicitor General is invited to file a response to the application before this Court as soon as possible. The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court. See 28 U. S. C. §1651(a).
The Court ruled mere moments before the Fifth Circuit issued its order. Now, nearly a month later, the matter remains pending before the Court.
It is obvious to me that the Supreme Court was not really interested in waiting for the Fifth Circuit. Indeed, the Court probably thought it better to issue this interim ruling that created the impression that the bad judges in Texas were dragging their feet. No one in the media would pay attention to the case in the day and weeks after. All that matters is the initial headline.
But in reality, the government is stuck. The Supreme Court provisionally certified a class, which the District Court declined to certify. Many of the aliens in Texas are clearly removable under other authorities, but the Court's blunderbuss injunction blocks their removal on any grounds. And the Supreme Court has shown not even the slightest interest in resolving this dispute.
The Solicitor General has now come back to the Court with a supplemental memorandum regarding the emergency application, that has been pending for nearly a month.
The brief explains that the plaintiffs no longer need the Court's emergency ruling, since they have pursued further judicial relief:
Intervening developments make clear that neither interim nor permanent relief is warranted; that the equities now weigh particularly heavily against relief; and that, at a minimum, this Court should modify the temporary injunction to allow the government to remove these unlawfully present aliens pursuant to non-AEA authorities, which applicants have conceded the government should be able to do. . . .
Other developments also bear out the lack of grounds for relief. It has now been more than three weeks since this Court entered an order precluding the removal of all members of the putative class. That three-week time frame constitutes more than adequate opportunity to pursue judicial relief under any standard. Thus, no putative class member now has any plausible claim to denial of notice or opportunity to be heard. See Trump v. J.G.G., 145 S. Ct. 1003 (2025).
Moreover, many of the aliens in the "putative class" can be removed under other authorities. Yet the government is still handcuffed because of John Roberts's late night blue plate special:
Meanwhile, the equities have also swung further against relief. The Department of Homeland Security (DHS) estimates that there are some 176 putative class members. App., infra, 50a. Because this Court's order categorically prohibited removing those 176 putative class members even under non-AEA authorities, the government has been detaining these aliens instead of removing the many putative class members who may be otherwise removable under non-AEA authorities, such as Title 8 of the United States Code. Unsurprisingly, given that the putative class members were detained based on their membership in a designated foreign terrorist organization, they have proven to be especially dangerous to maintain in prolonged detention. Some 23 putative class members recently barricaded themselves in a housing unit for several hours and threatened to take hostages and harm ICE officers, as described in the appended Declaration of Joshua D. Johnson, Acting Field Office Director for the Dallas Field Office of U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security.
I remain baffled why the Court is willing to move heaven and earth to provide assistance to criminal aliens, but does nothing when other litigants come to the Court seeking emergency relief.
The government offers an easy way out of this morass:
Especially given those developments, the government requests that the Court lift its administrative injunction and deny further relief. The putative class members are not proper parties and have received adequate notice and opportunity to pursue habeas petitions. And the named petitioners have filed habeas petitions and have not shown an imminent risk of removal while those petitions are pending. At a minimum, the Court should modify the administrative injunction to permit the removal of any aliens eligible for removal under non-AEA immigration authorities.
I would hope that over the past month, Justices Gorsuch, Kavanaugh, and Barrett have seen how flawed the process was. Perhaps they joined the Chief's opinion based on less-than-perfect information about what the Fifth Circuit would do. Justice Alito and Thomas's dissent has improved by the day. This time for reflection may alter the relief offered.
