The Volokh Conspiracy Archive

On Sunday, I predicted that the Supreme Court will avoid resolving the various nationwide injunction issues in the birthright citizenship cases. Instead, the Court would issue a merits ruling based on the Fourteenth Amendment to make the case go away.

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.

Another colleague suggested that the Court will find the national injunctions are improper, but suggest that the lower courts could certify nationwide classes under Rule 23. I suppose that option is preferable, since we would avoid the murky equitable power to issue nationwide injunctions. Rule 23 at least has the imprimatur of Congress (assuming the Rules Enabling Act is constitutional). But as a practical matter, courts are already certifying national classes in ex parte TRO hearings. I am skeptical there would be much of a practical difference if the Court goes down that road. The emergency docket will still remain active.

What will the Court do? I was pondering this question today, and I think I figured out the Chief's play. We will get a second helping of his blue plate special from the DACA case. The Court will simply find that the executive branch failed to adequately consider the reliance issues with suspending birthright citizenship. Specifically, the order did not explain how the policy would affect parents and their unborn children. Roberts can even cite Dobbs!

I know that the President's executive order is not subject to the APA, and Department of Regents is not directly on point. Details. The Chief can fashion some equitable principle based on reliance interests and hardships, and BAM! The Court then will never need to decide the meaning of the Citizenship Clause. Indeed, this punt would likely eliminate the issue for the foreseeable future.

My predictions are not very accurate, so please take this post with a heaping of salt.

Justice David Souter passed away last week. I clerked for him early in his tenure on the Court, in October Term 1992, and ever since the news, I've been thinking about him—talking with friends, family, and former colleagues who've reached out to share memories and condolences.

To be honest, I hadn't planned to write anything about my time with him. He never cared much for public tributes, and I have always felt awkward telling stories about him, even good ones. I wasn't a close friend or confidant, just one of his former law clerks, and I didn't want to presume on my association with him. But I've come to feel that sharing a few memories, especially those that highlight what kind of person he was, might be helpful. Someday, historians will write about him. Maybe personal recollections like mine will add something.

Justice Souter was a remarkable person and a true gentleman. He never had his head turned by Washington. That's an astonishing virtue. Washington is full of people with relatively unimportant jobs—chief assistant to the assistant chief—who nonetheless lord it over others. Justice Souter, who held one of the most powerful positions in the country, never made an issue of it. He simply did his job as he saw best. His rulings disappointed conservatives, but it's wrong to maintain, as some do, that he changed his views because of praise from Washington insiders. He didn't pay attention to those things. His fundamental convictions, in which he had great confidence—those of an old-fashioned, Yankee Republican—were always his own.

When I clerked for him, he was in his early 50s. I remember him once casually remarking in chambers, "I'll do this job until I'm 70, and then I'll go home"—meaning, of course, New Hampshire. At the time, I doubted him. Supreme Court Justices rarely resign. It's too good a job, and besides, most come to identify so completely with the role that they have a hard time giving it up. But he did what he said, retiring at the age of 69. I have read that he timed his retirement to coincide with a Democratic president, and maybe that's true. But I know it wasn't the sole reason. He had talked about it long before. Read More

From Judge James Lorenz's order yesterday in S.E. v. Grey (S.D. Cal.):

The school activity at issue occurred in the context of the buddy program, a weekly class pairing younger and older students. The buddy program is a mandatory part of the school curriculum. P.D. and S.E., both fifth graders, were each paired with a kindergartener. In this program, "students in the older classroom mentor students in the younger classroom."

Until the buddy class at issue, the buddy program involved art or garden projects, and any books read in the class were selected by the students. The school sent parents a weekly newsletter listing the books the students were reading each week. For the buddy class at issue, the book entitled My Shadow Is Pink was selected by the teachers and was not listed in the weekly newsletter.

My Shadow Is Pink is about a boy who liked to wear dresses and play with toys associated with girls. Because the boy thought he did not "fit in" with his family and peers, his shadow was pink rather than blue. The story involves a conflict between the boy and his father. The father eventually comes to accept his son's "pink shadow" not as a phase but as reflecting the boy's "inner-most self." Although the term "gender identity" does not appear in the book, the author describes it as a children's book on the subject of gender identity. Defendants admit that the book "does address gender identity."

In preparation for the buddy class, the teacher first read the book to P.D. and S.E.'s fifth grade class. The fifth graders then joined their kindergarten buddies, and the teacher showed a read-along video of the book to the fifth graders sitting next to their respective buddies. The video was followed by an "art activity" in which the teacher asked the kindergarteners to "pick a color that represents you," and instructed the fifth graders to trace their respective buddies' shadows on the ground with colored chalk.

Although the class did not involve an explicit discussion of gender identity, the fact that the book addressed this issue was not lost on the students. S.E. described the book as "about LGBTQ." P.D. described it as "about a boy who wanted to change his gender to be a girl."

Because choosing one's own gender identity is contrary to Plaintiffs' religious beliefs, they were uncomfortable with the buddy class. Moreover, as mentors, P.D. and S.E. did not wish to affirm the book's message to their buddies.

On May 1, 2025, the Harlan Institute held the championship round for the 13th Annual Virtual Supreme Court competition. The top two teams presented oral argument at the Georgetown Supreme Court Institute in the case of Free Speech Coalition v. Paxton. Presiding were Judge Neomi Rao (U.S. Court of Appeals for the D.C. Circuit), Judge Royce Lamberth (U.S. District Court for the District of Columbia), and Judge Matthew Solomson (U.S. Court of Federal Claims).

Noah Ha and Liam Aranda-Michel from Lake Oswego High School in Oregon represented the Petitioner. Lauren Hohlt & Caroline Ready from Creekview High School in Texas represented the Respondent. After a well-argued round, the judges selected the Respondents as the Champions, with Caroline Ready as best oralist.

You can watch the round here:

We are pleased to share these comments from our participants:

5/13/1912: Seventeenth Amendment is approved by the House of Representatives. The Senate approved it the prior month. The Seventeenth Amendment was ratified in 1913.

I have posted a revised version of my draft paper, Data Scanning and the Fourth Amendment. It adds a bunch of new cases, including the various opinions from the Fourth Circuit's en banc ruling in United States v. Chatrie. It also updates the tech section. Abstract below.

A crucial question of Fourth Amendment law has recently divided courts: When government agents conduct a digital scan through a massive database, how much of a "search" occurs? The issue pops up in contexts ranging from geofence warrants and reverse keyword searches to the installation of Internet pen registers. When a government agent runs a filter through a massive database, resulting in a list of hits, is the scale of the search determined by the size of the database, the filter setting, or the filter output? Fourth Amendment law is closely attuned to the scale of a search. No search means no Fourth Amendment oversight, small searches ordinarily require warrants, and limitless searches are categorically unconstitutional. But how broad is a data scan?

This essay argues that that Fourth Amendment implications of data scans should be measured primarily by filter settings. Whether a search occurs, and how far it extends, should be based on what information is exposed to human observation. This standard demands a contextual analysis of what the output reveals about the dataset based on the filter setting. Data that passes through a filter is searched or not searched depending on whether the filter is set to expose that specific information. The proper question is what information is expressly or implicitly exposed, not what raw data passes through the filter or the raw data output. The implications of this approach are then evaluated for a range of important applications, among them geofence warrants, reverse keyword searches, tower dumps, and Internet pen registers.

This is just a draft, and it won't be submitted to journals until August or so. As always, comments are very welcome.

Last week, the President fired the Librarian of Congress, and then the Register of Copyrights, who is the Librarian's subordinate. I will set aside the question of whether that was a good idea, and focus on the legal question—how can the President fire the Librarian of Congress?

The answer appears to be that the Library of Congress is actually an Executive Branch department for legal purposes, though it also provides some services to Congress. Indeed, I think it has to be such a department in order to have the authority that it has over the implementation of copyright law (via the Register of Copyrights): As Buckley v. Valeo (1976) made clear, in a less famous part of its holding, Congress can't appoint heads of agencies that exercise executive powers.

Indeed, the U.S. Court of Appeals for the D.C. Circuit held last year,

As we have recognized, the Librarian is a "Head of Department" within the Executive Branch.

And that is particularly true when it comes to the appointment of the Librarian: A federal statute expressly provides that,

Today's long decision by Senior Judge John Steele (M.D. Fla.) in Naples Pride, Inc. v. City of Naples so holds (to oversimplify matters slightly). First, the court concludes the drag performance is symbolic expression that's presumptively protected by the First Amendment:

To determine whether conduct is inherently expressive, "we ask whether [a] reasonable person would interpret it as some sort of message, not whether an observer would necessarily infer a specific message." In making that determination, a court looks to the context and circumstances surrounding the conduct. For example, the Supreme Court has found that nudity is not protected by the First Amendment, but that nude dancing is protected expressive conduct….

For purposes of this preliminary injunction motion, the Court finds that Naples Pride's drag performance is symbolic conduct that is inherently expressive and constitutes "speech" within the meaning of the First Amendment. The circumstances surrounding the drag performance would lead a reasonable person to view the performance as conveying some sort of message. The performance is part of a festival conducted in a month associated with LBGTQ+ issues. Pridefest and the drag performance raise matters of concern to the community, as shown by the vigorous debate before the City Council regarding this year's Permit and those of prior years.

Those who weighed in on the proposed drag performance understood that their disagreement was with the performance's inherently expressive meaning. Some strenuously oppose the performance's symbolic message, others are ardently in favor of it. The City Council made its permitting decision after considering the expressive meaning conveyed by the anticipated drag performance. The very nature of the restrictions imposed by the City Council — the indoor-only and age restrictions and a portion of the increased security fees — indicate that the performance's message was a motivation for the restrictions….

The court then concludes that ordering the performance to be moved indoors was likely unconstitutional:

Prof. Michael McConnell at the Stanford Law School, a leading constitutional law scholar (and former Tenth Circuit judge), passed this along, and I'm delighted to be able to post it:

As of this writing, seven lawsuits have been filed challenging the legality of President Trump's unilateral imposition of tariffs. The briefing is farthest along in V.O.S. Selections, Inc. v. Trump, pending in the Court of International Trade. That court has scheduled a hearing for May 13 on all pending motions, including a motion for a preliminary injunction. Appeals from the Court of International Trade go to the Federal Circuit. Arguably, of all the cases challenging Trump administration actions, the tariff cases have the greatest consequence for the national economy as well as the division of authority between Congress and the Executive.

Both sides agree that the President has no inherent constitutional authority to set tariffs. President Trump's power, if it exists, must come from statute. The government relies on the International Emergency Economic Powers Act of 1977 (IEEPA). IEEPA gives the President power to take certain actions upon declaration of an emergency. The statute does not contain any reference to a power to impose, raise, withdraw, or alter tariffs or any other taxes. Until President Trump, no President ever asserted a tariff power under IEEPA. Instead, IEEPA has always been used to impose non-tariff economic sanctions, such as the freezing of assets. The government contends, however, that the statutory phrase to "regulate … imports" is broad enough to include the power to set tariffs.

I thought it would be helpful to quickly summarize the arguments on both sides (note that I am a signatory to an amicus brief supporting the challengers). Boiled down to its essentials, the government's argument on the merits is as follows:

From the introduction to his April 24 post, which is much worth reading in its entirety:

Imagine this scenario.

The interior minister of a country that considers itself a democracy reports scores of citizens to the police for making critical statements about her while she is in office. Many of them are given hefty monetary fines or even prison sentences.

In protest, a journalist publishes a satirical meme. It features a real photograph of the interior minister holding a sign that is digitally altered so that, apocryphally, it reads: "I hate freedom of speech."

As if to prove the point, the interior minister reports the journalist to the police. He is duly prosecuted and, after a brief trial, given a seven-month suspended prison sentence.

Would you say that this nation has a problem with free speech?

If you do, then you should be very concerned about what has happened in Europe over the last few years. For, as you may have suspected, this scenario is not fictional; rather, it depicts the true facts of a recent German court case—one that is far less of an outlier than most otherwise well-informed observers recognize….

Mounk goes on to offer many examples and analysis, and closes with:

Friday's Alabama Supreme Court decision in Flickinger v. King stemmed from a June 2020 Facebook post "apparently regarding the death of George Floyd" by Flickinger:

Things I think about: If I were a seven-time felon, with my most recent prison stint stemming from robbing and holding a pregnant woman at gunpoint in her home, would I choose to die in a fentanyl and methamphetamine numbed strangulation if it meant being worshipped in a nationwide funeral and my family receiving millions of dollars? Purely hypothetical.

King then got in touch with Flickinger's employer, Wainwright, Pope & McMeekin, P.C. (a law firm at which Flickinger had worked 11 years) about the post. The firm threatened to fire Flickinger unless he resigned, which he did. He then sued (among others) King, alleging that King "had shared a 'counterfeit' social-media profile that appeared to show that Flickinger was making a controversial political statement on behalf of WPM":

According to Flickinger, the allegedly "counterfeit" social-media profile contained a professional photograph "appropriated" from WPM's Web site that, he said, he had never used on any of his personal social-media platforms as well as the name of Flickinger's employer, which, he maintains, he had "never advertised or shared in conjunction with any of his personal social media posts."

According to Flickinger, digitally merged with this "counterfeit" social-media profile were additional social-media posts appropriated from his personal social-media platforms that were critical of the mass nationwide violence that had been going on in the wake of George Floyd's death….

The court held that Flickinger's claim against King could proceed under a theory of tortious interference with a business relationship; Alabama follows the Restatement (Second) of Torts approach to the tort, under which such intentional interference can be actionable even without a showing that the defendant's conduct was independently tortious. (Many other states bar such liability unless the defendant's conduct was independently tortious, e.g., defamatory, threatening of violence, etc.; that is now the Restatement (Third) of Torts approach.)

The court first held there was sufficient evidence that King's communication to Flickinger's employer caused Flickinger's firing:

Ofer Raban, who is a professor at the University of Oregon School of Law (but who, even more clearly than usual for a law professor, is speaking on behalf of himself and not the law school), passed along this item. I have no direct personal knowledge of the matter, but I thought Prof. Raban's report was interesting and potentially important. I have tried to obtain statements for publication from the law school and the law review, but have not gotten any; naturally, if I do get contrary accounts or perspectives, I'd be happy to pass them along.

From Prof. Raban:

The University of Oregon, the state's flagship public university, is presently investigating a claim of discrimination against an Israeli professor by the Oregon Law Review. Several law school administrators apparently knew of the discrimination, and a high-ranking administrator had even approved it. The target of the discrimination holds an American law degree and has been teaching intermittently in the U.S..

The events unfolded in 2024, after an Oregon Law Review editor recommended the publication of an article written by the Israeli professor. Conceding the article's merits, a second law review editor rejected the recommendation because the author was a faculty member at an Israeli university. The law review management agreed, claiming that publishing the article would be perceived as an endorsement of Israel in the Israeli-Palestinian conflict—although the article dealt with environmental law and had nothing to do with that conflict.

When the original reviewer objected that this may amount to unlawful discrimination, the matter was taken to a high-ranking law school official. A meeting was held, and the official reportedly gave the green light to the discrimination. At least two law school administrators, possibly more, were aware of the stated basis for the rejection and connived in it. A concerned member of the law review (who did not attend the meeting) was told that the law school's administration had cleared the discrimination.

The allegations may involve violations of state and federal anti-discrimination statutes, violations of the state and federal constitutions, violations of the university and the law school's own policies and regulations, and infringements of federal policies, the policy of the Association of American Universities (of which the University of Oregon is a member)—and the university's own statement—regarding academic boycotts of Israel.

Federal courts have long had a strong presumption against pseudonymity; the cases I discuss in The Law of Pseudonymous Litigation are mostly federal cases. Some states have done the same, but many states don't have a lot of caselaw on the subject. In Friday's Doe v. Western Dubuque Comm. School Dist., the Iowa Supreme Court (in a unanimous opinion by Justice Christopher McDonald), generally adopted the federal approach:

Minor Doe, Father Doe, and Mother Doe filed suit against a school district and several school district officials and employees after Minor Doe was attacked by another student during school. The Does asserted claims for negligence, breach of fiduciary duty, and loss of consortium….

On January 12, 2023, Minor Doe was an eighth-grade student attending Drexler Middle School in the Western Dubuque Community School District. She was participating in an industrial arts technology class when another student assaulted her over the head with a board…. According to the petition, the school did not contact proper medical personnel or Minor Doe's parents after the assault…. Minor Doe was diagnosed with a concussion and other injuries….

The substantive analysis in the decision discussed governmental immunities, fiduciary duties, and related matters, but the court had this to say about pseudonymity:

5/12/1790: Justice James Iredell takes the judicial oath.

On Thursday, the Supreme Court will hear oral argument in the birthright citizenship cases. The government's emergency application presents several significant issues about the scope of the nationwide injunctions and other pressing procedural issues. Will the Court settle any of these long-standing, nagging issues? I doubt it. There are certainly five votes, and probably seven votes, and maybe even eight votes, to declare the executive order unconstitutional on its face. That ruling would bring all litigation to a halt. But I doubt there are five votes to reach a consensus about nationwide injunctions. That's why the Court rushed oral arguments: to put together a merits ruling against Trump, and make this case vanish. Chief Justice Roberts has bigger fish to fry in his quest to save democracy from itself.

I think the Court will do something similar with the Alien Enemies Act cases. There are a host of complex procedural issues. Can you certify a class under Rule 23 for a TRO? What is the interaction between the APA and Habeas Corpus? What level of deference is due when the President declares an invasion? And so on. It is far simpler to find that Trump's order was invalid because reasons. The Chief will make up some rationale that does not foreclose a future president from exercising his statutory powers. I offered this prediction a few weeks ago:

I actually think the Court will bypass the 5th Circuit and all of the procedural issues by simply ruling against Trump on the merits.

Meanwhile, deep in the heart of Texas, Judge Hendrix declined to certify a class of the aliens in Abilene Division, even though the Supreme Court's granted relief to the "putative" class on a temporary basis nearly a month ago. I doubt the Supreme Court will ever let a case arrive from the Fifth Circuit. Far easier to affirm a ruling from one of the sensible judges in the Beltway who orders planes to turn around.

Shortly after President Trump's inauguration in 2017, he was sued for violating the Constitution's Foreign Emoluments Clause. That litigation stretched the entirety of Trump's first term in office, but did not reach a clear resolution. After Trump's term concluded, all of those cases fizzled out. Now, we are more than 100 days into Trump's second term. And, to my surprise, there has been zero litigation about the Foreign Emoluments Clause. Likewise, there has been no litigation following Trump v. Anderson about whether Section 3 disqualifies Trump from office. I suppose these were not the constitutional crises that we were told.

Yet, the Foreign Emoluments has still returned to the fore. ABC News reports that the royal family of Qatar will gift a 747-8 jumbo jet to the Air Force for its use as Air Force One. And at the end of Trump's term, the plane will be transferred to the Trump Presidential library foundation. ABC reports that White House Counsel, David Warrington, asked the Department of Justice for an opinion on the gift. The opinion has not (yet) been made public, but ABC offers this account:

Anticipating those questions, sources told ABC News that lawyers for the White House counsel's office and the Department of Justice drafted an analysis for Defense Secretary Pete Hegseth concluding that is legal for the Department of Defense to accept the aircraft as a gift and later turn it over to the Trump library, and that it does not violate laws against bribery or the Constitution's prohibition (the emoluments clause) of any U.S. government official accepting gifts "from any King, Prince or foreign State."

Sources told ABC News that Attorney General Pam Bondi and Trump's top White House lawyer David Warrington concluded it would be "legally permissible" for the donation of the aircraft to be conditioned on transferring its ownership to Trump's presidential library before the end of his term, according to sources familiar with their determination.

The sources said Bondi provided a legal memorandum addressed to the White House counsel's office last week after Warrington asked her for advice on the legality of the Pentagon accepting such a donation. . . .

Both the White House and DOJ concluded that because the gift is not conditioned on any official act, it does not constitute bribery, the sources said. Bondi's legal analysis also says it does not run afoul of the Constitution's prohibition on foreign gifts because the plane is not being given to an individual, but rather to the United States Air Force and, eventually, to the presidential library foundation, the sources said.

It would be useful to see this opinion at some point. It is not presently posted on the OLC web site.

Still, I can imagine what one of the leading authorities might be.

In 1963, there was discussion whether Ireland could confer honorary Irish Citizenship on President Kennedy. The Office of Legal Counsel provided an opinion on this potential gift. Seth Barrett Tillman and I discussed the gift in Part V of our ten-part series. Here is an excerpt:

ABC News reports:

In what may be the most valuable gift ever extended to the United States from a foreign government, the Trump administration is preparing to accept a super luxury Boeing 747-8 jumbo jet from the royal family of Qatar -- a gift that is to be available for use by President Donald Trump as the new Air Force One until shortly before he leaves office, at which time ownership of the plane will be transferred to the Trump presidential library foundation, sources familiar with the proposed arrangement told ABC News.

The gift is expected to be announced next week, when Trump visits Qatar on the first foreign trip of his second term, according to sources familiar with the plans.

Trump toured the plane, which is so opulently configured it is known as "a flying palace," while it was parked at the West Palm Beach International Airport in February.

One might think this gift raises legal issues. Administration lawyers apparently have those bases covered:

sources told ABC News that lawyers for the White House counsel's office and the Department of Justice drafted an analysis for Defense Secretary Pete Hegseth concluding that is legal for the Department of Defense to accept the aircraft as a gift and later turn it over to the Trump library, and that it does not violate laws against bribery or the Constitution's prohibition (the emoluments clause) of any U.S. government official accepting gifts "from any King, Prince or foreign State."

Sources told ABC News that Attorney General Pam Bondi and Trump's top White House lawyer David Warrington concluded it would be "legally permissible" for the donation of the aircraft to be conditioned on transferring its ownership to Trump's presidential library before the end of his term, according to sources familiar with their determination. . . .

Both the White House and DOJ concluded that because the gift is not conditioned on any official act, it does not constitute bribery, the sources said. Bondi's legal analysis also says it does not run afoul of the Constitution's prohibition on foreign gifts because the plane is not being given to an individual, but rather to the United States Air Force and, eventually, to the presidential library foundation, the sources said.

One might also think a gift of this sort could raise security concerns, particularly given the Qatari government's efforts to influence U.S. policy (and universities). Apparently such concerns will be addressed when the plane is modified to meet the requirements for presidential use.

According to the story, the plane is to be transferred to the Trump Presidential Library Foundation no later than January 1, 2029, at the federal government's expense. The story estimates the value of the plane at approximately $400 million.

In unrelated news, the Associated Press reported on April 30:

The Trump family company struck a deal Wednesday to build a luxury golf resort in Qatar in a sign it has no plans to hold back from foreign dealmaking during a second Trump administration, despite the danger of a president shaping U.S. public policy for personal financial gain.

The project, which features Trump-branded beachside villas and an 18-hole golf course to be built by a Saudi Arabian company, is the first foreign deal by the Trump Organization since Donald Trump took office and unlike any done in his first term. Back then, he forswore foreign deals in an extraordinary press conference surrounded by stacks of legal documents as he pledged to avoid even the appearance of conflict of interest.

The Volokh Conspiracy

The Chief's Blue Plate Special On Birthright Citizenship: A Second Helping Of DACA Reliance Interests

Remembering David Souter

Requiring Fifth-Graders to Read Pro-Gender-Ideology Books to Kindergarten Students (with No Opt Out) May Violate First Amendment

Congratulations to the Finalists of the Harlan Institute OT 2024 Virtual Supreme Court Competition

Today in Supreme Court History: May 13, 1912

Revised Version of "Data Scanning and the Fourth Amendment"

Monday Open Thread

Can the President Fire the Librarian of Congress? Turns Out That He Likely Can

Naples (Florida) Restrictions on Drag Performance at Pride Fest Likely Unconstitutional

Prof. Michael McConnell on the Tariff Lawsuits

"Europe Really Is Jailing People for Online Speech," by Prof. Yascha Mounk

Cancellation Litigation: Alabama Court Partly Reinstates Lawsuit Over Getting Someone Fired for Tweet

"Alleged Discrimination at the University of Oregon School of Law," by Prof. Ofer Raban

Iowa S. Ct. Adopts Federal Courts' Presumption Against Pseudonymity

Today in Supreme Court History: May 12, 1790

My Prediction For The Birthright Citizenship Cases: The Court Will Rule Against Trump On The Merits And Bypass All Other Procedural Issues

The Foreign Emoluments Clause, A Qatari Jet, and Honorary Irish Citizenship

Have You Ever Seen an Emolument Fly?

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