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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
The Social Cost of Nullifying the Right to Arms: The Case of Mexico
If the Mexican executive branch obeyed the Mexican Constitution, the Mexican people would be safer
Tomorrow, March 4, the Supreme Court will hear oral arguments in Smith & Wesson v. Estados Unidos Mexicanos. The case involves a lawsuit by the Mexican President claiming that American firearms manufacturers should pay the Mexican government billions of dollars for gun crimes perpetrated against Mexican citizens in Mexico by drug cartels. According to the lawsuit, law-abiding American firearms manufacturers are to blame. A previous VC post described an amicus brief I coauthored, a Crowell & Moring amicus brief in support of the Mexican government criticizing my brief, and my critique of the critique. Into the fray has stepped the South Texas Law Review, with a special symposium issue about the case. The issue is currently at the printer, and should be available very soon. In this post, I will describe my symposium article, The Social Cost of Nullifying the Right to Arms: The Case of Mexico.
The article is coauthored with Joseph Greenlee and Bhav Ninder Singh. In the four part article, two of the parts elaborate on topics addressed in the amicus brief: the false claim that U.S. firearms retailers are the leading source of cartel firearms (Part IV), and the Mexican lawsuit's evasion of the Mexican government's own responsibility for crime in Mexico, which is caused, inter alia, by a culture of impunity fostered by the Mexican government (Part I).
Part II concerns a topic rarely addressed in American legal scholarship: the Mexican Constitution's right to arms. As we detail, the right has been narrowed since it first appeared in Mexico's 1857 Constitution. Today, the right does not include the right to carry arms in public places, and the constitutional text expressly authorizes reserving some types or calibers solely for government use. Accordingly, Mexico's main gun control statute, enacted in 1968, imposes a rigorous licensing system.
However, in contravention of the statute and the Mexican Constitution, the Mexican executive has imposed extra-legal gun control. Only one gun store, operated by the military, is allowed to operate. Contrary to the statute, gun permits are almost never issued, and even then only for .22 caliber handguns. Accordingly, most Mexican are left without the means of defending themselves and their families.
Part III of the article examines collective defense. An important difference between the arms right in the Mexican Constitution and the U.S. Second Amendment (and arms rights in 45 U.S. state constitutions) is that the former is purely for individual defense, whereas the latter also encompasses collective defense, as in a militia. While the Second Amendment belongs to individuals and includes the right of personal self-defense (such as against a lone burglar or rapist), the American right protects the ability of individuals to come together to defend their communities.
Part III.B describes how the Mexican people have practiced community self-defense, such as by coming together to form community militias for protection from cartels and from corrupt governments allied with the cartels. On the whole, the community militias were successful; although they are not as prevalent as they were 15 years ago, the world's largest avocado-exporting region is still safeguarded by a community militia.
Part III.A of the article examines the legality of communal defense in Mexico. Plainly, the right would not be vindicated in a Mexican court today. However, we argue that Mexicans still have the right of collective self-defense, at least in a moral sense. And ultimately as a natural law right that no government can legitimately prohibit. In the Mexican context, the natural right of self-defense was explicated by Catholic scholars--particularly Francisco Suárez (1548–1617) and Francisco de Victoria (1486–1546)--who helped create the legal culture that became the foundation of Mexican law. Victoria, in fact, was deeply involved in then-current controversies over the Spanish conquest of Mexico, and he argued, without persuasive rebuttal, that the pagan Indians of Mexico had a natural law right of collective self-defense against the atrocities of the Spanish invaders.
Tomorrow, the U.S. Supreme Court will not be asked to decide what Mexican law should be, but rather what American law is. Namely, that a 2005 federal statute, the Protection of Lawful Commerce in Arms Act, jurisdictionally forbids American courts from entertaining lawsuits such as Mexico's. However, the broader context of the case is that presidents of Mexico--like the politicians described the Mendoza, Montaner & Llosa book Guide to the Perfect Latin American Idiot--are part of a long tradition of incompetent and/or repressive Latin American governments attempting to deflect popular wrath about the government's malfeasance by blaming the Yanquis. At least in some parts of Mexico, the Mexican federal government is a failed state, and the state failure will not be remedied by Mexico's enlistment of American gun prevention lawyers whose nearly identical lawsuits against law-abiding American manufacturers in previous decades were rejected and prohibited by courts, state legislatures, and the United States Congress.
Webinar on the Future of Humphrey's Executor and Agency Independence
A discussion of whether and when the Supreme Court might overturn Humphrey's Executor v. United States.
Humphrey's Executor may be in the crosshairs. President Trump's decision to remove a range of agency officials, including the Chair of the National Labor Relations Board and the Special Counsel of the Office of Special Counsel, and the Department of Justice's announcement that it will no longer defend Humphrey's Executor as a correct constitutional decision certainly makes it seem like the Supreme Court will soon be faced with a decision whether to uphold this precedent or overturn it.
Tomorrow, I will be participating in a Federalist Society webinar, "You're Fired! Trump, Tenure Protection, and the Future of Humphrey's Executor," to discuss the future of this precedent and so-called independent agencies. Joining me on the program will be Prof. Victoria Nourse (Georgetown), Prof. Dan Epstein (St. Thomas), WIll Yeatman (PLF), and Elizabeth Slattery (PLF) as the moderator. Registration info is here.
Supreme Court Refuses to Consider Whether University "Bias-Response Teams" Chill Speech
Justice Thomas dissents from the Court's refusal to resolve a clear circuit split.
The Supreme Court does not hear many cases these days. It is very stingy in granting certiorari, even in cases that present clear circuit splits. This morning's Order List provides a good example, as the Court denied certiorari in Speech First v. Whitten, which presented the question whether university "bias-response teams" objectively chill students' speech under the First Amendment (and, as a consequence, whether there is Article III standing to challenge them).
Only two justices (Alito and Thomas) indicated their desire to hear this case. One, Justice Thomas, wrote a dissent from the cert denial. It begins:
More than 450 of our Nation's colleges and universities have "bias response teams." These teams "encourag[e] students to report one another for expressions of 'bias,'" and then review and act upon reports. Speech First, Inc. v. Sands, 601 U. S. ___, ___–___ (2024) (THOMAS, J., dissenting) (slip op., at 1–2). In reviewing First Amendment challenges to bias response teams, the Courts of Appeals have split as to whether they "objectively chill" student speech for purposes of Article III standing. I would grant certiorari to resolve that important split.
Why didn't Justice Alito join Justice Thomas' dissent? We don't know, but one possibility is that Justice Thomas tipped his hand as how he is inclined to see the merits:
This case presents an opportunity to resolve an important Circuit split. Three Circuits, when evaluating similar facts, have rejected the Seventh Circuit's view and found that bias response policies "objectively chill" student speech. . . . If this case had proceeded in those Circuits, then Speech First likely would have been able to establish Article III standing. For example, the Sixth Circuit has recognized that a bias response team's "ability to make referrals . . . is a real consequence that objectively chills speech," and that this "lurk[ing]" referral power causes even optional meeting invitations to "carry an implicit threat of consequence should a student decline the invitation." . . . It makes no difference, on the Sixth Circuit's view, if the bias response team itself "lacks any formal disciplinary power."
Briefing Ordered Unsealed in N.J. Case Involving Gag Order on Jewish Woman Who Claimed Her Husband Denied Her Jewish Divorce
Back in 2023, I blogged about S.B.B. v. L.B.B., a New Jersey intermediate appellate court case:
[T]he plaintiff husband and defendant wife were getting divorced, and the wife claimed that the husband wasn't giving her a Jewish religious divorce. (The husband "denied withholding the get, claimed he had given the get to the Chief Rabbi of Elizabeth in June 2020.") To quote the court,
In the Orthodox Jewish tradition, a married woman cannot obtain a religious divorce until her husband provides her with a contract called a "get" (pluralized as "gittin"), which must, in turn, be signed by an "eid," or witness. A woman who attempts to leave her husband without obtaining a get becomes an "agunah" (pluralized as "agunot"), which subjects her to severe social ostracism within the Orthodox Jewish community. Agunot may seek relief in a "beth din," a rabbinical court presided over by a panel of three rabbis. The beth din may then issue "psak kefiah," or contempt orders authorizing sanctions, which include, but are not limited to, the use of force against a husband to secure a get.
The wife made a video, which ended up getting broadly distributed online, and in which she apparently said:
Hi. My name is [L.B.B.]. I'm a mother of four children and I live in the United States without any family for the last seventeen years. In August 2019, my husband left the house and we're trying to get an agreement. We still did not get any of that. I tried to reach … the community Rabbi[ ] for help, and he said he will, and he got the get from my husband, but he is holding it for over a year now. The only way [the Chief Rabbi] can give it to me is by my husband permission. I'm seeking for help. I'm asking whoever can, please help me. To press [the Chief Rabbi] to let go of my get or to press my husband to give [the Chief Rabbi] the proof to give me the get. To release the get. Please, I really need this help. I want this get. I want this nightmare to be behind me. Whoever gonna help me, bracha [blessing] on his head.
This led to dozens of phone calls from strangers to the husband, and the husband said he feared it might lead to violence (which had sometimes happened to Jewish husbands who refused to give gets). The husband therefore sought and obtained a restraining order that
barred defendant from having "any oral, written, personal, electronic, or other form of contact or communication with [p]laintiff," and specifically ordered defendant to "remove any and all posts from all social media platforms requesting the 'get'" and "cease and desist … creating and posting on all social media platforms." …
"The Product of Impulsive, Irresponsible, Exceedingly Immature Behavior, Rather Than a Serious, Contemplated Threat to Harm Police Officers"
An excerpt from Friday's order by Judge Kathleen Williams (S.D. Fla.) in U.S. v. Martinez:
On February 29, 2024, Martinez was indicted on the sole count of transmitting a threat in interstate commerce … after uploading to his private Instagram account a thirty-eight-second recording of him inside his vehicle, pointing a sight-equipped firearm in the direction of a police vehicle driving ahead of him. In the Video, dated November 20, 2023, then twenty-one-year-old Martinez is heard saying "I'm on yo ass like white rice my boy," saying, "red dot, red dot," and laughing. {In fact, the driver of the police vehicle was female School Board Office Yovney Perez.}
Unbeknownst to Martinez, Miami-Dade Police Department Detective Danilo Fuentes … had created a profile impersonating a young woman, in order to gain access to Martinez's private account as a follower. Though the "Instagram story" automatically became unavailable after twenty-four hours, Fuentes saw the Video.
Fuentes had been monitoring Martinez's account for some time and knew Martinez's identity, the type of car he drove, and his address. Fuentes called to check on Perez, who he ascertained was driving the police vehicle in the Video. Perez was unaware of Martinez until alerted by Fuentes. Although Fuentes testified to engaging in periodic surveillance of Martinez's home, no notes were taken during these surveillance activities, no department-wide alerts regarding Martinez were issued, and Martinez was not arrested until two months after posting the Video. Martinez's posting of the Video was charged as a true threat to police officers, generally.
Libel and Allegations of "TERF"ness, DMCA Abuse, and Perjury
[1.] An excerpt from the long decision in Braun v. Day, decided by Judge Mary Rowland (N.D. Ill.) Friday:
[Plaintiff] Propson is a resident of the state of Wisconsin and a licensed mortician. Propson operates at least one social media account under the handle "Lauren the Mortician," where she posts about matters related to her profession. [Defendant] Carter is likewise a social media personality and a self-described "life coach villain" who operates under the handle "@CaffinatedKitti." Carter is a citizen of Georgia.
On or around October 24, 2023, Carter published a video on TikTok where she accused Propson of being transphobic and a "TERF." Specifically, Carter said "Lauren the Mortician is a TERF, I have receipts, I have deets, and you should just go ahead and take a seat." "TERF" is an acronym meaning "trans- exclusionary radical feminist" that at least one dictionary defines as "an advocate of radical feminism who does not believe that transgender people's gender identities are legitimate, and who is hostile to the inclusion of trans-women in the feminist movement." "Receipts" and "deets" are slang words used to mean proof or evidence. Carter further explained that the "receipts" and/or "deets" referenced were evidence of Propson liking "incredibly transphobic and hateful rhetoric and content." Carter later explained that she made the post because people were confusing her for Propson.
Plaintiffs allege that because of Propson's online following, the allegations of her transphobia "spread quickly throughout the internet and became the source of multiple posts, comments, and blog articles." The allegations lowered her standing in the community, dissuaded people "in the content creation community" from associating with her, caused her to lose followers, and caused her to lose a contract with a travel documentary channel, various sponsorships, and a possible contract for a podcast deal….
The court concluded that these allegations were constitutionally protected opinion:
Carter allegedly stated that Propson is a "TERF," or trans-exclusionary radical feminist, and that she is transphobic. Propson alleges that "[b]eing called transphobic is akin to being called a bigot or a racist." The problem for Propson is that courts universally recognize that allegations of racism or bigotry are not actionable in a defamation claim because they express subjective opinions that cannot be proven true or false. See, e.g., Stevens v. Tillman (7th Cir. 1988) ("In daily life 'racist' is hurled about so indiscriminately that it is no more than a verbal slap in the face … [i]t is not actionable unless it implies the existence of undisclosed, defamatory facts."); Tannous v. Cabrini Univ. (E.D. Pa. 2023) ("A statement characterizing someone as racist, like a non-actionable opinion, is a subjective assertion, not sufficiently susceptible to being proved true or false to constitute defamation."); Garrard v. Charleston Cnty. School District (S.C. Ct. App. 2019), aff'd in part & vacated in part (2023) (claims in a newspaper editorial that a high school football coach and his players were "racist douchebags" were not actionable because they were expressions of opinion); Ward v. Zelikovsky (N.J. 1994) (defendant's claim that plaintiffs "hate jews" was nonactionable name-calling). Carter's claims that Propson is transphobic cannot on their own state a claim for defamation.
But Propson urges that, because Carter claimed she had "deets" and "receipts" of Propson's transphobia, her statement was one of "mixed opinion" rather than "pure opinion" and thus actionable. Indeed, Wisconsin law provides that this kind of statement may be actionable "if it implies the assertion of undisclosed defamatory facts as the basis of the opinion." But this argument also fails because the "facts" that Carter implied the existence of were neither undisclosed nor defamatory….
Propson alleges Carter called her transphobic because Propson "liked posts by a conservative social media personality." Carter then allegedly "compiled a list of posts" that Propson liked which contained "transphobic and hateful rhetoric," and she allegedly showed that list of liked posts in her public video. In other words, Carter explicitly disclosed the facts that formed the basis of her opinion. As to whether the facts were defamatory—the facts that allegedly formed the basis of Carter's opinion are not defamatory for the same reason the underlying statement is not defamatory. They are more non-actionable opinions. Propson does not dispute that she "liked" the allegedly transphobic social media posts; she only disputes whether the posts themselves were transphobic. And whether those posts were indeed transphobic is, like Carter's claim that Propson is transphobic, a matter of opinion that cannot form the basis of a defamation claim. Propson's claim for defamation fails because it is based on nonactionable opinion; she cannot save that claim by buttressing it with other opinions that are also not actionable….
Propson further argues that a claim of bigotry can be actionable if it is made with enough specificity to be verifiable, citing to Overhill Farms. The defendants there accused Overhill of being racist, of engaging in specific "racist firing" practices, and of discriminating against various groups of Latino immigrant workers. Overhill Farms, Inc. v. Lopez (Cal. Ct. App. 2010). The court held that the statements at issue were "not merely a hyperbolic characterization of Overhill's black corporate heart—[they] represented an accusation of concrete, willful conduct." Here, there are no relevant accusations of concrete or willful conduct that can be proven or disproven. There is only Carter's belief that Propson is transphobic, buoyed by Propson expressing her opinion by liking posts that Carter also believed to be transphobic. This cannot support a claim for defamation. As a result, Count I of the amended complaint is dismissed with prejudice.
[2.] The court also rejected Braun's defamation claim based on the allegation "that Braun filed a "bad faith" or "false" copyright claim against her":
Today in Supreme Court History: March 3, 2019
3/3/2019: Schenck v. United States decided.
Expressive Discrimination: Universities' First Amendment Right to Affirmative Action — Part 2
Continuing my serial blogging on whether private universities can use a Boy Scouts expressive association theory to have race-based affirmative action.
Last week, I started blogging about my new article Expressive Discrimination: Universities' First Amendment Right to Affirmative Action, just published by the Florida Law Review. In these days of federal attacks on private DEI, maybe some private universities might find this useful as a strategy for fighting back against the Trump Administration! If you want to see the PDF with all the juicy footnotes, read the whole thing.
I. How to Be Like the Boy Scouts
A. The Prima Facie Case
The Boy Scouts revoked assistant scoutmaster James Dale's adult membership in the Boy Scouts when it found that he was gay. It explained that the Boy Scouts "specifically forbid[s] membership to homosexuals." Dale sued, and the state courts found that such discrimination violated New Jersey's public accommodations statute. Nonetheless, the Boy Scouts won: the Supreme Court held that applying the statute that way violated the Boy Scouts' expressive-association right.
First, the Court held that, as a threshold matter, the expressive-association right applied. This right "is not reserved for advocacy groups"; it applies more generally to any groups that "engage in some form of expression, whether it be public or private." The Court determined that the Boy Scouts was expressive by examining its mission statement—part of the mission is "helping to instill values in young people," which the organization does through its scoutmasters and assistant scoutmasters. "It seems indisputable that an association that seeks to transmit such a system of values engages in expressive activity."
Second, the Court held that "the forced inclusion of Dale as an assistant scoutmaster would significantly affect the Boy Scouts' ability to advocate public or private viewpoints." The Boy Scouts' teachings were contrary to homosexuality—the Court deferred to the organization's assertion that this was so, but there was also some evidence of this in the organization's past statements. And "Dale's presence as an assistant scoutmaster would significantly burden the Boy Scouts' desire to not 'promote homosexual conduct as a legitimate form of behavior.'" Here, too, the Court deferred to the "association's view of what would impair its expression," but it was also clear that, in light of Dale's identity and visible gay activism, his "presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."
Let's see how universities would do under this framework.
Perils of Unitary Executive Theory
The originalist case for a unitary executive falls apart in an era when many of the powers wielded by the executive branch were not originally supposed to be federal powers in the first place.
Much of the litigation surrounding the new Trump administration turns in part on "unitary executive" theory - the idea that the president should have near-total control over the executive branch of government.
As I explained in a 2018 post on this topic, unitary executive theory is one of the few issues on which I have changed my mind during the Trump era. Most of my opposition to the Trump-era GOP is based on that party's turning strongly against positions I had held previously, on issues like immigration, free trade, federalism, free speech, and the role of the United States in the world. Unitary executive theory is an exception. This post builds on, adapts and expands material from my 2018 piece and explains why unitary executive theory cannot be accepted in a world where the federal government wields vastly greater power than it is supposed to have under the original meaning.
Before going into detail, it's worth emphasizing what unitary executive theory (UET) is - and what it is not. UET is a theory of the distribution of executive power, not a theory of its scope. Even if all or nearly all executive authority is concentrated in the hands of the president, its scope could potentially still be quite narrow, if the total amount of executive power is very limited. For example, even if UET is correct, the Trump administration's multifaceted effort to usurp the spending power is still unconstitutional, because the power of the purse is not an executive power at all. It belongs to Congress.
Still, the modern scope of executive power is very broad, in large part because the federal government has intruded into so many areas beyond what it was supposed to control under the original meaning of the Constitution. And that undermines the case for UET.
In some ways, the originalist case for a unitary executive is as compelling as ever. Article II of the Constitution states that "The executive Power shall be vested in a President of the United States of America." It does not say that executive power can be divided between the branches of government or given to bureaucratic agencies independent of presidential control. This strongly implies that he is supposed to have all the power given to the executive branch, except such as is specifically allocated elsewhere in other parts of the Constitution.
If the executive branch still wielded only the relatively narrow range of powers it had at the time of the Founding, the case for the unitary executive would be pretty strong (at least on originalist grounds). Unfortunately, however, the current scope of executive authority goes far beyond that. To take just one noteworthy example, the president now presides over a vast federal law-enforcement apparatus, much of it devoted to waging the War on Drugs (which accounts for the lion's share of federal prosecutions and prisoners). Under the original meaning of the Constitution - and the dominant understanding of the first 150 years of American history - the federal government did not have the power to ban in-state possession and distribution of goods. That's why it took a constitutional amendment to establish federal alcohol Prohibition in 1919. Giving the president control over the waging of the federal War on Drugs is giving him a power the federal government was never supposed to have in the first place. Immigration is another field where the executive now wields vast power, despite the fact that, as James Madison and others pointed out, the original meaning of the Constitution actually did not give the federal government any general power to restrict migration into the United States.
The same holds true for a great many other powers currently wielded by the executive branch. The original Constitution does not authorize the federal government to regulate nearly every aspect of our lives, to the point where we have so many federal laws that a majority of adult Americans have violated federal criminal law at some time in their lives (to say nothing of civil law).
There is nothing originalist about giving the president such unconstitutional powers. If "executive" power is the power to "execute" federal laws authorized by the original meaning of the Constitution, it does not apply to powers that have no such authorization. The only way to truly enforce the original meaning in such cases is to remove such authority from federal hands altogether. But if we cannot or will not do that, there is no reason to think that giving the power to the president is any better - from an originalist point of view - than lodging it somewhere else. Either way, someone in the federal government will be wielding power that they are not supposed to have under the original meaning of the Constitution.
In many cases, it might be more in the spirit of the Founding Fathers to divide this overgrown authority than to give it all to the President. Likewise, Congress can also create independent officials tasked with investigating the executive branch's use of its nonoroginalist powers to make sure it stays within various legal and ethical constraints. That suggests the courts should uphold the constitutionality of laws preventing Trump from firing special counsels and inspectors general without cause. After all, the Founders repeatedly warned against excessive concentration of power in the hands of any one person. They would be especially appalled to see it in the hands of of an office whose occupant is now selected by a far more populist selection process than the Founders intended, and therefore more likely to be a dangerous demagogue.
Obviously, not everyone is an originalist. Many nonoriginalists are comfortable with the current scope of federal power, and oppose efforts to bring it closer to its original scope. But if you are a nonoroginalist about the scope of federal power, you also have good reason to be a nonoriginalist about its distribution. Given the enormous authority of the modern executive branch, it is dangerous to concentrate all of that power in the hands of any one man - especially in an era when James Madison's warning that "Enlightened statesmen will not always be at the helm" seems more prescient than ever.
Defenders of UET - even when it comes to powers beyond the scope of the original meaning of the Constitution - often claim it is desirable because it enhances political accountability. Even if true, this is a claim about what is pragmatically desirable, not about the text and original meaning of the Constitution. But the claim is dubious even on its own terms. The greater the scope of executive power, the harder it is for rationally ignorant voters to keep track of more than a small fraction of it. Realistically, most voters know very little, if anything, about the functions of most federal government agencies. Moreover, the greater the scope of presidential power, the harder it is to figure out how to weigh the president's performance in one area against what he does in others (assuming there is variation in quality, as will often be the case). It is therefore unlikely that concentrating a vast range of power in the hands of one person does much to enhance accountability. I discuss the tradeoff between accountability and scope of government power in more detail in my book Democracy and Political Ignorance: Why Smaller Government is Smarter.
Even if you think voters are more knowledgeable about executive agencies than I do, it doesn't follow that accountability is furthered by UET. Well-informed voters can instead impose it through Congress. If they don't like the performance of an independent agency, they can vote for senators and representatives who will abolish it, curtail its powers, or make it subject to greater presidential control.
In sum, at least when it comes to the distribution of power that was never supposed to be in the hands of the federal government in the first place, there is no good reason - originalist or otherwise - to give it all to the president. That does not answer the question of exactly which nonoriginalist powers should be insulated from presidential control and which should not. But it does suggest the question cannot and should not be answered by reference to originalist unitary executive theory. It also suggest that originalists should prioritize reducing the scope of executive power over restoring unitariness. Indeed, the former is the only safe (and originalist) way to enable the latter.
More On Unpublished Opinions And En Banc Stratagems In The Fifth Circuit
For nearly four years, there was a never-ending drumbeat about how the Fifth Circuit was an existential threat to the rule of law. Yet, over the past two months or so, it has gotten very quiet. That giant sucking sound you hear, as Ross Perot might have said, is all of the cases flooding north to the First and Fourth Circuits.
Yet, the Fifth Circuit remains the most interesting circuit in the country. I recently blogged about an unpublished opinion concerning Planned Parenthood. I suggested that the panel's choice to make the opinion unpublished was an attempt to shield the case from en banc review.
Another case raises some similar issues.
On January 10, 2025, the Fifth Circuit issued a published opinion in United States v. Bell (23-50755). Four days later, there was a docket notation that (at least) one judge has held the mandate. On the Fifth Circuit, any judge can hold the mandate. Once such a hold is made, there is a signal to the parties that rehearing is more likely. On January 24, 2025, the United States filed a petition for panel rehearing. (The government did not file a petition for rehearing en banc). On January 27, 2025, the Fifth Circuit requested the defendant to respond to the petition. The response was filed on January 31.
Fast-forward to February 28. There were several docket notations in rapid succession. First, the published opinion from January 10 was withdrawn. Second, an unpublished opinion was filed in its place. I've generated a redline version. There were many substantive changes made. Third, the judgment was entered and filed. Fourth, it was revealed that a member of the Fifth Circuit requested a poll for rehearing en banc, and that poll failed (more on the vote later). And fifth, the order withholding the issuance of the mandate was vacated, meaning that one or more judges released the hold.
So the bell has tolled for Bell, barring certiorari. Still, this incident provides some proof that making a decision "unpublished" is a means to avoid en banc review.
But there is much more to this situation.
The government only filed a petition for panel rehearing. DOJ did not seek a petition for rehearing en banc. But at least one member of the en banc court sua sponte asked for a poll, as the rules permit. The order states:
The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor, on the Court's own motion, rehearing en banc is DENIED. In the en banc poll, five judges voted in favor of rehearing (Judges Jones, Smith, Duncan, Engelhardt, and Oldham), and twelve judges voted against rehearing (Chief Judge Elrod and Judges Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Ho, Wilson, Douglas, and Ramirez).
Judge Ho, who concurred in denial of rehearing wrote a brief statement:
Our court's internal operating procedures expressly permit rehearing en banc "whether or not a party filed a petition." 5th Cir. R. 40 I.O.P. Our procedures even observe that we "frequently" grant en banc at the request of "a judge of the court rather than a petition by the parties." Id. See also Neese v. Becerra, 127 F.4th 601, 603 n.1 (5th Cir. 2024) (Ho, J., dissenting from denial of rehearing en banc).
. . . Despite all of this, it may be tempting at times to question an en banc poll where "the losing side chose not to seek en banc rehearing" (as was said in Neese). . . .
And it's precisely because we're flawed that we should apply the same principles no matter how popular (or not) the call for en banc. It was said in Neese that "[t]he poll failed 16–1." That vote might be a nightmare for those who fear being an outsider. Cf. C.S. Lewis, The Inner Ring (1944), available at https://www.lewissociety.org/innerring/. But judges swear an oath to uphold the law, without fear or favor. A call for en banc can be unpopular yet principled. Cf., e.g., Coral Ridge Ministries v. So. Poverty Law Ctr., _ U.S. _ (2022) (Thomas, J., solo dissent from denial of certiorari); Ben-Levi v. Brown, 577 U.S. 1169 (2016) (Alito, J., solo dissent from denial of certiorari).
For those who do not follow the Fifth Circuit's en banc docket closely (and why would you not!?) Neese v. Becerra was decided on January 31. In this case, the Fifth Circuit voted 16-1 to deny en banc review in a challenge to a Biden-era transgender rule. Only Judge Ho voted to grant review. Judge Duncan concurred in the denial of rehearing en banc, joined by Judges Jones, Smith, Willett, Oldham, Engelhardt, and Wilson. (Five of those seven voted to rehear Bell.) Judge Duncan wrote:
Even though the losing side chose not to seek en banc rehearing, one judge called for an en banc poll. The poll failed 16–1. That should surprise no one, because there was no plausible reason to rehear this case.
Judge Ho replied to Judge Duncan:
A brief response to my concurring colleagues: The fact that Executive Branch officials have dutifully done their job doesn't mean that we needn't do ours. Nor is our job obviated by the fact that Plaintiffs calculated (correctly, as it turns out) that a rehearing petition would not be an efficient use of their resources. Our rules plainly authorize us to rehear cases en banc on our own motion, precisely to alleviate litigants of unnecessary litigation burdens. See Fed. R. App. Proc. I.O.P. 40 ("Requesting A Poll On Court's Own Motion"). The only question is whether a particular case warrants en banc.
By denying rehearing en banc, our court today leaves on the books a published, precedential ruling that overturns the district court's dutiful efforts and validates administrative overreach in an area of profound sensitivity. I've previously expressed my concerns about allowing government officials to engage in procedural stratagems to avoid judicial review. See U.S. Navy SEALs 1-26 v. Biden, 72 F.4th 666, 677 (5th Cir. 2023) (Ho, J., dissenting) (citing Tucker v. Gaddis, 40 F.4th 289, 293 (5th Cir. 2022) (Ho, J., concurring)). Our decision today continues the pattern.
And we're not quite done. On February 26, 2025, the Fifth Circuit denied en banc review in Spring Siders v. City of Brandon, Mississippi. Here, the en banc poll was 15-2. Chief Judge Elrod and Judge Ho would have granted rehearing. Judge Ho wrote a solo dissent. Judge Oldham concurred in the denial of rehearing en banc, which was joined by Judges Jones, Smith, Willett, Duncan, Engelhardt, and Wilson. This septet is the same bloc that concurred in Neese, and includes the same quintet that dissented in Bell. You can see what Judge Ho was getting at by citing C.S. Lewis's "The Inner Ring." I need to do a more careful study of voting blocs on the en banc court.
Judge Oldham's opinion contends that en banc review was not appropriate in Spring Siders:
If this case implicated the First Amendment's Religion Clauses, the result might have been different. But rhetorical flourish is no substitute for the facts and law in the case before us.
Judge Ho, once again, replies:
I get that my concurring colleagues are content to just let this matter go to trial. But that seems unnecessarily grudging to me. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," warranting preliminary injunctive relief in advance of trial. Elrod v. Burns, 427 U.S. 347, 373 (1976). See also Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012) (same). Maybe Siders will someday prevail at trial. But until then, her right to evangelize will just have to wait.
There is a lot going on here. The interpersonal dynamics of the Fifth Circuit are unlike any other court in the country, even the U.S. Supreme Court. I realize everyone is focused now on the (yawn) Fourth Circuit and the (snooze) First Circuit. But the real action is deep in the heart of Texas.
Washington's Neutrality Proclamation And Trump's Ukrainian Proclamation
During the American Revolutionary War, France made the strategic decision to assist the fledgling United States. A primary, if not motivating factor, was that France sought to weaken its adversary Great Britain. In effect, the American Revolutionary War became something of a proxy conflict between Great Britain and France. I'm not sure the French monarch had much of an abstract interest to support an uprising by a ragtag bunch of colonists against another colonial superpower. Still France's support of the Continental Army was pivotal. But for this support, we might still be paying taxes on our tea.
France benefited from the American victory. It is no coincidence that the treaty of peace between Great Britain and the United States was signed in Paris. France became the United State's greatest supporter. America sent its top diplomats, John Adams and Thomas Jefferson, to Versailles.
Yet, the French Monarch's support of American war efforts may have had an unintended consequence--as military intervention often does. The American Revolution set the fuse of revolutionary efforts around the world. The French revolution was a byproduct of the American Revolution.
Imagine the counterfactual. What if the French monarch decided to not assist the Americans, and Great Britain put down the domestic violence. (That would be an actual insurrection!) Would the French Revolution have ever succeeded? Who could ever know for sure. But reality is known, and the French monarch's support of revolution in America contributed to the end of the monarchy. And heads rolled.
Fast-forward to April 1793. War broke out between Great Britain and France. What does the United States do? At the time, many Americans felt a strong sense of loyalty towards France, especially in light of their support for the Continental Army. Likewise, many Americans felt a strong sense of hostility towards Great Britain. Wouldn't it make the most sense to support France?
President George Washington made a fateful decision: he issued the Neutrality Proclamation. The United States, and the American people, would play no role in the conflict. This proclamation today is studied largely from the perspective of the separation of powers. Alexander Hamilton as Pacificus argued that Washington had the executive power to issue the proclamation. James Madison as Helvidius argued that Congress, and not the President, had the power to set foreign policy. But beyond these legal issues, Washington made a political judgment. He deemed it better to stay neutral, even at the cost of alienating America's staunchest ally. Washington recognized that in the field of foreign affairs, alliances are fluid. Allies become enemies and enemies become allies. These relationships are not fixed in stone, but wax and wane based on present-day circumstances. Several months after the Proclamation, France recalled Citizen Genet.
I think history has vindicated Washington's political judgment as an important act of statecraft. But in modern times, Washington's vision has been obscured. Institutions like the United Nations and NATO are premised on the notion that all members must treat other members equally in perpetuity. And after World War II, there have been a never-ending string conflicts where powerful nations exert military force to promote some aspirational goal. In each case, those conflicts have been largely unsuccessful at the cost of much bloodshed. Korea. Vietnam. Afghanistan. Iraq. And so on.
I write this as a reformed Hawk! If you had talked to me in 2002 or 2003, I would have said the Bush Doctrine was just, and the United States had the moral cause to spread democracy around the globe. The events of the last decade or so have convinced me that model is so badly flawed. How many Americans died in Afghanistan over the course of two decades? And what happened as soon as Americans pulled? The Taliban resumed power.
This background brings me to the current conflict in Ukraine. I don't pretend to possess any special knowledge about foreign policy. But from my narrow viewpoint, I see not a revolution of foreign policy, but a restoration. Trump is doing what Washington recognized early on: it will no longer be the policy of the United States to support military efforts abroad unless those conflicts directly advance American interests. Trump said, "I'm not aligned with Putin. I'm not aligned with anybody. I'm aligned with the United States of America." The failures of the past century provide ample support for Trump's view. Elites will howl that we are abandoning our allies and post-World War II settlements, and so on. These relationships are not fixed in stone, but wax and wane based on present-day circumstances.
To be sure, there will likely be a tragic loss for the Ukrainians. But those losses are compounded on top of so many more losses over the past several years. From the outset, this was a futile war that could never be won by Ukraine. At most, this conflict could have led to a fragile stalemate that could explode at any time. When Trump says the war could have been avoided, he means that Ukraine should have simply surrendered a war it could not win, and relinquished the territory that was sought by Russia. Treatises of law review articles about international law says that countries do not barter territory anymore. Says who? Law professors?
At least in ancient times, when a larger nation threatened a smaller nation, and demanded certain territory, the smaller nation faced a stark choice: surrender the land or suffer mass casualties and then surrender the land. The post-WWII settlement provides that other large nations will intervene to help the small nation to promote some aspirational principles. But that approach seldom works. And it pains elites to admit as much. Trump says what others are unwilling to say. He does so crassly, and in an insulting fashion, but stripped of the hyperbole, his message is a timeless one. (And I have to imagine Trump harbors some resentment against Zelensky in particular for the events leading to the first impeachment.)
I think restoration describes the Trump approach in more ways than one. On a panel, I recently praised DOGE as a way to destroy the Wilsonian civil service model, and bring back the Jacksonian spoils system. Another panelist said that it was wrong to praise Jackson, because the spoils system was so problematic. To be sure, there were problems with the spoils system, but I see far greater problems with the permanent bureaucracy. If forced to choose between Wilson and Jackson, I know who I'd pick. Again, we are witnessing a restoration, not a revolution.
What the Supreme Court Said about Dellinger v. Bessent in Seila Law v. CFPB
A district court judge has concluded that President Trump cannot remove the head of the Office of Special Counsel without cause. Supreme Court review is inevitable.
Last night, Judge Amy Berman Jackson held that President Trump's removal of Hampton Dellinger as the Special Counsel of the Office of Special Counsel was unlawful. [Note, this involves a specific office in the federal government, and not "special counsels" like Robert Mueller appointed to investigate alleged executive branch wrongdoing.]
in Dellinger v. Bessent, Judge Jackson rejected the Trump Administration's argument that the statutory provision barring the removal of the Special Counsel without cause unconstitutionally constrains the President's authority to remove executive branch officers. She wrote:
The Court finds that the statute is not unconstitutional. And it finds that the elimination of the restrictions on plaintiff's removal would be fatal to the defining and essential feature of the Office of Special Counsel as it was conceived by Congress and signed into law by the President: its independence. The Court concludes that they must stand.
The Department of Justice has already filed its notice of appeal, and eventual Supreme Court review seems assured.
With that in mind, it is interesting to note what the Supreme Court said about the Office of Special Counsel in Seila Law v CFPB. In concluding that Congress could not protect the head of the CFPB from removal without cause, Chief Justice Roberts addressed other agencies headed by single individuals, including the OSC. He wrote:
the supporters of the CFPB point to the Office of the Special Counsel (OSC), which has been headed by a single officer since 1978. But this first enduring single-leader office, created nearly 200 years after the Constitution was ratified, drew a contemporaneous constitutional objection from the Office of Legal Counsel under President Carter and a subsequent veto on constitutional grounds by President Reagan. See Memorandum Opinion for the General Counsel, Civil Service Commission, 2 Op. OLC 120, 122 (1978); Public Papers of the Presidents, Ronald Reagan, Vol. II, Oct. 26, 1988, pp. 1391–1392 (1991). [FN7: An Act similar to the one vetoed by President Reagan was eventually signed by President George H. W. Bush after extensive negotiations and compromises with Congress. See Public Papers of the Presidents, George H. W. Bush, Vol. I, Apr. 10, 1989, p. 391 (1990).] In any event, the OSC exercises only limited jurisdiction to enforce certain rules governing Federal Government employers and employees. See 5 U. S. C. §1212. It does not bind private parties at all or wield regulatory authority comparable to the CFPB.
As this passage indicates, there are potential grounds for distinguishing this case from prior decisions upholding and rejecting limitations on the President's removal authority. On the one hand, the Office of Special Counsel is within the executive branch and is headed by single individual, like the CFPB. Thus the Court could decide in favor of President Trump without overturning Humphrey's Executor (at least not in this case).
On the other hand, the Office of Special Counsel has more limited responsibilities, and the Special Counsel might even be an inferior officer. Thus the Supreme Court could potentially uphold the removal restriction by relying upon Morrison v. Olsen and United States v. Perkins, without undercutting Seila Law or foreclosing the opportunity to revisit Humphrey's Executor in a later case.
Note that Chief Justice Roberts' opinion addressed the constitutionality of limitations on removal for the head of the Federal Housing Finance Agency (FHFA), but offered fewer grounds for distinguishing the two agencies. In short order the Supreme Court considered the FHFA's removal limitations and held them unconstitutional in Collins v. Yellen.
As I have written here and in Civitas Outlook, the Supreme Court is almost certain to revisit Humphrey's Executor within the next year. And while this may be the first of the Trump removal cases the Supreme Court has to decide, it may not be the one that puts Humphrey's Executor in the crosshairs.
How Will Chief Justice Roberts Split The Baby In Dellinger?
Roberts will find that the removal was unlawful, but that the court lacks an equitable cause of action to reinstate it, leaving backpay as the only available judicial remedy.
I know it is conventional wisdom that the Supreme Court will overrule Humphrey's Executor. As I joked on a recent panel, Humphrey's Executor, like William Humphrey, is dead. (And I have his death certificate to prove it.) Yet, I am not so sure the Court will actually pull the trigger on Humphrey's Executor. In early February, I wrote that Roberts and Justice Barrett would save Humphrey's Executor as a way to repudiate Trump himself. They might overrule the case at some future time. But not in the first few months of the Trump Administration. That would be seen as an unconditional surrender to the new regime.
But how can the Chief Justice salvage the situation? What will be the John Roberts Blue Plate Special? There are so many classics! Giving Congress another chance to revise the Voting Rights Act. Upholding the individual mandate as a tax on the uninsured. Allowing states to opt into the Medicaid Expansion. Blocking the rescission of DACA until the government considers the reliance interests. Blocking the census question until the government takes further action. Blocking the congressional subpoena for Trump's tax returns until it follows some incoherent test. Ruling that the eviction moratorium is unlawful, but giving the Administration a chance to stop enforcing it. And so on. Roberts's legacy will be a series of too-cute-by-a-half rulings that resolved the precedent at hand without setting any actual meaningful precedent. None of these rulings will be remember once he leaves his court. His impact will fade quicker than Justice Kennedy's.
I think I figured out what Roberts's play will be. As best as I can recall, the presidential removal cases that have come to the Supreme Court did not concern re-instatement. Rather, Meyers and Humphrey sought backpay. So in all regards, the Walter Dellinger case, which seeks reinstatement, is novel. Dare I say, unprecedented. (To be clear, Dellinger argues that he was never legally fired, since Trump did not show cause, so he does not need to be reinstated, but I still think the effect of the remedy has to be one of reinstatement.)
Justice Gorsuch's dissent in the Hampton Dellinger case contended that the Court lacks an equitable cause of action to order reinstatement. I think he is correct.
What will John Roberts do? The Chief Justice can hold that the removal of Dellinger was unlawful but the Court lacks the power of reinstatement. Dellinger, at most, can seek backpay in the Court of Federal Claims. Then, it is up to Trump to decide whether to recognize Dellinger as the lawful holder of the office. That way, Roberts does not need to stomach forcing the President to reinstate Dellinger. This move would resemble Chief Justice Taney's opinion in Ex Parte Merryman. Taney did not order Lincoln, or anyone else to release Merryman. Taney only ruled that the continued detention of Merryman was unlawful. Roberts would not actually issue an order against the President, but hope he complies with it voluntarily.
There is another, less dramatic variant. Generally, if an injury cannot be remedied, the Court lacks jurisdiction. Everyone remember California v. Texas? If the Court lacks the power to reinstate Dellinger, then an opinion finding his removal was unlawful would be advisory. Therefore, the entire case must be dismissed for lack of jurisdiction. Dellinger can start over in the Court of Federal Claims, which can then adjudicate the legality of the removal, with proper jurisdiction. That case might reach the Supreme Court in two years or so. At that point, no one will remember this conflict. This would probably be Justice Barrett's preferred option. Redressability is her favorite jurisdictional prong. Indeed, if Barrett fractures with Roberts, then the Chief has a green light to issue any sort of opinion he wants, since it will not command a majority of the Court.
The District Court issued a 67-page summary judgment opinion in favor of Dellinger. That case seems to be moving faster than the Wilcox NLRB matter. The race is on.
The California Bar Exam's February Fiasco
An online administration meltdown and question leaks leave test takers frustrated and furious and others demanding answers.
It appears the February administration of the California bar exam was a bit of a fiasco. Many trying to take the exam online were locked out and prevented from finishing, or in some cases even starting, the exam. The Bar planned for a retake, but it appears at least some questions were leaked online. A class action suit has already been filed and some are proposing provisional licensure for test takers as the mess is sorted out. The new exam was supposed to save the California Bar money, but it will not work out that way.
Paul Caron has assembled coverage of the mess over at TaxProf Blog in posts here and here, and will likely post follow ups as the story unfolds.
Today in Supreme Court History: March 2, 2016
3/2/2016: Whole Woman's Health v. Hellerstedt argued.
"Humiliating for Every American"
Guest post from John Taylor, Episcopal Bishop of Los Angeles
If anyone cares to defend yesterday's disgraceful display by our Mafioso-in-Chief, be my guest, in the comments below. Surely this crosses the line, even for the diehards. I've asked a thousand times on this blog: what can this guy do that would make his supporters disavow and disown him? [the "Murder on 5th Avenue in Broad Daylight" question] Perhaps this was it? Are there really no Republicans out there who have the courage to stand up and say: "All Americans should be deeply ashamed of what he has done in our name, and deeply ashamed of how he did it." No?
The text is by John Taylor, Bishop of the Episcopal Diocese of Los Angeles [and, interestingly, the former director of the Nixon Presidential Library]. Emphases are mine. /DP
#AmericanCoup Seeing Putin's boys bully a besieged freedom fighter in the Oval Office was humiliating for every American. Since there is no presidential precedent for the public brutalizing of an ally, we reach for fiction and Mayor Carmine DePasto, from the comedy "Animal House," and his summit with the dean of Faber College. "If you want this year's homecoming parade in my town," he says, "you have to pay." When the dean accuses him of extortion, the mayor replies, "Look, these parades are very expensive. You're using my police, my sanitation people, my three Oldsmobiles. So if you mention extortion again, I'll have your legs broken."
The Case Against Taxing University Endowments
Tax professor Erik Jensen suggests taxes on large university endowments are not as good idea as some people think.
Some universities have multi-billion-dollar endowments. Should they be taxed? I am no tax expert, but I have long been concerned that the case for taxing endowments looks a bit like the case for taxing wealth generally. Yet some conservatives support the former while opposing the latter.
In 2017, as part of the Tax Cuts and Jobs Act, Congress imposed a 1.4 percent tax on the net investment income of large, well-endowed universities. The question now is whether it should be expanded.
My colleague Erik Jensen knows far more about tax law than I do, and he had a piece this week in Civitas Outlook suggesting why taxes on university endowments is not such a great idea. Not only does the tax raise minimal revenue, it induces universities to waste more money on accountants and administrators to account for and avoid the tax (and its "cliff effect"), and its costs are not ultimately borne by universities as institutions.
In form, colleges pay the tax, just as corporations pay the corporate income tax. But everyone except Bernie Sanders knows that the economic burden of corporate tax is borne by some combination of investors, employees, and customers—not the targeted corporations, which are legal fictions. Economist Douglas Holtz-Eakin has similarly argued that "in the near-term, the students and university employees will bear the brunt of the [endowment] tax." Is that desirable?
Jensen also suggests that if the purpose of the tax is to penalize universities for being too progressive or "woke," that is a misguided justification for the policy.
I defer to no one in my dislike of wokeness, but it's a bad idea to have the federal government attacking educational institutions for permitting disfavored views. If a college is nothing but a platform for political indoctrination, challenge its tax-exempt status. But despite what you may have read, no elite university is tainted with wokeness from top to bottom. Yes, even departments in the hard sciences and engineering have overdone wokeness in hiring and promotions, but it's hard to see how a course in physics or a research lab is going to be excessively woke.
In any event, the idea that an institution should be taxed because politicians think it's too woke should make all who care about academic freedom nervous. (We should be similarly nervous about any proposed federal mandates requiring wokeness.) I'll leave to First Amendment scholars the question of whether an anti-wokeness motivation for a tax violates the Constitution. But, even if constitutional, it's not something Congress should do.
