The Volokh Conspiracy

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

Kilmar Abrego Garcia, led by guards through the Terrorism Confinement Center in Tecoluca, El Salvador. (NA)

When the Supreme Court ruled that the Trump Administration must "facilitate" the return of Kilmar Abrego Garcia, a Salvadoran migrant illegally deported to imprisonment in El Salvador, I noted it was an important victory for immigrant rights, but also warned the administration might try to weasel its way out of compliance by applying a very narrow definition of "facilitate" that licenses near-total inaction. Sadly, this is exactly what happened.

When the case was remanded back to the district court, Judge Paula Xinis issued an order instructing the defendants to "take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible." The government indefensibly interpreted this as merely requiring it to remove "domestic" obstacles to his return, making no effort to get the Salvadoran government to release him from prison. That makes no sense in a context where the Salvadorans had imprisoned Abrego Garcia at the behest of the US, and the Trump Administration could easily secure his release simply by demanding it. As conservative legal commentator Ed Whelan puts it: "The administration is clearly acting in bad faith… The Supreme Court and the district court have properly given it the freedom to select the means by which it will undertake to ensure Abrego Garcia's return. The administration is abusing that freedom by doing basically nothing."

The Administration coupled this bad-faith failure to follow the Supreme Court's and district court's orders with unsubstantiated claims that Abrego Garcia was a member of the MS 13 drug gang. They have no evidence for that. And if they did, the proper course of action is to charge him with it in court, rather than deportation and imprisonment without due process.

Judge Xinis appears to agree with Whelan's assessment. In an order issued today, she chastizes the the Administration for doing "nothing" to bring Abrego Garcia back to the US and rejects the assumption they need only remove "domestic" impediments:

Defendants… remain obligated, at a minimum, to take the steps available to them toward aiding, assisting, or making easier Abrego Garcia's release from custody in El Salvador and resuming his status quo ante. But the record reflects that Defendants have done nothing at all. Instead, the Defendants obliquely suggest that "facilitate" is limited to "taking all available steps to remove any domestic obstacles that would otherwise impede the alien's ability to return here…." The fallacy in the Defendants' argument is twofold. First, in the "immigration context,….." facilitating return of those wrongly deported can and has included more extensive governmental efforts, endorsed in prior precedent and DHS publications. Thus, the Court cannot credit that "facilitating" the ordered relief is as limited as Defendants suggest.

Second, and more fundamentally, Defendants appear to have done nothing to aid in Abrego Garcia's release from custody and return to the United States to "ensure that his case is handled as it would have been" but for Defendants' wrongful expulsion of him. Abrego Garcia, 604 U.S.— , slip op. at 2 [citing Supr. Thus, Defendants' attempt to skirt this issue by redefining "facilitate" runs contrary to law and logic.

Judge Xinis goes on to order extensive expedited discovery regarding the defendants' conduct, to determine more fully what the the government has done and could do to facilitate Abrego Garcia's release. We shall see whether the defendants' compliance is as flawed as it has been with previous judicial orders. If they have not yet quite openly refused to follow judicial orders, they certainly have been trying to circumvent them in bad faith.

I think Judge Xinis should have ordered still stronger measures against the defendants, such as requiring them to formally demand Abrego Garcia's release from Salvadoran custody under threat of termination of the agreement under which the Salvadoran regime imprisons US deportees for money. The entire arrangement is an unconstitutional violation of the Due Process Clause of the Fifth Amendment (the deportees are imprisoned without ever having any opportunity to defend themselves in court). Maintaining it is therefore not a legitimate foreign policy interest within the prerogrative of the executive branch.

Much is at stake in this case. If the Administration is able to get away with circumventing or defying court orders, it would severely undermine all constitutional constraints on government power, including those that protect US citizens. And as prominent conservative Judge Harvie Wilkinson noted in his opinion in the Fourth Circuit ruling in this case, it is extremely dangerous if the government can deport people to imprisonment in a foreign state without any due process or any meaningful obligation to return them:

The facts of this case thus present the potential for a disturbing loophole: namely that the government could whisk individuals to foreign prisons in violation of court orders and then contend, invoking its Article II powers, that it is no longer their custodian, and there is nothing that can be done. It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone.

I would add that this danger isn't limited to recent immigrants. It applies to US citizens, as well. The threat to US citizens' rights is no longer just theoretical, since the president is openly considering the possibility of deporting and imprisoning US citizens in El Salvador.

This slippery slope must be stopped before we go any further down it. Courts must do their part. And the rest of us must give them strong political support in doing so. That can help deter the administration from further rampant illegality.

The Trump Administration changed the name of the body of water between Florida and Texas to the Gulf of America. The Associated Press still calls it the Gulf of Mexico. In response, the Trump Administration excluded the wire service from White House press events. The AP sued three officials within the Trump Administration, seeking to restore access to the Oval Office and other spaces.

In this case, District Judge McFadden ruled against the Trump Administration. But he did not issue an unappealable TRO. Rather, after deliberate briefing and proceedings, on April 8, the court issued a detailed preliminary injunction order requiring the AP to be admitted to press events. (Eugene wrote about the First Amendment issues here.) And unlike some of his colleagues, Judge McFadden stayed his order so that the government could take an appeal to the D.C. Circuit. The stay would expire on April 13.

On April 10, the government filed an appeal to the D.C. Circuit. DOJ sought an emergency motion for a stay and an immediate administrative stay:

The government therefore respectfully requests that this Court enter a stay pending appeal, as well as an immediate administrative stay while the motion is under consideration. At a minimum, the government requests that the Court stay the district court's order through April 20, 2025, in order to permit the Solicitor General time to seek relief from the Supreme Court.

On April 13, the panel (Pillard, Katsas and Rao) ordered oral argument to be set for April 17. But the panel did not rule on the motion for an administrative stay. By the end of April 13, the district court's stay lapsed, and the order went into effect.

Yesterday, on April 14, DOJ submitted a letter to the Court renewing the application for an administrative stay so the Solicitor General could seek emergency relief from the Supreme Court:

Yesterday, the Court scheduled oral argument on the government's emergency motion for a stay pending appeal. We are grateful that the Court is providing us with the opportunity to present argument in support of our motion and appreciate the priority the Court has afforded this matter. The Court has not, however, yet ruled on our request for an administrative stay. Because the district court's stay of its own order expired on Sunday, April 13, that order has now taken effect. As of this morning, the President of the United States is subject to an order imposing terms on which he must admit individuals to the Oval Office and other restricted spaces. In light of the magnitude of this intrusion, a continued stay is warranted until this Court can reach the merits of the government's motion. We accordingly respectfully reiterate our request for an administrative stay. The administrative stay should continue through the time the Court decides the emergency motion and, if that motion is denied, we ask that the stay be extended an additional seven days in order to provide the Solicitor General with an opportunity to seek relief from the Supreme Court.

Also on April 14, the White House apparently excluded the AP from coverage of President Bukele's visit to the Oval Office.

I have a several thoughts.

First, I think DOJ's position is that any injunction running against the administration should be administratively stayed long enough to seek Supreme Court review. President Trump has been fairly consistent in saying that he will follow Supreme Court rulings, though perhaps he thinks "inferior" courts should not be in the business of superintending the executive branch.

Second, DOJ drew what could possibly be the most favorable panel possible on the D.C. Circuit with Judges Katsas and Rao. They chose to not grant an administrative stay. Indeed, the district court order was issued by a well-regarded judge, also appointed by Trump. I am skeptical that Circuit Justice Roberts will vote differently.

Third, as soon as Judge McFadden's order expired, the three named defendants were subject to an injunction: Chief of Staff Susan Wiles, Deputy Chief of Staff Taylor Budowich, and White House Press Secretary Karoline Leavitt. If any of these three defendants took action to block the A.P. from accessing the Oval Office, or if they directed their subordinates to deny access to the A.P., I think it is possible they could be held in contempt of court. But I'll concede that holding officials in contempt while the legal ruling is on appeal has some problems.

Fourth, it is possible that the decision to exclude the A.P. from Bukele's visit was not performed directly or indirectly by these three named defendants. If so, those other officials could not be held in contempt. Government officials who are not subject to an injunction cannot defy it. And Cooper v. Aaron, for all of its warts, only asserted the judicial supremacy of the Supreme Court, not of the lower courts. I'm also not certain that other officials in the White House, if sued, would be denied qualified immunity, as the case was still pending on appeal.

Fifth, I think we need to be careful when asserting that Trump, or the administration, ignored a court order. Judgments run against named parties, not collectives. Generations of lawyers incorrectly asserted that President Lincoln ignored Chief Justice Taney in Ex Parte Merryman. Scholars were desirous of seeing President Lincoln ignore a Supreme Court order, so they misstated the posture of Merryman. But Seth Barrett Tillman has debunked that myth--no order ran against Lincoln, so there was no order for him to ignore. Here too, the media and critics are desirous of seeing President Trump ignore a judicial order, so they misstate the posture of Budowich. Trump was not a party to the Budowich case, and we have no clue if he was even aware of the exclusion during the Bukele visit. (Though I'm sure some future impeachment committee will try to figure out what he knew and when he knew it.)

Issues are usually more complex than they seem.

Update: On Tuesday evening, it was reported that the White House eliminated the permanent spot for wire services in the press pool:

The White House said Tuesday that it has eliminated a permanent spot for wire services in the White House press pool, ending a long-standing tradition that allowed the outlets to have expanded access to the president's public activities.

According to a White House official, the pool will consist of one print journalist to serve as print pooler; one additional print journalist; a television network crew; a secondary television network or streaming service; one radio journalist; one "new media/independent journalist"; and four photographers.

The wire services in the pool usually included the Associated Press, Bloomberg News and Reuters. Until recently, all three outlets were typically permitted to enter all White House pooled events. But since February, the Associated Press had been banned from White House events over the outlet's decision to continue using the name Gulf of Mexico rather than Gulf of America.

On Tuesday, an AP reporter was permitted to attend a White House event for the first time since Feb. 11 as the president presented the Commander-in-Chief's Trophy to the U.S. Naval Academy football team.

The White House official said that wire services "will be eligible for selection as part of the Pool's daily print-journalist rotation." They added that White House press secretary Karoline Leavitt "reserves the right to add additional journal[ists] to an expanded Pool based on capacity and day-to-day needs."

"Although eligible outlets will generally rotate through these slots, the White House press secretary shall retain day-to-day discretion to determine composition of the pool," the official said. "This is necessary to ensure that the President's message reaches targeted audiences and that outlets with applicable subject-matter expertise are present as events warrant."

The White House did not say when the changes will start.

I'm not sure how this policy affects the ongoing litigation. I also don't know if this policy was in effect when the AP was excluded from President Bukele's visit.

One hardly had to be Nostradamus to have predicted, as I did soon after Trump was sworn in, that the day was fast approaching when President Trump would openly defy a court order to do (or to refrain from doing) something, and then we'd have a constitutional crisis of some magnitude. The Abrego Garcia case shows that we're either getting closer to, or have already reached, that grim milestone.

I assume everyone, by now, is aware of the basic outlines of the Abrego Garcia story,[*] but here's a very brief recap of the key facts:

[*] A good summary is in the district court's 4/6/2025 order [available here].

A 2019 court order expressly prohibits Abrego Garcia's removal to El Salvador because he faced a "clear probability of future persecution" there and had "demonstrated that El Salvadoran authorities were and would be unable or unwilling to protect him."
In March, 2025 without any notice or a warrant, ICE agents seized him, placed him on a plane, and transported him to an El Salvadoran prison (the "Center for Terrorism Confinement," (CECOT)).
Abrego Garcia has not been charged with any crime. No warrants have been issued against him or his property. The government has asserted - in various court papers and, yesterday, at a presidential news conference and a televised meeting in the Oval Office - that he is a member of MS-13, a designated terrorist organization. That may be true; the government, however, has provided no evidence, to a grand jury or to a magistrate or to any third party, that it is true. The President has told us, though, that it is true - but he is, remember, the Chief Prosecutor.
The US district court in Maryland ordered the government to "facilitate and effectuate" Abrego Garcia's return to the United States, and gave the government a deadline for his return. The 4th Circuit affirmed, and refused to stay the district court's order.
The Supreme Court affirmed the order last week, with a qualification. The Court declared - with no dissents - that Abrego Garcia's removal was "illegal," that the government "acknowledged" that his removal was illegal, and that the district court's order "remains in effect [and] properly requires the Government to 'facilitate' Abrego Garcia's release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador."
The qualification:

The intended scope of the term "effectuate" in the District Court's order is, however, unclear, and may exceed the District Court's authority. The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.

The district court immediately revised its order, dropping the reference to "effectuating" Abrego Garcia's return. The order now requires the government to submit information regarding

"(1) the current physical location and custodial status of Abrego Garcia;

(2) what steps, if any, Defendants have taken to facilitate Abrego Garcia's immediate return to the United States; and

(3) what additional steps Defendants will take, and when, to facilitate his return."

That's the background to yesterday's meeting between Trump and El Salvadoran President Bukele. It is now abundantly clear, first, that the Administration is content to leave the decision about whether to release Abrego Garcia from custody to the Salvadorans; if they decide to release him, the US will allow him back into the country and will even, as AG Biondi said at yesterday's meeting, provide him with a plane to transport him back here. But that's as far as we will go to "facilitate his immediate return."

And President Bukele made it abundantly clear that, for his part, he has no intention whatsoever of releasing Abrego Garcia. To see him snickering with Our Leader about how he doesn't see how he can "smuggle" him back into the US was not an edifying spectacle.

Second, the government appears to be taking the position that the courts cannot require more than this degree of "facilitation," because to do so would constitute an improper interference with the Executive's ability to conduct foreign affairs. "The federal courts have no authority to direct the Executive Branch to conduct foreign relations in a particular way, or engage with a foreign sovereign in a given manner."

One of the lessons I learned when clerking on the U.S. Court of Appeals for the D.C. Circuit is that it is always important to consider Article III standing when suing the federal government, even if the government does not raise standing as a defense. I can still recall an oral argument at which one of the judges effectively told a litigant they could sit down if they could not explain the basis upon which they were invoking the jurisdiction of a federal court. This is particularly important in the D.C. Circuit given its rules.

Today, in Entergy Arkansas v. FERC, Judge Randolph provides a reminder of why it is always important to brief standing. His opinion begins:

In this consolidated case, a series of Entergy companies petition for review of three Federal Energy Regulatory Commission orders. FERC had rejected tariff changes proposed by Midcontinent Independent System Operator, reasoning that the new tariff would give Entergy too much market power. Entergy urges us to find that FERC's decisions were arbitrary and capricious.

We do not reach the merits of this dispute. Entergy lacks standing. The company's opening brief failed to discuss standing, thereby forfeiting any arguments in support of this jurisdictional prerequisite. Entergy's omission of standing also ran afoul of Circuit Rule 28(a)(7). Given both the forfeiture principles inherent in Rule 28(a)(7) and our court's past practice, dismissal is the appropriate consequence. Even if we were to consider the standing arguments Entergy now belatedly advances, the company has not demonstrated the necessary concrete, imminent, and redressable injury.

In the body of the opinion, Judge Randolph explains that forfeiture applies to standing, and it is not sufficient to address standing for the first time in a reply brief. Indeed, this is codified in D.C. Circuit rule 28(a)(7), which provides:

In cases involving direct review in this court of administrative actions, the brief of the appellant or petitioner must set forth the basis for the claim of standing. This section, entitled "Standing," must follow the summary of argument and immediately precede the argument. When the appellant's or petitioner's standing is not apparent from the administrative record, the brief must include arguments and evidence establishing the claim of standing. See Sierra Club v. EPA, 292 F.3d Rule 28895, 900-01 (D.C. Cir. 2002). If the evidence is lengthy, and not contained in the administrative record, it may be presented in a separate addendum to the brief. If it is bound with the brief, the addendum must be separated from the body of the brief (and from any other addendum) by a distinctly colored separation page. Any addendum exceeding 40 pages must be bound separately from the brief.

The petitioner here did not follow this rule, and thus they find themselves on the losing side. From Judge Randolph's opinion:

Entergy's opening brief provided neither argument, nor analysis, nor evidence to support its standing. The words "standing," "injury," "traceability," and "redressability" do not appear in the document. In its responsive brief, FERC argued that Entergy lacked standing. Only then, in the reply brief, did Entergy argue that "the bases for Entergy's standing [were] readily apparent." Reply Br. 3 n.1. But even if the bases and evidence were there, the argumentation was not. No reasonable reader of the principal Entergy brief would walk away with a clear understanding of petitioners' precise injuries, the chain of causation, and how a decision of this court could redress those harms. Its brief was about an APA challenge, not standing.

As Judge Randolph notes, the failure to demonstrate standing is grounds for dismissal.

The opinion goes on to explain why Entergy's late-made arguments for standing were still insufficient, but that does not lessen the larger point: Brief standing and pay attention to circuit rules.

4/15/1931: Stromberg v. California argued.

President Donald Trump signs two executive orders on April 2 instituting tariffs — President Donald Trump signed two executive orders on April 2 instituting tariffs on a wide range of countries. ( Andrew Leyden/ZUMAPRESS/Newscom)

Today, the Liberty Justice Center and I filed a lawsuit in the US Court of International Trade challenging the legality of Donald Trump's gargantuan "Liberation Day" tariffs, on behalf of five US businesses that import goods from many of the countries targeted by the tariffs. The case is entitled VOS Selections, Inc. v. Trump.

In previous posts, I previewed our key arguments and explained why Trump's partial pause of the tariffs does not end the madness or obviate the need to challenge this usurpation of legislative power in court.

To briefly summarize, we argue that the International Emergency Economic Powers Act of 1977 (IEEPA) doesn't authorize tariffs at all, that even if it does the bilateral trade deficits targeted by the "Liberation Day" tariffs do not qualify as an "emergency" or as an "unusual and extraordinary threat" (both prerequsites to invoking IEEPA), that Trump's use of IEEPA for this purpose runs afoul of the "major questions" doctrine, and that - if these actions are authorized by IEEPA - it would violate constitutional limits on delegation of legislative power to the executive. If we prevail on any one of these points, we win the case.

The complaint is available here.

Here is an excerpt from the Liberty Justice Center press release announcing the case:

On April 14, the Liberty Justice Center filed a lawsuit challenging the Trump Administration's authority to unilaterally issue the "Liberation Day" tariffs, which are devastating small businesses across the country. The lawsuit argues that the Administration has no authority to issue across-the-board worldwide tariffs without congressional approval.

The lawsuit, filed in the U.S. Court of International Trade, highlights the unprecedented nature of the tariffs, including a global 10% tariff on nearly all imports, with additional higher tariffs targeting dozens of countries based on dubious calculations of foreign trade barriers.

The President invoked the International Emergency Economic Powers Act (IEEPA) to justify the "Liberation Day" tariffs, as well as the tariffs on Mexico, Canada, and China. But under that law, the President may invoke emergency economic powers only after declaring a national emergency in response to an "unusual and extraordinary threat" to national security, foreign policy, or the U.S. economy originating outside of the United States. The lawsuit argues that the Administration's justification— a trade deficit in goods—is neither an emergency nor an unusual or extraordinary threat. Trade deficits have existed for decades, and do not constitute a national emergency or threat to security. Moreover, the Administration imposed tariffs even on countries with which the U.S. does not have a trade deficit, further undermining the administration's justification.

And as the Complaint explains, IEEPA does not authorize the President to impose across-the-board tariffs—it does not even authorize tariffs at all; and even if the IEEPA did extend such power to the President, that would be an unconstitutional delegation of Congress's power to impose tariffs.

"No one person should have the power to impose taxes that have such vast global economic consequences," said Jeffrey Schwab, Senior Counsel at the Liberty Justice Center. "The Constitution gives the power to set tax rates—including tariffs—to Congress, not the President."

"If starting the biggest trade war since the Great Depression based on a law that doesn't even mention tariffs is not an unconstitutional usurpation of legislative power, I don't know what is," said Ilya Somin, co-counsel, law professor, Scalia Law School, George Mason University.

The case is filed on behalf of five owner-operated businesses who have been severely harmed by the tariffs and highlights the human and economic toll of unchecked executive power….

Why do we only call some vaping products "flavored"? I ask because every vaping product on the market is flavored. Those that taste like tobacco have flavor added just like those that taste like menthol or vanilla or berries. So some vaping products taste like combustible tobacco products (with either tobacco or menthol flavor) and some do not. It is possible to make unflavored vaping products, but there is no market for such products so no one does.

In order to be more accurate--and better communicate the underlying reality--I would suggest a revised nomenclature: We should refer to vaping products as either cigarette-flavored (i.e. tobacco and menthol) and non-cigarette flavored. This would be more accurate and, insofar as there are any health concerns about flavor additives, make clear that there are no unflavored products (and also that the FDA "deemed" vaping products to be tobacco products; they do not actually contain tobacco).

This change in nomenclature would also help clarify the nature of the FDA"s policy choice to only consider approving vaping products that taste like cigarettes. It might also raise further questions about the wisdom of the FDA's approach. After all, the FDA is denying smokers the ability to transition away from smoking by using products that would sever the connection between nicotine and the taste of cigarettes. The FDA is also ensuring that insofar as youth or other experiment with vaping, they are using products that taste like cigarettes.

This change in nomenclature might also help some people understand why there is a growing body of evidence that non-cigarette-flavored vaping products can help smokers quit (by helping them associate nicotine with a different flavor, and may pose less of a "gateway" risk for smoking, particularly for youth. Restricting non-cigarette vaping flavors appears to increase smoking, particularly among youth.

Perhaps clarifying the language will help clarify the policy choices the FDA and others are making.

From an April 1 Justice Department press release:

Today, a Federal Judge accepted a guilty plea to destruction of records in a federal investigation from a former employee of a contractor that provided operation and maintenance services to the U.S. Army Corps of Engineers for U.S. military installations in South Korea.

According to the information filed in the Western District of Texas, in or about July 2021, David Cruz, 37, deleted text messages with Hyuk Jin Kwon and Hyun Ki Shin. Kwon and Shin were separately charged ‌for fraud and conspiring to rig bids and fix prices on millions of dollars in maintenance and repair subcontracting work provided to the U.S. Army Corps of Engineers in South Korea and remain fugitives. At Kwon's suggestion, Cruz deleted text messages after receiving a litigation hold notice from his employer requiring him not to destroy or delete communications. Cruz then covered up the deletion of those text messages after being specifically advised by his employer that there was an ongoing federal investigation.

In the deleted text messages, Cruz discussed with Kwon and Shin the need to get additional bids from their competitor to satisfy the U.S. Army Corps of Engineer's competitive bidding requirements for subcontract work. Kwon had previously told Cruz that Cruz should contact him instead of requesting bids directly from Kwon's competitors….

"Bid rigging and other acts of fraud against the U.S. Army not only undermine the integrity of critical procurement efforts but also put our Soldiers at risk by providing them capabilities and services which do not meet the high standards necessary to maintain peak lethality," said Special Agent in Charge Michael DeFamio of the Department of the Army Criminal Investigation Division (Army CID), Far East Field Office….

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4/14/1873: The Slaughter-House Cases argued.

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In a previous post, I urged universities to band together to file a lawsuit challenging Donald Trump's policy of speech-based deportation of foreign students and academics. So far, I have had little, if any, success in persuading schools to do so. Many individual academics have expressed support for the idea (originated by the faculty of the Tufts Fletcher School of Law and Diplomacy), but no university administrations have acted on it.

Still, I am happy to see that 86 colleges and higher education associations filed an amicus brief in a case challenging the deportations filed by the the Knight First Amendment Institute on behalf of the American Association of University Professors (AAUP) and the Middle East Studies Association (MESA).

Notable institutions joining the brief include Fordham, Georgetown, the Association of Catholic Colleges and Universities, Swarthmore, and my undergraduate alma mater Amherst College, among others. This is one of the very few issues on which Amherst agrees with traditional rival Williams College (which also joined the brief)!

While I commend the schools that joined the brief, it is not an adequate substitute for filing a lawsuit of their own. The case filed by AAUP and MESA could get thrown out of court on procedural grounds - most notably because court might hold that these groups are not clearly or directly enough harmed by speech-based deportations to get "standing" to sue. By contrast, universities have a strong basis for standing to challenge the deportation of students and employees based on the fact that deportation of the former causes them to lose tuition funds, and deportation of the latter causes them to lose valuable labor. That's particularly true of the many schools whose students or employees have already been targeted for speech-based deportations.

To be clear, I believe AAUP and MESA do deserve to get standing, in part because of my general opposition to strict standing restrictions. But I am not sure whether federal courts will agree. Universities have a clearer case for standing.

If universities are not willing to stand up for the free speech and academic freedom of their students and faculty, then what, if any, values do they stand for? Now is the time for schools to use their standing rights to stand up and be counted fighting for a just cause. Perhaps that takes the "standing" metaphor too far; but I trust readers will get the point.

In earlier posts, I have explained why deportation and other immigration restrictions are not exempt from the constraints of the First Amendment, and why speech-based deportations pose a serious threat to free speech and academic freedom on campus - and not just that of foreign students and faculty.

I missed this when the case was first filed. But two members of the Blackfeet Nation, a Native American tribe, have filed a lawsuit challenging Donald Trump's Canada tariffs on constitutional grounds, and also because they violate tribal treaty rights:

Two citizens of the Blackfeet Nation on April 4 filed a lawsuit against the federal government, alleging tariffs the Trump administration is imposing on Canada violate the U.S. Constitution and tribal treaty rights.

State Sen. Susan Webber, D-Browning, and Jonathan St. Goddard, a rancher on the Blackfeet Reservation, named the U.S. Department of Homeland Security, Secretary Kristi Noem and the United States of America in the suit, which was filed in Montana federal district court. The plaintiffs are represented by Monica Tranel, who ran as a Democrat for Montana's western congressional seat in 2022 and 2024….

This lawsuit specifically pertains to several Executive Orders, including one Feb. 1 that expanded an emergency declaration to include "the flow of illicit drugs" across the U.S.-Canada border and one April 2 that announced global "reciprocal tariffs." The lawsuit also regards two Feb. 10 proclamations that impose tariffs on steel and aluminum products.

Plaintiffs allege the orders violate the U.S. Constitution, which gives Congress, not the president, the power to regulate commerce. Trump declared several national emergencies (due to U.S. trade deficits and to the flow of illegal drugs over the Northern border) and invoked the International Emergency Economic Powers Act to issue tariffs. But the two Blackfeet citizens say the president had no legal basis to do so, arguing the IEEPA statute does not include the power to tariff….

Complainants in the Montana case further allege the Canada tariffs violate the Jay Treaty, which was signed in 1794 by the U.S. and Great Britain to ease Revolutionary War tensions. While the treaty primarily focused on the two countries, it also recognized the rights of Native Americans to freely cross over the U.S.-Canada border. It also stipulated that American Indians were not to pay duties or taxes on their own goods when crossing the border.

The plaintiffs' complaint in Webber v. Department of Homeland Security is available here.

This lawsuit targets only various tariffs imposed on Canadian goods, and is therefore much narrower than the case the Liberty Justice Center and I are about to file challenging the entirety of Trump's "Liberation Day" tariffs. But there are important overlaps between the arguments in the two cases, most notably with respect to executive usurpation of congressional authority, and the issue of whether the IEEPA authorizes the imposition of tariffs at all (we say not).

I think the Blackfeet plaintiffs would also do well to raise the issue of whether the major questions doctrine applies to the various tariffs against Canadian goods. I have previously argued that imposing massive new tariffs on one of our biggest trading partners does so qualify, even if it is not quite as obviously a "major" economic and political issue as the global trade war started by the "Liberation Day" tariffs.

I lack the expertise needed to assess the argument that the Trump tariffs violate Native American treaty rights. But it does strike me as highly plausible, at the very least.

I wish the Blackfeet plaintiffs every success with this case. It is not just Native American tribes, but all Americans who have an interest in preventing the executive from imposing massive unconstitutional tariffs on goods imported from our northern neighbor and major trading partner.

UPDATE: The original version of this post had an incorrect link to the complaint in the case. I apologize for the mistake, which has now been fixed.

4/13/1896: Plessy v. Ferguson argued.

4/12/1945: President Harry Truman's inauguration. He would make four appointments to the Supreme Court: Chief Justice Vinson, and Justices Burton, Clark, and Minton.

New on the Short Circuit podcast: We recorded an episode at our tenth anniversary show last week. Hear from Eugene Volokh and Raffi Melkonian about video dissents and one arbitration to rule them all. Read More

The Supreme Court's decision in Trump v. J.G.G. divested Judge Boasberg of the jurisdiction to further adjudicate the matter. It also cast in serious doubt whether he could continue his contempt proceedings against the executive branch. Earlier this week, I wrote "it is not clear if the District Court has power to hold the executive branch in contempt where it lacks jurisdiction over the case." I still don't know the answer to that question, but as a practical matter, Judge Boasberg will likely stand down.

My colleague Seth Barrett Tillman ruminated on holding litigants in contempt in the context of emergency orders.

If the DOJ refused to abide by a federal trial court judge's order, and that order was granted ex parte, but subsequently it was set aside, then what should the judge do? My view is that holding the prevailing party in contempt should not be predicated on mere disobedience standing alone. Contempt's normative justification is tied to fair play and due process, but where the process is ex parte, contempt is too harsh. What is driving the public mind (or part thereof) to press for contempt in the recent immigration cases is that a large part of the public believes the Trump-47 policies are lawless or heartless or both. But if the policies are lawless, that's a merits determination. If the order was set aside on appeal, then the merits standing alone should not be sufficient cause to elicit a contempt order. As for heartless, I am sure that the majority of federal judges think that too. But that is a policy and values judgement—we hold elections to make those decisions—we do not issue contempt citations for being on the wrong side of a naked moral judgment untethered to established law.

Where an ex parte TRO is set aside, I think a federal trial court judge has a narrow window of opportunity to hold a disobedient defendant in contempt. The judge must establish that the defendant's conduct during and in the course of the litigation was illegal or inequitable. Here I am speaking not to the litigant's underlying or out-of-court conduct, but his conduct in relation to his representation before the trial court. The conduct would have to be something akin to unclean hands (albeit, that doctrine usually applies to plaintiffs' seeking equitable relief, as opposed to defendants' opposing an application for equitable relief).

To put it another way, when a trial court's ex parte TRO is on its way up through the court system on appeal, a judge should refrain from discussing contempt, in full public view, for noncompliance during that time. After the appellate process is over, then that's the time to consider a contempt citation, and it should be done in full public view. Otherwise, the judge will look vicious, officious, and biased. And that cannot be right.

As usual, I find Seth's reasoning persuasive. Let me extend Seth's point a bit further.

Imagine two counterfactuals. What if Judge Boasberg had held the executive branch in contempt before the Supreme Court ruled that he lacked jurisdiction? Maybe he sought to fine, or even incarcerate a DOJ lawyer, or someone higher up in the administration. Alternatively, what if the contempt proceedings elicited information that could have caused the Supreme Court to rule differently. For example, the judge demanded that the Secretary of Homeland Security testify in open court about classified matters. These hypotheticals raise what I think has been an unstudied question: should a federal district court even hold contempt proceedings while an emergency appeal is ongoing? In other words, if a case is rocketing up the shadow docket, should judges hold off on ordering the executive branch to show cause until the Supreme Court finishes its review?

I think the answers to these questions have to be no and yes. The entire case went from the trial court to the Supreme Court in about a month. There really was no need to hold any contempt proceedings while the appeal was ongoing--especially in light of the fact that the government contested the court's jurisdiction. But more fundamentally, the question of whether the government engaged in contempt very much turns on whether the court's order was lawful.

It is true that in the normal course, the way to challenge a trial court's ruling is through the appellate process. But this was not a normal case. Here the court instructed a coordinate branch of government how to exercise its constitutional authority when there was no practical time for an appeal. Can it be that a single district court judge can exercise absolute authority over the executive branch, even for a limited time? Should the government be held in contempt for not immediately turning planes around over international waters? At best for the court, this is in something of a zone of twilight where the allocation of powers between the judiciary and executive branch is unclear. I would remind everyone that the Truman Administration did not immediately obey an unstayed district court order in the Steel Seizure case. At worst, Judge Boasberg's order, issued orally without the benefit of full party presentation, should not form the basis for a contempt citation.

The first phase of the Trump litigation was unappealable TROs. The second phase entailed preliminary injunctions that were appealed to the Supreme Court, but were vacated through some compromises. The third phase, I predict, will be hostile contempt proceedings where district court judges try to reassert their authority over the executive branch, even in the face of SCOTUS reversals. We may not have a special counsel like Robert Mueller to launch inquisitions against the Trump Administration, but district court judges in D.C. and Maryland will gladly assume that role. Soon enough, we will be talking about "obstruction of justice" all over again. We might spend the next four years inquiring about what Trump knew about the airplanes. This very well might form the basis of future articles of impeachment. It is 2017 all over again.

I'll close with an unpopular opinion. When a judge feels the need to hold the executive branch in contempt, he should recuse and let another fresh judge decide if the contempt proceedings are justified. I think it is tough for a judge to simultaneously decide which party has the better reading of the law, while lurking in the background is the question of whether the government flouted the court's order about that disputed question of law. I made this point concerning an unusual case from South Dakota where a District Court judge sought to hold the U.S. Marshal in his contempt. The District Court Judge actually appointed a special prosecutor to prosecute the Marshal, akin to the Donziger case. But to his credit, the District Court judge recused and let another judge handle the matter. At the time, I opined:

Recusal seems like an obvious move. This judge has clearly made up his mind. The case is so personal. There is no pretense of objectivity at this point. The case is styled United States of America v. John Kilhallon, et al. But the Plaintiff is not the United States. It is a single judge who abused his discretion. Judge Kornmann makes Judge Emmet Sullivan seem reasonable by comparison.

Unsurprisingly, cooler heads prevailed, and the new judge dismissed the contempt proceedings against the Marshal.

If any further contempt proceedings are to be had, I think recusal would be appropriate here for Judges Boasberg, Xinis, and any other judge seeking to hold the administration in contempt. No matter how hard a judge tries, these sorts of cases become personal.

The case would not be J.G.G. v. Trump. It would be J.E.B. v. Trump. And Trump has some experience with moderates named Jeb!

There is no harm in letting a fresh set of eyes review the matter.

On Wednesday evening, in Yost v. Brown, Justice Brett Kavanaugh entered a stay of a district court order in requiring Ohio Attorney General Dave Yost to publish two contested ballot initiative summaries. Justice Kavanaugh also called for a response by next Wednesday.

The underlying dispute concerns the wording of the ballot initiative summary prepared by the initiative proponents. Attorney General Yost rejected the summary prepared by the proponents on the grounds that it is not fair and truthful and the proponents sued. The district court entered an injunction requiring the AG to publish the summary, and this order was affirmed by a divided panel of the U.S. Court of Appeals for the Sixth Circuit.

Judge Karen Moore wrote the majority, joined by Judge Andre Mathis. Judge John Bush dissented.

Judge Moore's opinion begins:

Ohio Attorney General Dave Yost has eight times rejected a proposed summary of a proposed constitutional amendment, preventing its proponents from circulating a petition and collecting signatures needed to place it on the ballot. Each time, Yost concluded that the petition summary was not a fair and truthful summary of the proposed constitutional amendment. The district court held that this likely violated the ballot initiative proponents' First Amendment rights and entered a preliminary injunction ordering Yost to certify two ballot initiative summaries proposed by Plaintiffs here. However, upon Yost's request, the district court stayed the preliminary injunction pending appeal. Because we agree with the district court that Plaintiffs' First Amendment rights were likely violated here, and because the other stay factors do not weigh in Yost's favor, we GRANT Plaintiffs' motion to lift the stay and LIFT the stay entered by the district court.

Judge Bush's dissent begins:

I would deny the motion to vacate the stay of the district court's injunction. All the relevant legal factors support continuance of the stay. The driving consideration here is that the Ohio Attorney General is likely to prevail in this action because the First Amendment does not bar the State from regulating the content of a certified initiative summary. The summary is a legislative action that, at most, constitutes government, not private, speech. But even if it were private speech, the Attorney General's regulation of its content would still be permissible because the summary would constitute speech that occurs within a discretionary government benefit program, which the Supreme Court has held may be subject to content-based regulation. I explain these points more fully below.

Given the underlying First Amendment issue, it is conceivable that the Court accepts this case for argument. We shall see.

Yost v. Brown is not the only non-Trump action on the shadow docket. Earlier today the Court denied the application for a stay of execution in Mahdi v. Stirling.

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