The Volokh Conspiracy

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A very interesting analysis at Executive Functions by Prof. Jack Goldsmith (Harvard), a leading scholar of executive power and of the separation of powers; an excerpt, though you should read the whole thing:

I have heard from a few people in recent days who think the Supreme Court is cowering before the Trump administration or, at least, is not adequately standing up to it.

Adam Liptak gave voice to a version of this view a few days ago. In contrast to the Court's "signature . . . sweeping claims about the meaning of the Constitution," he argued, the Court in the Trump cases has been issuing "a series of narrow and legalistic rulings that seem calculated to avoid the larger issues presented by a president rapidly working to expand power and reshape government." Liptak said this "new approach" was designed in part "to avoid a showdown with a president who has relentlessly challenged the legitimacy of the courts."

Liptak's stance is a little hard to understand. The cited cases with "sweeping claims"—on abortion, affirmative action, the Second Amendment, and the like—were decided on the Court's merits docket. But the Trump cases have occurred on the emergency orders or "shadow" docket where, as Liptak acknowledges, the Court must move quickly, with impoverished briefing and process, to "decide whether to pause lower court rulings, themselves preliminary and tentative." In this context, he correctly says, it is "understandable … that the justices may be reluctant to make grand pronouncements."

I am not sure how to square these views, but I agree with this last point, and will flesh it out below. The Court as of this posting has issued six emergency orders on Trump 2.0 actions, including last night's order in Noem v. Garcia. It is too early to know whether the Court is acting wisely on its emergency docket. Yet thus far it has neither bowed to the president nor proceeded in an untoward way.

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President Trump issued a flurry of additional executive orders and presidential memoranda this week, many of which concerned regulatory policy. One EO in particular, "Maintaining Acceptable Water Pressure in Showerheads," symbolizes much of what we are seeing from the early stages of Trump's second term. The EO sends a message, but might not quite do what the President wants or what you might think (and has been characterized inaccurately by early media reports). It also highlights how the White House continues to make policy pronouncements that agency officials (attorneys in particular) will have to figure out how to implement.

Let's start with the title. The EO promises to increase or maintain shower water pressure, but it will not do that. The EO itself does not rescind the federal requirement limiting showerhead flow to 2.5 gallons per minute. This is because this limit is written into the U.S. Code (as the White House Fact Sheet acknowledges). If you are someone who wants a torrent of water beating down on you for your morning shower, this EO does not offer any relief from federal law.

What, then, does the showerhead EO do? It rescinds a regulatory definition of showerhead that had the primary effect of defining multi-nozzle showers as a single showerhead for purposes of the rule. The first Trump Administration did the same thing, but it was undone in the Biden Administration. The text of the EO makes all of this clear.

Section 1. Purpose. Overregulation chokes the American economy and stifles personal freedom. A small but meaningful example is the Obama-Biden war on showers: Twice in the last 12 years, those administrations promulgated multi-thousand-word regulations defining the word "showerhead." See Energy Conservation Program: Definition of Showerhead, 86 Fed. Reg. 71797 (December 20, 2021); Energy Conservation Program for Consumer Products and Certain Commercial and Industrial Equipment: Test Procedures for Showerheads, Faucets, Water Closets, Urinals, and Commercial Prerinse Spray Valves, 78 Fed. Reg. 62970 (October 23, 2013). To the extent any definition is necessary for this common piece of hardware, the Oxford English Dictionary defines "showerhead" in one short sentence.

Sec. 2. Ordering the Repeal of the 13,000-Word Regulation Defining "Showerhead". I hereby direct the Secretary of Energy to publish in the Federal Register a notice rescinding Energy Conservation Program: Definition of Showerhead, 86 Fed. Reg. 71797 (December 20, 2021), including the definition of "showerhead" codified at 10 C.F.R. 430.2.

Those who don't bother to pay attention to the details may cheer or condemn the EO, but it really will not do much. Indeed, even if the EO were capable of rescinding the federal limit on showerhead water flow, it is not clear it would have much effect on water use. To the contrary, there is empirical evidence that reducing showerhead water flow can increase water consumption because it causes some people to take longer showers. Among other things, they can can lengthen the time it takes for water to get up to temperature and cause people to rinse for longer periods. So, if we want more water flow, that is a job for Congress, and if we want to conserve water, we would be better off with market pricing.

A particularly striking feature of the EO for us administrative law types is how it instructs the Energy Secretary to implement the President's demand.

Notice and comment is unnecessary because I am ordering the repeal. The rescission shall be effective 30 days from the date of publication of the notice.

At one level, this is a breath-taking assertion of presidential authority--and one that will almost certainly be rejected by the courts. While the President is not an agency for purposes of the Administrative Procedure Act, a Presidential order does not insulate executive branch officials from complying with the APA's requirements. The rescission of a regulation is not exempt from the APA's procedural requirement, nor is a presidential decree, by itself, enough to constitute "good cause" for avoiding those requirements.

Does this mean rescinding the Obama-Biden showerhead definition will have to go through notice and comment? Not necessarily. While there is no mention of it in the EO or the White House Fact Sheet, the Department of Energy may have a way to quickly rescind the rule: Declare the definition to be no more than a non-binding "interpretative rule" exempt from the notice-and-comment requirements of Section 553 of the APA. After all, the definition is, at its core, an official interpretation of a statutory term and need not be understood to impose any sort of legal obligation. Insofar as the definition is relied upon for the implementation and enforcement of other, substantive rules--such as those setting forth the water-flow testing requirements for showerheads--this could get sticky, but I suspect attorneys within the Energy Department could use this route to quickly eliminate this regulation from the books.

In the end we have an EO that is more bluster than substance. It will do very little to change most people's shower routine, and insofar as it is actually implemented, it is unlikely to be through the route the President directs, but it may be possible to execute quickly if the agency lawyers do their jobs. In these respects, it may be symbolic of the Trump Administration's deregulatory efforts overall.

* * *

Note: For those seeking to keep track, here is a link to President Trump's EOs that have been published in the Federal Register. Note that it typically takes a few days before new EOs are published, so this listing is sometimes a few days behind. (For example, at the time this is posted, the showerhead EO is not yet included.)

Some short excerpts from yesterday's long decision by Judge John Woodcock (D. Me.) in Doe v. Smith:

On November 14, 2023, John Doe, a pseudonym for the father of a minor daughter, filed a lawsuit against Sara Smith, a pseudonym for the mother of the same minor, seeking an injunction and other relief against Ms. Smith for disclosure of information subject to a Non-Disclosure Agreement (NDA) between them. Specifically, Mr. Doe, a winner of the Maine State Lottery, claimed that Ms. Smith violated the NDA by informing third parties about his winnings….

Mr. Doe notes the Court "hit the nail on the head" when it observed in a January 10, 2025 status conference that he is faced with a "Catch-22" if this case were to proceed to a public trial: "even if Plaintiff were to win on his claims, his identity and confidential information would be revealed to the public and the media; he would effectively lose the privacy war and subject himself and his minor daughter to the irreparable harm he brought suit to avoid."

He thus files this motion for a closed trial and informs the Court of his intent to seek interlocutory appeal of the Court's ruling if necessary. Mr. Doe specifically requests that any trial in this matter be closed in its entirety to the public and media, or alternatively that all testimony of the parties and their family members to be submitted to the jury be taken by telephone or audio-only Zoom along with "appropriate safeguards, including, but not limited to, the partial closure of any trial to the public and media where appropriate, in order to ensure that the identities and other personal identifying information of the Parties and their family members remain anonymous." …

The court said no to the closed trial request:

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I am pleased to announce that the South Texas Law Review has published the sixth installment in the Tillman-Blackman series on the offices and officers of the Constitution.

Here is the abstract of Offices and Officers of the Constitution Part VI: The Ineligibility Clause.

This Article is the sixth installment of a planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution. The first installment introduced the series. The second installment identified four approaches to understand the Constitution's divergent "office"- and "officer"-language. The third installment analyzed the phrase "Officers of the United States," which is used in the Appointments Clause, the Impeachment Clause, the Commissions Clause, and the Oath or Affirmation Clause. Part IV traced the history of the "Office . . . under the United States" drafting convention. Part V considered the meaning of the phrase "Office . . . under the United States," which appears in the Incompatibility Clause, the Impeachment Disqualification Clause, the Foreign Emoluments Clause, and the Elector Incompatibility Clause. This sixth installment, Part VI, will turn to the phrase "Office under the Authority of the United States," which appears uniquely in the Ineligibility Clause. The Ineligibility Clause provides, "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

This Article proceeds in five sections. Section I describes the drafting history of the Ineligibility Clause during the Constitutional Convention This drafting history lends some support for our view that the phrase "any civil office under the Authority of the United States" refers to a category of appointed, and not elected, positions. Section II contends that the President and Vice President do not hold "civil offices under the Authority of the United States." This argument flows from the text of the Ineligibility Clause, which applies to "appointed" positions. As a general matter, the President and Vice President are not appointed; rather, they are elected by electors, or they are elected or chosen by the House and Senate.

Section III puts forward the position that members of Congress do not hold "civil offices under the Authority of the United States." If senators or representatives held "civil offices under the Authority of the United States," then Congress might be able to manipulate its own membership by modifying the compensation for these elected positions. Generally, members of Congress are "elected," and not "appointed." Section IV identifies several positions covered by the Ineligibility Clause. In our view, the phrase "Office under the Authority of the United States" refers to a specific category of appointed officers—a category more expansive than both "officers of the United States" and "office . . . under the United States." Section V turns to the interaction between the Ineligibility Clause and the Religious Test Clause. The latter provides "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." There may be a handful of irregular positions that are an "Office under the Authority of the United" but not an "Office under the United States" or a "public trust under the United States." Such positions would not be subject to the Religious Test Clause.

The Ineligibility Clause is very useful to understand the difference between the meaning of "elect" and "appoint."

Parts seven through ten of our series should be published over the next year or so. This project began in earnest in 2017, and our first installment was written in 2020. Even though the courts may have lost interest in officer-stuff, we have not!

From Monday's Justice Department press release:

A North Texas man who threatened to shoot and kill ICE agents was arrested and charged in federal court …. Robert Wilson King, 35, was charged on April 3, 2025, via criminal complaint with transmitting an interstate threat….

According to the complaint, on March 29, 2025, King allegedly posted a threat on a social media platform, stating, "If I see ICE agents in my neighborhood I'm opening fire. It's time to stop being p****** [expurgation in original -EV] and put the second amendment to work. ICE are not real cops, they are a secret police force with no real legal authority. Kill them."

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From Tuesday's Justice Department press release:

Timothy Martin, 55, of Raleigh, North Carolina, was found guilty by a federal jury for his role in the April 27, 2023, defacement of an art exhibit at the National Gallery of Art in Washington, D.C.

The verdict was announced by U.S. Attorney Edward R. Martin, Jr., and Special Agent in Charge Sean Ryan of the FBI Washington Field Office Criminal and Cyber Division.

President Trump directed federal authorities in a March 2025 Executive Order to Make D.C. Safe and Beautiful by launching a multi-faceted initiative to address both crime and beautification. This includes the creation of the D.C. Safe and Beautiful Task Force to coordinate law enforcement efforts, and a program to restore and enhance the city's public spaces.

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4/11/1862: Chief Justice Charles Evans Hughes's birthday.

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

Tonight, the Supreme Court unanimously ruled that Trump Administration must "facilitate" the return of Salvadoran migrant Kilmar Abrego Garcia, whom it had illegally deported to brutal imprisonment in El Salvador's awful CECOT prison (despite his never having been convicted of any crime). The Court largely affirmed earlier rulings by the district court and Fourth Circuit. This is an important win for immigrant rights. The justices rejected the administration's dangerous position that it can deport and imprison anyone it wants - including US citizens - and then be immune from judicial review, so long as the incarceration is done by a foreign state, even one acting at the direction of the US government.

But there is an unfortunate ambiguity in the Court's ruling. Here is the key passage:

Due to the administrative stay issued by the Chief Justice, the deadline imposed by the District Court has now passed. To that extent, the Government's emergency application is effectively granted in part and the deadline in the challenged order is no longer effective. The rest of the District Court's order remains in effect but requires clarification on remand. The order 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 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. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.

The ambiguity here is what exactly it means to "facilitate" Abrego Garcia's return to the US. Does it require the government to do everything possible to ensure that return, merely make some token effort, or something in between? To my mind, the best interpretation is "everything possible." That reading is implied by the Court's admonition that the government must "ensure that his case is handled as it would have been had he not been improperly sent to El Salvador." The only way to do that is to actually return him!

As a practical matter, Abrego Garcia is only being held by El Salvador because the US government wants him to and is paying the Salvadoran government to incarcerate him and other deportees (including many illegally deported under the Alien Enemies Act). All Trump has to do to get any of these people released is credibly convey to the Salvadoran that that is what he wants. But I worry the Trump administration will drag its feet and claim all the Supreme Court ruling requires is make a pro forma request that the Salvadorans know they could refuse without suffering any adverse consequences.

In my analysis of the lower court rulings, I explained why, in this context, there is no good reason to grant any deference to executive claims that the president cannot be required to return a prisoner held by a foreign state. Nonetheless, the administration is likely to continue its efforts to weasel its way out of doing the right thing.

At the very least, there will probably be further wrangling in the lower courts over the exact meaning of "facilitate" and how it may or may not differ from "effectuate." This is the kind of word game some lawyers like to play - even if it's also the kind of thing that causes many people to hate lawyers! It might even be entertaining - except for the fact that as long as this goes on, an innocent man will continue to rot in a terrible prison, where he was unjustly sent without any due process.

Perhaps this ambiguity was the price of getting a unanimous ruling. But it's unfortunate, nonetheless.

In a concurring statement joined by the other two liberal justices, Justice Sonia Sotomayor outlines the stakes of the case, and gives her own interpretation of what the ruling requires:

The United States Government arrested Kilmar Armando Abrego Garcia in Maryland and flew him to a "terrorism confinement center" in El Salvador, where he has been detained for 26 days and counting. To this day, the Government has cited no basis in law for Abrego Garcia's warrantless arrest, his removal to El Salvador, or his confinement in a Salvadoran prison. Nor could it….

The Government now requests an order from this Court permitting it to leave Abrego Garcia, a husband and father without a criminal record, in a Salvadoran prison for no reason recognized by the law. The only argument the Government offers in support of its request, that United States courts cannot grant relief once a deportee crosses the border, is plainly wrong….

Because every factor governing requests for equitable relief manifestly weighs against the Government, Nken v.Holder, 556 U. S. 418, 426 (2009), I would have declined to intervene in this litigation and denied the application in full.

Nevertheless, I agree with the Court's order that the proper remedy is to provide Abrego Garcia with all the process to which he would have been entitled had he not been unlawfully removed to El Salvador. That means the Government must comply with its obligation to provide Abrego Garcia with "due process of law," including notice and an opportunity to be heard, in any future proceedings... It must also comply with its obligations under the Convention Against Torture…. Federal law governing detention and removal of immigrants continues,of course, to be binding as well. See 8 U.S. C. §1226(a) (requiring a warrant before a noncitizen "may be arrested and detained pending a decision" on removal; 8 CFR§287.80)2) (2024) (requiring same)…. In the proceedings on remand, the District Court should continue to ensure that the Government lives up to its obligations to follow the law.

Sotomayor is right on all points. And the only way to ensure the government "lives up to" all these obligations is to ensure that Abrego Garcia is actually returned to the United States. Giving it the old college try won't cut it.

But Sotomayor, like the Court's ruling, does not unambiguously define what it means to "facilitate." And her statement, on behalf of only three justices, is not by itself legally binding.

An ethical government would avoid further litigation and just simply ensure Abrego Garcia's return. They could easily do that! Indeed, they would have done so - at the very least - as soon as they realized he had been illegally deported in the first place. Both respect for the rule of law and minimal common decency require them to promptly return a man they have admitted was illegally deported and imprisoned. But this administration, to put it mildly, doesn't much care for either law or decency when they get in its way.

In sum, the Court's decision is an important win for immigrants, and setback for the administration. But it has a notable - potentially problematic - ambiguity. Just how much of a problem that turns out to be remains to be seen.

Another day, another shadow docket compromise. This evening, the Court issued a short three paragraph per curiam opinion in Noem v. Garcia. In short, the Court found that that the District Court could not order the Executive Branch to negotiate the return of Garcia, but instead could only require the government "facilitate" Garcia's return. This outcome was entirely predictable. On Monday, I wrote:

I think the most likely outcome is that Roberts follows the lead of Judge J. Harvie Wilkinson on the Fourth Circuit: deny the application, but "clarify" that the District Court can only require the President to "facilitate" the return of the alien.

The Chief Justice (almost certainly) wrote the per curiam order, which states:

The rest of the District Court's order remains in effect but requires clarification on remand. The order 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 intended scope of the term "effectuate" in the District Court's order is, however, unclear, and may exceed the District Court's authority.

I nailed this one 100%. "Clarify" and "facilitate" is all that was needed.

Now, let's get into the nitty gritty.

First, the Court repeats this strange argument that an order with a deadline in the past is no longer in effect:

Due to the administrative stay issued by THE CHIEF JUSTICE, the deadline imposed by the District Court has now passed. To that extent, the Government's emergency application is effectively granted in part and the deadline in the challenged order is no longer effective.

The Court employed this reasoning in the USAID case:

Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.

This argument makes no sense. When a court's deadline has passed, that means the government has failed to comply with the order. It doesn't meant he deadline is "no longer effective." This argument even makes less sense when the reason why the deadline lapsed is that a Justice granted an emergency stay. How can it be that a single Justice's administrative stay can vacate a lower court injunction? A stay only puts a ruling on hold. I would like someone with more knowledge of appellate procedure to explain how this works. But the Chief found some new game to avoid the usual rules of procedure, and he will keep playing it.

Second, the Court provides this order:

The application is granted in part and denied in part, subject to the direction of this order.

I searched the Supreme Court database on Westlaw for the phrase "The application is granted in part and denied in part." There were zero hits. I also searched for "subject to the direction of this order." There were zero hits. There are some serious John Roberts machinations going on here.

The government's application asked the Court to vacate the district court's injunction. Did the Court actually vacate the district court's injunction? Well, it didn't say it was doing so. Rather, it relied on the locution of "clarification." But in every sense, the Court vacated the District Court's injunction. The injunction said the alien had to be returned by a certain date, and the government does not have to return the alien by that date. The injunction was vacated. This is similar to what happened in the USAID case, where it denied the government's request to block the funding injunction, but the Court still asked the District Court to clarify the scope of the order to spend $2 billion.

Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.

If in fact the Court vacated the District Court's injunction, in what regard was the government's application denied? It wasn't. The application was granted in full. The government didn't get all the relief they wanted, but that isn't what "denied in part" means. This is sort of the inverse of San Francisco v. EPA where Justice Barrett purported to "dissent in part" where she in fact dissented in whole. Once again, the Court is playing fast and loose with terminology to obscure what it is actually doing. It seems good for the press to report something is "denied in part," as it seems that the Court ruled against Trump. But it didn't.

At least this order is not an advisory opinion, like the USAID case. The Court clearly grants the application, at least in part, which gives it the power to issue an order to the lower court. No, jurisdiction is not some kind of "shiny" bobble.

Third, there is a minimal statement about the separation of powers:

The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.

This is a clear reversal of Judge Thacker's opinion for the Fourth Circuit, which found the executive branch had no countervailing interest in this case. Judge Thacker would have ordered the return of Garcia, post haste. What does the Chief Justice require: be prepared to share information. That is not much. All the government needs to say is "we think the prospects of Garcia's return are bleak" and they will have complied with this order.

Here, the Trump Administration did not lose, but it didn't quite win either. This is similar to the JGG case where the administration won on the venue question, but lost on the ability to summarily remove alleged alien enemies.

Fourth, Justice Sotomayor's statement provides a gloss of the majority's opinion:

Nevertheless, I agree with the Court's order that the proper remedy is to provide Abrego Garcia with all the process to which he would have been entitled had he not been unlawfully removed to El Salvador. That means the Government must comply with its obligation to provide Abrego Garcia with "due process of law," including notice and an opportunity to be heard, in any future proceedings. Reno v. Flores, 507 U. S. 292, 306 (1993). It must also comply with its obligations under the Convention Against Torture. Federal law governing detention and removal of immigrants continues, of course, to be binding as well.

I am fairly confident Justice Sotomayor overreads the majority. The majority said none of these things. I am also fairly confident the judges of the Fourth Circuit will dutifully cite Justice Sotomayor. That may be why she wrote a "statement" rather than a dissent.

The Court is moving more expeditously through the emergency docket then I expected. And in case you missed it, today Circuit Justice Kavanaugh granted an administrative stay in an Ohio election case.

When Donald Trump paused many of his awful "Liberation Day" tariffs yesterday, there was some understandable relief. Some even seem to assume the tariff crisis is over. For example, Democratic Senate Leader Charles Schumer, posted on Bluesky that "History will remember April 9, 2025 as America's actual liberation day—the day that President Trump backed down from his ridiculous tariff fiasco."

But any celebration is premature. The truth is Trump has not fully backed down. A whopping 10% tariff on nearly every nation in the world is still going into effect immediately, along with a huge increase on tariffs for Chinese goods (up to 145%). It's enough to impose a huge tax increase on Americans (an average of $4700 per household). And the additional "reciprocity" tariffs are only paused for 90 days, not cancelled.

Even with the pause, we now have the highest overall average effective tariff rate since 1909 - higher even than the infamous Smoot-Hawley tariff of 1930 that played a major role in deepening the Great Depression. And that includes high tariffs on nations like Switzerland and Israel, which don't impose any tariffs on US goods - thereby giving the lie to the notion that Trump's trade war is about breaking down "unfair" trade practices by other nations.

Moreover, so long as Trump seemingly has the power to impose massive tariffs at will, the crisis will not be over, even if he suspends all of them. Investors and producers will still face a climate of uncertainty, destroying incentives to make any kind of long-term commitments. Why build a factory, invest in one, or commit to a long-term contract, if your business could be wiped out any time the man in the White House wakes up on the wrong side of his bed, and decides to trash the world economy again?

The only way to truly end this crisis is to curb the power of the president to set tariffs. That could be done by Congress passing a law constraining the executive. There is in fact bipartisan legislation before the Senate and the House that would do exactly that, by voiding any tariffs imposed by the executive unless Congress passes a law approving them within 60 days. But even if it passes (which is far from guaranteed), Trump would veto it, and there is little or no chance that supporters can muster the two-thirds supermajorities in each house needed to override.

That leaves the second path to restoring stability: courts should strike down Trump's tariffs because they are illegal. In a previous post, I detailed multiple reasons why this is the right conclusion. They include the statutory text of the International Emergency Economic Powers Act of 1977 (IEEPA) (which, among other things, does not authorize tariffs), the major questions doctrine, nondelegation, and more.

The Liberty Justice Center and I are proceeding with our planned lawsuit challenging the "Liberation Day" tariffs on behalf of US firms that import goods from the many countries targeted with tariffs. Other groups are also likely to file cases. If we prevail, there may be true liberation from this insanity.

UPDATE: The original version of this post said the China tariff was set at %125. But it is actually now at %145. I apologize for the mistake, which has now been corrected.

This evening the Supreme Court effectively denied the Trump Administration's request that it vacate a district court order demanding that the federal government effectuate the return of Armando Abrego Garcia to the United States from El Salvador. This is consistent with last week's opinions in Trump v. J.G.G. in which all nine justices indicated that the federal government must provide due process to individuals allegedly subject to deportation.

As a technical matter, the Trump Administration's application was granted in part and denied in part, but in substance it denied the Administration's sought after relief by concluding that the district court "order 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 order also called for the district court to clarify parts of its order, and noted that parts of the order (such as the deadline) were no longer operable.

The unsigned order drew no dissents, though Justice Sotomayor issued a separate statement respecting the order joined by Justices Kagan and Jackson.

The text of the order is below the jump.

Today the Utah Supreme Court agreed with my argument that a defendant cannot compel a rape victim to testify at a "rape shield" hearing. Instead, the defendant must establish (if he can) the admissibility of prior sexual history evidence in other ways, such as a proffer of anticipated testimony and legal argument. The Court's ruling solidifies the protections offered to victims under Utah's Rule of Evidence 412. And because Utah's rule uses the same language found in the federal rules and many state provisions, it will serve as a valuable precedent in other cases.

I previously blogged about the case here. In a nutshell, in the federal system and all states, "rape shield" rules require pre-trial hearings on whether evidence relating to a rape victim's prior sexual history is admissible at trial. For example, Utah's Rule of Evidence 412 (which parallels Federal Rule of Evidence 412) requires a defendant who intends to introduce a victim's prior sexual history evidence to make a detailed proffer of the relevance and purpose of the proposed evidence. The trial judge then holds a hearing and determines the admissibility of the evidence. But what if the defendant wants to subpoena a victim to the hearing and question her about prior sexual history as part of that determination? Is forcing a rape victim to testify consistent with the rule?

In December, I argued the case to the Utah Supreme Court on behalf of a victim, T.T., explaining that the rule does not allow defendant to compel victims to testify at such a pre-trial hearing. Today, the Utah Supreme Court agreed with my position:

T.T. argues that once the district court ruled that Jolley [the defendant] had identified "enough specific evidence of prior sexual behavior between him and T.T. to obtain a hearing, no justification existed for forcing T.T. to take the stand and be questioned about her prior sexual history." As she explains, the "only purpose of the rule 412 hearing at that point was to give T.T. an opportunity to be heard about the admissibility of the evidence—not to allow Defendant to force T.T. to take the stand so he could question her."

We agree with T.T. and conclude that both the district court and Jolley fundamentally mistake the purpose of a rule 412 hearing. As discussed, rule 412 requires a party intending to offer evidence that falls within the scope of rule 412's exceptions to "specifically describe[] the evidence" in a motion. Utah R. Evid. 412(c)(1)(A). In other words, it is the moving party's obligation to identify the evidence it seeks to admit in advance of the rule 412 hearing. See id. And, as our court of appeals has explained, that description should be specific enough to allow "the district court to, among other things, assess the probative value of the evidence and balance that value against the considerations rule 403 enumerates." See State v. Bravo, 2015 UT App 17, ¶ 27, 343 P.3d 306. It is not the district court's burden at the hearing to identify evidence for the moving party. Nor is it the victim's obligation to provide testimony at the hearing so that the moving party can meet its burden.

The Court also emphasized that a Rule 412 hearing is not designed for discovery. Instead, a "rule 412 hearing is designed for the presentation of argument on the admissibility of evidence already identified in motion by the moving party; it is not designed to uncover or test that evidence."

I worked closely on the case with the Utah Crime Victims' Legal Clinic, including its capable director Heidi Nestel, and the Clinic's skilled trial court attorney on the case, Crystal Powell. I understand that the Clinic is already citing today's decision to help prevent rape victims from being forced to testify in other cases. This is as it should be. As the Court observed today, "Rule 412 ensure[s] that sexual assault victims are not deterred from participating in prosecutions because of the fear of unwarranted inquiries into the victim's sexual behavior."

On Tuesday, GOP Rep. Nicole Malliotakis and Democratic Rep. Josh Harder reintroduced the End Kidney Deaths Act. This law would give kidney donors who donate kidneys to strangers a $50,000 "fully refundable" tax credit, and thereby incentivize organ donation. Currently, some 40,000 Americans die each year of kidney failure, for lack of available organs. Thousands more suffer for years on kidney dialysis, while waiting for organs to become available.

This terrible tragedy could be entirely eliminated simply by legalizing organ markets. The End Kidney Deaths Act stops short of that. But it would nonetheless be a major step in the right direction. I assessed its strengths and weaknesses here:

An estimated 40,000 Americans die every year for lack of kidneys available for transplant. If enacted, the End Kidney Deaths Act would save many of these people. In addition, as [Dylan] Matthews points out, the $50,000 per kidney tax credits would easily pay for themselves, because kidney dialysis is vastly more expensive, and Medicare ends up paying for most of that expense. If more people suffering from kidney failure could get a new kidney quickly, the government would save a lot money on dialysis expenses, and those people would be able to be more productive (as well as avoiding great pain and discomfort)….

The major shortcoming of the End Kidney Deaths Act is the implicit price control it creates. By setting the payment at $50,000, it prevents higher payments where that would be necessary to ensure adequate supply. While the Act would save thousands of lives, the estimates Matthews cites (some 6000 to 11,500 additional kidney donations per year) would still leave us many thousands of kidneys short, thereby still dooming many people to needless death, or at least additional years on kidney dialysis. This problem might be especially acute for patients whose genetics make it unusually difficult to find a matching donor. Conversely, if some potential donors are willing to sell for less than $50,000, there is no good reason to ban such transactions.

Full legalization of organ sales, with no price controls, would fix these problems. It's basic economics 101 that markets function best if prices are allowed to fluctuate in response to supply and demand. In a free market, insurance companies, medical care providers, and others have every incentive to pay what it takes, as the alternative of kidney dialysis is far more expensive. If necessary, the government could subsidize consumption by the poor, as it already does for kidney dialysis and many other health care expenses.

I would add that the $50,000 tax credit is stretched out over a five year period ($10,000 per year). It would be better if donors got paid immediately (thereby strengthening the incentive to donate). I make the case for full legalization of kidney sales in greater detail in this article, where I also address various objections.

Despite its weaknesses, passage of EKDA would be a big improvement over the status quo. Congress should enact it as soon as possible. Informed sources indicate to me EKDA has a good chance of passing in this Congress, because it enjoys substantial bipartisan support. I hope they are right.

President Trump blinked today after his "Liberation Day" tariff/taxes catastrophe led to the worst S & P stock market performance for the start of a presidency since George W. Bush's first term. Trump reduced his blanket tariff for most nations to 10% (for 90 days) while raising tariff/taxes on imports from China. Tariff/taxes remain on imports of steel and aluminum and on trade with Canada and Mexico. Consumers will soon see rapidly rising grocery market prices for fruit and vegetables because of the Mexico tariff/taxes, and consumers will see the price of televisions, electronics, and iPhones skyrocket because of Trump's tariff/taxes on imports from China.

The U.S. Constitution gives Congress the power to impose tariff/taxes in Article I, Section 8, clause 1, and it gives Congress the power to regulate commerce with foreign nations in Article I, Section 8, Clause 3. Trump incorrectly claims that Congress has delegated that power to him under the National Emergencies Act (NEA) and the International Emergency Economic Powers Act (IEEPA) by declaring multiple "national emergencies" related to border security; the hollowing out of the United States' manufacturing base; the existence of trade deficits; and the threat posed by rising Chinese power, which Americans have known about since President Obama wisely pivoted U.S. security concerns to China fifteen years ago.

Webster's Dictionary defines "emergency" as follows: "1: an unforeseen combination of circumstances or the resulting state that calls for immediate action; 2: an urgent need for assistance or relief." The problems President Trump is concerned about are ones that he has complained of for his whole forty years in public life, and Congress and the American people have known about them for decades. They are not unforeseen threats that require urgent action like a Russian or Chinese nuclear attack on the United States, nor are they problems in need of such urgent relief that Trump can address them while bypassing Congress. The statutes Trump invokes, NEA and IEEPA, were passed in the 1970's to curtail presidential claims of emergency power, not to broaden such power.

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

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4/10/1967: Loving v. Virginia argued.

As I posted here, the March 4 oral argument in Smith & Wesson Brands v. Estados Unidos Mexicanos appeared to go well for S&W and not well for Mexico. Mexico's lawsuit seeks to hold America's federally-licensed firearm industry responsible for the cartel violence that plagues Mexico. The Protection of Lawful Commerce in Arms Act (PLCAA) prohibits lawsuits against the gun industry for crimes committed by third parties.

PLCAA does allow an action in which [1] a manufacturer or seller "knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and [2] the violation was a proximate cause of the harm for which relief is sought." It was suggested in oral argument that Mexico's aiding and abetting theory did not meet element [1], rendering it unnecessary to resolve [2]. Yet leaving the latter, the proximate-cause issue, in limbo will result in continuing legal uncertainty and ongoing attacks on the industry facilitated by courts that are allowing the most extreme theories of proximate cause in which remoteness is disregarded.

The latest example is the denial by Judge Jorge L. Ortiz of the motion to dismiss in Kelly Roberts v. Smith and Wesson Brands, Circuit Court 19th Judicial District, Lake County, Ill. (April 1, 2025). In 2022, Robert Crimo III murdered seven people and injured dozens more with an S&W rifle in Highland Park, Illinois. He has pleaded guilty and faces life in prison. His father pleaded guilty to reckless conduct for helping his son obtain the rifle while knowing of his mental health issues.

The lawsuit against manufacturer S&W, the distributor, and the retailer that sold the rifle is exactly the kind of case PLCAA was enacted to prevent. The Roberts plaintiffs alleged that S&W advertisements intentionally promote militaristic misuse of firearms, especially among young people. (Of course they don't.) S&W responded that "the claimed harm is the aggregate result of numerous intervening (including criminal) acts by third parties not under Smith & Wesson's control," and that "Plaintiffs fail to allege, as they must, that they even saw the Smith & Wesson advertisements they complain of, let alone that they were deceived by them."

The plaintiffs responded that inferences could be made that Crimo saw and was influenced by the ads because he played shooter video games and S&W ads somehow mimic such games. Judge Ortiz agreed that the inferences sufficed to show knowing violation of an Illinois law against engaging in deceptive and unfair practices, specifically by "promot[ing] a firearm-related product that encourages unlawful paramilitary activity." He held that "Plaintiffs have alleged sufficient facts to conclude that Smith and Wesson's marketing strategies of targeting younger demographics and promoting unlawful military type assaults created a foreseeable risk of injury to Plaintiffs."

"Factual causation," the court ruled, was established by "numerous allegations of unlawful marketing techniques and statutory authority that Smith and Wesson marketing and advertisements violated." "Legal cause" sufficed that "Smith and Wesson's unlawful conduct created a condition that foreseeably led to the shooter's criminal act." With conclusions like that, the proximate-cause requirement may as well be erased from PLCAA.

It goes without saying that it is sheer lunacy to claim that S&W ads encourage "unlawful paramilitary activity" and promote "military type assaults." But the purpose of such lawsuits, orchestrated by Everytown for Gun Safety, is to destroy America's lawful firearm industry. Making a mockery of PLCAA, not to mention the Second Amendment, is the game that's being played.

That's all the more reason for the Supreme Court definitively to resolve the proximate-cause issue in Smith & Wesson Brands v. Estados Unidos Mexicanos.

Stephen Halbrook is a Senior Fellow with the Independent Institute. His latest books are America's Rifle: The Case for the AR-15 and The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? He is also author of The Founders' Second Amendment, Securing Civil Rights, Gun Control in the Third Reich, and Gun Control in Nazi-Occupied France. He has written over 30 law review articles and has testified in Congressional hearings on firearm law bills. He has also litigated extensively in the field, often representing groups such as the NRA, National African American Gun Association, Western States Sheriffs' Association, Congress of Racial Equality, National Association of Criminal Defense Lawyers, and more. He has argued before the U.S. Supreme Court in Castillo v. U.S. (2000), Printz v. U.S. (1997), and U.S. v. Thompson/Center Arms Co. (1992), as well as in front of many other courts. In D.C. v. Heller, he filed an amici curiae brief on behalf of a majority of members of Congress.

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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, Donald Trump partially paused his massive new "Liberation Day" tariffs. However, a whopping 10% tariff on nearly every nation in the world is still going into effect immediately, along with an enormous increase on tariffs for Chinese goods (up to 125%). And the additional massive "reciprocity" tariffs are only paused for 90 days, not cancelled.

For these reasons, the Liberty Justice Center and I are still proceeding with our planned lawsuit challenging these tariffs on behalf of US businesses that import goods from the affected countries. We will not stop unless and until this unconstitutional usurpation of power is ended completely, and permanently.

We are close to finalizing our list of clients and hope to be able to file the case soon.

I explained why the "Liberation Day" tariffs are illegal in greater detail here.

In my recent post about the Supreme Court's ruling in Trump v. JGG, the Alien Enemies Act case, I noted that the impact of the decision will in large part be determined by whether non-citizens slated for deportation under the AEA will be allowed to bring habeas class actions to challenge them. If class actions are permitted, then individual detained immigrants won't have to bring separate habeas cases to challenge their deportation (which many may not have the resources or the knowledge to be able to do effectively). Rather, public interest groups and others can bring systematic challenges on behalf of large groups.

Yesterday, the American Civil Liberties Union filed a habeas class action lawsuit on behalf of migrants slated for AEA deportation, currently detained in New York. They seek to certify a class that includes "All noncitizens in immigration custody who were, are, or will be subject to the March 2025 Presidential Proclamation entitled 'Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua' and/or its implementation." This includes virtually everyone who might be deported by the administration under its Alien Enemies Act Proclamation.

I am not an expert on class actions. So I cannot say much about the likelihood of success for this suit. I must largely leave that issue to others with greater expertise.

But I will note that it is not unusual for class actions to include class members who are located in different places around the country. This situation strikes me as the kind of scenario for which class actions were created. We have a likely illegal policy that potentially harms a large number of people around the country, they have a common interest in stopping it, but many would find it difficult or impossible to bring individual lawsuits. For obvious reasons, immigrants detained by ICE may find it hard to bring individual habeas petitions, even though the Supreme Court has ruled that they "must receive notice after the date of this order that they are subject to removal under the Act [and] [t]he notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."

Elsewhere I have written about why the Administration's invocation of the AEA is illegal, and would set a very dangerous precedent if allowed to stand. People slated for deportation to brutal imprisonment in El Salvador should at the very least have a meaningful opportunity to raise these issues in court. The class action pathway seems like the best remaining available means to ensure they get the due process to which they are entitled under the Constitution.

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