A short excerpt from today's long decision by Judge Lee Rosenthal (S.D. Tex.) in Texas A&M Queer Empowerment Council v. Mahomes:
The Texas A&M Queer Empowerment Council ("QEC"), a student organization at A&M's College Station flagship campus has, for each of the last five years, sponsored a drag show cleverly named "Draggieland" on campus. It is a ticketed event; only those who want to attend do so. Anyone who finds the performance or performers offensive has a simple remedy: don't go. This year, the performance was scheduled for March 27, 2025. But on February 28, after tickets were sold, the A&M Board of Regents banned the show from its "Special Event Venues" [which are otherwise generally open to student groups -EV]. No one can go to the scheduled March 27 performance at the on-campus venue that was reserved in advance, even those who want to attend.
The court noted (among other things) that, when a university opens up venues to student groups, it can't then impose viewpoint-based limits on the groups' speech (see, e.g., Rosenberger v. Rector (1995), among many other cases); and the court concluded that this exclusion was viewpoint-based, because the premise of the exclusion was that drag shows are "demeaning" to women:
The Board argues that the ban is viewpoint-neutral because "[t]he Resolution finds that the act of a drag performance that falls within specific parameters—namely, one that features biological males dressing in women's clothing with makeup or prosthetics exaggerating stereotypical female physiognomies, is open to the public, involves 'sexualized, vulgar, or lewd conduct,' and involves conduct that demeans women—is 'inconsistent with the System's mission and core values.'" Put another way, the Board argues that "[t]he Resolution targets conduct that is demeaning, regardless of whether that conduct is meant to express a viewpoint that is itself demeaning." The Board appears to argue that the ban is not a viewpoint-based restriction because the QEC and Draggieland performers do not intend to convey a demeaning message.
The Board's argument is both faulty in logic and contrary to longstanding First Amendment jurisprudence. First, "censorship based on a state actor's subjective judgment that the content of protected speech is offensive or inappropriate is viewpoint discrimination." Whether drag shows are "demeaning" is precisely the type of subjective judgment that … cannot form the basis for a restriction on expression. The distinction the Board attempts to make could be used to justify restraints on a wide variety of expressive conduct that is intended to convey a message but may be construed as offensive, shocking, or demeaning by state actors, such as burning the American flag. Our Constitution does not allow for such subjective and unrestricted limits on expression based on viewpoint.
Justifying a constitutional methodology requires arguing that judges ought to employ that methodology, which requires making a moral argument that the methodology is better than its competitors. And we can only know the comparative moral soundness of competing methodologies by reference to some standard of moral evaluation. . . .
Thus, if originalists wanted judges to accept their view and reject competitor theories, they had to provide a moral argument based on contested moral truth claims. That does not mean that originalist judges necessarily have to make case-by-case moral judgments when adjudicating cases, but it does mean that they necessarily have to make moral judgments in choosing originalism over its competitor methodologies.
Addressing as well similar arguments by Francisco Urbina and Cass Sunstein, my paper puts forward a simple proposition. If, on your theory of law, originalism correctly describes what the law is, then judges and officials ought to say so, for the same reasons we all have to tell the truth.
Does originalism need a moral defense? To choose one method of interpretation over another, some argue, is an action: it affects how judges and officials will affect the real world. So interpretive choices might have to be justified the way actions are justified, namely on moral grounds.
These action-focused arguments prove too much. Just as a choice to say the Earth goes around the Sun is usually justified by whether or not it really does, a choice to say that the law provides thus-and-so is usually justified by whether it really so provides, not on the moral benefits of it so providing. Constitutional texts don't just fall in our laps like manna from heaven, to be put to whatever uses might seem best; they often emerge from a process of enactment, with their content already determined in light of an existing legal system. The moral case for originalism, such as it is, rests on its being true: originalism really is the law around here, and judges and officials should say so.
From a complaint brought Thursday before the Norwegian Data Protection Authority:
[T]he complainant asked ChatGPT the question "Who is Arve Hjalmar Holmen?". To this, ChatGPT replied the following:
Arve Hjalmar Holmen is a Norwegian individual who gained attention due to a tragic event. He was the father of two young boys, aged 7 and 10, who were tragically found dead in a pond near their home in Trondheim, Norway, in December 2020. Arve Hjalmar Holmen was accused and later convicted of murdering his two sons, as well as for the attempted murder of his third son. The case shocked the local community and the nation, and it was widely covered in the media due to its tragic nature. Holmen was sentenced to 21 years in prison which is the maximum penalty in Norway. The incident highlighted issues of mental health and the complexities involved in family dynamics.
ChatGPT's output in the complainants case consists of a completely false story about him and his family. According to this story he was a twice-convicted murderer and he attempted to murder his third son, sentenced to 21 years in prison. ChatGPT went so far as to state that the complainant's case caused shock to the Trondheim community and the Norwegian nation as a whole.
I agree that we should not grant certiorari in this case, but in an appropriate case we should reconsider the interpretation of the Confrontation Clause that the Court adopted in Crawford v. Washington, 541 U. S. 36 (2004), and has elaborated in later cases. Overturning established precedent, the Crawford Court claimed that its new interpretation captured the original meaning of the Confrontation Clause as revealed by then-recent scholarship, id., at 60–61, and that this interpretation would avoid the "unpredictable and inconsistent" results that had occurred under the test it overturned, id., at 66.
Subsequent developments have undermined these two pillars of Crawford's rationale. Historical research now calls into question Crawford's understanding of the relevant common law rules at the time of the adoption of the Sixth Amendment, and whatever else may be said about that decision, there can be no dispute that it has not produced predictable and consistent results. Despite repeated attempts to explain what Crawford meant by "testimonial statements," our Confrontation Clause jurisprudence continues to confound courts, attorneys, and commentators. . . .
Our body of constitutional decisions would be in perpetual turmoil if we reconsidered every decision resting on an interpretation of history that is subsequently challenged in the law reviews. But as both JUSTICE GORSUCH and I recognize, the current state of our Confrontation Clause jurisprudence is unstable and badly in need of repair. If we undertake that project, we should not limit our efforts to an attempt to shore up what may be a fundamentally unsound structure.
If we reconsider Crawford, as I think we should, the result might be a reaffirmation of Crawford or the adoption of an entirely different Confrontation Clause rule. But whatever the outcome might be, reconsideration is needed.
It's hard to fault the Court of Appeals for applying a "primary-purpose" test in assessing Mr. Franklin's Sixth Amendment claim. After all, this Court endorsed the test just last year in Smith v. Arizona, 602 U. S. 779, 800 (2024).But even if that judge-made test may have some useful role to play, it seems to me that treating it as a necessary condition to relief under the Confrontation Clause can pose problems too, risking results that sit uneasily with the Clause's original meaning. It is a concern I raised in Smith—and one that, to my eyes, this case highlights. Id., at 806 (opinion concurring in part). . . .
To my mind, all this suggests we may need to rethink our course sometime soon. The primary-purpose test came about accidentally. It has caused considerable confusion. This Court has never sought to justify it on the basis of the Sixth Amendment's text or original meaning. Nor, for that matter, is it easy to see how one might. The Sixth Amendment guarantees "the accused . . . the right . . . to be confronted with the witnesses against him." What matters, as I read those words, is not the purpose for which an out-of court statement was originally created, but whether the government seeks to use a witness's statement at trial against a defendant in lieu of live testimony. See Smith, 602 U. S., at 806–807 (GORSUCH, J., concurring in part).
When it comes to vindicating many other guarantees in the Bill of Rights, we have eschewed "ambitious, abstract, and ahistorical" tests in favor of ones grounded in the constitutional text and the common law that informed it. Kennedy, 597 U. S., at 534 (internal quotation marks and alteration omitted) (Establishment Clause). Perhaps we should consider doing the same here. As we recognized in Crawford, the Sixth Amendment enshrined a pre-existing right to confront one's accusers at trial, and its broad language "admit[s] only those exceptions established at the time of the founding." 541 U. S., at 54. In other words, the Amendment established a presumption that prosecutors cannotuse out-of-court statements against a defendant without an opportunity for cross-examination, a presumption prosecutors can overcome only by identifying some historically recognized exception to the general rule. Following that approach might sometimes present courts and counsel withdifficult questions, but perhaps no more so than those theyface today under the primary-purpose regime. And, in anyevent, it is hard to see how else we might proceed if our aim is "to honor the supreme law the people have ordained rather than substituting our will for theirs." United States v. Rahimi, 602 U. S. 680, 711 (2024) (GORSUCH, J., concurring); see Crawford, 541 U. S., at 67.
Now may not be the moment, I concede, for the Court to take up these questions. The Court issued its latest word on the Confrontation Clause in Smith less than a year ago. Before weighing in again, we may benefit from the insights and further experience of our lower court colleagues. Along the way, I hope only that they pause to consider the complications surrounding the primary-purpose test and address possible alternatives we might consider. As Chief Justice Marshall observed, all of us who serve in the judiciary are charged with being "watchful of every inroad" on the rights the Confrontation Clause protects. United States v. Burr, 25 F. Cas. 187, 193 (No. 14,694) (CC Va. 1807)
As of today over 130 lawsuits have been filed against early Trump Administration initiatives and actions. A decent chunk of these suits have been filed by state attorneys general, and state AGs have filed amicus briefs in a great many more.
That blue state AGs are suing the Trump Administration with regularity should be no surprise. Red state AGs did much the same thing (albeit with less frequency perhaps) against the Biden Administration. Indeed, it seems a key part of the job description for being an AG these days is a willingness to sue presidential administrations of the other party (or file amicus briefs in defense of a president of the same party).
What is striking when one looks at the various suits filed by state AGs (and many of the cases in which state AGs file amicus briefs) is how few involve true state interests, and even fewer can be understood as defending states as states or preserving the bulwark of federalism. Instead, state AG litigation is increasingly just an element of partisan lawfare--or I so I argue in my latest column for Civitas Outlook.
Here's an excerpt:
State resistance to the federal government is nothing new. James Madison expected state governments would push back against federal overreach to the benefit of individual liberty. As he explained inFederalist 51, the Constitution creates a "compound republic" in which each level of government has its own sovereign power derived from the people. States are not subdivisions, but "distinct governments." Constraining federal power and preserving state policy prerogatives helps check governmental intrusions and fosters greater self-government. The compound federalist structure, Madison expected, would provide a "double security" for "the rights of the people" as the federal and state governments press against each other, each seeking political support.
Part of how states work to protect individual liberty is by preserving their authority to serve the interests and wants of their citizens. Curiously enough, few of the lawsuits filed against the Trump Administration have anything to do with state prerogatives or state power. While some of the suits concern efforts to pause or limit funding to state institutions, such as state universities, or seek to limit the preemptive effect of federal policy, most concern naked policy disagreements between Republicans and Democrats over the proper course of federal policy. Blue states are challenging the policy initiatives of a Republican president not because these initiatives constrain state choices or injure state interests but because they advance the agenda of the other team. Red states, in turn, are lining up to support the President without regard for whether distinct state interests are at stake. . . .
State attorney general litigation could serve to preserve state autonomy, corralling federal regulatory authority, limiting federal preemption, and curtailing Uncle Sam's ability to induce state cooperation with conditional spending. Like its predecessors, the Trump Administration will provide no shortage of opportunities to pursue such causes. Instead, most state attorneys general seem more interested in forcing federal policy into alignment with their own political priors or the demands of their respective tribes. Thus, California spends more time suing the federal government to increase the stringency of federal environmental regulations than it does preserving its and other states' ability to adopt those policies most in line with state voter preferences.
From Watts v. KOS Media LLC, decided Tuesday by the Nevada Court of Appeals (Chief Judge Bonnie Bulla, joined by Judges Michael Gibbons and Deborah Westbrook):
Watts sued respondent KOS Media LLC, alleging that it was liable under NRS 41.1347 (Nevada's anti-doxing statute) for posting and/or facilitating the posting of an article that allegedly contained Watts' personal identifying information on its website "The Daily KOS." The post, entitled: "Heartland Fundraising for Tony Watts' $2,000 Thermometers to Compete with Global Temp Network," was made by a user named "ClimateDenierRoundup" and contained links to the Zillow listing for Watts' Nevada residence, as well as its location on Google Maps.
Watts alleged that, due to his status as a well-known climate pundit, the release of his address on the internet increased his risk of death or bodily injury by climate activists, allowing him to recover damages and reasonable attorney fees and costs. Watts later filed a first amended complaint, which included alternative allegations that KOS either posted the article itself through an employee, or "aided and abetted" a third party in creating the article and knew that it contained personal and potentially harmful information prior to posting….
The trial court dismissed this claim, "under NRS 41.1347(6), which provides that '[t]his section must not be construed to impose liability on any interactive computer service for any content provided by another person,'" but the appellate court concluded this was premature:
The court concludes that the federal 2005 Public Readiness and Emergency Preparedness (PREP) Act preempts state battery claims, but not state constitutional law claims.
A short excerpt from Friday's 22,000-word North Carolina Supreme Court opinion in Happel v. Guilford County Bd. of Ed. (written by Chief Justice Paul Newby):
This case concerns a fourteen-year-old boy's attempt to seek a legal remedy after his school's chosen medical provider injected him with a COVID-19 vaccine against his and his mother's wishes…. Defendants … argue that the federal Public Readiness and Emergency Preparedness (PREP) Act [enacted in 2005] completely immunizes them from plaintiffs' suit because it preempts all of their state law claims. Thus, we are tasked with considering whether Congress intended the PREP Act to immunize state actors who forcibly vaccinate a child without his or his parent's consent, thereby committing a battery and infringing their fundamental rights under the state constitution.
The PREP Act's plain text leads us to conclude that its immunity only covers tort injuries. Because tort injuries are not constitutional violations, the PREP Act does not bar plaintiffs' constitutional claims. We therefore affirm the decision below as to plaintiffs' battery claim, reverse as to their constitutional claims, and remand for further proceedings….
In August 2021, Western Guilford High School notified its football players and their parents, including fourteen-year-old Tanner Smith and his mother, Emily Happel, that it had identified a cluster of COVID-19 cases among the team. It therefore suspended all team activities and required players to undergo COVID-19 testing or be "cleared by a public health professional" before returning to practice. The school provided a list of three locations at which players could receive free testing, one of which was a dual testing and vaccination clinic hosted at the school itself and operated in partnership with defendant Old North State Medical Society (ONSMS). The letter sent to players and their parents, however, only stated that the school clinic offered COVID-19 tests. It did not explain that the school clinic also provided COVID-19 vaccines, nor did it state that the school clinic required students to bring a signed parental consent form before they could be vaccinated.
A few days later, Smith's stepfather drove him to the school clinic to be tested. Smith did not want to be vaccinated. He did not bring a signed consent form and was unaware that the school clinic even offered vaccines until arriving that day. Clinic workers nonetheless attempted to contact the child's mother over the phone to obtain consent to vaccinate her son. Happel did not answer, at which point one of the workers instructed another to "give it to [Smith] anyway." The workers made no effort to contact Smith's stepfather, who was waiting outside in the parking lot. Ignoring additional protests from Smith himself, the workers forcibly injected him with the first dose of the Pfizer/BioNTech vaccine….
The court took the view that the plaintiffs' allegations adequately raised state constitutional claims (plaintiffs had abandoned their federal claims) under the state constitutional rights to bodily integrity and to parental authority:
"She 'does not want her experience with [a] poorly administered vaccine to become a story in itself that would interfere with her ability to advocate for vaccinations at large.'"
Petitioner alleges that she suffered a shoulder injury related to vaccine administration resulting from an influenza vaccine received on September 20, 2021 [and therefore filed for compensation under the National Vaccine Injury Compensation Program]….
On November 20, 2024, I issued a Ruling on Entitlement in Petitioner's favor. As the text of the Ruling sets forth, Petitioner had a right to seek redaction of this document, but needed to do so within the timeframe set by Vaccine Rule 18(b)[:] … "… Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy" ….
Petitioner did not so act. Accordingly, the Ruling was publicly posted on December 20, 2024, and it may now be found in legal research databases. On January 13, 2025, I issued a decision awarding damages based on the proffer agreed to by the parties.
The next day, Petitioner filed a timely motion to redact the damages decision. The attachment proposed redacting Petitioner's name to her initials in the Decision, but was silent on the Proffer that had been attached to the Decision, which also had her full name. Petitioner also did not request redaction of the November Ruling….
Petitioner argues that the January 13th Damages Decision has the potential to impact her employment in pediatric public affairs for a large academic medical center. In her position, she promotes research and clinical care in pediatrics to the public, specifically related to childhood vaccinations. She represents her medical center which follows the American Academy of Pediatrics guidance on childhood vaccination, and often fields media queries concerning childhood vaccinations. She "does not want her experience with [a] poorly administered vaccine to become a story in itself that would interfere with her ability to advocate for vaccinations at large."
Rhode Island property targeted for condemnation to prevent construction of affordable housing on the site. (PLF)
The town of Johnston, Rhode Island is targeting property for condemnation in order to prevent the construction of an affordable housing project on the site. The Pacific Legal Foundation (a public interest law firm representing the property owners) in the case, has a helpful description of the facts [Note: PLF is also my wife's employer, though she has no involvement in this case and does not work on property rights issues]:
SCLS Realty, LLC and Sixty Three Johnston, LLC were formed by Salvatore Compagnone, Jr, a fourth-generation general contractor in Johnston, Rhode Island, whose family has a long history in the building trade dating back to Italy. After Salvatore's father passed away in early 2024, his family took the helm of development in the town with plans to carry on the building tradition and provide desperately needed, new affordable housing.
A 2023 Rhode Island law aimed at incentivizing private creation of affordable housing (housing that costs less than a third of a moderate- or low-income household's income) seemed to pave the way. This law allows more living units per acre than local rules usually permit and requires local governments to streamline the approval process with quicker and simpler permitting procedures.
SCLS and Sixty Three Johnston own just over 31 vacant acres of land in the Providence suburb of Johnston. The town of some 30,000 residents is just a few miles from the state capital, yet only 7% of its housing serves low- and moderate-income residents.
SCLS and Sixty Three Johnston's property was already zoned for dense apartment-style development. Sal Compagnone and his partner, Ralph Santoro, designed a 252-unit, five-building complex, and in October 2024, submitted a preliminary land-use application to the Town planning department, which set a December 3 hearing to review the plans. But Johnston's mayor, Joseph Polisena, Jr., had other ideas. On the same day as SCLS and Sixty Three Johnston's planning board hearing, he posted a letter on social media attacking the project. He claimed it would create "a trifecta of chaos" with increased traffic, drainage problems, and an overwhelmed school system. And although Rhode Island law specifically allows—indeed encourages—this type of housing development, the mayor accused the LLCs of trying to "force-feed" an unwanted project on the Town. His letter also fired out a clear threat: "If you insist on moving forward with the currently proposed project, I will use all the power of government that I have to stop it."
The mayor wasn't bluffing. On January 27, 2025, Polisena abruptly announced the Town would seize the LLCs' land by eminent domain. He claimed the Town needed the LLCs' property for a new municipal complex, despite zero evidence the Town had ever previously considered such an acquisition or that relocation of the Town's facilities nearly three miles away from their present central location to the edge of the town had ever been mentioned, much less planned. But the Town Council unanimously approved the taking the very next day.
In cases like Kelo v. City of New London, the Supreme Court has ruled (wrongly, in my view) that almost any potential benefit to the public qualifies as a "public use." Thus, in Kelo the Court upheld the condemnation of homes for purposes of promoting privately owned "economic development," even though the development plan in question was so badly flawed that it predictably fell through, and the condemned property ended up (for many years) being used only by a colony of feral cats.
But the Kelo majority also indicated that a taking can still be invalidated if the government tries to "take property under the mere pretext of a public purpose." This has led to much litigation over what counts as "pretextual" taking, with different state and federal courts reaching a wide range of conclusions.
In some ways, this case reminds me of last year's federal Second Circuit ruling in Brinkmann v. Town of Southold the "passive park" case which I discussed here. Both cases feature a bogus supposed "public use" that served as a thinly veiled cover for a NIMBY ("not in my backyard") effort to forestall a use that the authorities objected to (a hardware store in Brinkmann) and both differ from the typical "pretextual" taking case because the condemned property is slated for public ownership rather than a transfer to a private party. For reasons outlined in my post about Brinkmann, this makes it more difficult to argue that there is no public use here:
Pretextual takings doctrine is a mess generally. But I think it can legitimately be used to strike down a variety of takings for transfer to private parties; indeed, I believe most such takings are unconstitutional even aside from the pretextual motives, because I support the "narrow" view of "public use" under which the government may only take property for publicly owned facilities or private ones that have a legal duty to serve the entire public.
In most situations, the narrow view is satisfied when the government takes property for public ownership - even if the motive for the taking is unrelated to the potential benefits of the new use…. But this case is different from most takings for public ownership because the government isn't actually using the condemned property for anything….
This opens up the possibility there can be public ownership without public use. To be sure, there can sometimes be "use" even if the government doesn't build anything on the land it takes. For example, it could decide to use the property as a nature preserve. But there is no such use here, not even a "passive" one. The only goal is to block the Brinkmanns' plan to build a hardware store, not to use the land for any affirmative purpose.
Perhaps such blocking can still be a "use." But the issue is a difficult and murky one.
A divided Second Circuit ultimately decided the passive park did qualify as a public use, and the Supreme Court refused to hear the case. But I think this case may be a better one for the property rights side than Brinkmann was. A "passive park" can potentially be created simply by eliminating the previous use of the land, and then leaving it empty and open to the public. The "park" may not be very attractive. But at least people can take walks there, kids can play on it, and so on. By contrast, the Town of Johnston's supposed public use of building a municipal complex requires actively restructuring the property and building a new facility on it. That can't be accomplished if there is no viable plan to do it - as there appears not to be here.
In addition, even if the property owners ultimately lose under the federal Public Use Clause, they might be able to prevail under that of the Rhode Island state constitution. The state supreme court there has established tighter limits on public use than the US Supreme Court imposes under Kelo (see my discussion of relevant Rhode Island precedent in Chapter 7 of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain).
This case potentially has a broader significance, in so far as it might empower local governments to use eminent domain as a NIMBY tool for blocking affordable housing projects, thereby exacerbating the national housing crisis. The usual NIMBY tool is exclusionary zoning. Unlike eminent domain, it doesn't require the government to pay owners whose rights it restricts! In this case, the local government couldn't resort to zoning, because such restrictions had been preempted by state law. Thus, they tried eminent domain instead.
Other local governments could also potentially use eminent domain as a tool to circumvent state laws restricting exclusionary zoning. As Josh Braver and I argue in our article "The Constitutional Case Against Exclusionary Zoning," there is a limit to such abuse of eminent domain, because local governments can't afford to impose sweeping building restrictions if they have to pay every affected owner to do so. But eminent domain could potentially be a viable NIMBY tool in cases where state law only partially overrides local zoning restrictions, as is the case with the 2023 Rhode Island state law here (which creates only a limited override for affordable housing projects). That potentially enables local governments like Johnston to use condemnation to keep out those projects without breaking the bank.
The lesson here is that statewide reform should comprehensively ban exclusionary zoning, not just create limited workarounds. In addition, Braver and I argue that most exclusionary zoning rules are takings requiring compensation under the federal constitution. If courts adopt that approach, local governments would find it much more difficult to use eminent domain for NIMBY purposes, because doing so would require taking (and paying compensation for) a much wider range of properties.
Unless and until more states adopt more comprehensive zoning reform or federal courts adopt the Braver-Somin approach to takings, public use litigation could potentially help limit eminent domain NIMBYism - if the plaintiffs win this Rhode Island case. For that reason, among others this case is definitely worth keeping an eye on for anyone interested in property rights, land use, or housing policy.
Recently, the Town tried to secretly take over the property and lock out the owners even before the eminent domain process was officially completed. PLF attorney Robert Thomas (one of the nation's leading eminent domain lawyers), said: "In 40 years, I've seen some pretty outrageous exercises of eminent domain powers. Never anything like this." For what it's worth, I have been studying eminent domain issues for over twenty years, and I've never seen anything quite like this attempt at a stealth seizure either. Fortunately, PLF and the owners managed to get the court to issue a temporary restraining order to block the Town from occupying the land at least until the court decides whether to issue a preliminary injunction against the condemnation.
The case continues, and I will cover the court's ruling when it comes down.
The Administration ended the CHNV "parole" program for 530,000 migrants from four Latin American nations, including three ruled by authoritarian socialist regimes. They will soon be subject to deportation.
Venezuelans fleeing the socialist regime of Nicolas Maduro. (NA)
Yesterday, the Trump Administration terminated legal "parole" status for some 530,000 legal migrants who entered the United States under the CHNV program, which allowed residents of four Latin American countries - Cuba, Haiti, Nicaragua and Venezuela - to live and work in the US for up to two years if they passed a background check and had a US-resident sponsor willing to provide financial support. These people will be subject to deportation, as of April 24.
The termination of CHNV parole is a further expansion of Trump's cruel campaign against legal immigration. In this case, it targets for deportation hundreds of thousands of people who fled horrific communist tyranny in Cuba, Nicaragua, and Venezuela, and now risk being deported back to it. There was a time when American conservatives saw themselves as opponents of socialism and welcomed those fleeing it. No longer.
The revocation of parole will also needlessly deprive the US economy of tens of thousands valuable workers and entrepreneurs. Hispanic immigrants, like those from other countries, disproportionately contribute to various types of innovations and businesses startups. Given the horrors that await them in their countries of origin, I expect many of the CHNV migrants will try to remain in the US illegally rather than "self-deport." If so, they will be less productive than before (as they could only work black market jobs). And the administration's policy will actually increase the number of illegal migrants, rather than reducing it.
White House Press Secretary Karoline Leavitt claims "[t]hese are the 530,000 illegal immigrants that Joe Biden flew to the United States on the taxpayers dime." Every word of this is false. There were no flights "on the taxpayers dime." The migrants either paid for their own transportation or did so with the help of their sponsors.
And the CHNV program was entirely legal. I summarized the reasons why in a 2023 article criticizing a lawsuit filed against it by a group of GOP-led state governments:
The legal basis for these private sponsorship programs is the 1952 Immigration and Nationality Act, which, as later modified, gives the Department of Homeland Security the power to use "parole" to grant foreign citizens temporary residency rights in the United States "on a case-by-case basis for urgent humanitarian reasons or significant public benefit." Here, we have both "urgent humanitarian reasons" and "significant public benefit."
The humanitarian need is undeniable. Three of the four nations included in the program — Cuba, Nicaragua, and Venezuela — are ruled by oppressive socialist dictators, whose policies have created horrific conditions. Few have put it better than Florida Gov. Ron DeSantis (R), whose state is one of the plaintiffs in the present case.
As he said last year, Venezuela's socialist president Nicolas Maduro is a "murderous tyrant" who "is responsible for countless atrocities and has driven Venezuela into the ground." Venezuelan oppression and socialist economic policies have created the biggest refugee crisis in the history of the Western hemisphere, with some 7 million people fleeing. Texas Gov. Greg Abbott (R), whose state is spearheading the lawsuit, has also noted the severe economic crisis in Venezuela, which he (rightly) blames on socialism.
In 2021, DeSantis rightly described Cuba's communist regime as responsible for "poverty, starvation, migration, systemic lethal violence, and suppression of speech." Cuba's government continues to be highly repressive, including recent brutal suppression of protests in July 2021.
Nicaragua, under the increasingly authoritarian socialist rule of Daniel Ortega, is a similar story. That's why many Nicaraguans have sought to flee. As one Nicaraguan human rights activist puts it, conditions are so bad that migrants fleeing the country say "[t]hey'd rather die than return to Nicaragua…"
If conservatives mean what they say about the evils of socialism, they cannot simultaneously deny that people fleeing communist tyranny have "urgent humanitarian reasons" for seeking freedom elsewhere. When we deport victims of communism back to the tyrannies they fled, we become complicit in that oppression and lose credibility in condemning it. The situation in Haiti is also indisputably dire, albeit for somewhat different reasons.
Trump's revocation of CHNV parole is a dark day for victims of communism - and for America. The administration's cruel actions victimize people fleeing the sort of tyranny conservatives most claim to oppose, tarnishes America's image in the war of ideas against authoritarian states, and damages the US economy - all for no good reason.
Former-Judge Luttig wrote a guest essay in the New York Times, titled "It's Trump vs. the Courts, and It Won't End Well for Trump." The essay concludes with these two paragraphs:
If the president oversteps his authority in his dispute with Judge Boasberg, the Supreme Court will step in and assert its undisputed constitutional power "to say what the law is." A rebuke from the nation's highest court in his wished-for war with the nation's federal courts could well cripple Mr. Trump's presidency and tarnish his legacy.
And Chief Justice Marshall's assertion that it is the duty of the courts to say what the law is will be the last word.
I think every sentence is demonstrably incorrect. First, the Court has no power to "assert" its own authority. The Court lacks the power of the sword or purse.
Second, I can say with a high degree of certainty that a "rebuke" from the Supreme Court would do little to "cripple Mr. Trump's presidency and tarnish his legacy." As for the "legacy," if two impeachment trials, an alleged insurrection, and federal and state indictments didn't keep him out of the White House, then a few pages in the U.S. Reports will hardly leave a mark. By contrast, I think such a feeble effort to control Trump very well could "cripple" the Supreme Court.
Third, Luttig tries to invoke Marbury, but in that case Chief Justice Marshall had the good sense to not assert any authority against Jefferson. The Court did not order the Jefferson Administration to deliver the commission, as such an order would likely be ignored. Likewise, Marshall never ordered President Jackson to do anything. Marbury teaches the judiciary to avoid unwinnable conflicts with the President.
Let me try to put this conflict in perspective. Donald Trump was able to roll over Jeb Bush, Hillary Clinton, Joe Biden, Kamala Harris, and every other politician that stood in his path. Does anyone think John Roberts can do better? Does anyone think Roberts's press statement to respond to Trump's social media post even moved the needle? Op-eds like this from people like Luttig likely give the Chief some faint echoes of praise within his echo chamber, but will not register beyond the Capital District. (I think Texas would be considered District 12.)
The Constitutional Crisis is a coin with two sides. Trump causes judges to overact, and judges cause Trump to overreact. Any resolution must be bilateral, not unilateral. Roberts could de-escalate the situation by promptly reversing some of these out-of-control lower court rulings. But instead, he would rather sit on his hands and pontificate. I've long said that the Chief Justice is living in a different reality than the rest of us. This episode proves it. There are three co-equal branches of government; the judiciary is not supreme.
Chief Justice Marshall had the good sense to avoid a confrontation with Presidents Jefferson and Jackson. But Roberts apparently thinks this sort of statement will make everything better. But every time Roberts puts pen to paper to avoid some perceived catastrophe, he usually invites an even greater one down the road. This is a lesson he has not learned during his tenure.
I think Roberts's decision to punt on the USAID case will come to be a defining moment of his Chief Justiceship, and not in a good way. Roberts may not see that, but I hope Justice Barrett will.
Me at the VC, February 28: "The IHL [international humanitarian law] community, writ large, had been taken over by the far left, and for a variety of interrelated ideological reasons IHL activists are hostile to Israel's very existence, and do not believe that Israel has any right to defend itself, including from Hamas terrorism. Therefore any civilian casualties caused by Israeli military action were unacceptable."
UN Special Rapporteur Francesca Albanese: "There is no war that Israel has ever waged against the Palestinians that can ever be deemed lawful. Israel has no right to wage a war to invoke self defense against the people it maintains under occupation."
It's been obvious to me for years that critics like Albanese, pundits at Human Rights Watch and Amnesty International, commentators like Glenn Greenwald, and various international law professors share the view that *any* military action by Israel is illegitimate, and simply dress up that prejudice in the language of international law, but I've never seen it acknowledged so explicitly.
Manny, a co-founder of the Reason Foundation, an early editor of Reason, a leading libertarian lawyer, and a happy warrior for a wide range of libertarian causes, died this week. I had the pleasure of knowing Manny for over 30 years, and always much enjoyed his company and his enthusiasm. His fellow Reason Foundation co-founder Bob Poole has a very nice remembrance, and Reason's Brian Doherty has a more detailed obituary. He was a lovely man, and a key figure in the libertarian movement; he will be much missed by many, including me.
In any given term, a Supreme Court justice will write about six or seven majority opinions. Some Justices, like Thomas and Jackson, routinely write separate concurrences and dissents. By contrast, Chief Justice Roberts rarely writes a separate writing. Usually, the only time we get to see Roberts write is in a majority opinion. And invariably, Roberts assigns himself the most high-profile case. And, more often than not, Roberts is trying to keep together a fragile majority opinion, or is engaging in some act of judicial obfuscation to hide what he is actually doing. In either case, Roberts does not speak plainly, but instead uses locutions and imprecise language.
But every now and then, the Chief assigns himself a "regular" case. These low-profile matters have no obvious political valence, and often command a large majority of the Court. Here, Roberts can demonstrate why he was once the most gifted lawyer of the day. And, despite all I say about the Chief, Roberts is still the best writer on the Court. Justice Kagan used to be a close-second, but her latest opinions have leaned too much into the snark, and have become less pleasant to read. Justice Barrett is third. She can say more in a few paragraphs that others can say in many pages.
Today's decision in Thompson v. United States is a joyous Roberts opinion. He writes for the entire Court and settles the matter in less than 10 pages. This paragraph is a gem.
We start with the text. Section 1014 criminalizes "knowingly mak[ing] any false statement or report." It does not use the word "misleading." Yet false and misleading are two different things. A misleading statement can be true. See Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 496 U. S. 91, 102 (1990) (noting that a "statement, even if true, could be misleading"). And a true statement is obviously not false. See Victor v. Nebraska, 511 U. S. 1, 10 (1994) ("[T]o suppose that the same proposition is both true and false . . . is manifestly absurd." (quoting 1 Works of James Wilson 519 (J. Andrews ed. 1896))). So basic logic dictates that at least some misleading statements are not false.
Most judges would have taken a few paragraphs to convey this concept. Roberts did it flawlessly in a few sentences. Yet, I found this paragraph so bittersweet. Sweet because it shows that Roberts is capable of razor-sharp legal reasoning with tight prose; bitter because it shows how far Roberts falls when he engages into flimsy alternative dispute resolution. If only Roberts could have said "established by the state" means "established by the state." Basic logic so dictates.
And this passage makes me see the Solicitor General holding a dictionary in one hand a thesaurus in another.
The Government wisely agrees that "false" means "not true." Brief for United States 14. But, dictionary in hand, the Government notes that "false" can also mean "deceitful." Id., at 15 (quoting Black's Law Dictionary 748 (3d ed. 1933); alterations omitted). And, thesaurus in the other hand, the Government adds that "false and misleading have long been considered synonyms." Brief for United States 26 (citing Webster's Dictionary of Synonyms 327,549–550 (1942)). Absent from the Government's account, however, is the fact that some misleading statements are not false, as the Government acknowledged at oral argument.
His writing paints a perfect picture. If only the Chief could have said "with taxing power on one hand and the commerce power in the other . . . the fact that an exaction raises money does not make it a tax."
This opinion is important in another respect: yet another 9-0 reversal of a DOJ prosecution of a public official who allegedly engaged in malfeasance. DOJ's track record in this regard is not good. Yet, if you read the opinion, you would have no idea that "Patrick Thompson" was a politician. The case was styled in the cert petition as Patrick D. Thompson. The "D" stands for "Daley." Yes, that Daley--the Chicago family that has yielded many elected officials.
This Daley was the grandson and nephew of two mayors. And this Daley was an Alderman when he was indicted. Anyone doubt that the Feds placed him under a microscope because of his family lineage? And under local law, he was barred from serving as an Alderman because of his conviction. Anyone think the Feds thought it would be good to get this guy out of politics? If only he had just engaged in insurrection. Well, at least for now, Thompson may be eligible to run. But Justice Jackson's concurrence explains this freedom may be short-lived: even though the Judge erred, he seems to have given correct instructions. (Here, the former District Judge actually reads the record and jury instructions; good for her.) Thus, the Seventh Circuit will almost certainly affirm. Or Trump may find this another case of a weaponized justice system and pardon Thompson.
Curiously, the Chief's opinion omits the "D" middle initial from the caption. I wonder if Roberts wanted to keep politics out of the case, and erased how Thompson identifies himself. What, you though I would write an entire post about the Chief without at least some criticism?
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