The Volokh Conspiracy Archive

Most of the media coverage and public debate over Trump's new immigration policies focus on his efforts to ramp up mass deportation of undocumented immigrants. But it is also important to emphasize how the new administration has sought to gut much of the legal immigration system. If they succeed, it is likely to cause great harm and injustice to both immigrants and US citizens. My Cato Institute colleague David Bier has a helpful summary of Trump's actions against legal migration so far:

- Suspending indefinitely all US refugee entries, canceling 10,000 previously scheduled flights, and stranding 22,000 refugees who were approved to travel. A report on a potential limited restart is due in 90 days (Apr. 20).

Suspending all case processing for refugees, which means that no progress will be made toward restarting entries.

Closing Safe Mobility Offices in Latin America that allowed some people to apply for lawful entry to the United States.

Requiring refugees undergo "stringent identification verification beyond that required of any other alien seeking admission," which may invalidate all prior vetting approvals….

- Removing the ability to schedule appointments for lawful entry at the US-Mexico border using the CBP One phone app, which had permitted 1,450 people per day (529,250 per year) to enter the United States legally. About 270,000 people waiting for appointments are stranded in Mexico.

- Canceling 30,000 scheduled appointments for people stuck in Mexico. There is a lawsuit on behalf of one asylum seeker and her child who "depleted their life savings and survived kidnapping, robbery, and threats of sexual abuse" while waiting for an appointment….

Ending the parole sponsorship processes for new arrivals from Cuba, Haiti, Nicaragua, Venezuela, and Ukraine.

- Ending the family reunification parole programs for some Cuban, Guatemalan, Haitian, Colombian, and Salvadoran immigrant visa applicants who seek to reunite with their families when green cards are not immediately available under the caps.

- Ending the Central American Minors program, which allowed children from Guatemala, Honduras, and El Salvador to reunite legally with parents in the United States.

- Allowing Immigration and Customs Enforcement (ICE) agents to invalidate anyone's parole. Trump is reportedly going to strip all Cubans, Haitians, Nicaraguans, and Venezuelans of parole en masse.

- Rescinding the Temporary Protected Status (TPS) redesignation for 600,000 Venezuelans, including many who entered the country legally via the parole processes and CBP One. This means that their status will expire sooner than it would otherwise.

- Terminating TPS completely for 300,000 Venezuelans: These Venezuelans will lose their status in 60 days (April 1).

- Canceling visa interviews for hundreds of Colombians in response to their government's temporary refusal to accept deportations on military planes.

- Promising to quickly cancel student visas for and deport all "Hamas sympathizers," which some analysts interpret as a threat to anyone critical of Israel's government. It is possible this could affect future visa issuances.

- Denying birthright citizenship to American children born in the United States to mothers who are here illegally or in a temporary status, unless the father is a permanent resident or US citizen, starting no later than February 19, 2025. This has been temporarily blocked by a court.

Elsewhere, I have written about Trump's "invasion" executive order that relies on a dangerous legal theory to block nearly all legal migration pathways across the southern border.

In combination, this entails a massive gutting of legal migration. It will predictably consign many thousands of migrants and would-be migrants to a lifetime of poverty and oppression. Particularly egregious are the actions stripping legal status from hundreds of thousands of Venezuelans fleeing a brutally oppressive socialist regime. Trump's actions are far from the first unjust immigration restrictions in American history. But never before has the US tried to deport so many people fleeing a regime we ourselves condemn as horrifically oppressive, after those immigrants had entered completely legally.

Trump's actions also include blocking the admission of 1700 previously vetted Afghan refugees, including some who had risked their lives supporting US forces in the Afghan war. This kind of betrayal is both wrong in itself, and likely to be damaging to national security, deterring potential future allies from working with the US to combat terrorism.

In addition to the harm inflicted on immigrants, these actions will also severely damage the US economy, as immigrants contribute disproportionately to entrepreneurship and innovation, and promote economic growth. Cutting immigration will also worsen the federal government's already dire fiscal situation, as most immigrants .are net contributors to the public fisc. And, obviously, making legal migration more difficult is a major factor in incentivizing more of the illegal kind, and causing disorder at the border.

Bier also notes additional actions against legal immigration, that are likely in the offing, including severely curbing visas for legal entry, and ideological litmus tests for immigrants, barring those who "bear hostile attitudes toward [US] citizens, culture, government, institutions, or founding principles." If you are skeptical of government censorship in the domestic context, you should be equally so when it comes to migration. The government should not have the power to restrict freedom of movement based on its subjective assessment of what views qualify as "hostile" to US citizens, culture, or government.

Trump has proposed to make legal migration easier for one group: white Afrikaner South Africans, who are to be prioritized for refugee status. I am all in favor of letting white South Africans immigrate freely. But the idea that they are somehow more threatened by oppression or more worthy of refugee status than, say, Cubans, Venezuelans, and Afghans, is ridiculous and perverse.

Bier concludes that Trump's efforts to throttle legal migration are likely to lead to "four years of indescribable lawlessness, waste, chaos, and economic uncertainty that will leave America smaller, poorer, and less free." I can't disagree.

2/8/1941: Justice Willis Van Devanter dies.

David Lat (Original Jurisdiction) reports, in his characteristically readable and interesting style, about the latest incident (you can also read Judge Kelly Rankin's short order laying out the problem, in Wadsworth v. Walmart (D. Wyo.)). Folks, just cite-check.

I'm pleased to say that my new book, The Digital Fourth Amendment, is now available for shipping at Amazon and elsewhere. There were some publishing snafus that delayed it a few weeks, but it's now available in both print and Kindle formats. An audiobook version is on the way, but not for a few months.

I'm planning a few blog posts over the next week or two to introduce the basic arguments of the book and to explain why I wrote it. But for now I just wanted to flag that the book is finally available. More next week.

Under Section 836.13, Florida Statutes, a plaintiff may bring a civil action against anyone who "willfully and maliciously promotes" an "altered sexual depiction" of her without her consent. The statute defines "promote" broadly, covering actions like publishing, distributing, exhibiting, or presenting the altered content.

Count II of the Amended Complaint alleges Defendant did just that—first by "liking" a post on X.com containing a deepfake pornographic video of Plaintiff, then by directing her followers to her "Likes" page where the video remained accessible. The parties do not dispute that the video meets the statute's definition of an "altered sexual depiction"; they only disagree on whether Defendant's conduct amounts to "promotion." …

From today's decision by Chief Judge Cecilia Altonaga (M.D. Fla.) in Pete v. Cooper:

The allegations are connected to the fallout from the 2022 conviction of Daystar Peterson, popularly known as Tory Lanez, a Canadian rapper and singer who was found guilty of assaulting Plaintiff with a firearm following a widely publicized trial. Plaintiff asserts that Defendant … uses [his social media accounts] to harass and defame Plaintiff by disseminating false narratives and conspiracy theories. These include claims that Plaintiff lied under oath, suffers from alcoholism, is "mentally retarded," and needs a guardian.

The court concludes that plaintiff had adequately alleged that the statements were (1) factual assertions (rather than just insults, hyperbole, or opinion), (2) false, and (3) said with knowledge or recklessness as to their being false.

The court also allows plaintiff's intentional infliction of emotional distress claim to go forward:

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: City officials just can't help themselves from tearing down people's homes.

2/7/1870: Hepburn v. Griswold decided.

February is Black History Month, and this year's this is "African Americans and Labor." Here are three books I recommend:

1. Robert Higgs, Competition and Coercion: Blacks in the American Economy 1865-1914. Higgs argues that despite significant coercion, there were sufficient competitive forces in the American (and in particular southern, where most black Americans lived) economy to allow African Americans as a group to significantly improve their standard of living during the relevant time period. The book, written in the 1970s, received an undeservedly negative reception from the Marxist-dominated labor history world.

2. Paul Moreno, Black Americans and Organized Labor: A New History. In my review of this book, I wrote:

Moreno, unlike many historians, does not treat black workers and the black people more generally as passive bit players in a larger class conflict between "capital" and "labor." Nor, unlike many historians, does he pay disproportionate attention to the relatively few examples of racially egalitarian unions in the pre–New Deal period, which some historians use as purported exemplars of the true spirit of labor solidarity. Rather, he properly treats African Americans as striving as best they can to promote their individual and collective well-being in a hostile economic and social environment.

3. David E. Bernstein, Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal. My book started from a simple premise that went almost entirely unrecognized in the relevant literature: given that black Americans lacked political power, one could expect that labor regulations at best would not take their interests into account, and at worse would intentionally be used to exclude them from the labor market. I back up that basic intuition with studies of laws restricting labor recruitment in the south, licensing laws, railroad labor laws, prevailing wage legislation, and New Deal labor laws. I also note that contrary to conventional wisdom, court decisions protecting free labor competition tended to help black workers in the relevant time period.

I'm not going to argue that these are necessarily the three *best* books one can read on African American labor. But I would say that if you are interested at all in the subject, you have probably already read books and articles from a more standard progressive or Marxist perspective, and these books are both well-researched and provide a more market-friendly and regulation-skeptical perspective.

This week, I taught cases on enumerated powers from the Progressive Era and during the New Deal. In Hammer v. Dagenhart (1918), the Supreme Court declared unconstitutional a federal law that banned the transportation of good made by child labor. The Court found that this law was in fact an attempt to regulate local labor conditions, and the focus on shipping the goods was something of a pretext.

More than two decades later, the Supreme Court overruled Hammer in United States v. Darby (1941). This precedent upheld the constitutionality of the Fair Labor Standards Act (FLSA). Darby was largely an extension of NLRB v. Jones & Laughlin Steel (1935). These two decisions replaced the "direct effects" test with the "substantial effects" test. Under this regime, Congress could regulate any local activity that had a substantial effect on interstate commerce. The Court would also review such regulations with something akin to rational basis scrutiny, and require only a reasonable fit between the means Congress has taken, and the ends Congress is seeking to accomplish.

While teaching Darby, I wondered how Solicitor General Francis Biddle distinguished Hammer. So I pulled the government's brief. To Biddle's credit, he acknowledged that the FLSA contained a child labor provision that was "identical" to the law declared unconstitutional in Hammer:

. . . we recognize that the statute declared unconstitutional in Hammer v. Dagenhart is identical with the child-labor provisions in the present Act. And the prohibition against transporting goods produced by adults working under substandard labor conditions which is involved in this case cannot be distinguished in theory from the ban upon shipping goods produced by children.

The SG argued that subsequent precedent was "inconsistent" with Hammer, including Mulford v. Smith (1939). But the FLSA was enacted in 1938, the year before Mulford.

Of course, Biddle asked the Court to overrule Hammer, which it ultimately did:

It is submitted that the Court has abandoned the principles which controlled the decision in Hammer v. Dagenhart, and that the case should be expressly overruled.

But Congress and the President cannot anticipate the overruling of a Supreme Court precedent. Or at least they are not supposed to.

There you have it. Hammer declared a federal statute unconstitutional. Two decades later, Congress re-enacted an "identical" statute, and the President signed it into law, with no contrary precedent on the books.

I find it very difficult to get worked up over the current events of the day. If the President determines that a Supreme Court precedent is wrong (Humphrey's Executor for example), he can choose to take actions inconsistent with it, and let the Courts decide whether to maintain that precedent. Presidents from Jefferson to Lincoln to Roosevelt understood departmentalism. The ABA had a conniption when President George W. Bush issued a signing statement. Trump is making departmentalism great again.

I am happy to pass along this fascinating guest post from Professor Kurt Lash:

Vice Presidents are generally considered a kind of president in waiting. In fact, a great many vice presidents have ascended to the presidency, including John Adams, Thomas Jefferson, Calvin Coolidge, Lyndon Johnson, Joe Biden

. . . and J.D. Vance.

You may have missed it, but, in fact, J.D. Vance was, by law, our 47th President.

If only briefly. If you watched the Inauguration Ceremonies, you might have noticed an odd moment of rush and confusion between J.D. Vance saying his oath of office and Donald Trump then saying his presidential oath. During those brief moments, J.D. Vance was commander in chief of the armed forces and chief executive of the United States.

Let me explain. J.D. Vance took his oath of office just as the clock was striking 12:00pm. (you can see this on the C-Span feed)According to the Twentieth Amendment, "The terms of the President and Vice President shall end at noon on the 20th day of January." This occurred because the ceremony had gone overtime, likely due to a certain politicians deciding to give an elongated comments (for what reason, heaven only knows).

So, instead of Vance taking his oath before 12:00 and Trump taking his oath at twelve, Vance officially became Vice President at the stroke of 12:00pm-- the precise moment former President Joe Biden's term expired. There being no other person qualified to be president at that moment, J.D. Vance automatically became the President.

Again, according to the twentieth amendment:

"If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President-elect shall have failed to qualify, then the Vice President-elect shall act as President until a President shall have qualified."

Although Donald Trump had been elected by a majority of the people, prior to his taking the oath of office, he was not qualified to be president. According to the Constitution: "Before he enter on the execution of his office, [the person chosen or elected president] shall take the following oath or affirmation—"I do solemnly swear . . ."

As of 12:01, Vance's family was still receiving congratulatory applause and handshakes, while slowly moving away from the podium. The master of ceremonies announced that Chief Justice Roberts who would administer the Presidential oath, and Roberts approached the podium. President-elect Trump also approached and did his family, including Melania Trump who carried the two bibles upon which Trump would place his hand which taking the oath.

Trump was about to qualify as President, but he had not yet taken his oath. Vice President Vance had taken the oath and was qualified to be Vice President and, in the absence of a qualified president, Vance became, however briefly, the most powerful person in the world.

Watch the video of the inauguration oaths again. Vance finishes his oath with his family around him and Vance's hand on a bible. Once the V.P. oath was completed, president-elect Trump advanced to the podium, as did his family and soon-to-be-first lady Melania Trump who held the bibles upon which Trump would place his hand.

Yet, for some reason, Chief Justice John Roberts did not wait for the family to gather or bibles to be put in place. Instead, the Chief Justice immediately began to administer the oath to Donald Trump, bibles be damned. Not under his watch would erstwhile President Vance be allowed to suddenly end the ceremony and declare martial law until the end of the Ohio State-Notre Dame football game.

Chief Justice Roberts knew the constitutional rules and knew the importance of the constitutional clock. So long as the Chief Justice had any say, the term of new 47th President would be brief. Donald Trump good naturedly allowed the Justice to rush the affair, and took the required oath of office. At that point, at the strike of 12:02pm, the presidency moved from Vice President to (now) qualified President Trump.

Don't let anyone tell you otherwise. Despite President Trump's claim to contrary, we have already had our 47th President.

If only for a moment.

2/6/1858: Justice Mahlon Pitney's birthday.

Students always have difficulty reconciling Myers v. United States (1926) with Humphrey's Executor v. United States (1935). In Myers, Chief Justice Taft forcefully held that the President has an absolute removal power of a postmaster. But Humphrey's Executor held that the President could not remove a member of the Federal Trade Commission without showing cause. Superficially, at least, there are ways to line up the precedents. The postmaster only exercised executive power, while the FTC member exercised "quasi-judicial" and "quasi-legislative" powers, whatever those are. But there is another explanation I usually tell students.

Humphrey's Executor was argued on May 1, 1935, and decided on May 27, 1935. Schechter Poultry v. United States was argued on May 2 and 3, 1935, and decided on May 27, 1935. Coincidence? I think not. Both of these cases were repudiations of President Roosevelt's powers. Humphrey's Executor unanimously upheld the so-called independent regulatory agencies, and Schechter Poultry unanimously halted the National Industrial Recovery Act. This was not a good day for President Roosevelt. Both cases were largely seen as repudiations of FDR's overreaching powers.

Of course, if Roosevelt lost the battle on May 27, 1935, he would win the war in 1937. Even though there was no actual "Switch in Time that Saved Nine," West Coast Hotel v. Parrish (1937) signaled that the Supreme Court would no longer stand in Roosevelt's way. And, over time, Roosevelt would make nine appointments to the Supreme Court. The rest is history. In a fairly short period, Roosevelt radically altered the Constitution, the Supreme Court, and our republic.

Over the decades, Humphrey's Executor became a conservative bête noire. But when the opportunity arose in Morrison v. Olson to scale back Humphrey's Executor, Chief Justice Rehnquist more-or-less reaffirmed the precedent. Only Justice Scalia, in dissent, was willing to highlight the problems with Humphrey's Executor. Over the ensuing decades, Scalia's Morrison dissent became gospel, and Rehnquist's Morrison majority aged quite poorly.

Fast forward to the Roberts Court. In a series of cases, stretching from Free Enterprise Fund (2010) to Seila Law v. CFPB (2020), the Court chipped away at Humphrey's Executor, but did not overrule the precedent. In the wake of Seila Law, the Court has not ventured further, finding various ways to avoid the issue. But that avoidance is no longer possible.

President Trump fired a member of the National Labor Relations Board without showing cause. Trump argued that the removal protections in the National Labor Relations Act are "inconsistent with the vesting of the executive Power in the President." The fired member, Gwynne Wilcox, has challenged her removal. This case allows Trump to directly challenge Humphrey's Executor. The District Court (Judge Howell) and the inevitable D.C. Circuit panel will be bound by that precedent, so there will be no surprises below.

What happens at First Street? The Supreme Court could simply deny review, given that there is a binding, on-point precedent. I am reasonably confident that Justices Thomas, Alito, and Gorsuch will vote to grant cert. For reasons I'll explain below, Chief Justice Roberts and Justice Barrett will want nothing to do with this case. Who will be the fourth vote for cert? Justice Kavanaugh.

This vote would be the most consequential cert vote Justice Kavanaugh will ever cast. Way back in 2008, then-Judge Kavanaugh wrote in Free Enterprise Fund v. PCAOB (2008) that the D.C. Circuit should "hold the line and not allow encroachments on the President's removal power beyond what Humphrey's Executor and Morrison already permit." He repeated that same line in PHH Corporation v. CFPB (2018).

I have to imagine that overruling Humphrey's Executor is something Justice Kavanaugh has thought about for some time. In 2018, the WSJ wrote, "Judge Brett Kavanaugh, now President Trump's nominee to the Supreme Court, has signaled he would like to overturn the precedent set in the case, Humphrey's Executor v. U.S." By contrast, Chris Walker thought Kavanaugh would not overrule the precedent. Then again, Walker suggested that Kavanaugh would be solicitous to Chevron, and we all know how that turned out in Loper Bright. Kavanaugh's chance to overrule Humphrey's Executor will come soon enough.

But Justice Kavanaugh only gets us to four votes. What about Chief Justice Roberts and Justice Barrett? Let's start with the Chief.

Roberts, like Kavanaugh, came of age after Morrison v. Olson. Humphrey's Executor, much like Roe v. Wade, was the sort of precedent that Reagan wunderkinds dreamed about overruling. Roberts did not need to overrule Humphrey's Executor in Seila Law, so he didn't. But what happened with Dobbs? Roberts blinked. He made up this bizarre fifteen-week test that made a hash out of precedent. It was such a weak opinion that we won't even bother including it in the next edition of the casebook. Roberts thought he was avoiding controversy, but in the process put out a totally forgettable concurrence. Certainly not a ruling for the ages.

I suspect Roberts would do much the same in Wilcox v. Trump. When presented with the opportunity to catch his white whale, he won't. If there was any other Republican president, Roberts would not hesitate to overrule Humphrey's Executor. While overruling Roe created something of a backlash, most Americans don't know the NLRB from the YMCA. Gutting the for-cause protections would make no appreciable difference in people's lives. It would be a freebie! But not with Trump. Roberts will not be seen as surrendering to Donald Trump's hostile takeover of the federal government. The Chief Justice will not save DOGE as a tax. My prediction is that Roberts will vote to reaffirm Humphrey's Executor, and in the process say some meaningless things about the separation of powers.

What about Justice Barrett? I think she will see the stare decisis value of Humphrey's Executor as too strong. She will say that as a matter of first impression, she might decide the case differently (with a cf. footnote citing all of the anti-removal scholarship), but given nine decades of precedent, the reliance interests are too weighty. And by a 5-4 vote, the Roberts Court will save independent agencies.

The Hughes Court repudiated FDR in Humphrey's Executor, and the Roberts Court will repudiate Trump by maintaining Humphrey's Executor. This case will not be based on the separation of powers, but an attempt to separate the Court from politics.

FDR did not have a good day in 1935, but he prevailed in 1937. Every action has a equal and opposite reaction. Let's see what happens in 2027.

Judge John Cronan's opinion today in Gartenberg v. Cooper Union (S.D.N.Y.) considers Jewish students' claim that Cooper Union, a N.Y. private college, was deliberately indifferent to protesters' creating a hostile environment for Jewish students following the Oct. 7 attack. As I noted earlier, Judge Cronan concluded (generally correctly, I think), that the First Amendment bars Title VI liability based on "speech on matters of public concern." But the court allowed plaintiffs' case to go forward based on their allegations of other, constitutionally unprotected, conduct; an excerpt from the long opinion:

While Cooper Union is correct that the First Amendment imposes significant limits on the ways in which the Court can rely on many of the alleged acts of harassment detailed in Gartenberg's Complaint, Gartenberg nevertheless alleges sufficient facts to establish an actionably hostile educational environment based on instances of harassment that are not constitutionally protected in this context….

Although the October 25 demonstration began as a peaceful, public protest concerning the Israeli-Palestinian conflict, Gartenberg alleges that after a couple hours a mob of protestors forced their way past campus security guards and into the Foundation Building. Once inside, the protestors obstructed the hallway and disrupted classes while apparently attempting to locate President Sparks. Unable to find her, the protesters then "descended on the hallway surrounding the library" while continuing to chant their slogans.

It is plausible that this incident was physically threatening or humiliating to the Jewish students huddled inside the library. The demonstrators "attempted to enter the library, banging on and rattling the locked library doors and shouting 'let us in!'" They then spread out along the floor-to-ceiling windows separating the library from the hallway and banged loudly on the glass while waiving a Palestinian flag, holding up signs critical of Israel, and continuing their chants, this time plausibly directed at the visibly Jewish students inside the library.

This ordeal, which lasted approximately twenty minutes, was sufficiently threatening that a Cooper Union administrator locked the library doors as the mob approached, and the Jewish students left inside, some of whom were crying, contacted their loved ones and attempted to call the NYPD for help. Indeed, two school employees suggested that those Jewish students, and those students alone, should "hid[e] in the windowless upstairs portion of the library out of the demonstrators' sight" or attempt to "escap[e] the library through the back exit." And as noted, President Sparks herself was sufficiently frightened that she locked her office door to keep the demonstrators out before escaping the building through a back exit, and then "had a security guard stationed in front of her office for the remainder of the fall semester." Finally, when the Jewish students were at last able to leave, some of them were escorted out by campus security. These facts provide compelling support for Gartenberg's allegation that this incident was threatening or humiliating.

An excerpt from Judge John Cronan's long decision today in Gartenberg v. Cooper Union (S.D.N.Y.) (I expect to blog more later about other facets of the case [UPDATE: see this post]); note that the court's logic applies to Title VII liability in workplaces as well, especially since it cites precedents and articles that focus on Title VII:

Title VI makes it unlawful for institutions that receive federal funding to discriminate against participants in their programs on account of race, color, or national origin. In the educational context, actionable discrimination includes an institution's "deliberate indifference" to known instances of student-on-student harassment that are "'severe, pervasive, and objectively offensive' and discriminatory in effect." …

Title VI Must Be Applied Consistent with First Amendment Principles, Even When the Defendant is a Private Institution.

At the outset, Cooper Union maintains that Gartenberg's hostile environment claims are based largely on protected political speech by pro-Palestinian members of its community, and are therefore foreclosed by the First Amendment. Indeed, Gartenberg's Complaint—which alleges liability predicated, in part, on a demonstration on a public sidewalk concerning the Israeli-Palestinian conflict, the distribution of fliers supporting the Palestinian cause, a controversial "art display" advocating violent resistance to "colonialism," and a speech given by Dr. Bartov about the Holocaust—is "rife … with [F]irst [A]mendment overtones." DeAngelis v. El Paso Mun. Police Officers Ass'n (5th Cir. 1995).

Gartenberg responds that the First Amendment has no relevance to her hostile environment claims. Gartenberg contends that Cooper Union is a private institution and that "[i]n contrast to students at public or state institutions, students at private colleges do not enjoy First Amendment protections." Going on, Gartenberg argues that regardless of whether Cooper Union is itself bound by the First Amendment, it would "still have the authority under the U.S. Constitution, and a responsibility under Title VI, to punish students who harass their Jewish peers on campus and thereby interfere with the victims' ability to participate in school activities."

Gartenberg's argument is unpersuasive.

From U.S. v. Cooper, decided today by Eighth Circuit Judge David Stras, joined by Judges Steven Grasz and Jonathan Kobes:

In United States v. Veasley (8th Cir. 2024), we concluded that keeping firearms out of the hands of drug users does not "always violate[] the Second Amendment." Now the question is whether it sometimes can. The answer is yes, so we remand for the district court to determine whether it does for LaVance Cooper….

Cooper consented to a bench trial on stipulated facts. One was that he smoked marijuana three to four times a week. Another was that he had done it two days before officers found a Glock 20 pistol in his car during a traffic stop. Based on those facts and a few others, the district court found Cooper guilty of being a drug user in possession of a firearm, see 18 U.S.C. § 922(g)(3), and sentenced him to 37 months in prison….

In every Second Amendment case, the overarching question is whether a limitation on the right to keep and bear arms is "consistent with this Nation's historical tradition of firearm regulation." N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen (2022). Key to answering that question is identifying "analogue[s]": Founding-era regulations that "impose[d] a comparable burden on the right of armed self-defense" with a "comparabl[e] justifi[cation]." See also United States v. Rahimi (2024) (explaining that the modern regulation "need not be a 'dead ringer' or a 'historical twin'"). If no comparable analogues exist because "disarmament is a [purely] modern solution to a centuries-old problem," or strays too far from the "how and why" of "historical regulations," then the Second Amendment kicks in….

In Veasley, we identified two Founding-era analogues that "make [the drug-user-in-possession statute] constitutional in [certain] applications": "confinement of the mentally ill" and the "criminal prohibition on taking up arms to terrify the people."

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Today in Supreme Court History: February 8, 1941

"A Major Law Firm's ChatGPT Fail"

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Megan Thee Stallion's Defamation Lawsuit Against "Online Personality" "Milagro Gramz or Mobz World" Can Go Forward

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Today in Supreme Court History: February 7, 1870

Three Books for Black History Month

The Fair Labor Standards Act Imposed A Ban On Child Labor That Was "Identical" To the Child Labor Provision Declared Unconstitutional In Hammer v. Dagenhart

Guest Post from Professor Kurt Lash: (Former) President J.D. Vance

Today in Supreme Court History: February 6, 1858

The Hughes Court Repudiated FDR In Humphrey's Executor, and the Roberts Court Will Repudiate Trump by Maintaining Humphrey's Executor

Wednesday Open Thread

"These Events Took Place in 2023—Not 1943": Title VI Anti-Semitic Harassment Claim Against Cooper Union May Proceed

"Title VI Must Be Applied Consistent with First Amendment Principles"

Second Amendment Protects Marijuana Users Unless There's Concrete Showing They're Dangerous

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