The Volokh Conspiracy

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

A prison guard transfers deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)

Most public debate over the Trump Administration's efforts to use the Alien Enemies Act as a tool for deportation have focused on whether the invocation of the AEA is legal, and the administration's apparent defiance of a court order blocking the deportation of some 137 Venezuelans under the Act. These are important issues. But not enough attention has focused on what is being done to the Venezuelans after their deportation: they are to be incarcerated for one year or more in El Salvador's awful prison system.

This is much worse than "normal" deportation of undocumented immigrants, which is bad enough. With conventional deportation, the government removes the migrants from the US, but then sets them free in their country of origin (or at least as free as they can be under the oppressive regimes that govern places like Venezuela). In this case, by contrast, the deportees are sent to prison in terrible conditions. And that's without ever being charged or convicted of any crime related to the ostensible reason for the deportation (supposed membership in the Tren de Aragua drug gang). The migrants in question did not get any opportunity at all to contest claims that they are members of TdA. All we have is the administration's unsupported word. The government actually admits that "many" of the deportees do not have any criminal convictions of any kind. Moreover, publicly evidence suggests many of them are probably not actually gang members, and some even entered the US legally.

This policy is obviously unjust. Imprisoning people without any due process whatsoever is a cruel and evil practice usually used only by authoritarian states. And if the Trump administration gets away with it here, there is an obvious danger it will expand the practice. While the current AEA proclamation is limited to Venezuelan members of Tren de Aragua, if courts uphold it, it could potentially be expanded to other Venezuelans and migrants from other countries. And, of course, as already noted, the administration isn't giving any due process rights to those targeted for AEA deportation, which enables it to deport people simply by claiming they are gang members, even if they really aren't.

Legally, imprisonment without due process violates the Due Process Clause of the Fifth Amendment, which states that people may not be deprived of "life, liberty, or property, without due process of law." Imprisonment is an obvious deprivation of liberty, and here we have a complete absence of due process of any kind.

Like most other constitutional rights, the Due Process Clause protects all persons, not just citizens. If the US government arbitrarily imprisoned non-citizens within its territory, there is no doubt that would be unconstitutional. Some argue it does not apply to non-citizens outside the US. But legal scholar Nathan Chapman showed, in an important 2017 article, that in the Founding Era, the Due Process Clause was understood to apply even to foreign-citizen pirates captured in international waters. If so, it also obviously applies to deported immigrants.

Another possible rationale for not applying the Due Process Clause in this situation is that the imprisonment is being done by the Salvadoran government, rather than the US. But the Salvadorans are obviously doing it at the behest of the Trump Administration, which is paying them a $6 million fee for this "service." It would be perverse to allow the federal government to circumvent the Due Process Clause by paying a foreign state to do its dirty work. Licensing such subterfuge would create dangerous perverse incentives: the feds could potentially detain anyone they want without due process, simply by outsourcing the "job" to a foreign government willing to do it for the money, or to curry favor with the US administration.

It is true that current legal precedent and practice (wrongly) allows weaker due process protections for immigration detention than for most other deprivations of severe liberty. But here, the Administration is going beyond merely detaining illegal migrants until they can be deported. It is facilitating their imprisonment even after deportation - and without any due process whatsoever. Moreover, in ordinary deportation proceedings, the migrant in question generally is at least entitled to a hearing. Trump's AEA deportees didn't even get that.

There may be various procedural and practical obstacles to courts ordering the administration and El Salvador to release the imprisoned Venezuelans and allow them to return to the US. I won't try to go over them here. But these technical legal issues don't change the reality that this imprisonment without due process is both unjust and unconstitutional.

The U.S. Court of Appeals for the D.C. Circuit waded into the question of whether software or A.I. can qualify as an author for copyright purposes. In Thaler v. Perlmutter, a unanimous panel concluded that such non-human entities cannot be authors.

Judge Millett wrote for the panel, joined by Judge Wilkins and Senior Judge Rogers. Here is her summary of the case and decision:

This case presents a question made salient by recent advances in artificial intelligence: Can a non-human machine be an author under the Copyright Act of 1976? The use of artificial intelligence to produce original work is rapidly increasing across industries and creative fields. Who—or what—is the "author" of such work is a question that implicates important property rights undergirding economic growth and creative innovation.

In this case, a computer scientist attributes authorship of an artwork to the operation of software. Dr. Stephen Thaler created a generative artificial intelligence named the "Creativity Machine." The Creativity Machine made a picture that Dr. Thaler titled "A Recent Entrance to Paradise." Dr. Thaler submitted a copyright registration application for "A Recent Entrance to Paradise" to the United States Copyright Office. On the application, Dr. Thaler listed the Creativity Machine as the work's sole author and himself as just the work's owner.

The Copyright Office denied Dr. Thaler's application based on its established human-authorship requirement. This policy requires work to be authored in the first instance by a human being to be eligible for copyright registration. Dr. Thaler sought review of the Office's decision in federal district court and that court affirmed.

We affirm the denial of Dr. Thaler's copyright application. The Creativity Machine cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being. Given that holding, we need not address the Copyright Office's argument that the Constitution itself requires human authorship of all copyrighted material. Nor do we reach Dr. Thaler's argument that he is the work's author by virtue of making and using the Creativity Machine because that argument was waived before the agency.

The New York Times reports that President Trump has acted to remove two Democratic commissioners from the Federal Trade Commission.

President Trump fired the two Democratic members of the Federal Trade Commission on Tuesday, a rejection of the corporate regulator's traditional independence that may clear the way for the administration's agenda.

The White House told the Democrats, Rebecca Kelly Slaughter and Alvaro Bedoya, that the president was terminating their roles, according to statements from the pair. The F.T.C., which enforces consumer protection and antitrust laws, typically has five members, with the president's party holding three seats and the opposing party two. . . .

"I am writing to inform you that you have been removed from the Federal Trade Commission, effective immediately," said a letter sent to one of the commissioners, which was reviewed by The New York Times. "Your continued service on the F.T.C. is inconsistent with my administration's priorities."

This action , even more than the removal of National Labor Relations Board Chair Gwynne Wilcox, targets Humphrey's Executor v. United States as that case concerned the constitutionality of limits on the removal of FTC commissioners. As least one of the removed FTC commissioners has stated his plans to sue.

The removals leave the FTC with two sitting commissioners. Assuming that the President's action is upheld (either by overturning Humphrey's or distinguishing on the grounds that the FTC today exercises more core executive power than it did in the 1930s), this will free up the FTC to act in line with the President's policy priorities.

With four commissioners, the FTC was potentially deadlocked and was unlikely to reverse Biden Administration policies or adopt new initiatives and measures ought by Chair Andrew Ferguson. With only two commissioners of the same party, however, that is no longer a problem. Commissioner Holyoak is likely to agree with Chair Ferguson on most issues.

But can the FTC act with only two commissioners? Is that a quorum? Apparently it is under existing FTC regulations. 16 CFR § 24.14 provides:

(b) A majority of the members of the Commission in office and not recused from participating in a matter (by virtue of 18 U.S.C. 208 or otherwise) constitutes a quorum for the transaction of business in that matter.

[Note: As originally posted, I had accidentally cited and quoted the SEC's quorum regulation instead of the FTC's regulation. I regret the error and the post has been corrected.]

With all the talk of "Radical Left Lunatics" and "Crooked Judges" in the federal judiciary, all of whom "should be IMPEACHED!!!," [see note ** at end], it's worth taking a look at some interesting analyses by Stanford political scientist Adam Bonica of the relationship between "judicial ideology"** and the outcomes in the many cases challenging Trump Administration policies.

The bottom line:

Judges across ideological lines are ruling against Trump at strikingly similar rates (84% liberal, 86% centrist, 82% conservative).…

Judicial ideology doesn't predict ruling outcomes [in these cases]. This isn't commonly the case—ideology is typically a moderate to strong predictor of case outcomes, making this ideological consensus particularly noteworthy. The pattern diverges from what Maya Sen and I found during Trump's first term, when judge ideology strongly predicted case outcomes. What changed? [emphasis added]

It's an important point. A judge's ideology is, usually, a "moderate to strong predictor" of case outcomes - but not here, not in the cases challenging Administration actions on constitutional or statutory grounds. [As noted before, there is a very useful compilation of these cases - now numbering around 155! - available here].

I'm sure that this fact will have no bearing whatsoever on the campaign by the folks calling the shots at the White House and on Capitol Hill in their attacks on the federal judiciary.

Bonica suggests that "what changed" between Trump's first term and today is that "today's cases pose more fundamental constitutional violations uniting judges across partisan divides," and that strikes me as, broadly speaking, basically correct. One might expect - or at least hope - that the judiciary as a whole, liberal and conservative, would close ranks when faced with a serious threat to its power, and that may indeed be what is happening.

A few weeks ago, I blogged (Parts 1 and 2) about the cert petition I filed in Georgia Ass'n of Club Executives v. Georgia, where we raised a First Amendment challenge to a state tax on adult entertainment establishments. Now, the Foundation for Individual Rights and Expression (FIRE) and the First Amendment Lawyers Ass'n (FALA) have filed an amicus brief supporting the cert petition. These are great organizations, who do good work in litigating free speech cases—I'm grateful for their help!

I'm reproducing the text of their brief below. The lawyers for the two organizations are Bob Corn-Revere, Ronnie London, Ed Rudofsky, and (my former student) Cory Conley.

Interest of amici curiae

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization that defends the rights of all Americans to free speech and free thought—the essential qualities of liberty. Since 1999, FIRE has successfully defended First Amendment rights on college campuses nationwide through public advocacy, targeted litigation, and amicus curiae filings in cases that implicate expressive rights. In June 2022, FIRE expanded its advocacy beyond the university setting and now defends First Amendment rights both on campus and in society at large. In lawsuits across the United States, FIRE works to vindicate First Amendment rights without regard to the speakers' views. E.g., Br. Amicus Curiae FIRE Supp. Pet'rs in No. 22-555 & Resp'ts in No. 22-277, Moody v. Netchoice, LLC, 603 U.S. 707 (2024); Br. Amicus Curiae FIRE Supp. Pet'rs, Free Speech Coal. v. Paxton, No. 23-1122 (filed May 16, 2024). FIRE is particularly opposed to government attempts to pass off content-based restrictions as regulations of conduct governed by intermediate or lesser scrutiny. See, e.g., Br. Amicus Curiae FIRE Supp. Pls.-Appellants, Alario v. Knudsen, No. 24-34 (9th Cir., filed May 6, 2024).

The First Amendment Lawyers Association (FALA) is a nonpartisan, nonprofit bar association comprised of attorneys throughout the United States and elsewhere whose practices emphasize defense of Freedom of Speech and of the Press, and which advocates against all forms of government censorship. Since its founding, its members have been involved in many of the nation's landmark free expression cases, including cases before this Court. See, e.g., Ashcroft v. Free Speech Coalition, Inc., 535 U.S. 234 (2002) (successful challenge to Child Pornography Prevention Act argued by FALA member and former president H. Louis Sirkin); United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000) (successful challenge to "signal bleed" portion of Telecommunications Act argued by FALA member and former president Robert Corn-Revere). In addition, FALA has a tradition of submitting amicus briefs to the Court on issues pertaining to the First Amendment. See, e.g., City of Littleton v. Z.J. Gifts D-4, LLC, 2004 WL 199239 (Jan. 26, 2004) (amicus brief submitted by FALA); United States v. 12,200-ft Reels of Super 8mm Film, 409 U.S. 909 (1972) (order granting FALA's motion to submit amicus brief).

Summary of Argument

This Court has long recognized that, under the First Amendment, content-based laws are "presumptively unconstitutional," and subject to a rigorous form of strict scrutiny. Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). Content-neutral "time, place, and manner" regulations, meanwhile, face the more forgiving standard of intermediate scrutiny. The reason is simple: content-based restrictions invite the government to play favorites with speech, an invitation the First Amendment firmly declines.

Laws that regulate speech based on its message or subject matter are rightly treated with extreme skepticism because they pose the greatest risk of government overreach. As the Court put it in Police Dep't of Chicago v. Mosley, "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." 408 U.S. 92, 95 (1972). On the other hand, content-neutral laws—those blind to the message being conveyed—earn more judicial breathing room because they don't put the government's thumb on the scale of public discourse. This is not a technicality; whether a regulation is content-based is the first question any court asks in a First Amendment case, and the answer often writes the conclusion before the analysis even begins. The content-based distinction is what keeps government from appointing itself the ultimate editor of American discourse, deciding what speech is safe, what speech is suspect, and ultimately, what speech survives.

But courts cannot referee effectively when the rules of the game are unclear. The "secondary effects" doctrine articulated in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), and the broader "content-neutral justification" rule announced by Hill v. Colorado, 530 U.S. 703 (2000), allow governments to recharacterize content-based distinctions as merely incidental to content-neutral purposes. Reed, on the other hand, establishes a clear, administrable rule that gives full effect to the First Amendment: laws that regulate speech based on its content are subject to strict scrutiny, regardless of the government's benign motive or content-neutral justification. 576 U.S.at 163–64.

In this case, Georgia enacted a tax that, by any measure, is content-based. It specifically targets establishments based on expressive performances, the content of which must be evaluated in order to determine the applicability of the tax. Ga. Code Ann. §§ 15-21-209, -201(1)(A). To enforce the tax, government officers must examine whether dancing is nude, whether movements are sexual in nature, and whether these elements constitute "entertainment"—making the tax inherently content-based rather than content-neutral, like laws against public nudity alone.

Yet the Georgia Supreme Court assumed that under Renton intermediate scrutiny applied, and upheld the law after deciding the "purpose" of the tax was to address the "undesirable secondary effects" of the content at issue. Georgia Ass'n of Club Executives, Inc. v. State, 320 Ga. 381, 389 (2024). Other lower courts have felt similarly bound by Renton, or have extended both Renton and Hill beyond their original contexts, even when Reed would seem to stand in the way.

The Court should end the confusion and clarify that Reed means what it says: laws that distinguish based on content are content-based, regardless of the government's purported intent or justifications. The Court should in doing so explicitly acknowledge and resolve in favor of Reed the doctrinal inconsistencies that Renton and Hill introduced. This case offers an ideal vehicle for the Court to do so.

3/19/1891: Chief Justice Earl Warren's birthday.

In trying to understand the many constitutional issues raised by Trump 2.0, I have found Jack Goldsmith to be a particularly informed guide. Jack's substack, Executive Functions, has become essential reading. Jack has a wide-ranging post today on the case before Judge Boasberg that has been so much in the news lately. Although the public attention on the case has covered a lot of different ground, I thought it worth flagging Jack's overview of the legal merits of how the Alien Enemies Act does—or doesn't—apply. Jack's take: On the merits, the issue is "not so simple."

The AEA provides (with emphasis added): "Whenever … any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government" who are at least 14 years old, unnaturalized, and within the United States "shall be liable to be apprehended, restrained, secured, and removed as alien enemies."

The statute further authorizes the president "to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom." And it makes clear that the president is "authorized" when the statutory criteria are satisfied "to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable," as well as "the manner and degree of the restraint to which they shall be subject and in what cases."

This is a very broadly worded authorization to the president in an area of the president's core constitutional power. The fact that the statute is "obscure" or old is irrelevant to the authority it confers. In the context of the TdA matter it raises at least three legal issues.

First, is TdA perpetrating, attempting, or threatening an invasion or predatory incursion against the territory of the United States within the meaning of the AEA? The president in the proclamation finds and declares that it is, and adds that "TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela." This issue will turn on the facts and the meaning of "invasion or predatory incursion," but the "predatory incursion" criterion could be satisfied based on TdA's damaging and persistent criminal activities inside the United States.

Second, and hardest for the government, is whether the incursion (if it is that) "is perpetrated, attempted, or threatened against the territory of the United States by [a] foreign nation or government." The proclamation states that TdA "is closely aligned with, and indeed has infiltrated," the "regime" of Venezuela's president, Nicolás Maduro, and is part of a "hybrid criminal state," whatever that means. A brief on appeal says that TdA is so "intertwined" in "Venezuela's state structures," that it is "a de facto arm of the Maduro regime." It adds, as an "independent rationale," that TdA is "a de facto government in the areas in which it is operating."

I do not think one can know for sure at this stage how this issue should be resolved. The administration's factual basis for its claims have been thin. Yet there are many contexts in domestic and international law where "private" individuals or organizations are deemed to be an arm of the government or state, and the president has the exclusive power to recognize states or governments. The test for whether an action is "by [a] foreign nation or government" under the AEA is, I believe, one of first impression, and will depend on the proper legal framework (there are a few possibilities), and more factual development.

In March 2020, Chief Justice Roberts issued the following statement after Senator Schumer and others held a rally in front of the Court.

This morning, Senator Schumer spoke at a rally in front of the Supreme Court while a case was being argued inside. Senator Schumer referred to two Members of the Court by name and said he wanted to tell them that "You have released the whirlwind, and you will pay the price. You will not know what hit you if you go forward with these awful decisions." Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.

Here is how the statement was covered by Politico and the AP.

Earlier today, Supreme Court Chief Justice John Roberts issue a statement condemning President Trump's calls for impeachment of judges who rule against him:

For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.

I have many differences with Roberts regarding various rulings he has made. But I agree completely on this issue.

I also agree with prominent conservative legal commentator Ed Whelan, of the Ethics and Public Policy Center:

1. I'd be open to impeaching judges for persistent bad-faith or wild rulings. Nothing remotely like that here. Indeed, from what I have seen, Judge Boasberg's critics have yet to make a clear and compelling case that his order was wrong.

2. Impeachment threats are at best performative nonsense. Even worse, they may provoke threats of violence against judges and family members.

Ed Whelan is far more conservative than me. We differ on many legal and policy issues, but agree here because it's a basic rule of our legal system that cuts across party and ideological lines (or should be).

Like Ed, I think Judge Boasberg's rulings in the Alien Enemies Act case are largely right. Regardless, neither they nor other recent rulings against Trump's policies come even remotely close to the kinds of abuses of power that might justify impeachment.

I would add that the passages in Chief Justice Roberts' year-end report about the danger of defiance of judicial orders now seem especially prescient and relevant, as the administration seems to be moving in that direction. I warned about that threat at the time the report came out.

Co-blogger Josh Blackman is critical of Roberts' statement for reasons that strike me as baseless "whataboutism." Yes, some Democrats have previously called for judicial impeachments without good reason. But the threat posed by such demands is obviously greater when it comes from the president of the United States, than from political activists or congressional backbenchers.

Josh's comparison to the two impeachments of Trump is even more off-base. Those impeachments were undertaken for compelling reasons. The first one arose because Trump usurped Congress's spending power, and also likely committed a crime in the process. The second was even more obviously defensible: Trump undertook a massive assault on our constitutional order by trying to use force and fraud to stay in power after losing a presidential election. And, yes, in that case, too, he committed crimes in the process, though impeachment does not in fact require a violation of criminal law.

There is no valid comparison between either of these impeachments and efforts to impeach judges merely for ruling against the administration in power. None.

I'm almost two weeks late to this party, but I wanted to congratulate Dean William Treanor of Georgetown Law for his strong response to the letter sent by Interim U.S. Attorney Ed Martin insisting that Georgetown Law "eliminate[] all DEI from [the] school and its curriculum", and threatening not to hire any Georgetown graduate if it fails to do so.

Dean Treanor writes:

The First Amendment . . . guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it. The Supreme Court has continually affirmed that among the freedoms central to a university's First Amendment rights are its abilities to determine, on academic grounds, who may teach, what to teach, and how to teach it.

This is a bedrock principle of constitutional law—recognized not only by the courts, but by the administration in which you serve. The Department of Education confirmed last week that it cannot restrict First Amendment rights and that it is statutorily prohibited from 'exercising control over the content of school curricula.' . . .

Given the First Amendment's protection of a university's freedom to determine its own curriculum and how to deliver it, the constitutional violation behind th[e Administration's] threat is clear, as is the attack on the University's mission as a Jesuit and Catholic institution.

I like Georgetown Law (I taught there as a Visiting Assistant Professor from 2006 to 2008, before Treanor's tenure as dean), and though I haven't been a big fan of Georgetown Law's recent approach to free speech, I hope other schools resist the Administration's demands similarly forcefully. (Ed and I were co-clerks at the Institute for Justice in Summer 2001, but I'm on Dean Treanor's side here.)

Mainly, though (because this involves "DEI" and "First Amendment" in close proximity to each other), this is a good excuse for me to plug my own (slightly related) article, just published in Florida Law Review—Expressive Discrimination: Universities' First Amendment Right to Affirmative Action. I've blogged about this before (Parts 1, 2, 3, and 4), but I'll reprint the Introduction below.

A short excerpt from the 9,000-word U.S. v. Thompson, decided yesterday by Ninth Circuit Judge Danielle J. Forrest, joined by Judge Johnnie B. Rawlinson:

Paige Thompson committed the second largest data breach in United States history at the time, causing tens of millions of dollars in damage and emotional and reputational harm to numerous individuals and entities. The district court correctly calculated Thompson's sentencing range under the Federal Sentencing Guidelines (the Guidelines) to be 168 to 210 months of imprisonment. It then granted a roughly 98% downward variance to time served (approximately 100 days) and five years of probation. Because the district court made clearly erroneous findings and did not properly weigh the 18 U.S.C. § 3553(a) sentencing factors, we conclude that the sentence it imposed is substantively unreasonable, and we vacate and remand for resentencing….

Before the events at issue, Thompson worked as a Systems Engineer at Amazon Simple Storage Service (S3). S3 is "an object storage service" offered to businesses by Amazon Web Services (AWS). Over two years after her employment at Amazon ended, Thompson began hacking AWS customers' accounts. She used a virtual private network service and The Onion Router network to anonymize her activity. Using a programming script, she scanned millions of publicly available IP addresses associated with AWS for vulnerabilities in their systems.

When Thompson found vulnerable accounts, she queried them for security credentials and saved those credentials on her computer. The credentials allowed Thompson to authenticate directly into AWS customers' cloud-computing environments. Once inside, if the credentials permitted, Thompson ran a "sync" command to download data from customers' cloud storage. In total, Thompson got credentials from at least 200 entities and stole data from at least 30 of them. For example, Thompson obtained Capital One's security credentials and downloaded personally identifying information (PII) of 98 million Americans.

Thompson then compressed and stored the data stolen from AWS customers on her computer, and she researched additional storage options. While Thompson did not sell or distribute any stolen information, she did research ways to profit from the data, bragged about possessing it, and encouraged others to hack vulnerable accounts. She also blamed her breaches on the companies' inadequate cybersecurity.

Sentencing Computer Crime Law

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Today, Chief Justice Roberts issued a statement:

For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.

This statement follows on the heels of the Judicial Conference meeting last week, in which Judges Sutton and Sullivan raised similar alarms about impeachment:

"Impeachment shouldn't be a short circuiting of that process," Sullivan said. "And so it is concerning if impeachment is used in a way that is designed to do just that."

U.S. Circuit Judge Jeffrey Sutton, an appointee of Republican President George W. Bush on the Cincinnati-based 6th U.S. Circuit Court of Appeals who chairs the Judicial Conference's executive committee, echoed those comments.

"One thing worth keeping in mind is if we dilute the standards for impeachment, that's not just a problem for judges," Sutton said. "That's a problem for all three branches of government."

I think we need a sense of perspective.

Last year Representative AOC and other members of Congress introduced articles of impeachment against Justices Thomas and Alito. As best as I can recall, Roberts said nothing about this. Likewise, the Federal Judges Association and the American Bar Association said not a word about the never-ending crusade against two members of the Supreme Court. These attacks were never about disclosures. These critics were trying to delegitimize the Court. Yet, everyone was silent.

Likewise, in 2023, Senator Ron Wyden told President Biden to "ignore" any ruling from Judge Matt Kacsmaryk concerning mifepristone. We aren't talking about turning planes around over international waters. This would be a ruling that could be timely appealed in the normal course. Yet Roberts did not say a word about this in his end-of-year address or anywhere else. The FJA, the ABA, and all the usual suspects were silent. To the contrary, the Judicial Conference acceded to the criticism of Judge Kacsmaryk by trying to force down a rule to take cases away from him! I realize that Chief Justice Roberts is hitting the panic button, but his protest has started a bit too late.

Taking a step back, I think the standard for the impeachment process has indeed been diluted. At least with regard to the presidency, the first Trump Administration demonstrated that nebulous offenses that are untethered to any actual crime were impeachable offenses. Remember "abuse of power"?

I think the lesson of the Samuel Chase impeachment is the right one. But I'm also someone who has carefully studied the two-century history of the Court. What do you do with a President who was subject to two impeachments, where countless norms were blown past to resist him? During the first trial, Roberts admonished members of Congress to not use harsh language! And Roberts couldn't even be bothered to preside over the second trial.

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.

Update: A few people wrote to distinguish the AOC Articles of Impeachment from the more recent articles. They claimed that AOC and her colleagues charged Thomas and Alito with failing to disclose certain gifts, not recusing on certain cases, and violating other ethical standards.

Does anyone think that AOC and her colleagues would have filed these articles if Justices Thomas and Alito were liberals? No, they would not. How do I know that? Because Justice Ginsburg took trips and failed to disclose that hospitality. Justice Ginsburg wore a dissent collar on the bench to protest Trump's election. She made comments to the press about Trump, and then refused to recuse. Where was the outrage? Silence. More recently, Justice Sotomayor accidentally did not recuse from a case that involved her publisher. Justice Jackson also failed to properly file her disclosures. The world turns.

Is there a difference between impeaching a judge for his judgment in a particular case, and for his judgment about how to follow a recusal statute? I don't see much difference. In both cases, judges are exercising their discretion. If there is an actual crime, such as bribery, let an indictment be brought. But no one has even suggested this offense was committed.

I see the gravamen of the AOC resolution as a pretext. To the extent that AOC and others are citing alleged violations of ethical rules, they are in fact objecting to Thomas and Alito's substantive rulings. Any prosecutor, or indicter, can gin up charges to justify punishment. But the motivation to bring those charges is very different.

Trump is unique in that he says exactly what he is thinking. Other politicians engage in similar acts through locutions and workarounds. But Trump tells you exactly what he is thinking.

3/18/2008: District of Columbia v. Heller argued.

Senator Mitch McConnell is one of the most important Americans of the twenty-first Century. But for his leadership, I am reasonably confident that President Obama would have been able to fill Justice Scalia's seat. And had Donald Trump not been able to run on filling that vacancy, I am reasonably confident that Hillary Clinton would have prevailed. And then Clinton would have promptly replaced Justice Ginsburg, and maybe even Justices Kennedy or Sotomayor. Our country would look very different if Clinton served for two terms with a 5-4 or a 6-3 Supreme Court majority behind her.

Back to reality. Justice Gorsuch is sitting in Justice Scalia's seat. Justices Kavanaugh and Barrett replaced Justices Kennedy and Ginsburg. President Trump prevailed in 2016 and in 2024. And the Court's usually-conservative majority will likely endure for a generation. And Senator McConnell can take a lot of that credit.

That background brings me to an important essay by Mike Fragoso, who served as McConnell's Chief Counsel, after serving as Chief Counsel on the Senate Judiciary Committee. Fragoso, who recently joined the EPPC, is one of the most astute observers about the judiciary. I've long admired his work. Moreover, he brings inside insights from his experience.

Fragoso's latest piece is titled "In Defense of Amy Coney Barrett: Why She Was Nominated to the Supreme Court." The subtitle is "Republicans couldn't have filled the seat without Justice Barrett. Mitch McConnell knew this, and for that reason insisted that she needed to be the nominee." Fragoso makes several important points.

First, Fragoso argues that Trump had to pick a woman to replace Justice Ginsburg:

The first issue was defensive politics, which dictated that the pick needed to be a woman. As a political matter it would have been untenable to replace Justice Ginsburg with a man. With an election mere months away, and college-educated women being a reliable and increasingly progressive voting bloc, subjecting them to the indignity of replacing "the Notorious RBG" with a man would have further radicalized them. This was a political reality that President Trump had long understood—he was, after all, widely reported to have wanted a woman available to replace Ginsburg in the event a vacancy arose during his presidency. . . .

This isn't what some of Barrett's critics call—ridiculously—"DEI"; it's politics. Barrett was a highly attractive candidate to a particular, important constituency of the Republican coalition—religious women—who were ready and willing to make their voices heard to wavering senators.

I agree with Fragoso that the nominee had to be a woman. This sort of preference is not new. President Reagan pledged to nominate a woman to the Supreme Court, and his nominee was Sandra Day O'Connor. After John Roberts's nomination was elevated to the Chief Justice seat, President George W. Bush committed to nominate a woman to replace Justice O'Connor, and he selected Harriet Miers. President Biden committed to nominating a black woman for the Supreme Court, and he nominated Judge Ketanji Brown Jackson. In the old days, there was a Supreme Court seat reserved for a Catholic. And even earlier, seats were reserved for northerners and southerners. I see nothing novel about a President making politics calculations, broadly defined, when making a Supreme Court nomination.

I also agree, as a practical point, that Trump had to select a woman to replace RBG in 2020. It is no surprise that the only two nominees discussed were Barrett and Judge Barbara Lagoa of the 11th Circuit. Judge Neomi Rao was apparently not part of that conversation--a topic for another time.

Optics matter for Supreme Court nominees--especially for President Trump. Trump repeatedly boasted that Neil Gorsuch came out of "central casting." (Trump never said that about Kavanaugh.) Barrett is photogenic, charismatic, and would appeal to a wide swath of the conservative base shortly before the election. It's not surprising why he would have picked her.

While things are not completely clear, evidence increasingly indicates that the Trump Administration violated a court order in the Alien Enemies Act case currently before a federal district court in Washington, DC. Adam Isaacson and Georgetown law Prof. Marty Lederman have detailed analyses of the relevant evidence and legal issues. But the bottom line is that, on Saturday March 15, US District Judge James Boasberg issued a temporary restraining order barring the administration from using the AEA to deport migrants for 14 days, and specifically indicating that they must turn around planes that might be in the air conducting such deportations. The administration nonetheless decided not to turn around two planes then in the air, and one more that was about to take off.

These three planes delivered a total of 137 Venezuelan migrants deported under the AEA to El Salvador, where they are going to be imprisoned for at least one year doing hard labor in that country's notoriously awful prison system. And, while the administration claims these men are members of the Tren de Aragua drug gang, none of them has actually been convicted of any crime or even been given an opportunity to defend themselves against the accusation that they are members of the gang.

Administration lawyers have claimed the judge's order wasn't binding with respect to the men on these planes because the planes were over international waters. This argument is risibly weak. For the explanation why, see this analysis by Notre Dame law Prof. Sam Bray, a leading expert on these kinds of jurisdictional issues.

I would add that, if courts accept the argument that the administration can do whatever it wants to people on aircraft over international waters, without any judicial scrutiny, that would have dire implications for civil liberties. The government could then put anyone it chooses to target - including US citizens - on a plane or helicopter, fly them over international waters before they have an opportunity to go to court, and then kill, injure, or torture at will. This theory, if taken seriously, would license abuses like the notorious "death flights" used by the 1976-83 Argentinian military dictatorship, which threw dissidents to their deaths from aircraft flying over the Atlantic.

Even if the TRO was indeed legally defective, the proper remedy was not to ignore it, but to obey and challenge it in court on appeal.

A second argument advanced by the administration is that the TRO didn't apply to the deportees on the planes because the Judge only said planes must be turned around in an oral statement, not in his written order. As I understand, such oral orders are still legally binding. But I admit I am not an expert on the relevant protocol, and I welcome correction by experts with greater relevant knowledge.

While things here are not completely clear, it appears likely we have reached the point where the administration is indeed deliberately defying a judicial order. If they manage to get away it, there are likely to be dire consequences, some of which I described here.

Judge Boasberg held an additional hearing on these matters earlier tonight, and clearly wasn't satisfied with administration lawyers' answers to his questions about the apparent defiance of his TRO, and demanded written answers on several issues to be submitted by tomorrow.

In addition the immensely important issue of apparent defiance of a court order, this case also features important substantive issues. If the administration is able to use the AEA as a tool for peacetime deportation, it would set a very dangerous precedent. I covered the relevant issues in detail in previous writings here, here, and here.

Politics

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President Trump posted this on Truth Social:

The "Pardons" that Sleepy Joe Biden gave to the Unselect Committee of Political Thugs, and many others, are hereby declared VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT, because of the fact that they were done by Autopen. In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them! The necessary Pardoning Documents were not explained to, or approved by, Biden. He knew nothing about them, and the people that did may have committed a crime. Therefore, those on the Unselect Committee, who destroyed and deleted ALL evidence obtained during their two year Witch Hunt of me, and many other innocent people, should fully understand that they are subject to investigation at the highest level. The fact is, they were probably responsible for the Documents that were signed on their behalf without the knowledge or consent of the Worst President in the History of our Country, Crooked Joe Biden!

Here's my tentative sense of the matter:

[1.] As I understand it, Presidential pardons need not be signed at all, see Rosemond v. Hudgins (4th Cir. 2024):

Pardons

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I'm very glad to pass along this item from Prof. James Pfander about Department of State v. AIDS Vaccine Advocacy Coalition, a subject on which I'm not an expert but he is:

In Department of State v. AIDS Vaccine Advocacy Coalition (March 5), the Supreme Court refused to stay a federal district court order directing the executive branch to make payments of foreign aid money duly appropriated by Congress and, as the district court ruled, wrongly frozen by an order of the President. The Court issued the order as part of its emergency docket, without explanation. But the order drew a sharp dissent from four Justices that raises important questions about district courts' power to remedy the federal suspension of payments under existing appropriations.

Writing for the dissenters, Justice Alito (1) questioned the propriety of the order's operating for the benefit of parties who had not appeared in the litigation (2) and characterized the district court's actions as likely outside its jurisdiction and violative of federal sovereign immunity. Here, I will address the jurisdictional and immunity issues.

To get at those issues, we might begin by acknowledging some tension in the Court's definition of federal judicial power to grant equitable relief of the kind at issue in the district court. In one line of cases, headlined by the private-law decision in Grupo Mexicano (1999), the Court defined federal equity power in historic terms, looking to the practice of the High Court of Chancery in England during the founding era for guidance.

In a second line, exemplified by the public-law decision in Armstrong v. Exceptional Child Center (2015), the Court explained federal equity power as the continuation of a tradition of judicial control of executive action that took root in England in the seventeenth century. That tradition was administered by the courts of common law, deploying such writs as mandamus, prohibition, certiorari, and quo warranto. The Armstrong Court thus offered a more dynamic conception of federal equity today than Grupo might support. In other post-Grupo cases, the Court has proceeded on the assumption that federal courts have broad power to enjoin unlawful federal action, even in new settings. E.g., Free Enterprise Fund v. Public Company Accounting Oversight Board (2010).

Civil Procedure

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