The Volokh Conspiracy

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In Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, the Mexican government is suing several of the most popular American firearm manufacturers in an attempt to hold them liable for violence committed by Mexican drug cartels in Mexico. The Mexican government seeks billions of dollars in damages and the imposition of extensive gun controls in America.

This post is coauthored with Joseph Greenlee, who is a research associate at the Independence Institute (where I work) and Director of the Office of Litigation Counsel for the National Rifle Association's Institute for Legislative Action.

We filed an amicus brief on behalf of the National Rifle Association, FPC Action Foundation, and Independence Institute in support of the American manufacturers. The State of Montana, joined by 25 more states, filed a brief as well. In response to these two briefs, a group of social science, medical, and legal scholars supporting the Mexican government joined a brief filed by Crowell & Moring aimed at refuting our claims. This post addresses their arguments.

Homicides in Mexico after the 2004 repeal of the American "assault weapon" ban

Mexico's amici accuse us of denying "there has been a significant increase in gun violence in Mexico since the expiration of the U.S. assault weapons ban in 2004." They fault us for "conflat[ing] the Mexican homicide rate . . . with the overall rate of national gun violence." Actually, it was the Mexican government that argued "homicides in Mexico . . . increased dramatically beginning in 2004." Mexico Complaint at ¶ 13 (emphasis added). And the Mexican government has focused its statistical case on the number of homicides and the homicide rate. E.g., Complaint at ¶¶ 14, 279, 440, 441, 442, 444, 450, 471, 472.

Our brief provided statistics—which the amici did not dispute—that "Mexico's homicide rate was lower during each of the first three years after the ban's expiration (2005–2007) than during any year in which the ban was in effect (1995–2003)." The plaintiff, the Mexican executive branch, incorrectly told courts that Mexican homicides "increased dramatically beginning in 2004."

In later years, Mexican homicides have increases. We argued that the increases were caused by the Mexican government's military offensive against its own citizens, the militarization of public security forces, government corruption, the government's failure to punish criminal conduct, and the Mexican government's human rights violations—including unlawful killings by police and military, forced disappearance by government agents, torture committed by security forces, and violence against journalists. In other words, the homicide increase is the result of the Mexican government's own misdeeds and failures, not the American manufacturers' lawful activity.

In recent weeks, the Academic Freedom Podcast has released two new episodes focusing on campus free speech issues.

First up was a conversation with Timothy Zick, the John Marshall Professor of Government and Citizenship at William & Mary Law School. He is the author most recently of Managed Dissent: The Law of Public Protests. The episode focuses on the law surrounding public protests on and off college campuses.

Next was a conversation with Jennifer Ruth and Michael Berube about their recent book, It's Not Free Speech: Race, Democracy, and the Future of Academic Freedom. They are both long-serving leaders in the American Association of University Professors, and the book develops a provocative proposal for patrolling the acceptable boundaries of extramural speech by university faculty.

More to come.

By Randy E. Barnett and Ilan Wurman

Since the publication of our opinion piece on birthright citizenship in the New York Times ("Trump Might Have a Case on Birthright Citizenship"), we have received numerous critiques, some quite thoughtful (others less so), both in this and other venues. In this short essay we recapitulate and elaborate upon the argument of our initial piece, emphasizing especially the parts that are responsive to the criticisms. None of the objections has convinced us that we erred.

The Common-Law Default

The aim of our NYT op-ed was principally to establish the actual common law rule of birthright subjectship and subsequently birthright citizenship. As readers will know, the questions with which we are confronted today—those involving illegal immigration or temporary sojourning, the latter represented in its most concerning form by those who temporarily visit for the specific purpose of having a child in the United States—were not prominent issues at the time the common law rule developed. Nor has the Supreme Court addressed either issue: in Wong Kim Ark, the Court held that a child born here of domiciled, permanent residents was a birthright citizen.

Thus, we make two overarching points. First, whether the common law rule would have applied to either group can only be determined by understanding the actual principle and operation of the rule and extrapolating it to these situations. Second, we presume, as the Supreme Court has, that the Fourteenth Amendment's language "subject to the jurisdiction" of the United States was intended to encapsulate the rule, whatever it was. It is of course possible that the language was intended to, or simply does as a matter of original meaning, extend or restrict the common law rule. One can therefore disagree with us on any of these points: One can disagree with our characterization of the common law; or with our application of its rule to modern-day questions; or with the presumption that the language of the amendment tracks that rule as opposed to doing something else.

What we emphatically reject is that the meaning of the word "jurisdiction" is somehow plain or obvious. The Supreme Court has famously said that jurisdiction is a word of many meanings. It appears to us that the members of the 39th Congress would have agreed. And, to reiterate, in Wong Kim Ark the Supreme Court presumed that jurisdiction referred to the common law allegiance-for-protection view that we elaborate in our initial piece and further below.

As a methodological matter, we think the original public meaning of the text is what matters. We say more about this below. And if it incorporated the common law rule, the actual content of that historical rule is what matters. But to the extent either is ambiguous as applied to the modern-day questions, the interpretation of either, as Madison once said, can also be "triable by its consequences."

We find it particularly puzzling that opponents of our position, many of whom would normally object to following original meaning, in this case insist on following a particularly feudalistic and archaic conception of subjectship. In our view, the best understanding of the common law rule does not require such feudalistic applications today. At a minimum, how the rule would apply to present circumstances is ambiguous, in which case the feudalistic and archaic conceptions should also be avoided.

We also emphatically reject, however, the claim that the framers of the amendments intended to adopt something other than birthright citizenship. We reject the claim that some scholars have made that the framers were adopting "jus sanguinis," or citizenship by blood, according to which only the parents' citizenship determined one's own status (aside from naturalization). What we do claim, however, is that the status of the parents mattered for jus soli too. That is, we aim to show that even under the birthright rule, the status of the parents mattered. The parents could, indeed, be aliens. We therefore think Wong Kim Ark was rightly decided. But it was not enough merely to be an alien physically present. The exceptions to the rule show this to be the case.

The Puzzles of the Conventional View

One central issue that justifies our exploration of the common law rule is that the standard view of "subject to the jurisdiction" creates a series of puzzles. It is known that certain groups were excluded from birthright citizenship: the children born to (1) ambassadors, (2) Native Americans subject to tribal authority, (3) members of invading armies, and (4) foreigners on foreign vessels in U.S. waters. There is also some reason to think other "nontaxed" Native Americans—those not subject to tribal authority, but who nevertheless had not assimilated—were also excluded.

The question then becomes why they were excluded.

I've been following the debate between my co-bloggers David Post and Josh Blackman (and other commentators elsewhere) on the Mayor Eric Adams criminal case. Dedicated VC readers will have seen that David calls the Justice Department's decision to move to dismiss the charges an "outrageous" deal – and in an earlier post, he called it an "odious and reprehensible" deal. Josh calmly responds that this "is the sort of thing DOJ does all the time." Who's right?

As a professor who teaches criminal law (and as former federal prosecutor who cut plea deals), I will weigh in on Josh's side as a descriptive matter, without taking a position on the ultimate merits of whether the Justice Department should have moved to dismiss the charges. This motion to dismiss does not seem "outrageous" to me, particularly since the matter now goes for review by a federal judge.

Initially, exactly what has happened here needs to be clarified. David writes about "the conditions [Mayor Adams] has accepted in return for the DOJ dropping the case against him …." But the Mayor has accepted no such "conditions." This is proven by looking at the text of the Department's motion to dismiss pending before the federal district court, linked here. The motion lists no conditions on the dismissal—DOJ is simply moving to have the case dismissed, without prejudice, as is specifically authorized by Federal Rule of Criminal Procedure 48. Now, to be sure, there may be a tacit recognition by the Justice Department that, going forward, the Mayor will cooperate on immigration matters. But it is well known that the Mayor is generally supportive of greater immigration restrictions. Informally recognizing the reality of the situation is not the same thing as formally imposing "conditions," as David inaccurately (in my view) describes the situation.

But wait, some may argue—its not fair to place the Mayor in a position where he might feel tacitly pressured to follow the political lead of the Justice Department. But here Josh is spot-on—this sort of thing happens all the time. To see an example, one need look no further than this very case. Consider Mayor Adams' position between November 10, 2023, when the Justice Department (acting through the FBI) seized his cell phones in the corruption probe, and September 26, 2024, when the Justice Department indicted him on various federal corruption-related charges. During that time, while he was under federal investigation, Mayor Adams no doubt felt some pressure to follow Biden Administration's lead on immigration and other issues. But that is simply a function of having the possibility of criminal charges hanging over one's head.

Of course, last September, the Biden Administration chose to file charges and, last week, the Trump Administration moved to dismiss them. If the Department's motion to dismiss is granted, things simply return to the status quo ante—that is, Mayor Adams will be placed in the legal position where he was before last September 26. He will have the possibility of having criminal charges being filed hanging over his head. And, to be sure, when the criminal charges have been previously spelled out through a grand jury indictment, that makes the possibility much clearer. But that awkward position is not some unique situation that the current Administration has "outrageously" created. That is simply a function of a background criminal investigation, which has placed the Mayor in an uncomfortable position, regardless of whether charges are actually filed or only a possibility.

But wait, some may argue, the Trump Administration can be expected to uniquely place pressure on Mayor Adams. If true, that argument is simply a question of degree. Indeed, while the Biden Justice Department was investigating the Mayor, there was a robust debate about the pressure the Mayor might feel to follow the lead of progressive Democrats or take a different tack. As is well known, Mayor Adams chose to "buck[] the radical progressive base of his party," as Republican Representative Anthony D'Esposito put it. It is not at all clear that the pressure that the Mayor might now face from the Trump Administration will be greater than the pressure that he felt from the other side of the political spectrum, including the implicit pressure to toe the line of the Biden Administration.

One way to perhaps distinguish the pressures involved is that the Justice Department now apparently predicts that Mayor Adams will provide his assistance in enforcing federal immigration laws—something that is entirely lawful on the Mayor's part and, indeed, perhaps even his duty. The lawfulness of helping to enforce the law quickly distinguishes David's defective hypothetical. David asks what if "the DOJ uncovers evidence that [a Supreme Court Justice] has cheated on her income taxes, and convinces a grand jury to indict her, and then offers her a deal: we'll defer prosecution (but keep the possibility open), as long as you vote in the government's favor in all cases coming before the Supreme Court." But David's hypothetical would be an illegal deal—specifically conditioning the dismissal on a Supreme Court Justice violating her oath of office.

The Judicial Oath that Supreme Court Justice's take is provided by 28 U.S.C. sec. 453, which unsurprisingly requires judicial impartiality:

I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [Supreme Court Justice] under the Constitution and laws of the United States. So help me God."

Of course, agreeing in advance to rule in a particular party's favor is not "administer[ing] justice without respect to persons." But agreeing in advance to assist in enforcing federal immigration laws—assuming for sake of argument that an (unwritten) advance agreement exists—is entirely consistent with the Mayor's official responsibilities, not a deviation from them. Read More

2/18/1988: Justice Anthony Kennedy takes judicial oath.

On February 6, the Fifth Circuit decided United States v. Peterson, holding that noise suppressors (aka silencers or mufflers) are not protected by the Second Amendment. Written by Chief Judge Jennifer Elrod, the court held that suppressors are not "Arms" within the Second Amendment's purview. Under Bruen, if an item is an "arm" within the text of "the right to keep and bear arms," the burden shifts to the government to demonstrate that the restriction is consistent with the historical tradition of arms regulation at the founding.

Under Heller, "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." To that, the Peterson court added that "to constitute an 'arm,' the object in question must be a weapon." In other words, for a modern-day instrument to be an arm under the Second Amendment's text, the object itself, standing alone, must be an arm.

Peterson argued that suppressors are "an integral part of a firearm," that "a bullet must pass through an attached [suppressor] to arrive at its intended target," and thus they meet Heller's definition as a weapon that casts and strikes. The court rejected this argument, stating: "A suppressor, by itself, is not a weapon. Without being attached to a firearm, it would not be of much use for self-defense." Of course, neither is a barrel, a trigger, a stock, or a safety, but do they have no Second Amendment protection?

The court stated that the Amendment only protects "items necessary to a firearm's operation, not just compatible with it." While a barrel is necessary, a safety is not, neither is a trigger guard, recoil pad, or sights. Are parts that make a firearm safer, more accurate, and useful not protected? They should be protected given Bruen's language, citing Caetano's decision on stun guns, that an arm "covers modern instruments that facilitate armed self-defense." The Supreme Court said "instruments" that "facilitate" armed self defense rather than are "necessary."

The Peterson court relied on United States v. Cox (10th Cir. 2018), which asserted that a suppressor "is a firearm accessory … not a weapon." Does that mean that a rifle sling, which literally enables the person to "bear" the arm, has no protection? The Supreme Court made no such distinction in Heller, Bruen, or Rahimi, none of which even use the term "accessory" or "accessories."

Three unpublished cookie-cutter decisions were also cited, two by district courts and one by an appellate court – United States v. Saleem (4th Cir. 2024). That court conceded that "silencers may serve a safety purpose to dampen sounds and protect the hearing of a firearm user or nearby bystanders," but added, "A firearm will still be useful and functional without a silencer attached…." According to this logic, parts that make a firearm more useful and more functional are not protected, which implies that laws that restrict firearm designs to be the least useful and least functional would be consistent with the Second Amendment.

The Peterson court also rejected Peterson's argument that under United States v. Miller (1939), "arms" include the "'proper accoutrements' that render the firearm useful and functional." According to the court, "the 1785 Virginia statute quoted in Miller used that language to describe items like gunpowder, lead, and cartridges—items necessary to a firearm's operation, not just compatible with it." But the Virginia statute also included "a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket." And a cartridge box was necessary to the efficient operation of the firearm. The same could be said for a silencer.

Textually, a restriction on a firearm with a silencer is a restriction on an entire category of firearms – suppressed firearms. That infringes on the right of the people to keep and bear firearms that fire suppressed rounds. Heller held that an entire category of arms that Americans choose – in that case, handguns – may not be banned. Heller also held that arms that are typically possessed for lawful purposes are protected, and as shown below, suppressed firearms are rarely used in crime and are possessed in large numbers.

As the court noted, the "grand jury indicted Peterson for possession of an unregistered suppressor" under the National Firearms Act (NFA). That was a curious way to represent the indictment, in part because the word "suppressor" is not included in the NFA. To state an offense against the United States, the indictment had to allege that Peterson had an unregistered "firearm," which is defined to include "any silencer (as defined in section 921 of title 18, United States Code)." 26 U.S.C. § 5845(a)(7).

And when we look at § 921 of Title 18, we find: "The term 'firearm' means … any firearm muffler or firearm silencer…." The latter two terms are defined in part to include "any device for silencing, muffling, or diminishing the report of a portable firearm…."

Looking at Peterson's brief on appeal, the indictment did indeed allege that he "knowingly received a firearm, to wit: a black cylinder which is a firearm silencer and firearm muffler, not registered to him in the National Firearms Registration and Transfer Record." As counsel commented in the brief: "Paradoxically, the government now argues that the device for which the defendant received and possessed is not a firearm to deny the constitutional rights of the defendant as provided for by the Second Amendment."

Unfortunately, Peterson's brief went downhill after that. It states: "Following Heller, the Appellate Courts have employed a two-step inquiry to determine whether a statute violates the Second Amendment." It then recites the test as involving, first, whether the restriction is a burden within the scope of the Amendment, and second, the duty of the court to "apply an appropriate form of means-end scrutiny…." It then states that "the government's argument is unable to bear its burden of showing the NFA satisfies the appropriate level of means-end scrutiny."

As Justice Thomas wrote in Bruen, "this two-step approach … is one step too many." While Heller "demands a test rooted in the Second Amendment's text," it does "not support applying means-end scrutiny," and instead "the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms."

But Peterson's brief, which was filed in May 2024, fails so much as to cite Bruen, which was decided in June 2022. That was inexplicable, as counsel was on notice of the decision because the district court discussed Bruen for over a page in its Order and Reasons that denied his motion to dismiss the indictment. Counsel included the district court's opinion in the Record Excerpts on appeal.

What's more, as authority for his argument in favor of means-ends scrutiny, Peterson cited the Fourth Circuit's 2017 decision in Kolbe v. Hogan, which upheld Maryland's ban on semiautomatic rifles and which was abrogated by Bruen. Kolbe was reaffirmed by Bianchi v. Frosh, which the Supreme Court reversed and vacated for reconsideration in light of Bruen. The Fourth Circuit reaffirmed Bianchi in what is now styled Snope v. Brown, which is now before the Court and which has been relisted for Friday February 21.

Peterson goes on to argue, "As explained above, using silencers improves accuracy, reduces disorientation after firing, and helps prevent substantial and irreversible damage to users' health." Unfortunately, while true, nothing of the kind is "explained above," nor is it explained elsewhere in the brief.

The brief argues that suppressors "are (1) commonly possessed by law-abiding citizens (2) for lawful purposes" and "the government's interest in regulating silencers is particularly insubstantial given the infrequency with which they are used in crime." It continues, "Despite the presence of roughly 1.5 million registered silencers in the United States -- to say nothing of any unregistered silencers -- they are exceedingly rare instruments of criminal activity."

Yet the brief cited nothing to substantiate those claims. It could have. According to the American Suppressor Association, there are actually 3,613,983 registered suppressors as of January 2024. Ronald Turk, ATF Associate Deputy Director, wrote in 2017 that "silencers are very rarely used in criminal shootings. Given the lack of criminality associated with silencers, it is reasonable to conclude that they should not be viewed as a threat to public safety necessitating NFA classification and should be considered for reclassification under the GCA." And Paul A. Clark's Criminal Use of Firearm Silencers concluded that "the data indicates that use of silenced firearms in crime is a rare occurrence, and is a minor problem."

Counsel could have done a quick internet search and found further legal arguments and empirical information in my article Firearm Sound Moderators: Issues of Criminalization and the Second Amendment. The article includes information from the medical community about the harmful auditory effects of shooting firearms, even with ear muffs, and the need to reduce the noise at the source.

According to CDC research at a shooting range published in 2011, "The only potentially effective noise control method to reduce students' or instructors' noise exposure from gunfire is through the use of noise suppressors that can be attached to the end of the gun barrel." While published after the briefs were filed, the following statement by the audiology community published in 2024 is significant: "The American Academy of Otolaryngology-Head and Neck Surgery endorses the use of firearm suppressors as an effective method of reducing the risk of hearing loss, especially when used in conjunction with conventional hearing protective measures."

Not surprisingly, the Biden Administration's brief in Peterson repeated the usual arguments currently being made in Second Amendment litigation: suppressors are not "arms," they are "dangerous and unusual," and even if protected, the NFA's requirements of taxation, registration, and serialization are consistent with Bruen (which, the government delightfully noted, Peterson's counsel did not even cite).

Peterson's counsel did not bother to file a reply brief. Presumably his client is now serving his two-year sentence in prison for having a "black cylinder" in his safe, harming no one. Indeed, virtually all federal gun control laws constitute classic malum prohibitum, victimless crimes.

The Peterson case was a missed opportunity to have a meaningful constitutional dialogue about whether the Second Amendment protects a firearm device that enhances the right to armed self-defense by reducing harmful noise, blinding flash, and recoil. The claim that a suppressor is not even an "arm" textually could be applied to any other part of a firearm that increases safety and accuracy but is not absolutely necessary for the bare function of expelling a projectile. It is time to have a serious discussion about a device that reduces – not actually silences – noise and that would serve the interests that the Second Amendment was designed to protect.

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

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Politics

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Co-blogger Josh Blackman disagrees with my take (here and here) that the DOJ's arrangement with Eric Adams is an outrage and a grave threat to those of use who care about liberty. No, no, no, he says; this is "the sort of thing DOJ does all the time." There's "no 'quid pro quo'" involved, because "there is no bribery if a public act is exchanged for another public act."

He's wrong, and it's not too difficult to demonstrate why. Here is his argument, broken down into its basics.

First, he observes (correctly) that "the Department of Justice routinely uses carrots and sticks to 'induce' defendants to support DOJ policy objectives." He writes:

More than 90% of federal criminal cases end up in plea bargains. … Usually, the deals take a similar form: plead guilty, waive appeal rights, and the government will recommend a reduced sentence, or perhaps no sentence at all. … In many cases, a plea deal is conditioned on a defendant doing more than pleading guilty. The United States can condition a plea deal on a defendant testifying against a co-defendant. DOJ can condition a plea deal on a defendant providing information to some government entity, in open court, before a grand jury, or in some other confidential form.

All true.

Of course, as he recognizes, Eric Adams is not an ordinary defendant, but a public official, and the conditions he has accepted in return for the DOJ dropping the case against him all refer to his actions as a public official, i.e. actions he is to take as Mayor of NYC. Blackman asks: Should that matter?

Nope, he says. "This is the sort of thing DOJ does all the time."

Hmmm. His evidence for that startling proposition is, it turns out, completely non-existent: one case, United States v. Richmond, in which the DOJ's attempt to condition the dropping of charges against a public official on that official taking a particular action in his capacity as a public official was invalidated by the district court.

Not the strongest foundation for the idea that the DOJ does this "all the time."

The only other evidence he brings forward is an article written on the Lawfare website by legal scholar Seth Tillman.

That's it, you ask? Yes, that's it.

So I'll ask Josh the same question I asked the commenters on my earlier postings: If the DOJ uncovers evidence that Amy Barrett has cheated on her income taxes, and convinces a grand jury to indict her, and then offers her a deal: we'll defer prosecution (but keep the possibility open), as long as you vote in the government's favor in all cases coming before the Supreme Court.

You're OK with that? Is that the sort of thing the DOJ does "all the time"? If you're not OK with that (and I sure hope you're not), how is that different from what's happening here?

The Simpsons premiered when I was in Kindergarten. I remember watching the Christmas Special in December 1989 on my TV with rabbit-ear antennas and a manual channel dial--no remote control. (We wouldn't get cable till I was in the Fourth Grade.) Nearly four decades later, The Simpsons is still on. I admittedly stopped watching the show in the late 1990s, but from time to time a clip is relevant.

This one provided just enough comic relief (at 1:31):

2/17/1801: House of Representatives breaks tie in Electoral College, and selects Thomas Jefferson as President.

"The White House says it will limit Associated Press journalists' access to the Oval Office and Air Force One," because the AP refuses to go along with the White House's insistence that the Gulf of Mexico be called "the Gulf of America." Back in 2009, the Obama Administration tried to exclude Fox News from a press pool interview with an Administration official. Does that violate the First Amendment? A few thoughts:

[1.] The Administration has no First Amendment obligation to provide any press conferences or interviews. The question, though, is whether, once it starts doing that, it may exclude the press based on its viewpoint, or on its supposedly unfair coverage, or on its use of terms that are seen as expressing a viewpoint.

[2.] It seems pretty clear that government officials can choose—including in viewpoint-based ways—whom they will sit down with for interviews. The President may choose to give interviews to journalists whose views he likes, and to refuse to speak with those whose views he dislikes. Indeed, a government official may even order employees not to talk to certain reporters, without thereby violating the reporters' rights. Baltimore Sun v. Ehrlich (4th Cir. 2006). (That decision didn't discuss whether such an order may violate the employees' rights, but that's not really at issue in the current controversy.)

Even precedents which have recognized some journalist rights to access press conferences have made this clear. "Nor is the discretion of the President to grant interviews or briefings with selected journalists challenged. It would certainly be unreasonable to suggest that because the President allows interviews with some bona fide journalists, he must give this opportunity to all." Sherrill v. Knight (D.C. Cir. 1977).

Free Speech

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On Thursday, I wrote about the case of Hampton Dellinger, who served as the sole director of the Office of Special Counsel. (I use the past tense quite deliberately.) This position has nothing to do with DOJ special counsels, like Jack Smith, who are appointed to investigate the executive branch. Dellinger's position concerns civil servants, whistleblowers, the Hatch Act, and other employment-related matters. Trump removed Dellinger from office.

The District Court entered an "administrative stay" ordering Trump to allow Dellinger to remain in office. The D.C. Circuit did not allow the government to appeal the administrative stay. Then the District Court entered a Temporary Restraining Order, requiring Trump to continue recognizing Dellinger as the Special Counsel. Generally, a TRO lasts for fourteen days, and is not appealable. Courts can only grant a writ of mandamus to dissolve a TRO.

A divided panel of the D.C. Circuit declined to dissolve the stay. The majority found that the opinion was not subject to immediate review. Judge Katsas dissented. He found the order should be subject to immediate review, especially where it arguably infringes on the President's removal power. Katsas points out that in past cases, removed officers sought to challenge their removal by seeking backpay. There is no recorded case where a federal court ordered the reinstatement of a removed officer. Moreover, the injunction seems to squarely run against the President, as it requires him to recognize Dellinger as the head of the department, even though Trump has appointed someone else. There is a long-running dispute under Mississippi v. Johnson about whether the federal courts have the power to enjoin the president. This case screams for urgent appellate review, but the D.C. Circuit said "Come back in two weeks."

The Trump Administration has now filed its first emergency application to the Supreme Court. Acting Solicitor General Harris lays out the stakes:

Until now, as far as we are aware, no court in American history has wielded an injunction to force the President to retain an agency head whom the President believes should not be entrusted with executive power and to prevent the President from relying on his preferred replacement. Yet the district court remarkably found no irreparable harm to the President if he is judicially barred from exercising exclusive and preclusive powers of the Presidency for at least 16 days, and perhaps for a month. See Federal Rule of Civil Procedure 65(b)(2) (authorizing courts to extend TROs so that they last up to 28 days). And, when the United States sought a stay or, alternatively, mandamus, the D.C. Circuit issued a 27-page decision denying relief late on Saturday night, over Judge Katsas's dissent. App., infra, 33a-59a. . . .

This Court should not allow lower courts to seize executive power by dictating to the President how long he must continue employing an agency head against his will. "Where a lower court allegedly impinges on the President's core Article II powers, immediate appellate review should be generally available." App., infra, at 52a (Katsas, J., dissenting). Yet the D.C. Circuit majority described "[w]aiting two weeks" to exercise the executive power vested by Article II as "not so prejudicial." Id. at 41a. If that reasoning is allowed to stand, it is hard to conceive of any TRO that would trigger appellate review. Such a ruling risks further emboldening district courts to issue TROs enjoining the President from undertaking myriad other actions implicating executive powers.

I'm sure the narrative will be that Trump is the one flouting the rule of law. But the District Court issued an "administrative stay" (of what I do not know), and then issued a non-appealable TRO, that constrains the court removal power. The D.C. Circuit twice declined to review an urgent appeal.

The "constitutional crisis" coin has two sides. On one side, the executive branch is expected to follow adverse court rulings. But on the other side of the coin, the judiciary is expected to allow the President to promptly appeal those adverse rulings. It cannot be the case that one court can strangle the executive branch for two weeks without any sort of appeal rights. Both sides have to play the game. There cannot be unilateral disarmament. And as the Acting SG points out, there is a "trend" of such rulings:

That is no mere hypothetical. The district court's order exemplifies a broader, weeks-long trend in which plaintiffs challenging President Trump's initiatives have persuaded district courts to issue TROs that intrude upon a host of the President's Article II powers. A district court in New York issued an ex parte TRO requiring that access to certain Treasury Department data be limited to "civil servants" and be de-nied to "political appointees." New York v. Trump, No. 25-cv-1144, 2025 WL 435411, at *1 (S.D.N.Y. Feb. 8, 2025). A district court in the District of Columbia issued a worldwide TRO that prohibited the government from "suspending, pausing, or other-wise preventing the obligation or disbursement" of any "federal foreign assistance award that was in existence as of January 19, 2025." AIDS Vaccine Advocacy Coali-tion v. United States Department of State, No. 25-cv-402, 2025 WL 485324, at *7 (D.D.C. 2025). Many other district courts have issued universal TROs that sweep far beyond the parties to those cases and effectively enjoin the President's Executive Or-ders even before agencies have decided how to implement them.1

None of these cases, you'll note, arose from the Fifth Circuit. As best as I can recall, district judges in Texas routinely stayed their injunctions to permit appellate review. Not so here.

Harris asks the Court to vacate the TRO, or in the alternative, grant an "administrative stay."

Let's talk turkey here. The "administrative stay" is the ballgame. If the Court denies relief here, the fourteen days will run, and the case can proceed through the usual appellate process. All too often, the Court will say that relief at this early juncture is inappropriate, but we reserve the right to step back in at some future time. I'm sure the Court will be inclined to say that here, especially since Justice Barrett has complained about administrative stays. She is loathe to consider a constitutional question until the issues are fully developed. And even when they are fully developed, she faults lawyers for not laying out comprehensive constitutional theories. It's caution all the way down.

What about the Chief Justice? In a previous lifetime, White House Attorney John Roberts would have personally walked over to Hampton Dellinger's office and changed the locks. But not now, Roberts cannot be seen as giving into to Trump's DOGEing of the federal government.

I think the Court denies the administrative stay by a 5-4 vote, with Roberts and Barrett in the majority. There will be a short statement urging the lower courts to move with promptness, but stating that relief is not appropriate at this time. Barrett will write a concurrence chastising the lower courts for issuing administrative stays of executive orders, and then declining to stay their rulings. But she will say the issues are not clearly defined enough at this point for the Supreme Court to intervene. Justice Kagan might even join Barrett to give her some backup because why not. Roberts will say nothing more because he doesn't have to. We will get a full-throated dissent from Thomas, Alito, Gorsuch urging the Court to overrule Humphrey's Executor. Justice Kavanaugh will also dissent, suggesting that the time has come to reconsider Humphrey's Executor.

My predictions are usually wrong, so take them for whatever they are worth.

2/16/1833: Barron v. City of Baltimore decided.

The Adams Affair continues. Yesterday, I wrote about Hagan Scotten's resignation letter. Here, I want to focus on another sentence Scotten wrote that does not quite make the point he intended:

No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives.

The phrase "ordered liberty" was most famously used by Justice Cardozo in Palko v. Connecticut (1937). Provisions of the Bill of Rights were incorporated if they were "implicit in the concept of ordered liberty." Not exactly some sort of clear, or formalist test. More like an "I know it when I see it approach" to liberty.

What comes after is far more important. Scotten would have you believe that the federal government never uses the "carrot of dismissing charges, or the stick of threatening to bring them again, to induce [a defendant] to support its policy objectives." Notice how I changed "elected official" to "defendant." If you make that subtle change, you realize how problematic that statement is.

The Department of Justice routinely uses carrots and sticks to make defendants support DOJ policy objectives. More than 90% of federal criminal cases end up in plea bargains. Federal prosecutors may as well be transactional lawyers. Usually, the deals take a similar form: plead guilty, waive appeal rights, and the government will recommend a reduced sentence, or perhaps no sentence at all. And the parameters of plea bargains are approved at high levels of leadership. For example, the Obama and Biden Administration offered far more lenient plea deals for drug offenses, while the Trump Administration offered more severe plea deals for drug offenses. Those are DOJ policies, based on some assessment of the harmfulness of the offenses.

In many cases, a plea deal is conditioned on a defendant doing more than pleading guilty. The United States can condition a plea deal on a defendant testifying against a co-defendant. DOJ can condition a plea deal on a defendant providing information to some government entity, in open court, before a grand jury, or in some other confidential form. The federal government can often grant individuals immunity if they go "undercover" as a confidential informant to obtain information about other crimes. Such covert work can place the defendant at risk of death, but the government deems that sacrifice justified in exchange for dropping the prosecution. Moreover, if a defendant refuses to cooperate, the government routinely threatens to bring additional charges, and seek more jail time. In all of these cases, the government uses the carrot of dismissal or the stick of further indictment to promote the ends that the prosecutor's office deems appropriate. When a U.S. Attorney approves a deal in exchange for cooperation, the government is using a carrot to promote its policy objectives.

Now, back to the brackets. I swapped "elected official" for "defendant." Should it matter if the cooperation is provided by an elected official or a private citizen? Does Scotten really think it is the case that DOJ has never "induce[d] an elected official to support its policy objectives"?

Consider the case of United States v. Richmond from the nearby Eastern District of New York. 550 F. Supp. 605 (E.D.N.Y. 1982). In that case, the plea agreement required the defendant to resign from Congress and not run for re-election. Would you call that using a "carrot" to "induce an elected official to support [the government's] policy objectives"? I sure should. You can couch the plea deal in some sort of sense of the public good, but at bottom, the government used its coercive power over prosecution to nudge the defendant to relinquish his ability to hold current and future public office. Were the prosecutors who proposed that deal "foolish"? No, they were doing what prosecutors do all the time. Were these prosecutors scrambling our system of "ordered liberty"? Of course not. Brooklyn is a wild place, but not that wild.

Prosecutors often have something of a god complex, in which they think they always have the higher moral authority, and can use the power of prosecution to accomplish those goals. This risk is particularly acute in so-called public integrity cases. The line between a politician engaging in fraud and a politician servicing constituents is often in the eye of the beholder. Look at the number of public integrity cases that the Supreme Court unanimously vacated.

Was the plea deal valid in Richmond? No. Chief Judge Jack Weinstein (yes, that Jack Weinstein) ruled that the "plea agreement pertaining to resignation from Congress and withdrawal as a candidate for re-election are void." Weinstein added, "[j]ust as Congress and the states are prohibited from interfering with the choice of the people for congressional office, federal prosecutors may not, directly or indirectly, subvert the people's choice or deny them the opportunity to vote for any candidate." Weinstein was right. But that lesson was not learned. To this day, DOJ guidelines state that disqualification is a "appropriate" policy goal:

[r]esignation from office, withdrawal from candidacy for elective office, and forbearance from seeking or holding future public offices, remain appropriate and desirable objectives in plea negotiations with public officials who are charged with federal offenses that focus on abuse of the office(s) involved.

It's right there in black-and-white! Is this provision inconsistent with ordered liberty?

Indeed, people urged the prosecutors to condition a plea deal for Trump on not running for re-election. Seth Barrett Tillman wrote about such proposed plea bargains here.

For its part, the Justice Department has previously described Richmond as "incorrectly decided" and "particularly troublesome" in that it "purports to limit, without adequate legal justification, the latitude of federal prosecutors to reach voluntary settlements with defendants in significant corruption cases which equitably address and protect the important public interests that such prosecutions normally entail." But the Justice Department's current guidance is somewhat more equivocal, in that it cites Powell and Richmond for the assertion that "withdrawal or forbearance with respect to Congressional or federal judicial office may not be imposed involuntarily against the will of the [defendant] judge or Member of Congress involved because of the separation of powers doctrine" without further explanation. (Given that the context of the Justice Department's discussion is a plea bargain, the current guidance's use of "involuntary" is more than somewhat difficult to fathom.) More importantly, what exactly this language might mean for a potential Section 2071 plea agreement with Trump is not pellucidly clear, but it suggests that even the Justice Department would acknowledge that the logic of Richmond might pose some complications.

But there were only crickets in response to these proposals--proving again that much of the outrage about Trump is performative.

Bove's policy is the mirror image of what the government tried to do in Richmond. Bove is deferring the prosecution precisely to allow the people to choose to vote for Adams. And while Adams remains in office, his deferred prosecution is contingent on providing material support to the government. If support is not provided, then the deferred prosecution is off the table. This is the sort of thing DOJ does all the time. There is not, as Danielle Sassoon implied, a "quid pro quo." In 2020, Tillman and I explained that there is no bribery if a public act is exchanged for another public act: the federal government is deferring a prosecution and a government official is providing cooperation with the federal government. Without question, Bove and Adams have mixed motives, but public officials always act with dueling motivations. That dynamic is not enough to transform a government arrangement into a bribe.

Indeed, the fact that Sassoon even alleged there was a "quid pro quo" is yet more evidence of a federal prosecutor trying to criminalize politics. When you only have a hammer, every problem looks like a nail. When you are a federal prosecutor, every questionable act by a government official can be transformed to an indictable offense. The lawfare must end somewhere.

The outrage to Bove's letter, I think, stems from the fact that the recommendation came not from the Sovereign District, but from Main Justice. Moreover, the outrage is due to the fact that the defendant is not some foot soldier who is being asked to snitch on the kingpin. Rather, the defendant is the apex elected official in New York City, who is being asked to assist the federal government. Adams can provide orders far more assistance than the typical defendant could, which may justify the sort of unusual deferred prosecution that was offered. I see a difference only in degree, not in kind. Adams's making this deal is public for all to see, and the voters of New York can (and will) judge him accordingly.

Trump makes his deals explicit and publicly known. He truly saw nothing wrong with his "perfect" Ukraine phone call. He was happy to release the transcript. Virtually all other government officials make these sorts of deal, but are far more opaque. I, for one, prefer transparency. The Department of Justice has determined that prosecutions under the Foreign Corrupt Practices Act, as well as for public integrity offense, may cause more costs than benefits. And everyone is on notice of those policies as well.

In response to my earlier post about the odious and reprehensible Eric Adams deal ("One Step Closer"), several commenters asked why this deal is any different from an ordinary plea bargain deal, in which the government agrees to drop the original charge(s) against a criminal defendant in return for the defendant agreeing to do or not do certain things - e.g., to cooperate with the prosecutors in various related cases, say, or to step down from a managerial role in a certain company, or to stop holding himself out as a financial adviser, etc. The government is agreeing not to prosecute Adams, and Adams is promising to cooperate with federal law-enforcement actions implementing its immigration policies. Why is everyone making such a big deal about it?

It's a very good question, to which there is a very good answer, which can help explain why the DOJ's actions are both unprecedented and chilling.

The Adams deal differs from business as usual in three important ways:

First, in an ordinary plea bargain, there's a plea; that is, the defendant pleads guilty to something that entails lesser punishment than would accompany the original charge. You're indicted for murder, say, but in your plea deal the government agrees only to charge you with negligent homicide, and as part of your plea agreement you enter a plea of "Guilty" to that lesser charge.

Here, though, Adams has not entered any plea (other than his original "Not guilty" plea). The government is simply going to ask the judge to dismiss the corruption charges against him, without requiring him to admit any guilt at all.

Second: More importantly, in an ordinary plea deal, the court is asked to dismiss the original charges with prejudice. This means that after the prosecutor drops the murder charge against you, that charge cannot be re-instated at a later date. You can be prosecuted later if you violate the terms of the plea deal; that is, if you promise as part of the deal to cooperate with prosecutors in related cases against your co-defendants but then refuse to do so, you can be prosecuted for that. But the murder charge can't be revived once it has been dismissed.

Here, the DOJ is asking the judge to dismiss the criminal charges against Adams without prejudice. That means that the original charges against Adams will be hanging over his head, and if he does not comply with the terms of the agreement, the prosecutors can re-institute the original corruption charges against Adams if it wants to.

Adams has, apparently, agreed to cooperate with federal ICE agents in a specific way - to allow ICE agents to interview detainees at the Rikers Island Detention Center.

Next week the Attorney General tells him: "ICE would like to have access to New York City high schools as well. And all their personnel records. And tax records for all personnel." And she reminds him - gently - that if he doesn't cooperate, they will reinstate the corruption charges against him.

You're not nervous yet?

And third: the quid pro quo requires Adams to take certain steps in his official capacity as Mayor of New York. The City of New York is not a defendant in the original action; only Eric Adams is, in his individual capacity. Adams is supposed to make official decisions based on his assessment, right or wrong, about the needs of the people of New York - not on the basis of whether it keeps his ass out of jail.

Still not nervous?

In a recent New York Times op ed, legal scholars Randy Barnett and Ilan Wurman offer a partial defense of President Trump's executive order denying birthright citizenship to children of undocumented immigrants, and migrants in the US on temporary visas. The Citizenship Clause of the Fourteenth Amendment grants citizenship to anyone "born … in the United States and subject to the jurisdiction thereof." The standard view of this provision is that it covers everyone born in the United States that is subject to US law, and thus, as the Supreme Court explained in the 1898 Wong Kim Ark case "includ[es] all children here born of resident aliens, with the exceptions or qualifications… of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes." The Indians "owing direct allegiance to their several tribes" were excluded because Indian nations were distinct sovereigns exempt from many US laws. For this reason, four federal courts have ruled against Trump's order.

Barnett and Wurman argue that only people born in the United States at a time when their parents have traded "allegiance" for "protection" truly qualify as under the jurisdiction of the United States. They contend that illegal migrants haven't made any such compact with the US, and therefore don't qualify.

Barnett and Wurman cite an 1862 opinion by Attorney General Edward Bates stating that "The Constitution uses the word 'citizen' only to express the political quality of the individual in his relations to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other." Barnett and Wurman claim the Citizenship Clause is based on a social contract theory under which people enter into a "social compact" with the government, trading allegiance for the protection of the laws.

There are several flaws in Barnett and Wurman's "allegiance-for-protection" theory. The biggest is that, if consistently applied, it would undermine the central purpose the Citizenship Clause: extending citizenship to recently freed slaves and their descendants. Slaves born in the United States (and their parents, who were also usually slaves) obviously weren't part of any social compact under which they traded allegiance for protection. Far from protecting them, state and federal governments facilitated their brutal oppression at the hands of their masters.

This situation changed, to an extent, with the abolition of slavery through the Thirteenth Amendment. But the "subject to the jurisdiction" language of the Citizenship Clause refers to people subject to that jurisdiction at the time they were born. For example, the child of a foreign diplomat doesn't get birthright citizenship if her parents later lose their diplomatic immunity. If being subject to US jurisdiction requires a compact trading allegiance for protection, former slaves obviously didn't qualify. Thus, the Barnett-Wurman theory would defeat the central purpose of the Citizenship Clause. That alone is reason to reject it.

Another problem with their analysis is that they rely almost exclusively on sources interpreting the nature of citizenship before enactment of the Fourteenth Amendment, such as the 1862 Bates opinion. But the whole point of the Citizenship Clause was to expand the range of people eligible for birthright citizenship, to include former slaves. Thus, we should not assume that the Citizenship Clause is limited by previous understandings.

Barnett and Wurman do not consider extensive evidence from the period during and immediately after enactment, of the kind canvassed by scholars such as Michael Ramsey in his detailed 2020 article on this subject. That evidence, as Ramsey explains, strongly supports birthright citizenship for the children of undocumented migrants.

Barnett and Wurman argue that the traditional view cannot explain seeming anomalies, such as "the status of children born to citizens residing within enemy-occupied territory, who appear to have been considered citizens if their parents remained loyal… [a]nd… the status of children born to foreigners on foreign public vessels in U.S. waters, who were not considered citizens." These aren't actually anomalies at all. As the Supreme Court ruled in 1812, foreign public vessels in US territorial waters remain under the sovereignty of their governments, and therefore are not within US jurisdiction. Citizens residing within enemy-held territory remain under an obligation to follow US law, and that duty can be enforced upon them in a way it cannot be on foreign troops (for example through prosecutions undertaken after the US recaptures the territory).

Finally, it's important to remember that, as Gabriel Chin and Paul Finkelman have shown, the freed slaves whose children were covered by the Citizenship Clause included a large population that had entered the US illegally, by virtue of being brought in after the federal government banned the slave trade in 1808. This shows that illegal entry was not considered a barrier to being under US jurisdiction.

Even if valid, the Barnett-Wurman theory only partially justifies Trump's order. That order excludes not just children of illegal entrants, but those born to migrants who entered legally on temporary visas. But their argument fails with respect to children of the undocumented, as well. At the very least, it is not strong enough to overcome decades of contrary precedent and practice, thereby subjecting hundreds of thousands of innocent children to the trauma of deportation.

I hope to blog soon about the First Amendment questions raised by President Trump's excluding the AP from the Oval Office and Air Force One because of the AP's refusal to call the Gulf of Mexico "the Gulf of America." (Turns out the precedents on this subject are complicated.) [UPDATE: Just posted that analysis.] But I wanted to start by briefly discussing the underlying language question. Here's an excerpt from Wednesday's White House press briefing:

QUESTION: But isn't it retaliatory in nature, is the argument, because the reason that the AP was barred, which they said was because they're not using the phrase Gulf of America, they're using Gulf of Mexico in line with their standards. And so the question here is, is this setting a precedent that this White House will retaliate against reporters who don't use the language that you guys believe reporters should use?

And how does that align with the First Amendment commitment that you were just talking about?

KAROLINE LEAVITT: I was very upfront in my briefing on day one that if we feel that there are lies being pushed by outlets in this room, we are going to hold those lies accountable. And it is a fact that the body of water off the coast of Louisiana is called the Gulf of America. And I'm not sure why news outlets don't want to call it that, but that is what it is. The secretary of Interior has made that the official designation, and the Geographical Identification Names Server and Apple has recognized that, Google has recognized that.

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