1/23/1915: Justice Potter Stewart born.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Can The President Unilaterally Declare An Invasion?
Or can only Congress declare an invasion, like Congress has the sole power to declare war?
In my post on the invasion executive order, I wrote "I think it pretty clear that the President can declare an invasion." A reader opined that because Congress has the power to declare war, the President cannot unilaterally declare an invasion. Relatedly, a reporter asked me if a President has ever before declared an invasion.
I think the general consensus view is that for the President to use military power abroad as part of a war, Congress must declare war. (There is some debate about whether a declaration is needed for something less than a war, such as "hostilities," but I'll table that issue for now.) I also think the general consensus view is that the President does not need a declaration of war to repel an invasion. That is, if the United States is under attack, the President can act to secure the homeland before seeking authorization from Congress. And if the President can repel an invasion, then he necessarily has the power to declare when such an invasion is occurring.
Thankfully, the United States has suffered very few invasions. Our conflicts generally have been fought abroad. A few of the more prominent invasions would be the War of 1812 and Pearl Harbor. In both conflicts, Congress issued declarations of war against Great Britain and Japan, respectively. On short notice, I could not find anything from President Madison that is relevant for the War of 1812. But I find relevant President Franklin D. Roosevelt's "Day of Infamy" speech, delivered on December 8, 1841. This speech asked that Congress declare war between the United States and Japan. Yet, FDR had already determined that Japan invaded the United States. He spoke to the invasion directly:
"No matter how long it may take us to overcome this premeditated invasion, the American people in their righteous might will win through to absolute victory."
Midweek Midday Open Thread
What's on your mind?
Free Speech and Private Power: Restraints on Government Officials Moderating Online Content Following Lindke
[I am serializing my short Harvard Law Review Forum essay titled "Free Speech and Private Power", responding to the Harvard Law Review's publication of Evelyn Douek & Genevieve Lakier's excellent new article, Lochner.com? I actually agree with much of what Douek & Lakier say, but offer a somewhat different perspective on the matter, mostly asking what the Court's recent cases mean going forward, rather than trying to critique them.]
[This post is about Lindke v. Freed, which (to oversimplify) held that a public official's blocking commenters from the official's social media page based on their viewpoints constitutes "state action" and thus potentially violates the First Amendment "only if the official (1) possessed actual authority to speak on the State's behalf, and (2) purported to exercise that authority when he spoke on social media. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first."]
Lindke, like Murthy [v. Missouri], asked the Court to draw a line between public power, which is constrained by the First Amendment, and private power, which is not. But in Lindke, a government official was indubitably acting: The question was whether the official was acting as an official or as a private citizen.
Here I think I disagree in some measure with Douek and Lakier's analysis, though more as a matter of emphasis: I appreciate their critiques of the Lindke opinion, but think that on balance the opinion makes sense, because the "space of privacy for government officials when they use[] social media to publicize their work and promote their political agenda" is indeed worth preserving.
Before being anything else, after all, officials are people. They often act the way other people act, and are entitled to considerable latitude in doing so. Thus, for instance, even when the Establishment Clause was seen as generally restricting governmental endorsement of religion, individual officials remained free to go to church and avow their own faith, in their individual capacities—and even to include religious references in their public speeches. Indeed, attempts to protect the state from undue capture by the church were themselves struck down on First Amendment grounds when they interfered with officials' ability to be both public servants and clergy members. Likewise, equal protection principles limit government officials' power to discriminate based on sex when choosing government employees, but presumably not when choosing, say, roommates, where such discrimination may itself be constitutionally protected.
Calling Someone "White Supremacist" in Online Debate Is Opinion …
and thus not actionable defamation, unless defendant "implies undisclosed facts by insinuating that the plaintiff" engaged in specific racist acts or made (undisclosed) racist statements.
This is the standard view under American defamation law; it had in the past been applied to allegations of Communism, Socialism, etc., but more recently has often been applied to allegations of racism, sexism, white supremacy, etc. Here's an excerpt from Murphy v. Rosen, released yesterday by the Connecticut Supreme Court, in an opinion by Justice Andrew McDonald:
The use of derogatory remarks on social media and elsewhere has become commonplace in political discourse, with words and phrases taking on different meanings depending on the context in which the expression is made, the intentions of the speaker, and the viewpoint of the audience…. The primary issue on appeal is whether the characterization of the plaintiff as a "white supremacist" is, standing alone, an actionable fact constituting defamation per se.
We conclude that, although calling someone a "white supremacist" or a "racist" is a serious accusation, the meanings of these terms are inherently subjective. As a result, we join numerous other jurisdictions that have concluded that these terms are not objectively verifiable and do not, without more, imply the existence of undisclosed defamatory facts….
Choice of Law in Takings Cases After Tyler v. Hennepin County (III)
The Court’s departures from standard choice of law principles (or, takings doctrine for federal courts gurus).
Let me sum up what I've shown so far in this series about my forthcoming article about the Supreme Court case Tyler v. Hennepin County, Minnesota. As I showed on Monday, the U.S. Supreme Court held that surplus equity constitutes "private property" sufficient to support claims under the Takings Clause. To reach that holding, Chief Justice Roberts (author of the Court's opinion in Tyler) consulted legal sources that seem odd to property lawyers. Takings cases like Webb's Fabulous Pharmacies v. Beckwith seem to hold that, "[b]ecause the Constitution protects rather than creates property interests, the existence of a property interest is determined to reference to existing rules or understandings that seem from an independent source such as state law." But Roberts did not look solely at state law; he also consulted a wide range of sources from early English and American law. As I showed yesterday, however, Roberts was not free-lancing; he was following choice of law principles familiar from federal constitutional law and federal courts doctrine. When state actors seem to be converting a federal constitutional right into a "dead letter," the Court held in Indiana ex rel. Anderson v. Brand, federal courts can look past the most relevant sources of state law and measure a plaintiff's federal constitutional rights independently.
In Tyler, the Court followed Brand's principle in part. In Brand, to measure Anderson's contractual rights, the Court looked past the Indiana judicial opinions about her tenure and studied Indiana statutes about teacher tenure and Indiana contracts case law. In Tyler, Minnesota private creditors don't get to keep surplus equity after foreclosures, the Court noted, and Minnesota state agencies don't get to keep the equity in foreclosed-on property besides real estate.
But in Tyler the Court followed the Brand principle only in part. The Court consulted many legal sources besides Minnesota sources, from early English and American practice, and from its own case law. And even if the Court had followed Brand in every respect, Tyler could not have revolutionized choice of law doctrine in federal takings litigation. Tyler broke some new ground, but it didn't and couldn't displace earlier precedents on different choice of law takings problems.
Trump's Executive Order Banning Affirmative Action and DEI Preferences
This is radical stuff, at least relative to the status quo in the government for decades:
01/21/25
EXECUTIVE ORDER
ENDING ILLEGAL DISCRIMINATION AND
RESTORING MERIT-BASED OPPORTUNITY
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:
Section 1. Purpose. Longstanding Federal civil-rights laws protect individual Americans from discrimination based on race, color, religion, sex, or national origin. These civil-rights protections serve as a bedrock supporting equality of opportunity for all Americans. As President, I have a solemn duty to ensure that these laws are enforced for the benefit of all Americans.
Yet today, roughly 60 years after the passage of the Civil Rights Act of 1964, critical and influential institutions of American society, including the Federal Government, major corporations, financial institutions, the medical industry, large commercial airlines, law enforcement agencies, and institutions of higher education have adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called "diversity, equity, and inclusion" (DEI) or "diversity, equity, inclusion, and accessibility" (DEIA) that can violate the civil-rights laws of this Nation.
Illegal DEI and DEIA policies not only violate the text and spirit of our longstanding Federal civil-rights laws, they also undermine our national unity, as they deny, discredit, and undermine the traditional American values of hard work, excellence, and individual achievement in favor of an unlawful, corrosive, and pernicious identity-based spoils system. Hardworking Americans who deserve a shot at the American Dream should not be stigmatized, demeaned, or shut out of opportunities because of their race or sex.
These illegal DEI and DEIA policies also threaten the safety of American men, women, and children across the Nation by diminishing the importance of individual merit, aptitude, hard work, and determination when selecting people for jobs and services in key sectors of American society, including all levels of government, and the medical, aviation, and law-enforcement communities. Yet in case after tragic case, the American people have witnessed first-hand the disastrous consequences of illegal, pernicious discrimination that has prioritized how people were born instead of what they were capable of doing.
The Federal Government is charged with enforcing our civil-rights laws. The purpose of this order is to ensure that it does so by ending illegal preferences and discrimination.
Sec. 2. Policy. It is the policy of the United States to protect the civil rights of all Americans and to promote individual initiative, excellence, and hard work. I therefore order all executive departments and agencies (agencies) to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements. I further order all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.
Sec. 3. Terminating Illegal Discrimination in the Federal Government. (a) The following executive actions are hereby revoked:
(i) Executive Order 12898 of February 11, 1994 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations);
(ii) Executive Order 13583 of August 18, 2011 (Establishing a Coordinated Government-wide Initiative to Promote Diversity and Inclusion in the Federal Workforce);
(iii) Executive Order 13672 of July 21, 2014 (Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity); and
(iv) The Presidential Memorandum of October 5, 2016 (Promoting Diversity and Inclusion in the National Security Workforce).
(b) The Federal contracting process shall be streamlined to enhance speed and efficiency, reduce costs, and require Federal contractors and subcontractors to comply with our civil-rights laws. Accordingly:
(i) Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity), is hereby revoked. For 90 days from the date of this order, Federal contractors may continue to comply with the regulatory scheme in effect on January 20, 2025.
(ii) The Office of Federal Contract Compliance Programs within the Department of Labor shall immediately cease:
(A) Promoting "diversity";
(B) Holding Federal contractors and subcontractors responsible for taking "affirmative action"; and
(C) Allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.
(iii) In accordance with Executive Order 13279 of December 12, 2002 (Equal Protection of the Laws for Faith-Based and Community Organizations), the employment, procurement, and contracting practices of Federal contractors and subcontractors shall not consider race, color, sex, sexual preference, religion, or national origin in ways that violate the Nation's civil rights laws.
(iv) The head of each agency shall include in every contract or grant award:
(A) A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government's payment decisions for purposes of section 3729(b)(4) of title 31, United States Code; and
(B) A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.
(c) The Director of the Office of Management and Budget (OMB), with the assistance of the Attorney General as requested, shall:
(i) Review and revise, as appropriate, all Government-wide processes, directives, and guidance;
(ii) Excise references to DEI and DEIA principles, under whatever name they may appear, from Federal acquisition, contracting, grants, and financial assistance procedures to streamline those procedures, improve speed and efficiency, lower costs, and comply with civil-rights laws; and
(iii) Terminate all "diversity," "equity," "equitable decision-making," "equitable deployment of financial and technical assistance," "advancing equity," and like mandates, requirements, programs, or activities, as appropriate. Read More
Today in Supreme Court History: January 22, 1890
1/22/1890: Hans v. State of Louisiana argued.
DHS Will Enforce Expedited Removal To "Full Scope Of Its Statutory Authority"
DHS will subject to expedited removal aliens "who are apprehended anywhere in the United States more than 100 air miles from a U.S. international land border, and who have been continuously present in the United States for less than two years"
On Tuesday evening, DHS announced that it would expand expedited removal to the full extent authorized by statute. Expedited removal empowers the government to remove an alien with far fewer processes and protections. Now, expedited removal would apply regardless of where the alien is apprehended.
The order provides:
I designate for expedited removal the following categories of aliens not currently designated: (1) Aliens who did not arrive by sea, who are apprehended anywhere in the United States more than 100 air miles from a U.S. international land border, and who have been continuously present in the United States for less than two years; and (2) aliens who did not arrive by sea, who are apprehended within 100 air miles from a U.S. international land border, and who have been continuously present in the United States for at least 14 days but for less than two years. Each alien placed in expedited removal under this designation bears the affirmative burden to show to the satisfaction of an immigration officer that the alien has been present in the United States continuously for the relevant period. This designation does not apply to aliens who arrive at U.S. ports of entry, because those aliens are already subject to expedited removal. Nor does this designation apply to or otherwise affect aliens who satisfy the expedited removal criteria set forth in any of the previous designations.
I wrote about expedited removal in this post from 2017. Trump was thwarted in enacting this sort of policy in his first administration, but it seems he is doing so right away in the second administration.
Get ready for litigation about whether this policy violates the Suspension Clause. Peter Margulies wrote about this issue in 2020.
SCOTUS GVRs Capital Case After 13 Reschedules And 10 Relists
It seems to have taken some time to corral Justice Barrett's vote in a case involving evidence and sex-based slurs.
Andrew v. White, a capital case has been floating around a year. On January 22, 2024, the cert petition was filed. And on January 21, 2025, the Supreme Court GVR'd the case. The per curiam begins
An Oklahoma jury convicted Brenda Andrew of murdering her husband, Rob Andrew, and sentenced her to death. The State spent significant time at trial introducing evidence about Andrew's sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant. In a federal habeas petition, Andrew argued that this evidence had been so prejudicial as to violate the Due Process Clause. The Court of Appeals rejected that claim because, it thought, no holding of this Court established a general rule that the erroneous admission of prejudicial evidence could violate due process. That was wrong. By thetime of Andrew's trial, this Court had made clear that when "evidence is introduced that is so unduly prejudicial that itrenders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." Payne v. Tennessee, 501 U. S. 808, 825 (1991).
John Elwood offered this summary of the history at Petitions to Watch:
(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15, Nov. 22, Dec. 6, Dec. 13 and Jan. 10 conferences.)
Can that be right? 13 reschedules and ten relists? That is a lot of arm-twisting and cajoling to get a GVR. One of my proposals for bilateral judicial reform is that the Justices would have to resolve a cert petition within 90 days after it is filed. As they say, grant or get off the pot.
For certain, Justices Thomas and Gorsuch dissented from the order. And I doubt Justice Kavanaugh would note a dissent from this fact pattern, in particular. Justice Alito concurred in the judgment If I had to guess, it took the liberals some time to persuade Justice Barrett to go along with a GVR. The entire case is about evidence. In particular, evidentiary issues concerning slurs against women. See Footnote 1:
Similarly, the dissent asserts thatAndrew falsely accuses the prosecution of calling her a "slut puppy" in closing argument. Post, at 7, n. 3 (opinion of THOMAS, J.). Whether the prosecution quoted something it believed Andrew once said to suggest to the jury that Andrew herself was a "slut puppy," or simply to recite an alleged abusive phone call, is a question of fact for the Tenth Circuit to resolve.
Note to practitioners: if you want Justice Barrett's vote, make the case about evidence.
Just yesterday I noted that Justice Barrett may be the weakest link among conservatives in capital cases. This case is another data point.
This is one reversal of the Oklahoma Court of Criminal Appeals. Let's see what happens in Glossip.
President Trump's Invasion Executive Order
President Trump's order concerning an invasion at the southern border is the most full-throated endorsement of Article II powers I've seen in some time.
First, the opinion cites U.S. ex rel. Knauff v. Shaughnessy (1950), which recognized that "The exclusion of aliens is a fundamental act of sovereignty . . . [that] is inherent in the executive power to control the foreign affairs of the nation." During the travel ban litigation, several litigants suggested that this case was no longer good law. But Trump is invoking it, head-on.
Second, Trump explains one of the grand bargains behind the Constitution:
In joining the Union, the States agreed to surrender much of their sovereignty and join the Union in exchange for the Federal Government's promise in Article IV, Section 4 of the U.S. Constitution, to "protect each of [the States] against Invasion."
This provision is part of the seldom-studied guarantee clause.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
It is widely understood under Luther v. Borden that a determination under the Guarantee Clause is a political question. Then again, in 2021, none of the Justices could remember the name of the case, and Tara Grove has challenged that conventional wisdom. If a finding of an invasion is a political question, there is little for the judiciary to do to second guess that finding--that includes Judge Ezra, who I suspect will be a lot less busy over the next four years.
Third, Trump concludes that the federal government has failed this obligation.
I have determined that the current state of the southern border reveals that the Federal Government has failed in fulfilling this obligation to the States and hereby declare that an invasion is ongoing at the southern border, which requires the Federal Government to take measures to fulfill its obligation to the States.
This finding is significant. Texas has argued there is an invasion, which activates certain powers in Article I, Section 10, Clause 3. Specifically, a state can "engage in War, [when] actually invaded." And Trump has made a declaration of invasion. I am skeptical that the courts can second-guess this finding. Judge Ho addressed this point in United States v. Abbot:
Courts have no business deciding which national security threats are sufficiently serious to warrant a military response, and which are not. Supreme Court precedent and longstanding Executive Branch practice confirm that, when a President decides to use military force, that's a nonjusticiable political question not susceptible to judicial reversal. I see no principled basis for treating such authority differently when it's invoked by a Governor rather than by a President. If anything, a State's authority to "engage in War" in response to invasion "without the Consent of Congress" is even more textually explicit than the President's.
Whatever role the Governor has to declare an invasion, I think it pretty clear that the President can declare an invasion. And this determination would seem to be a political question.
Fourth, Trump argues that the INA does not "occupy the field," and the President retains inherent authority to exclude and remove invading aliens:
The INA does not, however, occupy the Federal Government's field of authority to protect the sovereignty of the United States, particularly in times of emergency when entire provisions of the INA are rendered ineffective by operational constraints, such as when there is an ongoing invasion into the States. The President's inherent powers to control the borders of the United States, including those deriving from his authority to control the foreign affairs of the United States, necessarily include the ability to prevent the physical entry of aliens involved in an invasion into the United States, and to rapidly repatriate them to an alternative location. Only through such measures can the President guarantee the right of each State to be protected against invasion.
And Trump uses this power to block entry of all invaders at the southern border:
By the power vested in me by the Constitution and the laws of the United States, I have determined that the current situation at the southern border qualifies as an invasion under Article IV, Section 4 of the Constitution of the United States. Accordingly, I am issuing this Proclamation based on my express and inherent powers in Article II of the Constitution of the United States, and in faithful execution of the immigration laws passed by the Congress, and suspending the physical entry of aliens involved in an invasion into the United States across the southern border until I determine that the invasion has concluded.
Fifth, Trump is making an Article II override argument. Specifically, separate and apart from Section 1182(f), the President has inherent power to deny entry to invaders, and repatriate them elsewhere. Trump uses this argument to override other statutory protections:
Sec. 2. Imposition of Restrictions on Entry for Aliens Invading the United States. I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that aliens engaged in the invasion across the southern border of the United States on or after the date of this proclamation are restricted from invoking provisions of the INA that would permit their continued presence in the United States, including, but not limited to, section 208 of the INA, 8 U.S.C. 1158, until I issue a finding that the invasion at the southern border has ceased.
Section 1158 concerns asylum. Yes, Trump is arguing his Article II power overrides congressional asylum protections, some of which may in fact implement treaties. This provision is like an exam fact pattern to test the Supremacy Clause.
Sixth, Trump also delegates his full constitutional authority to the Secretary of Homeland Security to stop the invasion:
Sec. 4. Constitutional Suspension of Physical Entry. Under the authorities provided to me under Article II of the Constitution of the United States, including my control over foreign affairs, and to effectuate the guarantee of protection against invasion required by Article IV, Section 4, I hereby suspend the physical entry of any alien engaged in the invasion across the southern border of the United States, and direct the Secretary of Homeland Security, in coordination with the Secretary of State and the Attorney General, to take appropriate actions as may be necessary to achieve the objectives of this proclamation, until I issue a finding that the invasion at the southern border has ceased.
This is a sweeping delegation of authority from the President to his cabinet.
Specifically, the Secretary can "repel, repatriate, or remove" aliens, as provided for by Article II of the Constitution:
Sec. 5. Operational Actions to Repel the Invasion. The Secretary of Homeland Security, in coordination with the Secretary of State and the Attorney General, shall take all appropriate action to repel, repatriate, or remove any alien engaged in the invasion across the southern border of the United States on or after the date of this order, whether as an exercise of the suspension power in section 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), or as an exercise of my delegated authority under the Constitution of the United States, until I issue a finding that the invasion at the southern border has ceased.
Unlike some of the other orders, which go into effect in the future, the invasion order is effective immediate. I have not seen a challenge, yet.
The birthright citizenship order has been getting the most attention. But the invasion order arises in the area of most constitutional uncertainty. There just isn't much law to go on here, and the courts will flounder trying to decide these issues.
The Birthright Citizenship Executive Order
Much has been written about President Trump's executive order concerning birthright citizenship. I'll add a few thoughts here.
First, this order did not tie the denial of birthright citizenship to the invasion order. Rather, it is far broader. A child born to any mother who is not lawfully present, or a mother who only lawfully present for a temporary period, would not be a birthright citizen. This position can be refined in the inevitable litigation.
Second, the order only applies prospectively to children born 30 days after the issuance of the order. But if this order is successful, there is nothing that would prevent this policy from being enforced retroactively. Trump would not have to denaturalize people. It would be sufficient to deny them documentation of citizenship.
Third, the order simply withholds the issuance of certain identity documents:
It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship . . . .
This order brings to mind Zivotofsky v. Kerry (2015). Justice Thomas's concurrence found that the President has a "residual foreign affairs power" to regulate passports, but the President has no such power over "consular reports of birth abroad." Perhaps one of the most significant exercises of this power was when the Lincoln Administration issued passports to Black Americans, notwithstanding that Dred Scott ruled that such people could never become citizens. Remember, Lincoln did not defy Dred Scott; he simply limited that ruling to the named parties. If Thomas is right, then Congress has no power, whatsoever, over passports. Would Trump argue that the President's residual foreign affairs power over passports gives him any special authority to interpret Section 1 of the 14th Amendment? There may be something more here. I need to think about it some more.
By contrast, in Zivotofsky, Justice Scalia's dissent rejected Thomas's analysis.
The concurrence's stingy interpretation of the enumerated powers forgets that the Constitution does not "partake of the prolixity of a legal code," that "only its great outlines [are] marked, its important objects designated, and the minor ingredients which compose those objects [left to] be deduced from the nature of the objects themselves." McCulloch, 4 Wheat., at 407. It forgets, in other words, "that it is a constitution we are expounding." Ibid.
This is one of the rare cases where Scalia and Thomas disagree, and vigorously so, on an originalist question.
The ACLU challenged this birthright citizenship order in New Hampshire. And two dozen blue states, led by New Jersey, filed suit in Massachusetts. I guess it was determined the First Circuit would have jurisdiction over this claim. That makes sense, since the First Circuit has ruled over the status of Puerto Rico, which is adjacent to the insular cases. There is probably some favorable precedent there.
I watched as Trump signed this order. He did not seem particularly confident that he would win this case, as opposed to some of his other actions. The Court will almost certainly rule against Trump. But in the process, does John Roberts tell us what "subject to the jurisdiction thereof" actually means? Is it just the children of diplomats who are excluded? Who else is not covered? You can be sure Trump will respond accordingly. Indeed, maybe that is the point of drawing the categories so broadly. Any wiggle room that the Court leaves will be wiggled.
President Trump's Executive Order on the U.S. Refugee Admissions Program
The timing of this order seems structured to moot a Supreme Court appeal in 90 days.
During the first Trump Administration, there were three iterations of the travel ban. Just as one version got to the Supreme Court, it lapsed, and another version came shortly thereafter. This strategy frustrated the litigation, and made it tougher to get a final judgment. President Trump's new order on the U.S. Refugee Admissions program will likely follow a similar pattern.
First, President Trump invokes Section 1182(f), the statute at issue in the travel ban. He deems the entry of all refugees to be detrimental to American interests. And he orders the denial of their entry.
Sec. 3. Realignment of the U.S. Refugee Admissions Program. (a) I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that entry into the United States of refugees under the USRAP would be detrimental to the interests of the United States. I therefore direct that entry into the United States of refugees under the USRAP be suspended — subject to the exceptions set forth in subsection (c) of this section — until a finding is made in accordance with section 4 of this order. This suspension shall take effect at 12:01 am eastern standard time on January 27, 2025.
The order goes into effect one week after the inauguration. This provides for a pre-enforcement challenge--a bit more orderly than the travel ban order that went into effect by surprise. And the order remains in effect until Trump makes some future finding (see below). Unlike the travel ban, which was indefinite, this order has some theoretical end point. This fact will aid in the litigation.
Second, there is not a categorical ban. Trump allowed for the exercise of prosecutorial discretion. In theory, at least, some refugees can be admitted, so long as they do not pose a threat to American interests.
(c) Notwithstanding the suspension of the USRAP imposed pursuant to subsections (a) and (b) of this section, the Secretary of State and the Secretary of Homeland Security may jointly determine to admit aliens to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the entry of such aliens as refugees is in the national interest and does not pose a threat to the security or welfare of the United States.
Third, there is a ninety day clock. In theory at least, in three months, there will be a careful review which can be used to support the policy.
Sec. 4. Resumption of the U.S. Refugee Admissions Program. Within 90 days of this order, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit a report to the President through the Homeland Security Advisor regarding whether resumption of entry of refugees into the United States under the USRAP would be in the interests of the United States, in light of the policies outlined in section 2 of this order. The Secretary of Homeland Security, in consultation with the Secretary of State, shall submit further reports every 90 days thereafter until I determine that resumption of the USRAP is in the interests of the United States.
It may take about three months to get this case up to the Supreme Court. Just as it gets there, the Secretary of Homeland Security will release a report, which will likely force the Supreme Court to remand the case to the District Court, with instructions to consider the new policy. This structure will make it very hard to obtain a final judgment. And I think this structure reflects lessons learned from the travel ban litigation.
When The Resistance Tail Catches The DOGE
The Resistance sues a non-existent entity based on an irrelevant statute.
Mere moments after President Trump his oath, a group of progressive public interest groups filed suit to challenge DOGE. Of course, DOGE had not yet been created. It wasn't even clear what DOGE was. And who has standing to challenge a non-existent entity? But Resistance demands being the first to file.
The complaints assumed that DOGE would be some sort of advisory committee outside the aegis of the federal government. These committees may be subject to the Federal Advisory Committee Act (FACA). In 1993, a federal district court found that the President's Task Force on National Health Care Reform, chaired by Hillary Clinton violated FACA. However, the D.C. Circuit reversed that decision, finding that the task force was not subject to FACA. (This is a rare case where Judge Silberman reversed Judge Lamberth.)
But there's a problem for the Resistance. DOGE is not an advisory committee. It is not subject to FACA. The President's order explains that DOGE will be housed within the Executive Office of the President:
Sec. 3. DOGE Structure. (a) Reorganization and Renaming of the United States Digital Service. The United States Digital Service is hereby publicly renamed as the United States DOGE Service (USDS) and shall be established in the Executive Office of the President.
(b) Establishment of a Temporary Organization. There shall be a USDS Administrator established in the Executive Office of the President who shall report to the White House Chief of Staff. There is further established within USDS, in accordance with section 3161 of title 5, United States Code, a temporary organization known as "the U.S. DOGE Service Temporary Organization". The U.S. DOGE Service Temporary Organization shall be headed by the USDS Administrator and shall be dedicated to advancing the President's 18-month DOGE agenda. The U.S. DOGE Service Temporary Organization shall terminate on July 4, 2026. The termination of the U.S. DOGE Service Temporary Organization shall not be interpreted to imply the termination, attenuation, or amendment of any other authority or provision of this order.
(c) DOGE Teams. In consultation with USDS, each Agency Head shall establish within their respective Agencies a DOGE Team of at least four employees, which may include Special Government Employees, hired or assigned within thirty days of the date of this Order. Agency Heads shall select the DOGE Team members in consultation with the USDS Administrator. Each DOGE Team will typically include one DOGE Team Lead, one engineer, one human resources specialist, and one attorney. Agency Heads shall ensure that DOGE Team Leads coordinate their work with USDS and advise their respective Agency Heads on implementing the President's DOGE Agenda.
DOGE will be within the government, and be staffed by government employees. There may be "Special Government Employees," such as Elon Musk. But that is not a FACA issue.
How embarrassing for the Resistance. Will any of these groups explain to their donors how they sued a non-existent entity based on a completely irrelevant statute? I hope the Resistance takes it easy. It will be a long four years.
President Trump's TikTok Executive Order
Four days ago, the Supreme Court upheld the TikTok ban. Even before that decision was issued, President Biden announced that he would not enforce the policy for the final 36 hours of his presidency. (In hindsight, he may have been too busy signing pardons.) Yet, for a short while, TikTok went dark. And then TikTok turned on again, in anticipation of Trump's inauguration. On his first day in office, Trump signed an executive order concerning TikTok.
The order echoes President-Elect Trump's amicus brief. Trump asserts that the law impinges on his authority over national security:
I have the unique constitutional responsibility for the national security of the United States, the conduct of foreign policy, and other vital executive functions. To fulfill those responsibilities, I intend to consult with my advisors, including the heads of relevant departments and agencies on the national security concerns posed by TikTok, and to pursue a resolution that protects national security while saving a platform used by 170 million Americans. My Administration must also review sensitive intelligence related to those concerns and evaluate the sufficiency of mitigation measures TikTok has taken to date.
Like in the brief, Trump refers to the timing of the statute as "unfortunate." This timing was no accident. Congress intended this decision to fall to President Biden.
The unfortunate timing of section 2(a) of the Act — one day before I took office as the 47th President of the United States — interferes with my ability to assess the national security and foreign policy implications of the Act's prohibitions before they take effect.
And Trump repeats his refrain that he can make a deal.
This timing also interferes with my ability to negotiate a resolution to avoid an abrupt shutdown of the TikTok platform while addressing national security concerns.
Trump directs his administration to take no action against anyone for seventy-five days.
Accordingly, I am instructing the Attorney General not to take any action to enforce the Act for a period of 75 days from today to allow my Administration an opportunity to determine the appropriate course forward in an orderly way that protects national security while avoiding an abrupt shutdown of a communications platform used by millions of Americans.
Trump doesn't quite say that the statute is unconstitutional. There is no basis, then for an Article II override. Rather, this seems to be purely an act of prosecutorial discretion. But it is more than that. Trump promises that no future penalties will be imposed on companies that work with TikTok.
Sec. 2. Action. (a) I hereby order the Attorney General not to take any action on behalf of the United States to enforce the Act for 75 days from the date of this order, to permit my Administration an opportunity to determine the appropriate course of action with respect to TikTok. During this period, the Department of Justice shall take no action to enforce the Act or impose any penalties against any entity for any noncompliance with the Act, including for distributing, maintaining, or updating (or enabling the distribution, maintenance, or updating) of any foreign adversary controlled application as defined in the Act. In light of this direction, even after the expiration of the above-specified period, the Department of Justice shall not take any action to enforce the Act or impose any penalties against any entity for any conduct that occurred during the above-specified period or any period prior to the issuance of this order, including the period of time from January 19, 2025, to the signing of this order.
In theory at least, the next administration could choose to bring an action within the statute of limitations. But that is unlikely. What makes this more unlikely is that the Attorney General must issue a non-enforcement letter:
(b) The Attorney General shall take all appropriate action to issue written guidance to implement the provisions of subsection (a).
(c) I further order the Attorney General to issue a letter to each provider stating that there has been no violation of the statute and that there is no liability for any conduct that occurred during the above-specified period, as well as for any conduct from the effective date of the Act until the issuance of this Executive Order.
I am fairly certain that these sorts of letters can be relied upon in the event of any future enforcement action. Alan Rozhenstein flags Zach Price's article about reliance on non-enforcement. Alan makes some fair points, but as a matter of realpolitik, I doubt there will ever be a prosecution. And that is enough for the lawyers at Oracle and Akami.
Apart from the estoppel argument, I see here a fairly clear violation of the Take Care Clause. This is not simply an exercise in discretion. The President is authorizing the violation of a statute that was just upheld by the Supreme Court. And this order, like others, issues direct orders to the Attorney General about how to exercise prosecutorial discretion. Trump is making clear that he sees the Attorney General as his subordinate. I am inclined to agree with this view of Article II, but it represents a departure from how past presidents have interacted with their Attorneys General.
Finally, the Attorney General can take steps to block enforcement of the ban by private parties or states.
(d) Because of the national security interests at stake and because section 2(d) of the Act vests authority for investigations and enforcement of the Act only in the Attorney General, attempted enforcement by the States or private parties represents an encroachment on the powers of the Executive. The Attorney General shall exercise all available authority to preserve and defend the Executive's exclusive authority to enforce the Act.
I'm a bit confused, as I don't see any private causes of action under the statute.
As a coda to signing the order, President Trump announced one possible deal:
The order, one of Mr. Trump's first acts after taking office, instructs the attorney general not to take any action to enforce the law so that his administration has "an opportunity to determine the appropriate course forward." The order is retroactive to Sunday.
As he signed the order, Mr. Trump told reporters that "the U.S. should be entitled to get half of TikTok" if a deal for the app is reached, without going into detail. He said he thought TikTok could be worth a trillion dollars.
The order could immediately face legal challenges, including over whether a president has the power to halt enforcement of a federal law. Companies subject to the law, which forbids providing services to Chinese-owned TikTok, may determine that the order does not provide a shield from legal liability.
Trump said: "If I do the deal for the United States, I think we should get half."
After Trump filed his brief, I wrote:
After nearly a decade, I think people still do not understand Trump. He doesn't play like everyone else does, and that is what infuriates people. When he says something that people deem outlandish, it is merely an opening bid, not the final offer. I think he views this case like he views just about everything else--as a deal to be made.
All his proceeding are going to plan.
President Trump's Executive Order About Exclusion and Removal of Aliens
The order would exclude and remove aliens who "bear hostile attitudes" to our "founding principles."
In immigration law, there are two broad categories of executive actions: exclusion and removal. The former policy prevents aliens from entering the country, and the latter policy removes aliens already in the country. As a general matter, aliens in the United States benefit from a host of constitutional, statutory, and treaty-based protections, reinforced by robust judicial review. But aliens seeking entry stand in a different position. They generally lack any constitutional rights and can only apply for admission through fairly intricate statutory or treaty-based processes. And a denial of a visa is generally subject to a doctrine of consular non-reviewability. In practice, an alien can't sue the federal government if a visa is denied.
Still, American citizens and other organizations can sponsor, or seek the admission of certain aliens. Indeed, the courts have held that when the government denies entry to an alien, that denial can violate the First Amendment rights of U.S. Citizens. This doctrine stems from the case of Kleindienst v. Mandel (1972). American professors were allowed to challenge the denial of entry of a Marxist professor from Belgium, on the ground that the professors wanted to hear the professor's message. I've long thought Mandel was wrongly decided. The professors should have no basis to challenge the denial of entry of an alien based on the professors' asserted First Amendment interest. Indeed, with the age of Zoom, the notion that the United States has to admit a professor to talk to college students does not fly.
Four decades later, a fractured Court in Kerry v. Din (2015) held that an American citizen has some due process interest to ensure a family member can seek entry to the United States. I do not think Justice Kennedy's plurality opinion in that case stands for much anymore. More recently, Trump v. Hawaii (2018) broadly read the President's power to exclude aliens. And, despite unified Democratic government, Congress did not actually modify that statutory authority. It should be no surprise, then, that President Trump seeks to use this authority.
One of President Trump's new orders provides some broader parameters over who will be admitted--but it also speaks to the types of aliens in the United States who will be removed.
The policy provides:
And the United States must ensure that admitted aliens and aliens otherwise already present in the United States do not bear hostile attitudes toward its citizens, culture, government, institutions, or founding principles, and do not advocate for, aid, or support designated foreign terrorists and other threats to our national security.
I'm sure immigration groups will seize upon this standard as a violation of the First Amendment. Again, Aliens inside the United States have some First Amendment rights. Although, under Bluman v. FEC (2012), they do not have full rights to support political campaigns. And the courts are divided about whether aliens have Second Amendment rights.
The order also seeks to remove aliens who have hostile attitudes to the American government:
(c) Whenever information is identified that would support the exclusion or removal of any alien described in subsection 2(b), the Secretary of Homeland Security shall take immediate steps to exclude or remove that alien unless she determines that doing so would inhibit a significant pending investigation or prosecution of the alien for a serious criminal offense or would be contrary to the national security interests of the United States.
Again, aliens in the United States, even if here unlawfully, can assert First Amendment rights.
Section 1182(f) provides that the President can deny entry to "any class of aliens into the United States would be detrimental to the interests of the United States." The statute does not define what "detrimental" means. Generally, that term has concerned some national security interest. But Trump would go further:
(c) Evaluate all visa programs to ensure that they are not used by foreign nation-states or other hostile actors to harm the security, economic, political, cultural, or other national interests of the United States.
What does it mean for an alien to harm the "cultural" interests of the United States?
Moreover, entry is denied to people who have undermined "fundamental constitutional rights" including free speech and freedom of religion.
(d) Recommend any actions necessary to protect the American people from the actions of foreign nationals who have undermined or seek to undermine the fundamental constitutional rights of the American people, including, but not limited to, our Citizens' rights to freedom of speech and the free exercise of religion protected by the First Amendment, who preach or call for sectarian violence, the overthrow or replacement of the culture on which our constitutional Republic stands, or who provide aid, advocacy, or support for foreign terrorists;
If I'm reading this right, certain students who participated in anti-Israel protests will be denied visas. Universities were prudent to encourage their students to return to the United States before January 20. But their visas may not be renewed.
Finally, the order calls for a policy of "proper assimilation."
(f) Evaluate the adequacy of programs designed to ensure the proper assimilation of lawful immigrants into the United States, and recommend any additional measures to be taken that promote a unified American identity and attachment to the Constitution, laws, and founding principles of the United States; and
There are no specifics here.
FBI Director Nominee Kash Patel Loses Libel Appeal Against CNN
An excerpt from today's Virginia Court of Appeals decision in Patel v. CNN, Inc., decided by Judge Rosemarie Annunziata, joined by Judge Vernida Chaney (the opinions weigh in at over 12,000 words, so I only excerpt some key passages):
Generally, Patel alleged in an amended complaint that CNN defamed him by reporting that the House Permanent Select Committee on Intelligence (Intelligence Committee) had uncovered evidence that "connected" him to President Trump's efforts to (1) spread conspiracy theories about then-Vice President Joseph R. Biden, Jr. and (2) coerce Ukraine into announcing an investigation into Vice President Biden and his son, Hunter Biden….
It is undisputed that Patel is a public official and the challenged statements involve a media company's reporting on a widely publicized political issue. Thus, for Patel's claims to survive demurrer, he was obliged to allege facts with "sufficient definiteness to enable" the conclusion that CNN published the challenged statements with actual malice [i.e., knowledge that the statements were false or likely false -EV]. Yet his amended complaint was comprised of unspecified conclusions, contradicted by the attached documents, and did not otherwise allege specific instances of conduct "sufficient … to enable [a] court to find the existence of a legal basis for its judgment." …
Patel argues that the "aggregate" of his allegations demonstrated that CNN published the challenged statements "with knowledge that they were false or with reckless disregard for whether they were false." He alleged that CNN "harbored extreme professional and personal animus, bias, spite and ill will" toward him, and published the statements to "sensationalize the 'news,'" "profit from … its false statements," and "insult" him.
He maintains that CNN's "agents" were "present during the House impeachment inquiry" and had read the Ukraine Report, so CNN "knew" that no "evidence" was actually "'uncovered' connecting [him] to" conspiracy theories or "any 'diplomatic back channel led by … Giuliani.'" Consequently, he alleged, CNN "manufactured" the challenged statements "out of whole cloth." In doing so, CNN "abandoned all journalistic integrity," "violated its own code of ethics," and "ignored its own prior reporting and reliable information that contradicted" the challenged statements. Indeed, Patel alleged that CNN "purposefully avoided … the truth" by publishing the challenged statements despite knowing that he had denied the allegations….
[U]nder the actual malice standard, a public official must plead with sufficient definiteness, even for media companies that harbor ill will and ordinary malice, that specific persons within those companies who were responsible for the challenged statements knew the statements were false or had "a high degree of subjective awareness of their probable falsity." Yet Patel's allegations do not enable such a conclusion because they do not sufficiently "bring home" the actual malice standard to a person or persons at CNN responsible for publishing the challenged statements.
Free Speech and Private Power: Uncertainty About Disclosure Rules
[I am serializing my short Harvard Law Review Forum essay titled "Free Speech and Private Power", responding to the Harvard Law Review's publication of Evelyn Douek & Genevieve Lakier's excellent new article, Lochner.com? I actually agree with much of what Douek & Lakier say, but offer a somewhat different perspective on the matter, mostly asking what the Court's recent cases mean going forward, rather than trying to critique them.]
Sometimes, private power can be constrained by transparency requirements rather than outright hosting mandates. The Moody Court suggested that such requirements, as applied to social media moderation policies and decisions, must be judged under Zauderer v. Office of Disciplinary Counsel, a case that dealt with compelled disclosures in lawyer advertising. In this regard, the Court echoed the Fifth Circuit's decision in NetChoice, LLC v. Paxton, which said that the "control[ ling]" Zauderer precedent "established that States may require commercial enterprises to disclose 'purely factual and uncontroversial information' about their services."
Yet the quoted material in Zauderer comes from a sentence that relies on the disclosure being within "commercial advertising"—and the Moody disclosure rules weren't limited to compelling disclosures in social media platform ads, or even more broadly compelling disclosures as part of commercial transactions that the platforms entered into with their users. They would apply even in the typical relationship between social media platforms and users, where no money changes hands.
