The Volokh Conspiracy

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

Once in a while there is a court ruling on the Fourth Amendment that just makes my jaw drop. The Fifth Circuit had such a ruling last Friday, United States v. Jamarr Smith. The case creates a split with the Fourth Circuit on one important issue, and it creates another split with the Colorado Supreme Court on an even more important issue.

The new case is about the Fourth Amendment limits of geofence warrants, which are warrants to access location information for users who have opted into having Internet providers retain location history. The Fifth Circuit makes two important holdings. First, accessing any amount of geofence records is a search under an expansive reading of Carpenter v. United States. That's the issue that creates the split with the Fourth Circuit in United States v. Chatrie. As I noted just a few weeks ago, Chatrie held that accessing such records is not a search in the first place, at least if the records sought are relatively limited in scale. The Fifth Circuit expressly disagrees.

Second, and much more dramatically, the Fifth Circuit rules that because the database of geofence records is so large, and because the whole database must be scanned through to find matches, the Fourth Amendment does not allow courts to issue warrants to collect those records. In legal terms, it is impossible to have a warrant particular enough to authorize the surveillance. The government can't gather these kinds of online records at all, in other words, even with a warrant based on probable cause. This holding conflicts with a recent ruling of the Colorado Supreme Court, People v. Seymour, and more broadly raises questions of whether any digital warrants for online contents are constitutional.

There's obviously a lot going on in this new decision. Because I have blogged about the search issue several times before, including just last month, I want to focus this post instead on the second ruling—that geofence warrants are not permitted, even with probable cause. I think this ruling is wrong, and that it's very important for it to be overturned. This post explains why.

I. The Legal Context

First, some context. When the government obtains a geofence warrant, the provider is ordered to provide data matching the geofence. The warrant will call for the provider to hand over records made in a particular window of time and that recorded locations in a particular physical area. The provider has a database consisting of location records of the accounts that opted into the service, and the provider—here, Google—searches through the database looking for a match with the records sought in the warrant. Google calls this "Step 1" of its geofence warrant process. If Google finds matches, it then goes through further steps that ultimately gives the government records that are responsive to the warrant.

Warrants have to be particular, and particularity requires two things. First, the place to be searched must be particular. For example, the government can't get a warrant to search an entire city block, or to search the entirety of an apartment building with lots of independent units. The place that is searched through has to be smaller than that, like a single business or (more often) a single house. Second, particularity requires a particular description of the thing to be seized. The government can only take the evidence or contraband that is evidence of the crime.

Most discussions of particularity are about the particularity of the things to be seized. Prior discussions of particularity for geofence warrants have focused on that. The issue has been, how broad can the warrant can be in terms of how much time and space the warrant can cover? A geofence warrant orders the provider to hand over records that were of users in a particular area for a particular span of time. A warrant might cover, say, within a mile of where the crime occurred, for, say, the 30 minutes before the crime occurred and up to 30 minutes after it. But that kind of particularity is about how broad the records can be that the government gets.

The issue in Smith is about the first kind of particularity—the place to be searched.

II. The Warrant Ruling

Smith rules that the database that Google has created, through which Google looks for matches with the data described in the warrant, is just too big to search. Google combines all of its location records from all of its users worldwide into a single database, covering an estimated 592 million people, that it calls Sensorvault. When Google queries that Sensorvault database, the Fifth Circuit holds, it is scanning through a "place" too big for the Fourth Amendment to allow.

Here's the entirety of the court's above-the-line analysis on this issue, with italics in the main text in the original:

When law enforcement submits a geofence warrant to Google, Step 1 forces the company to search through its entire database to provide a new dataset that is derived from its entire Sensorvault. In other words, law enforcement cannot obtain its requested location data unless Google searches through the entirety of its Sensorvault—all 592 million individual accounts— for all of their locations at a given point in time. Moreover, this search is occurring while law enforcement officials have no idea who they are looking for, or whether the search will even turn up a result. Indeed, the quintessential problem with these warrants is that they never include a specific user to be identified, only a temporal and geographic location where any given user may turn up post-search. That is constitutionally insufficient.

Geofence warrants present the exact sort of "general, exploratory rummaging" that the Fourth Amendment was designed to prevent. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); see also Riley, 573 U.S. at 403; Geofence Warrants and the Fourth Amendment, [Kerr note: A student note cited 10 times in the opinion] supra at 2519. In fact, Google Maps creator Brian McClendon has called these warrants "fishing expedition[s]," and explained that Google employees originally assumed law enforcement would only seek Location History data on specific people—a reality that did not come true. Jennifer Valentino-DeVries, Tracking Phones, Google Is a Dragnet for the Police, N.Y. Times (Apr. 13, 2019), https://perma.cc/NCF3-H5DP. "Awareness that the government may be watching chills associational and expressive freedoms." Jones, 565 U.S. at 416 (Sotomayor, J., concurring.). And, when these core rights are at issue, the warrant requirement must "be accorded the most scrupulous exactitude." See Stanford, 379 U.S. at 485.

Here, the Government contends that geofence warrants are not general warrants because they are "limited to specified information directly tied to a particular [crime] at a particular place and time." This argument misses the mark. While the results of a geofence warrant may be narrowly tailored, the search itself is not. A general warrant cannot be saved simply by arguing that, after the search has been performed, the information received was narrowly tailored to the crime being investigated. These geofence warrants fail at Step 1—they allow law enforcement to rummage through troves of location data from hundreds of millions of Google users without any description of the particular suspect or suspects to be found.

In sum, geofence warrants are "[e]mblematic of general warrants" and are "highly suspect per se." Geofence Warrants and the Fourth Amendment, supra at 2520; Amster & Diehl, Against Geofences, [Kerr note: A student note cited 13 times in the opinion] supra at 433– 34; Chad Marlow & Jennifer Stisa Granick, Celebrating an Important Victory in the Ongoing Fight Against Reverse Warrants, ACLU (Jan. 29, 2024), https://perma.cc/SC2R-S7PJ ("The constitutionality of reverse warrants is highly suspect because, like general warrants that are prohibited by the Fourth Amendment, they permit searches of vast quantities of private, personal information without identifying any particular criminal suspects or demonstrating probable cause to believe evidence will be located in the corporate databases they search."); Chatrie (App.), 107 F.4th at 353 (Wynn, J., dissenting) ("[A] [geofence] warrant is uncomfortably akin to the sort of 'reviled' general warrants used by English authorities that the Framers intended the Fourth Amendment to forbid.").

This court "cannot forgive the requirements of the Fourth Amendment in the name of law enforcement." Berger v. New York, 388 U.S. 41, 62 (1967). Accordingly, we hold that geofence warrants are general warrants categorically prohibited by the Fourth Amendment.

The court does go on to say the good-faith exception applies here and so there is no suppression, but that particular ruling is tiny potatoes. It's the warrant ruling that is the serious biggie here.

III. My Take On Why The Warrant Ruling Is Wrong

I think the Fifth Circuit's warrant ruling is wrong— and not just wrong, but basically bananas. Here are three reasons why, together with an explanation of why the stakes of the case are so high.

First, the ruling conflicts with the Supreme Court's precedents on warrant particularity. The Fifth Circuit's decision relies heavily on two law student notes. It quotes an ACLU blog post. It also quotes a Wall Street Journal article. But it doesn't even mention the Supreme Court's relevant caselaw on warrant particularity. And that authority, it seems to me, conflicts with the Fifth Circuit's ruling.

An especially relevant case is United States v. Karo, which considered the Fourth Amendment implications of installing and monitoring a location tracker in physical space. The Supreme Court had previously ruled that no search occurred when the tracker recorded beeper locations while the beeper was out on public roads. Karo ruled that a search did occur when the tracker was brought inside a home and registered locations inside.

The relevant part of Karo is the Court's reply to an argument the government made about warrant particularity. No warrant was needed to use a tracker, the United States argued, because it wasn't possible to draft a particular warrant. After all, the whole point of using the beeper is to find the location of the item that the suspect has, and thus to locate the suspect. If you don't know where the beeper is, then you can't specifically describe the place to be searched. And if you can't specifically describe a place to be searched, you can't get a warrant. Thus, the surveillance should be allowed without a warrant, the government reasoned.

The Supreme Court responded by rejecting the premise and explaining how to draft a warrant in such cases to match the Fourth Amendment particularity standard:

It will still be possible to describe the object into which the beeper is to be placed, the circumstances that led agents to wish to install the beeper, and the length of time for which beeper surveillance is requested. In our view, this information will suffice to permit issuance of a warrant authorizing beeper installation and surveillance.

It seems to me that this controls Smith, too. The warrant problem in Karo was a lot like the problem in geofence warrant cases. The "place to be searched" is basically everywhere. The search would occur wherever the beeper happened to go. But instead of saying that no warrant could be obtained, the Supreme Court in Karo articulated a way to draft warrants to allow the surveillance. The place to be searched was the object into which the beeper is to be placed, with the particularity being provided by the length of time for which beeper surveillance is requested.

I personally don't think geofencing is a search in the first place, as I have argued before. But if we are to say that geofencing is a search, it seems to me that the approach from Karo should govern here. Following Karo, the particularity should be provided by a description of the database into which the query is made, combined with the length of time (and amount of geographic space) the warrant covers. We can argue about how long a period is permissible, and how big a geographic space is permissible. But the idea that there is a cap on the size of the database seems hard to square with Karo.

Unfortunately the Fifth Circuit doesn't discuss Karo, so we don't know what the panel's response to it might be.

Second, the warrant ruling seems hard to square with Carpenter v. United States. The notion that warrants cannot be obtained to search through particularly large databases also strikes me as hard to square with the Supreme Court's ruling in Carpenter, the case on which the Fifth Circuit's own search ruling is based.

Carpenter made two important rulings. First, the Court ruled that access to at least long-term cell-site location information (CSLI) is a search. Carpenter then took on a second issue: Does the government need a warrant to compel CSLI, or can it be compelled with just a subpoena? The Court ruled that a warrant was required: Read More

Sauron - an example of a greater evil you can vote for a lesser evil to avoid. (NA)

We are in the midst of another election cycle. And I'm far from the only person who thinks the available options are far from great. This situation, like other recent elections, raises difficult questions about such issues as whether people have a duty to vote, whether it is permissible to vote for a badly flawed candidate if the alternative is even worse, and how to balance competing issues in making voting decisions.

I've written about these kinds of issues in some detail, previously, and this post links and and summarizes some of those writings. It is not a post about which 2024 presidential candidate is best (or least bad), though I will likely write about that on a later occasion. It's about how we should make such decisions. Unless otherwise noted, these pieces were all published right here at the VC blog:

1. "The Logic of Voting for a Lesser Evil"

This post was inspired by the 2016 election, but almost all of it remains relevant today. In it, I explain why it is both permissible and desirable to vote for the lesser evil in an election where all of the viable options are bad. I address a variety of counterarguments, including claims that voting for a lesser evil makes you morally complicit in that candidate's wrongdoing, arguments that it's better to cast a "protest vote" for a candidate that has no chance of winning, arguments based on the very low probability that your vote will be decisive, and more. Here's a brief excerpt:

Imagine an election where the only options are Queen Cersei from Game of Thrones, and Sauron, the Dark Lord from Tolkien's Lord of the Rings. If Cersei wins, she will kill many innocent people, and oppress others. But she will leave much of the population more or less alone (as long as they don't openly oppose her or threaten her family in any way). If Sauron wins, he will kill far more innocent people, and make the survivors his slaves.

You can instead cast a protest vote for a vastly better alternative, such as Gandalf….. But, by assumption, these are purely symbolic options, because they have zero chance of prevailing. If the protest voter would otherwise have backed Cersei, the net effect of his decision to protest is to increase the likelihood of the worst possible outcome: the triumph of Sauron.

Under those circumstances, it seems clear that a person who ensures a Cersei victory has done a good deed. He or she will have saved large numbers of people from slavery or death, even though the Cersei regime would be a deeply unjust one.

The Cersei-Sauron hypothetical was obviously inspired by the contest between Trump and Hillary Clinton, and is an exaggerated version of that tradeoff. But I think it works for Trump v. Harris - and many other elections - as well.

Notice how my logic is different from that of those who say you can only vote for a candidate if he or she meets some minimal threshold of character or good policy. On my approach, it is morally justifiable to vote for almost any candidate - even a cruel despot like Cersei - so long as the only feasible alternatives are even worse.

Canadian columnist John Robson responded to my piece in the National Post, and I, in turn, posted a rejoinder.

2. "Justifying a Moral Duty to Vote is a Lot Harder than You Might Think."

Many people, including some political theorists, believe we have a moral duty to vote. I disagree. Indeed, I think - in many cases - it's better if you don't vote, especially if ignorance and bias make it likely you will make a bad decision. Casting a ballot motivated by ignorance and bias is often worse than not voting at all.

3."Is there a Moral Duty to Vote in an Election Where the Stakes are Unusually High?"

Even if there is no general duty to vote, perhaps we are morally required to do so in situations where the stakes of an election are unusually high. In this post, I explain why I disagree - at least with respect to most voters. There is, however, a limited kernel of truth in this argument. An excerpt:

There is a kernel of truth to the claim that you have a duty to vote if the stakes are high enough. But the resulting moral duty applies far less often than advocates of the argument tend to assume. And the same reasoning actually implies many people have a moral duty not to vote.

Let's start with the kernel of truth. Imagine there's an election for a powerful political office that pits Gandalf (the benevolent wizard in J.R.R. Tolkien's Lord of the Rings) against Sauron, the despotic dark lord from the same story. If Sauron prevails, millions of people will die or be enslaved, while Gandalf would rule justly if he manages to win. And all you have to do to ensure Gandalf's victory is check his name on a ballot. If you do so, Gandalf wins; if not, Sauron does.

In this scenario, it seems like you have a moral duty to vote for Gandalf, at least barring some kind of extraordinary exigent circumstance. In a real election, of course, the odds that your vote will make a difference are far smaller than in this stylized example….

However, a large enough difference between the two candidates could potentially justify a duty to vote for the "right" candidate, even if the odds of casting a decisive ballot are very low….

But notice that the duty in question is not an obligation to participate in the process for its own sake. It's a duty to help good triumph over evil in a situation where you can do so at little or no cost. If you have a moral duty to vote for Gandalf in these types of scenarios, it follows that you also have a moral duty not to vote for Sauron. Indeed, the person who votes for Sauron is more worthy of condemnation than the one who merely abstains. The former is actively helping evil win, while the latter "merely" chooses not to help stop it.

While Gandalf supporters may have a duty to vote, Sauron supporters actually have a duty to abstain from doing so. Ideally, they should stop supporting Sauron entirely. But they at least should not take any actions that increase the likelihood of his victory.

All of the above analysis assumes that the voter knows which candidate is superior and to what degree. But, in reality, we have widespread political ignorance, and most voters often don't even know very basic facts about how government and politics work. Most are also highly biased in their evaluation of the information they do know….

Unless and until a voter becomes well-informed about the issues and at least reasonably objective in his or her evaluation of political information, she has good reason to question her judgment about which candidate is superior, much less by how much. Thus, she cannot conclude she has a duty to vote to help the "right" side win. She may instead have a presumptive duty to abstain from voting until she meets at least some minimal threshold of political knowledge….

Later in this piece, I note some possible exceptions to situations to the presumptive duty to abstain; there are unusual situations where ignorant voting really is better than no voting, and even unusual situations where ignorance leads to better decisions than knowledge (I expand on the latter possibility in greater detail in Chapter 2 of my book Democracy and Political Ignorance). I also address some other caveats and counterarguments.

4. "How to be a Better Voter"

Some steps you can take to be a better voter, building on a helpful article in Scientific American. I think a wide range of people can do these things. You don't have to be an academic or policy expert to undertake the task. But I am skeptical that more than a small fraction of the electorate will ever be willing to put in the time and effort.

5. "Suffer the Little Children to Vote"

In this post, I make a tentative argument for letting children vote, so long as they show they have attained a level of political knowledge as high as that of the average adult voter -which is not that high a standard! I expanded on the idea here. I do note the crucial caveat that it may not be feasible to do this, because it's possible government can't be trusted to come up with an objective knowledge test for the children (though we do in fact impose such a test on immigrants seeking to become US citizens). Letting knowledgeable children vote is one of my least popular ideas (which is saying no little, given how many other unpopular views I hold!). But I remain unrepentant about it. My nine-year-old daughter is one of the relatively few fans of this policy.

My proposal should be differentiated from the idea of letting parents cast votes on behalf of their children, endorsed by Republican VP candidate J.D. Vance, among others.

6. "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance," in Hana Samaržija and Quassim Cassam, eds. The Epistemology of Democracy (Routledge, 2023).

Many of the most serious flaws of voting arise from the fact that most voters tend to be ignorant about government public policy, and highly biased in their evaluation of the political information they do know. In this article, I go over a range of possible strategies for mitigating this problem. Here's the abstract:

There is broad, though not universal, agreement that widespread voter ignorance and irrational evaluation of evidence are serious threats to democracy. But there is deep disagreement over strategies for mitigating the danger. "Top-down" approaches, such as epistocracy and lodging more authority in the hands of experts, seek to mitigate ignorance by concentrating more political power in the hands of the more knowledgeable segments of the population. By contrast, "bottom-up" approaches seek to either raise the political competence of the general public or empower ordinary people in ways that give them better incentives to make good decisions than conventional ballot-box voting does. Examples of bottom-up strategies include increasing voter knowledge through education, various "sortition" proposals, and also shifting more decisions to institutions where citizens can "vote with their feet."

This chapter surveys and critiques a range of both top-down and bottom-up strategies. I conclude that top-down strategies have systematic flaws that severely limit their potential. While they should not be categorically rejected, we should be wary of adopting them on a large scale. Bottom-up strategies have significant limitations of their own. But expanding foot voting opportunities holds more promise than any other currently available option. The idea of paying voters to increase their knowledge also deserves serious consideration.

I expand upon the foot-voting approach to mitigating political ignorance in more detail in my book Free to Move: Foot Voting, Migration, and Political Freedom. Sadly, neither this strategy for dealing with political ignorance nor any other is likely to be enacted in time for this year's election! Any serious reform effort will probably take at least some years to have a significant impact.

7. "Setting Issue Priorities"

How to decide which issues to prioritize over others. Not solely about voting. But relevant to voting decisions.

8. "If You Don't Vote, You Still Have Every Right to Complain."

Feeling down after considering the above? This piece might make you slightly happier; even if you don't vote, you are justified in criticizing the policies of the winners! I would add that the same logic shows that, if you vote for the winner on the grounds that she is a lesser evil, you are still justified in complaining about her policies. Vote for Cersei over Sauron, when necessary. But then condemn the evil she does. Just make sure not to be at the wrong place at the wrong time when she decides to purge her critics.

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Law students around the country will be starting classes over the next few weeks. Back in 2018, I wrote a post offering advice to entering students, which I updated in 2019, 2022, and last year. I tried to focus on points that I rarely, if ever, see made in other pieces of this type. I think all three of my original suggestions remain just as relevant today. So I reprint my advice from earlier posts largely unaltered, with the addition of some modest editing and updating:

1. Think carefully about what kind of law you want to practice.

Law is a profession with relatively high income and social status. Yet studies repeatedly show that many lawyers are deeply unhappy, a higher percentage than in most other professions. One reason for this is that many of them hate the work they do. It doesn't necessarily have to be that way. There are lots of different types of legal careers out there, and it's likely that one of them will be a good fit for you. A person who would be miserable working for a large "Biglaw" firm might be happy as a public interest lawyer or a family law practitioner, and so on. But to take advantage of this diversity, you need to start considering what type of legal career best fits your needs and interests.

There are many ways to find out about potential options. But one place to start is to talk to the career services office at your school, which should have information about a range of possibilities. Many also often have databases of alumni working in various types of legal careers. Talking to these people can give you a sense of what life as a practitioner in Field X is really like.

This advice applies not just to what you do in school, narrowly defined, but what you do in the summer, as well. Law students typically get summer jobs at firms or other potential future employers. Apply widely, and look for organizations that might be good employers, or at least introduce you to areas of law that might be crucial for your future career.

The summer clerk job I took at the Institute for Justice after my first year in law school, was a key step towards becoming a property scholar, and helped lead me to write two books and numerous articles about takings. Spending a summer at a public interest firm might change your life, too!

Regardless, don't just "go with the flow" in terms of choosing what kind of legal career you want to pursue. The jobs that many of your classmates want may be terrible for you (and vice versa). Keep in mind, also, that you likely have a wider range of options now than you will in five or ten years, when it may be much harder to switch to a very different field from the one you have been working in since graduation.

2. Get to know as many of your classmates and professors as you reasonably can.

Law is a "people" business. Connections are extremely important. No matter how brilliant a legal thinker you may be, it's hard to get ahead as a lawyer purely by working alone at your desk - even with the help of AI and other modern tech. Many of your law school classmates could turn out to be useful connections down the road. This is obviously true at big-name national schools whose alumni routinely become judges, powerful government officials, and partners at major firms. But it's also true at schools whose reputation is more regional or local in nature. If you plan to make a career in that area yourself, many of your classmates could turn out to be useful contacts.

The same holds true for professors, many of whom have extensive connections in their respective fields. They are sometimes harder to get to know than students. But the effort is often worth it, anyway. And many of them are actually more than eager to talk about their work.

This is one front on which I didn't do very well when I was in law school, myself. Nonetheless, I still suggest you do as I say, not as I actually did. You will be better off if you learn from my mistakes than if you repeat them.

3. Think about whether what you plan to do is right and just.

Law presents more serious moral dilemmas than many other professions. What lawyers do can often cost innocent people their liberty, their property, or even their lives. It can also save all three. Lawyers have played key roles in almost every major advance for liberty and justice in American history, including the establishment of the Constitution, the antislavery movement, the civil rights movement and many others. But they have also been among the major perpetrators of most of the great injustices in our history, as well.

Robert Cover's classic book Justice Accused - a work that made a big impression on me when I was a law student - describes how some of the greatest judges and legal minds of antebellum America became complicit in the perpetuation of slavery. While we have made great progress since that time, the legal system is not as far removed from the days of the Fugitive Slave Acts as we might like to think. There are still grave injustices in the system, and lawyers whose work has the effect of perpetuating and exacerbating them. We even still have lawyers who do such things as come up with dubious rationales for deporting literal escaped slaves back to places where they are likely to face further oppression.

Law school is the right time to start working to ensure that the career you pursue is at least morally defensible. You don't necessarily have a moral obligation to devote your career to doing good. But you should at least avoid exacerbating evil. And it's easier to do that if you think carefully about the issues involved now (when you still have a wide range of options), than if you wait until you are already enmeshed in a job that involves perpetrating injustice. At that point, it may be too late - both for you and (more importantly) for the people harmed.

4. Legal knowledge isn't as different from other kinds of knowledge as you might think.

Students often ask me how best to study for law school classes. My answer is that there isn't one way that's best for everyone. You probably know what works for you far better than I do.

In law school, you are likely to be bombarded with all sorts of complex methods of studying and outlining cases. Advocates of each will often tell you theirs is the One True Path to law school success. Some students really do find these methods useful.

But I would urge you to consider the possibility that you can study for law school classes by using…. much the same methods as you used to study other subjects in the past. If you were successful in social science and humanities classes as an undergraduate, the methods that worked there are likely to carry over.

I know because that's largely what I did as a law student myself. I did the reading, identified key points, and didn't bother with complicated outlines or spend money on study guides. If I did badly in a class, it wasn't for lack of more complex study methods (usually, I either got lazy or just had a bad day on the final exam). And I've seen plenty of other people succeed with similar approaches. You can save a lot of time and aggravation (and some money) that way. And that time, energy, and money can be better devoted to other purposes - including advancing your studies and your career in other ways!

Ultimately, when reading a legal decision (or any assignment), you need to 1) identify the key issues, and 2) understand why they are important. With rare exceptions, the case in question was likely included in the reading because it highlights some rule, standard, or issue that has a broader significance. If you know what that is and why it matters, much of your work is done. The same goes for most other kinds of assigned reading: they are probably there because the professor thinks they elucidate some broadly important point. Figure out what it is, and you will be in good shape.

The experience of the Covid-19 pandemic has highlighted the importance of Point 2. The loss of much in-person contact was a serious problem, one we would do well to avoid repeating.

I don't think I need to dwell on how the events of the last few years have reinforced the significance of Point 3. Suffice to say there are many recent examples of lawyers facilitating both good and evil. Even if you don't maximize the former, you should at least avoid contributing to the latter.

From the always thoughtful and readable Jonathan Rauch, in Persuasion; some excerpts, though the whole thing is much worth reading:

Never in my lifetime have critiques of Locke, Smith, Mill, the British Enlightenment, and the American founding emanated from so many different quarters, attacked from so many directions, and sounded so scathing and confident. The liberal tradition has been undone by its amorality (says the right) and its injustice (says the left); it has, they charge, made society unfair, politics narcissistic, and truth meaningless.

Above all, they charge, liberalism has lost the confidence of the public—and of liberals….

[Yet] no viable system has emerged that can come close to replicating liberalism's capacity to produce knowledge, prosperity, freedom, and peace. In fact, both on its own terms and compared with all the historic alternatives, liberalism has delivered spectacular results. It is the greatest social technology ever invented, and well ahead of whatever comes second.

This paradoxical situation has me scratching my head, and I'm not alone. Why is liberalism so widely challenged and attacked, and so defensive and self-doubting, when it has so much to brag about? Increasingly, I have come to think we must look for an answer not just in liberalism's failures—though there certainly are some—but in liberals' failure of nerve….

Classical liberalism

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Looks like an excellent project, and with top editors:

Launching JLEA
Journal of Law and Empirical Analysis

The Journal of Law and Empirical Analysis solicits papers that offer empirical evidence on questions of importance for the law. In addition to rigorous work permitting causal inference, it is open to qualitative research, intriguing correlations, registered reports, and methods papers.

JLEA provides a forum for interdisciplinarity and encourages contributions from lawyers, economists, political scientists, sociologists, criminologists, psychologists, computer scientists, and any other social or natural science.

The editors aim to provide the fastest responses possible consistent with peer review. In particular, our goal is to provide an initial decision in 6-8 weeks. Accepted articles will be published continuously as soon as they are ready.

The journal is completely open access, and there are no publication or article processing fees.

The first issue is available at https://journals.sagepub.com/home/LEX.

The editors in chief are:

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From U.S. v. Truitt, decided earlier this month by the U.S. Coast Guard Court of Criminal Appeals, in an opinion by Judge Kurt Brubaker, joined by Chief Judge Lane McClelland and Judge Herbert Claiborne Pell:

In this case, we examine the boundaries of the Coast Guard's punitive order prohibiting sexual harassment. Appellant was the leading petty officer of Coast Guard Sector San Francisco's machinery technician shop. She was in a locker room with Machinery Technician Second Class (MK2) TC, who had recently joined the shop. The two were alone, chatting as they changed clothes. While talking about people within the shop, Appellant referred to Seaman (SN) SA, a junior enlisted member of the shop, as "[a] sector slut." MK2 TC testified she found the comment offensive and was "shocked," but said nothing until, about three weeks later, she relayed the comment to SN SA.

During a meeting with junior enlisted members of the shop, Appellant asked whether they felt they could trust her. SN SA said she did not because she heard what Appellant had called her. After the meeting, Appellant said, "You know I didn't mean it. You're like a little sister to me." …

A military judge, sitting as a special court-martial, convicted Appellant of … violating ALCOAST Commandant's Notice (ACN) 003/20, dated 7 January 2020, by sexually harassing SN SA. [Discussion of other charges, related to unrelated misconduct, omitted. -EV] …

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From Fifth Circuit Chief Judge Priscilla Richman's June 24 opinion, which was affirmed earlier this month by an Appellate Review Panel of the Judicial Council for the Fifth Circuit (in an order signed by Judge Jennifer Elrod):

Complainant, a state prisoner, has filed a complaint against a United States Circuit Judge and seven United States District Judges.

The subject judges [together with] {judges from other circuits and districts} signed a letter addressed to the president of a university, criticizing the university for its asserted inaction with respect to protests following the Hamas attacks on Israel on October 7, 2023. In the letter, the judges state that on the university's campus "[d]isruptors have threatened violence, committed assaults, and destroyed property"; the university has become "an incubator of bigotry"; and "professors and administrators are on the front lines of the campus disruptions, encouraging the virulent spread of antisemitism and bigotry." The judges state that they have lost confidence in the university as an institution of higher education, and that they will not hire law clerks with undergraduate or law degrees from the university starting with the entering class of 2024.

The judges assert the university should impose "[s]erious consequences for students and faculty who have participated in campus disruptions and violated" university rules concerning use of facilities and public spaces and threats against fellow members of the university community. The letter further asserts that the university "should also identify students" who engage in "unlawfully trespassing on and occupying public spaces" so that "future employers can avoid hiring them." Otherwise, the letter concludes, "employers are forced to assume the risk anyone they hire from [the university] may be one of these disruptive and hateful students."

The letter suggests the university should provide "[n]eutrality and nondiscrimination in the protection of freedom of speech and the enforcement of rules of campus conduct," asserting that "[f]reedom of speech protects protest, not trespass, and certainly not acts or threats of violence or terrorism." The judges assert "[i]t has become clear that [the university] applies double standards when it comes to free speech and student misconduct" and charge the university with "favoring certain viewpoints over others based on their popularity and acceptance in certain circles." The judges express their view that "[s]ignificant and dramatic change in the composition of its faculty and administration is required to restore confidence in [the university]."

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American Muckrakers PAC, Inc. v. Boebert (D. Colo. June 9, 2024) (just recently posted on Westlaw) stemmed from the PAC and journalist David Wheeler making various allegations about Rep. Lauren Boebert. Rep. Boebert said they were all lies, threatened to sue Wheeler (which she did), and also "threatened donors to Plaintiff American Muckrakers PAC, Inc., in a … statement to the media," saying "Muckrakers' sloppy, reckless, and wildly irresponsible actions have created substantial legal liability for Muckrakers, David Wheeler in his personal capacity, and each donor to the organization who chose to fund the effort knowing it would result in defamation."

The PAC and Wheeler sued for various torts, including defamation (based on Boebert's claims that plaintiffs had been lying) and interference with contract and prospective advantage. Magistrate Judge Kathryn Starnella recommended that the defamation claims be dismissed under the Colorado anti-SLAPP statutes, on the grounds that plaintiffs hadn't introduced enough evidence that Boebert knew that her allegations of Wheeler's lying were false or likely false ("actual malice"); for more on that, see the opinion itself.

But the Magistrate Judge recommended that the tortious interference claim based on the threats of litigation against the donors be allowed to go forward, reasoning:

The … third, fourth, and fifth factors [of the interference tort, as set forth by the Restatement (Second) of Torts,] "require[ ] a balancing of the parties' conflicting interests to determine whether the interference was warranted under the particular circumstances[.]" Here, both Plaintiffs (and their donors/sponsors) and Defendant were engaged in First Amendment activity, so their interests are neutral. The social interests weigh in favor of Plaintiffs' contractual interests because Plaintiffs rely on donations to perform their work reporting on matters of public interest (and their donors/sponsors express themselves through monetary contributions), while Defendant enjoys a large platform by virtue of her elected office.

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8/12/1795: Chief Justice John Rutledge takes judicial oath.

Recently, a number of people on the right have endorsed Vice President Harris as the only way to save democracy. Relatedly, David French, says he is voting for Harris "to try to save conservatism." Not mentioned in French's essay is the Senator Schumer's nuclear bill, which would effectively overrule a decision by statute, and strip the Supreme Court of jurisdiction to review that law. French had asked Justice Gorsuch about Supreme Court "reform" during an interview, but the issue apparently did not move French. I suppose the only way to save democracy is to destroy the independence of the Supreme Court.

Perhaps if French came out and said we should elect Harris, but keep the Congress in Republican hands, that would forestall SCOTUS "reform," at least for a few years. But an endorsement of Harris, without opining on the state of Congress, all but ensures the filibuster is destroyed and jurisdiction striping and/or Court packing will pass. The American Bar Association recently endorsed a suite of "democracy" reforms, but as best as I can tell, has been silent on jurisdiction stripping. As Justice Thomas often repeats, we will come to regret crippling the last independent branch of government.

On that note, Harris spent about six years as Attorney General of California before becoming a Senator. By my count, she signed about fifty Supreme Court briefs--a mix of cert-stage briefs, merit-stage briefs, and amicus briefs. It is rare to have a presidential candidate with such a detailed record regarding constitutional law. I think it is useful to walk through these briefs to provide a sketch of how a President Harris would view the Constitution and the Court.

In a recent article in Law and History Review (paywall), Temple University historian Alan McPherson makes a bold claim. He identifies two fraught attitudes toward the rule of law: (1) "when the ends seem to justify the means officials could disregard statutes"; and (2) "statutes require no enforcement mechanisms because government officials should obey them out of patriotism." According to McPherson the first of these attitudes is "held mostly by conservatives and the second, mostly by liberals."

McPherson uses the lens of the Iran-Contra scandal to explore this claim, by he hardly limits himself to that example. What empirical evidence does he have for this claim? Social science research? Polling data? Nope. Just his subjective impressions based on his understanding of how Republican administrations have behaved versus Democratic administrations.

I laughed out loud when I got to his depiction of the Obama administration. "To be sure Democrats to were guilty…. The otherwise scandal free administration of Barack Obama dealt with enemy prisoners through illegal kidnapping and torture, and he ordered countless assassinations of foreigners withdrawn strikes – all crimes under US law."

This amused me for several reasons. First, the notion that the Obama administration was otherwise scandal-free is laughable. Some people have even written entire books about not just Obama administration scandals in general, but specifically how the administration was inclined to ignore the rule of law when "the ends seem to justify the means."

Second, during the Obama administration one heard over and over from the administration's defenders, almost all Democrats, that the Obama adminsitration was entitled to stretch or evade or ignore the law because Republicans were unfairly or unjustly or otherwise blocking his agenda. It's hard to believe that McPherson missed that.

Finally, the only instances in which McPherson acknowledges Obama administration rule breaking are things that the left objected to, one of which, drone strikes, was not at all clearly illegal. There are far clearer examples of the Obama administration violating the law (e.g.), many of which have been discussed on this very blog site.

Meanwhile, McPherson is certainly correct that the Trump administration was hardly meticulous in observing legal niceties. But the Biden administration has implemented and defended policies with no sound legal basis. The most famous examples are trying to forgive student loans without a sound statutory basis for doing so and trying to preserve the Covid-era ban on evictions with even less of a legal basis for it.

Okay, so a particular historian made a particularly poorly defended claim. My broader point is that one sees such claims routinely because the academy is such a political monoculture. Liberal historians outnumber conservatives by something like thirty to one. In a more politically balanced academy, as this article went through peer review one or more of the peer reviewers would likely have asked for much stronger evidence of McPherson's claims about attitudes toward the rule of law. But one is much less likely to challenge claims that appeals one's own prejudices, especially when the target is people whom one rarely meets in a professional setting.

8/11/1942: General John DeWitt, Commander of Western Defense Command, issues exclusion order. The Supreme Court held this order was constitutional in Korematsu v. United States.

From In the Matter of Isaiah D., decided last week by Justice Robert Hettleman of the New York Family Court (Kings County):

[The Administration for Children's Services (ACS)] has proven by a preponderance of the evidence that Ms. D.W. and Mr. W. neglected the [then-13-year-old] child Isaiah pursuant to FCA § 1012 in the following respects: (1) the parents used excessive corporal punishment on Isaiah on April 5, 2023; (2) the parents failed to allow the child to return to the family home after he was cleared for release from the hospital, and the parents failed to provide a meaningful or sufficient alternative plan; and (3) Ms. D.W. emotionally neglected the child by using anti-gay slurs in front of and towards the child, denigrating his lifestyle, and failing to sufficiently support him in the face of her disapproval.

Here's the emotional neglect analysis:

Emotional and/or verbal abuse can constitute neglect under the Family Court Act, where a respondent's actions place the child at imminent risk of emotional or mental harm. In such circumstances, contrary to the arguments of counsel, child welfare cases do not violate a parent's right to free speech under the First Amendment. Rather, the very nature of Article 10 cases involves a balance between a parent's fundamental right to parent their children as they see fit against the state's interest in protecting children from parenting that fails to meet a minimum standard of reasonableness.

In this case, Isaiah described that his relationship with his parents had deteriorated since he had identified himself as gay. He stated that his parents did not support that kind of lifestyle, that they had locked him out of the home in the past, and that Ms. D.W. had used a "gay slur" towards him during the incident on April 5. He also said his mother had a ritual performed on him involving candles, coconut, eggs, coffee and other items to rid him of being gay.

In court, Ms. D.W. acknowledged that she did "not believe in homosexuality," that the Bible "told her that," and that "god created male and female." When asked whether she ever used a "gay slur," Ms. D.W. responded that she regularly used the term "anti-man." She said this is a common term in her community, that she did not mean to use it in a derogatory way, and that she never used it towards Isaiah. On cross-examination by the AFC, however, she admitted that "the term comes up often," like when they saw things on social media or television, or even in conversations with her own mother. In addition, Ms. D.W. was evasive and inconsistent in her testimony about the role of Isaiah's sexuality in the family dynamic.

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On Wednesday, in Darby Development Co. v. United States, the US Court of Appeals for the Federal Circuit (which reviews takings claims against the federal government) ruled that a takings lawsuit against the 2020-21 federal eviction moratorium can proceed. In so doing, it overruled a trial court decision by the Court of Claims, which I criticized here. The Federal Circuit decision could well end up setting an important takings precedent.

In September 2020, during the Covid pandemic, the Trump Administration Centers for Disease Control (CDC) imposed a nationwide eviction moratorium, claiming that it would reduce the spread of the disease. The Biden Administration extended the moratorium multiple times. In August 2021, the eviction moratorium was invalidated by the Supreme Court because the CDC lacked proper statutory authority to institute it. But, in the meantime, numerous landlords suffered financial losses, because they could not evict tenants who weren't paying rent.

Some of the property owners filed a lawsuit arguing that the eviction moratorium violated the Takings Clause of the Fifth Amendment, which requires the government to pay "just compensation" whenever it takes private property. As I explained at the time, their position was backed by the Supreme Court's 2021 ruling in Cedar Point Nursery v. Hassid, which held that even temporary physical occupations of property qualify as "per se" (automatic) takings requiring compensation.

In May 2022, the US Court of Claims dismissed the takings lawsuit against the CDC moratorium on the perverse ground that there was no taking because the CDC's eviction moratorium was never properly "authorized." In other words, the government could escape takings liability because its actions were illegal! The recent Federal Circuit decision reversed that ruling.

As Judge Sharon Prost writes in her majority opinion for the court, an illegal seizure of property can nonetheless qualify as an "authorized" taking if it is "chargeable" to the government:

An action will normally be deemed authorized if it was done by government agents "within the general scope of their duties"—i.e., if it was "a natural consequence of congressionally approved measures" or "pursuant to the good faith implementation of a congressional act." Del-Rio, 146 F.3d at 1362 (cleaned up); see also Ramirez, 724 F.2d at 152 ("[O]n numerous occasions when the government agent was acting within the ordinary scope of responsibilities conferred on him by Congress, and took private property without express statutory authority or prohibition, the Tucker Act remedy was held to lie.")…..

To summarize: even if an action by a government agent is unlawful, it will likely be deemed authorized for takings claim purposes if it was done within the normal scope of the agent's duties—for example, if it was done "pursuant to the good faith implementation of a congressional act." Del- Rio, 146 F.3d at 1362 (cleaned up). If instead the action was outside the normal scope of the government agent's duties— or, despite being within that scope, it contravened an explicit prohibition or other positively expressed congressional intent—it will likely be deemed unauthorized. See id. at 1363; Ramirez, 724 F.2d at 151. The ultimate inquiry is whether the government agent's action is "chargeable to the government." Del-Rio, 146 F.3d at 1362.

The majority opinion engages in a long and detailed debate with Judge Dyk's dissent over the issue of whether the above approach is the best interpretation of relevant Supreme Court and Federal Circuit precedent. I won't try to assess that debate here.

To me, the decisive factor should be that the Takings Clause nowhere says that compensation is only required for legal government actions or for those specifically authorized by statute. Rather, the Clause imposes a general rule that compensation must be paid whenever the government takes private property for "public use." That, of course, can happen even without proper legislative authorization. I can understand if takings liability is nonetheless denied when rogue low-level officials seize property without any plausible justification. But that isn't what happened here. As the majority explains:

Finer legal points aside, the implications of the dissent and government's position illustrate its weakness. Taken to its logical conclusion, their position is that government agents can physically occupy private property for public use, resist for months the owner's legal attempts to make them leave, and then, when finally made to leave, say they need not pay for their stay because they had no business being there in the first place. It would be one thing for this to be the result when government agents are clearly acting apart from Congress's will; in such a case, requiring just compensation would encroach too much on Congress's power of the purse….. But there is no sound reason for such a result in a case like this, where (1) the government agent, after receiving a directive from the President, acted in good faith pursuant to a good-faith understanding of its congressionally conferred authority, (2) there was no explicit congressional prohibition foreclosing that understanding….. and (3) the government vehemently pressed that understanding in litigation so as to seriously impede the property owners' efforts to end the alleged occupation. Depriving property owners of a potential Fifth Amendment remedy in this case would deprive them of any meaningful remedy at all.

This strikes me as pretty obviously right. The CDC here was acting at the behest of two successive presidents of the United States, from different parties. And the federal government fought a months-long legal battle to prove that the policy was, in fact, properly authorized by legislation. They cannot now turn around and claim they don't owe takings compensation because they ultimately lost that fight. I expanded on this point in a bit more detail here.

Judge Dyk worries that the majority's rule would impose takings liability on the government in too many situations:

The majority's holding here would have significant consequences. It would effectively make even clearly unauthorized agency action authorized for purposes of takings liability unless that action was contrary to a specific prohibition of the authorizing statute or taken in bad faith.

That cannot be correct. The majority's decision would work a sea change in our takings jurisprudence and impose significant takings liability on agencies for unauthorized acts, directly discouraging adoption of legitimate government programs because of the risk of takings liability in addition to injunctive and declaratory relief. Historically, unauthorized programs were enjoined. Now, in addition there is the specter of takings liability.

I think the "specter of takings liability" is a feature, not a bug. If the government often engages in illegal seizures of property, then they should face "significant takings liability" for doing so. That might help deter such misconduct, or at least compensate victims, if it does not. If such misbehavior is relatively rare, then we need not worry about the ruling having "significant consequences." And if the program the government enacts really is "legitimate," then takings liability for "unauthorized acts" should not be a concern, because a legitimate program won't include much in the way of such unauthorized takings - if any.

The majority and dissent also dispute whether, in enacting the eviction moratorium, the CDC was acting within the scope of its "normal duties," a factor relevant to determining whether the taking was "authorized," under previous precedent. The dissent is right that the eviction moratorium was more sweeping than previous policies adopted under the statute the government claimed as authorization. But the majority has a fairly solid response:

[W]hen we say that the CDC issued the Order within the "normal scope" of its duties, we do not mean to suggest that the Order itself was normal. We readily agree it was not. But then again, neither was a burgeoning pandemic on the scale of COVID-19. The Order's abnormality flowed naturally from the abnormal circumstances the CDC was confronting—and from the CDC's reasonable (if ultimately incorrect) interpretation and application of its PHSA authority to those circumstances. In this case, simply because the Order was abnormal does not mean that the CDC—the agency charged with issuing regulations "as in [its] judgment" are necessary to prevent the interstate spread of communicable diseases, 42 U.S.C. § 264(a)—was acting outside the "normal scope" of its duties for takings-claim purposes when issuing it.

There is a complication here in so far as evidence indicates the Trump and Biden administrations enacted and extended the moratorium in large part for political reasons, rather than because they were truly convinced it would curb the spread of disease. Still, the fact that the measure had a plausible public health rationale (public health is the CDC's main area of responsibility) still made it "normal" enough to qualify as authorized but unlawful. Broad measures—including many with dubious legal rationales— were common during the Covid pandemic.

Finally, the majority also concludes - correctly, in my view - that an eviction moratorium qualifies as a "physical taking" under Cedar Point. They rightly reject the argument that moratoria are merely regulations of the landlord-tenant relationship that should not be considered takings under current Supreme Court precedent. Rent control, ruled not a taking in Yee v. Escondido (1992), is distinguishable from a situation where the government forces a property owner to accept occupation of her land by a tenant that she would otherwise have the right to remove:

[T]he government argues that here, like Yee…, Appellants' tenants had been voluntarily "invited" onto Appellants' property—which, according to the government, means that there was no physical taking… See… Yee, 503 U.S. at 528 (observing that the park owners' "tenants were invited by [them], not forced upon them by the government"). While we agree that this point distinguishes this case from Cedar Point, we are not persuaded that it compels a different result. If a previous voluntary invitation (by itself) controlled the analysis, that would essentially mean that all government actions implicating the landlord-tenant relationship are immune from being treated as physical takings. (After all, we can safely assume that just about every landlord-tenant relationship stems from a voluntary "invitation" from the landlord to the tenant.) And yet,… we see no reason why government actions implicating that relationship must be categorically immune from being treated as a physical taking.

At bottom, just because tenants (or other occupiers of property) were at one point "invited" does not mean that their continued, government-compelled occupation cannot, under any circumstances, be treated as a physical taking…

To put it a different way, any "invitation" expires at the point where the property owner has a legal right to evict the tenant. At that point, there is no voluntary landlord-tenant relationship anymore; and if the government forces the owner to keep on housing the tenant on his land, we have a mandated physical occupation of property, which counts as a per se taking.

This case could end up being reviewed by the en banc Federal Circuit or even by the Supreme Court. But if not (or if the en banc court or the Supreme Court uphold this ruling), it will set an important precedent on both the nature of "authorization" for takings, and eviction moratoria.

The issue of whether eviction moratoria qualify as takings has also been litigated in state courts, which have mostly ruled they do not. I criticized one such decision here.

Robert Thomas of the Pacific Legal Foundation has additional insights on the Federal Circuit decision here.

Venezuelans fleeing the socialist regime of Nicolas Maduro. (NA)

Last week, the Biden Administration Department of Homeland Security temporarily suspended the CNVH (AKA "CHNV") migrant sponsorship program, because of concerns about fraud. In an article for Reason, Cato Institute immigration policy experts David Bier and Alex Nowrasteh explain why this is a terrible decision:

President Joe Biden's Department of Homeland Security (DHS) paused a key component of its immigration agenda last week, which allowed immigrants from Cuba, Haiti, Nicaragua, and Venezuela to enter and work legally in the United States. Known as the CHNV parole process, this program has helped reduce illegal entries by hundreds of thousands since its launch. DHS should restart the CHNV program immediately.

CHNV has provided an important lifeline for migrants fleeing the horrors of totalitarian socialism and communism in Cuba, Nicaragua, and Venezuela, as well as the endemic chaos of Haiti. This process offers a lawful and orderly way for migrants to pursue the American dream. As these countries spiral further into political and economic dysfunction, CHNV has become more important than ever to prevent chaos at the border.

Under the CHNV process, immigrants required sponsorship from U.S. citizens or legal residents to lawfully enter the United States. DHS has halted the program in response to an internal report that allegedly found evidence of sponsor fraud. In fact, all it shows is the agency's anti-fraud directorate's ineptitude at analyzing big data.

Until now, nearly all immigration applications were filed on paper. For the first time in its history, DHS required all CHNV parole applications to be filed online, resulting in a monstrous data file of 2.6 million records. The agency's Fraud and National Security Directorate (FDNS) apparently took its first stab at assessing "potential fraud indicators" within it.

FDNS found blank entry fields, phone numbers that don't work, zip codes that don't exist, strange street addresses, Social Security numbers associated with dead people, repetitive text and repeat filers, and other similar anomalies. FDNS concluded that these issues indicate fraud.

But those oddities and errors are not evidence of fraud—they are part and parcel of large administrative datasets, especially those compiled by the government. Fraud involves intentional deception, deliberate misrepresentation, or omission by applicants to obtain benefits they do not qualify for. These issues are more likely due to changing circumstances between the time when the forms were filed and the FDNS analyzed them, copying-and-pasting between different types of electronic documents, and simple human error.

Finding mistakes like this in big data is absolutely normal. For starters, statistically, some sponsors have certainly died since filing their sponsorship applications. The bigger issue is that when 2.6 million people fill out a form—sometimes on behalf of a relative or client—errors such as transposing numbers and letters, writing their mailing address when they should write their physical address, or mixing up mailing and physical addresses are inevitable.

Errors can be introduced precisely because of the shortcomings of DHS's new online filing system. As one of us learned firsthand when sponsoring someone, DHS's system purges application drafts after 30 days. This means many applicants draft their responses on paper or in a separate electronic format and then paste the responses. This inevitably results in some answers being accidentally duplicated or put in the wrong field. These shortcomings can be easily understood as honest errors instead of fraud.

FDNS also inaccurately interprets repeat applications from sponsors as indicative of fraud. Yet the CHNV parole process explicitly allows sponsoring multiple applicants. Even when all the beneficiaries are from the same family, DHS requires the sponsor to submit separate applications for each person. Of course, there will be repetitive text and repeat filings—DHS mandates it. It's as if FDNS looked for evidence of fraud in the CHNV's data before understanding how CHNV works….

DHS should not overreact to the illusions of fraud inherent in big datasets. Any actual instances of fraud should be addressed through the agency's normal procedures, targeting individual fraudsters or reforming paperwork and electronic filing procedures and audits….

CHNV was the most novel and important part of Biden's immigration agenda. To undermine it now would be a catastrophic mistake that could undermine American border security, reduce the economic gains from immigration, and impose huge humanitarian burdens on migrants fleeing totalitarian socialism in Latin America and the Caribbean.

I would like to take this opportunity to expand on Bier and Nowrasteh's well-taken points a little.

First, as a sponsor in the Uniting for Ukraine program, which is very similar to CHNV and requires largely the same forms, I can testify from personal experience that the submission process can be clunky, and it is easy to make mistakes, especially if you are submitting multiple applications. I warned about this problem early on; in a January 2023 article generally praising U4U, I noted a few shortcomings, including that "[t]he program could… be improved by further simplifying the paperwork, some of which I found confusing and duplicative." My impression is that this flaw has actually gotten worse, as forms have become more complicated over time.

It's important to keep in mind that most would-be sponsors are not lawyers and legal scholars (like me) or immigration policy experts (like Bier and Nowrasteh). Most don't have the same familiarity and comfort level with legalistic bureaucratic forms. Some are recent immigrants themselves. Thus, it's easy for them to make inadvertent errors. That likely accounts for much of what FDNS found here.

Second, Cuba and Venezuela are facing intensifying repression, in the latter case because of the government's to suppress protests against it's recent falsification of election results. Conditions in Haiti and Nicaragua are also awful. It is wrong to close the door to migrants fleeing horrific oppression and violence merely because of flimsy suspicions about fraud by some sponsors (as Bier and Nowrasteh note, DHS has no found no evidence of wrongdoing by the migrants themselves).

Third, as Bier and Nowrasteh note, the CNVH program plays a valuable role in reducing disorder at the border; it could be much more effective if the administration lifted the arbitrarily low 30,000 per month cap on participation (which is the total for all four countries combined). Bier and I expanded on this point in greater detail in a USA Today article. If the Administration wants to keep the number of illegal border crossings down, it should restart CNVH and expand it.

Finally, it's worth emphasizing that CNVH participants, like most other migrants, are an asset to the US, not a burden. They make valuable contributions to our economy, and reduce the federal budget deficit.

I do have one small disagreement with Bier and Nowrasteh: they advocate imposing a $575 fee on CNVH sponsorship applications. I oppose that for reasons explained here, in response to a similar proposal by Daniel Di Martino of the Manhattan Institute:

Social science evidence suggests that even modest bureaucratic obstacles can significantly reduce participation in various programs. Imposing a fee is likely to reduce the number of Americans willing to serve as sponsors, thereby diminishing the benefits of the program. People hate having to do paperwork, and they hate having to pay a fee for the "privilege" of doing it even more. The costs of processing the forms can instead be more than offset by the extra tax revenue produced by parolees who work in the US.

8/10/1993: Justice Ruth Bader Ginsburg takes oath.

In U.S. v. Goodwyn, decided Tuesday, Judges Florence Pan and Bradley Garcia denied an emergency motion to stay the decision below, on the grounds that:

Appellant has not satisfied the stringent requirements for a stay pending appeal. See Nken v. Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2021).

Judge Gregory Katsas dissented:

This appeal involves computer monitoring imposed as a special condition of supervised release for a defendant convicted of wrongfully entering the United States Capitol on January 6, 2021. Daniel Goodwyn pleaded guilty to one count of knowingly entering or remaining in a restricted building or grounds, in violation of 18 U.S.C. § 1752(a)(1). Goodwyn entered the Capitol and remained inside for a total of 36 seconds. He did not use force to enter, did not assault police officers, and neither took nor damaged any government property. When police instructed Goodwyn to leave the building, he did so.

The district court sentenced Goodwyn to 60 days of imprisonment followed by a one-year term of supervised release. As a special condition of supervised release, the court sua sponte ordered the probation office to monitor Goodwyn's computers for the transmittal of "disinformation" about January 6. To enforce this condition, the court further required the installation of software on Goodwyn's computers that would enable the probation office to conduct "periodic unannounced searches."

On appeal, this Court vacated the condition. We held that "[t]he district court plainly erred in imposing the computer-monitoring condition without considering whether it was 'reasonably related' to the relevant sentencing factors and involved 'no greater deprivation of liberty than is reasonably necessary' to achieve the purposes behind sentencing." We further instructed the district court, if it wished to impose a new computer- monitoring condition on remand, to "explain its reasoning," to "develop the record in support of its decision," and to ensure that the condition complies with section 3583(d) and with the Constitution.

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