Eugene Volokh's Blog, page 100

[Josh Blackman] SCOTUS to CASA to A.A.R.P.: In Case Of (Perceived) Emergency, Ignore The Rules, And Make Stuff Up

[None of the usual rules will apply when the ACLU says there is an emergency. ]

The past 24 hours have been something of a Rorschach Test for the Supreme Court. In the birthright citizenship case, the Court made clear that in emergencies, the judiciary must retain the power to enter universal injunctions, even if Article III does not otherwise permit such injunctions. And in A.A.R.P. v. Trump, the Court made clear that in emergencies, the court should certify a class without going through Rule 23, and grant an ex parte tro without considering any of the usual TRO factors.

What lesson should lower court judges take away? In cases of perceived emergencies, forget all the rules and make stuff up. When the executive branch takes such actions we call it an autocracy. When the courts do it, they call it the "rule of law."

I will have much more to say about this order in due course.

The post SCOTUS to CASA to A.A.R.P.: In Case Of (Perceived) Emergency, Ignore The Rules, And Make Stuff Up appeared first on Reason.com.

[Eugene Volokh] Friday Open Thread

[What's on your mind?]

The post Friday Open Thread appeared first on Reason.com.

[Jonathan H. Adler] Supreme Court Enjoins Summary Removal of Alleged Tren de Aragua Members under Alien Enemies Act

[A majority of the justices seem unconvinced the Administration was prepared to provide the process that was due. Justices Alito and Thomas dissent.]

This afternoon, the Supreme Court granted an application for an injunction against the federal government barring the summary removal of Venezuelan nationals alleged to be members of Tren de Aragua (TdA) under the Alien Enemies Act. By a 7-2 vote, the justices concluded that the detainees were entitled to greater process than they had been provided, and that the U.S. Court of Appeals for the Fifth Circuit erred in dismissing the detainee's claims for lack of jurisdiction. The Court further treated the application for an injunction as a petition for certiorari, granted the petition, and remanded the case back to the U.S. Court of Appeals for the Fifth Circuit for further proceedings.

The opinion for the Court in A.A.R.P. v. Trump was per curiam (the fifth such opinion this term). Justice Alito dissented, joined by Justice Thomas, arguing that the Court lacked jurisdiction and, even assuming jurisdiction, the applicants failed to satisfy the requirements for injunctive relief. Justice Alito also objected to granting certiorari before judgment given the lack of lower court decisions on the merits.

Here's how the opinion sets up the questions before the Court:

The President has invoked the Alien Enemies Act (AEA), Rev. Stat. §4067, 50 U. S. C. §21, to remove Venezuelan nationals who are members of Tren de Aragua (TdA), a designated foreign terrorist organization. See Presidential Proclamation No. 10903, 90 Fed. Reg. 13033 (2025). Applicants are two detainees identified as members of TdA and a putative class of similarly situated detainees in the Northern District of Texas. All of the alleged TdA members in the putative class are currently being held in U. S. detention facilities. In the application before the Court, the detainees seek injunctive relief against summary removal under the AEA.

In recounting the facts, the Court highlights how close it appears some of the applicants  came to being deported without adequate process. The way these facts are recounted suggests that at least some of the justices are increasingly skeptical of the Justice Department's representations and the extent to which administration attorneys are attempting to comply with court orders and legal requirements in good faith. (It is no accident the opinion makes reference to Abrego Garcia, and the federal government's representation that no federal court has jurisdiction to fix the federal government's error in deporting him to El Salvador.) This would seem to confirm that a majority of the justices are no longer willing to automatically grant the presumption of regularity to the Trump Administration on deportation-related matters, and this may affect the ability of the Solicitor General to advance Administration positions in other cases.

As in several other recent cases, the Court's opinion highlights its disagreement with the Fifth Circuit.

The Fifth Circuit erred in dismissing the detainees' appeal for lack of jurisdiction. Appellate courts have jurisdiction to review interlocutory orders that have "the practical effect of refusing an injunction." . . . A district court's inaction in the face of extreme urgency and a high risk of "serious, perhaps irreparable," consequences may have the effect of refusing an injunction. . . . Here the District Court's inaction—not for 42 minutes but for 14 hours and 28 minutes—had the practical effect of refusing an injunction to detainees facing an imminent threat of severe, irreparable harm. Accordingly, we vacate the judgment of the Court of Appeals.

The Court then goes on to reiterate the basic constitutional point that Due Process is guaranteed to persons, and not merely citizens or those lawfully present in the country.

"[T]he Fifth Amendment entitles aliens to due process of law in the context of removal proceedings." Trump v. J. G. G., 604 U. S. ___, ___ (2025). . . "Procedural due process rules are meant to protect" against "the mistaken or unjustified deprivation of life, liberty, or property." . . . We have long held that "no person shall be" removed from the United States "without opportunity, at some time, to be heard." . . . Due process requires notice that is "reasonably calculated, under all the circumstances, to apprise interested parties" and that "afford[s] a reasonable time . . . to make [an] appearance." . . . Accordingly, in J. G. G., this Court explained—with all nine Justices agreeing—that "AEA detainees must receive notice . . . that they are subject to removal under the Act . . . within a reasonable time and in such a manner as will allow them to actually seek habeas relief " before removal. , , ,  In order to "actually seek habeas relief," a detainee must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief.

None of this means the applicants will not ultimately be removed from the country, however. Rather, any removal will only come after they have received the process to which they are due. As the Court notes further:

To be clear, we decide today only that the detainees are entitled to more notice than was given on April 18, and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated. . . . We did not on April 19—and do not now—address the underlying merits of the parties' claims regarding the legality of removals under the AEA. We recognize the significance of the Government's national security interests as well as the necessity that such interests be pursued in a manner consistent with the Constitution. . . .

And as if to make the point clear, the opinion ends noting "The Government may remove the named plaintiffs or putative class members under other lawful authorities."

As for what comes next, the Court explains:

The judgment of the Fifth Circuit is vacated, and the case is remanded to the Fifth Circuit. In resolving the detainees' appeal, the Fifth Circuit should address (1) all the normal preliminary injunction factors, including likelihood of success on the merits, as to the named plaintiffs' underlying habeas claims that the AEA does not authorize their removal pursuant to the President's March 14, 2025,Proclamation, and (2) the issue of what notice is due, as to the putative class's due process claims against summary removal. The Government is enjoined from removing the named plaintiffs or putative class members in this action under the AEA pending order by the Fifth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.

Justice Kavanaugh also wrote a separate concurrence, agreeing with the Court's decision to grant the injunction, but disagreeing with the Court's decision to remand the case back to the Fifth Circuit. In Justice Kavanaugh's view, the Court should have granted certiorari, ordered expedited briefing, and resolved the underlying legal issues.

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[Eugene Volokh] Opinion Granting Bail to Rumeysa Ozturk (Lead Author of Op-Ed Urging Boycott of Israel)

[Ozturk is here on a student visa, and she has been detained while the Trump Administration is trying to deport her.]

From today's opinion by Judge William Sessions in Ozturk v. Trump (D. Vt.), providing the written explanation for a May 9 order granting bail to Ozturk [UPDATE: you can read Ozturk's op-ed here]:

To briefly summarize, Ms. Ozturk has argued that her arrest and detention are retaliation for her co-authorship of an op-ed in a student newspaper. The government has identified her op-ed, and potentially related associations, as the precipitating factor for her visa revocation. As the Court cited in its April 18, 2025, Opinion and Order, then-candidate Trump reportedly threatened to deport foreign students involved in campus protests.  And Secretary of State Marco Rubio, in response to press inquiries about Ms. Ozturk's arrest, opined that Ms. Ozturk's activities "meet the standard of what I've just described to you: people that are supportive of movements that run counter to the foreign policy of the United States" and that detention was "basically asking them to leave the country."

Arrest and detention, let alone termination of status, are not a natural consequence of visa revocation. Ms. Ozturk has presented credible evidence to show that similarly situated individuals historically have not been detained following visa revocation or termination of status.

To date, the government has neither rebutted the argument that retaliation for Ms. Ozturk's op-ed was the motivation for her detention nor identified another specific reason for Ms. Ozturk's detention, arguing instead that such decisions are committed to the discretion of the executive branch. While it is uncontested that the government has discretion in this area, that discretion is not accompanied by the authority to violate the Constitution.

The Court need not decide at this stage whether Ms. Ozturk's detention actually constitutes a First Amendment violation. As the April 18 opinion established, Ms. Ozturk's op-ed carries all the hallmarks of protected speech on public issues, and it does not fall into any recognized exception….  The Court therefore concluded that Ms. Ozturk has presented, at the very least, a substantial claim of a First Amendment violation.

{The Court invites further briefing on the appropriate standard for First Amendment retaliation claims in civil immigration habeas proceedings prior to final disposition. In addition, the Court notes that a court in the District of Massachusetts recently found that plaintiffs in that case "plausibly alleged the existence of both an ideological-deportation policy targeting protected political speech and a more informal campaign of censorship through threats." The Court invites briefing on whether the potential existence of such a policy would instead implicate the First Amendment retaliation test in Lozman v. Riviera Beach (2018). Finally, the Court notes that, in similar litigation proceeding in other courts, the government has argued that non-citizens may not share the First Amendment protections of citizens, Bridges v. Wixon (1945) notwithstanding. The Court invites briefing on the nature and extent of this distinction, if any, in this case's context. contrast with criminal incarceration, civil immigration detention is not permissible for a punitive purpose.}

The court also relied on the Due Process Clause:

"Where a detainee presents evidence that her detention, though discretionary, is motivated by unconstitutional purposes in violation of the Due Process Clause, the Court may reasonably conclude the same in the absence of countervailing evidence." … Civil detention by the government of individuals like Ms. Ozturk who are undergoing removal proceedings is authorized by Congress in The government has argued that such detention is completely at the discretion of the government. However, that discretion may not be deployed for any purpose of the government's choosing. Detention is primarily permitted for two purposes: preventing danger to the community and ensuring an individual in proceedings does not abscond. Zadvydas v. Davis (2001). In contrast with criminal incarceration, civil immigration detention is not permissible for a punitive purpose.

The government could have demonstrated that Ms. Ozturk's detention was motivated by a desire to prevent a danger to the community or a flight risk. However, Ms. Ozturk has instead shown that her detention is likely motivated by improper purposes.

Ms. Ozturk argued that her detention is punishment for her op-ed, and that her punishment is intended to serve as a warning to other non-citizens who are contemplating public speech on issues of the day. The Court found that Ms. Ozturk has presented credible evidence to support her argument, including her own testimony describing her terror during her irregular arrest, statements by the Secretary of State describing the purpose of the government's actions, sworn declarations from immigration attorneys attesting to the unusual nature of Ms. Ozturk's case, and a sworn declaration from the Tufts University president describing the resulting climate of fear among the international members of the school community.

The Court need not conclude at this stage that Ms. Ozturk's arrest and detention are actually punitive in violation of her due process rights. However, for the purpose of Mapp, the Court found that Ms. Ozturk has demonstrated a substantial claim of a violation of due process.

The court also concluded that "extraordinary circumstances" supported bail (the standard required by Mapp v. Reno (2d Cir. 2001)):

First, the Court considered the unusual sequence of events that led to Ms. Ozturk's present detention in Louisiana. Not only was Ms. Ozturk arrested and transported out of Massachusetts in a striking manner, but she was further flown to Louisiana despite a court order issued on an emergency basis by a federal court in Massachusetts which was intended to preserve the status quo.

This Court previously criticized the government's response to the order issued on the evening of Ms. Ozturk's arrest, and ordered Ms. Ozturk's return to Vermont "in part to effectuate the district court in Massachusetts's order, returning Ozturk to the status quo at the time of issuance and in part to ensure continued respect for orders issued by Article III courts." The reviewing circuit court determined that "equity favors such a determination."

Needless to say, it is an extraordinary circumstance when an individual is transported across the country despite a court order. Second, the facts underlying Ms. Ozturk's substantial claims present an extraordinary circumstance. The government has not claimed that Ms. Ozturk violated any civil or criminal laws requiring her removal from the country. Instead, a year after Ms. Ozturk co-authored an op-ed in a campus newspaper, the government seemingly discovered the op-ed and exercised its discretion to revoke Ms. Ozturk's student visa, and then took further steps to terminate her status, arrest, and detain her.

In defense of these actions, the government has not provided anything beyond Ms. Ozturk's political speech. As Judge Crawford recently explained in a similar case, these are not unprecedented actions by the government, but they are nonetheless extraordinary.

Finally, Ms. Ozturk's declining health in custody provides another basis for finding extraordinary circumstances. The Court received testimony and affidavits expressing concern about Ms. Ozturk's conditions of confinement which appeared to be exacerbating her underlying medical conditions. The Court takes seriously the testifying physician's warning that Ms. Ozturk's asthma could be life-threatening if not properly managed.

Therefore, Ms. Ozturk's health now constitutes an additional extraordinary circumstance which warranted immediate release….

Ms. Ozturk's detention necessarily constitutes an infringement of her First Amendment rights and her right to liberty. While such an infringement may be justified if the government presented a legitimate purpose for it, see Jones v. Carolina Prisoners' Lab. Union, Inc. (1977), the government has not done so in this case. If the Court later finds that Ms. Ozturk's substantial claims are in fact proven claims, her detention will have been an unconstitutional deprivation with no public purpose or benefit. Meanwhile, Ms. Ozturk's continued detention restricts her ability to speak freely and potentially chills the speech of other non-citizens. For all these reasons, the Court found that bail was necessary to make the habeas remedy effective….

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[Orin S. Kerr] Jack Goldsmith: "The Solicitor General Embraces Judicial Supremacy"

[You're reading Jack Goldsmith, right?]

I've said before that Jack Goldsmith's Substack is "essential reading" on the legal issues raised by Trump 2.0.  That continues.  I was particularly interested in his latest post, on yesterday's oral argument: The Solicitor General Embraces Judicial Supremacy.

Here's the introduction:

Many people have worried that the Trump administration might refuse to respect a Supreme Court decision. In yesterday's oral argument in the birthright citizenship emergency order case, Solicitor General John Sauer said several times that the Trump administration views itself to be bound not just by a Supreme Court judgment, but, much more broadly, by the precedent those judgments create. This is a major concession to judicial supremacy, and a major stand-down on departmentalism, by the Trump administration.

What I did not fully understand until yesterday's oral argument is why this concession is needed to make the government's argument against universal injunctions work. It is, as I explain below, the price the Trump administration must pay to get relief from universal injunctions.

Whether the Trump administration can be trusted to deliver on Sauer's concession is a very fair and open question, as I discuss at the end of this essay. But in the main thrust of the essay I will explain the logic and potential significance of the concession. I think the Court in its opinion will latch on to the concession, in a fashion reminiscent of Marbury, to give the government some degree of relief from universal injunctions even as the Court asserts the government-acknowledged supremacy of its precedents vis-á-vis the executive branch.

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[Ilya Somin] A Simple Defense of Nationwide Injunctions

[Nationwide illegality by the federal government requires a nationwide remedy.]

The Supreme Court. (NA)

 

The main issue addressed in yesterday's birthright citizenship oral argument before the Supreme Court was whether federal courts should have the power to issue nationwide injunctions against illegal government policies, as opposed to injunctions limited to the parties to the case, or perhaps to a particular state or local government. As I see it, there is a simple, but powerful reason why courts must have the power to issue such injunctions, at least in some cases. In many situations, there is no other way to stop widespread illegality, especially that perpetrated by the federal government. Nationwide wrongs require a nationwide remedy.

Justice Ketanji Brown Jackson put it well in yesterday's argument:

[T]he real concern, I think, is that your argument [meaning that of the federal government] seems to turn our justice system, in my view at least, into a "catch me if you can" kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights.

Justice Kagan says let's assume for the purpose of this that you're wrong about the merits, that the government is not allowed to do this under the Constitution. And yet it seems to me that your argument says we get to keep on doing it until everyone who is potentially harmed by it figures out how to… file a lawsuit, hire a lawyer, et cetera. And I don't understand how that is remotely consistent with the rule of law

This is especially true when, as in the birthright citizenship case, there are hundreds of thousands of victims of the government's illegal policies, and many of them are poor or otherwise unable to readily file a lawsuit.

Moreover, even if all current victims file lawsuits and win, the unconstitutional policy will remain in place with respect to future victims (in this case, future children born to undocumented immigrants and those in the US on temporary visas). Thus, the illegality - and the need for endless lawsuits to combat it - will continue on into the indefinite future.

Imagine if school desegregation litigation rules required each individual black student (or her family) to file a separate lawsuit in order to be able to attend a racially integrated school. Black students whose families don't file a lawsuit can kept in segregated schools, even if courts rule they are unconstitutional. By that "logic," we might well still have legally segregated public schools to this day.

As discussed in the oral argument, these problems can sometimes be partially overcome by class action suits. But class action certification rules will often make it difficult or impossible to include all the victims of a large-scale injustice in a single class, or indeed in any class. Moreover, the logic of the government's case against nationwide injunctions is that courts have no power to compel defendants to respect the rights of third parties. By that reasoning, class actions are also suspect. After all, they necessarily include remedies for third parties (members of the putative class who didn't file a lawsuit themselves, and in many cases may not even know about the class action's existence).

Perhaps such injustices must be accepted if that is clearly required by the text and original meaning of the Constitution. But it isn't. Article III of the Constitution states that "the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, [and] the Laws of the United States," and "to Controversies to which the United States shall be a Party." Such cases - and especially "controversies" -  can obviously sometimes raise issues that go beyond the interests of the particular people who filed the lawsuit in question. And, as the amicus brief by legal historians effectively summarizes, broad injunctions that extend to third parties (sometimes even covering thousands of people) have been imposed by courts throughout American history.

For reasons summarized in a previous post, I am not much impressed by the argument that it's dangerous if one rogue federal judge can impose an injunction blocking a policy nationwide. If the judge is indeed a rogue outlier, and his or her ruling is indeed badly wrong, it can be overturned on appeal, if necessary on an expedited basis. Appellate courts have substantial discretion to swiftly stay injunctions, when needed. It is much less of a burden for the federal government - with its vast resources -  to seek such appellate review than for many thousands of people to have to file individual lawsuits to vindicate their rights. And, again, that's especially true if many of the victims of the government's illegal actions are poor or otherwise unable to easily file a suit.

I am also not impressed by the Trump Administration's argument that there is an "epidemic" of an especially large number of nationwide injunctions blocking their poliies. As I explained to the New York Post when asked about this point:

Trump administration attorneys argued in a petition to the Supreme Court that "Universal injunctions have reached epidemic proportions since the start of the current Administration."

"What we have is an epidemic of nationwide illegal actions by this administration, and in fairness, to some degree by the previous administration as well," Somin argued.

"If you engage in rampant illegality that's nationwide in scope, then you can expect to get nationwide remedies imposed against you."

Nationwide wrongs require nationwide remedies. For those keeping track, I also supported some nationwide injunctions against the Biden Administration, as in the case of the student loan forgiveness litigation.

In fairness, I am, at this point, not a completely disinterested observer when it comes to nationwide injunctions. As  I told the Post, the Liberty Justice Center and I are seeking a nationwide injunction in the lawsuit we filed against Trump's "Liberation Day" tariffs. Like the birthright citizenship cases, our case challenges a large-scale illegal policy that victimizes millions of people, making a universal injunction the only feasible remedy that can fully put an end to the illegality.

But, for what it is worth, I have been a supporter of universal injunctions since long before I became involved in this case. And I am doing the tariff case pro bono. So it cannot be said that my support for universal injunctions is based on narrow self-interest - except in so far as I (like most Americans) will benefit from lower prices for foreign products, if the Trump tariffs are struck down!

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[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

[Unaccompanied kids, implied causes of action, and filming the police.]

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

New cert petition: Humboldt County, Calif. fines people millions of dollars for things they didn't do because it doesn't care if they are innocent. For instance, it fined IJ clients Corrine and Douglas Thomas over $1 mil a mere six days after they bought their home (with a clean title) because the county believes a prior owner grew cannabis. Now, IJ is asking the Supreme Court to revisit its 1916 decision that the Seventh Amendment's guarantee of a jury trial in suits at common law—a bulwark against tyranny for 800 years—does not apply to the states. As it stands, the county need not present its case to a jury of the Thomases' peers; rather, it'd be heard by lawyers hired by Humboldt County. Phooey!

New on the Short Circuit podcast: In jail without trial and death row without all the DNA tests.

Boston police officer is found dead in the front yard of his friend's house amid a nor'easter. Investigators conclude that the man's girlfriend ran him over with her car and left him to die. (Perhaps you've seen the docuseries or read the Vanity Fair longreads.) A jury hangs at the first trial, and her second trial is now under way. Throngs of demonstrators (both pro- and anti-girlfriend) have shown up for the trials, leading the state court to create a buffer zone around the courthouse. First Circuit: And to the extent that that prohibits quiet, offsite demonstrations on public property directed toward non-trial-participants, that raises some First Amendment problems. Buffalo, N.Y. detective feeds nonpublic information about a 2004 double murder to a schizophrenic man, who then "confesses" and spends over 10 years in prison before being exonerated. (The real culprits have since been caught and convicted.) Second Circuit: No need to disturb the $6.5 mil verdict against the detective. Newburgh, N.Y. man buys a house in 2006 but falls behind on his taxes. After several years of paying some back to the city he can't keep up and it forecloses on the place, with him still owing over 92 G's in tax. The city turns around and sells it for a tidy $350k. Does it owe him the difference? Second Circuit: It might. Reversed and remanded.
Mohsen Mahdawi, the Columbia University undergraduate whom the Trump administration is trying to deport because of his on-campus criticism of Israel, will be attending his graduation ceremony on May 21. The Second Circuit rebuffed the administration's efforts to keep him locked up while he challenges his removal proceedings. In 2020, amid a torrent of lawsuits uncovering decades of sexual abuse, the Boy Scouts of America declared bankruptcy. This week, the Third Circuit largely affirmed that plan, rejecting arguments by some claimants that the plan improperly releases their claims against nondebtors without their consent. At George Floyd protest in Grand Rapids, Mich., protester who approached police line is met with burst of pepper spray. As he turns away, another officer fires a special munition that's meant for crowd control at long distance, striking him in the shoulder. Excessive force? Sixth Circuit: No QI for the special munition. It's deadly force at that range. Dissent: There's no case on point. Citizen journalist from South Bend, Ind. challenges state law that empowers police to order him to move 25 feet away from them, which interferes with his filming them. Seventh Circuit: Actually, contrary to both sides' arguments, the law only allows police to order you to stop approaching, not to step back. And, in any event, it applies whether you're recording or not, so it doesn't violate the First Amendment. Eighth Circuit (2023): OK guys, we know everyone has always thought there's an implied cause of action to enforce Section 2 of the Voting Rights Act, but too-bad-so-sad actually that's not true. HOWEVER, if you just invoke Section 1983 that might be all you need. Eighth Circuit (2025): Wow, this is actually pretty complicated and so Section 1983's not enough. Iowa motorist is pulled over for illegally tinted windows, but a tint reader reveals that the windows are legal. So suppress the evidence from a search of the car? Eighth Circuit: No, the officer reasonably believed the windows were illegal. Following the Supreme Court's overruling of Roe v. Wade in mid-2022, Yelp posts a notice on its review pages for crisis pregnancy centers stating that "Crisis Pregnancy Centers typically provide limited medical services and may not have licensed medical professionals onsite." In response to a letter from sundry state attorneys general, the company revises the notice in early 2023. Six months after that, the Texas Attorney General's Office (famously scrupulous about the accuracy of its Internet presence) leaps into action and sues Yelp in Texas state court, claiming the rescinded notices were false and misleading. Yelp sues in its home state (California) to enjoin Texas's suit. Yelp: Obviously, this is First Amendment retaliation, right? Ninth Circuit: You know what trumps concerns about free speech? Younger abstention! We cordially invite you to vindicate your First Amendment rights while defending yourself against the AG's enforcement action back in Texas. Madera, Calif. man shoots his ex-wife dead in medical clinic parking lot as she shields her three small children. Turns out a clinic staffer called an old phone number for the woman to confirm an appointment, tipping off the estranged husband. Can her estate sue the county or the domestic violence shelter, who'd helped her escape and get a restraining order? Ninth Circuit (unpublished): No, neither the county nor the nonprofit placed her in danger she wouldn't otherwise have faced. (The man was convicted and sentenced to life in prison, the staffer was fired for incompetency, and California passed a law in the woman's memory limiting the disclosure of information to abusers.) California's Unruh Act provides statutory penalties on top of the injunctive relief available through the federal Americans with Disabilities Act. Ninth Circuit: And those penalties should be decided by a jury, not a judge, under the Seventh Amendment. While the Ninth Circuit considers rehearing en banc, the panel majority issues an updated opinion holding that asylum seekers turned away from ports of entry while still on Mexican soil "arrived in" the U.S., thus triggering CBP's various obligations under the APA. Updated dissent: Still wrong, "arrives in" means "physically present in." The same order includes the dissent from denial of rehearing (12 judges) and a statement respecting denial (3 judges)—a not-so-subtle invitation for SCOTUS to step in. Affirmed in part, vacated in part. The feds try to halt funding set aside for the Trafficking Victims Protection Reauthorization Act (TVPRA), which requires HHS to ensure that kids in immigration custody receive legal representation. District court says "can't do that" and issues a preliminary injunction, so the gov't appeals asking for an emergency stay. Ninth Circuit (over a dissent): The gov't can't show that it'll be "irreparably harmed" by spending money that's been earmarked for a law that it's required to enforce. Motion for stay denied; the injunction stands. Driver in Clayton County, Ga. is pulled over with outstanding arrest warrants. He flees, triggering a highspeed chase, crashes his truck, then runs away from the wreckage. Officer fires four shots at him, "with one striking him in the buttocks." Excessive force? Eleventh Circuit (unpublished): No qualified immunity because, if driver's version of the facts is correct, officer was unreasonable in using deadly force on an unarmed fleeing suspect without giving warning. Here's a phrase that we're relatively certain has never occurred in human speech before: "Jimbo's baloney birth was legally problematic." In other news, the Eleventh Circuit has affirmed a preliminary injunction blocking enforcement of a Florida law that was, by its sponsors' admission, enacted to ban the "gateway propaganda" of Drag Queen Story Time. And in en banc news, the Sixth Circuit will reconsider its decision to grant habeas corpus to a foster father who was barred from introducing evidence that his accuser had made very similar accusations of abuse against previous foster parents.

"CoreCivic's Tennessee prisons are chronically understaffed death factories, and it is outrageous that the TDOC not only has done nothing meaningful to ensure CoreCivic's compliance with minimum contract requirements, but has lobbied to ensure that CoreCivic does not incur meaningful consequences." So says IJ client client Dan Horwitz, a lawyer in Tennessee who, like every other lawyer in the Middle District of Tennessee, was barred from speaking publicly about his cases. Until yesterday.  With an IJ challenge to the gag order underway, the court amended its rules—a towering victory for the First Amendment. Click here to learn more.

Friends, freedom from arbitrary arrest is a fundamental right. And yet! In 2023, the Eleventh Circuit ruled, by a vote of 10 to 1, that if you get arrested and spend three days in jail because there's a warrant out for someone with the same name as you—someone with a different birthdate, weight, height, tattoos, etc.—the Constitution is silent. Over at the University of Miami Law Review, IJ attorneys Jared McClain and Dylan Moore maintain that, to the contrary, the Fourth Amendment very much protects against mistaken-ID arrests. That said, if courts insist, as the Eleventh Circuit did, on analyzing these cases through substantive due process, well, the Constitution is not silent there either. Check it out! And then check out IJ's own mistaken-ID case, which aims to change the law.

 

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[Eugene Volokh] Josh Blackman Among New Members of Religious Liberty Commission Advisory Board of Legal Experts

From the statement; congratulations to Josh on the appointment! The list also includes:

Francis Beckwith … Professor of Philosophy & Church-State Studies, Affiliate Professor of Political Science, and Associate Director of the Graduate Program in Philosophy at Baylor University….. Jason Bedrick … a Research Fellow in the Center for Education Policy at The Heritage Foundation …. Gerald Bradley … professor of law at the University of Notre Dame …. Alyza Lewin … President of The Louis D. Brandeis Center for Human Rights Under Law … [and] President of the American Association of Jewish Lawyers and Jurists from 2012 – 2017. Kristen Waggoner … CEO, president, and general counsel of Alliance Defending Freedom ….

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[Jonathan H. Adler] Can the EPA Finesse the Greenhouse Gas Endangerment Finding?

[The agency may be able to adopt a bank-shot strategy to preclude most (but not all) greenhouse gas regulation under the Clean Air Act without contesting basic climate science.]

Environmental Protection Agency Administrator Lee Zeldin announced that the agency will consider rescinding the so-called endangerment finding that triggers the regulation of greenhouse gases under the Clean Air Act. In a prior post, I explained why this is a fool's errand, and elaborated on some of the relevant points in this webinar.

My prior comments assumed that the agency was planning to do what Zeldin and others had publicly suggested: Rescind the primary finding that the emission of greenhouse gases "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." Given the precautionary nature of this language, taking this course would have required the Agency to disavow virtually everything it has said in the past 35 years about the potential consequences of climate change, among other things. It would be a morass.

Yet if the EPA's primary goal is to rescind greenhouse gas regulations imposed on stationary sources, and prevent the adoption of new such regulations, it has an alternative approach--an approach that is more of a targeted bank shot than a frontal assault on the endangerment determination and, judging from this E&E News story, it is a potential approach that is getting more attention.

The initial endangerment finding was made under Section 202 of the Clean Air Act, which governs motor vehicles. Under this provision, the EPA is obligated to adopt emission standards for pollutants about which such a finding is made. Other provisions of the Act have similar language, but they are not all the same, and the differences in the language found in different opinions could matter.

Section 231, governing aircraft, has identical endangerment language to Section 202. Section 111, governing stationary sources (including power plants), on the other hand, has slightly different language. Under 111, the EPA is required to adopt regulations for a category of sources if the category:

 causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.

Here, unlike under Section 202 and 231, it is not enough that the emissions in question "contribute" to potentially harmful pollution. The emissions, from the source category in question, must contribute significantly. In other words, even taking endangerment as a given, there are some sources of greenhouse gas emissions that need not be regulated under Section 111 because their contributions to the accumulation of greenhouse gases in the atmosphere is not significant enough to justify action.

What this means is that the EPA could seek to disarm the Clean Air Act's regulatory threat to stationary sources by defining what it means to contribute "significantly" so as to exclude most (if not all) such source categories as those that must be regulated. This is not a sure-fire strategy, as it may be difficult to argue that power plants in particular are not a "significant" contributor to climate change. Power plants are responsible for approximately 30 percent of domestic greenhouse gas emissions. By contrast, most other source categories are far smaller, and would be easier to exclude, particularly if the EPA emphasizes that the significance of a source category's contribution to climate change must be evaluated on a global basis (and the fact that the United States produces a declining share of global greenhouse gas emissions).

The virtue of this approach for EPA is that it does not require contesting basic claims about climate science or reversing the agency's prior interpretation of that science or the meaning of Section 2020. Yet there are risks. One in particular is that it would require the agency to reverse course on what constitutes a "significant" contribution of greenhouse gases. Back in 2021, the Trump EPA said this applied to any source responsible for more than three percent of emissions. The EPA is no longer eligible to receive Chevron deference on the meaning of this statutory language, and its change in position will reduce the amount of respect its new interpretation receives.

We should soon see whether the EPA is going to adopt this more targeted approach to cutting back EPA regulation of greenhouse gases, or whether it will insist on running headlong into the maw of the original endangerment finding. The agency's choice should reveal quite a bit about the extent to which it is prioritizing meaningful and sustainable deregulatory initiatives over blunderbuss, base-pleasing initiatives.

The post Can the EPA Finesse the Greenhouse Gas Endangerment Finding? appeared first on Reason.com.

[Josh Blackman] Does Justice Sotomayor Really Want To Know What The Remedy Would Be If The Government Confiscated Everyone's Guns?

[The remedy would not involve Rule 23.]

Justice Sotomayor is pretty predictable. She walks into oral argument with a set of questions she wants to ask, and she will keep asking them, whether or not she gets the answer she wants. I imagine advocates get frustated, but that is part of the game.

During the birthright citizenship cases, Justice Sotomayor asked the same line of questions several times--apparently she thought it was clever. To illustrate the limits of the government's position concerning nationwide injunction, she would change the hypo: what would happen if the government sought to confiscate every gun in America; would every gunowner have to bring an individual law suit to seek relief?

Page 13: JUSTICE SOTOMAYOR: --so, when a new president orders that because there's so much gun violence going on in the country and he comes in and he says, I have the right to take away the guns from everyone, then people --and he sends out the military to seize everyone's guns --we and the courts have to sit back and wait until every named plaintiff gets --or every plaintiff whose gun is taken comes into court?

Page 41: JUSTICE SOTOMAYOR: If we're afraid that this is or even have a thought that this is unlawful executive action, that it is Congress who decides citizenship, not the executive, if we believe, some of us were to believe that, why should we permit those countless others to be subject to what we think is an unlawful executive action, as unlawful as an executive taking the guns away from every citizen?

Page 44: JUSTICE SOTOMAYOR: --it got rejected repeatedly. We can go into the history of citizenship, but I still go back to my question. You claim that there is absolutely no constitutional way to stop, put this aside, to stop a president from an unconstitutional act, a clearly, indisputably unconstitutional act, taking every gun from every citizen, we couldn't stop that.

Does Justice Sotomayor really want to know what the remedy would be if the government confiscated everyone's gun? This remedy would not involve Rule 23.

Nearly 250 years ago, King George III and General Gage tried to confiscate the firearms from the Americans. What happened next? Lexington and Concord, the Shot Heard Round the World. As best as I can recall, the patriots did not go to a Court of Chancery to seek an equitable remedy.

We have a similar story in Texas history. During the Texas Revolution, the Mexican Army demanded that the Texians in the City of Gonzales surrender their cannon. What did the Texians say? Come and Take It! The remedy here was not equitable; it was belligerent. The Texians did not reply with a canon of construction; they replied with a cannon of destruction. This was the Lexington of Texas. And the Battle of Gonzales led to the Battle of the Alamo, which led to Texas Independence. Sensing a pattern of what happens when the government tries to disarm the people?

I took this photo during my visit to the museum in Gonzales.

I'm reminded of Judge Kozinski's opinion in Silviera v. Lockyer:

The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten.

There is an important lesson to be learned here. Courts cannot solve all problems. Courts should not solve all problems. Courts will not solve all problems.

The post Does Justice Sotomayor Really Want To Know What The Remedy Would Be If The Government Confiscated Everyone's Guns? appeared first on Reason.com.