Eugene Volokh's Blog, page 101

[Josh Blackman] The Department of Justice's "Longstanding" General Practice of Intracircuit Nonacquiescence

[A response to questions from Justices Kagan and Barrett.]

During oral argument in the birthright citizenship cases, Justices Kagan and Barrett seemed very troubled by Solicitor General Sauer's description of the Department of Justice's "general" policy concerning circuit precedent. It seems pretty clear that the Solicitor General was talking about DOJ's policy concerning intracircuit nonacquiescence. What is intracircuit nonacquiescence, you might ask? I discuss this topic in my 2019 article in the Georgetown Law Journal, The Irrepressible Myth of Cooper v. Aaron:

Despite these criticisms, there have been efforts to extend the principle of judicial universality to the lower courts—what oxymoronically might be called "inferior universality." At various times, the U.S. government has asserted a policy known as "intracircuit nonacquiescence." Under this controversial doctrine, the Executive Branch directs agencies to disregard certain unfavorable circuit precedent, even if their decisions will ultimately be appealed in that circuit.183 The courts have uniformly rejected this practice for flouting circuit law.184

183. See, e.g., Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 YALE L.J. 679, 687 (1989) (defining "intracircuit nonacquiescence" as a circumstance "when the relevant venue provisions establish that [judicial] review will be to a particular court of appeals and [an administrative] agency nonetheless refuses to follow, in its administrative proceedings, the case law of that court"); Note, Collateral Estoppel and Nonacquiescence: Precluding Government Relitigation in the Pursuit of Litigant Equality, 99 HARV. L. REV. 847 (1986).

184. See Estreicher & Revesz, supra note 183, at 699–704; see also Collateral Estoppel and Nonacquiescence, supra note 183, at 856–57.

Yet, despite pushback from the courts, intracircuit non-acquiescence remains the Department of Justice's policy. And I can prove it. In March 25, 2010, the Office of Legal Counsel issued an opinion concerning the Obama Administration's decision to no longer defend the Defense of Marriage Act. Who was the Solicitor General at the time? Elena Kagan. This topic was actually a big deal at her confirmation hearing: DOJ filed a petition for cert before judgment in Windsor, even though the government agreed with the ruling declaring DOMA unconstitutional.

OLC Head David Barron, now a First Circuit Judge, stated the issue plainly:

As explained below, this conclusion accords with the longstanding position of this Office, and the consistent, publicly declared position of the Executive Branch, that an executive agency may "nonacquiesce" in a court of appeals ruling—a practice whereby the agency, despite an adverse court of appeals decision, continues to act in accordance with its own contrary interpretation of the law with respect to persons who were not parties to the judgment. The Executive Branch's traditional view that nonacquiescence is permissible includes even "intracircuit" nonacquiescence, or nonacquiescence in situations where the adversely affected persons could challenge the administrative decision in a case that would be governed by the law established by the relevant adverse court of appeals decision.5

FN5: 5 See, e.g., Federal Agency Compliance Act: Hearing on H.R. 1544 Before the Sub-comm. on Commercial and Administrative Law of the H. Comm. on the Judiciary, 105th Cong. 43 (1997) (statement of Stephen W. Preston, Deputy Assistant Attorney General, Civil Division) ("Preston Testimony"); see generally Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679, 692–718 (1989) (describing agency practice).

There you have it. DOJ has a longstanding practice of nonacquiescence. Consider a classic example. The Second Circuit issues a ruling concerning the Social Security Act. Even though that judgment only binds a single claimant, that precedent may affect thousands of individual claimants. The executive branch will chose to either seek en banc, or certiorari. In the process, the executive will not acquiesce to the circuit precedent, and continue applying the earlier precedent to the thousands of other claimants. This has long been DOJ's policy. Solicitor General Rex Lee wrote an influential opinion on this topic.

This issue arose again during the Obama Administration. In the run-up to King v. Burwell, the Department of Justice stated that it would limit any adverse D.C. Circuit precedent to the named parties.

I discussed this litigation in National Review:

Second, in March of 2014, the administration repeated its claim that a single federal court could not stop Obamacare. The week before oral arguments were to be held in Halbig v. Burwell in the D.C. Circuit Court of Appeals, the Justice Department submitted a letter informing the judges that they were constitutionally prohibited from denying subsidies to millions of Americans. In short, the government argued that people who were not parties to the suit had a due-process right to be heard before their subsidies were extinguished — as if Obamacare were some sort of constitutionally protected property interest!

[Mike Carvin representing] The plaintiffs shot back, incredulous that the government had an "apparent intention to lawlessly flout this Court's binding order." In August, the D.C. Circuit ruled for the plaintiffs, and sent the case back to the lower court with instructions to "vacate the IRS Rule" in its entirety — not merely with respect to the named plaintiffs. Again, the Justice Department had questioned the power of a federal court to put the kibosh on an illegal federal action, and the judges emphatically rejected this executive hubris.

The DOJ letter stated the issue plainly: in the absence of class certification, the relief will be limited to the named parties.

We respectfully submit a supplemental authority that bears on plaintiffs' assertion, made for the first time in reply, that "[i]t does not matter that this 'is not a class action'" and that the Court could extinguish the tax-credit claims of individuals who live in "states like Texas." Pl. Reply 26. In Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), and prior decisions, the Supreme Court held that the protections for non-parties are grounded in Due Process. Even when (unlike here) a suit is a class action, "before an absent class member's right of action [is] extinguishable due process require[s] that the member 'receive notice plus an opportunity to be heard and participate in the litigation'" and "'an opportunity to remove himself from the class.'" Id. at 848 (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985)). Moreover, there is a "constitutional requirement" that a "'named plaintiff at all times adequately represent the interests of the absent class members.'" Id. at 848 n.24 (quoting Shutts, 472 U.S. at 812). Plaintiffs did not seek to represent a class, and their suit could not satisfy these constitutional requirements. For millions of people across the country, premium tax credits are not burdens to be avoided but federal benefits that they need to afford health insurance.

Sounds familiar?

Will Baude defended this strategy in a then-controversial New York Times Op-Ed:

But luckily the Constitution supplies a contingency plan, even if the administration doesn't know it yet: If the administration loses in King, it can announce that it is complying with the Supreme Court's judgment — but only with respect to the four plaintiffs who brought the suit.

This announcement would not defy a Supreme Court order, since the court has the formal power to order a remedy only for the four people actually before it. The administration would simply be refusing to extend the Supreme Court's reasoning to the millions of people who, like the plaintiffs, may be eligible for tax credits but, unlike the plaintiffs, did not sue. . . .

There are legal wrinkles, of course. Lower courts have sometimes claimed legal authority to invalidate a regulation (which is at issue in this case) even for parties who aren't before the court. And some employers might be able to bring lawsuits that would call their employees' subsidies into question. But the administration has already raised legal defenses to those potential problems in other lawsuits and could press those defenses here, too.

In hindsight, Baude was right and I was wrong. I criticized Baude in harsh terms. I was mistaken, and I apologize. In candor, I didn't quite understand the policy of non-acquisence at the time. Indeed, Baude's op-ed brought me down the path of learning about this topic--long before anyone ever thought about a nationwide injunction.

Back to the oral argument in the birthright cases.

First, Justice Kagan pressed Sauer on what would happen if the Second Circuit ruled that the executive order, absent a universal injunction. Would the federal government still apply the EO to people within the Second Circuit who were not parties to the judgment?

JUSTICE KAGAN: Does the government commit to not applying its EO in the entire Second Circuit, or does it say, no, we can continue to apply the rule as to everybody else in the Second Circuit?

GENERAL SAUER: I can't say as to this individual case. Generally, our practice is to respect circuit precedent within the circuit, but there are exceptions to that.

JUSTICE KAGAN: Yes, that is generally your practice -( Laughter.)--and I'm asking whether it would be your practice in this case.

GENERAL SAUER: I can't answer because it would depend on what the lower decision said. So there are circumstances, as I was suggesting, where we think that we want to continue to litigate that in other district courts in the same circuit as well as other circuits.

Justice Kagan tried to make fun of Sauer for making up a policy--the emphasis was on your practice. But indeed intracircuit non-acquiescence has long been part of the Department of Justice's policy. Her own Justice Department reaffirmed this practice. I don't know why Sauer did not cite this policy; there was an easy answer to the question.

I've made this point before and I'll make it again. Justice Kagan used to be one of the sharpest questioners on the bench. But she is slipping a bit and getting sloppy. She seems more focused on one-liners and zingers than on making sharp points. (You know who was sharp yesterday--BK brought his A-Game, more on that later.) I think Justice Kagan is frustrated with the state of things on the Court now, and I do not think she gets enough support from her left flank. From watching oral argument, I get the sense that Justice Kagan gets annoyed when Justice Sotomayor and Jackson go down tangents that do nothing to garner five votes. There is a lot going on at the Court beneath the surface.

Justice Barrett returned to the theme. She was very much troubled that Sauer did not answer Justice Kagan's questions.

JUSTICE BARRETT: General Sauer, I want to ask you about a potential tension -well, no, not a potential tension, an actual tension that I see in answers that you gave to Justice Kavanaugh and Justice Kagan. You resisted Justice Kagan when she asked you whether the government would obey, within the Second Circuit, a precedent -distinguishing between opinions and judgments here. Did I understand you correctly to tell Justice Kagan that the government wanted to reserve its right to maybe not follow a Second Circuit precedent, say, in New York because you might disagree with the opinion?

GENERAL SAUER: Our general practice is to respect those precedents, but there are circumstances when it is not a categorical practice. It is --and that is not a new policy.

JUSTICE BARRETT: This administration's practice or the longstanding practice of the federal government? And I'm not talking about in the Fourth Circuit are you going to respect a Second Circuit. I'm talking about within the Second Circuit. And can you say is that this administration's practice or a longstanding one?

GENERAL SAUER: As I understand it, longstanding -

JUSTICE BARRETT: Really?

GENERAL SAUER: --policy of the Department of Justice, yes, that we generally -as it was phrased to me, generally respect circuit precedent but not necessarily in every case. And certain --some examples might be a situation where we're litigating to try and get that circuit precedent overruled and so forth.

JUSTICE BARRETT: Well, okay, so I'm --I'm not talking about a situation in which, you know, the Second Circuit has a case from 1955 and you think it's time for it to be challenged. That's not what I'm talking about. I'm talking about in this kind of situation. I'm talking about this week the Second Circuit holds that the executive order is unconstitutional, and then what do you do the next day or the next week.

GENERAL SAUER: Generally we follow that.

JUSTICE BARRETT: So you're still saying "generally."

GENERAL SAUER: Yes.

JUSTICE BARRETT: And you still think that it's generally the policy, longstanding policy of the federal government to take that approach?

GENERAL SAUER: That is my understanding.

This was a very snarky "Really?" from Justice Barrett. It reminded me of the "Really?" sketch from Weekend Update with Seth Meyer and Amy Poehler. But really, Justice Barrett seems unaware of the DOJ's longstanding policy. Granted, Justice Barrett never served in the Department of Justice like Justice Kagan did, but ACB was a FedCourts professor. I would think this topic is covered in most classes, though I did a quick scan of the latest issue of Hart & Wechsler, and it is only mentioned briefly with a citation to Estreicher and Revesz.

Things get worse from there. Justice Barrett brings up quite possibly the worst federal courts decision of all time, Cooper v. Aaron. This is a precedent that should never be mentioned--like Voldemort. I've already written about Judge Wilkinson's flawed invocation of Cooper. Now, for reasons not entirely clear, Justice Barrett has joined the fray.

JUSTICE BARRETT: Okay. So --but it sounds to me like you accept a Cooper versus Aaron kind of situation for the Supreme Court, but not for, say, the Second Circuit?  In other words, you would respect the opinions and the judgments of the Supreme Court, and you're saying you would respect the judgment but not necessarily the opinion of a lower court.

GENERAL SAUER: And, again, and I think in the vast majority of instances our practice has been to respect the opinions as well, in --in the circuits as well, but my understanding that has not been a categorical practice in the way respect for the precedence and the judgments that the Supreme Court has been.

JUSTICE BARRETT: So you're not hedging at all with respect to the precedent of this Court?

GENERAL SAUER: That is correct. I -I believe the -

JUSTICE BARRETT: All right.

GENERAL SAUER: --quotation from our application directly addresses that.

JUSTICE BARRETT: Okay.

GENERAL SAUER: And we stand by that completely.

What exactly is Justice Barrett saying here? Let me take a detour back to my 2019 article. Scholars have long debated whether the principle of judicial supremacy articulated in Cooper v. Aaron is limited to the Supreme Court, or whether all inferior courts that exercise the judicial power can establish the supreme law of the land. In effect, a universal injunction is an act of judicial supremacy: the judgment extends to everyone and everywhere, whether they are parties or not. Here is an excerpt from my article:

Two courts have [rejected intracircuit nonacquiescence] by relying on Cooper v. Aaron. In Lopez v. Heckler, the Ninth Circuit concluded that through the Social Security Administration's policy of intracircuit nonacquiescence, "the executive branch def[ied] the courts and undermin[ed] what are perhaps the fundamental precepts of our constitu-tional system—the separation of powers and respect for the law." Judge Stephen Reinhardt, writing for the panel, did not see Cooper as limited to the Supreme Court's construction of constitutional law. Rather, he wrote, Cooper's doctrine also applied to the circuit court's interpretation of "federal statutory law," which is part of the "supreme Law of the Land." All Executive Branch officials, the panel concluded, are bound to "faithfully execute" this law as interpreted by the inferior courts.187 Ultimately, the Supreme Court granted certiorari in Lopez, vacated the panel opinion, and remanded the case in light of the recently enacted Social Security Disability Benefits Reform Act of 1984. The constitutional issue was not further discussed on remand.

In Stieberger v. Heckler, the Southern District of New York likewise ruled that Cooper's statement of judicial universality was not limited to the Supreme Court but also extended to the district courts. The Second Circuit vacated the injunction issued in Stieberger in light of the Secretary's representation that it was mod-ifying its policy of nonacquiesence. The Supreme Court has a plausible—but unpersuasive—claim that its judgments have a constitutional nature because the Supreme Court itself is created by the Constitution. The same cannot be said for the inferior courts, which Congress can "ordain and establish" or even abolish. Their judgments have no claim to this source of constitutional authority. Beyond these two isolated citations, the lower courts have mostly shied away from relying on judicial universality.

Is Justice Barrett really lining up with Judge Reinhardt's view of judicial supremacy for inferior courts? Cooper v. Aaaron is bad enough with regard to the Supreme Court. It should not be extended to 700 federal district court judges who are suffering from god complexes. I think this issue warrants some further percolation.

The post The Department of Justice's "Longstanding" General Practice of Intracircuit Nonacquiescence appeared first on Reason.com.

[Josh Blackman] I Stand By My Prediction: The Court Will Reargue the Case On The Merits And Duck The Procedural Issues

[There are eight, and possibly nine votes against Trump on the merits. But the Court is far too fragmented on the injunction issue.]

There is much to say about the oral argument yesterday in Trump v. CASA. For now, I stand by my prediction from Tuesday:

A few colleagues said I was wrong, and that the merits issue was not adequately briefed. I'm not so concerned. The Court can always restore the case to the docket for the fall and order supplemental briefing. Injunctions are in place now, so time is not of the essence.

Justice Gorsuch asked General Sauer, point blank, "How do you suggest we reach this case on the merits expeditiously?" Gorsuch asked NJ Solicitor General Feigenbaum , "how would you get the merits of this case to us promptly." Gorsuch asked again, "I appreciate that. How do we get to the merits fast?"

I expect this case to be restored to the docket with argument in the fall. The Court could follow the timeline from Citizens United v. FEC. Recall that case was initially argued in March 2009. Malcolm Stewart (infamously) said that the government could ban books. That argument did not go over so well. The majority apparently was prepared to declare unconstitutional the campaign finance regulation. According to Jeffrey Toobin, Justice Souter and other prevailed on the Chief Justice to re-argue the case to ensure the issue was clearly presented. Roberts went along with this strategem. On the very last day of the October 2008 Term, the Court the case to the docket for reargument during a special September sitting:

This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: For the proper disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. 441b? The briefs, not to exceed 6,000 words, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, July 24, 2009. Amicus briefs, not to exceed 4,500 words, may be filed with the Clerk and served upon counsel to the parties by 2 p.m., Friday, July 31, 2009. Reply briefs, not to exceed 3,000 words, may be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Wednesday, August 19, 2009. The case is set for oral argument at 10 a.m., Wednesday, September 9, 2009.

September 9 was Justice Sotomayor's first day on the Supreme Court, and Elena Kagan's first oral argument, ever.  Justice Kagan said the government could not ban books, but her explanation why did not make any sense. The case was decided on January 21, 2010, shortly before the State of the Union. And the rest is history.

I think the Court will follow a similar trajectory.

The post I Stand By My Prediction: The Court Will Reargue the Case On The Merits And Duck The Procedural Issues appeared first on Reason.com.

[Josh Blackman] "President Trump Has To Obey The Constitution, But So Does Chief Justice Roberts"

[Presented at the Orlando Federalist Society Chapter.]

This evening I spoke to the Orlando Federalist Society Chapter, one of my favorite chapters, about a new topic. It was titled "President Trump Has To Obey The Constitution, But So Does Chief Justice Roberts." This speech is based on a forthcoming piece in Deseret Magazine. I've written quite a bit of late about the three Trump appointees. I thought it was time to focus on the Chief Justice as well.

I apologize for not writing about the birthright citizenship case yet. This speech took up much of my day. Stay tuned for more.

The post "President Trump Has To Obey The Constitution, But So Does Chief Justice Roberts" appeared first on Reason.com.

[Eugene Volokh] "Israel Police Recently Used [AI] to Prepare Arguments for a Criminal Case, … Citing Legislation That Does Not Exist"

From an article Tuesday in The Times of Israel:

According to the reports in Hebrew media, Judge Ehud Kaplan of the Hadera Magistrate's Court reacted in astonishment to the police's argument, saying: "I thought I had seen everything in 30 years on the bench."

The case in question centers on Ibrahim Mahajne, a resident of Wadi Ara who is being investigated on suspicion of money laundering, embezzlement and tax fraud by the Lahav 433 major crimes unit….

According to the reports, Mahajne's lawyers noticed that in the police's argument against returning [a phone of his that had been seized], they cited laws that do not exist in Israel's legal code….

During the hearing, Mahajne's attorney Tamir Calderon told the court that he "suspects that the police response was taken from ChatGPT. The sections of law cited do not exist." …

"We take it back. What was quoted is incorrect. Whoever wrote this did so in good faith, by mistake," [the police representative] said. "We admit that there was a mistake."

The post "Israel Police Recently Used [AI] to Prepare Arguments for a Criminal Case, … Citing Legislation That Does Not Exist" appeared first on Reason.com.

[Eugene Volokh] Seemingly Nonexistent Citation in Anthropic Expert's Declaration [UPDATE: Apparently Caused by Lawyer's Misuse of Claude to Format Citations]

[UPDATE 5/15/2025 (post moved up): Anthropic's lawyers filed a declaration stating that the error was not the expert's, but stemmed from the (unwise) use of Claude AI to format citations.]

The Declaration filed by a "Data Scientist at Anthropic" in Concord Music Group, Inc. v. Anthropic PBC includes this citation:

But the cited article doesn't seem to exist at that citation or at that URL, and Google found no other references to any article by that title.

Bloomberg (Annelise Levy) has a story about this, under the title "Anthropic Expert Accused of Citing Fake Article in AI Lawsuit" (Chat GPT Is Eating the World links to that). Magistrate Judge Susan van Keulen ordered the parties, apparently (according to Bloomberg) referring to this problem, to explain matters:

[N]o later than May 15, 2025, Defendant shall file a Statement addressing the issue raised by Plaintiffs' counsel at the outset of the hearing ….

I'll report what the Statement asserts once it is filed. Thanks to Prof. Edward Lee for the pointer.

UPDATE 5/15/25, 4:17 pm: Here's the explanation, from one of Anthropic's lawyers (emphasis added):

Our investigation of the matter confirms that this was an honest citation mistake and not a fabrication of authority. The first citation in footnote 3 of Dkts. 340-3 (sealed) and 341-2 (public) includes an erroneous author and title, while providing a correct link to, and correctly identifying the publication, volume, page numbers, and year of publication of, the article referenced by Ms. Chen as part of the basis for her statement in paragraph 9. We apologize for the inaccuracy and any confusion this error caused.

The American Statistician article reviewed and relied upon by Ms. Chen [the Anthropic expert], and accessible at the first link provided in footnote 3 of Dkts. 340-3 and 341-2, is titled Binomial Confidence Intervals for Rare Events: Importance of Defining Margin of Error Relative to Magnitude of Proportion, by Owen McGrath and Kevin Burke. A Latham & Watkins associate located that article as potential additional support for Ms. Chen's testimony using a Google search. The article exists and supports Ms. Chen's testimony in her declaration and at the May 13, 2025 hearing, which she proffered based on her pre-existing knowledge regarding the appropriate relative margin of error for rare events. A copy of the complete article is attached as Exhibit A.

Specifically, "in the context of small or rare-event success probabilities," the authors "suggest restricting the range of values to εR ∈ [0.1, 0.5]"—meaning, a relative margin of error between 10% to 50%—"as higher values lead to imprecision and poor interval coverage, whereas lower values lead to sample sizes that are likely to be impractically large for many studies." See Exhibit A, at 446. This recommendation is entirely consistent with Ms. Chen's testimony, which proposes using a 25% relative margin of error based on her expertise.

After the Latham & Watkins team identified the source as potential additional support for Ms. Chen's testimony, I asked Claude.ai to provide a properly formatted legal citation for that source using the link to the correct article. Unfortunately, although providing the correct publication title, publication year, and link to the provided source, the returned citation included an inaccurate title and incorrect authors. Our manual citation check did not catch that error. Our citation check also missed additional wording errors introduced in the citations during the formatting process using Claude.ai. These wording errors are: (1) that the correct title of the source in footnote 2 of Ms. Chen's declaration is Computing Necessary Sample Size, not, as listed in footnote 2, Sample Size Estimation, and (2) the author/preparer of the third source cited in footnote 3 is "Windward Environmental LLC", not "Lower Windward Environmental LLC." Again, we apologize for these citation errors.

Ms. Chen, as well as counsel, reviewed the complete text of Ms. Chen's testimony and also reviewed each of the cited references prior to submitting Ms. Chen's declaration to the Court. In reviewing her declaration both prior to submission and in preparation for the hearing on May 13, 2025, Ms. Chen reviewed the actual article available at the first link in footnote 3 of her declaration and attached hereto as Exhibit A, and the article supports the proposition expressed in her declaration with respect to the appropriate margin of error.

During the production and cite-checking process for Ms. Chen's declaration, the Latham & Watkins team reviewing and editing the declaration checked that the substance of the cited document supported the proposition in the declaration, and also corrected the volume and page numbers in the citation, but did not notice the incorrect title and authors, despite clicking on the link provided in the footnote and reviewing the article. The Latham & Watkins team also did not notice the additional wording errors in footnotes 2 and 3 of Ms. Chen's declaration, as described above in paragraph 6.

This was an embarrassing and unintentional mistake. The article in question genuinely exists, was reviewed by Ms. Chen and supports her opinion on the proper margin of error to use for sampling. The insinuation that Ms. Chen's opinion was influenced by false or fabricated information is thus incorrect. As is the insinuation that Ms. Chen lacks support for her opinion. Moreover, the link provided both to this Court and to Plaintiffs was accurate and, when pasted into a browser, calls up the correct article upon which Ms. Chen had relied. Had Plaintiffs' counsel raised the citation issue when they first discovered it, we could and would have confirmed that the article cited was the one upon which Ms. Chen relied and corrected the citation mistake.

We have implemented procedures, including multiple levels of additional review, to work to ensure that this does not occur again and have preserved, at the Court's direction, all information related to Ms. Chen's declaration. I understand that Anthropic has also preserved all information related to Ms. Chen's declaration as well….

The post Seemingly Nonexistent Citation in Anthropic Expert's Declaration [UPDATE: Apparently Caused by Lawyer's Misuse of Claude to Format Citations] appeared first on Reason.com.

[Ilya Somin] My New Lawfare Article "Trump's 'Emergencies' Are Pretexts for Undermining the Constitution"

[The article explains why these claims to emergency powers are illegal and dangerous, and how to stop them.]

Today, Lawfare published my article "Trump's 'Emergencies' Are Pretexts for Undermining the Constitution." Here is an excerpt:

The Trump administration has exhibited a dangerous pattern of invoking spurious emergencies to undermine the Constitution, threatening liberty and circumventing Congress. This is most evident in the fields of immigration and trade policy. If not stopped, or at least curtailed, these policies could harm millions of people, imperil civil liberties, and compromise our constitutional system. Abuse of emergency powers is far from unique to the current administration. But Trump has taken this tendency to new heights…..

On immigration, Trump asserts vast emergency powers by claiming that illegal migration and drug smuggling amount to an "invasion," issuing an executive order to that effect. He further claims that this authorizes him to invoke the Alien Enemies Act (AEA)—a 1798 law that can be used only in the event of war, "invasion," or a "predatory incursion" by a foreign government. Trump's invocation of the AEA is—so far—limited to alleged members of the Venezuelan drug gang Tren de Aragua (TdA). But similar reasoning could be used to target migrants from almost any country that is a source of illegal migration or drugs….

Trump has also declared an "emergency" at the southern border, despite the fact that illegal entries have been low since his term started. The "emergency" and the "invasion" executive orders have been invoked to shut down most legal migration across the southern border, inflicting grave harm on immigrants fleeing oppression (many thousands of whom will be denied the opportunity to seek asylum).

These measures set the stage for the administration's dangerous—and illegal—uses of the AEA. Trump's "invasion" theory goes against extensive evidence that, under the Constitution and the AEA itself, "invasion" means an "operation of war" (as James Madison put it), not mere illegal border crossing or drug smuggling. Before Trump, the AEA had been used only three times, all during major wars against foreign powers: the War of 1812, World War I, and World War II. As several courts have now ruled, a "predatory incursion" (which is an alternative ground for invoking the AEA) is also a type of military attack. If illegal migration and drug smuggling qualify as "invasion," then the U.S. must necessarily be in a state of "invasion" at all times, since these phenomena are ubiquitous….

Trump has used the AEA as justification for deporting people to imprisonment in El Salvador without due process (and, in many cases, in error)—and then claiming that they cannot be returned on the grounds that they are in the custody of a foreign power. This is a blatant violation of the Fifth Amendment, which requires "due process of law" before anyone can be deprived of "liberty…."

With his "Liberation Day" executive order, Trump has imposed massive tariffs on goods from almost every nation in the world, triggering the biggest trade war since the Great Depression. This order relied on the 1977 International Emergency Economic Powers Act (IEEPA), which can be invoked only in the event of an "emergency" arising from an "unusual and extraordinary" threat from abroad. Trump's invocation of emergency powers to impose the "Liberation Day" tariffs suggests that the president can impose a tariff of any amount, on goods from any country, for any reason. If long-standing (and generally harmless) trade deficits that supposedly justify these measures qualify as an "emergency" and an "extraordinary and unusual threat," the same can be said of virtually anything. Indeed, Trump now threatens to use IEEPA to impose 100 percent tariffs on foreign-produced movies, based on the dubious claim that they pose "a National Security threat…"

Trump is far from the first president to abuse emergency powers. President Biden, for example, used the coronavirus emergency as a pretext to raid the Treasury to forgive some $400 billion in student loan debt (the Supreme Court rightly ruled against him). More generally, the National Emergencies Act of 1976, at least as currently interpreted, has made it too easy for presidents to declare an "emergency" in a wide range of circumstances that do not merit it.

But Trump's abusive emergency power claims are distinctive in the enormity of their scope. Using claims of "invasion" to shut down most legal migration across the southern border and engage in deportation and imprisonment without due process is unprecedented. Shutting down asylum condemns hundreds of thousands of migrants to poverty and oppression. If allowed to continue, deportation without due process could similarly be used against others, including legal immigrants and even U.S. citizens.

Using a fabricated "emergency" as a pretext to start the biggest trade war since the Great Depression is also an unprecedented abuse of the system of emergency powers, one that will impose some $1.4 to 2.2 trillion in tax increases on Americans over the next decade. By comparison, Biden's $400 billion student loan forgiveness power grab seems relatively modest….

In the long run, constraining dangerous emergency powers requires both judicial and legislative vigilance. Courts would do well to enforce the ordinary language definition of "emergency" as a sudden unexpected crisis, not just any possible public policy problem. As a House of Representatives report leading to the enactment of IEEPA explained, "emergencies are by their nature rare and brief, and are not to be equated with normal ongoing problems…."

Congress should adopt legislation limiting presidentially declared emergencies to 30 days, unless it affirmatively votes to extend such emergencies. This would represent a marked improvement on the current system, under which Congress can terminate a presidentially declared emergency only by passing a new law—a near-impossible feat, given the two-thirds supermajority required to override a nearly inevitable White House veto….

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[Jonathan H. Adler] Roberts' Rules for Defending Judicial Independence and the Rule of Law

[The Chief Justice is more consistent than his critics, left and right.]

On Monday, Chief Justice Roberts spoke at the Georgetown Law School> Among other things, the Chief repeated his concern about threats to the rule of law and judicial independence. From Politico's report:

Chief Justice John Roberts described the rule of law as "endangered" and warned against "trashing the justices," but speaking in Washington Monday he didn't point fingers directly at President Donald Trump or his allies for publicly excoriating judges who've ruled against aspects of Trump's agenda.

"The notion that rule of law governs is the basic proposition," Roberts said during an appearance at Georgetown Law. "Certainly as a matter of theory, but also as a matter of practice, we need to stop and reflect every now and then how rare that is, certainly rare throughout history, and rare in the world today."

While the Chief Justice may not have "point[ed] fingers" at President Trump or his allies in these remarks, the Chief Justice has responded to President Trump's criticisms of federal judges and calls for impeachment. Indeed, contrary to Politico's suggestion, the Chief Justice has been rather consistent in calling out threats to judicial independence and the rule of law from all quarters--and in this he is the exception.

As I discuss in my latest Civitas Outlook piece, the Chief Justice has been consistent in his appeals to and defense of these principles, whereas most of his critics have not been.

Speaking in Buffalo on May 7, the Chief Justice reiterated his views, noting, "impeachment is not how you register disagreement with decisions." As Roberts explained, judicial independence is "central" to the constitutional structure, adding that "the only real political science innovation in our constitution… is the establishment of an independent judiciary." Alexander Hamilton in Federalist No.22 lamented that the lack of a federal judiciary "to expound and define" the "true meaning" of the laws was among the crowning "defects" of the Articles of Confederation. For the judiciary to play that role, Roberts noted, it cannot be under the sway of either of the other branches. The "innovation" embodied in Article III "doesn't work if the judiciary is not independent."

Donald Trump is hardly the only one to have earned rebukes from the Chief Justice for unwarranted attacks on the judiciary. The Chief Justice's most recent year-end report on the state of the judiciary—released before Trump returned to office – inveighed against threats of violence, intimidation, misinformation about judicial decisions, and threats to defy court orders as serious threats to judicial independence. Though some may have forgotten by December 2024, some prominent progressive voices had suggested that the Biden Administration should consider defying court orders and ignoring the Supreme Court's decisions on high profile matters.

And we should not forgot the Chief Justice's forceful statement in response to Senator Schumer's threatening remarks in front of the Court in 2020.

Those who care more about judicial independence and the rule of law than they do about policy victories or partisan advantage would do well to emulate the Chief Justice's approach. Alas, it seems most commentators only raise concerns about the rule of law when the threats come from an opposing tribe. This feeds cynicism about appeals to such principles and undermines efforts to defend the rule of law.

The failure of legal elites to call out the efforts of prior Democratic administrations to ignore legal constraints and evade judicial review does not excuse the Trump Administration's conduct. Two wrongs do not make a right, and there are plenty of wrongs.

But if one is concerned about defending the rule of law, recognizing that threats may come from multiple directions is necessary, as a matter of prudence and civic hygiene. If one wants to be taken seriously as a defender of neutral values, and not merely a partisan wielding whatever rhetorical sword is useful in the moment, one has to aspire toward consistency. . . .

When legal elites turn a blind eye to threats to judicial independence and the rule of law from their political allies, they degrade the value of their voices. The ability to identify transgressions against one's own interests is a sign of good faith and demonstrates that the principle actually matters and is not simply a useful cudgel to wield in political combat. Conspicuous failures to call out offenses and transgressions by one's allies undercut the speaker's moral authority and make it easy for others to write them off as mere partisan actors deploying aspirational rhetoric. Appeals to neutral principles are heard as political subterfuge—perhaps with reason.

Current concerns about the rule of law are justified. The Trump Administration has shown insufficient regard for legal constraints on executive power and has been unduly adversarial with the federal courts. Some of the administration's actions reek of deliberate indifference to constitutional constraints and a lack of good faith. At the same time, some lower court judges have overreacted, stretching their authority to issue nationwide injunctions and block contestable exercises of executive power. If the rule of law is to be defended, it must be defended on principle, with neither fear nor favor for the direction from which such threats emerge.

Many conservatives concerned about the Trump Administration's legal transgressions will nonetheless refuse to play by rules the opposition will not abide by. Rule of law constraints for thee, but not for me, is not a viable option. Asking constitutionalist conservatives to play Charlie Brown trying to kick the football will end the game, and likely on terms no one will like. Those who would preserve judicial independence and rule of law values should heed this message and emulate the Chief Justice's even-handed concerns before it is too late.

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[Steven Calabresi] Some Reasons to be Skeptical of Nationwide Injunctions

[The Supreme Court in Trump v. CASA, Inc. should rein in the district courts' use of nationwide injunctions.]

I disagree, on the merits, with President Trump's executive order denying birthright citizenship to children of non-citizens who are born in the United States because their parents were here without a green card. I will explain my reasons for disagreeing with the President in more detail in a future blog post. My reading of the Constitution, the caselaw, the scholarly commentary, and of our history leaves me persuaded that United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898), was correctly decided 127 years ago. Justice Gray's opinion in that case for six justices of the Supreme Court is far more persuasive and more thorough than is Chief Justice Fuller's dissent.

I disagree, however, with the increasingly aggressive issuance of nationwide injunctions by the federal district courts, including the nationwide injunctions at issue in Trump v. CASA, a birthright citizenship case which is presently before the Supreme Court. Article III, Section 2 of the Constitution explains that "The judicial Power shall extend" to nine, and only nine, categories of specific cases or controversies. The federal courts do not have the power to decide issues nor are they the sole expositors of the meaning of the Constitution.

The Constitution never mentions the word "interpretation." It never expressly grants any actor a power of interpretation and does not expressly grant courts a power of judicial review. The only powers granted by the Constitution are legislative, executive, and judicial powers. All of those powers require those who exercise them to engage in interpretation to ascertain the scope and limits of their powers (and the powers of other actors), but those powers of interpretation are incidental to the exercise of [the legislative, the executive, and the judicial power]. [Steven Gow Calabresi & Gary Lawson, The Meese Revolution: The Making of a Constitutional Moment 192 (2024).]

As former Attorney General Ed Meese explained in his October 21, 1986 speech on "Departmentalism" at Tulane University, all three departments of the federal government must interpret and enforce the Constitution when they perform their own distinctive functions. Congress must interpret and follow the Constitution when it makes the laws, the President must interpret and follow the Constitution when he executes the laws, and the Article III federal courts must interpret and follow the Constitution when they are deciding one of the nine categories of cases or controversies that they have jurisdiction to decide. Presidents Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin D. Roosevelt all said precisely the same thing as did Attorney General Ed Meese. [Steven Gow Calabresi & Gary Lawson, The U.S. Constitution: Creation, Reconstruction, the Progressives, and the Modern Era 111-114 (2020).]

It is true, as President Madison wrote, that "Without losing sight … of the co-ordinate relations of the three department to each other, it may always be expected that the judicial bench, when happily filled, will … most engage the respect and reliance of the public as the surest expositor of the Constitution" because of "the qualities implied in its members; … the gravity and deliberation of their proceedings; and by the advantage their plurality gives them over the unity of the Executive department, and their fewness over the multitudinous composition of the Legislative department." [Id. at 111-112.]

But President Madison's explanation as to why the Judicial department "attracts most the public confidence" applies rather uniquely to the Supreme Court and not to each and every one of the 667 individual permanent federal district court judges who have not taken senior status. When an individual federal district court judge issues a nationwide, or global, injunction directed at the President of the United States, it can only extend to the party who has standing to bring a Case or Controversy before the district court. Frothingham v. Mellon, 262 U.S. 447 (1923); Massachusetts v. Mellon, 262 U.S. 447 (1923). And standing in such a case depends upon there being (1) a concrete and particularized legal injury that is not speculative and hypothetical (2) that has been caused by the President and (3) that can be redressed via judicial review. Any remedial judicial injunction can apply only to the party or parties who brought the case or controversy and that had standing to bring the case or controversy in the first place.

It is not at all clear that any of the parties in Trump v. CASA has suffered a legal injury that warranted the issuance of a nationwide injunction. Such parties will surely exist if, and when, President Trump tries to deport a named non-citizen who was born in the United States to parents who were in the country without a green card, or if, and when, President Trump tries to deny a U.S. passport to such a person. But even then, the Article III district courts only have power to issue injunctions as to the parties who are actually before the court. Article III district judges do not have the power to review in the abstract the constitutionality of President Trump's misguided birthright citizenship order, which is what the lower federal courts did in Trump v. CASA.

No sane legal system would give any one of 667 district judges, acting alone, the power to set aside the actions of the President, in the abstract, as to some legal issue that annoyed someone or even that annoyed 20 State Attorneys General. Such a system creates an incentive for forum shopping and for individual judges to abuse their power. It prevents the deliberation of issues by many judges, and ultimately by the Supreme Court, which is absolutely necessary for the public to have confidence that our unelected judiciary is deciding cases or controversies according to law rather than for partisan reasons. It also hamstrings the President of the United States, who is chosen by all the people of the nation in an election that is widely considered to be the most important election that our nation holds.

Judicial review, ultimately by the Supreme Court, is a vital part of our American system of checks and balances, but the Framers of the Constitution quite deliberately chose not to give the Article III federal courts the power to issue advisory opinions rather than the power to slowly and deliberately decide "cases" or "controversies" of "a judiciary nature." The idea that any one of 667 federal district judges should act as a king on some particular issue is itself a threat to our system of checks and balances because it concentrates too much power, in too few judges, acting far too quickly. And it bears noting that federal district judges are often in practice selected by their home state senators and do not have the same stamp of national approval as has the Supreme Court.

The American people will not have, and should not have, confidence in the impartiality and soundness of judicial decision-making that occurs in the frenzied fashion in which it occurred in Trump v. CASA. It is time for the Supreme Court to set some limits on the inferior federal courts with respect to the issuance of nationwide injunctions.

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[David Post] Another Remembrance of Justice Souter

[My small addition to the catalogue of Justice Souter's courtesies]

Adding to Mark Movsesian's tribute to his former boss - a "true gentleman," Movsesian calls him - I thought I might share a couple of stories about the "gentlemanly" side of Justice Souter.  Though I knew Justice Souter hardly at all, he lodged himself in my memory as a result of a couple of encounters.

As many of you may know, there was (and, I trust, still is) a tradition at the Supreme Court that each chamber's clerks invite each of the other Justices, one at a time, to join them for lunch at some eatery near the Court.  The year I clerked (1993-94, for RBG), we ended up having lunch with four of the Justices (Souter, Scalia, Rehnquist, and Thomas), missing out, for one reason or another given everyone's busy schedules and the general chaos that often prevails at the Court, on Kennedy, O'Connor, Stevens, and Blackmun.

Lunch with Souter was delightful, but what I remember most was that each of the clerks received a nice handwritten note from the Justice, thanking us for treating him to lunch. In each of the notes he inserted something that was pegged specifically to something we had said at lunch; in my case, he made reference to a couple of things I had mentioned regarding my kids, who were both in elementary school at the time - something about Sam's upcoming piano recital and Sarah's decision about which middle school she wanted to attend.

We were thoroughly charmed - he was actually listening to what we were saying!

Then, on the last weekend of the Term, when all the decisions had been issued and everyone was packing up for the summer break, I went down to Souter's chambers to see if any of his clerks were still around; I had become pretty good friends with a couple of them, and I wanted to say good-bye and see them off.  As it happened, none of them was around - but the Justice was there, standing in his outer office chatting with his secretary. He immediately invited me in for a chat, and we spent the next 15 minutes or so sitting in his office talking about this and that - our plans for the summer, where I was going to be working next, the intriguing similarities and differences between New Hampshire (where his heart is) and Vermont (where mine is), and the like. It felt, more than just a bit, like we were old pals, just chewing the fat on a summer afternoon.

The ability to put people at ease like that is very rare, certainly among Supreme Court Justices; Souter managed to communicate a genuine warmth of spirit that was quite remarkable - "gentlemanly" in the best sense of the term. May he rest in peace.

 

 

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[Stephen Halbrook] Second Amendment Roundup: Washington Supreme Court Upholds Mag Ban

[It’s déjà vu all over again.]

On May 8, in its 7-2 decision by Justice Charles Johnson in State v. Gator's Custom Guns, the Washington Supreme Court upheld the state ban on the import and sale of magazines that hold over ten rounds.  Last year I posted "Injunction Against Washington Magazine Ban Stayed Within Minutes," explaining how Superior Court Gary B. Bashor's 55-page preliminary injunction against the ban was stayed just 49 minutes after the state filed its appeal brief with the Supreme Court.  The case is now remanded to consider the State's consumer-protection enforcement action against Gator's for alleged violation of the ban.

The court followed the now-familiar script that "large capacity magazines (LCMs) are not 'arms' within the meaning of either constitutional provision, nor is the right to purchase LCMs an ancillary right necessary to the realization of the core right to possess a firearm in self-defense."  That is the case both under the federal Second Amendment and under Washington's guarantee that "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired…."

Based on Heller's quotation from a 1771 dictionary defining "arms" as anything that a man "useth in wrath to cast at … another," the court said that "the LCM itself does not cast the round but feeds the round into the firearm."  Further, such magazines are supposedly not "integral components" of firearms because no firearm requires a magazine of the subject capacity to operate.

It goes without saying that no specific part of a firearm – the barrel, sights, safety, or stock – is used "to cast at another."  And a magazine is necessary to feed a round into a semiautomatic firearm.  The assumption that a magazine that holds ten or under rounds may be protected but one that holds over ten is not, has no constitutional basis.  (As an aside, semiautomatics with a "magazine safety" won't fire at all without a magazine inserted.)

Recall that Heller held that "arms 'in common use at the time' for lawful purposes like self-defense" are protected.  The Gator's court rejects "ownership statistics" on the basis that "whether LCMs are common in circulation does not inform this court whether they are 'commonly used for self-defense,' as how many LCMs are owned has no bearing on what those LCMs are actually used for."  They are allegedly not so used because "the average number of shots fired in self-defense is merely 2.2."

It turns out that the Gator's opinion simply parrots the same playbook as the Ninth Circuit in its recent decision in Duncan v. Becerra upholding California's ban on mere possession of magazines that hold more than ten cartridges.  See my post here.  How did it come to this?

After Heller set forth the common-use test, courts that upheld the bans readily conceded that the test was met.  In Heller II, the D.C. Circuit found, "We think it clear enough in the record that semi-automatic rifles and magazines holding more than ten rounds are indeed in 'common use,' as the plaintiffs contend…. There may well be some capacity above which magazines are not in common use but, if so, the record is devoid of evidence as to what that capacity is; in any event, that capacity surely is not ten."  Then-Judge Brett Kavanaugh dissented, agreeing that the banned rifles were in common use but suggesting a remand on the magazine issue for more facts on common use.

While never questioning that the banned items are "arms" and conceding that they are in common use, Heller II applied intermediate scrutiny to find that public safety outweighed the constitutional right.  Other decisions, such as that of the Second Circuit in New York State Rifle and Pistol Ass'n, Inc. v. Cuomo, followed the same reasoning.

That is, until the Supreme Court in Bruen held that applying means-ends scrutiny "is one step too many."  Instead, Bruen held: "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation."

Painted into the Bruen corner, courts with the agenda to uphold bans suddenly discovered that semiautomatic rifles and magazines that hold over ten rounds are not even "arms" after all, and even if they are, the government, not the people, gets to decide whether they are any good for self-defense.  It turns out that the government knows best when it comes to exercise of a constitutional right.

Such courts are not fazed by Bruen's directive that "even though the Second Amendment's definition of 'arms' is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense."  The Gator's court contorts this reference to mean that such instruments must be viewed in isolation, i.e., that a magazine by itself cannot be used in self-defense, despite the fact that it is an instrument (aka "object") that could obviously facilitate armed self-defense.  It uses as an analogy its prior holding in Seattle v. Evans that a paring knife that a person carried for self-defense was not designed as a weapon, such as a dagger would be, and thus was not an "arm" when so carried.

What a stingy interpretation of a constitutional right.  Pity the poor person who can't afford a dagger.  But wait, aren't daggers like Bowie knives, the epitome of what can be banned?  Bruen didn't think so – in medieval times "[a]lmost everyone carried a knife or a dagger in his belt," and "[c]ivilians wore them for self-protection," making them "as most analogous to modern handguns."  And as a medieval expert informs us, "for the common man, a dagger was an everyday utility, serving purposes from cutting food to self-defense."

Dissenting in Gator's, Justice Gordon McCloud points out that the majority views history "at an extremely high level of generality—so high that we characterize those old laws as barring weapons once society weighs their utility against their danger and decides that they are too dangerous."  But that's "precisely the sort of policy-laden interest-balancing" that Bruen rejected.

Moreover, the Second Amendment protects the right to keep and bear arms "in common use" not just for self-defense, but also for other "lawful purposes" such as hunting and target practice.  And as for self-defense, firearms with magazines are being "used" when kept and borne for that purpose, not just when shots are fired, rendering the supposed average firing of 2.2 shots in self-defense meaningless.  The majority's premise that "the State alone gets to select the arms that individuals can use for self-defense" turns the constitutional right upside down:

But the Second Amendment doesn't protect the right of the State to choose the best arm for self-defense; it protects the right of the individual to make that choice. So despite what the State prefers, under Heller's "in common use" test, the popularity of an arm among the law-abiding public actually determines whether that arm enjoys Second Amendment protection.

The state argued that a magazine is analogous to a Revolutionary-War-era "cartridge box," making it merely "an accessory, not an arm."  As Justice McCloud notes, while both a cartridge box and a magazine store ammunition, a magazine "uses a spring or other mechanism to feed rounds of ammunition into the gun's firing chamber. It is an integral part of the firearm, like a trigger or a grip."

What is obvious is that the Washington Supreme Court got the post-Bruen memo on how recalcitrant courts can best obstruct Bruen's methodology.  Deprived of intermediate scrutiny, their rulings can reach the same result by denying that an arm is an "arm" under the plain text.  Reminds one of the pre-Heller days when "the people" didn't include actual persons (only state militias) and "arms" didn't include handguns, and the pre-Bruen days when "bear" didn't mean carry.

Without intervention by the United States Supreme Court, this obstruction will continue.  The Court has yet again relisted two Second Amendment cases for its conference on Friday May 15.  They include Ocean State Tactical v. Rhode Island, which concerns Rhode Island's magazine ban, and v. Brown, which concerns Maryland's ban on semiautomatic rifles.  Keep your fingers crossed.

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