Eugene Volokh's Blog, page 106

[Ilya Somin] White House May Try to Suspend the Writ of Habeas Corpus in Order to Facilitate Deportation of Migrants

[I have long warned of this dangerous implication of the argument that illegal migration qualifies as "invasion."]

(NA)

White House Deputy Chief of Staff Stephen Miller recently said the Trump Administration is "actively looking" into suspending the writ of habeas corpus in order to prevent immigrants from challenging their deportation in court:

White House deputy chief of staff Stephen Miller said Friday that President Trump and his team are "actively looking at" suspending habeas corpus as part of the administration's immigration crackdown.

"Well, the Constitution is clear — and that of course is the supreme law of the land — that the privilege of the writ of habeas corpus can be suspended in a time of invasion," Miller told reporters at the White House.

A writ of habeas corpus compels authorities to produce an individual they are holding and to justify their confinement.

It's been a key avenue migrants have used to challenge pending deportations under the Alien Enemies Act, a rarely-used 18th-century power Trump cited to deport Venezuelan nationals he's accused of being gang members to a notorious megaprison in El Salvador.

If the writ of habeas corpus is suspended, the consequences would not be limited to supposedly illegal migrants. Legal immigrants and US citizens could be detained without due process, as well.

I have been warning about this implication of the argument that illegal migration is "invasion" for a long time. See, e.g., here and here.

If illegal migration and cross-border drug smuggling are "invasion," that means we are in a state of invasion at virtually all times, since these activities have been ubiquitous for so long as we have had the War on Drugs and significant migration restrictions. That is both dangerous, and  an additional reason to conclude that this broad interpretation of "invasion" is at odds with the original meaning of the Constitution. Given the importance that the Founders assigned to the writ of habeas corpus (British violations of the writ were among the major grievances that led to the American Revolution), they would not have created a system where the federal government could suspend it at any time.

Fortunately, courts (including both liberal and conservative judges) have so far uniformly rejected the administration's claims about the meaning of "invasion" in ongoing litigation over the Alien Enemies Act. Multiple earlier court decisions have reached the same conclusion with respect to the meaning of "invasion" in the Constitution. Those rulings were in cases involving state governments, and their claims to be able to "engage in war" in response to "invasion," as  Article I, Section 10, Clause 3, of the Constitution authorizes them to do.

Hopefully, that judicial trend will continue. And if the administration tries to suspend the writ based on bogus claims of "invasion," courts should reject it.

In addition, there is longstanding disagreement over the issue of whether the President can suspend the writ of habeas corpus on his own, or whether only Congress can do so. Most legal scholars hold the latter view, since the Suspension Clause is listed in Article I among the powers of Congress, not Article II (which outlines those of the executive branch). But even if the president can suspend the writ without congressional authorization, the Suspension Clause says he can only do so "when in Cases of Rebellion or Invasion the public Safety may require it." There is no such "Rebellion or Invasion" going on, and therefore suspension would be illegal.

UPDATE: Steve Vladeck has additional (I think well-taken) criticisms of Miller's statements here.

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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

[Non-citizen soldiers, habeas runarounds, and all federal law.]

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

State courts often follow bad federal precedent in interpreting their own state constitutions. How best to litigate against this? Over at the Brennan Center's State Court Report, IJ's Anthony Sanders suggests that lawyers should make originalist arguments using their own states' history. Even if they're not originalists themselves.

New on the Short Circuit podcast: Jury trial rights and a very general search.

In 2017, the Trump administration put the brakes on the expedited path to citizenship that's been available to non-citizen soldiers since World War I. After the district court strikes down some of the changes, the Biden administration rescinds the policy (while continuing to litigate the case and formulating a new policy that never materializes). Trump II administration: We're bringing the policy back, and we want to appeal the district court's opinion. D.C. Circuit: No can do. The case is moot, and also, since the recission was not an attempt to evade judicial review, the district court's opinion is vacated. If you want to pilot commercial vessels on the St. Lawrence Seaway, you need a license from the Coast Guard. The Coast Guard, however, has fully turned over its licensing authority to a private, for-profit business. When one captain—who has completed a lengthy apprenticeship but not yet received his license—raises concerns that the business is mismanaging its financial affairs, he's blackballed on a variety of pretexts. He sues the Coast Guard, arguing, among other things, that delegating its regulatory authority to a private business is unconstitutional. D.C. Circuit: And we won't get to the merits of any of it because we're not sure he completed the training, even though he did the exact same training as everyone else who received licenses. (This is an IJ case.) Over a dissent from Justice Breyer, the First Circuit says a federal prisoner in New Hampshire who complains of intolerable knee pain cannot sue prison officials for deliberate indifference to his medical needs. Because knee pain is an entirely different context than untreated asthma. On March 25, six plainclothes law enforcement officers arrested Massachusetts graduate student Rümeysa Öztürk, allegedly based solely on an op-ed she co-authored more than a year earlier. By the time her lawyer filed a habeas petition, she'd been driven across the border to Vermont. But when the gov't disclosed her location nearly 24 hours later, she'd been moved to Louisiana. The Massachusetts district court transferred the case to Vermont, which orders the feds to return her to Vermont. The feds seek an emergency stay. Second Circuit: Denied. Bring her back. Under current precedent, a probationer is entitled to two hearings when facing probation revocation: a preliminary hearing to decide whether there is probable cause to believe he violated conditions of his probation, and a revocation hearing to decide whether his probation will be revoked. Does due process require a finding that detention is necessary (to prevent flight or danger to the community) before someone can be detained between the two hearings? Third Circuit: The Supreme Court said that probable cause was sufficient, so its deliberate choice not to add a necessity requirement means that we can't. Partial dissent: Detention pending final revocation hearing wasn't at issue at the Supreme Court, so the statement is dictum that we don't have to follow. New Jersey mother learns that her son was exposed to instructional videos about Islam as part of his social studies curriculum. As one does, she sues, alleging that this violates the Establishment Clause. Third Circuit: It does not. Concurrence: It so completely does not. If you've been itching to send graphic pictures of aborted fetuses to your coworkers in the Fifth Circuit, have we got some great news for you. How long must a motion for an injunction flounder upon a district judge's desk before it is "constructively denied," allowing the movant to appeal (here, Amazon seeking relief from some NLRB rulings)? Fifth Circuit: See, the thing is, it depends. Dissent: See, the thing is, it depends. New Orleans judge tells pretrial criminal defendants to pay up to $300/month to a private, for-profit ankle-monitoring company or stay in jail. Judge does not tell defendants that the company is owned by his former law partner, who regularly donated to the judge's judicial campaigns (including an unpaid loan). Judge also does not tell defendants that other companies are available. Judge does, however, threaten jailing at the company's behest solely for failure to pay. Fifth Circuit (unpublished): This fails to plausibly allege a due process concern. (This is an IJ case.) When Rodney Reed first tried to challenge the constitutionality of Texas's postconviction DNA-testing procedures, the Fifth Circuit held his claim time-barred. Supreme Court (2023): Wrong. Fifth Circuit (2025): Point taken. So, not time-barred. But Texas's postconviction-DNA statute isn't unconstitutional, so Mr. Reed is out of luck. There's something in the water in Michigan. Specifically, dangerous quantities of lead in the city of Benton Harbor's drinking water. Plaintiffs claim that city officials lied to cover up the extent of the problem and made no serious efforts to actually fix it—leading them to continue to drink contaminated water and get sick from it. Sixth Circuit (over a partial dissent): That is sufficient to survive a motion to dismiss on a claim that the city officials violated the right to bodily integrity protected by the Fourteenth Amendment. After the Sixth Circuit (2021) denies habeas to Kentucky man sentenced to death for a 1985 murder, he petitions for rehearing en banc, which is also denied. But then a member of the original panel majority takes senior status and is replaced by judge who votes for rehearing. And so, Sixth Circuit (2024): Habeas granted. The man's lawyer failed to present evidence of severe abuse he suffered as a child, so maybe life imprisonment for him instead. This week, however, by a vote of 13 to 4, the en banc Sixth Circuit reinstates the death penalty, noting that his mitigating evidence was heard in full in a different murder case that was part of the same crime spree, and he was nonetheless sentenced to death. After a jury awards $45 mil to man wrongfully imprisoned for decades, a federal judge finds that Miami Twp., Ohio is on the hook to indemnify the detective who bungled the investigation. Township: The state law requiring us to indemnify violates due process, equal protection, and the Supremacy Clause. Sixth Circuit (unpublished): No need to get into that. You brought it up too late. A third grader in Durand, Mich. wears a "COME AND TAKE IT" hat with an AR-15 outline to school just three months after the tragic shooting at nearby Oxford High, and her school—now hosting several transferees from Oxford's school district who are still in therapy—tells her to stash the cap in her locker. Her dad sues. Sixth Circuit: Tinker lets schools head off speech that's reasonably forecast to disrupt the classroom; these classrooms include eight-year-olds processing a recent, nearby massacre. No First Amendment violation, and QI would protect the officials anyway. Affirmed. "Plaintiff Eric Ollison was a victim of an appalling failure to provide needed medical care at an Illinois prison. His chronic kidney disease was eminently treatable, but systemic failures in prison health care put him on life support and caused permanent brain damage and physical injuries." Which is exactly the sort of line a litigant likes to see in a majority opinion. Too bad it's the first line in the dissent to this Seventh Circuit ruling. Wisconsin prisoner has what he describes as a consensual sexual relationship with prison nurse, then proceeds to sue her for violating his right to be free from cruel and unusual punishments. Seventh Circuit: Unquestionably deplorable behavior on the nurse's part, given the power disparities. But an Eighth Amendment violation it is not. Allegation: After administrator openly criticizes the University of Arizona president's decision to hire a close personal buddy to a leadership role he is entirely unqualified for, the buddy launches a campaign of harassment against and ultimately fires … the administrator's husband, who also worked at the school. (The administrator had resigned). Ninth Circuit: Qualified immunity. We've never held the First Amendment protects against retaliation over a family member's speech. Concurrence: Seems like we ought to, though. This comes up a lot. Federal prisoner in Washington State gradually accumulates a substantial amount of money in his inmate trust account—gifts from family and friends. He owes over $35k in restitution, however, so officials dip into his account to pay the victims of his crimes. Prisoner: They're only allowed to take sudden, substantial windfalls, not accumulated savings. Ninth Circuit (over a dissent): No, it's fine. South African minister's visa application is denied after a consular officer learns he's to be paid by the Albuquerque, N.M. church where he'll preach (and indeed he'd already been paid during a previous visit). Which is a problem because the visa in question doesn't allow for paid work. But wait! The church's doctrine requires that ministers be paid, and the Religious Freedom Restoration Act, which protects such sincerely held religious views, "applies to all Federal law." Tenth Circuit: All federal law doesn't include visa-denial law, so the consular nonreviewability doctrine means we can't review the denial. Dissent: Seems like "all" means "all"? A man freely chats with officers about his involvement in a riverside gunfight, admitting that he fired shots during the attack. Two years later, at trial, he claims that his participation was under duress; the prosecutor reminds the jury that this defense is a "brand-new story" told for the first time at trial. The man is convicted. Tenth Circuit: And that's a Doyle violation. Can't use his post-arrest silence about duress (even though it was rather selective silence given that he, um, confessed to the shooting) to suggest an inference of guilt. Convictions vacated and remanded. Panama indicted its former President Martinelli on corruption charges in 2015, when he was living in Miami. He was extradited and then acquitted of four charges. Displeased, Panama charged him with money laundering for crimes that occurred before his extradition but were not listed on Panama's extradition request. (He's convicted of one charge.) But wait! Doesn't that violate the extradition treaty between the two countries? U.S. officials: No, the treaty no longer applied once he was acquitted. The prez sues said U.S. officials. Eleventh Circuit: He lacks standing to sue. Rockdale County, Ga. property owner spends over 20 years seeking—but not obtaining—permission to build a truck stop. Eleventh Circuit (unpublished): But he can't bring a takings claim yet because he hasn't applied for a variance to the county's most recent zoning ordinance, which was adopted specifically to bar his truck stop. And in en banc news, the Seventh Circuit will not reconsider its decision that an Illinois law professor validly alleged that his First Amendment rights were violated when he was suspended and denied a raise for using an "expurgated racial slur" in a law school exam. Judge Easterbrook writes separately to explain how dumb he thinks the idea of academic freedom is, and how dumb the university is for not also making this argument.

On May 15, SCOTUS watchers will tune in for oral argument in the challenges to the birthright citizenship executive order. What's really at issue, though, isn't birthright citizenship itself but "universal injunctions." At The Unpopulist, IJ's Anthony Sanders argues that there are some relatively minor administrative problems with nationwide injunctions, but that doesn't justify ditching universal injunctions against any government defendant altogether. Don't throw the baby out with the bathwater, especially in a case about babies.

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[Eugene Volokh] Hate Crime Hoax Could Be Constitutionally Unprotected True Threat

Photo from the indictment.

From today's decision by Judge Regina M. Rodriguez (D. Colo.) in U.S. v. Bernard:

Colorado Springs, Colorado, held an election for mayor …. CANDIDATE 1 [Yemi Mobolade -EV] is black and CANDIDATE 2 [Wayne W. Williams -EV] is white…. Defendants supported CANDIDATE 1. The Indictment alleges that the Defendants devised a plan to help CANDIDATE 1 win the runoff election. In the early morning hours [three weeks before the election], the Defendants defaced a political sign with CANDIDATE 1's name on it by using red spray paint to write the N-word on it. The Defendants then staged a burning cross in front of the sign and videotaped it.

Later that same day, the Defendants created a fake email account, posing as a concerned citizen, and sent the video, along with an email referring to hate crimes, to media outlets and CANDIDATE 1's campaign. {The email described what was depicted in the video—"To my surprise and disgust it was a cross on fire in front of running candidate's sign for Mayor. Looking past the flames I see it's Yemi Mobalade's sign with the word sprayed painted across in red 'NIGGER'!" The email also included language regarding hate-crime tactics used to harass and intimidate candidates and voters in elections.} According to Defendant Bernard, Defendants' actions were "specifically designed to generate voter outrage and support for a candidate" they actively backed….

Defendants were charged with conspiracy and with "using instrumentalities of interstate commerce to maliciously convey false information to intimidate someone by means of fire," and the court rejected defendants' motion to dismiss the charge:

For the government to succeed on [the intimidation] charge, it must prove that the communication in question was a true threat lying outside of First Amendment protection…. "The 'true' in [the term 'true threat'] distinguishes what is at issue from jests, '[political] hyperbole,' or other statements that when taken in context do not convey a real possibility that violence will follow (say, 'I am going to kill you for showing up late')." True threats instead "encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." [A true threat] "subject[s] individuals to 'fear of violence' and to the many kinds of 'disruption that fear engenders.'" … [T]he mens rea required to prove a true threat is recklessness, meaning that "a speaker is aware that others could regard his statements as threatening violence and delivers them anyway." …

Defendants argue that they did not intend to threaten CANDIDATE 1 but instead intended to support his campaign. Defendant Bernard argues that "the distribution of the video actively disavowed and condemned the cross burning: (1) Expressed outrage at the act; (2) Blamed political opponents; (3) Urged support for Candidate 1; and (4) sought to mobilize voters" and therefore the context of the communication was "political theater." … [But t]he reference to hate crimes in the email indicates that the Defendants were aware that others who saw the video of the burning cross in front of the defaced political sign would, or should, view it as a threat or intimidation to CANDIDATE 1 and/or his supporters. It's not clear that others who saw the video understood the context that was intended…. CANDIDATE 1 may testify at trial as to what the Defendants' communication conveyed to him. A reasonable jury could find that Defendants meant their communication not as "political hyperbole" or "political theater" but rather as statements "convey[ing] a real possibility that violence will follow."

In sum, the Court finds that this is not a case where the statements made by the Defendants were so clearly protected by the First Amendment that the Court can hold, as a matter of law, that they did not constitute a true threat. Instead, the Court finds that "whether a defendant's statement is a true threat or mere political speech is a question for the jury." Considering all of the relevant factors, the Court has little difficulty concluding that a reasonable juror could find that the Defendants' comments were a true threat….

Bryan David Fields and Candyce C. Cline represent the government.

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[Eugene Volokh] Free Speech Unmuted: Can AI Companies Be Sued For What AI Says?

A mother sues Character.AI, claiming that a conversation between her teenage son and a Character.AI chatbot led him to commit suicide. A conservative activist sues Meta, claiming that its AI generated false accusations about him. Jane and I analyze these cases, and more broadly, discuss lawsuits against AI companies, and possible First Amendment defenses to those lawsuits.

See also our past episodes:

Free Speech Unmuted: Harvard vs. Trump: Free Speech and Government Grants Free Speech Unmuted: Trump's War on Big Law Can Non-Citizens Be Deported For Their Speech? Freedom of the Press, with Floyd Abrams Free Speech, Private Power, and Private Employees Court Upholds TikTok Divestiture Law Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama Protests, Public Pressure Campaigns, Tort Law, and the First Amendment Misinformation: Past, Present, and Future I Know It When I See It: Free Speech and Obscenity Laws Speech and Violence Emergency Podcast: The Supreme Court's Social Media Cases Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky Free Speech On Campus AI and Free Speech Free Speech, Government Persuasion, and Government Coercion Deplatformed: The Supreme Court Hears Social Media Oral Arguments Book Bans – or Are They?

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[Josh Blackman] Justice Souter's Papers Will Be Available In The Year 2075

[The Justice was "emphatic" that his papers would be available only fifty years after his death.]

Today the Supreme Court announced that Justice David H. Souter passed away at his home in New Hampshire. I expect there will be many remembrances of the Justice. But today does mark something of a countdown.

In 2015, Justice Souter told my colleague Gerard Magliocca that his papers would become available fifty years after his death:

"I have given such papers as I've retained to the New Hampshire Historical Society, to be opened for inspection after the 50th anniversary of my death. By that time, they will be of interest only to the historians taking the long view."

Tony Mauro offered more details at the defunct Blog of the Legal Times:

Bill Veillette, the historical society's executive director in 2009, also confirmed on Wednesday that Souter's wish all along was for release of his papers 50 years after his death, not his retirement.

"He was very emphatic about it," Veillette recalled. "He told me, 'I've got an incinerator outside my house, and either you agree to 50 years after my death, or they go into the incinerator.'" Since many papers are donated by families decades or centuries after a notable person's death, Veillette said Souter's 50-year delay seemed relatively brief. Veillette is now the executive director of the Northeast Document Conservation Center in Massachusetts.

(I miss BLT.)

Start the clock. Souter's papers will be available at the earliest in the year 2075--just in time for the Tricentennial. If I am still on planet earth then, I would be about 90 years old. I am skeptical anyone in the year 2075 will have much interest in those papers, as all of Souter's other colleagues will have likely released their papers by then.

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[Eugene Volokh] Transcendental Remediation: $2.6M Settlement in Lawsuit Over Chicago Public School Transcendental Meditation Program

The ABA Journal (Debra Cassens Weiss) reports on the settlement (in which "defendants did not admit liability"):

The lead plaintiff in the [class action] suit, Kaya Hudgins, was a practicing Muslim at the time of the "Quiet Time Program," according to prior coverage by Patch and Religion News Service and an April 2024 press release. Transcendental meditation was represented as nonreligious, but the mantras that students were taught to silently repeat were in fact words that honored or referenced specific Hindu deities, the suit had alleged.

The suit also alleged that students were required to complete a "Puja" initiation ceremony that included chants recognizing powers of Hindu deities.

Here's an excerpt from Judge Matthew Kennelly's decision in Williams v. Bd. of Ed. (N.D. Ill. 2021), which had allowed a related lawsuit to go forward:

Williams attended Bogan Computer Technical High School (Bogan) in Chicago from fall 2017 until he graduated on June 18, 2019. While Williams was a student, Bogan implemented the Quiet Time program during the 2017–18 and 2018–19 school years….

According to Williams, his first experience with Transcendental Meditation as a part of the Quiet Time program occurred during the 2018–19 school year, when he was eighteen years old. He stated that he did not receive any letters about the program to give to his parents, but in October 2018 he and other students were given a document titled "Quiet Time Program Student Application for Transcendental Meditation Instruction Bogan High School." He also stated that he had been informed that Transcendental Meditation was "a really effective way to meditate and find yourself" and that he signed the form when it was first presented to him because he "was interested learning [meditation] properly."

Although the document included language stating that "learning the TM technique is an optional activity," Williams maintained it was "not optional" and "mandated" for students to sign the document. He explained that this was because students who initially chose not to learn Transcendental Meditation "eventually had to sign up," though "off the top of [his] head at the [moment]" he was unable to name any student who did not sign the document at first and later "was forced to do [Transcendental Meditation]." As for meditating during the fifteen-minute Quiet Time periods, Williams did not dispute that "if [he] didn't want to do [Transcendental Meditation], [he] didn't have to."

In contrast, Principal Aziz-Sims testified during her deposition that students could choose not to learn Transcendental Meditation. She stated that although students who were disrupting others during Quiet Time may have been reprimanded by a teacher, an administrator, or the principal herself, she was not aware of any Bogan student being disciplined for choosing not to learn Transcendental Meditation. She also testified that she approved giving students at least two letters explaining Quiet Time to their parents and allowing their parents to opt out of the program, in accordance with the school's policy regarding student involvement in other school activities.

Sunita Martin, an independent contractor with DLF [David Lynch Foundation] who was involved in implementing Quiet Time, similarly stated that students were given an "opt-out packet" and instructed to "take it home and give to their parent or guardian so that they could look it over and if their parent was not interested in them learning, then they would return that to us so we could know." Students who were interested in learning Transcendental Meditation "could fill out a one-page form with their name, the classroom that they were in so that we could keep record of who was interested and who was not." Various other employees of the University and DLF also testified that learning Transcendental Meditation was optional and that they did not witness any students being required to meditate during Quiet Time.

Williams signed the consent form and began learning Transcendental Meditation in October 2018. He and other students who learned Transcendental Meditation participated in a training course for one hour each day over the course of four days. On the first day of his training, Williams was present for a three-to-four-minute initiation ceremony. The initiation took place at a classroom at Bogan. It involved a Transcendental Meditation instructor placing assorted items in front of a painting of a man and speaking in Sanskrit. The items varied from one initiation to the next, but could include flowers, fruit, a candle, rice, water, and sandalwood powder. Williams testified that he mostly stood and observed the initiation, but at one point the instructor asked him to repeat words in a language that he did not understand. He stated that when he asked what the words he repeated meant, the instructor informed him that those words did not have any meaning. The instructor also gave Williams a "mantra" on his first day of training and instructed him to repeat it while meditating. Williams said that the instructor told him the mantra "didn't have any meaning" and was a tool to help him relax during meditation. He further testified that the "only thing [the Quiet Time staff] claim[ed]" over the course of the program was that "anything they were showing us had no deep significance to it or meaning behind it and just to do [it]." Students who did not learn Transcendental Meditation were neither present for the initiation nor given a mantra.

On occasion throughout the 2018–19 school year, Transcendental Meditation instructors came to Williams's classroom and led him and other students through a meditation. During those sessions, the instructors rang a bell to start meditation, told the students to think of their mantra during the meditation, and rang another bell to end meditation. Not every student in Williams's class meditated during the instructor-led meditations, and Williams stated that he personally practiced Transcendental Meditation approximately twenty-five percent of the time during the fifteen-minute Quiet Time periods until the spring of 2019.

Around that time, substitute teacher Dasia Skinner approached Williams and informed him that she believed Transcendental Meditation was a religious practice. Williams testified that after speaking with Skinner—who was neither trained in Transcendental Meditation nor involved in implementing Quiet Time—and doing "his own research," he concluded that the mantra he received and the initiation ceremony were related to Hinduism. Williams also agreed, however, that the meditation instructors and Quiet Time program staff did not instruct him to "believe in a particular religion or particular deity." Williams stopped practicing Transcendental Meditation after speaking with Skinner, and he graduated from Bogan when the school year ended on June 18, 2019.

The court concluded Williams' Establishment Clause claim was potentially viable:

The Court … [concludes that] there is a genuine dispute of material fact and a reasonable jury could—but is not guaranteed to—find that Quiet Time violated the First Amendment….

The defendants contend that Williams has failed to satisfy Kennedy v. Bremerton School District's "historical practices and understandings" test. They point out that Williams at most distinguishes Kennedy on the facts but does not discuss or analyze any historical practices relating to allegedly religious activities in public schools. Yet a historical analysis is not necessary in this case. The Court stated in Kennedy that it did not overrule prior decisions in which "[the Supreme Court] has found prayer involving public school students to be problematically coercive." And the Court stated that it "has long held that government may not, consistent with a historically sensitive understanding of the Establishment Clause, 'make a religious observance compulsory.'" A state actor therefore "may not coerce anyone to attend church" or participate in "a formal religious exercise," and "coercion along these lines was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment."

The Seventh Circuit has recognized that one test for evaluating Establishment Clause challenges "is known as the 'coercion' test[,]" and "[t]he Supreme Court has applied this test in school prayer cases." Kennedy's extensive discussion of coercion indicates that this test is still good law, as the decision makes it clear that compulsory prayer or other religious activities in schools do not align with this country's historical practices and understandings. Although "[the Supreme Court] has long recognized as well that 'secondary school students are mature enough … to understand that a school does not endorse,' let alone coerce them to participate in, 'speech that it merely permits on a nondiscriminatory basis[,]' " there is also a "traditional understanding that permitting private speech is not the same thing as coercing others to participate in it." To the extent that a school program or activity that causes "some [to] take offense to certain forms of speech or prayer they are sure to encounter in a society where those activities enjoy such robust constitutional protection[ ]" does not violate the Establishment Clause, the Supreme Court expressly stated that this was because "[o]ffense … does not equate to coercion."

In applying the "coercion" test, the Seventh Circuit appears to have considered several factors, including whether (1) the school "had a captive audience on its hands," (2) there was any "religious activity in which [students] had to partake," and (3) students "felt pressured to support the religious aspects of the [activity] when they saw others … reflecting on the religiosity of the [activity.]" A state actor need not "act with a religious motive in order to fail the coercion test" when it conducts a school activity "in an indisputably religious setting" or chooses to "affirmatively to involve religion in [a] mandatory [activity]." Because there is sufficient evidence to permit a reasonable jury to find in Williams's favor on each of these considerations, the defendants are not entitled to summary judgment on this point.

A reasonable jury could find that the school had a "captive audience" for both the Quiet Time program overall and the Transcendental Meditation initiation ceremony. The defendants do not dispute that Quiet Time was part of the school schedule at Bogan, and students who did not practice Transcendental Meditation were nonetheless present in classrooms when instructor-led meditation occurred. Nothing in the record suggests that students who did not meditate during Quiet Time could leave the classroom or go elsewhere for those fifteen minutes, and Williams testified that an instructor took him to a separate classroom to witness the initiation ceremony. There is conflicting testimony regarding whether it was optional for students to learn Transcendental Meditation and thus experience the initiation. Williams stated during his deposition that it was mandatory to sign up to learn Transcendental Meditation, but Principal Aziz-Sims [and others] … testified that learning and practicing Transcendental Meditation was optional for students. Because "district courts presiding over summary judgment proceedings may not 'weigh conflicting evidence,' or make credibility determinations," the conflicting testimony of the various witnesses is sufficient to create a genuine factual dispute on whether there was a captive audience for at least the initiation ceremony.

That dispute aside, a reasonable jury could find that the program included a "religious activity in which [students] had to partake[.]"Specifically, there is evidence that a Transcendental Meditation instructor separated Williams from his classmates and brought him individually to a different classroom for the initiation. A reasonable jury could find that Williams, having arguably signed up to be trained in Transcendental Meditation, was then required to observe a religious ceremony in order to learn meditation and was misled about the ceremony's religious nature. The scenario as presented by Williams differs from the school prayer cases and the situation in Malnak v. Yogi (3d Cir. 1979), because there was no imposition or mention of any specific beliefs by the defendants. But the initiation ceremony distinguishes this situation from those cases involving the simple practice of Yoga in schools. The evidence in this record—most notably the details of the initiation ceremony—suggest that a reasonable jury could find that the Transcendental Meditation training as implemented was religious in nature or at least included a required religious ceremony.

{The defendants contend that the Court should not focus on "a one-time, three-minute expression of gratitude the instructor performed[,]" citing to the Supreme Court's statement that "[f]ocus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause." Lynch v. Donnelly, 465 U.S. 668 (1984). Yet the statement in Lynch was in reference to a nativity scene in the context of a Christmas display, and the Supreme Court held post-Lynch that even a two-minute prayer was sufficient to violate the Establishment Clause. Lee v. Weisman (1992).}

Lastly, the Seventh Circuit considered in Concord whether students "felt pressured to support the religious aspects of the [activity] when they saw others … reflecting on the religiosity of the [activity]" in deciding whether a school activity was coercive. Freedom From Religion Found., Inc. v. Concord Cmty. Schs. (7th Cir. 2018). A reasonable jury could find that Williams felt pressured to support the purportedly religious aspects of Transcendental Meditation during the initiation ceremony, when he saw various items placed around a picture of a teacher of Transcendental Meditation while the instructor spoke in a language he did not understand. It is less clear whether Williams would have felt pressured to support the instructor-led meditation in the classrooms, as he conceded that he could not tell whether other students were meditating or "reflecting on the religiosity" of the meditation. There is a genuine factual dispute on this point….

[T]he defendants move for summary judgment on compensatory damages, arguing that Williams has not provided sufficient proof of emotional damages. There is no evidence that Williams sought medical or mental health care as a result of his alleged distress from the Quiet Time program, but "an injured person's testimony may, by itself or in conjunction with the circumstances of a given case, be sufficient to establish emotional distress without more." "The more inherently degrading or humiliating the defendant's action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action; consequently, somewhat more conclusory evidence of emotional distress will be acceptable to support an award for emotional distress." However, "[w]hen the injured plaintiff's testimony is the only proof of emotional damages, [he] must explain the circumstances of [his] injury in reasonable detail; [he] may not rely on conclusory statements."

Williams testified that he experienced mental health challenges and suicidal thoughts prior to participating in the Quiet Time program, but that Transcendental Meditation made his struggles worse. When asked to explain how his condition worsened, Williams stated that "not many know about it, but like I killed a couple animals, I was getting in trouble for starting fires in people's garages, trash every in the alley on fire[.]" He then appeared to clarify that he was referring to animals he had harmed before he learned Transcendental Meditation, but viewing this testimony in Williams's favor as the non-movant, the Court concludes that Williams has described his emotional distress injury in "reasonable detail." Furthermore, if a jury concludes that Transcendental Meditation was a religious practice and that Williams was coerced into learning it, that jury could also reasonably conclude that the experience would be "inherently degrading or humiliating" and accept Williams's more conclusory statements as proof of his emotional distress injury….

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[Eugene Volokh] Should Streisand Warnings Join Miranda Warnings?

Apropos Tuesday's post "Are Employment Lawyers Disclosing the Reputational Risks of Litigation to Their Clients?," Krista Lee Baughman (Dhillon Law) writes about a similar question related to libel law. (Baughman is a prominent libel lawyer, see, e.g., Starbuck v. Meta Platforms, the new Large Libel Models lawsuit.)

[A]s a defamation lawyer, one of the (many) things I flag for clients in the very first consultation is the risk of the "Streisand Effect" if they make their complaints public, along with the fact that their names will forever be tied to their case when they are subject to a background search and potentially also a Google search if the matter gets press. I also flag the possibility that, in cases where the defendant has postured themselves publicly as a "social justice warrior," then even the demand letter we send might be made public by the defendant, e.g. via a social media post claiming that the defendant "spoke up and now is being pressured to abandon their free speech rights," etc.

I think these are essential points to raise in early calls with would-be defamation clients, even if you end up talking yourself out of a job, and I'd counsel employment lawyers to raise the possibility with their clients as well.

I hope other lawyers do the same.

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[Steven Calabresi] President Biden's and the Democrats' Assault on the Supreme Court and the Rule of Law

[Democrats tried to alter unconstitutionally the membership of the Supreme Court; they extorted Facebook into censoring free speech; they issued presidential executive orders unsupported by statute; and they pushed unprecedented prosecutions of Biden's predecessor in office, and his 2024 opponent, in the presidential race.]

Democrats are accusing President Trump of undermining judicial independence by not following court judgments in immigration cases. Put aside that, as of yet, it is far from clear that any judicial orders have been violated. Even under the worst assumptions, what Trump is doing to the independence of the federal courts is far less serious than what the Biden-Harris Administration tried to do to the independence of the federal courts.

On April 9, 2021, President Biden created a "Commission" to examine "reforming" the "membership" of the U.S. Supreme Court. This action alone is a more serious threat to judicial independence and to the rule of law than are any of the actions with respect to the courts taken so far by President Trump. Imagine how the Democrats would react if President Trump were faced with a liberal Supreme Court majority and therefore created a Commission to examine "reforming" the "membership" of the Supreme Court. Democrats would say fascism was around the corner.

Among the ideas the Biden Commission seriously considered were imposing 18-year term limits on Supreme Court justices by passing a statute. This is an idea which I once favored for policy reasons, but which I concluded decades ago in a law review article could only be done by a constitutional amendment. I have subsequently concluded that 18-year term limits for Supreme Court justices are also a bad idea, as a matter of policy, because every two-term president would get four Supreme Court appointments, which is almost always enough power to change the jurisprudential balance on the Supreme Court.

Nonetheless, after Joe Biden withdrew his presidential candidacy last summer because of his dismal performance in a nationally televised debate, he gave a speech in Texas endorsing a statute term limiting the Supreme Court justices (a proposal that was understood as calling for legislation, not a constitutional amendment, in part because in the same speech Biden called for a constitutional amendment to overturn the Supreme Court's presidential immunity decision in Trump v. United States (2024) while not calling for a constitutional amendment to change the membership of the Supreme Court). Senator Sheldon Whitehouse's bill to do this provided for eliminating the Senate filibuster as to his 18 year Supreme Court term limits bill. Vice President Kamala Harris, who became the Democratic Party's nominee for president, immediately endorsed Joe Biden's plan for statutory court packing via term limits. As Senator Whitehouse's bill makes clear, the plan was to eliminate the Senate filibuster and ram the term limits, i.e., court packing, through both Houses of a narrowly divided Congress despite the absence of any popular mandate to make such a sweeping change, which would have trashed the rule of law and demolished the independence of our life tenured judiciary.

The size of the Supreme Court has been fixed at nine justices since 1869, 156 years of our 236-year history as a constitutional republic. An exhaustive survey by University of Wisconsin law professor Joshua Braver conclusively demonstrates that there is quite simply no tradition of Supreme Court packing or radical membership changes in American constitutional history. President Biden's actions and speeches after he withdrew from the presidential race, which were endorsed by Kamala Harris, were a flagrant attack on the independence of the U.S. Supreme Court and on the rule of law itself. They were un-American and smacked of the behavior that goes on in banana republics like Argentina, which are devoid of the rule of law.

Under Biden's proposal in July 2024, a new seat on the Supreme Court would be created by statute, and not by a constitutional amendment, for every Supreme Court justice who has served for 18 years or longer at the beginning of a President's first and third year in office. Once a justice was confirmed to that new seat, any justice who had served for 18 years or longer would be barred under Sen. Whitehouse's bill from hearing any case in the appellate jurisdiction of the Supreme Court. Such justices would be unconstitutionally confined to hearing cases only in the original jurisdiction of the Supreme Court or cases in the inferior federal courts, unless they resigned.

The Court would be "packed" because the number of justices would increase beyond the nine who have served since 1869, and justices who have served as "Judges of the supreme Court" would be disqualified from hearing cases in the Supreme Court's appellate jurisdiction. Had Kamala Harris won in November 2024, and had a 50 to 50 Democratic Senate with a Democratic House of Representatives been elected, as could easily have happened, Justice Clarence Thomas and Chief Justice John Roberts would have been forced out of office in the first and third year of Kamala Harris's presidential term.

Apart from the unwisdom and un-Americanism of partisan court-packing, the plan is unconstitutional. Congress's supposed power to term limit or pack the Supreme Court comes from a clause in the Constitution which empowers Congress "To make all Laws which shall be necessary and proper for carrying into execution the judicial Power of the United States." This clause allows Congress to pass the rules of federal procedure. It allows Congress to create new judgeships and to regulate federal court jurisdiction to some degree, just as it allows Congress to create executive offices and cabinet departments and agencies.

But those laws creating judges must be "necessary and proper for carrying into Execution" the judicial power, not "for undermining the judicial power." There are sometimes good grounds for creating new federal judgeships as the caseload of the existing judges gets out of hand, but it is not possible to say with a straight face that the Supreme Court is straining under its caseload, which is roughly a third of where it stood four decades ago. Nor can anyone say with a straight face that Clarence Thomas and John Roberts are suffering from the effects of old age that plague former President Joe Biden.

The Necessary and Proper Clause does not allow Congress and the President to destroy the third co-equal branch of our federal government or to create two Supreme Courts when the Constitution says that there shall be only one. Court packing by statutory term limits is unconstitutional, and if such a bill is ever enacted into law, it will be the duty of the Supreme Court to hold it unconstitutional.

This was a very serious threat to judicial independence and the rule of law. Certainly, nothing President Trump has done so far comes even close.

Statutorily imposed term limits, for their part, would have applied to "Judges of the supreme Court" whose offices are critically created by the Constitution itself, and not by federal statutes. Article II, Section 2 of the Constitution specifically says that: "[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint … Judges of the Supreme Court ……" "Shall" means "must," and so the Constitution itself creates the offices of "Judges of the supreme Court," and it orders the President to fill those offices. Moreover, Article III of the Constitution specifically adds that "The Judges, both of the supreme and inferior Courts, shall hold their offices during good Behavior."

Congress can term limit the time during which Supreme Court justices serve as inferior court judges, when they sit by designation on the inferior federal courts, because it was Congress, not the Constitution, which gave Supreme Court justices this dual office. Hence, it was constitutional for Congress to eliminate circuit-riding by Supreme Court justices. But Congress cannot legislate as to the office of "Judge of the supreme Court," which the Constitution both creates and grants life tenure to.

Likewise, Congress cannot prevent "Judges of the supreme Court" from hearing cases on the Supreme Court's appellate docket because Article III of the Constitution provides that "The judicial Power of the United States, shall be vested in one supreme Court" and that that power "shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority" as well as to eight other categories of Cases or Controversies.

Congress's only power to regulate the appellate jurisdiction of the Supreme Court is to make good housekeeping rules for how the Supreme Court exercises its appellate jurisdiction. Congress may not create two Supreme Courts: one of which hears critically important appellate jurisdiction cases and the other of which hears only trivial original jurisdiction cases. The opening words of Article III could not be clearer in saying that Congress may create "one" and only "one" Supreme Court.

So, this was the first and most flagrant Biden Administration violation of the rule of law and attack on judicial independence.

Then there was the extortionate threat that the Biden-Harris Administration made in Murthy v. Missouri (2024) to Facebook, Meta, and YouTube that the Administration would bring an antitrust lawsuit against these companies to break them up unless they censored free speech, including truthful information, related to Covid-19, election integrity, and other topics, under the guise of combating misinformation. Justice Alito's dissent describes in chilling detail this threat to free speech and the First Amendment. The only reason the Supreme Court did not reach the merits was an absence of standing to sue. When it comes to extortion to shut down freedom of speech, the Biden-Harris Administration wrote the playbook.

Another Biden Administration attack on the rule of law occurred in 2021, when the Centers for Disease Control and Prevention (CDC) issued a nationwide moratorium on the eviction by landlords of tenants, allegedly to stop the spread of Covid-19. This was as consequential and uncompensated taking of the private property of landlords as that which occurred in the 1952 Steel Seizure Case. In Alabama Ass'n of Realtors v. Department of Health and Human Services (2021), the Supreme Court held that this was an executive branch abuse of power, because it exceeded any statutory power the executive branch had.

Then, on November 5, 2021, OSHA, spurred on once again by President Biden, announced that his administration would be promulgating a vaccination or test mandate for all private companies with 100 or more employees. This order came at a time when many Americans, especially conservatives, were afraid to be vaccinated. A vaccination mandate is a violation of the right to bodily integrity that can only be justified when there are years of proof that the vaccine works and is safe to take. In National Federation of Independent Business v. Department of Labor, OSHA (2022), the Supreme Court ruled, under the Court's Major Questions Doctrine, that OSHA had exceeded its statutory authority in issuing this sweeping, totalitarian mandate on all American workplaces.

Democrats now complain that President Trump is playing fast and loose with statutory text. They may be right on occasion, as with using IEEPA to raise and lower tariff rates (as I have repeatedly argued), but where were these Democrats a few years ago?

Then, yet again in 2021, the Biden Administration tried to use an obscure portion of the Clean Air Act to get the Environmental Protection Agency to promulgate climate change regulations that would have cost trillions of dollars to comply with. This would have bankrupted the country and greatly depressed economic growth. In West Virginia v. EPA (2022), the Supreme Court struck down these rules as being unauthorized by statute, and as raising a Major Question that must be dealt with by Congress.

And in Biden v. Nebraska (2023), the Biden Administration tried to forgive billions of dollars in student loan debt to help itself politically with younger voters even though Biden must have known that he had no statutory authority to do this. The Administration woefully exceeded its statutory authority to forgive such debt, and the Supreme Court struck down the debt forgiveness plan, again under the Major Questions Doctrine. (The Court correctly recognized that the statutory authority was limited to narrow waivers and modifications in the event of "national emergenc[ies]," such as the 9/11 attack that prompted the enactment of the law.)

And finally, on his last full day in office in 2025, President Biden preposterously declared that the Equal Rights Amendment had been validly ratified and was now the 28th Amendment to the Constitution. This attempt to alter the 236 year-old rule of recognition for Article V changes to the Constitution is a form of "constitutional vandalism," and is contrary to precedents such as Dillon v. Gloss (1921) and Illinois v. Ferriero (D.C. Cir. 2023).

This analysis does not even include President Biden's, and the Democratic Party's, four prosecutions of former President Donald Trump on flimsy charges, plus New York State's outrageous $450 million civil suit against President Trump. Until the Biden Administration, no President had ever prosecuted his predecessor in office for anything. Joe Biden tore up that rule and threw the whole weight of the Department of Justice and the FBI against President Trump who he was running against in the 2024 presidential election. The States of New York and Georgia piled on. As former Judge, and now Stanford law professor, Michael McConnell wrote in the Wall Street Journal, the New York State criminal case, in particular, was a sham and a travesty of justice.

The only charge brought against President Trump that was even plausible was mishandling of classified documents, but former Secretary of State Hilary Clinton had had a private email server that was unsecured at her private home and that could have been easily hacked by the Russians that had classified documents on it. Since Clinton was not prosecuted for this gross breach of mishandling classified information, then-former President Trump should not have been prosecuted for misuse of classified information either. To make matters worse, Attorney General Merrick Garland even appointed an unconstitutional Special Prosecutor to go after Trump, as Judge Aileen Cannon of the District Court for the Southern District of Florida correctly held in the summer of 2024.

No President has posed a bigger threat to judicial independence, to the freedom of speech, to liberty (by woefully misreading federal statutes), or to constitutional norms (like not prosecuting your predecessor in office) than President Biden did. I have spoken out against what I see as the improper actions of the Trump Administration, such as its treatment of Columbia University, its attempt to rescind birthright citizenship, and its exceeding its statutory authority as to tariffs; but I think the Biden Administration's record on following the rule of law and respecting judicial independence is dreadful. To those who fear that the United States is becoming an authoritarian state, thank God that the Biden-Harris Administration is no longer in office.

That being said, I very strongly disapprove of the Trump Administration's behavior toward law firms, its threats to revoke Harvard's tax-exempt status, and its attempts to coerce university speech and mandate curricula. I expect to discuss those lengthy subjects in a later post.

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[Ilya Somin] Pope Leo XIV and Immigration

[The first American pope has a history of advocating for migrants' rights.]

Cardinal Robert Prevost (now Pope Leo XIV). (Vatican Media)

 

I did not expect an American Pope. I thought there was a norm against it, by virtue of the Church wanting to avoid being led by a citizen of the world's most powerful nation. But either I was wrong, or the norm has faded. Today, Cardinal Robert Prevost became the first American pope, taking the name of Leo XIV.

At least on the issue of immigration I am guardedly optimistic this might be a good choice. Cardinal Prevost's (now Leo XIV's) Twitter/X feed includes several posts critiquing Trump and Vance on immigration, such as this one and this one. Conservative Catholic legal commentator Ed Whelan of the Ethics and Public Policy Center has also called attention to these tweets and suggests Cardinal Prevost's positions on this issue might have been instrumental in his selection as pope. I don't know about that. But I hope it's true.

While serving the Church in Peru, Cardinal Prevost advocated for the rights of Venezuelan refugees. We have that cause in common. In a much, much less significant way, I have tried to do the same here in the US, defending the valuable CHNV program (which allows Americans to sponsor Venezuelan and some other migrants fleeing Latin American dictatorships) against attacks by state governments and the Trump Administration, opposing Trump's illegal efforts to use the Alien Enemies Act to deport Venezuelans.  I have also informally advised people and organizations working to sponsor Venezuelans in the CHNV program.

This is just speculation. But perhaps advocating for Venezuelan refugees from socialism has led the new Pope to appreciate how awful that ideology is (a major blind spot for his predecessor). If socialism were all it's cracked up to be, it would not have generated a horrifically oppressive regime whose depredations have led to the biggest refugee crisis in the history of the Western hemisphere. And if socialist policies were actually good for the poor, the poor would not be fleeing them in droves.

Atheist though I am, I will always be grateful to Pope John Paul II for his leadership in the struggle against communism, the greatest evil in the world at that time. Perhaps - just perhaps - the new pope can help lead the struggle against nationalism - the greatest evil of this time; see my article "The Case Against Nationalism" (coauthored with Alex Nowrasteh) on why it's so awful, including in ways that parallel the evils of communism. Immigration is a central front in that vital struggle, though not the only front, by any means. And the leader of the world's biggest universalist religious denomination is well-positioned to help combat it, should he wish to.

Obviously, this pope - like his predecessors - is likely to take many positions I am no fan of. I have no illusions that he's secretly somehow a libertarian. But if he advocates for migrants and works to oppose socialist and nationalist oppression, he could do great good.

It may see improper to evaluate popes based on their views on social and political issues. But, like it or not, the leader of the world's largest religion is necessarily a political figure, one with great potential influence on political debate. Thus, even those of us who are not Catholic have an interest in considering the Pope's views on on such matters.

Things might be different if popes only sought to influence the internal affairs of their church and its adherents, as do the leaders of some smaller faiths. But the papacy has long sought to influence public opinion and government policy far beyond that.

UPDATE: It is perhaps worth noting that Leo XIII, the last Pope to take the same name as the current one, was , writing that "It is evident that the essential principle of socialism, the community of goods, must be completely rejected, as it only harms those it would seem to benefit, is directly contrary to the natural rights of humanity, and would introduce confusion and disorder into the common good." It is sometimes said that a Pope's choice of name indicates an affinity with the previous pope who took the same name.

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