Eugene Volokh's Blog, page 108

[Eugene Volokh] South Carolina Abortion Restriction May Be Void for Vagueness, But Doesn't Violate Free Exercise Clause

From Bingham v. Wilson, decided today by Judge Richard Gergel (D.S.C.):

In the wake of Dobbs v. Jackson Women's Health Organization (2022), the South Carolina Legislature enacted a ban on abortions after nine weeks of pregnancy. The Act [criminalizes] "perform[ing] or induc[ing] an abortion on a pregnant woman with the specific intent of causing or abetting an abortion" if an embryonic or "fetal heartbeat" has been detected on an ultrasound…. The Act contains three exceptions where abortions may be performed after nine weeks of pregnancy:

the "Health Exception," which exempts abortions performed "to prevent the death of the pregnant woman," where the physician determines that a "medical emergency" exists, or "to prevent the serious risk of a substantial or irreversible impairment of a major bodily function, not including psychological or emotional conditions"; the "Fatal Fetal Anomaly Exception," which exempts abortions after a physician determines in his or her "reasonable medical judgment, the unborn child has a profound and irremediable congenital or chromosomal anomaly that, with or without the provision of life-preserving treatment, would be incompatible with sustaining life after birth"; and the "Rape or Incest Exception," which allows a physician to "perform, induce, or attempt to perform or induce an abortion" if the pregnancy was the result of rape or incest and "the probable gestational age of the unborn child is not more than twelve weeks" after the first day of the patient's last menstrual period ("LMP") and where the physician "report[s] the allegation of rape or incest to the sheriff in the county in which the abortion was performed" within 24 hours of performing the abortion" including the patient's name and contact information."

"As a matter of due process, a criminal statute that 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute' … or is so indefinite that 'it encourages arbitrary and erratic arrests and convictions,' … is void for vagueness." …

Plaintiffs contend that "two features of the Health Exception render South Carolina's Abortion Ban unconstitutionally vague: 1) 'serious risk' is so standardless that it is very difficult to determine how likely an impairment must be to qualify, and 2) 'substantial and irreversible impairment of a major bodily function' has no inherent meaning in medicine, leaving Plaintiffs with inadequate notice of which dangerous health conditions the Exception covers." With regards to the Fatal Fetal Anomaly Exception, Plaintiffs complain that two terms— "incompatible" and "sustaining life"—"provide no meaningful standards to assess which fetal conditions qualify under the [Exception]." Per Defendants, the statute's instruction that "[a] doctor must determine that this exception is met based on 'standard medical practice' and 'reasonable medical judgment'" allows room for more than one "correct medical decision in any case," such that it is "not necessarily true" that there is a right answer as to whether a risk constitutes a "serious risk" under the Health Exception. They argue further that "many perfect constitutional statutes use imprecise terms" such that the "legislature[] need not write in medical jargon."

The Court considers that Plaintiffs have stated a plausible claim for relief at this stage of the litigation. Here, the South Carolina Abortion Ban subjects medical professionals to criminal penalties and is vigorously enforced. Defendants make much of the fact that the words used throughout the statue, such as "substantial," "irreversible," "impairment" and "major bodily function," are "readily understood" terms.

But, taking the allegations in Plaintiffs' Complaint as true, the use of terms that are not commonly employed by medical professions in their practice fails to provide Plaintiffs fair notice of what conduct falls outside the Health and Fatal Fetal Anomaly exceptions and potentially subjects them to potential criminal liability and the loss of their medical licenses. The Court denies Defendants' motion to dismiss Plaintiffs' claims brought under the Due Process Clause….

But the court rejected the separate Free Exercise Clause challenge:

"The right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" Employment Division v. Smith (1990). Plaintiffs' theory is that "South Carolina has made a value judgment that secular (e.g., procreative) motivations for ending a potential life are important enough to overcome its asserted general interest in preserving it, but that religious motivations are not." Accepting Plaintiffs' argument would require this Court to accept that the performance of abortions is a religious practice protected by the Free Exercise Clause of the First Amendment. The facts of the present case bears analogy to Employment Division v. Smith, where the Supreme Court reasoned:

[Respondents] contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that "prohibiting the free exercise [of religion]" includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires).  We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." …

Plaintiffs' argument hinges on a finding that the Abortion Ban favors "secular conduct" over "religious conduct" by permitting limited exceptions (with the effect of undermining the State's interest in preserving life), but prohibiting such exceptions in unenumerated circumstances where the Abortion Ban infringes upon their free religious exercise. The Court finds this argument unpersuasive. The State has a legitimate interest in both fetal and maternal health and exercised its plenary authority in enacting legislation that considers these interests. The Abortion Ban applies with equal force to individuals of all religions. Even construing the Amended Complaint in the light most favorable to Plaintiffs, Plaintiffs have failed to state a plausible claim for relief that the Abortion Ban is not generally applicable and is thus unconstitutional under the Free Exercise Clause of the First Amendment….

The plaintiffs didn't bring a challenge under the South Carolina Religious Freedom Restoration Act, which provides,

The State may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless the State demonstrates that application of the burden to the person is:
(1) in furtherance of a compelling state interest; and
(2) the least restrictive means of furthering that compelling state interest.

That might offer far more protection to sincere religious objectors than what federal Free Exercise Clause law currently provides under Employment Division v. Smith. And that challenge is presumably still available—but I take it that it would need to be brought in state court, since (generally speaking) federal courts can only order government officials to follow federal law, and only state courts can order state government officials to follow state law (Pennhurst State School & Hosp. v. Haldeman (1984)).

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[Eugene Volokh] Court Throws Out Emotional Distress Lawsuit Brought by Jewish Student Over UNLV Anti-Israel Protests

From Gerwaski v. Nevada ex rel. Bd. of Regents, decided Monday by Chief Judge Andrew Gordon (D. Nev.):

Plaintiff Corey Gerwaski sues the University of Nevada, Las Vegas (UNLV), its president, and several advocacy organizations. Gerwaski alleges that demonstrations on the UNLV campus caused him mental anguish, violated his constitutional rights, and caused him to lose his job at the UNLV library. Gerwaski also sues AJP Educational Foundation, doing business as American Muslims for Palestine (AMP), and the UNLV chapter of Students for Justice in Palestine (SJP-UNLV) for aiding and abetting terrorism and for intentional infliction of emotional distress (IIED)….

AMP is a nonprofit organization incorporated in California and headquartered in Virginia. It is "dedicated to advancing the movement for justice in Palestine by educating the American public about Palestine and its rich cultural, historical and religious heritage through grassroots mobilization and advocacy."

Gerwaski alleges that AMP controls the National Students for Justice in Palestine (NSJP) group, of which SJP-UNLV is an affiliate. He further claims that AMP uses NSJP "to operate a propaganda machine for Hamas and its affiliates across American college campuses to influence, wreak havoc and intimidate Jewish students on university campuses across the Nation." According to Gerwaski, NSJP supports Hamas, justifies Hamas's terroristic activities through its rhetoric and messaging, and perceives itself as a part of the group. Hamas, in turn, allegedly welcomes support from NSJP and its affiliates and encourages them to be "part of this battle" in the United States.

The day after Hamas's October 7, 2023 terrorist attack in Israel, NSJP released a "Day of Resistance Toolkit" to students on American campuses and on the internet. The toolkit contained instructions and templates for users to create online announcements to organize protests. Some of the slogans in this toolkit mirror the messaging used by Hamas.

After this toolkit came out, SJP-UNLV organized several protests both on and off the UNLV campus, called for an economic boycott at UNLV, and called for UNLV to divest from investment in Israeli companies. At one of the demonstrations organized by SJP-UNLV, protestors chanted "[f]rom the river to the sea, Palestine will be free" and "[l]ong live the intifada." Gerwaski alleges that these chants call for eliminating the country of Israel and express support for terrorist campaigns.

Gerwaski is a Jewish student at UNLV who wears the Jewish skullcap, or kippah, at all times. Gerwaski serves in the UNLV student government and briefly worked at the UNLV Lied Library. He alleges that he has been exposed to verbal assaults by members of Nevada Palestine Liberation, another nonstudent group, who made hateful, antisemitic comments to him. Gerwaski has elected to cover his kippah with a baseball cap or other head covering due to the antisemitic chants and chaos on the UNLV campus. Due to the conditions on UNLV's campus, Gerwaski suffered "severe and extreme emotional distress manifested as great humiliation, embarrassment, shame, and other pain and suffering."

The court rejected the claim against AMP on the grounds that courts in Nevada lacked personal jurisdiction over AMP, and concluded that Gerwaski lacked standing to assert the Antiterrorism Act claims. It also rejected the IIED claims on the merits:

Gerwaski has not plausibly alleged conduct that was extreme and outrageous by either defendant. He points to a single social media post from SJP-UNLV that states "Zionist presence on our campus cannot go unchecked," which encourages support for Palestine by attending a counter-demonstration. He also alleges that the organizations encourage antisemitic vitriol by "globalizing the intifada."

Although Gerwaski may not like these messages, they do not rise to the level of extreme and outrageous behavior. Further, neither of these messages was directed at Gerwaski or made in a way that intends or recklessly disregards the risk of emotional distress for Gerwaski. The only specific allegation of conduct directed at Gerwaski that might meet the extreme and outrageous standard was offensive comments allegedly made by members of non-party organization Nevada Palestine Liberation.

Gerwaski also has not alleged that he suffered severe emotional distress that is recoverable under Nevada law. His allegation that he felt emotional distress through "great humiliation, embarrassment, shame, and other pain and suffering" is wholly subjective. He has not plausibly alleged any objectively verifiable indicia of emotional distress….

And it concluded that the IIED claim was in any event precluded by the First Amendment:

Gerwaski argues that the conduct of AMP and SJP-UNLV falls outside First Amendment protections because it constitutes material support for terrorism, and, for SJP-UNLV, true threats. Gerwaski notes that Holder v. Humanitarian Law Project (2010) rejected a First Amendment challenge to a law that criminalized providing material support to foreign terrorist organizations. In holding that the law was constitutional as applied, the Supreme Court noted that "[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction and control." Similarly, "service" does not apply to independent advocacy but only "providing service to a foreign terrorist organization." With these caveats, the Court upheld the statute because it "reaches only material support coordinated with or under the direction of a designated foreign terrorist organization" of which speech may be included.

"True threats 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." "Even a statement that appears to threaten violence may not be a true threat if the context indicates that it only expressed political opposition or was emotionally charged rhetoric." …

As pleaded, AMP and SJP-UNLV's conduct alleged in the [Complaint] is protected by the First Amendment. All the conduct alleged appears to take place in public areas and involves speech on the conflict between Israel and Palestine and UNLV's response to that conflict. This is a matter of public, rather than private concern. Gerwaski does not allege any conduct by either of these organizations that is directed at him in a private setting. None of the speech described could be interpreted as likely to incite imminent lawless action or as a serious expression of intent to harm any particular individual.

Gerwaski alleges that AMP has "knowingly used or permitted the use of funds … to provide support to terrorists, terrorist organizations, terrorist activities, or family members of terrorists" and that "[d]efendants identify themselves as not just aligned with Hamas's terrorist activities, but 'PART of' them …." But these conclusory statements are not plausibly supported by the factual allegations in the [Complaint]. Gerwaski relies on the fact that NSJP claims to be part of the "Unity Intifada" movement and allegedly puts forth its messages in response to Hamas's rhetoric or vice versa. And Hamas has expressed that it is pleased and reinvigorated by the protests on American college campuses. Even taking these allegations as true, they do not plausibly show that AMP and SJP-UNLV are providing personnel or service to Hamas rather than independent advocacy.

Seems generally correct to me.

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[Eugene Volokh] Festivus + Jews + Kanye West + Litigation

["Unlike 'Festivus,' the fictional holiday created by Jewish artists, wherein 'worshippers' are permitted to air their personal grievances but once per year," "Ye adheres to an artistic vision in which he is unencumbered to share his grievances at any time of the year—and so he does."]

More from the "[Kanye West] is not merely a creator; he is art" motion to dismiss; the motion is dealing with this allegation:

On June 4–5, 2024, Ye sent a series of text messages to Plaintiff that Plaintiff
characterizes as belligerent, abusive, harassing, antisemitic, and otherwise offensive. The messages included statements such as "Shut the fuck up bitch," "Hail Hitler," and "You ugly as fuck," among others. Plaintiff alleges that these messages constituted harassment. Defendants assert that the messages are protected artistic expression …, and were sent in furtherance of Ye's constitutionally protected right to resist unwanted interference with his creative work and his rehearsal of his iconic artistic style of advancing grievances in dramatic vernacular.

Here's the defense lawyers' response:

The motion adds,

Plaintiff's attempt to frame the messages as discriminatory or antisemitic is similarly unavailing. Plaintiff does not allege that she even disclosed her Jewish identity to Ye or Yeezy prior to receiving the texts. Without evidence of knowledge or discriminatory intent, Plaintiff cannot sustain a claim for harassment or discrimination based on protected status. The messages were not directed at Plaintiff's race, religion, or gender identity, but it was, rather, an artifice to communicate a conceptual grievance.

Again, the motion makes some legitimate legal points as to some of plaintiff's claims. But proud as we are of Seinfeld, I'm not sure that noting that Festivus was "created by Jewish artists" really advances the argument.

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[Eugene Volokh] Kanye West "Is Not Merely a Creator; He Is Art" (Say His Lawyers)

A perhaps somewhat over-the-top argument in a motion to dismiss an employment lawsuit (Doe v. Yeezy, LLC).

The motion itself may have merit as to some of its facets, and certainly raises some interesting legal issues; I look forward to seeing what the court makes of it. An excerpt:

5. Plaintiff Jane Doe, a self-proclaimed Hollywood publicist, aggressively sought to represent Ye, fully aware of his reputation as the world's most provocative artist. Retained in late 2023 to promote Vultures Vol. 1, she publicly positioned herself as Ye's media liaison. The irony is striking: the compensation she received—and now seeks to augment through this litigation—was generated exclusively by the controversial art she herself promoted. Having knowingly immersed herself in Ye's unapologetically boundary-defying artistic environment, she now claims retroactive offense at performative expressions such as "I Am A NAZI" and "You Ugly as Fuck"—works that plainly reflect Ye's artistic critique of censorship, identity, and beauty standards, and which were wholly consistent with his public artistry and presentation long before Plaintiff explicitly sought employment….

40. In January 2024, Ye texted Plaintiff, "I Am A NAZI," in response to her unsolicited suggestion that he publicly condemn Nazism amid controversy over the Nazi-inspired cover art for Vultures Vol. 1. Plaintiff alleges this message constitutes antisemitic harassment and discrimination.

41. Vultures Vol. 1, which Plaintiff was hired to promote, featured aesthetic choices reminiscent of imagery related to Nazism, invoking debates about artistic expression, antisemitism, and censorship.

42. Ye's oeuvre has long engaged with shocking imagery and taboo subjects to provoke dialogue, from religious iconography in Yeezus to racial discourse critiques throughout his musical collection. Courts consistently protect such expression, recognizing the societal value in challenging speech.

43. Moreover, Ye's lyricism on Vultures 1 directly addresses accusations of antisemitism with biting irony, e.g., "How I'm antisemitic? I just fucked a Jewish bitch" in the song "Vultures," illustrating Ye's confrontation with cultural hypocrisy. The album's rollout, including the cover art, cited lyrics, and Ye's provocative public performances, formed an artistic-whole aimed at confronting selective censorship and public outrage. Plaintiff's intervention by suggesting Ye disavow Nazism threatened to undermine this carefully curated performance art.

44. Ye's brief, emphatic response—"I Am A NAZI"—acted as an artistic statement central to his project's themes: forcing audiences to confront their assumptions, outrage, and complicity. Much like method actors fully inhabiting their characters in the movies or on stage, Ye's persona for Vultures 1 was an immersive, controversial performance. This text must be recognized as protected artistic expression and Plaintiff's claims based on it must be stricken….

45. Plaintiff next complains about a flyer Ye circulated for a music video casting call, which she characterizes as "pornographic" and "harassing." The text message referenced was sent to a group chat titled "YE MUSIC MARKETING" and concerned publicizing an upcoming casting call.

46. The flyer is a work of art. The document background is a lightly toned canvas ideal for additional artwork and copy. An image is displayed on the upper half of the flyer. The image is neatly centered with complementary and consistent large margins. The image is a two-toned photograph of a person or mannequin in a squatted position, cropped such that mainly the subject's torso is visible. The bright skin-colored tone of the subject is similar to the background tone of the flyer, while the dark-opposing-background-tone in the image complements the color of the copy on the bottom half of the flyer. Notable (depending on one's temperament), is the fact that the subject is mostly nude and has uncommonly large and bulbous breasts. The subject's belly is toned yet softly rounded, with a natural fullness that juxtaposes the ultra-lean silhouette of a typical high-fashion model. The race, ethnic background, and sex of the subject appear ambiguous.

47. The copy on the lower half of the flyer is neatly organized in three sections, centered and spaced consistently. The first line is an attention-grabbing headline relevant to the purpose of the flyer, stating: "GOT BIG TITTIES?" This copy directly relates to the image on the top half of the flyer, demonstrating a cohesive artistic theme. Two additional lines of copy are found in the middle section. This portion has a "call to action" in which the creator communicates a message. The bottom portion of text consists of "SUBMIT" such that a user could physically interact with the artwork on a digital device in order to execute the call to action. The copy is in all-caps and is in a non-standard sans-serif font, both of which are common themes in Ye's written works.

48. The flyer specifically references a "NEW ¥$ MUSIC VIDEO." ¥$ are symbols used to represent a music group led by Ye, who were included on the Vultures 1 album. Within the album, a track credited to ¥$, Back to Me, February 10, 2024, includes Ye's performance of the second verse, which draws a remarkable similarity to the artistic expression in the flyer:

Beautiful, naked, big-titty women just don′t fall out the sky, you know?
Sky, you know? Sky, you know?
And beautiful, big-titty, butt-naked women just don′t fall out the sky, you know?
Tell me how you know, I been searchin' high and low

49. The flyer was directly tied to the thematic content of Vultures 1, and was not gratuitous but an integral part of Ye's broader expressive campaign.

50. Artistic nudity, provocative marketing, and aesthetic critiques are fully protected forms of expression under the First Amendment.

51. Plaintiff's role was to promote Ye's artistic vision—not censor it. Her discomfort with the flyer's provocative imagery does not transform protected artistic speech into actionable harassment. Ye's creation and dissemination of the flyer, and his instruction that Plaintiff promote it, constitute protected artistic expression regarding matters of public interest and Plaintiff's claims based on this conduct must be stricken.

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[Josh Blackman] Today in Supreme Court History: May 7, 1873

5/7/1873: Chief Justice Salmon P. Chase died. One month earlier, he dissented in the Slaughter-House Cases, and was the lone dissenter in Bradwell v. Illinois.

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[Ilya Somin] NPR Interview on Legal Challenges to Trump's IEEPA Tariffs

[Steve Inskeep of NPR interviewed me about the case against Trump's "Liberation Day" tariffs.]

On Monday, Steve Inskeep of NPR interviewed me about the case against Trump's "Liberation Day"  IEEPA tariffs filed by the Liberty Justice Center and myself. This interview only went for about five minutes, so we didn't cover the issues as thoroughly as in some previous interviews I have done, such as those with KQED and Forbes. But this is a good, short introduction to the case (helped by the pointed questions Inskeep asked) and a lot of people contacted me to say they liked it. So I am posting the link, which is available here.

I cover the legal issues at stake in much greater detail in my Lawfare article, "The Constitutional Case Against Trump's Trade War." In a recent post, I explained why Trump's tariff agenda threatens the rule of law, in addition to damaging the US economy.

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[Josh Blackman] SCOTUS Permits Discharge In COVID and Transgender Cases

[Comparing Navy Seals and Shilling.]

In March 2022, the Supreme Court partially granted the Biden Administration's emergency application in Austin v. U.S. Navy Seals 1-26.  This order allowed the Navy to discharge many service member who refused to receive the COVID vaccine.  The vote here was (likely) 6-3. Justice Kavanaugh wrote separately to explain that the commander in chief should receive deference in military affairs. Justices Thomas, Alito, and Gorsuch dissented, and would have denied the stay. I wrote about the ruling at the time here.

Today, the Supreme Court granted the Trump Administration's emergency application in United States v. Shilling. This order allows the military to discharge transgender service members. The vote here was (likely) 6-3. Justices Sotomayor, Kagan, and Jackson dissented.

Was Shilling based on the likelihood of success on the merits, or the risk of irreparable harm? I suspect the former. The Court likely determined that the transgender service members are unlikely to prevail. There are approximately 4,000 transgender service members who will be discharged. Then again, the experience with the COVID vaccine teaches that a service member who is discharged can later be re-instated. Trump ultimately reinstated nearly 9,000 service members who refused the jab.

I suppose that the Chief Justice and Justices Kavanaugh and Barrett are being consistent. I suspect the troika thought that the Navy Seals and transgender service members were likely to lose. And I think Justices Thomas, Alito, and Gorsuch thought that the Navy Seals were likely going to win and the transgender service members will likely lose. Justice Sotomayor and Kagan allowed the discharge for those who refused the vaccine, but would have blocked the discharge of the transgender service members.

One last point: how does Shilling interplay with Skrmetti? It's possible the Court will rule against the transgender service members, on the grounds of military deference, but rule in favor of the Tennessee plaintiffs. But I think that split is unlikely. This order probably signals that Tennessee will prevail.

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[Ilya Somin] Trump Administration Makes Damaging Admissions on Alien Enemies Act and Deportations

[Trump admits he could return migrant illegally deported to El Salvador. And an intelligence community report concludes the Tren de Aragua drug gang isn't controlled by the Venezuelan government.]

Donald Trump. (lllustration: Eddie Marshall | Maksym Velishchuk | Dreamstime.com | Midjourney)

 

In recent days, the Trump Administration has made two damaging admissions that should hurt its already dubious positions in litigation over the Alien Enemies Act and illegal deportations of migrants to imprisonment in El Salvador.

Last week, Trump himself publicly admitted he "could" secure the return of illegally deported Salvadoran immigrant Kilmar Abrego Garcia, who is currently imprisoned in El Salvador at the behest of the US government.  That should put an end to the ongoing legal debate over how to apply the Supreme Court's ruling that the administration must "facilitate" Abrego Garcia's return. Given that Abrego Garcia is only incarcerated by El Salvador because of an agreement under which the US is paying the Salvadoran government to do so, it was already obvious that Trump could easily secure his return, if he wanted to. But Trump's admission is additional evidence on this point. And, given that the entire arrangement is  an unconstitutional violation of the Due Process Clause of the Fifth Amendment (deportees are imprisoned without ever having any opportunity to defend themselves in court), there is no legitimate foreign policy interest in maintaining it, and therefore no reason for courts to defer to the executive. And what is true of Abrego Garcia is also true of dozens of others illegally deported to imprisonment in El Salvador. It is blatantly obvious that Trump could easily return them, and the administration has a legal and moral obligation do so.

Trump did later claim he could only return Abrego Garcia if the attorney general says its legal to do so. But there is no doubt that it's legal to return a person whose deportation was itself illegal.

Meanwhile, a declassified US intelligence community memorandum concluded that, contrary to Trump Administration claims, the Tren de Aragua drug gang is not acting under the direction of the Venezuelan government and is not significantly responsible for the flow of Venezuelan migrants to the US. Reason writer Jacob Sullum has a helpful summary of the memo and its significance:

In a March 15 proclamation, President Donald Trump declared that suspected members of the Venezuelan gang Tren de Aragua were "alien enemies" subject to immediate deportation. He invoked the Alien Enemies Act (AEA), a rarely used, 227-year-old law that applies when "there is a declared war" between the United States and a "foreign nation or government" or when a "foreign nation or government" has "perpetrated, attempted, or threatened" an "invasion or predatory incursion against the territory of the United States."

To support that dubious interpretation of the AEA, Trump averred that Tren de Aragua (TDA) is "is closely aligned with" the Venezuelan government. He said the gang was "undertaking hostile actions and conducting irregular warfare against the territory of the United States…at the direction, clandestine or otherwise, of the Maduro regime in Venezuela." A newly revealed memo from the National Intelligence Council (NIC) casts doubt on those assertions….

The declassified April 7 memo, which the Freedom of the Press Foundation obtained under the Freedom of Information Act, says "Maduro regime leadership probably sometimes tolerates TDA's presence in Venezuela, and some government officials may cooperate with TDA for financial gain." But it adds that "the Maduro regime probably does not have a policy of cooperating with TDA and is not directing TDA movement to and operations in the United States."

The U.S. intelligence community, which includes the CIA, the FBI, and the National Security Agency, "bases this judgment on Venezuelan law enforcement actions demonstrating the regime treats TDA as a threat," the memo says, describing "an uneasy mix of cooperation and confrontation" rather than the "top-down directives" that characterize "the regime's ties to other armed groups."

This revelation undercuts Administration claims that TdA's actions are at the behest of the Venezuelan government, and therefore undermines the argument those activities are undertaken by a "foreign nation or government," which is one of the requirements for using the AEA to detain and deport immigrants.

Trump's use of the AEA is illegal for other reasons, as well. Among other things, regardless of who controls TdA, the gang's illegal activities do not qualify as an "invasion" or "predatory incursion" - as multiple federal courts have now ruled. I have defended the view that "invasion" requires a military attack, in  detail in previous writings on the meaning of the term in the AEA and the Constitution. But the intelligence community report further weakens the Administration's legal position.

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[Jonathan H. Adler] Supreme Court Stays District Court Injunction Against Trump Administration Policy on Transgender Individuals in the Military

[The Trump Administration will be able to exclude transgender individuals from the military pending the outcome of litigation challenging the policy. ]

Today, without opinion, the Supreme Court stayed a district court injunction barring implementation of President Trump's Executive Order on military readiness that would bar individuals from serving in the military other than in accordance with their biological sex. The order notes that Justices Sotomayor, Kagan, and Jackson would have denied the federal government's stay request.

The Trump Administration has appealed the district court's order in the U.S. Court of Appeals for the Ninth Circuit. Parallel litigation is ongoing in the U.S. Court of Appeals for the D.C. Circuit.

The outcome of these case is likely to be influenced (if not controlled) by the Court's pending decision in  Skrmetti, as that case will almost certainly answer whether classifications based upon one's gender identity or on being transgender are subject to any form of heightened scrutiny, and whether courts should presume that such classifications are based upon impermissible bias or animus.  So depending on how the Court ultimately resolves Skrmetti, this litigation may or may not return to One First Street.

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[Jonathan H. Adler] Bernick v. Wurman on Birthright Citizenship and the 14th Amendment

[An important (and importantly civil) debate on birthright citizenship.]

Professor Evan Bernick recently guest blogged here about birthright citizenship, challenging those who have put forward revisionist arguments about the scope and import of the citizenship clause in Section One of the Fourteenth Amendment.

Bernick recently debated one of those revisionists, Professor Ilan Wurman, at the recent Federalist Society Third Circuit Chapters Conference. It was a civil and highly substantive debate focusing on the original meaning of the Fourteenth Amendment. I confess it did not change my views on the subject, but I found it quite worthwhile. It can be viewed below.

To my mind, Prof. Wurman's arguments challenging the conventional account of birthright citizenship are interesting, but ultimately fail to establish the lawfulness or constitutionality of the Trump Executive Order. At most, they suggest that there might be some room for Congress (should it choose to legislate on the topic) to redefine the conventional understanding of what it means for someone to be born in the United States "subject to the jurisdiction thereof."  They do not suggest that the President may unilaterally redefine the settled and long-followed meaning of the citizenship clause embodied in federal law.

I should add that the Bernick-Wurman debate--like much of the recent public debate on birthright citizenship--proceeds on the assumption that the question should be resolved by reference to the original public meaning of the Fourteenth Amendment, and not on various living constitutionalist theories. As I have noted before, though, if one rejects this premise, the case for the conventional account of birthright citizenship becomes less clear. If one believes either that courts should be particularly deferential to the political  branches or should embrace evolving constitutional meanings in response to political and other developments (such as an election in which a prevailing candidate advocated a contrasting constitutional interpretation), one might well conclude that the traditional understanding of citizenship is up for grabs. Similarly, if one embraces a capacious understanding of Congress's power to enforce the Fourteenth Amendment under Section Five, it would seem to follow that Congress has more authority to redefine the contours of birthright citizenship than some suppose.  Food for thought.

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