Eugene Volokh's Blog, page 110

[Josh Blackman] New Article: Forcibly Sweeping Section 3 Up To The Supreme Court

[My personal account of the Section 3 litigation.]

We are now 100 days into the Trump Administration. As best as I can tell, there has been zero litigation over whether Section 3 of the Fourteenth Amendment disqualifies Trump from the presidency. During the Joint Session of Congress on January 6, 2025, there were zero objections raised based on Section 3. Yet, it is hard to believe that about fifteen months ago, the Supreme Court was being asked to disqualify Trump from the ballot.

As regular readers of this blog will recall, Seth Barrett Tillman and I were actively engaged in the process to disqualify Trump between 2021 and 2024. I discuss many of the things we did during this time in a new article for the Mississippi Law Journal's symposium issue on the Fourteenth Amendment.

Here is the abstract of Forcibly Sweeping Section 3 Up To The Supreme Court:

In the wake of January 6, 2021 a two-year lawfare campaign was waged to prevent Donald Trump from being re-elected president. That movement reached its pinnacle on December 19, 2023, when the Colorado Supreme Court ruled that Section 3 of the Fourteenth Amendment disqualified Donald Trump from the presidency. But less than three months later, on March 3, 2024, the United States Supreme Court unanimously reversed the state court. President Trump was re-elected, and certified on January 6, 2025.

This Article is not intended to explain the nuances of Section 3, summarize all of the litigation, or even analyze how the Supreme Court decided the case. Rather, this Article is somewhat personal in nature. It tells my own experience in the Section 3 litigation, from January 6, 2021, through January 6, 2025. This Article, I hope, will encapsulate the role that I played in this process with my friend and colleague Seth Barrett Tillman.

Seth also contributed to this symposium issue. His article is titled, Some Personal Reflections on the Recent Litigation Involving Section Three of the Fourteenth Amendment. Here is a snippet from the introduction:

What follows is not specifically an attempt to reargue the merits of disputes between my interlocutors and myself [which were debated during the recent Section 3 ballot-access Trump-related cases], but an attempt to explain my personal experience in attempting to debate a set of intellectual points—points which I had developed since circa 2007 and refined in cooperation with Professor Blackman since 2017. Although I make no claim to objectivity among competing views, I hope to show that traditional academic and professional norms remain worthy aspirational goals, even where unmet.

Looking back, this paper is not so much about Section 3 of Amendment XIV and recent ballot-access Trump-related litigation. Rather, it is more about the decline in civility and aspirational standards within the polity, the courts, and legal academia.

And another snippet from the conclusion:

It is said that at the negotiations at Appomattox Courthouse—Lee and Grant were both frank and civil during the course of discussing the surrender of Lee's Army of Northern Virginia. Afterwards, Grant sent food to Lee to feed his (and, then, their) nation's former enemy soldiers. Celebrations for Grant's soldiers came only later—not while Lee's soldiers remained present. Again, in ending active hostilities, the first step towards national reconciliation was frank and civil discourse.

I do not think our present and future is or will be as difficult as was Grant and Lee's. But we too have to think about national reconciliation. It seems to me that the first steps in that direction involve frank and civil discussion, absent hyperbole, and absent name calling. If federal judges, state judges, and legal academics are not up to that task, then that is just another institutional and cultural problem crying out for reform and renewal.

Likewise, our domestic law schools are supported by taxes, tuition, and donations. If universities and academics only further burden American society by casting aside our free speech traditions and actively engage in just another front in our culture wars, then wider society might very well choose to withhold support. Perhaps this process has already begun?

Often Seth and I publish together, but for this symposium, it was useful to publish separately. The Section 3 litigation is not something we will soon forget, even if others would rather not recall what they tried to do.

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[Eugene Volokh] Court Holds Anti-DEI Executive Orders Don't Facially Violate First Amendment

Some short excerpts from Friday's long decision by Judge Timothy Kelly (D.D.C.) in National Urban League v. Trump:

After taking office this January, President Trump promptly issued three executive orders addressing diversity, equity, and inclusion. Some provisions are internal to the government, directing Executive Branch officials to create certain lists or produce certain reports to advise the President. Others reach into the private sector—for example, by requiring grantees and contractors to certify that they do not operate DEI programs that violate federal antidiscrimination law. And still others straddle the line by directing agencies to terminate some federal grants and contracts, an intra-governmental directive that affects other entities.

Plaintiffs are three nonprofit organizations that incorporate DEI into their work. They also contract with and receive funding from several federal agencies. Concerned that President Trump's executive orders will prevent them from fulfilling their organizational missions, Plaintiffs sued to enjoin a host of agencies and officials from enforcing the orders. They moved for a preliminary injunction over a week later, arguing that eight provisions of the orders are unconstitutional under the First or Fifth Amendment—or both. More specifically, Plaintiffs contend that the challenged provisions are impermissibly vague, chill protected speech, and amount to unlawful viewpoint discrimination.

But Plaintiffs have not shown that they are likely to succeed on any of those claims, so the extraordinary relief of a preliminary injunction is unwarranted. For half the challenged provisions, Plaintiffs fail to establish a prerequisite to success on the merits: standing. Presidential directives to subordinates that inflict no concrete harm on private parties—or at least not on these parties—do not present a justiciable case or controversy. And for the remaining provisions, Plaintiffs' constitutional claims falter for various reasons. Two throughlines explain most of them. The government need not subsidize the exercise of constitutional rights to avoid infringing them, and the Constitution does not provide a right to violate federal antidiscrimination law. And those pressure points are even harder to overcome for Plaintiffs, who bring facial rather than as-applied challenges.

The motion before the Court is not about whether DEI policies, however defined in a given context, are good public policy. Nor is it about whether specific DEI initiatives comply with antidiscrimination law. Instead, it is about whether Plaintiffs have shown that they are entitled to a preliminary injunction prohibiting enforcement of the executive orders at issue. Because they are not likely to prevail on the merits, the Court will deny the motion.

The court begins by summarizing the Executive Orders:

Within two days of his inauguration, President Trump … issu[ed] three executive orders about "gender ideology" and "diversity, equity, and inclusion." See Ending Radical and Wasteful Government DEI Programs and Preferencing, 90 Fed. Reg. 8339 (codified Jan. 29, 2025) ("Government DEI Order"); Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, 90 Fed. Reg. 8615 (codified Jan. 30, 2025) ("Gender Ideology Order"); Ending Illegal Discrimination and Restoring Merit-Based Opportunity, 90 Fed. Reg. 8633 (codified Jan. 31, 2025) ("Illegal Discrimination Order").

The first order purportedly aims to eliminate "illegal and immoral discrimination" that has "infiltrat[ed]" "virtually all aspects of the Federal Government." To implement that directive, the Director of the Office of Management and Budget must "coordinate the termination of all discriminatory programs, including illegal DEI … mandates, policies, programs, preferences, and activities in the Federal Government." Part of that implementation plan, moreover, calls on agencies to "terminate, to the maximum extent allowed by law," the following: (1) "all DEI, DEIA and 'environmental justice' offices and positions"; (2) "all 'equity action plans,' 'equity' actions, initiatives, or programs," and "'equity-related' grants or contracts"; and (3) "all DEI or DEIA performance requirements for employees, contractors, or grantees." Id. § 2(b)(i) ("Equity Termination Provision"). This order also directs agencies to give the OMB Director a list of all "Federal grantees who received Federal funding to provide or advance DEI, DEIA, or 'environmental justice' programs, services, or activities since January 20, 2021." Id. § 2(b)(ii)(C) ("List Provision"). And the order states that its implementation must be "consistent with applicable law."

Issued the same day, the second order addresses "gender ideology," defined as the displacement of "the biological category of sex with an ever-shifting concept of self-assessed gender identity." Those "who deny the biological reality of sex," the order begins, have allowed "men to self-identify as women and gain access to intimate single-sex spaces and activities designed for women." And because the Trump administration believes that "eradicat[ing] the biological reality of sex … depriv[es]" women "of their dignity, safety, and well-being," the order gives agencies several marching orders. Two are relevant here. First, agencies "shall take all necessary steps, as permitted by law, to end the Federal funding of gender ideology." Id. § 3(e) ("Gender Funding Termination Provision"). And second, they must "assess grant conditions and grantee preferences and ensure grant funds" from the federal government "do not promote gender ideology." Id. § 3(g) ("Promoting Gender Ideology Provision"). As with the first order, implementation must be "consistent with applicable law."

The third order returns to DEI more generally. It explains that both the federal government and private sector have adopted "race- and sex-based preferences under the guise of" DEI in ways "that can violate the civil-rights laws of this Nation." Such "[i]llegal DEI" policies, the order says, violate those "longstanding" civil-rights laws and "undermine our national unity." So the order emphasizes that the "Federal Government" will enforce these laws by "ending illegal preferences and discrimination." To that end, the order aims to "terminat[e] illegal discrimination in the Federal Government" through several means. Each agency must include two terms in "every contract or grant award": one requiring the counterparty "to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws," and another requiring it to agree that compliance with those laws "is material to the government's payment decisions for purposes of" the False Claims Act. See id. § 3(b)(iv)(A), (B) ("Certification Provision"). Further, the OMB Director must "[e]xcise references to DEI and DEIA principles" from "Federal acquisition, contracting, grants, and financial assistance procedures." Id. § 3(c)(ii) ("Contract Terms Provision"). And that director must eliminate "all 'diversity,' 'equity,' 'equitable decision-making,' 'equitable deployment of financial and technical assistance,' 'advancing equity,' and like mandates, requirements, programs, or activities, as appropriate." Id. § 3(c)(iii) ("Government Mandates Provision").

Finally, the Illegal Discrimination Order seeks to "encourag[e] the private sector to end illegal DEI discrimination" too. The central plank of this section directs the Attorney General to create a "report" that will "further inform and advise" President Trump so that he "may formulate appropriate and effective civil-rights policy." Id. § 4(b) ("Report Provision"). Generally, this report must include "recommendations for enforcing Federal civil-rights laws." And specifically, it must "contain a proposed strategic enforcement plan identifying," among other things, the "most egregious and discriminatory DEI practitioners in each sector of concern"; "specific steps or measures to deter DEI programs or principles … that constitute illegal discrimination or preferences"; a list from each agency flagging "up to nine potential civil compliance investigations" of large private-sector entities; "[o]ther strategies to encourage the private sector to end illegal DEI discrimination … and comply with all Federal civil-rights laws"; and "potentially appropriate" litigation. Again, all parts of the order must "be implemented consistent with applicable law."

Thus, across the three executive orders, eight provisions are relevant to Plaintiffs' request for preliminary relief. The Court refers to them collectively as the "Challenged Provisions." To recap, they are: Government DEI Order § 2(b)(i) ("Equity Termination Provision") and § 2(b)(ii)(c) ("List Provision"); Gender Ideology Order § 3(e) ("Gender Funding Termination Provision") and § 3(g) ("Promoting Gender Ideology Provision"); and Illegal Discrimination Order § 3(b)(iv)(A), (B) ("Certification Provision"), § 3(c)(ii) ("Contract Terms Provision"), § 3(c)(iii) ("Government Mandates Provision"), and § 4(b) ("Report Provision").

Less than a week after President Trump issued the orders, OMB told agencies to pause "agency grant, loan, and other financial assistance programs." Each agency had to analyze all its financial-assistance programs to identify "programs, projects, and activities that" any of President Trump's executive orders might "implicate[ ]." Meanwhile, OMB instructed the agencies to "temporarily pause"—"to the extent permissible under applicable law"—"all activities related to" such financial assistance for, among other things, "DEI" and "woke gender ideology."

The Attorney General also chimed in. In early February, she issued a memo about "ending illegal DEI and DEIA discrimination and preferences." The Department of Justice, the memo explained, "is committed to enforcing all federal civil rights laws." And the Illegal Discrimination Order made "clear that policies relating to" DEI "violate the text and spirit of our longstanding Federal civil-rights laws." So DOJ will "investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds." And consistent with the executive order, DOJ will create a report "containing recommendations for enforcing federal civil-rights laws" and "encourag[ing] the private sector to end illegal discrimination." …

The court concluded that some of the provisions (the List Provision, the Report Provision, the Government Mandates Provision, and the Contract Terms provision) don't sufficiently directly injure plaintiffs, and plaintiffs therefore lack standing to challenge those provisions. And as to the other provisions, the court concluded that plaintiffs' facial vagueness and First Amendment challenges are likely to fail. Here's an excerpt of the First Amendment analysis:

The First Amendment prohibits governments from "abridging the freedom of speech." Sometimes that right requires the government to "accommodate expression." But the Supreme Court has "reject[ed] the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State."

Put slightly differently, "even where the Constitution prohibits coercive governmental interference with specific individual rights, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom." That is why the "refusal to fund protected activity, without more, cannot be equated with the imposition of a 'penalty' on that activity." And for that reason, the typical "recourse" for a "party" that "objects to a condition on the receipt of federal funding" is "to decline the funds."

At the same time, though, "a funding condition can result in an unconstitutional burden on First Amendment rights." That "line is hardly clear." But the key consideration—or at least one of them—is whether the condition "specif[ies] the activities" the government "wants to subsidize" or if it "seek[s] to leverage funding to regulate speech outside the contours of the program itself."

Plaintiffs bring only a facial First Amendment challenge, and that choice dictates how much constitutional invalidity they must show…. Plaintiffs may prevail on their facial claim by showing that "a substantial number of" the Challenged Provisions'"applications are unconstitutional, judged in relation to [their] plainly legitimate sweep." That translates to an inquiry that first assesses the scope of the Challenged Provisions—i.e., "[w]hat activities, by what actors," do they "regulate"?—and then analyzes which "applications violate the First Amendment" before "measur[ing]" those "against the rest." … Facial invalidation "destroys some good along with the bad," so it is justified only when the "unconstitutional applications" are "realistic" rather than "fanciful." And those impermissible applications "must be substantially disproportionate to" the lawful ones because only a "lopsided ratio" warrants this "strong medicine."

Begin with the Equity Termination, Promoting Gender Ideology, and Gender Funding Termination Provisions, which move together within the First Amendment analysis. By their terms, these provisions tell agencies what to do with federal funds and contracts. Under the first, agencies must terminate equity-related grants and contracts in accordance with the law. And the latter two target the federal funding of gender ideology.

These provisions, then, do not reach beyond the scope of the grant or fund at issue. The directives do not tell agencies to cancel contracts with entities doing equity-related work outside their contracts or to ensure that federal funds do not support grantees promoting gender ideology with non-federal funds. In this way, the provisions do not "prohibit[ ] the recipient from engaging in the protected conduct outside the scope of the federally funded program" or contract. The provisions, in other words, are part of a government effort "to fund one activity to the exclusion of another"—or to contract for certain purposes to the exclusion of others—which does not amount to "discriminat[ion] on the basis of viewpoint." That result follows from the principle that "refus[ing] to fund protected activity, without more," does not "penal[ize]" the "activity."

Because these provisions do not on their face restrict speech outside the scope of the federal funds or contract, they do "not run afoul of the First Amendment." Or more specifically, most of their applications will not. Consider an entity that receives four federal grants. It uses one to fund a program advancing the idea that transgender women should be able to participate in women's sports. The other three grants, though, support projects far afield from transgender rights or gender ideology more generally.

Directed to "end the Federal funding of gender ideology" as "permitted by law" and ensure that such funds do not "promote gender ideology," an agency would presumably terminate the first grant or tell the recipient that it will do so unless the recipient stops using the funds for that purpose. But because the other grants are not advancing gender ideology in any way, the gender-ideology provisions are no basis—at least in most of their applications—to cut those grants. Said another way, because the provisions do not "effectively prohibit[ ]" or otherwise restrict "the recipient from engaging in the protected conduct outside the scope of the federal[ ] fund[s]," they do not "place[ ]" a constitutionally problematic "condition on the recipient of the subsidy." And the same result holds for the Equity Termination Provision: its text does not say that a contractor with four contracts, only one of which is equity-related, will lose the other three by advocating for equity principles outside the scope of those contracts.

Now to the other side of the ledger. Plaintiffs must make two showings about the unconstitutional applications of these funding-focused provisions: those applications are "realistic" rather than "fanciful," and "their number" is "substantially disproportionate to [their] lawful sweep." But Plaintiffs do not clearly describe what those applications look like. The bulk of their First Amendment challenge focuses on the Certification Provision—which the Court discusses below—and the Report and List Provisions—which Plaintiffs likely lack standing to challenge….

Between their briefing and oral argument, Plaintiffs point to two examples that they say show that the funding-focused provisions reach beyond the scope of the federal funds and contracts. In a meeting with an "HHS contractor" in mid-February, the "program officer" told the AIDS Foundation that "the term 'gender' must be replaced with 'sex' in … program materials." That officer also said that the materials must no longer contain "reference to 'gender-affirming' care," and that "LBG" must replace the acronym "LBGTQIA."

At the hearing, however, Plaintiffs asserted that HRSA told the AIDS Foundation at this meeting "to remove words not just in federally funded programs, but on all their publications." The supporting declaration is ambiguous on that front; it describes a meeting "about a program under which [the AIDS Foundation] is a subcontractor," suggesting that the directive focused on that federal program. But even if HRSA did tell the AIDS Foundation to alter its materials outside the scope of federally funded programs, this example hardly shows that the "unconstitutional applications" of these provisions "substantially outweigh [their] constitutional ones." At most, an HRSA representative aggressively—and incorrectly—interpreted the gender-ideology provisions to say that recipients of federal funds cannot promote gender ideology, no matter whether they use federal funds to do so. But that does not establish the "lopsided ratio" justifying the "strong medicine" of facial invalidation.

Nor does the example of HUD "cancel[ing] funding" for one of the Housing Alliance's "partner organizations." According to Plaintiffs, HUD invoked the Government DEI Order—presumably, the Equity Termination Provision—to terminate the grant "based on 'key words' in [the] organization's 'website or Linked Profile.'"So, Plaintiffs reason, that provision reaches speech "both inside and outside of the federal government"—i.e., "purely private speech" untethered to federal grants or contracts.

But this example, even taken together with the HRSA directive to the AIDS Foundation, is too slender a reed to support facial invalidation. To start, while the cover email from HUD references "key words," the termination notice itself explains that the partner organization's "operations and performance in connection with the subject awards" did not comply with the Government DEI Order. So it is unclear whether HUD terminated the awards because of the organization's conduct outside the scope of the awards or because its conduct under the awards made them "equity-related." But even if the former, this example remains at best just a second instance of an agency going beyond the text of a Challenged Provision. After all, the Equity Termination Provision says nothing about whether the grant recipient's activities are equity-related; it asks whether the grant is equity-related. So conduct beyond the scope of the federal funding should, under the provision's plain text, not warrant termination. And Plaintiffs "may not leverag[e] a few alleged unconstitutional applications" of these provisions "into a ruling invalidating [them] in all [their] applications."

To sum up, the text of these three provisions points to a heartland of constitutional applications. And on this record, Plaintiffs have not shown that "unconstitutional applications substantially outweigh" their "plainly legitimate sweep."

The Certification Provision is not facially invalid either despite Plaintiffs' three-pronged attack on it…. [T]he Certification Provision does cover conduct "outside the scope of" federal grants and funds. It requires grant recipients and contractual counterparties to certify that they do "not operate any programs"—rather than just federally funded ones—"promoting DEI that violate" federal antidiscrimination law….

[But f]or the Certification Provision to violate the First Amendment, Plaintiffs must show that the certification requirement impermissibly restricts their ability to engage in protected speech. Yet neither Plaintiffs nor anyone else have a First Amendment right to violate federal antidiscrimination law. To the contrary, "the Supreme Court has clearly held that the First Amendment does not protect the very act of discriminating on the basis of race." More generally, the right to speak freely provides no shield for "private individuals or institutions" that "engage in discrimination" that violates federal law. So Plaintiffs cannot "assert an alleged first amendment right to be free of the strictures of" federal antidiscrimination law "and also claim the right to continued federal funding" and contracts….

Resisting that conclusion, Plaintiffs insist that the Certification Provision does not really mean what it says. On their reading, the provision "purports to make organizations that 'promot[e] DEI' ineligible for government contracts and grants." But Plaintiffs offer no reason to disregard the Certification Provision's text for their preferred reading.

On its face, all the provision requires is a certification that the grant recipient or contractual counterparty will not violate the federal antidiscrimination laws that they had to comply with long before President Trump issued the executive orders. It does not "purport to establish the illegality of all efforts to advance [DEI]," and it "should not be so understood." And according to Plaintiffs, they "do not engage in any unlawful discrimination." If Plaintiffs worry that this administration takes a broader view of what counts as illegal discrimination, that is a concern with the interpretation of the underlying federal antidiscrimination law—which Plaintiffs do not challenge—rather than the Certification Provision….

Pardis Gheibi represents the government.

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[Jonathan H. Adler] America First Legal Foundation v. Chief Justice John Roberts

[A FOIA lawsuit that seeks executive branch control over the Judicial Conference of the United States and Administrative Office of the United States.]

Last month, with relatively little fanfare, the America First Legal Foundation filed suit against Chief Justice John Roberts, in his capacity as the presiding officer of the Judicial Conference of the United States, and Robert J. Conrad, Director of the Administrative Office of the U.S. Courts. The suit is nominally seeking to enforce a document request under the Freedom of Information Act (FOIA), but substantively raises broad separation-of-powers claims.

The suit was prompted by the refusal of the Judicial Conference and Administrative Office to respond to AFLF's FOIA requests for copies of communication with the offices of Senator Sheldon Whitehouse and Representative Hank Johnson, two legislators who have worked overtime to stir up ethical allegations against sitting Supreme Court justices. The Judicial Conference and Administrative Office rebuffed the requests on the grounds that each are exempt from FOIA.

The basis for AFLF's suit is that the Judicial Conference and Administrative Office are not part of the judiciary, but are instead executive branch agencies subject to FOIA. According to AFLF, neither entity is a "court," and insofar as each has other responsibilities, including the promulgation of rules governing federal courts and responding to Congressional inquiries, each is an "agency" under FOIA. It further claims that insofar as the Chief Justice is able to appoint members of Judicial Conference committees "then he must be acting as an agency head, subjecting the Judicial Conference to the FOIA." (Cf. Art. II, section 2, which authorizes Congress to delegate authority to appoint inferior officers to "the Courts of Law.")

The suit does not merely seek fulfillment of the FOIA requests. It seeks to have the Judicial Conference and Administrative Office are "independent agencies within the executive branch." It further suggests, but does not allege, that the President should have the power to appoint and remove the Presiding Officer of the Judicial Conference and the Director of the Administrative Office.

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[Eugene Volokh] Sperm Racing

The Free Press (River Page) reports: "The World's First Sperm Race Seemed Too Good to Be True. It Was." But did it really? Did it seem too good to be true? Or good at all?

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[Josh Blackman] Today in Supreme Court History: May 4, 1942

5/4/1942: Wickard v. Filburn argued.

 

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[Eugene Volokh] Judge Easterbrook: Public Universities Should Have Free Hand in Restricting Professors' Teaching

From Seventh Circuit Judge Frank Easterbrook's opinion concerning the denial of rehearing en banc in Kilborn v. Amiridis (see this post for the panel decision, which took a contrary view):

"It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail the four essential freedoms of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Sweezy v. New Hampshire (1957) (Frankfurter & Harlan, JJ., concurring) (quoting from an academic report). Sweezy introduced the idea of academic freedom to the pages of the United States Reports. Although a majority did not state clearly who possesses that freedom, the views of Justices Frankfurter and Harlan have persuaded many other federal judges that the university itself is entitled to freedom from outside control, even if a faculty member seeks to enlist the aid of non-academic governmental actors. See, e.g., Webb v. Ball State University (7th Cir. 1999); Wozniak v. Adesida (7th Cir. 2019); Urofsky v. Gilmore (4th Cir. 2000) (en banc).

A university's ability to evaluate and respond to faculty members' speech is essential to the educational enterprise. Think of tenure: A university assesses a professor's quality of research and writing (and choice of subject matter) and necessarily makes decisions based on the content and viewpoint of speech. A chemist who writes excellent political commentary but neglects scientific data and analysis can't expect tenure. A biologist who devotes his career to elaborating the ideas of T.D. Lysenko can't expect tenure.

Think of teaching: Every university assigns subjects (a professor of philology can't insist on teaching political theory) and approaches (a professor of evolutionary biology who has experienced a religious conversion can't denounce Darwin and embrace creationism). A university may demand that exams cover given topics and be graded on a curve. Successful professors receive raises and timeservers do not—though "success" depends on speech that occurs in class and in scholarly journals. And so on. Evaluation of every teacher's speech is an essential part of academic administration, and deans rather than jurors should resolve disputes about these matters.

When a federal court announces that interests must be "balanced" under the approach of Connick v. Myers (1983), and Pickering v. Board of Education (1968), it has stripped the university of its authority over the curriculum and assigned it to a different institution. But if the university holds the right of academic freedom, it can decide for itself that Economics 101 should emphasize John Maynard Keynes rather than Adam Smith, Milton Friedman, or Karl Marx, no matter what the professor prefers. A required Great Books course may feature Pride and Prejudice and Oblomov but not Ulysses, and the university may sack someone who instead teaches Dune and The Postman Always Rings Twice, without asking a jury to decide which books would do students the most good.

A university may require professors to avoid cuss words and other derogatory language in class or on exams. But a university could decide not to protect students, in or out of class, from words and ideas that they might find offensive. See University of Chicago, Report of the Committee on Freedom of Expression (2015) (the "Chicago Principles"). The University of Illinois Chicago evidently does not follow the Chicago Principles, and I do not think that a jury should be allowed to determine (by "balancing interests") that it must. Universities need to experiment and compete on this dimension, as on many others, to find for themselves the best mix of policies—and students must be allowed to choose the educational setting that best matches their needs, something made impossible if the Constitution requires all educational institutions to follow identical paths.

If a governmental body outside a university demands, say, that a professor embrace or denounce diversity, equity, and inclusion, the professor has a substantial claim against that unit of government under the First Amendment. Likewise when a scholar speaks outside of class: A professor of medicine may proclaim on YouTube that vaccines cause autism. But when a professor and a university are at loggerheads about what constitutes effective teaching and scholarship, the university has to win. Otherwise the Judicial Branch and the populace at large (through juries) displace academic freedom.

Instead of invoking the First Amendment to protect him or his university from meddling by actors outside the academy, Kilborn has asked such actors (in the persons of judges and juries) to override a university's judgment about how to conduct classes and set examinations. This university may have reacted unwisely to Kilborn's choice of language, and the resulting student protests, but protecting a university's right to decide independently is the goal of academic freedom.

Oddly, however, the University of Illinois Chicago does not advance an argument along these lines. The panel observed: "The University officials do not suggest that the University had its own competing academic freedom interests."

Having litigated this case on the assumption that Kilborn holds rights in speech vis-à-vis his employer, the University has been reduced to making arguments about just which decisions do, or do not, "clearly establish" what I take to be a nonexistent constitutional right of professors to use offensive words in class or on exams even though the university insists on bland language. These arguments do not justify a hearing en banc. Other arguments that the University could have made are profoundly important, however, and should be entertained when properly presented.

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[Eugene Volokh] The First Amendment and the Trump Administration's Anti-DEI Executive Orders

Nat'l Ass'n of Diversity Officers in Higher Ed. v. Trump, decided Thursday by Judge Adam Abelson (D. Md.), reaffirms an injunction against the Administration's DEI Executive Orders that the judge had issued (and that was stayed on appeal). The plaintiffs argue that "[new] factual developments merit vacating the injunction and permitting Plaintiffs to file an amended complaint and a renewed motion for a preliminary injunction," and the court said no. But in the process the court discussed the substantive question, and I thought I'd pass that along:

This Court remains of the view that Plaintiffs have shown a strong likelihood of success on the merits of their facial free speech and vagueness claims …. The Challenged Provisions forbid government contractors and grantees from engaging in "equity-related" work and from "promoting DEI" in ways the administration may consider to violate antidiscrimination laws; they demand that the "private sector" "end … DEI" and threaten "strategic enforcement" to effectuate the "end[ing]" of "DEI"; and they threaten contractors and grantees with enforcement actions with the explicit purpose of "deter[ring]" such "programs or principles."

This Court remains deeply troubled that the Challenged Provisions, which constitute content-based, viewpoint-discriminatory restrictions on speech (in addition to conduct), have the inherent and ineluctable effect of silencing speech that has long been, and remains, protected by the First Amendment. And they do so through impermissibly vague directives that exacerbate the speech-chilling aspects of the Challenged Provisions.

Historically, the metaphor used to describe the effect of laws that restrict speech is "chill." The more apt metaphor here is "extinguish." Part of the explicit purpose and effect of the Challenged Provisions is to stifle debate—to silence selected viewpoints, selected discourse—on matters of public concern. They forbid government contractors and grantees from engaging in discourse—including speech such as teaching, conferences, writing, speaking, etc.—if that discourse is "related" to "equity." And they direct the "private sector" to "end" diversity, to "end" equity, and to "end" inclusion. "End" is not a mere "chill." "Deter[rence]" is not a side-effect of the Challenged Provisions; their explicit goal is to "deter" not only "programs" but "principles"—i.e. ideas, concepts, values. After all, the opposite of inclusion is exclusion; the opposite of equity is inequity; and, at least in some forms, the opposite of diversity is segregation.

The government has apparently concluded, and takes the position, that particular employment practices, for example related to hiring or promotion, constitute discrimination in ways that violate Title VI or Title VII. But the Challenged Provisions do far, far more than announce a change in enforcement priorities within the bounds of existing law. For as vague as the Challenged Provisions are about some matters, there can be no serious question that the direct and necessary impact of those provisions—and purposeful, to the extent that matters—is to extinguish discourse throughout civil society on what makes our society diverse, the different perspectives we each bring to bear based our respective upbringing, family history, community, economic circumstances, race, national origin, gender, ability, sexual orientation, or the like. These executive directives seek to extinguish discourse about our shared history. They seek to extinguish discourse about how to strive toward greater inclusivity, or even what that means, or whether that is a worthy goal.

The fact that the Challenged Provisions also target conduct, in addition to speech (and ideas), does not diminish the Challenged Provisions' unmistakable edict that persons working for government contractors or grantees, or any person working in the private sector for that matter, must not express certain viewpoints on a swath of topics related to inclusion, equity and diversity. And they do all of that on their face. While a "government official can share her views freely and criticize particular beliefs," and seek to "persuade" others (even "forcefully") of the merits of a particular view, officials may not "use the power of the State to punish or suppress disfavored expression." NRA v. Vullo (2024)….

Other courts have agreed. For example, in Chicago Women in Trades v. Trump (N.D. Ill. 2025), the court held that the Certification Provision undisputedly "attempts to regulate grantees' speech outside of their federally-funded programs," and further restricts speech on the basis of content and viewpoint, for example prohibiting "programmatic activity [that] 'promote[s] DEI' (whatever that is deemed to mean)."

In the education context, the U.S. District Court for the District of New Hampshire explained in detail why prohibiting "DEI," requiring certification, and threatening enforcement actions for violations combine to threaten "the 'supremely precious' yet 'delicate and vulnerable' nature of the right to free speech in our country," Nat'l Educ. Ass'n v. U. S. Dep't of Educ. (D.N.H. 2025), particularly given that they "sweep in a wide swath of conduct while leaving individual enforcement decisions to the subjective determinations of enforcement authorities." … And as Judge Gallagher explained in a similar case in this district, although the government is "entitled to its own views, including on how court cases and laws should be interpreted," and to "develop and pursue its own enforcement priorities within the law," it may not "blur the lines between viewpoint and law" in ways that prohibit (or could be reasonably perceived to prohibit) "conduct, speech, perspectives, lessons, programs, activities or meetings" on the basis of content or viewpoint. Am. Fed'n of Teachers v. Dep't of Educ. (D. Md. 2025)….

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[Eugene Volokh] Shedeur Sanders Fan Sues NFL for Emotional Distress Over Sanders' Late Draft Pick

[Can you sue over that? Why, yes you can! ... But can you win? Not so much.]

From Doe v. NFL (M.D. Ga.), filed yesterday:

That claim, I'm pretty confident, is going nowhere. (Claims for "intentional infliction of emotional distress" based on extreme and outrageous conduct are indeed viable in some situations, but they require highly egregious conduct, generally targeted at the particular plaintiff.)

Doe also alleges violations of the Sherman Antitrust Act ("The collusion among NFL teams to influence the drafting process and the subsequent low selection of Shedeur Sanders constitutes a conspiracy to restrain trade and limit competition within the league") and federal antidiscrimination law ("The decisions made regarding Sanders may have been influenced by racial discrimination, violating his rights as a player").

But of course he doesn't have standing to challenge alleged harms to Sanders. And Doe also claims that "The NFL may have engaged in unfair practices by misrepresenting the nature of the drafting process and the qualifications of players," which is too vague to analyze.

Plaintiff seeks a "formal acknowledgment from the NFL regarding the emotional distress caused by their actions and statements," a "retraction of the slanderous statements made about Shedeur Sanders, along with an apology," "[i]mplementation of fairer practices in the drafting process," and $100M in punitive damages "for the harm caused to [Doe] and the impact of the NFL's actions on his emotional well-being."

Plaintiff states that he's unable to pay the filing fees, so the court will screen it to determine (among other things) whether it's "frivolous," which is to say "it lacks an arguable basis either in law or in fact." I expect the court to indeed promptly dismiss it as frivolous.

UPDATE: Prof. Andy Geronimo (Case Western) Tweets: "Not sure it's [intentional infliction of emotional distress] to see your favorite college player fall to the fifth round of the draft, but a claim that you now have to be a Cleveland Browns fan is [plausible]."

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[Josh Blackman] Today in Supreme Court History: May 3, 1802

5/3/1802: Washington D.C. incorporated as the capital of the United States. Article I, Section 8 empowers Congress to "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States."

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[Ilya Somin] Why the Major Questions Doctrine Applies to the President, Not Just Executive Agencies

[This is a key issue in cases seeking to limit executive branch power grabs, including Trump's tariffs. Judge Ryan Nelson (a conservative Trump appointee) explains why the president is not exempt from the doctrine.]

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The Supreme Court's "major questions" doctrine (MQD)  requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." If the statute isn't clear, courts must reject the executive's assertion of power. But the Trump Administration, like the Biden Administration before it, argues that the doctrine does not apply to assertions of power by the President, only those by lower-level executive branch officials, such as leaders of administrative agencies.

This issue came up in several cases challenging executive actions by President Biden, and it has arisen again in the lawsuit challenging Trump's massive IEEPA tariffs filed by the Liberty Justice Center and myself, on behalf five small businesses.

For reasons outlined in my Lawfare article about the tariffs, I think it's obvious that Trump's actions run afoul of MQD:

If there is any ambiguity over the meaning of IEEPA, courts should resolve it against the government by applying the major questions doctrine. Since 2021, the Supreme Court has invalidated several presidential initiatives under that rule,… Examples include cases invalidating President Biden's massive student loan forgiveness program, a coronavirus vaccination mandate imposed on workers employed by firms with 100 or more employers, and a pandemic-era nationwide eviction moratorium imposed by the first Trump administration and later extended by Biden.

If Trump's sweeping use of IEEPA to start the biggest trade war in a century is not a major question, it is hard to say what is. The magnitude of the Liberation Day tariffs exceeds that of most of the other measures declared major questions by the Supreme Court…. The nonpartisan Tax Foundation estimates that Trump's IEEPA tariffs will impose some $1.4 to 2.2 trillion in tax increases on Americans, over the next decade. That makes even President Biden's dubious $400 billion student loan forgiveness plan (which the Supreme Court rightly invalidated under the major questions doctrine) seem modest by comparison.

In sum, it is difficult to deny that Trump's invocation of IEEPA to impose the Liberation Day tariffs raises a major question. And if it does, courts should use the major questions doctrine to invalidate it. To understate the point, it is far from clear that IEEPA authorizes the use of tariffs, that trade deficits are an "emergency," or that there is any "unusual and extraordinary threat." If any of these three preconditions is not clearly met, then the major questions doctrine requires the courts to strike down Trump's tariffs.

The administration, however, argues that MQD just doesn't apply to the president at all! If so, that might shield not only the tariffs but many other presidential power grabs from judicial scrutiny. Under Biden, MQD was decried by some as a tool invented by conservatives to stymie left-wing policies. But, under Trump, progressives have every reason to make use of it themselves. More generally, it's a valuable resource to protect against excessive delegation of power, and enforce the common-sense textualist rule of interpretation that a grant of major authority requires clearer authorization than one that delegates only some minor power.

The claim that presidential actions are exempt from MQD has already been rejected by at least three federal courts of appeals, the Fifth, Sixth, and Eleventh Circuits. See Louisiana v. Biden, 55 F.4th 1017, 1031 n.40 (5th Cir. 2022) ("delegations to the President and delegations to an agency should be treated the same under the major questions doctrine") ; Georgia v. President of the U.S., 46 F.4th 1283, 1295–96 (11th Cir. 2022) (holding that an assertion of power by the President under the Procurement Act is "no exception" to application of MQD); Kentucky v. Biden, 23 F.4th 585, 606–08 (6th Cir. 2022) (applying MQD to a presidential directive). The Ninth Circuit went the other way in a decision that was later vacated as moot, and thus has no precedential value. Mayes v. Biden, 67 F.4th 921, 932–34 (9th Cir. 2023), vacated as moot, 89 F.4th 1186 (9th Cir. 2023). In a more recent ruling, Nebraska v. Su, the Ninth Circuit did apply MQD to a presidential action, but held that the policy did not run afoul of the doctrine because it wasn't a "transformative expansion" of executive authority.

Nebraska v. Su is also notable because it includes an excellent concurring opinion by Judge Ryan Nelson - a conservative Trump appointee - explaining why MQD applies to the president, not just administrative agencies:

The Supreme Court has never suggested that the President is exempt from major questions analysis. And it makes little sense to think that he is. Broad legislative delegations to the Executive Branch—whether to the President or to administrative agencies—are inherently suspect….

Much ink has been spilled on the "source and status" of the major questions doctrine. Biden v. Nebraska, 143 S. Ct. 2355, 2376 (2023) (Barrett, J., concurring). Some view the doctrine as a substantive canon rooted in non-delegation principles. See Nat'l Fed'n of Indep. Bus. v. Dep't of Lab., delegation doctrine are both "designed to protect the
separation of powers"). Others understand the doctrine as a linguistic canon—"an interpretive tool reflecting 'common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.'" Nebraska, 143 S. Ct. at 2378 (Barrett, J., concurring)…  Regardless of its source, the major questions doctrine does not yield because Congress delegated authority to the President and not an agency.

Let's assume major questions is fundamentally a separation of powers doctrine. On that view, the doctrine keeps Congress in its constitutional lane, preventing it from
delegating "fundamental policy decisions" to the Executive Branch. Indus. Union Dep't, AFL-CIO v. Am. Petrol. Inst., 448 U.S. 607, 687 (1980) (Rehnquist, J., concurring in the
judgment)… It makes no difference which Executive Branch officer has received an unlawful delegation: the "entire 'executive Power' belongs to the President alone." Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 213 (2020)….

Indeed, a unitary executive is entrenched in our constitutional structure. The Founders envisioned a system in which the executive power is concentrated in a single President who does not make the laws, but executes them…. The Supreme Court's major
questions cases recognize that basic premise….

Distinguishing between presidential and agency delegations also ignores the realities of administrative decision-making. The President is likely to be closely involved in major policies, even if they are ultimately promulgated by an agency….

Now assume the major questions doctrine operates as a linguistic canon that "situates text in context." Nebraska, 143 S. Ct. at 2378 (Barrett, J., concurring). Here, it would
be even stranger to treat the President differently. We regularly interpret statutory grants of authority. In so doing, we recognize that Congress does not "hide elephants in
mouseholes." Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001)… Why would our normal interpretive process turn on the identity of the Executive Branch officer to whom Congress delegated power? An implausible reading of a statute is no less implausible when that statute confers authority on the President versus an agency.

Notice, as Judge Nelson points out, that the distinction between presidential and agency actions is particularly indefensible under the "unitary executive" theory endorsed by many conservatives, including the Trump administration (I myself have reservations about it). Under that approach, agencies are just extensions of the president's power, and are totally subordinated to him. Any delegation of power to an agency is is really a delegation to the president, as agency officials are ultimately there to do his bidding.

Judge Nelson goes on to explain why "political accountability" concerns don't justify treating supposed delegations to the president differently from those to agencies. Given extensive presidential control over agencies, the latter are subject to accountability through him.

I would add that they also face accountability through congressional action. Congress can legislate to curb the power of agencies that anger public opinion. Indeed, agencies actually face greater congressional constraints than the president, because Congress can adopt legislation abolishing an agency entirely, whereas it cannot do the same to the president. Removal of the president through impeachment is much more difficult than ordinary legislation curbing agency power.

Voter ignorance or partisan bias might lead the public to overlook problematic agency policies. But the same is true of those enacted by presidents.

In sum, there is every reason to apply the major questions doctrine to presidential actions no less than those of agencies. The Big Boss must be kept on a tight constitutional leash no less than his subordinates.

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