Eugene Volokh's Blog, page 112

[Orin S. Kerr] "The Digital Fourth Amendment" Is Now Available As An Audio Book

[For those who listen to their books rather than read them.]

I'm a big fan of audio books, so I'm happy to report that my new book, "The Digital Fourth Amendment: Privacy and Policing in Our Online World," is now available as an audiobook.

I know I'll get this question, so to answer it: No, I'm not the reader.  I wanted to be the reader, but the audio book company didn't pick me.  I've been listening to the audio book and I can see why. I like to think I could read the book well, but a professional can read it better.

I am planning more posts on the book soon, too.  Stay tuned.

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[Eugene Volokh] Elon Musk's Case Against OpenAI Can Go Forward, as to Some Claims

From the decision just issued by Judge Yvonne Gonzalez Rogers in Musk v. OpenAI (N.D. Cal.):

[As to the express contract claim:] [T]he parties agree that there is no one single document that consists of a contract. At best, Musk argues that emails exchanged with various defendants between 2015 and 2019 constitute an express contract. The Court disagrees. Therefore, the motion to dismiss Count I is Granted.

[As to the implied-in-fact contract claim:] Although there is no express contract, Musk adequately pleads in the alternative that there is an implied-in-fact contract manifested by the alleged conduct of the OpenAI. The FAC also adequately alleges Musk's performance, defendants' breach, and the resulting harm to The motion to dismiss Count II is Denied….

The court allows some other related claims (for instance for unjust enrichment and fraud) to go forward as well, and rejects still others. This is just a decision on a motion to dismiss, so the court is only asking whether plaintiffs had plausibly alleged something legally actionable. A decision on whether there was indeed a breach of an implied contract, fraud, unjust enrichment, and so on is still in the future.

For more on the case, see this March N.Y. Times article (Cade Metz):

In November, Elon Musk asked a federal court to block OpenAI's plan to transform itself from a nonprofit into a purely for-profit company.

On Tuesday, a federal judge in San Francisco denied Mr. Musk's request, calling it "extraordinary." But the court allowed Mr. Musk to proceed with other aspects of a lawsuit he filed last year against OpenAI and its chief executive, Sam Altman….

Note that I was local counsel on an amicus brief filed by some former OpenAI employees, but am not otherwise involved in the case.

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[Eugene Volokh] Federal Government Urges S. Ct. to Take Second Amendment Case

The question presented in  is:

Whether the Second Amendment allows a State to make it unlawful for concealed-carry license-holders to carry firearms on private property open to the public without the property owner's express authorization.

And here's the Introduction from the government's brief:

From the earliest days of the republic, individuals have been free to carry firearms on private property unless the property owner directs otherwise. And in NYSRPA v. Bruen (2022), this Court confirmed that restrictions on carrying firearms for lawful purposes such as self-defense violate the Second Amendment unless they fit within a discernible historical tradition.

Yet, after Bruen, five States, including Hawaii, inverted the longstanding presumption and enacted a novel default rule under which individuals may carry firearms on private property only if the owner provides express authorization, such as by posting a conspicuous sign allowing guns. Violations constitute misdemeanors punishable by up to a year in prison. Because most property owners do not post signs either allowing or forbidding guns, Hawaii's default rule functions as a near-complete ban on public carry. A person carrying a handgun for self-defense commits a crime by entering a mall, a gas station, a convenience store, a supermarket, a restaurant, a coffee shop, or even a parking lot. Yet, in the decision below, the Ninth Circuit upheld that rule against a Second Amendment challenge.

That decision warrants this Court's review. Hawaii's novel default rule defies—indeed, effectively nullifies—the "general right to publicly carry arms" that Bruen recognized. Someone carrying a firearm for self-defense cannot run errands without fear of criminal sanction. In practice, only "those who aimlessly wander the streets" may exercise their right to bear arms [citing Judge VanDyke's dissent from the decision below -EV].

That is no accident. The structure and operation of Hawaii's law reveal that the law serves no legitimate purpose and instead seeks only to inhibit the exercise of the right to bear arms. Hawaii's default rule applies only to firearms—not to anything else that a person might bring with him into a privately owned area that is open to the public. The rule also requires owners who want to allow guns on their premises to satisfy a special standard of clarity that does not apply when they consent to other conduct.

And the rule contains exemptions—including for off-duty police officers, retired police officers, and state employees going to and from work—that would make no sense if Hawaii were trying to protect private property rights. Those exceptions only make sense if Hawaii were trying to limit arms-bearing to select, favored groups and to exclude everyone else.

Certiorari is manifestly warranted. The Ninth Circuit's decision conflicts with Bruen's recognition that the Nation does not have "a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense." The Ninth Circuit also acknowledged that its decision conflicts with the Second Circuit's decision in Antonyuk v. James (2d Cir. 2024), that a similar New York default rule violated the Second Amendment. Eight judges dissented from the Ninth Circuit's refusal to hear this case en banc, correctly recognizing that Hawaii's law "largely vitiate[s]" the right to carry arms in public, and "practically accomplish[es] close to the same thing rejected in Bruen."

Five States embracing more than a fifth of the Nation's population have already adopted that type of Bruen-nullifying rule, and the decision below invites other jurisdictions in the Nation's largest circuit to do likewise. This Court should grant the petition for a writ of certiorari and reverse.

Such arguments from the federal government asking the Court to hear a case are generally seen as substantially increasing the likelihood that the Court will indeed agree to hear it. Still, it's no guarantee; we'll know soon enough whether the Court does grant review. You can read the opinions below in the Appendices to the petition for certiorari.

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[Eugene Volokh] Federal Law Doesn't Require Evicting D.C. Subsidized Housing Residents for Pleading Guilty to Possessing Unregistered Guns

From today's decision by Judge Corinne Beckwith, joined by Judges Anna Blackburne-Rigsby and Joshua Deahl, in Hattix v. D.C. Housing Authority:

Desean Hattix was convicted of attempted failure to register a firearm after police executed a search warrant at his home and recovered, among other things, two unregistered handguns. Following his conviction, the District of Columbia Housing Authority (DCHA) sued Mr. Hattix to evict him from his federally subsidized housing unit.

DCHA alleged that Mr. Hattix's possession of an unregistered firearm violated the federal "one-strike" provision in his lease, which prohibits tenants from engaging in "[c]riminal activity that threatens the residents' health, safety or right to peaceful enjoyment of the [property]." … [We agree with Mr. Hattix] (1) that possession of an unregistered firearm does not constitute a per se threat to residents' health, safety, or right to peaceful enjoyment of the property, and (2) that DCHA did not present sufficient evidence that Mr. Hattix's conduct posed a threat to residents' health, safety, or right to peaceful enjoyment of the property….

In January 2018, the Metropolitan Police Department (MPD) executed a search warrant at the federally subsidized housing unit where Mr. Hattix lived in Southwest D.C. MPD officers seized several items, including "two handguns, each with ammunition, a spent round of ammunition, a plastic bag containing drug paraphernalia and mail matter in [Mr. Hattix's] name." The firearms were not registered, and Mr. Hattix was not licensed to possess a firearm in the District. Mr. Hattix [pleaded guilty to] two counts of possessing an unregistered firearm and two counts of possessing unregistered ammunition. He subsequently pleaded guilty to attempted possession of an unregistered firearm.

Following his conviction, DCHA served Mr. Hattix with a notice to vacate his home, informing him that he had violated his lease and would be evicted. Specifically, DCHA relied on provision 18.1.4(i) of the lease, which states that lessees "shall not engage in any" "[c]riminal activity that threatens the residents' health, safety or right to peaceful employment of the Development." By law, this language—also called the one-strike provision—appears in all federally subsidized housing leases in every state. It requires no notice to tenants and no opportunity to cure their violation, thus preempting the general requirement under D.C. law that a landlord seeking to evict a tenant provide such notice and opportunity to cure….

The distinction between Dick Heller's possession of an unregistrable firearm [in D.C. v. Heller]—which could not be a reason to evict a tenant—and Mr. Hattix's possession of an unregistered handgun in violation of the District's post-Heller registration scheme is minimal, and not so glaring as to warrant the eviction of Mr. Hattix based on [an earlier precedent's] holding, prior to Heller, that the presence of an illegal firearm is a per se threat to the safety of one's neighbors. We do not dispute DCHA's argument that gun registration "is a useful method to curb illegal gun activity, encourage responsible gun practices and ensure gun owner accountability and help law enforcement solve crimes and disarm criminals." … But the fact that registration may serve as a "mechanism by which [the District] enforces important safety" requirements does not mean that the "mere lack of registration would … ordinarily be viewed as itself causing" harm.

Further, the fact that "the vast majority of states have not traditionally required registration of lawfully possessed guns"—including many states that explicitly prohibit registration requirements—tends to weaken DCHA's characterization of possession of an unregistered handgun as a per se threat to safety. To be sure, different states have different conditions and different legislative priorities, but most people in the United States who live in federally subsidized housing—including people in big cities that are combatting persistent gun violence—are not risking eviction by possessing an unregistered gun in their homes.

That it is not difficult to conjure situations in which the registration status of a gun would not affect the danger it poses to public safety likewise undermines the contention that failure to register a gun presents a per se threat. Mr. Hattix raised one at oral argument: An individual buys a gun and—having demonstrated that he satisfies the District's gun-registration requirements—registers this new gun. He then buys the exact same make and model of the original gun but, due to ignorance or laziness, fails to register the second gun. The registration status of the first gun does not make it any safer than the second gun. Or consider an individual who owns and registers a gun in another state before moving to the District. Upon arriving in the District, he is busy buying furniture and starting a new job, and it takes him a month to finally register his gun. His gun posed no greater threat to public safety before it was locally registered than it did after it was registered.

Contrary to DCHA's argument, this view does not require "a landlord to wait until a tenant uses an unregistered weapon to commit an illegal act against a specific person." DCHA could also have evicted Mr. Hattix under the one-strike requirement by making an individualized showing that his possession of an unregistered firearm endangered the safety of his fellow residents. Evidence that Mr. Hattix failed to register his firearm because, for example, he could not satisfy the registration requirements—perhaps because he had a history of domestic violence—would support DCHA's contention that Mr. Hattix's unregistered firearm threatened the safety of fellow residents.

But DCHA did not demonstrate an individualized threat here. In concluding otherwise, the [trial court] judge relied on the housing manager's testimony that she was generally concerned about gun violence in the community, but general concern about guns tells us nothing about the particular threat posed by an individual. In fact, to the extent the housing manager said anything specific about Mr. Hattix and his gun, her testimony cut the other way: she stated that she had no knowledge that Mr. Hattix had ever been involved in any gun-related activities on the premises, that she had never had a negative interaction with Mr. Hattix, and that he had never acted in a threatening manner towards her. On this record, DCHA has not established that Mr. Hattix's possession of an unregistered gun posed a per se or individualized threat to other residents' health, safety, or right to peaceful enjoyment….

Betsy A. Crumb, Luca Difronzo, Rowdy Kowalik, Lindsay Swinson, Jenifer E. Foster, and James Toliver represented Hattix.

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[Eugene Volokh] Anonymous Would-Be Intervenor Seeks TRO, Relying Heavily on AI Output, in Harvard's Challenge to Funds Freeze

[No, says the judge.]

"The answer to the question of whether Mr. Trump can act as our President is so obvious, even a machine can see it," John Doe argued in his filing yesterday, citing ChatGPT output. He went on to offer "a full-throated concurrence" "authored" by Grok. (To be fair, he acknowledged that "[t]he tech isn't perfect," and supplemented the argument with a citation to Michael Luttig & Laurence Tribe's article in The Atlantic sharply condemning the Supreme Court's decision in Trump v. Anderson—yet of course the district court is bound by Trump v. Anderson, whether or not it agrees with the decision.)

Judge Allison Burroughs, however, declined yesterday to let Doe intervene:

A party may intervene as a matter of right under Rule 24(a) if it meets the following four requirements:

First, the application must be timely. Second, the applicant must claim an interest relating to the property or transaction which is the subject of the action. Third, the applicant must be so situated that the disposition of the action may as a practical matter impair or impede [its] ability to protect that interest. Fourth, the applicant must show that [its] interest will not be adequately represented by existing parties….

"[A] party to claim standing [to intervene] must have an interest distinct from that of every other citizen or taxpayer." …

John Doe argues, among other things, that intervention is warranted to protect his First Amendment right to "receive information and ideas unfettered by government censorship or retaliation." In his argument for intervention, however, John Doe admits that his interests are "overlapping" with Plaintiff's but are also broader in that his concern includes the "public right to unimpeded access to the marketplace of ideas." Based on the record before it, the Court is not satisfied that this meets the fourth requirement. Moreover, it is not also evident to the Court that his interest is "distinct from that of every other citizen or taxpayer." Consequently, John Doe has failed to satisfy at least two requirements for intervention by right.

Alternatively, under Rule 24(b), "permissive intervention," the Court "may," on a timely motion, "permit anyone to intervene who … has a claim … that shares with the main action a common question of law or fact." "Permissive intervention is 'wholly discretionary,' and a court should consider whether intervention will prejudice the existing parties or delay the action." "[A] district court's discretion to grant or deny motions for permissive intervention is very broad." The Court may consider various factors to determine whether permissive intervention is warranted…. "[A] district court mulling permissive intervention is free to consider whether 'the applicants may be helpful in fully developing the case[,]'" and "that 'more parties would complicate' matters unnecessarily" …. Here, the Court does not believe that allowing John Doe to intervene will be helpful, constructive, or protective of an otherwise unrepresented interest.

Based on that denial of intervention, today Judge Burroughs denied John Doe's motion to TRO.

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[Ilya Somin] Federal Court Issues Two Important Rulings Against Trump in Alien Enemies Act Case

[Federal district court Judge Fernando Rodriguez ruled that Trump invoked the AEA illegally, and that migrants threatened with deportation under the Act can file class action habeas petitions.]

A prison guard transfers deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)

 

Today, US District Court Judge Fernando Rodriguez (Southern District, Texas) issued two important ruling against the Trump Administration in J.A.V. v. Trump, an Alien Enemies Act case. The first holds that Trump's invocation of the AEA is "unlawful" and imposes a permanent injunction against its use against migrants involved in the lawsuit. The second certifies that Venezuelan migrants targeted by Trump's invocation of the Act may file a habeas corpus class action to challenge its use against them.

The AEA can only be used to detain and deport immigrants in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government." Judge Rodriguez, a Trump appointee, ruled that the AEA's use by Trump against Venezuelan migrants who are supposed members of the Tren de Aragua drug gang is illegal because TdA's activities don't qualify as an "invasion" or "predatory incursion":

Petitioners' briefing contains numerous sources contemporaneous to the enactment of the AEA in which "invasion" and "predatory incursion" expressly reference or imply military action.Those sources include dictionary definitions, historical records such as letters, and court decisions….

Respondents do not challenge these usages. Instead, they contend that other
contemporaneous sources reflect a broader understanding of "invasion," with no express or implicit military requirement. In support of their construction, however, they provide only two examples, both of them from dictionaries….

To augment the parties' submissions, the Court reviewed numerous historical records using "invasion," "predatory incursion," and "incursion" for the period from 1780 through 1820…. In the significant majority of the records, the use of "invasion" and "predatory incursion" referred to an attack by military forces. This held true even when the historical record did not concern the Revolutionary War or the War of 1812. The usages of "predatory incursion" at times referred to entries by Native Americans into the western territories, as did usages of "incursion." But even these records refer to an organized group of armed individuals entering an area to attack a fort, settlement, or town, and the writer typically discussed the need for a military response to the entry….

The Court's research for judicial decisions that utilized "predatory incursion" during the relevant time period returned only two results. In both usages, the courts referenced "predatory incursions" to describe conduct by Native Americans, in one instance as part of an "Indian war" and in the other in connection with the authority of a military officer. See Huidekoper's Lessee v. Douglass, 3 Cranch 1, 7 U.S. 1, * 7 (1805) (explaining the passage of a statute as motivated by the fact that "an Indian war existed on [Pennsylvania's] frontier[,]" and the state's population were "bound by their dearest interests to watch and repel the predatory incursions of the Indians"); Russell's Lessee v. Baker, 1 H. & J. 71, 1800 WL 441, at *6 (Gen. Ct. Maryland 1800) ("But it does not follow under this grant of power that he had a right to declare war or make peace; for there is no instance of a captain general of an army having the power, as captain general, to do either. The powers, granted under this section of the charter were granted to guard against and repel the predatory incursions of the Indians . . . and to prevent and to suppress insurrections[.]")….

Judge Rodriguez also notes that references to "invasion" in the Constitution  refer to armed military attacks, and this should affect interpretations of its use in the AEA, enacted just a few years earlier.

He also rejects the idea that the meaning of "invasion" and "predatory incursion" are "political questions" not subject to judicial review.

This ruling follows similar decisions by a federal district court in Colorado, and Judge Henderson of DC Circuit, all of which also rejected the "political question" argument and held that, in the AEA, "invasion" and "predatory incursion" refer to armed attacks. Multiple earlier court decisions have reached the same conclusion with respect to the meaning of "invasion" in the Constitution. There is a growing consensus on this question among both liberal and conservative judges. The Colorado decision was issued by a liberal Biden appointee. But Henderson and Rodriguez are both conservative Republican appointees. So far, Judge James Ho of the Fifth Circuit is the sole judicial dissenter on the meaning of "invasion." I critiqued his position here.

I have defended the view that "invasion" requires a military attack, in greater detail in my own previous writings on the meaning of the term in the AEA and the Constitution.

There is one potentially significant flaw in Judge Rodriguez's analysis. While he concludes that the meaning of "invasion" is not a "political question," he argues that the factual determination of whether an "invasion" exists is. So far, the Trump Administration has not claimed there is an armed attack on the US conducted by a foreign nation or government, and thus he rules against them.  But if Trump - or a future president - were willing to lie about this issue, and falsely assert there is such an armed attack, Judge Rodriguez would presumably defer.

I think this reasoning is a mistake. Making determinations about relevant facts is a standard function of the judiciary. If the law says the government is allowed to do X whenever Y occurs, courts must make a determination on whether Y has actually happened or not. Otherwise, the government could do X anytime it wants. This is especially true of emergency wartime powers that severely curtail civil liberties, like those authorized by the AEA (detention and deportation with little due process, even for legal immigrants). I would add that, under the Constitution, a state of "invasion" allows state governments to "engage in war" in response and the federal government to suspend the writ of habeas corpus (thereby empowering it to detain people - including US citizens - without due process). Such sweeping authority cannot simply be left to the unreviewable discretion of one person. That's the kind of arbitrary royal prerogative the Founders sought to prevent.

It may be reasonable to defer to the executive on factual issues when the evidence is close, and ambiguous, and the government is making use of some kind of superior expertise. But not when the assertion that an "invasion" exists is pretty obviously false, and pretextual.

I will not comment on the class action ruling in detail, as I am not a class action expert. But it is significant. For reasons I summarized here and here, class action certification is crucial to ensuring that migrants targeted for deportation under the AEA have a meaningful opportunity to contest the government's actions in court.

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[David Bernstein] Noah Smith Regrets Bashing Libertarians

Smith:

I feel like I owe libertarians an apology, for severely underrating their ideology. I was so focused on its theoretical flaws that I ignored its political importance. I concentrated only on the marginal benefits that might be achieved by building on our economic system's libertarian foundation, ignoring the inframarginal losses that would happen were that foundation to crumble. I had only a hazy, poor understanding of the historical context in which libertarianism emerged, and of the limitations of libertarianism's most prominent critics.

The most obvious thing that has prompted me to make this apology is Donald Trump's disastrous tariff policy….

I should also have realized that as right-leaning ideologies go, American libertarianism was always highly unusual. I had lived in Japan, where the political right is protectionist, industrialist, and sometimes crony-capitalist. I should have realized that this was the norm for right-leaning parties around the world, and that the American right's Reaganite embrace of free markets and free trade was the anomaly. That, in turn, should have given me a warning of what would happen if libertarianism fell in America.

I did not understand the relevant pieces of history, nor did I think carefully enough about what I had observed overseas. And so when I was a graduate student writing about the ills of libertarianism, I imagined that the realistic alternatives to the American system of 2007 were either the gentle progressivism of Bill Clinton and Barack Obama, or the vigorous nation-building of FDR and Eisenhower, rather than the madness of a charismatic populist with zero understanding of economics….

I'd be lying if I said that Trump's madness is the only thing that made me feel more sympathy for libertarianism. Over the past decade, I've seen the excesses of progressive economic ideology more clearly than I ever did as a graduate student.

Contrariwise, I've grown more critical of libertarianism over the last few years, because I've come to recognize that too many libertarians confuse proper skepticism of government and preference for voluntary markets with crude anti-governmentism, which is not the proper lesson from the classical liberal tradition. The crude anti-governmentists tend to eventually find themselves drifting to the Glenn Greenwald-esque left or the racist  and populist alt-right. Both those ideologies provide a much more satisfyingly universal hostility to the US government than the much more nuanced philosophy championed by the likes of Epstein, Friedman, and Hayek. Both seem to appeal specifically to followers of the late Murray Rothbard, whose hostility to anything and everything related to the US government I increasingly believe has really harmed libertarianism and opened it to all sorts of crackpots.

In any event, I don't agree with everything Smith says, but I found his essay thought-provoking. As they say, read the whole thing.

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[Josh Blackman] How Quickly Should A Justice Call For A Response On The Emergency Docket?

[Is Justice Jackson trying to set a new standard?]

Yesterday, I wrote about . In this case, the Maine Speaker of the House stripped a member of her right to vote--and ability to represent her constituents. Libby filed an emergency application on Monday, April 28 with Justice Jackson. The application explained that the Maine legislative session begins on May 6. Unless a stay is granted, votes will be held, but Libby will be unable to vote. That danger is completely irreparable. Abrego Garcia may one day be brought back to the United States. Probationary employees can be rehired. Cancelled funds can later be disbursed. But the Maine legislature will not hold a "do-over" vote. Even if the Court is not inclined to grant relief, one would think that the Circuit Justice should at least have the case fully briefed to permit a prompt resolution of the case. But Justice Jackson had other plans.

Today, May 1, three days after the application was filed, Justice Jackson . And she gave the respondents a full week to reply. She set the deadline for May 8--two days after the Maine legislative session begins. Even assuming the full Court promptly rules on the matter, there will be injuries that cannot be remedied.

Justice Jackson has been very critical of the shadow docket rulings. She referred to standing as a "shiny" object, and referred to the United States as just another party. On the full court, she has but one vote. But as Circuit Justice, she has the only vote. I wonder if Justice Jackson is putting her views on the shadow docket into play. In other words, she can call for a response when she finds it appropriate to do so, and will not follow the deadline requested by the Applicants. In doing so, she can frustrate the ability of the full Court to grant emergency relief.

I checked the high-profile shadow docket entries over the past few months to see how much time elapsed before there was a call for response, and how long the deadline was. I've also noted in parentheses the total time that elapsed from the application until the reply was filed. Here is the set (and please email me if I made any errors):

- Application filed on 4/28, J. Jackson calls for response on 5/1, due 5/8 (11 days) Department of State v. AIDS Vaccine Advocacy Coalition - Application filed 2/26, CJ Roberts calls for response on 2/26, due 2/28 (3 days) Bessent v. Dellinger - Application filed 2/16, CJ Roberts calls for response on 2/18, due 2/19 (3 days) Department of Education v. California - Application filed 3/26, J. Jackson calls for response on 3/26, due 3/28 (3 days) Trump v. J.G.G. - Application filed on 3/28, CJ Roberts calls for response on 3/28, due 4/1 (5 days) OPM v. AFGE - Application filed on 3/24/25, J. Kagan calls for response on 3/27/25, due 4/3/25 (11 days) Noem v. Garcia - Application filed on 4/7/25, CJ Roberts calls for response on 4/7/25, due 4/8/25 (2 days) Trump v. CASA - Application filed on 3/13/25, CJ Roberts calls for response on 3/14/25, due 4/4/25 (Oral Argument set for 5/15/25) Trump v. Wilcox - Application filed on 4/9/25, CJ Roberts calls for response on 4/9/25, due on 4/15/25 (7 days) A.A.R.P. v. Trump - Application filed on 4/18/25, stay granted on 4/18/25, response filed on 4/19/25 (1 day) U.S. v. Shilling - Application filed on 4/25/25, J. Kagan called for response on 4/24/25, due on 5/1/25 (7 days)

Chief Justice Roberts consistently calls for a response when the application is filed, or the next day. With the exception of the birthright citizenship case, which was set for oral argument, Roberts has set the deadline as long as six days, usually three days, and sometimes even shorter. (In A.A.R.P., the deadline came after the Court's stay.)  In two cases, Justice Kagan granted a full week. Justice Jackson has now granted a week in one case, and two days in another.

I'm not sure if we have enough data points to figure out a pattern here. But at a minimum, Justice Jackson has signaled that she will move at her own pace, and not the schedule requested by the applicant.

What, then, is a litigant to do if a Circuit Justice does not timely call for a response? Could they seek relief from another Circuit Justice? Or ask the application to be referred to the full Court? Or maybe they can direct the application to the full court in the first instance, and bypass the Circuit Justice? I have a sinking feeling that in A.A.R.P., even though the case was nominally referred to Circuit Justice Alito, the case was decided in the first instance by the full Court. There simply was not enough time for all of the steps to have taken place on Good Friday.

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[Ilya Somin] Washington Outsider Report Podcast Interview on the Trump Tariff Litigation

[I was interviewed by attorney/podcaster Irina Tsukerman.]

(NA)

Lawyer/podcaster Irina Tsukerman interviewed about the Trump tariff litigation for her Washington Outsider report podcast. The interview was conducted before the recent filing of new cases challenging Trump's IEEPA tariffs by twelve states led by Oregon and the Pacific Legal Foundation. Thus, we couldn't cover those two suits. But, otherwise, this is the most extensive interview I have done on the tariff litigation yet. Among other things, we discussed the case filed earlier by the Liberty Justice Center and myself. I cover the legal issues at stake in more detail in my Lawfare article, "The Constitutional Case Against Trump's Trade War."

Here is the video of the podcast:

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[Ilya Somin] Cato/FIRE Amicus Brief Against Speech-Based Deportations of Foreign Students

[The brief gives a good explanation of why such actions violate the First Amendment.]

 

Tufts Ph. D. student Rumeysa Ozturk. (Reuters)

 

My colleagues at the Cato Institute have, together with FIRE and other groups, filed an amicus brief in the case of Ozturk v. Trump, explaining why speech-based deportations of foreign students violate the First Amendment. As the brief explains, Ozturk is a Tufts graduate student detained for an anti-Israel op ed in a campus paper that, however flawed, does not endorse Hamas terrorism, or indeed even mention it.

Thomas Berry of Cato and FIRE attorney Conor Fitzpatrick have a helpful summary of the brief:

Rumeysa Ozturk is a graduate student at Tufts University. Ozturk is a Turkish citizen who was living in the United States on a student visa. On March 25, Ozturk was approached and surrounded by six plainclothes officers, stripped of her cellphone and backpack, handcuffed, and taken into custody in an unmarked vehicle. Unbeknownst to her, the United States had revoked her visa just days earlier. Ozturk was transferred to Vermont and then Louisiana, where she remains in custody.

A provision of federal immigration law grants the secretary of state the authority to deport an alien if the secretary "has reasonable ground to believe" that the alien's "presence or activities in the United States … would have potentially serious adverse foreign policy consequences for the United States." The government cited this provision in revoking Ozturk's visa, without specifying why it believed her presence would have adverse foreign policy consequences.

Evidence indicates that Ozturk's visa was revoked solely on the basis of an op-ed she co-authored for a student newspaper. That op-ed criticized the Tufts University administration for dismissing certain student government resolutions. The op-ed argued that these resolutions would have held "Israel accountable for clear violations of international law" in Palestine.

Ozturk has petitioned a federal court to order her released, and Cato has joined a broad coalition of groups, led by FIRE, to file an amicus brief supporting that petition. In our brief, we explain that noncitizens residing in the United States have the same First Amendment rights as citizens. The Supreme Court said as much in Bridges v. Wixon (1945), where the Court remarked that "freedom of speech and of press is accorded aliens residing in this country." And the Supreme Court also affirmed this principle in Bridges v. California (1941), a case in which the Court invalidated the criminal convictions of several people, including a non-citizen, because those convictions violated the First Amendment.

As our brief further explains, Ozturk's op-ed was protected speech. The government has not alleged that Ozturk was providing material support to terrorists, nor has it alleged that her op-ed fell into any other exception to the First Amendment (such as insurrectionary speech). If a citizen were punished for the same op-ed, such punishment would be a blatant First Amendment violation. Ms. Ozturk's punishment is no different.

Finally, our brief emphasizes that Ozturk's detention is irreconcilable with the Supreme Court's admonition that colleges and their "surrounding environs" are "peculiarly the 'marketplace of ideas.'" There are more than a million international students studying at America's universities. None of them will feel safe criticizing the American government —in class, scholarship, or on their own time—if a current or future secretary of state may, at his unreviewable discretion, arrest and detain them based on their spoken or written advocacy.

As Justice Frank Murphy wrote in a concurrence in the Wixon case, the freedom of foreign nationals lawfully residing in the United States is "not dependent upon their conformity to the popular notions of the moment," because the First Amendment "belongs to them as well as to all citizens." Ozturk's detention and the revocation of her visa violate the First Amendment, and the courts should order her released.

I agree with all the above, and am glad to see Cato joined this brief! If I have a reservation, it's that the brief seemingly concedes the constitutionality of at least some speech-based denials of the right to enter the US, but argues that full First Amendment protection applies to foreign students and others once in the US. In my view, speech-based entry restrictions are also unconstitutional. But the courts need not resolve that issue in this case.

In previous posts, I have explained why speech-based deportations are unconstitutional - there is no immigration exception to the First Amendment or most other constitutional rights - and urged universities to file lawsuits challenging Trump's speech-based deportation policy. I am glad to see that many schools (including my undergraduate alma mater Amherst College) filed an amicus brief supporting a lawsuit brought against the policy by the American Association of University Professors. But schools should do more.

Courts are beginning to rule against speech-based deportations, including in yesterday's federal district court decision freeing Palestinian immigrant student Mohsen Mahdawi from detention.  U.S. District Judge Geoffrey Crawford wrote that "Noncitizen residents like Mr. Mahdawi enjoy First Amendment rights in this country to the same extent as United States Citizens. If the Government detained Mr. Mahdawi as punishment for his speech, that purpose is not legitimate, regardless of any alleged First Amendment violation. Immigration detention cannot be motivated by a punitive purpose. Nor can it be motivated by the desire to deter others from speaking." See also this recent preliminary ruling in the AAUP case.

People sometimes ask me whether I would still oppose speech-based deportations of people whose views I find highly objectionable. The answer is that I'm already doing that. As I have previously noted, I have little sympathy for recent anti-Israel campus protests, and for the views of many of the students targeted for deportation by Trump. But, as always, free speech rights are not limited to people whose views are inoffensive. Freedom of speech must include "freedom for the thought that we hate." That holds true for foreign students and other non-citizens no less than for US citizens.

The post Cato/FIRE Amicus Brief Against Speech-Based Deportations of Foreign Students appeared first on Reason.com.