Eugene Volokh's Blog, page 121

[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Josh Blackman] "A Recipe for District Judge Supremacy"

[Judge Ho addresses Trump v. J.G.G.]

Today, a divided panel of the Fifth Circuit granted a writ of mandamus in a death penalty case. In this case, the district court improperly exercised jurisdiction over a clearly moot case, and then refused to dismiss the case. Mandamus seems plainly warranted.

Judge Ho wrote a concurrence that speaks directly to controversies of the day:

Our dissenting colleague asks: What's the rush? Even assuming that the district court erred, the dissent contends that there's no need for immediate relief—just let things play out through "[t]he typical appellate process." Post, at _ (Haynes, J., dissenting).

But that's cold comfort to the millions of voters who took the time to participate in the democratic process, only to see their legitimate efforts unlawfully undone by a single district judge.

If a district judge abuses the legal process in a hurried effort to thwart the lawful political choices of the electorate, appellate courts are well within their right to intervene and grant emergency relief.

The Supreme Court did just that last week in Trump v. J.G.G., _ U.S. _ (2025). There (as here), a district court presumed to seize control over a case of profound public interest that it had no lawful business deciding, because it belonged in another court. So the Supreme Court intervened and took the case away from the district court. See id. at _ ("Challenges to removal under the [Alien Enemies Act] . . . must be brought in habeas. . . . [J]urisdiction [in habeas cases] lies in only one district: the district of confinement. The detainees are confined in Texas, so venue is improper in the District of Columbia.") (cleaned up).

Like our dissenting colleague here, the dissenting Justices in J.G.G. urged delay. The dissent agreed with the majority that the only thing at stake was deciding which district court had the authority to decide the case. See id. at _ (Sotomayor, J., dissenting) (noting that the dispute merely concerned "which procedural vehicle is best situated for the Plaintiffs' injunctive and declaratory claims"). But the dissent maintained that there was no need for appellate courts to "rush" in and "decide the issue now"—just wait for an appeal in the "ordinary course." Id. at _ (Sotomayor, J., dissenting).

The Supreme Court rejected the dissent's plea for delay. The majority understood that waiting for an appeal in the "ordinary course" would inadequately protect the government from the indignity of litigating in the wrong proceeding—not to mention unduly delay the expressed will of the people. As the Court put it, "[w]e see no benefit in such wasteful delay." Id. at _.

I most certainly concur. When a district judge acts hastily, yet appellate courts are told not to "rush in," that's not a plea for judicial sobriety—it's a recipe for district judge supremacy.

I made similar points in a post last month, titled Article III Inverted: The Supreme Court Surrenders to Inferior Court Supremacy.

Yet, in recent weeks, there has been a change: District Court judges are in charge. In case after case, federal district court judges have issued a series of non-appealable orders, whether styled as "administrative stays" or temporary restraining orders. Courts of appeals have then declined to disturb those rulings, finding that TROs can only be challenged through mandamus, and administrative stays are unappealable altogether. At that point, the federal government is forced to run to the Supreme Court seeking emergency relief. And what has the Supreme Court done? They have kicked the issue back down to the lower court, hoping that someone else makes the tough decisions. Who is running the show here?

Jack Goldsmith calls these tactics "temporizing." That is, the Supreme Court is simply trying to bide its time to find other ways of resolving the issues. That may be right in the short run, but I think we are witnessing an inversion of Article III. The Supreme Court is no longer Supreme. Rather, the federal government is now subject to inferior court supremacy. Lower court judges are now confident they can issue any order they wish against the executive branch, and the Supreme Court will not stop them. This is the judiciary run amok.

It is often joked that being a District Court Judge is the closest thing to being a god. I think federal judges in the beltway should read Judge Ho's concurrence a few times.

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[Josh Blackman] About The "Incipient Crisis" In Little Rock

[The aftermath of President Eisenhower sending in federal troops is not a model of success.]

Today the Fourth Circuit denied the government's motion for an emergency stay in Garcia v. Noem. Here, I will not focus on the merits of the appeal. Rather, I want to highlight how Judge Wilkinson's opinion invokes a defining moment from the Civil Rights Era:

It is in this atmosphere that we are reminded of President Eisenhower's sage example. Putting his "personal opinions" aside, President Eisenhower honored his "inescapable" duty to enforce the Supreme Court's decision in Brown v. Board of Education II to desegregate schools "with all deliberate speed." Address by the President of the United States, Delivered from his Office at the White House 1-2 (Sept. 24, 1957); 349 U.S. 294, 301 (1955). This great man expressed his unflagging belief that "[t]he very basis of our individual rights and freedoms is the certainty that the President and the Executive Branch of Government will support and [e]nsure the carrying out of the decisions of the Federal Courts." Id. at 3. Indeed, in our late Executive's own words, "[u]nless the President did so, anarchy would result." Id. . . .

It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.

Judge Wilkinson treats the story of the Little Rock 9 in a very John-Roberts fashion: it tells a beautiful story about judicial supremacy where everyone did what what the federal court said, and everything worked out for the best. The history tells a different story.

The general story of the Little Rock Nine is known, but the legal posture is not. Randy and I discuss this history in the essay on Cooper v. Aaron in 100 Cases. Please watch the video to catch up. Eisenhower's speech is in there.

For those who do not like to watch videos, you can read the summary, though I think the video footage is compelling:

In 1955, the Little Rock, Arkansas, school board approved a plan for gradual integration. However, the so- called "massive resistance" spread to Arkansas. Citizens approved an amendment to the state constitution that opposed Brown and desegregation. Based on that amendment, a state court judge issued an injunction against members of the Little Rock school board. They were ordered to stop the implementation of the federal court's integration plan at Central High School.

In response, a federal district court issued an order to block the state court injunction. The situation escalated quickly. Governor Orval Faubus ordered the Arkansas National Guard to prevent black students from entering Central High School. The National Guard blocked nine African- American students — known as the Little Rock Nine — from entering Central High School. Neither Faubus nor the National Guard were bound by the previous court order, which only applied to members of the school board. The situation then escalated further. A federal court enjoined the National Guard from blocking access for the African- American students. In response, the Little Rock Police Department replaced the National Guard. The police had not been included in the prior court order that bound the National Guard.

Two days later, in one of the most dramatic moments of the Civil Rights movement, President Eisenhower dispatched the 101st Airborne Division to Arkansas. "Mob rule cannot be allowed to override the decisions of our courts," he said. This storied division of U.S. Army paratroopers had fought its way across Europe in World War II and held its ground at the Battle of the Bulge. Now its troops were deployed to Little Rock, Arkansas where they escorted the Little Rock Nine into Central High School. Throughout the remainder of the year, the students attended class under the supervision of federal paratroopers.

Even after the federal intervention, the opposition to the desegregation plan did not subside. As a result, the district court granted the school board a thirty-month extension to integrate Central High School. The judge found that a delay was warranted, because the integration plan had caused "chaos, bedlam, and turmoil" in Little Rock. The Eighth Circuit Court of Appeals reversed the district court's judgment because the school board did not advance a sufficient basis to suspend the integration plan.

Shortly before the start of the semester, the Supreme Court convened for an emergency hearing. The question presented in Cooper v. Aaron was fairly narrow: Was the thirty- month extension given to the school board consistent with Brown's requirement to integrate with "all deliberate speed"? During oral arguments, the lawyer for the school board told the Court, "It was certainly not anticipated at the time [the] plan was formulated that the Governor of the State of Arkansas would call out troops to keep integration in the schools from taking place." Therefore, he claimed, a delay was warranted. The school board simply needed more time to deal with the unexpected circumstances. The Court was not persuaded by his argument. Chief Justice Earl Warren asked the attorney, "Can we defer a program of this kind merely because there are those elements in the community that will commit violence to prevent it from going into effect?" Ultimately, the Supreme Court ruled that the delay was not permissible: "The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature." In an unprecedented showing of unanimity, each of the nine Justices signed the opinion.

This history teaches several lessons.

First, President Eisenhower dispatched the troops in 1957, about a year before the Court's decision in Cooper v. Aaron (1958). (My article on the myths of Cooper should be useful reading now.) The 101st Airborne did little to stop the massive resistance to integration. Indeed, the troops had to escort the black students to school every day to protect them from mobs. Eisenhower's action did little to stop the "anarchy."

Second, the federal district court judge in Little Rock thought it best not to integrate the high school due to the chaos, and instead favored a thirty-month pause. Appellate judges who were not close to the judge sought to dictate the path forward. Which level of the judiciary was acting with the right amount of judicial humility?

Third, even after Cooper v. Aaron, Central High School did not integrate. Rather, the school simply shut down. Indeed, throughout the South, schools, swimming pools, and other institutions were closed or transferred to private ownership to avoid federal court injunctions.

What lesson do we draw from the "incipient crisis" in Little Rock? In my view, courts lack the power to solve all problems. Even where there is jurisdiction and law on their side, judges run out of authority. Despite what Brown said, the Warren Court couldn't integrate schools. They barely tried after Cooper. That task fell to district court judges and federal civil rights enforcement. Decades later, consent decrees were still in force.

We need to take a sober assessment of the power of the courts. As I've said many times, a constitutional crisis is a coin with two sides: what are the courts doing, and what is the executive doing? Not all of the blame can be placed on one coordinate branch of government.

The post About The "Incipient Crisis" In Little Rock appeared first on Reason.com.

[Eugene Volokh] Fourth Circuit Declines Government's Request to Stay District Court Order in Abrego Garcia Case

From today's Fourth Circuit opinion in Abrego Garcia v. Noem, written by Judge J. Harvie Wilkinson and joined by Judges Robert King and Stephanie Thacker:

Upon review of the government's motion, the court denies the motion for an emergency stay pending appeal and for a writ of mandamus. The relief the government is requesting is both extraordinary and premature. While we fully respect the Executive's robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court's recent decision.

It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.

This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.

The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. See 8 C.F.R. § 208.24(f) (requiring that the government prove "by a preponderance of evidence" that the alien is no longer entitled to a withholding of removal). Moreover, the government has conceded that Abrego Garcia was wrongly or "mistakenly" deported. Why then should it not make what was wrong, right?

The Supreme Court's decision remains, as always, our guidepost. That decision rightly requires the lower federal courts to give "due regard for the deference owed to the Executive Branch in the conduct of foreign affairs." Noem v. Abrego Garcia (U.S. Apr. 10, 2025); see also United States v. Curtiss-Wright Exp. Corp. (1936). That would allow sensitive diplomatic negotiations to be removed from public view. It would recognize as well that the "facilitation" of Abrego Garcia's return leaves the Executive Branch with options in the execution to which the courts in accordance with the Supreme Court's decision should extend a genuine deference. That decision struck a balance that does not permit lower courts to leave Article II by the wayside.

The Supreme Court's decision does not, however, allow the government to do essentially nothing. It requires the government "to 'facilitate' Abrego Garcia's release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador." "Facilitate" is an active verb. It requires that steps be taken as the Supreme Court has made perfectly clear. See Abrego Garcia ("[T]he Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps."). The plain and active meaning of the word cannot be diluted by its constriction, as the government would have it, to a narrow term of art. We are not bound in this context by a definition crafted by an administrative agency and contained in a mere policy directive. Cf. Loper Bright Enters. v. Raimondo (2024). Thus, the government's argument that all it must do is "remove any domestic barriers to [Abrego Garcia's] return" is not well taken in light of the Supreme Court's command that the government facilitate Abrego Garcia's release from custody in El Salvador.

"Facilitation" does not permit the admittedly erroneous deportation of an individual to the one country's prisons that the withholding order forbids and, further, to do so in disregard of a court order that the government not so subtly spurns. "Facilitation" does not sanction the abrogation of habeas corpus through the transfer of custody to foreign detention centers in the manner attempted here. Allowing all this would "facilitate" foreign detention more than it would domestic return. It would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.

The government is obviously frustrated and displeased with the rulings of the court. Let one thing be clear. Court rulings are not above criticism. Criticism keeps us on our toes and helps us do a better job. See Cooper v. Aaron (1958) (Frankfurter, J., concurring) ("Criticism need not be stilled. Active obstruction or defiance is barred."). Court rulings can overstep, and they can further intrude upon the prerogatives of other branches. Courts thus speak with the knowledge of their imperfections but also with a sense that they instill a fidelity to law that would be sorely missed in their absence.

"Energy in the [E]xecutive" is much to be respected. Federalist No. 70. It can rescue government from its lassitude and recalibrate imbalances too long left unexamined. The knowledge that executive energy is a perishable quality understandably breeds impatience with the courts. Courts, in turn, are frequently attuned to caution and are often uneasy with the Executive Branch's breakneck pace.

And the differences do not end there. The Executive is inherently focused upon ends; the Judiciary much more so upon means. Ends are bestowed on the Executive by electoral outcomes. Means are entrusted to all of government, but most especially to the Judiciary by the Constitution itself.

The Executive possesses enormous powers to prosecute and to deport, but with powers come restraints. If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? {See, e.g., Michelle Stoddart, 'Homegrowns are Next': Trump Doubles Down on Sending American 'Criminals' to Foreign Prisons, ABC News (Apr. 14, 2025); David Rutz, Trump Open to Sending Violent American Criminals to El Salvador Prisons, Fox News (Apr. 15, 2025).}

And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive's obligation to "take Care that the Laws be faithfully executed" would lose its meaning.

Today, both the United States and the El Salvadoran governments disclaim any authority and/or responsibility to return Abrego Garcia. See President Trump Participates in a Bilateral Meeting with the President of El Salvador, White House (Apr. 14, 2025). We are told that neither government has the power to act. The result will be to leave matters generally and Abrego Garcia specifically in an interminable limbo without recourse to law of any sort.

The basic differences between the branches mandate a serious effort at mutual respect. The respect that courts must accord the Executive must be reciprocated by the Executive's respect for the courts. Too often today this has not been the case, as calls for impeachment of judges for decisions the Executive disfavors and exhortations to disregard court orders sadly illustrate.

It is in this atmosphere that we are reminded of President Eisenhower's sage example. Putting his "personal opinions" aside, President Eisenhower honored his "inescapable" duty to enforce the Supreme Court's decision in Brown v. Board of Education II to desegregate schools "with all deliberate speed." Address by the President of the United States (Sept. 24, 1957). This great man expressed his unflagging belief that "[t]he very basis of our individual rights and freedoms is the certainty that the President and the Executive Branch of Government will support and [e]nsure the carrying out of the decisions of the Federal Courts." Indeed, in our late Executive's own words, "[u]nless the President did so, anarchy would result."

Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.

It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time. In sum, and for the reasons foregoing, we deny the motion for the stay pending appeal and the writ of mandamus in this case….

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[Josh Blackman] SCOTUS Sets Special May Sitting In Birthright Citizenship Case

[The last May case was argued by Brett Kavanaugh.]

Today the Supreme Court set oral argument for the birthright citizenship cases on May 15:

Consideration of the application (24A884) for partial stay presented to The Chief Justice and by him referred to the Court is deferred pending oral argument. Consideration of the application (24A885) for partial stay presented to Justice Kagan and by her referred to the Court is deferred pending oral argument. Consideration of the application (24A886) for partial stay presented to Justice Jackson and by her referred to the Court is deferred pending oral argument. The applications are consolidated, and a total of one hour is allotted for oral argument. The applications are set for oral argument at 10 a.m. on Thursday, May 15, 2025.

May and June oral arguments are quite rare. (I do not count regularly-scheduled cases from the April sitting that spill into May.) In 2017, I tracked three such cases in recent decades:

1. Raines v. Byrd (1996) involved the Line Item Veto Act. This bill had a direct appeal from D.D.C. D.D.C resolved the case on April 10, and the Court noted probably jurisdiction two weeks later on April 23. It was argued on May 27, and decided on June 26.

2. Felker v. Turpin (1996) involved the constitutionality of the newly-enacted Antiterrorism and Effective Death Penalty Act (AEDPA). The 11th Circuit denied a stay of execution for Felker on May 2. That day, Felker filed an application for a stay of execution with Circuit Justice Kennedy. On May 3, it was referred to the whole Court and granted. The briefs were to be filed two weeks later on May 17 , reply briefs on May 28. Oral arguments were set for June 3, 1996.

Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented, noting that this case shouldn't be so rushed:

In my opinion, it is both unnecessary and profoundly unwise for the Court to order expedited briefing of the important questions raised by the petition for certiorari and application for a writ of habeas corpus. Even if the majority were right that this petition squarely presents substantial constitutional questions about the power of Congress to limit this Court's jurisdiction, our consideration of them surely should be undertaken with the utmost deliberation, rather than unseemly haste. Accordingly, I respectfully dissent from the entry of the foregoing order.

The case was resolved on June 28–two days after Raines v. Byrd. (That was a busy June!).

3. Swidler & Berlin v. U.S. (1998) involved the Independent Counsel's request for handwritten notes from Vince Foster's attorney. The D.C. Circuit found that the privilege does not survive death. Certiorari was filed on December 31, 1997, and cert was granted on March 30, 1998. The case was set for expedited arguments on June 8 (by Brett Kavanaugh), and decided on June 25. The New York Times reported that "the High Court agreed to hear the case unusually quickly."

And who argued Swidler & Berlin? Brett Kavanaugh, who was working for the Independent Counsel.

Update: A colleague reminded me that the Court heard oral arguments in May 2020 during the "remote" Zoom hearings. The last such case, Chiafalo v. Washington, was argued on May 13.

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[Eugene Volokh] Pseudonymity Allowed (for Now) in Lawsuit Against Palestinian Student Groups

[But one of the pro-pseudonymity decisions on which the court relies (which also involved a lawsuit alleging anti-Semitic behavior) was actually reversed two weeks ago.]

From today's decision by Judge Jeannette Vargas (S.D.N.Y.) in Haggai v. Kiswani:

Plaintiffs … filed this suit against Nerdeen Kiswani, individually and as the representative of Within Our Lifetime-United For Palestine, Maryam Alwan, individually and as the representative of Columbia Students For Justice In Palestine, Cameron Jones, individually and as the representative of Columbia-Barnard Jewish Voice For Peace, and Mahmoud Khalil, individually and as the representative of Columbia University Apartheid Divest, Columbia Students For Justice In Palestine, and Columbia-Barnard Jewish Voice For Peace, ("Defendants") under the Antiterrorism Act ("ATA"), 18 U.S.C. § 2333(d), and the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350….

Plaintiffs in this action are alleged victims of Hamas, a terrorist organization with the goal of destroying the State of Israel. The catalyst of this action are the terrorist attacks of October 7, 2023, when Hamas led an incursion into Southern Israel and murdered more than 1,200 people. In addition to the lives lost, Hamas took more than 200 hostages back to Gaza. In this instant action, Plaintiffs allege that Defendants in this case "are Hamas' propaganda arm in New York City and on the Columbia University campus." Plaintiffs further allege that Defendants' acts done "in furtherance of their goals to assist Hamas have included terrorizing and assaulting Jewish students, unlawfully taking over and damaging public and university property on Columbia's campus, and physically assaulting Columbia University employees." …

Under Rule 10(a) of the Federal Rules of Civil Procedure, a "complaint must name all the parties." This requirement "serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." A district court has discretion to grant an exception to the "general requirement of disclosure of the names of parties" to allow a party to proceed under a pseudonym…. "[P]seudonyms are the exception and not the rule, and in order to receive the protections of anonymity, a party must make a case rebutting that presumption." …

The Movants, as described earlier, include a parent of a current hostage from October 7, reservists in the IDF, and an IDF veteran who is the family member of a soldier serving in the IDF. It is reasonable that the disclosure of the Movants' identities could potentially expose the Movants to severe harassment—or worse ….

Movants allege that revealing the identities of James Poe and Leo Poe would "place Leo Poe in the gravest physical danger." Leo Poe is one of the hostages who was abducted by Hamas on October 7, 2023, and has been held in Gaza ever since. James Poe and Leo Poe have filed this suit against Defendants, whom they allege are "Hamas' close allies in the United States."

While the Court makes no judgment on the merits of these allegations, the Court does recognize the highly sensitive nature of this proceeding. Hamas is responsible for the killing of more than 1,200 people on October 7, 2023, and the kidnapping of more than 200 others. It is plausible that Hamas could murder Leo Poe in response to this action which his father, James Poe, brings. Erring on the side of caution, this Court finds it appropriate to weigh this factor heavily in favor of anonymity as to James Poe and Leo Poe.

For similar reasons, this Court finds that these factors also weigh heavily in favor of John Doe, Richard Roe and Jane Moe proceeding under pseudonyms. "Doe, Roe, and Moe are Jewish students at Columbia University and current and former IDF soldiers who have fought or have relatives who are fighting Hamas [who] reasonably fear retaliation and reputational harms if they are required to reveal their identities." Doe, Roe, and Moe allege that they have each been "personally subjected to antisemitic harassment prompted by Defendants' conduct."

Examples of alleged antisemitic harassment experienced by Movants include a classmate approaching Roe, stating that they "declare[] their support for Hamas as a 'freedom fighter' group," and telling Roe that "his family and friends live on stolen land." Another example alleged is that "a student accosted Roe as he was standing at a pro-Israel table at the campus clubs fair, put pro-Hamas stickers on their materials, pushed the table, and ripped up the sign-up papers."

As in Doe v. Fashion Inst. of Tech. (S.D.N.Y. Feb. 4, 2025), where a Jewish student was permitted to proceed under a pseudonym to prevent her from being subjected to further violent threats related to the Israel-Palestine conflict, the disclosure of Doe, Roe, and Moe's identities could subject them to further threats and harassment….

Once Defendants appear in this litigation, however, they can file a motion to revisit this issue….

Note, though, that the Doe v. Fashion Inst. of Tech. decision that the court cited has been reversed by the same judge who issued it; an excerpt from that Apr. 3 decision:

Plaintiff argues that two potential harms would arise from disclosing her identity. First, she argues that disclosure would result in retaliatory physical harm, given that she has already been subject to violent threats online. And second, Plaintiff argues that disclosure would irreparably damage her reputation. Motion at 5-8 (contending that there is a "real possibility that Plaintiff could be permanently stigmatized by these allegations" and that the allegations "would threaten her ability to secure future employment, pursue academic opportunities, or even engage in personal relationships").

In her Amended Complaint, Plaintiff alleges that she was subject to violent online threats when her picture was posted on social media after she refused to accept a flier that invited students to sign a petition "claim[ing] that the Jews of Israel are colonizers that engage in ethnic cleansing and commit genocide in Gaza." This alleged history of prior action directed at Plaintiff raises some risk of harm to her from third parties. The possibility that Plaintiff would be stigmatized by her name being disclosed, however, is "insufficient to proceed anonymously." Moreover, "Plaintiff's interest in anonymity due to the risk of harm is not one-sided; rather, it must be balanced against the corresponding interest that Defendant[ ] face[s] having been publicly named in Plaintiff's suit." Here, if Plaintiff were to proceed under a pseudonym, FIT "would be required to defend [itself] publicly while [P]laintiff could make her accusations from behind a cloak of anonymity."

[The risk of retaliation] thus weigh[s] only slightly in favor of anonymity….

[Moreover, among other things, g]iven that there is a demonstrated public interest in cases surrounding alleged disparate treatment of Jewish students at colleges and that the facts at the core of this case involve "particular action and incidents" rather than "abstract challenges to public policies," [the public's interest in the litigation] weigh[s] against allowing Plaintiff to proceed anonymously….

While [some] factors tilt in favor of Plaintiff … [other] considerations … weigh against Plaintiff. Reviewing [all the various] factors in their totality, the Court finds that Plaintiff has not met her burden of rebutting the strong presumption that she must proceed under her own name.

For other cases dealing with requests for pseudonymity in claims alleging anti-Semitic behavior, see the posts Pro-Israel Jewish Students Suing Haverford College for Hostile Environment Harassment Can Proceed Pseudonymously and No Pseudonymity for Israeli Suing Intel Over Layoff Allegedly Prompted by Complaints Over Boss's Allegedly Pro-Hamas Statements. For more on the inconsistency in the wide range of pseudonymity cases, see The Law of Pseudonymous Litigation.

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[David Post] Another Court Enjoins Implementation of Trump's Funding Freeze

[Has any other president in US history taken so many actions "substantially likely" to have been illegal in his first 100 days? Or, for that matter, in his entire term?]

On Tuesday, the district court in Rhode Island, following the lead of numerous other recent court decisions[*], enjoined further implementation of the "funding freeze" announced in Executive Order 14,154 ("Unleashing American Energy"), which directed all federal agencies to "immediately pause the disbursement of funds appropriated through the Inflation Reduction Act of 2022 (IRA) or the Infrastructure Investment and Jobs Act (IIJA)."

The opinion by district judge McElroy - a Trump appointee, as it happens - is well-written and well-reasoned - worth reading, I think, within the whirlwind of court decisions flying this way and that out there. From the introductory summary:

The Nonprofits[**] argue that the Government—in summarily freezing billions of dollars in IIJA and IRA funding—ran afoul of three Administrative Procedure Act ("APA") provisions: its requirement that agency actions (1) are not "arbitrary and capricious," (2) are not "in excess" of the authority that Congress granted the agencies, and (3) are not otherwise contrary to law. The Nonprofits now move for a preliminary injunction—a temporary court order requiring the agencies to turn the funding spigots back on, at least while their case is pending.

The Nonprofits' Motion is GRANTED…. [T]he Court holds that the Nonprofits have demonstrated a strong likelihood of success on two of their three APA claims. First, they have adequately shown at least three ways that the sudden, indefinite freeze of all already-awarded IIJA and IRA money was arbitrary and capricious: it was neither reasonable nor reasonably explained, and it also failed to account for any reliance interests. Second, the broad powers that OMB, the NEC Director, and the five Agencies assert are nowhere to be found in federal law.

The Agencies likely possess narrower powers related to individualized funding pauses and terminations, but in cases of vast economic and political significance—like this one—the Supreme Court has urged lower courts to be skeptical of agencies' sweeping claims of power. That is to say: those narrower powers cannot justify the broad exercise of authority that OMB, the NEC Director, and the Agencies asserted here. . . .

[That is a nice rhetorical touch, no?  For many years, conservative jurists, including several now sitting on the Supreme Court, have been urging courts to be "skeptical of [executive] agencies' sweeping claims of power." Judge McIlroy appears to suggest that skepticism is just as appropriate now, when the agencies are in Republican hands, as it was when they were controlled by Democrats. Justice Gorsuch, wouldn't you agree?]

Having found that the plaintiffs had "adequately demonstrated irreparable harm" and that "the balance of the equities and the public interest weigh heavily in their favor," the court added:

Because of these claims' unique nature, the broad powers that the Government asserts, and the harms inflicted on the Nonprofits and similarly situated nonparties, the Court holds that a nationwide injunction is appropriate. After finding that the Government's sweeping actions were likely unlawful, the Court cannot see why similarly situated nonparties should remain subject to them. . . . [W]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated— not that their application to the individual petitioners is proscribed.

Each of these points is discussed in detail in the 63-page opinion.[***]

And Judge McElroy adds this interesting explanatory bit:

The Court wants to be crystal clear: elections have consequences and the President is entitled to enact his agenda. The judiciary does not and cannot decide whether his policies are sound. In other words, "the wisdom" of his decisions "is none of our concern." But where the federal courts are constitutionally required to weigh in—meaning we, by law, have no choice but to do so—are cases 'about the procedure' (or lack thereof) that the Government follows in trying to enact those policies. Agencies do not have unlimited authority to further a President's agenda, nor do they have unfettered power to hamstring in perpetuity two statutes passed by Congress during the previous administration.

 

And the answer to my obviously rhetorical question posed in the subtitle above is, of course, "no."  Spend a little time at services like the Civil Rights Litigation Clearinghouse or JustSecurity's Litigation Tracker to get a sense of the scope of the problem.  It is a breath-taking record of unlawful conduct by our chief executive. I haven't counted them all up, but in the less than 3 months since Inauguration Day courts all over the country have entered literally dozens and dozens of restraining orders and injunctions against the executive branch. Obviously, those decisions are not final, and in some or perhaps many cases a final adjudication will absolve the government of having acted unlawfully. But still. It is increasingly difficult to argue that Trump is "faithfully executing" the laws of the United States.  Why it seems to matter not at all to his supporters is a mystery I doubt I'll ever quite fathom.

[*]See, e.g., State of New York v. Trump (D.R.I. 2025); State of Maine v. Trump (D. ME); State of Colorado v HHS (D.R.I.); Widakuswara v. Lake (D.D.C.); RFE/RL v. Lake (DDC); CPB v. FEMA (DDC); State of California v. Dep't of Education (D. MA); Commonwealth of Mass. v. NIH (D MA); Association of American Universities v. HHS (D MA); Association of American Medical Colleges v. HHS (D MA); National Treasury Employees Union v. Vought (DDC) With many thanks to the Civil Rights Litigation Clearinghouse for keeping track of all of these lawsuits.

[**] The plaintiffs in the case are a number of non-profit organizations (e.g., the Woonasquatucket River Watershed Council, the Childhood Lead Action Project) who have received grants under either the IRA or the IIJA (or both), along with an umbrella organization, the National Council of Nonprofits.  Defendants are the USDA, the US Department of Energy, the Dept. of the Interior, the EPA, HUD, the National Economic Council, and the Office of Management and Budget.

[***] The opinion also contains useful discussions of the court's jurisdiction to hear the claim, the plaintiffs' standing to bring the claim, and the "finality" of the agency action involved.

Of particular interest is the court's resolution of the claim that the agencies lack the statutory authority to broadly halt the disbursement of funding appropriated by the IRA and IIJA.

"The government suggests that there is no need for the Court to search for a statute specifically authorizing Defendants to pause funding and redirect it to a different recipient, because the authority to do so is implicit in the grant programs and appropriations laws themselves. The Government's last point is actually the starting point for the analysis. It is well-established that an agency "literally has no power to act—including under its regulations—unless and until Congress authorizes it to do so by statute." And "where the statute at issue is one that confers authority upon an administrative agency, that inquiry must be shaped, at least in some measure, by the nature of the question presented—whether Congress in fact meant to confer the power the agency has asserted." It is probably true that, as the Government suggests, that the greater power to administer the funds includes some lesser power to pause individual grants. But the power that the Agency Defendants have actually asserted is a much broader one. It is not to pause individual, already-awarded funds for failure to comply with a grant agreement or because of a change in policy, but rather to freeze any access to all already-awarded funds under two statutes indefinitely, based solely on the fact that the funds came from those two statutes. In doing so, the Defendant Agencies have summarily tied up a significant subset of the billions of dollars already awarded under those acts. The Court cannot see how they can claim that power."

 

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[Ilya Somin] Bloomberg and Forbes Podcast Interviews About our Lawsuit Challenging Trump's "Liberation Day" Tariffs

[The Liberty Justice Center and I filed the case on Monday.]

Bloomberg Law and Forbes recently posted podcasts in which I was interviewed about the lawsuit the Liberty Justice Center and I filed on Monday on behalf of five US businesses harmed by Trump's "Liberation Day" tariffs. I think the Bloomberg interview may be my best one about this topic. It is available here (the interview with me runs from about 1:00 to 13:15).

And here is the Forbes podcast:

 I should note I was not the one who came up with the title of the Forbes podcast. I'm not "the lawyer behind the lawsuit," but just one part of a team. And we covered much more in the inteview than just timelines.

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[Josh Blackman] Today in Supreme Court History: April 17, 1978

4/17/1978: Penn Central Transportation Corporation v. New York argued.

The post Today in Supreme Court History: April 17, 1978 appeared first on Reason.com.

[Ilya Somin] Cato Institute Podcast on Our Lawsuit Challenging Trump's "Liberation Day" Tariffs

[I was interviewed by Caleb Brown of Cato.]

The Cato Institute just posted this podcast in which I was interviewed about the lawsuit the Liberty Justice Center and I filed on Monday on behalf of five US businesses harmed by Trump's "Liberation Day" tariffs.

The podcast was recorded before we filed the suit. Nonetheless, I think I was able to give a helpful overview of the issues.  Here it is:

 

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