Eugene Volokh's Blog, page 124

[Jonathan H. Adler] Justice Kavanaugh Stays District Court Order in Ohio Ballot Initiative Dispute

[Not all of the action on the shadow docket involves President Trump.]

On Wednesday evening, in Yost v. Brown, Justice Brett Kavanaugh entered a stay of a district court order in  requiring Ohio Attorney General Dave Yost to publish two contested ballot initiative summaries. Justice Kavanaugh also called for a response by next Wednesday.

The underlying dispute concerns the wording of the ballot initiative summary prepared by the initiative proponents. Attorney General Yost rejected the summary prepared by the proponents on the grounds that it is not fair and truthful and the proponents sued. The district court entered an injunction requiring the AG to publish the summary, and this order was affirmed by a divided panel of the U.S. Court of Appeals for the Sixth Circuit.

Judge Karen Moore wrote the majority, joined by Judge Andre Mathis. Judge John Bush dissented.

Judge Moore's opinion begins:

Ohio Attorney General Dave Yost has eight times rejected a proposed summary of a proposed constitutional amendment, preventing its proponents from circulating a petition and collecting signatures needed to place it on the ballot. Each time, Yost concluded that the petition summary was not a fair and truthful summary of the proposed constitutional amendment. The district court held that this likely violated the ballot initiative proponents' First Amendment rights and entered a preliminary injunction ordering Yost to certify two ballot initiative summaries proposed by Plaintiffs here. However, upon Yost's request, the district court stayed the preliminary injunction pending appeal. Because we agree with the district court that Plaintiffs' First Amendment rights were likely violated here, and because the other stay factors do not weigh in Yost's favor, we GRANT Plaintiffs' motion to lift the stay and LIFT the stay entered by the district court.

Judge Bush's dissent begins:

I would deny the motion to vacate the stay of the district court's injunction. All the relevant legal factors support continuance of the stay. The driving consideration here is that the Ohio Attorney General is likely to prevail in this action because the First Amendment does not bar the State from regulating the content of a certified initiative summary. The summary is a legislative action that, at most, constitutes government, not private, speech. But even if it were private speech, the Attorney General's regulation of its content would still be permissible because the summary would constitute speech that occurs within a discretionary government benefit program, which the Supreme Court has held may be subject to content-based regulation. I explain these points more fully below.

Given the underlying First Amendment issue, it is conceivable that the Court accepts this case for argument. We shall see.

Yost v. Brown is not the only non-Trump action on the shadow docket. Earlier today the Court denied the application for a stay of execution in Mahdi v. Stirling.

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Eugene Volokh] "The Supreme Court Is Not Cowering Before Trump on the Shadow Docket"

["Nor is it taking a new approach."]

A very interesting analysis at Executive Functions by Prof. Jack Goldsmith (Harvard), a leading scholar of executive power and of the separation of powers; an excerpt, though you should read the whole thing:

I have heard from a few people in recent days who think the Supreme Court is cowering before the Trump administration or, at least, is not adequately standing up to it.

Adam Liptak gave voice to a version of this view a few days ago. In contrast to the Court's "signature . . . sweeping claims about the meaning of the Constitution," he argued, the Court in the Trump cases has been issuing "a series of narrow and legalistic rulings that seem calculated to avoid the larger issues presented by a president rapidly working to expand power and reshape government." Liptak said this "new approach" was designed in part "to avoid a showdown with a president who has relentlessly challenged the legitimacy of the courts."

Liptak's stance is a little hard to understand. The cited cases with "sweeping claims"—on abortion, affirmative action, the Second Amendment, and the like—were decided on the Court's merits docket. But the Trump cases have occurred on the emergency orders or "shadow" docket where, as Liptak acknowledges, the Court must move quickly, with impoverished briefing and process, to "decide whether to pause lower court rulings, themselves preliminary and tentative." In this context, he correctly says, it is "understandable … that the justices may be reluctant to make grand pronouncements."

I am not sure how to square these views, but I agree with this last point, and will flesh it out below. The Court as of this posting has issued six emergency orders on Trump 2.0 actions, including last night's order in Noem v. Garcia. It is too early to know whether the Court is acting wisely on its emergency docket. Yet thus far it has neither bowed to the president nor proceeded in an untoward way.

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[Jonathan H. Adler] The Fantastical Showerhead Executive Order

[A simple and quite symbolic presidential decree that symbolizes quite a bit, but accomplishes very little.]

President Trump issued a flurry of additional executive orders and presidential memoranda this week, many of which concerned regulatory policy. One EO in particular, "Maintaining Acceptable Water Pressure in Showerheads," symbolizes much of what we are seeing from the early stages of Trump's second term. The EO sends a message, but might not quite do what the President wants or what you might think (and has been characterized inaccurately by early media reports). It also highlights how the White House continues to make policy pronouncements that agency officials (attorneys in particular) will have to figure out how to implement.

Let's start with the title. The EO promises to increase or maintain shower water pressure, but it will not do that. The EO itself does not rescind the federal requirement limiting showerhead flow to 2.5 gallons per minute. This is because this limit is written into the U.S. Code (as the White House Fact Sheet acknowledges). If you are someone who wants a torrent of water beating down on you for your morning shower, this EO does not offer any relief from federal law.

What, then, does the showerhead EO do? It rescinds a regulatory definition of showerhead that had the primary effect of defining multi-nozzle showers as a single showerhead for purposes of the rule. The first Trump Administration did the same thing, but it was undone in the Biden Administration. The text of the EO makes all of this clear.

Section 1.  Purpose.  Overregulation chokes the American economy and stifles personal freedom.  A small but meaningful example is the Obama-Biden war on showers:  Twice in the last 12 years, those administrations promulgated multi-thousand-word regulations defining the word "showerhead."  See Energy Conservation Program:  Definition of Showerhead, 86 Fed. Reg. 71797 (December 20, 2021); Energy Conservation Program for Consumer Products and Certain Commercial and Industrial Equipment:  Test Procedures for Showerheads, Faucets, Water Closets, Urinals, and Commercial Prerinse Spray Valves, 78 Fed. Reg. 62970 (October 23, 2013).  To the extent any definition is necessary for this common piece of hardware, the Oxford English Dictionary defines "showerhead" in one short sentence.

Sec. 2.  Ordering the Repeal of the 13,000-Word Regulation Defining "Showerhead".  I hereby direct the Secretary of Energy to publish in the Federal Register a notice rescinding Energy Conservation Program:  Definition of Showerhead, 86 Fed. Reg. 71797 (December 20, 2021), including the definition of "showerhead" codified at 10 C.F.R. 430.2.

Those who don't bother to pay attention to the details may cheer or condemn the EO, but it really will not do much. Indeed, even if the EO were capable of rescinding the federal limit on showerhead water flow, it is not clear it would have much effect on water use. To the contrary, there is empirical evidence that reducing showerhead water flow can increase water consumption because it causes some people to take longer showers. Among other things, they can can lengthen the time it takes for water to get up to temperature and cause people to rinse for longer periods. So, if we want more water flow, that is a job for Congress, and if we want to conserve water, we would be better off with market pricing.

A particularly striking feature of the EO for us administrative law types is how it instructs the Energy Secretary to implement the President's demand.

Notice and comment is unnecessary because I am ordering the repeal.  The rescission shall be effective 30 days from the date of publication of the notice.

At one level, this is a breath-taking assertion of presidential authority--and one that will almost certainly be rejected by the courts. While the President is not an agency for purposes of the Administrative Procedure Act, a Presidential order does not insulate executive branch officials from complying with the APA's requirements. The rescission of a regulation is not exempt from the APA's procedural requirement, nor is a presidential decree, by itself, enough to constitute "good cause" for avoiding those requirements.

Does this mean rescinding the Obama-Biden showerhead definition will have to go through notice and comment? Not necessarily. While there is no mention of it in the EO or the White House Fact Sheet, the Department of Energy may have a way to quickly rescind the rule: Declare the definition to be no more than a non-binding "interpretative rule" exempt from the notice-and-comment requirements of Section 553 of the APA.  After all, the definition is, at its core, an official interpretation of a statutory term and need not be understood to impose any sort of legal obligation. Insofar as the definition is relied upon for the implementation and enforcement of other, substantive rules--such as those setting forth the water-flow testing requirements for showerheads--this could get sticky, but I suspect attorneys within the Energy Department could use this route to quickly eliminate this regulation from the books.

In the end we have an EO that is more bluster than substance. It will do very little to change most people's shower routine, and insofar as it is actually implemented, it is unlikely to be through the route the President directs, but it may be possible to execute quickly if the agency lawyers do their jobs. In these respects, it may be symbolic of the Trump Administration's deregulatory efforts overall.

* * *

Note: For those seeking to keep track, here is a link to President Trump's EOs that have been published in the Federal Register. Note that it typically takes a few days before new EOs are published, so this listing is sometimes a few days behind. (For example, at the time this is posted, the showerhead EO is not yet included.)

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[Eugene Volokh] No Closed Trial, Pseudonymity at Trial, or Audio-Only Testimony for Billion-Dollar Maine Lottery Winner

["However legitimate [plaintiff's] concerns, a party's wealth alone is not a legitimate reason to restrict the right of public access."]

Some short excerpts from yesterday's long decision by Judge John Woodcock (D. Me.) in Doe v. Smith:

On November 14, 2023, John Doe, a pseudonym for the father of a minor daughter, filed a lawsuit against Sara Smith, a pseudonym for the mother of the same minor, seeking an injunction and other relief against Ms. Smith for disclosure of information subject to a Non-Disclosure Agreement (NDA) between them. Specifically, Mr. Doe, a winner of the Maine State Lottery, claimed that Ms. Smith violated the NDA by informing third parties about his winnings….

Mr. Doe notes the Court "hit the nail on the head" when it observed in a January 10, 2025 status conference that he is faced with a "Catch-22" if this case were to proceed to a public trial: "even if Plaintiff were to win on his claims, his identity and confidential information would be revealed to the public and the media; he would effectively lose the privacy war and subject himself and his minor daughter to the irreparable harm he brought suit to avoid."

He thus files this motion for a closed trial and informs the Court of his intent to seek interlocutory appeal of the Court's ruling if necessary. Mr. Doe specifically requests that any trial in this matter be closed in its entirety to the public and media, or alternatively that all testimony of the parties and their family members to be submitted to the jury be taken by telephone or audio-only Zoom along with "appropriate safeguards, including, but not limited to, the partial closure of any trial to the public and media where appropriate, in order to ensure that the identities and other personal identifying information of the Parties and their family members remain anonymous." …

The court said no to the closed trial request:

From the Court's perspective, Mr. Doe's request that the trial itself be closed to the public is a nonstarter. It runs hard against historic concepts of what the courts are and what they are not in this country. A publicly filed court case is no longer a private matter. In bringing this case, Mr. Doe turned to a forum established by the United States Constitution, funded by American taxpayers, comprising a branch of the federal government, whose procedures must be open and whose rulings must be a matter of public record….

By the Court's reckoning, one of Mr. Doe's main points is that because he is now wealthy, the consequences of his filing this lawsuit are different for him as opposed to other less financially fortunate individuals. Mot. for Leave to Proceed Under Pseudonym and for Protective Order ("There are unique risks inherent to being an ultra-high-net-worth individual, especially where, as here, the individual's increase in wealth is swift and dramatic"). He fears his new-found wealth will make him the target of an inquisitive and occasionally malevolent people. See id. ("Plaintiff has had to hire a highly respected security firm and strictly adhere to a safety program that requires property security, surveillance, and ongoing threat assessments to ensure his and his minor daughter's safety and privacy").

However legitimate his concerns, a party's wealth alone is not a legitimate reason to restrict the right of public access. Indeed, as he notes in his motion for leave to proceed under pseudonym, Mr. Doe's new-found wealth allows him to afford levels of security and isolation not generally available to the general public, thus mitigating the impact of the public revelation of his new financial status.

Upon entering a judgeship, Congress requires each federal judge to take an oath to "administer justice without respect to persons, and do equal right to the poor and to the rich." 28 U.S.C. § 453. "Every litigant is entitled to have his case heard by a judge mindful of this oath." Laird v. Tatum (1972). This Court cannot reconcile its sworn oath with Mr. Doe's demand that his trial be closed to the public because he is rich….

The court likewise said no to the request for pseudonymity at trial:

Mr. Doe [has] focused on "the unique risks inherent to being an ultra-high-net-worth individual, especially where, as here, the individual's increase in wealth is swift and drastic." Mr. Doe lists the following risks: (1) kidnap for ransom, (2) stalking and harassment, (3) unwanted attention to his daughter, (4) increased attention to his other family members, (5) cybersecurity vulnerabilities, (6) impersonation and financial fraud, (7) media attention, (8) extortion, (9) solicitation for financial support, and (10) disruptions and restricted movement in daily life….

[But] without diminishing the Plaintiff's proffered security concerns for himself and the parties' minor daughter, the Court cannot conclude that these fears of harm outweigh the public's robust interest in open courts. While the presumption of public access is not absolute, it is paramount and an essential component of our legal system, so "important because it 'allows the citizenry to monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system.'"

And the court said no to the request for audio-only testimony at trial from the parties and key witnesses:

Mr. Doe not only proposes that his identity still be kept secret, but also that the identity of the other critical witnesses be kept secret as well. In fact, he requests not only that the witnesses' names and identities be secret, but that a jury be restricted from viewing them all, including their facial expressions, body movements, and all other non-verbal responses and expressions.

Moreover, as the Court understands it, under Mr. Doe's proposal, questions would not be allowed if they could reveal the witness's identity. Therefore, questions about the witness's age, education, employment, where they grew up, current residence, marital status, children, life experiences, and other similar matters that jurors typically rely upon in assessing a witness's credibility would be off-limits, and the information would be unavailable to the jury. Thus, a jury would hear the testimony by telephone or audio-only Zoom of disembodied voices from anonymous witnesses, including the parties, whose credibility would be critical to its deliberations. In the Court's view, Mr. Doe's proposal does not comport with any trial that the Court is familiar with or that is legally permitted in this country for the issuance of a fair and informed verdict….

UCLA School of Law student Theodora Ciobanu and I, together with our local counsel Sigmund Schutz and Alexandra Harriman (Preti Flaherty, LP), argued for this result on behalf of the Maine Trust for Local News. (The Maine Trust hadn't objected to pseudonymity before trial, but objected to pseudonymity being extended to trial.)

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[Josh Blackman] Offices and Officers of the Constitution Part VI: The Ineligibility Clause

[The latest in the ten-part Tillman-Blackman series on Offices and Officers of the Constitution]

I am pleased to announce that the South Texas Law Review has published the sixth installment in the Tillman-Blackman series on the offices and officers of the Constitution.

Here is the abstract of Offices and Officers of the Constitution Part VI: The Ineligibility Clause.

This Article is the sixth installment of a planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution. The first installment introduced the series. The second installment identified four approaches to understand the Constitution's divergent "office"- and "officer"-language. The third installment analyzed the phrase "Officers of the United States," which is used in the Appointments Clause, the Impeachment Clause, the Commissions Clause, and the Oath or Affirmation Clause. Part IV traced the history of the "Office . . . under the United States" drafting convention. Part V considered the meaning of the phrase "Office . . . under the United States," which appears in the Incompatibility Clause, the Impeachment Disqualification Clause, the Foreign Emoluments Clause, and the Elector Incompatibility Clause. This sixth installment, Part VI, will turn to the phrase "Office under the Authority of the United States," which appears uniquely in the Ineligibility Clause. The Ineligibility Clause provides, "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

This Article proceeds in five sections. Section I describes the drafting history of the Ineligibility Clause during the Constitutional Convention This drafting history lends some support for our view that the phrase "any civil office under the Authority of the United States" refers to a category of appointed, and not elected, positions. Section II contends that the President and Vice President do not hold "civil offices under the Authority of the United States." This argument flows from the text of the Ineligibility Clause, which applies to "appointed" positions. As a general matter, the President and Vice President are not appointed; rather, they are elected by electors, or they are elected or chosen by the House and Senate.

Section III puts forward the position that members of Congress do not hold "civil offices under the Authority of the United States." If senators or representatives held "civil offices under the Authority of the United States," then Congress might be able to manipulate its own membership by modifying the compensation for these elected positions. Generally, members of Congress are "elected," and not "appointed." Section IV identifies several positions covered by the Ineligibility Clause. In our view, the phrase "Office under the Authority of the United States" refers to a specific category of appointed officers—a category more expansive than both "officers of the United States" and "office . . . under the United States." Section V turns to the interaction between the Ineligibility Clause and the Religious Test Clause. The latter provides "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." There may be a handful of irregular positions that are an "Office under the Authority of the United" but not an "Office under the United States" or a "public trust under the United States." Such positions would not be subject to the Religious Test Clause.

The Ineligibility Clause is very useful to understand the difference between the meaning of "elect" and "appoint."

Parts seven through ten of our series should be published over the next year or so. This project began in earnest in 2017, and our first installment was written in 2020. Even though the courts may have lost interest in officer-stuff, we have not!

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[Eugene Volokh] "Climate Activist Found Guilty in Defacing Degas Exhibit at National Gallery of Art"

From Tuesday's Justice Department press release:

Timothy Martin, 55, of Raleigh, North Carolina, was found guilty by a federal jury for his role in the April 27, 2023, defacement of an art exhibit at the National Gallery of Art in Washington, D.C.

The verdict was announced by U.S. Attorney Edward R. Martin, Jr., and Special Agent in Charge Sean Ryan of the FBI Washington Field Office Criminal and Cyber Division.

President Trump directed federal authorities in a March 2025 Executive Order to Make D.C. Safe and Beautiful by launching a multi-faceted initiative to address both crime and beautification. This includes the creation of the D.C. Safe and Beautiful Task Force to coordinate law enforcement efforts, and a program to restore and enhance the city's public spaces.

"This verdict sends a strong message to the thousands of people who come to D.C. each year to demonstrate and be heard," said U.S Attorney Martin. "Free speech is a constitutional right. But when you take illegal action, such as causing damage to an art exhibit at the National Gallery, you are crossing a line. We want to Make D.C. Safe and Beautiful Again, and we will not tolerate anyone defacing our city to get attention for their cause."

After a four-day trial, the jury, yesterday, found Martin guilty of conspiracy to commit an offense against the United States and injury to a National Gallery of Art exhibit. U.S. District Judge Amy Berman Jackson scheduled sentencing for August 22, 2025.

According to evidence introduced in court, Martin and co-defendant Johanna Smith, 54, of Brooklyn, NY, smeared paint on the case and base of Edgar Degas' Little Dancer, Age Fourteen, a sculpture which has drawn visitors for years to the National Gallery of Art in Washington, D.C. Following the attack, a group called Declare Emergency claimed credit.

Martin and Smith agreed, along with other co-conspirators, to enter the National Gallery of Art for the purpose of injuring the exhibit and entered the museum armed with water bottles filled with paint. Martin and Smith handed their phones to other co-conspirators and waited until patrons cleared the area in front of the Little Dancer. The pair proceeded to smear paint on the case and base of the exhibit, at times smacking the case with force. Prior to the attack, members of the conspiracy had alerted the Washington Post, and two reporters from the Post recorded and photographed the offense. Additionally, other members of the conspiracy filmed and photographed the offense.

Smith and Martin caused over $4,000 in damage, including material and labor costs, and the exhibit was removed from public display for 10 days so that it could be repaired.

Smith pleaded guilty December 15, 2023, to one count of causing injury to a National Gallery of Art exhibit. She was sentenced to 60 days in prison, followed by 24 months of supervised release and ordered to pay a $3,000 fine and $4,062 in restitution.

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[Ilya Somin] Supreme Court Rules Trump Administration Must "Facilitate" Return of Illegally Deported Salvadoran Migrant

[Unanimous ruling is a big win for immigrant rights. But it does have unfortunate ambiguities.]

Kilmar Abrego Garcia, led by guards through the Terrorism Confinement Center in Tecoluca, El Salvador. (NA)

 

Tonight, the Supreme Court unanimously ruled that Trump Administration must "facilitate" the return of Salvadoran migrant Kilmar Abrego Garcia, whom it had illegally deported to brutal imprisonment in El Salvador's awful CECOT prison (despite his never having been convicted of any crime). The Court largely affirmed earlier rulings by the district court and Fourth Circuit. This is an important win for immigrant rights. The justices rejected the administration's dangerous position that it can deport and imprison anyone it wants - including US citizens - and then be immune from judicial review, so long as the incarceration is done by a foreign state, even one acting at the direction of the US government.

But there is an unfortunate ambiguity in the Court's ruling. Here is the key passage:

Due to the administrative stay issued by the Chief Justice, the deadline imposed by the District Court has now passed. To that extent, the Government's emergency application is effectively granted in part and the deadline in the challenged order is no longer effective. The rest of the District Court's order remains in effect but requires clarification on remand. The order properly 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. The intended scope of the term "effectuate" in the District Court's order is, however, unclear, and may exceed the District Court's authority. The District Court should clarify its directive,with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.

The ambiguity here is what exactly it means to "facilitate" Abrego Garcia's return to the US. Does it require the government to do everything possible to ensure that return, merely make some token effort, or something in between? To my mind, the best interpretation is "everything possible." That reading is implied by the Court's admonition that the government must "ensure that his case is handled as it would have been had he not been improperly sent to El Salvador." The only way to do that is to actually return him! 

As a practical matter, Abrego Garcia is only being held by El Salvador because the US government wants him to and is paying the Salvadoran government to incarcerate him and other deportees (including many illegally deported under the Alien Enemies Act). All Trump has to do to get any of these people released is credibly convey to the Salvadoran that that is what he wants. But I worry the Trump administration will drag its feet and claim all the Supreme Court ruling requires is make a pro forma request that the Salvadorans know they could refuse without suffering any adverse consequences.

In my analysis of the lower court rulings, I explained why, in this context, there is no good reason to grant any deference to executive claims that the president cannot be required to return a prisoner held by a foreign state. Nonetheless, the administration is likely to continue its efforts to weasel its way out of doing the right thing.

At the very least, there will probably be further wrangling in the lower courts over the exact meaning of "facilitate" and how it may or may not differ from "effectuate." This is the kind of word game some lawyers like to play - even if it's also the kind of thing that causes many people to hate lawyers! It might even be entertaining - except for the fact that as long as this goes on, an innocent man will continue to rot in a terrible prison, where he was unjustly sent without any due process.

Perhaps this ambiguity was the price of getting a unanimous ruling. But it's unfortunate, nonetheless.

In a concurring statement joined by the other two liberal justices, Justice Sonia Sotomayor outlines the stakes of the case, and gives her own interpretation of what the ruling requires:

The United States Government arrested Kilmar Armando Abrego Garcia in Maryland and flew him to a "terrorism confinement center" in El Salvador, where he has been detained for 26 days and counting. To this day, the Government has cited no basis in law for Abrego Garcia's warrantless arrest, his removal to El Salvador, or his confinement in a Salvadoran prison. Nor could it….

The Government now requests an order from this Court permitting it to leave Abrego Garcia, a husband and father without a criminal record, in a Salvadoran prison for no reason recognized by the law. The only argument the Government offers in support of its request, that United States courts cannot grant relief once a deportee crosses the border, is plainly wrong….

Because every factor governing requests for equitable relief manifestly weighs against the Government, Nken v.Holder, 556 U. S. 418, 426 (2009), I would have declined to intervene in this litigation and denied the application in full.

Nevertheless, I agree with the Court's order that the proper remedy is to provide Abrego Garcia with all the process to which he would have been entitled had he not been unlawfully removed to El Salvador. That means the Government must comply with its obligation to provide Abrego Garcia with "due process of law," including notice and an opportunity to be heard, in any future proceedings... It must also comply with its obligations under the Convention Against Torture…. Federal law governing detention and removal of immigrants continues,of course, to be binding as well. See 8 U.S. C. §1226(a) (requiring a warrant before a noncitizen "may be arrested and detained pending a decision" on removal; 8 CFR§287.80)2) (2024) (requiring same)…. In the proceedings on remand, the District Court should continue to ensure that the Government lives up to its obligations to follow the law.

Sotomayor is right on all points. And the only way to ensure the government "lives up to" all these obligations is to ensure that Abrego Garcia is actually returned to the United States. Giving it the old college try won't cut it.

But Sotomayor, like the Court's ruling, does not unambiguously define what it means to "facilitate." And her statement, on behalf of only three justices, is not by itself legally binding.

An ethical government would avoid further litigation and just simply ensure Abrego Garcia's return. They could easily do that! Indeed, they  would have done so - at the very least - as soon as they realized he had been illegally deported in the first place.  Both respect for the rule of law and minimal common decency require them to promptly return a man they have admitted was illegally deported and imprisoned. But this administration, to put it mildly, doesn't much care for either law or decency when they get in its way.

In sum,  the Court's decision is an important win for immigrants, and setback for the administration. But it has a notable - potentially problematic - ambiguity.  Just how much of a problem that turns out to be remains to be seen.

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[Josh Blackman] The Chief Justice "Facilitates" Another Shadow Docket Compromise In Noem v. Garcia

[The Trump Administration didn't lose but it didn't quite win either. ]

Another day, another shadow docket compromise. This evening, the Court issued a short three paragraph per curiam opinion in Noem v. Garcia. In short, the Court found that that the District Court could not order the Executive Branch to negotiate the return of Garcia, but instead could only require the government "facilitate" Garcia's return. This outcome was entirely predictable. On Monday, I wrote:

I think the most likely outcome is that Roberts follows the lead of Judge J. Harvie Wilkinson on the Fourth Circuit: deny the application, but "clarify" that the District Court can only require the President to "facilitate" the return of the alien.

The Chief Justice (almost certainly) wrote the per curiam order, which states:

The rest of the District Court's order remains in effect but requires clarification on remand. The order properly 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. The intended scope of the term "effectuate" in the District Court's order is, however, unclear, and may exceed the District Court's authority.

I nailed this one 100%. "Clarify" and "facilitate" is all that was needed.

Now, let's get into the nitty gritty.

First, the Court repeats this strange argument that an order with a deadline in the past is no longer in effect:

Due to the administrative stay issued by THE CHIEF JUSTICE, the deadline imposed by the District Court has now passed. To that extent, the Government's emergency application is effectively granted in part and the deadline in the challenged order is no longer effective.

The Court employed this reasoning in the USAID case:

Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.

This argument makes no sense. When a court's deadline has passed, that means the government has failed to comply with the order. It doesn't meant he deadline is "no longer effective." This argument even makes less sense when the reason why the deadline lapsed is that a Justice granted an emergency stay. How can it be that a single Justice's administrative stay can vacate a lower court injunction? A stay only puts a ruling on hold. I would like someone with more knowledge of appellate procedure to explain how this works. But the Chief found some new game to avoid the usual rules of procedure, and he will keep playing it.

Second, the Court provides this order:

The application is granted in part and denied in part, subject to the direction of this order.

I searched the Supreme Court database on Westlaw for the phrase "The application is granted in part and denied in part." There were zero hits. I also searched for "subject to the direction of this order." There were zero hits. There are some serious John Roberts machinations going on here.

The government's application asked the Court to vacate the district court's injunction. Did the Court actually vacate the district court's injunction? Well, it didn't say it was doing so. Rather, it relied on the locution of "clarification." But in every sense, the Court vacated the District Court's injunction. The injunction said the alien had to be returned by a certain date, and the government does not have to return the alien by that date. The injunction was vacated. This is similar to what happened in the USAID case, where it denied the government's request to block the funding injunction, but the Court still asked the District Court to clarify the scope of the order to spend $2 billion.

Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines.

If in fact the Court vacated the District Court's injunction, in what regard was the government's application denied? It wasn't. The application was granted in full. The government didn't get all the relief they wanted, but that isn't what "denied in part" means. This is sort of the inverse of San Francisco v. EPA where Justice Barrett purported to "dissent in part" where she in fact dissented in whole. Once again, the Court is playing fast and loose with terminology to obscure what it is actually doing. It seems good for the press to report something is "denied in part," as it seems that the Court ruled against Trump. But it didn't.

At least this order is not an advisory opinion, like the USAID case. The Court clearly grants the application, at least in part, which gives it the power to issue an order to the lower court. No, jurisdiction is not some kind of "shiny" bobble.

Third, there is a minimal statement about the separation of powers:

The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs. For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.

This is a clear reversal of Judge Thacker's opinion for the Fourth Circuit, which found the executive branch had no countervailing interest in this case. Judge Thacker would have ordered the return of Garcia, post haste. What does the Chief Justice require: be prepared to share information. That is not much. All the government needs to say is "we think the prospects of Garcia's return are bleak" and they will have complied with this order.

Here, the Trump Administration did not lose, but it didn't quite win either. This is similar to the JGG case where the administration won on the venue question, but lost on the ability to summarily remove alleged alien enemies.

Fourth, Justice Sotomayor's statement provides a gloss of the majority's opinion:

Nevertheless, I agree with the Court's order that the proper remedy is to provide Abrego Garcia with all the process to which he would have been entitled had he not been unlawfully removed to El Salvador. That means the Government must comply with its obligation to provide Abrego Garcia with "due process of law," including notice and an opportunity to be heard, in any future proceedings. Reno v. Flores, 507 U. S. 292, 306 (1993). It must also comply with its obligations under the Convention Against Torture. Federal law governing detention and removal of immigrants continues, of course, to be binding as well.

I am fairly confident Justice Sotomayor overreads the majority. The majority said none of these things. I am also fairly confident the judges of the Fourth Circuit will dutifully cite Justice Sotomayor. That may be why she wrote a "statement" rather than a dissent.

The Court is moving more expeditously through the emergency docket then I expected. And in case you missed it, today Circuit Justice Kavanaugh in an Ohio election case.

The post The Chief Justice "Facilitates" Another Shadow Docket Compromise In Noem v. Garcia appeared first on Reason.com.

[Ilya Somin] The Tariff Madness Isn't Over

[Even after Trump paused some of his new tariffs for 90 days, we still have the highest average tariffs in over a century and the biggest trade war since the Great Depression. Real relief will only come if Congress or the courts deny Trump the power to do this.]

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When Donald Trump paused many of his awful "Liberation Day" tariffs yesterday, there was some understandable relief. Some even seem to assume the tariff crisis is over. For example, Democratic Senate Leader Charles Schumer, posted on Bluesky that "History will remember April 9, 2025 as America's actual liberation day—the day that President Trump backed down from his ridiculous tariff fiasco."

But any celebration is premature. The truth is Trump has not fully backed down. A whopping 10% tariff on nearly every nation in the world is still going into effect immediately, along with a huge increase on tariffs for Chinese goods (up to 145%).  It's enough to impose a huge tax increase on Americans (an average of  $4700 per household). And the additional "reciprocity" tariffs are only paused for 90 days, not cancelled.

Even with the pause, we now have the highest overall average effective tariff rate since 1909 - higher even than the infamous Smoot-Hawley tariff of 1930 that played a major role in deepening the Great Depression.  And that includes high tariffs on nations like Switzerland and Israel, which don't impose any tariffs on  US goods - thereby giving the lie to the notion that Trump's trade war is about breaking down "unfair" trade practices by other nations.

Moreover, so long as Trump seemingly has the power to impose massive tariffs at will, the crisis will not be over, even if he suspends all of them. Investors and producers will still face a climate of uncertainty, destroying incentives to make any kind of long-term commitments. Why build a factory, invest in one, or commit to a long-term contract, if your business could be wiped out any time the man in the White House wakes up on the wrong side of his bed, and decides to trash the world economy again?

The only way to truly end this crisis is to curb the power of the president to set tariffs. That could be done by Congress passing a law constraining the executive. There is in fact bipartisan legislation before the Senate and the House that would do exactly that, by voiding any tariffs imposed by the executive unless Congress passes a law approving them within 60 days. But even if it passes (which is far from guaranteed), Trump would veto it, and there is little or no chance that supporters can muster the two-thirds supermajorities in each house needed to override.

That leaves the second path to restoring stability: courts should strike down Trump's tariffs because they are illegal. In a previous post, I detailed multiple reasons why this is the right conclusion. They include the statutory text of the International Emergency Economic Powers Act of 1977 (IEEPA) (which, among other things, does not authorize tariffs), the major questions doctrine, nondelegation, and more.

The Liberty Justice Center and I are  proceeding with our planned lawsuit challenging the "Liberation Day" tariffs on behalf of US firms that import goods from the many countries targeted with tariffs. Other groups are also likely to file cases.  If we prevail, there may be true liberation from this insanity.

UPDATE: The original version of this post said the China tariff was set at 5. But it is actually now at 5. I apologize for the mistake, which has now been corrected.

 

The post The Tariff Madness Isn't Over appeared first on Reason.com.