Eugene Volokh's Blog, page 125

[Jonathan H. Adler] Supreme Court Upholds Order Telling Trump Administration to "Facilitate" Return of Armando Abrego Garcia from El Salvador

[Without any recorded dissent, the justices rebuke the Trump Administration's cavalier disregard for due process.]

This evening the Supreme Court effectively denied the Trump Administration's request that it vacate a district court order demanding that the federal government effectuate the return of Armando Abrego Garcia to the United States from El Salvador. This is consistent with last week's opinions in Trump v. J.G.G. in which all nine justices indicated that the federal government must provide due process to individuals allegedly subject to deportation.

As a technical matter, the Trump Administration's application was granted in part and denied in part , but in substance it denied the Administration's sought after relief by concluding that the district court "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 order also called for the district court to clarify parts of its order, and noted that parts of the order (such as the deadline) were no longer operable.

The unsigned order drew no dissents, though Justice Sotomayor issued a separate statement respecting the order joined by Justices Kagan and Jackson.

The text of the order is below the jump.

On March 15, 2025, the United States removed Kilmar Armando Abrego Garcia from the United States to El Salvador, where he is currently detained in the Center for Terrorism Confinement (CECOT). The United States acknowledges that Abrego Garcia was subject to a withholding order forbidding his removal to El Salvador, and that the removal to El Salvador was therefore illegal. The United States represents that the removal to El Salvador was the result of an "administrative error." The United States alleges, however, that Abrego Garcia has been found to be a member of the gang MS–13, a designated foreign terrorist organization, and that his return to the United States  would pose a threat to the public. Abrego Garcia responds that he is not a member of MS–13, and that he has lived safely in the United States with his family for a decade and has never been charged with a crime.

On Friday, April 4, the United States District Court for the District of Maryland entered an order directing the Government to "facilitate and effectuate the return of [Abrego Garcia] to the United States by no later than 11:59 PM on Monday, April 7." On the morning of April 7, the United States filed this application to vacate the District Court's order. THE CHIEF JUSTICE entered an administrative stay and subsequently referred the application to the Court.

The application is granted in part and denied in part,subject to the direction of this order. 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 order heretofore entered by THE CHIEF JUSTICE is vacated.

Justice Sotomayor's "Statement . . . respecting the Court's disposition of the application" reads:

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 remains bound by an Immigration Judge's 2019order expressly prohibiting Abrego Garcia's removal to El Salvador because he faced a "clear probability of future persecution" there and "demonstrated that [El Salvador's] authorities were and would be unable or unwilling to protect him." App. to Application To Vacate Injunction 13a. The Government has not challenged the validity of that order.

Instead of hastening to correct its egregious error, the Government dismissed it as an "oversight." Decl. of R. Cerna in No. 25–cv–951 (D Md., Mar. 31, 2025), ECF Doc.11–3, p. 3. 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. See Rumsfeld v. Padilla, 542 U. S. 426, 447, n. 16 (2004); cf. Boumediene v. Bush, 553 U. S. 723, 732 (2008). The Government's argument, moreover, implies that it could deport and incarcerate any person, including U. S. citizens, without legal consequence, so long as it does so before a court can intervene. See Trump v. J. G. G., 604 U. S. ___, ___ (2025) (SOTOMAYOR, J., dissenting) (slip op., at 8). That view refutes itself.

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. Reno v. Flores, 507 U. S. 292, 306 (1993). It must also comply with its obligations under the Convention Against Torture. See Convention Against Torture and Other Cruel and Inhumanor Degrading Treatment or Punishment, Dec. 10, 1984, S.Treaty Doc. No. 100–20, 1465 U. N. T. S. 113. 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 anddetained pending a decision" on removal); 8 CFR §287.8(c)(2)(ii) (2024) (requiring same); see also 8 CFR §241.4(l) (in order to revoke conditional release, the Government must provide adequate notice and "promptly" arrange an "initial informal interview . . . to afford the alien an opportunity to respond to the reasons for the revocation stated in the notification"). Moreover, it has been the Government's own well-established policy to "facilitate [an] alien's return to the United States if . . . the alien's presence is necessary for continued administrative removal proceedings" in cases where a noncitizen has been removed pending immigration proceedings. See U. S. Immigration and Customs Enforcement, Directive 11061.1, Facilitating the Return to the United States of Certain Lawfully Removed Aliens, §2 (Feb. 24, 2012).

In the proceedings on remand, the District Court should continue to ensure that the Government lives up to its obligations to follow the law.

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[Paul Cassell] The Utah Supreme Court Rules That Sexual Assault Victims Cannot Be Forced to Testify at "Rape Shield" Hearings

[The Court follows my argument that the purpose of a rape shield hearing is to ... well ... shield rape victims.]

Today the Utah Supreme Court agreed with my argument that a defendant cannot compel a rape victim to testify at a "rape shield" hearing. Instead, the defendant must establish (if he can) the admissibility of prior sexual history evidence in other ways, such as a proffer of anticipated testimony and legal argument. The Court's ruling solidifies the protections offered to victims under Utah's Rule of Evidence 412. And because Utah's rule uses the same language found in the federal rules and many state provisions, it will serve as a valuable precedent in other cases.

I previously blogged about the case here.  In a nutshell, in the federal system and all states, "rape shield" rules require pre-trial hearings on whether evidence relating to a rape victim's prior sexual history is admissible at trial. For example, Utah's Rule of Evidence 412 (which parallels Federal Rule of Evidence 412) requires a defendant who intends to introduce a victim's prior sexual history evidence to make a detailed proffer of the relevance and purpose of the proposed evidence. The trial judge then holds a hearing and determines the admissibility of the evidence. But what if the defendant wants to subpoena a victim to the hearing and question her about prior sexual history as part of that determination? Is forcing a rape victim to testify consistent with the rule?

In December, I argued the case to the Utah Supreme Court on behalf of a victim, T.T., explaining  that the rule does not allow defendant to compel victims to testify at such a pre-trial hearing. Today, the Utah Supreme Court agreed with my position:

T.T. argues that once the district court ruled that Jolley [the defendant] had identified "enough specific evidence of prior sexual behavior between him and T.T. to obtain a hearing, no justification existed for forcing T.T. to take the stand and be questioned about her prior sexual history." As she explains, the "only purpose of the rule 412 hearing at that point was to give T.T. an opportunity to be heard about the admissibility of the evidence—not to allow Defendant to force T.T. to take the stand so he could question her."

We agree with T.T. and conclude that both the district court and Jolley fundamentally mistake the purpose of a rule 412 hearing. As discussed, rule 412 requires a party intending to offer evidence that falls within the scope of rule 412's exceptions to "specifically describe[] the evidence" in a motion. Utah R. Evid. 412(c)(1)(A). In other words, it is the moving party's obligation to identify the evidence it seeks to admit in advance of the rule 412 hearing. See id. And, as our court of appeals has explained, that description should be specific enough to allow "the district court to, among other things, assess the probative value of the evidence and balance that value against the considerations rule 403 enumerates." See State v. Bravo, 2015 UT App 17, ¶ 27, 343 P.3d 306. It is not the district court's burden at the hearing to identify evidence for the moving party. Nor is it the victim's obligation to provide testimony at the hearing so that the moving party can meet its burden.

The Court also emphasized that a Rule 412 hearing is not designed for discovery. Instead, a "rule 412 hearing is designed for the presentation of argument on the admissibility of evidence already identified in motion by the moving party; it is not designed to uncover or test that evidence."

I worked closely on the case with the Utah Crime Victims' Legal Clinic, including its capable director Heidi Nestel, and the Clinic's skilled trial court attorney on the case, Crystal Powell. I understand that the Clinic is already citing today's decision to help prevent rape victims from being forced to testify in other cases. This is as it should be. As the Court observed today, "Rule 412 ensure[s] that sexual assault victims are not deterred from participating in prosecutions because of the fear of unwarranted inquiries into the victim's sexual behavior."

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[Ilya Somin] End Kidney Deaths Act Reintroduced in Congress

[While not as good as full legalization of organ markets, the act could save lives by giving kidney donors a $50,000 tax credit.]

(NA)

On Tuesday, GOP Rep. Nicole Malliotakis and Democratic Rep. Josh Harder reintroduced the End Kidney Deaths Act. This law would give kidney donors who donate kidneys to strangers a $50,000 "fully refundable" tax credit, and thereby incentivize organ donation. Currently, some 40,000 Americans die each year of kidney failure, for lack of available organs. Thousands more suffer for years on kidney dialysis, while waiting for organs to become available.

This terrible tragedy could be entirely eliminated simply by legalizing organ markets. The End Kidney Deaths Act stops short of that. But it would nonetheless be a major step in the right direction. I assessed its strengths and weaknesses here:

An estimated 40,000 Americans die every year for lack of kidneys available for transplant. If enacted, the End Kidney Deaths Act would save many of these people. In addition, as [Dylan] Matthews points out, the $50,000 per kidney tax credits would easily pay for themselves, because kidney dialysis is vastly more expensive, and Medicare ends up paying for most of that expense. If more people suffering from kidney failure could get a new kidney quickly, the government would save a lot money on dialysis expenses, and those people would be able to be more productive (as well as avoiding great pain and discomfort)….

The major shortcoming of the End Kidney Deaths Act is the implicit price control it creates. By setting the payment at $50,000, it prevents higher payments where that would be necessary to ensure adequate supply. While the Act would save thousands of lives, the estimates Matthews cites (some 6000 to 11,500 additional kidney donations per year) would still leave us many thousands of kidneys short, thereby still dooming many people to needless death, or at least additional years on kidney dialysis.  This problem might be especially acute for patients whose genetics make it unusually difficult to find a matching donor. Conversely, if some potential donors are willing to sell for less than $50,000, there is no good reason to ban such transactions.

Full legalization of organ sales, with no price controls, would fix these problems. It's basic economics 101 that markets function best if prices are allowed to fluctuate in response to supply and demand. In a free market, insurance companies, medical care providers, and others have every incentive to pay what it takes, as the alternative of kidney dialysis is far more expensive. If necessary, the government could subsidize consumption by the poor, as it already does for kidney dialysis and many other health care expenses.

I would add that the $50,000 tax credit is stretched out over a five year period ($10,000 per year). It would be better if donors got paid immediately (thereby strengthening the incentive to donate). I make the case for full legalization of kidney sales in greater detail in this article, where I also address various objections.

Despite its weaknesses, passage of EKDA would be a big improvement over the status quo.  Congress should enact it as soon as possible. Informed sources indicate to me EKDA has a good chance of passing in this Congress, because it enjoys substantial bipartisan support. I hope they are right.

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[Steven Calabresi] President Trump's Reduced Tariff/Taxes Are Still Unconstitutional

[We need a district judge to enter a nationwide injunction putting a stop to these huge unilateral, presidential tax increases on ordinary working-class people.]

President Trump blinked today after his "Liberation Day" tariff/taxes catastrophe led to the worst S & P stock market performance for the start of a presidency since George W. Bush's first term. Trump reduced his blanket tariff for most nations to 10% (for 90 days) while raising tariff/taxes on imports from China. Tariff/taxes remain on imports of steel and aluminum and on trade with Canada and Mexico. Consumers will soon see rapidly rising grocery market prices for fruit and vegetables because of the Mexico tariff/taxes, and consumers will see the price of televisions, electronics, and iPhones skyrocket because of Trump's tariff/taxes on imports from China.

The U.S. Constitution gives Congress the power to impose tariff/taxes in Article I, Section 8, clause 1, and it gives Congress the power to regulate commerce with foreign nations in Article I, Section 8, Clause 3. Trump incorrectly claims that Congress has delegated that power to him under the National Emergencies Act (NEA) and the International Emergency Economic Powers Act (IEEPA) by declaring multiple "national emergencies" related to border security; the hollowing out of the United States' manufacturing base; the existence of trade deficits; and the threat posed by rising Chinese power, which Americans have known about since President Obama wisely pivoted U.S. security concerns to China fifteen years ago.

Webster's Dictionary defines "emergency" as follows: "1: an unforeseen combination of circumstances or the resulting state that calls for immediate action; 2: an urgent need for assistance or relief." The problems President Trump is concerned about are ones that he has complained of for his whole forty years in public life, and Congress and the American people have known about them for decades. They are not unforeseen threats that require urgent action like a Russian or Chinese nuclear attack on the United States, nor are they problems in need of such urgent relief that Trump can address them while bypassing Congress. The statutes Trump invokes, NEA and IEEPA, were passed in the 1970's to curtail presidential claims of emergency power, not to broaden such power.

The Supreme Court should narrowly construe the "emergency power" these statutes grant to the President, to avoid the conclusion that Congress has delegated its taxing power to the President. I know that in Trump's mind trade deficits are an "emergency" because he thinks they are really a big problem, but that is not what the word "emergency" in NEA or IEEPA mean. Congress has long known about the problems but so far declined to deal with them by raising tariff/taxes because doing so will raise inflation, throw the U.S. economy into a depression, crash the stock market, and hurt American farmers and others who depend on exports to make a living and who will be hurt by the retaliation of foreign nations to the unilateral presidential raising of tariff/taxes.

In four cases during the Biden Administration, the current U.S. Supreme Court held that when presidential action under ambiguous statutes raises "a major question" the President cannot act on it unilaterally without getting congressional approval. First, the Court held Biden could not redefine the word "pollutant" to include carbon dioxide emissions to unilaterally enact a trillion-dollar climate change policy. Second, the Court held that Biden could not unilaterally forgive billions of dollars of student loan debt because of an imaginary terrorist threat. Third, the Court held that Biden could not require workplaces covered by OSHA to force their employees to get COVID vaccines whether they wanted them or not. And, fourth, the Court held Biden could not by presidential order suspend the right of landlords to evict tenants who did not pay their rent because of the COVID emergency.

Conservatives hailed these "major question doctrine" decisions as a crucial step in reining in an imperial, and indeed lawless presidency. Now President Trump is copying a page from Joe Biden's imperial presidency playbook and invoking something that is not a genuine "emergency" to impose massive tax increases, inflation, and a potential depression on the American people. Federal courts need to put a stop to this presidential power-grab to raise taxes unilaterally on the American people. A Chinese importer has filed a federal lawsuit in the Northern District of Florida to stop the tariffs. The District Judge in that case should issue a nationwide injunction stopping all of Trump's tariff/tax increase, which are nothing less than taxation without representation by We the People's Congress. Congress can then decide, which, if any, of Trump's tariff/taxes it wants to adopt by passing legislation.

The fact that Trump has paused a lot of tariffs for 90 days does not make legal the other tariffs he has imposed unconstitutionally. Almost every day, since his swearing in as President on January 20, 2025, Trump has either imposed or threatened a tariff/tax increase. The Supreme Court should tell him bluntly to cut it out. The tariff/tax increases are usurping congressional power, and need to be stopped.

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[Josh Blackman] Today in Supreme Court History: April 10, 1967

4/10/1967: Loving v. Virginia argued.

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[Stephen Halbrook] Second Amendment Roundup: Supreme Court Should Resolve Proximate Cause in S&W v. Mexico

[Illinois court shows need to lay the issue to rest.]

As I posted here, the March 4 oral argument in Smith & Wesson Brands v. Estados Unidos Mexicanos appeared to go well for S&W and not well for Mexico.  Mexico's lawsuit seeks to hold America's federally-licensed firearm industry responsible for the cartel violence that plagues Mexico.  The Protection of Lawful Commerce in Arms Act (PLCAA) prohibits lawsuits against the gun industry for crimes committed by third parties.

PLCAA does allow an action in which [1] a manufacturer or seller "knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and [2] the violation was a proximate cause of the harm for which relief is sought."  It was suggested in oral argument that Mexico's aiding and abetting theory did not meet element [1], rendering it unnecessary to resolve [2].  Yet leaving the latter, the proximate-cause issue, in limbo will result in continuing legal uncertainty and ongoing attacks on the industry facilitated by courts that are allowing the most extreme theories of proximate cause in which remoteness is disregarded.

The latest example is the denial by Judge Jorge L. Ortiz of the motion to dismiss in Kelly Roberts v. Smith and Wesson Brands, Circuit Court 19th Judicial District, Lake County, Ill. (April 1, 2025).  In 2022, Robert Crimo III murdered seven people and injured dozens more with an S&W rifle in Highland Park, Illinois.  He has pleaded guilty and faces life in prison.  His father pleaded guilty to reckless conduct for helping his son obtain the rifle while knowing of his mental health issues.

The lawsuit against manufacturer S&W, the distributor, and the retailer that sold the rifle is exactly the kind of case PLCAA was enacted to prevent.  The Roberts plaintiffs alleged that S&W advertisements intentionally promote militaristic misuse of firearms, especially among young people.  (Of course they don't.)  S&W responded that "the claimed harm is the aggregate result of numerous intervening (including criminal) acts by third parties not under Smith & Wesson's control," and that "Plaintiffs fail to allege, as they must, that they even saw the Smith & Wesson advertisements they complain of, let alone that they were deceived by them."

The plaintiffs responded that inferences could be made that Crimo saw and was influenced by the ads because he played shooter video games and S&W ads somehow mimic such games.  Judge Ortiz agreed that the inferences sufficed to show knowing violation of an Illinois law against engaging in deceptive and unfair practices, specifically by "promot[ing] a firearm-related product that encourages unlawful paramilitary activity."  He held that "Plaintiffs have alleged sufficient facts to conclude that Smith and Wesson's marketing strategies of targeting younger demographics and promoting unlawful military type assaults created a foreseeable risk of injury to Plaintiffs."

"Factual causation," the court ruled, was established by "numerous allegations of unlawful marketing techniques and statutory authority that Smith and Wesson marketing and advertisements violated."  "Legal cause" sufficed that "Smith and Wesson's unlawful conduct created a condition that foreseeably led to the shooter's criminal act."  With conclusions like that, the proximate-cause requirement may as well be erased from PLCAA.

It goes without saying that it is sheer lunacy to claim that S&W ads encourage "unlawful paramilitary activity" and promote "military type assaults."  But the purpose of such lawsuits, orchestrated by Everytown for Gun Safety, is to destroy America's lawful firearm industry.  Making a mockery of PLCAA, not to mention the Second Amendment, is the game that's being played.

That's all the more reason for the Supreme Court definitively to resolve the proximate-cause issue in Smith & Wesson Brands v. Estados Unidos Mexicanos.

 

 

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[Ilya Somin] Trump Partially Pauses "Liberation Day" Tariffs

[But 10% tariffs are still being imposed on nearly all countries, without any letup. And we are still moving ahead with our lawsuit challenging them.]

President Donald Trump signed two executive orders on April 2 instituting tariffs on a wide range of countries. ( Andrew Leyden/ZUMAPRESS/Newscom)

 

Today, Donald Trump partially paused his massive new "Liberation Day" tariffs. However, a whopping 10% tariff on nearly every nation in the world is still going into effect immediately, along with an enormous increase on tariffs for Chinese goods (up to 125%). And the additional massive "reciprocity" tariffs are only paused for 90 days, not cancelled.

For these reasons, the Liberty Justice Center and I are still proceeding with our planned lawsuit challenging these tariffs on behalf of US businesses that import goods from the affected countries. We will not stop unless and until this unconstitutional usurpation of power is ended completely, and permanently.

We are close to finalizing our list of clients and hope to be able to file the case soon.

I explained why the "Liberation Day" tariffs are illegal in greater detail here.

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[Ilya Somin] ACLU Files Habeas Class Action to Block Alien Enemies Act Deportations

[This case has crucial implications for the ability of migrants to effectively challenge illegal AEA deportations.]

(ACLU)

In my recent post about the Supreme Court's ruling in Trump v. JGG, the Alien Enemies Act case, I noted that the impact of the decision will in large part be determined by whether non-citizens slated for deportation under the AEA will be allowed to bring habeas class actions to challenge them. If class actions are permitted, then individual detained immigrants won't have to bring separate habeas cases to challenge their deportation (which many may not have the resources or the knowledge to be able to do effectively). Rather, public interest groups and others can bring systematic challenges on behalf of large groups.

Yesterday, the American Civil Liberties Union filed a habeas class action lawsuit on behalf of migrants slated for AEA deportation, currently detained in New York. They seek to certify a class that includes "All noncitizens in immigration custody who were, are, or will be subject to the March 2025 Presidential Proclamation entitled 'Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua' and/or its implementation." This includes virtually everyone who might be deported by the administration under its Alien Enemies Act Proclamation.

I am not an expert on class actions. So I cannot say much about the likelihood of success for this suit. I must largely leave that issue to others with greater expertise.

But I will note that it is not unusual for class actions to include class members who are located in different places around the country.  This situation strikes me as the kind of scenario for which class actions were created. We have a likely illegal policy that potentially harms a large number of people around the country, they have a common interest in stopping it, but many would find it difficult or impossible to bring individual lawsuits. For obvious reasons, immigrants detained by ICE may find it hard to bring individual habeas petitions, even though the Supreme Court has ruled that they "must receive notice after the date of this order that they are subject to removal under the Act [and] [t]he notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."

Elsewhere I have written about why the Administration's invocation of the AEA is illegal, and would set a very dangerous precedent if allowed to stand. People slated for deportation to brutal imprisonment in El Salvador should at the very least have a meaningful opportunity to raise these issues in court. The class action pathway seems like the best remaining available means to ensure they get the due process to which they are entitled under the Constitution.

 

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[Josh Blackman] Today in Supreme Court History: April 9, 1923

4/9/1923: Adkins v. Children's Hospital decided.

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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