Eugene Volokh's Blog, page 128

[Eugene Volokh] Columbia Students' Lawsuit Potentially "Raises Serious Questions" Under the First Amendment

From Judge Arun Subramanian's order today in Khalil v. Trustees of Columbia Univ. (S.D.N.Y.):

Plaintiffs are students who say the federal government has unlawfully coerced Columbia University to suppress their protected speech. They claim that the government investigated Columbia and threatened to cut off $400 million in funding to enlist the university in stifling political advocacy the government disfavors.

Shortly after filing their complaint, plaintiffs filed a motion for a temporary restraining order. Among other things, the motion seeks to prohibit the government from terminating Columbia's funding and to block Columbia from turning over any student records to Congress or taking the steps it announced two weeks ago to combat antisemitism on campus.

Judge Subramanian noted that plaintiffs may have a sound claim on the substance:

If plaintiffs can overcome the hurdles defendants raise, this case raises serious questions as to whether two branches of government violated the First Amendment by leveraging the "'threat of invoking legal sanctions and other means of coercion … to achieve the suppression' of disfavored speech." NRA v. Vullo (2024) (quoting Bantam Books, Inc. v. Sullivan (1963)).

But he declined to issue a TRO in favor of plaintiffs:

But as plaintiffs all but conceded at last week's hearing, the current complaint and motion papers fail to address some threshold requirements they need to satisfy to obtain this wide-ranging relief.

For example, plaintiffs' submissions don't address their standing to challenge the government's March 13, 2025 letter threatening funding cuts or Columbia's response announcing measures to curb antisemitism. Plaintiffs don't address their risk of irreparable harm from those measures either. On standing, "[a] plaintiff must allege something more than an abstract, subjective fear that his rights are chilled in order to establish a case or controversy." "But a real and imminent fear of such chilling is enough." And to show irreparable harm "in instances where a plaintiff alleges injury from a rule or regulation that may only potentially affect speech, the plaintiff must establish a causal link between the injunction sought and the alleged injury, that is, the plaintiff must demonstrate that the injunction will prevent the feared deprivation of free speech rights." … "[T]o establish a cognizable claim founded on the chilling of First Amendment rights, a party must articulate a 'specific present objective harm or a threat of specific future harm'" ….

 

On Columbia's disclosure of student records to Congress, the facts before the Court counsel against interim relief. As to student records turned over before this action was filed, plaintiffs can't enjoin what's already done. Columbia also represents that it scrubbed all personally identifying information from those records. As to any further production of records, Columbia says it doesn't intend to produce any at the present time. And for their part, the Congressional defendants aren't currently asking for any further records.

While there may be a risk that the Congressional defendants will publicize the records Columbia already supplied, these defendants claim immunity under the Constitution's Speech or Debate Clause. See, e.g., Doe v. McMillan (1973) ("Congressmen and their aides are immune from liability for their actions within the legislative sphere, even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes.").

Plaintiffs respond by citing cases holding that subpoenas to third parties may be quashed despite the Speech or Debate Clause's protections. But a motion to quash a subpoena doesn't expose members of Congress to liability; instead, it shields a third party from having to respond to a congressional inquiry. Here, plaintiffs seek relief against the Congressional defendants themselves and the Clause acts as a jurisdictional bar against such requests.

For these reasons, plaintiffs' motion for a temporary restraining order is denied … without prejudice. If plaintiffs can address the threshold issues identified here and in defendants' submissions, they may renew their motion [and may amend their complaint]. In the meantime, to give plaintiffs the opportunity to seek timely relief if necessary, Columbia will be required to notify plaintiffs and the Court thirty days before further student records (or students' identities in records already produced) are furnished to Congress….

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[Josh Blackman] SCOTUS to Inferior Courts: Review TROs That Function As Preliminary Injunctions

[Moreover, challenges to spending belong in the Court of Federal Claim, not in Federal District Court.]

Department of Education v. California sends a clear signal to the lower court: review TROs that function as preliminary injunctions. If there is any reason that Justice Barrett decided to change her position, this might be it.

The majority opinion offers this new standard:

Although the Courts of Appeals generally lack appellate jurisdiction over appeals from TROs, several factors counsel in favor of construing the District Court's order as an appealable preliminary injunction. Among other considerations, the District Court's order carries many of the hallmarks of a preliminary injunction. See Sampson v. Murray, 415 U. S. 61, 87 (1974); Abbott v. Perez, 585 U. S. 579, 594 (2018).

The Court doesn't really explain what those "hallmarks" are. Nor does the Court explain how many of those "hallmarks" are created to cross the threshold from TRO to PI. This sentence will be scrutinized by lawyers, and minimized by inferior court judges.

Justice Kagan seems annoyed that the Court is making this ruling on the emergency docket.

But in my view, nothing about this case demanded our immediate intervention. Rather than make new law on our emergency docket, we should have allowed the dispute to proceed in the ordinary way. I respectfully dissent.

But where else can this ruling be made? If the case is appealed through the normal course, there will be no basis to decide if a TRO should be appealable. The only time to decide this question is now. And so the Court decided.

The Court also signaled, loud and clear, that challenges to spending belong in the Court of Federal Claims. There simply is no jurisdiction in federal district court to hear these cases.

Moreover, the District Court's "basis for issuing the order [is] strongly challenged," as the Government is likely to succeed in showing the District Court lacked jurisdiction to order the payment of money under the APA. Sampson, 415 U. S., at 87. The APA's waiver of sovereign immunity does not apply "if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought." 5 U. S. C. §702. Nor does the waiver apply to claims seeking "money damages." Ibid. True, a district court's jurisdiction "is not barred by the possibility" that an order setting aside an agency's action may result in the disbursement of funds. Bowen v. Massachusetts, 487 U. S. 879, 910 (1988). But, as we have recognized, the APA's limited waiver of immunity does not extend to orders "to enforce a contractual obligation to pay money" along the lines of what the District Court ordered here. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204, 212 (2002). Instead, the Tucker Act grants the Court of Federal Claims jurisdiction over suits based on "any express or implied contract with the United States." 28 U. S. C. §1491(a)(1).

This ruling should quickly knock out many other "spending" cases, and redirect them to the Court of Federal Claims. This is a court most people have never heard of, but will soon become very important. Critically, however, this court will not start issuing injunctions against the government to pay out the money. Rather, the proceedings will be far more deliberate.

Finally, the majority opinion notes that this district court did not issue a bond when it granted an injunction:

As for the remaining stay factors, respondents have not refuted the Government's representation that it is unlikely to recover the grant funds once they are disbursed. No grantee "promised to return withdrawn funds should its grant termination be reinstated," and the District Court declined to impose bond. App. to Application To Vacate Order 15a, 17a. By contrast, the Government compellingly argues that respondents would not suffer irreparable harm while the TRO is stayed.

A recent Op-Ed in the WSJ argues that district courts are required to impose a bond.

The argument is rock solid: Under Rule 65(c) of the Federal Rules of Civil Procedure, a party seeking an injunction needs to put up a bond to cover its costs. These bonds aren't optional. They're mandatory, unless the government is seeking an injunction. That means Judge Boasberg's order, and dozens like it, may not be valid at all. . . .

The Fourth Circuit has made clear that the bond rule isn't discretionary. Only the government may obtain an injunction without posting a bond: "There are no other exceptions." The Third Circuit has characterized the bond as a "condition precedent" to issuing injunctive relief. According to the Fourth Circuit, "failure to require a bond before granting preliminary injunctive relief is reversible error."

These precedents faithfully reflect the plain text of Rule 65(c), which permits courts to issue injunctions or temporary restraining orders "only if" the plaintiffs post bond. They also uphold Congress's unambiguous intent in 1914, when it repealed the discretionary language of the 1911 Judiciary Code and replaced it with a mandatory bond requirement.

Yet activist judges continue to sidestep the rule by setting nominal or de minimis bonds. Courts have some discretion in setting the amount, but it must be "proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined." In practice, that cost is rarely zero—and appellate courts have repeatedly struck down attempts to treat it as such. . . .

The Justice Department should demand that judges require plaintiffs to post bond in every future injunction case. It should move to invalidate existing injunctions where no adequate bond was required. And it should make clear—to judges and the public—that it won't be bound by orders that are themselves invalid because the courts didn't follow the procedure required to issue them. Otherwise, millions more in taxpayer dollars will be drained, and activist judges will continue rewriting policy from the bench—leaving taxpayers to foot the bill.

This might be an issue that lower-court judges should focus on.

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[Josh Blackman] The Shadow Docket on Coney Island

[What will Justice Barrett do next?]

Last month, the Supreme Court by a 5-4 vote refused to block a lower-court order requiring nearly $2 billion in funding through USAID. Today, in Department of Education v. California, the Supreme Court by a 5-4 vote blocked a lower court order requiring about $65 million in funding through the Department of Education. Can these cases be distinguished? Maybe, but the cases seem pretty similar. The rationales the per curiam opinion cites would seem to apply with equal force to the USAID case. If anything, the executive branch should have a freer hand to spend money on foreign policy rather than on domestic matters.

The only member of the Court in the majority for both cases is Justice Amy Coney Barrett. Given this apparent flip-flop, one would expect that Justice Jackson's dissent would call out the inconsistency. But the dissenter holds her fire. This is probably a prudent move, so as not to alienate Justice Barrett. If I had to guess, this Friday-afternoon opinion will be a prelude to Justice Barrett handing President Trump some serious losses. This is not a sea change around Coney Island. The minimal amount of funding for the teachers will quickly be forgotten.

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[Ilya Somin] NCLA Files Lawsuit Challenging Trump's IEEPA Tariffs Against China

[The lawsuit raises nondelegation and major questions doctrine arguments.]

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Yesterday, the New Civil Liberties Alliance, a prominent conservative public interest group, filed a lawsuit challenging Trump's IEEPA tariffs against China. To avoid confusion, I should not these are not the much more sweeping "Liberation Day" tariffs enacted against some 180 nations (also using the IEEPA), which the Liberty Justice Center and I plan to challenge in court. The NCLA lawsuit focuses on the 10% tariff against Chinese imports adopted in February under the theory that it is somehow necessary to combat fentanyl smuggling. Still, their arguments (especially on nondelegation and the major questions doctrine) overlap in some ways with those I have been promoting since February, when Trump first announced IEEPA tariffs against China, Mexico, and Canada in February.

Here is NCLA's description of their case:

Representing  Simplified, a Pensacola-based company owned by entrepreneur Emily Ley, NCLA challenges President Donald Trump's unlawful attempt to require Americans to pay a heavy tariff on all products they import from China. President Trump imposed the tariff by invoking the International Emergency Economic Powers Act (IEEPA). However, this statute authorizes specific emergency actions like imposing sanctions or freezing assets to protect the United States from foreign threats. It does not authorize the President to impose tariffs. In its nearly 50-year history, no other president—including President Trump in his first term—has ever tried to use the IEEPA to impose tariffs. This lawsuit does not quibble with President Trump's declaration of an opioid-related emergency, but it does take issue with his decision to impose tariffs in response, without legal authority to do so.

This China tariff is harmful to Simplified, a company that improves women's lives by selling premium planners and other home management products. Simplified's business depends on importing materials from China, and it already has paid substantial tariffs to purchase goods from China that are not available here. The "emergency" tariff will force it to make higher tariff payments, driving up its costs and thus prices for its customers, and reducing its profits.

Under art. 1, § 8 of the Constitution, Congress has sole authority to control tariffs, which it has done by passing detailed tariff statutes. The President cannot bypass those statutes by invoking "emergency" authority in another statute that does not mention tariffs. His attempt to use the IEEPA this way not only violates the law as written, but it also invites application of the Supreme Court's Major Questions Doctrine, which tells courts not to discern policies of "vast economic and political significance" in a law without explicit congressional authorization. If the IEEPA were held to permit this executive order, then the statute would run afoul of the nondelegation doctrine because it lacks an "intelligible principle" to limit or guide the president's discretion in imposing tariffs.

Reason's Jack Nicastro has a more detailed summary of NCLA's arguments here. For the complaint filed in the case, see here.

I have some differences with NCLA over other issues. But I think they are absolutely right about this case, and I commend them for bringing it.

I believe the Liberation Day tariffs are even more vulnerable on major questions and nondelegation grounds than the February China tariff, because of their vastly greater scope. They are a much bigger (or more "major") question, and also a more egregious example of "delegation run riot," as University of Texas law Prof. Sanford Levinson calls it. We also plan to make some arguments that NCLA did not, such as points related to the wording of the IEEPA (which requires an "unusual and extraordinary threat," as well as the declaration of a national emergency, and arguments that there is no true national emergency here to begin with.

That said, I wish the NCLA and their client every possible success in pursuing this case.

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[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

[VHS rentals, true-crime documentaries, and IT techs in the jury room.]

New on the Short Circuit podcast: Can an AI be an "author" under copyright law?

Your summarist (who has never been an employment lawyer) didn't know that the Equal Protection Clause might constitutionalize protections against a hostile gov't work environment. So color me even more surprised that a drug-court judge's allegedly "creepy" conduct toward a court counselor wouldn't even receive qualified immunity. You learn something new every day! (The First Circuit opinion is here.) New Jersey bars out-of-state wine retailers from shipping to locals unless they open a Jersey storefront and buy from in-state wholesalers. New York wine retailer sues under the dormant Commerce Clause. Third Circuit: The Garden State's rules help it trace booze, recall tainted stock, and bust shady operators. Cheers, Jersey. Does a law that bars people from speaking for pay trigger First Amendment scrutiny? You might think so, and so does the Third Circuit (and so does IJ, which urged this result in an amicus brief). When federal criminal defense lawyers think there are no non-frivolous arguments to be made on appeal, they can file an "Anders brief" saying as much. But the brief has to explain why there aren't any good arguments—a requirement that leads to a really bad day for this Third Circuit attorney, who, after first moving to withdraw and then later filing what he called a "notice of retirement," finally filed an Anders brief that was so "woefully inadequate" that the panel . . . well, it was a bad day. Your summarist (who has never been an oil-and-gas lawyer) didn't know that the Bureau of Ocean Energy Management even exists. The Short Circuit newsletter really is educational! Anyway, the bureau promulgated a rule, about who pays to decommission oil rigs, that the Gulf states sued about. Can the American Petroleum Institute intervene to defend the rule? Fifth Circuit: The feds can do that just fine by themselves. So no. The difficulty in parsing this unpublished Fifth Circuit opinion—in which every judge voted for a different set of outcomes, so the panel majority varies with the defendant officers—probably shouldn't obscure that it's ultimately about whether "[l]ocking [the plaintiff] in a hot prison shower for thirty hours, while ignoring his pleas for food, water, and cleaning supplies, as he passed out next to his own vomit, urine and excrement, clearly violated his Eighth Amendment rights." Great job, Texas. Muslim man in Michigan prison asks for halal meals. He's told to request vegan meals and then maybe later he'll get to move on to halal-compliant meat. But he's denied because a prison official saw him eat some sausages and a bunch of meat-flavored ramen and decided he's not all that religiously serious. Sixth Circuit: And it really doesn't matter because, among other reasons, he can't get damages under RLUIPA. In other Sixth Circuit news, those guys who were put in prison for planning to kidnap the Michigan governor are going to stay in prison. Macomb County, Mich. homeowner fails to pay her property taxes, so the county takes her home, sells it to pay the taxes, and pockets the difference. But wait, didn't both the Michigan Supreme Court and the U.S. Supreme Court say that's a taking? Sixth Circuit: They did, and Michigan has now cleaned up its act, allowing homeowners to make a claim for the excess of a tax sale. Trouble is, this homeowner even then failed to make a claim, waiving the subsequent lawsuit. "How does a case about a dog bite end up in federal court? Diversity jurisdiction." So starts the Sixth Circuit in a surprisingly readable decision about venue, concluding that the dog-bite victim picked the wrong federal court by choosing Kentucky, where he lived, rather than Ohio, where he was bitten. Car is pulled over in Summit County, Ohio, and police ask everyone to get out of the car. One passenger exits, revealing a mason jar of marijuana, a digital scale, a baggie of meth, and a bag with a gun and ammo. Yikes. He pleads guilty to being a felon in possession of a gun. His plea agreement calls for 77–96 months in prison, but his presentence report calls for 110–137 months due to the drugs. He's sentenced to 110 months. Sixth Circuit (unpublished and over a dissent): Shouldn't have enhanced. The record doesn't support the claim that he was trafficking drugs—this could all just be for personal use. After Robert Bork's VHS rental history came to light during his SCOTUS confirmation hearings, Congress passed a law banning the disclosure of such info—and in a way that includes video streamed over the internet, retaining relevance long after the demise of VHS. Does its use of the word "subscriber" extend to people who sign up for non-streaming services associated with streaming platforms and then have their video-viewing data handed over to Facebook? Sixth Circuit (2-1): Sure doesn't. After Robert Bork's VHS rental history came to light during his SCOTUS confirmation hearings, Congress passed a law banning the disclosure of such info—and in a way that includes video streamed over the internet, retaining relevance long after the demise of VHS. Does its use of the word "subscriber" extend to people who sign up for non-streaming services associated with streaming platforms and then have their video-viewing data handed over to Facebook? Seventh Circuit: Sure does. After spending 20 years in prison for murder, wrongfully convicted man wins an $18.75 mil award from the City of Chicago, of which at least $3.75 mil is attorneys' fees and costs. Insurance company (responsible for the city's liability between $15 mil and $20 mil): We insure damages, not fees and costs, so we're not on the hook! Seventh Circuit: Actually, you insure "ultimate net loss" that the city is "legally obligated to pay," so you are indeed on the hook. When natural-gas companies go to federal court to condemn land for pipelines, does state law or federal law control how much money the companies must pay? The Eighth Circuit says federal, which takes a big chunk of attorney fees away from these property owners but in exchange gives the rest of us a big, honking circuit split on this question. Remember that long-running zoning dispute where a church operating on agricultural land sued Maui County, Hawai'i, under RLUIPA? It's back! Ninth Circuit (published): RLUIPA's "substantial burden" test is a legal question for the court, but harmless error because the jury's finding against the church was consistent with the required legal outcome. Ninth Circuit (unpublished): Severs the unconstitutional land-use provision, dismisses the free-exercise challenge, excludes the church's expert, and affirms costs to the county. Your editors have no idea whether there are more requests for post-conviction relief based on newly discovered evidence these days, but they are morally certain that there are more requests where the newly discovered evidence takes the form of streaming true-crime documentaries about the convict's alleged cartel murders, of which this Ninth Circuit opinion is one. During jury deliberations in a Kansas drug-and-gun trial, a court IT tech briefly enters the jury room to help jurors watch a key cellphone video frame by frame. The jury convicts on all counts. Defendant: The IT guy's intrusion violated my Sixth Amendment right to an impartial jury! Tenth Circuit: The court authorized the tech support, so no presumption of prejudice. And no evidence that the IT tech said or did anything to influence the verdict, so no actual prejudice either.

New Case Alert! While the U.S. Supreme Court considers one IJ case about a wrong-house raid, we've launched another—this time, against sheriffs in North Carolina who terrorized an innocent family in a violent midnight raid. Why the raid? Because officers were searching for a suspected thief, whose cell phone pinged in the family's neighborhood. And because the baddie had been seen driving a Nissan sedan, and Alisa Carr had her Nissan sedan parked outside the home she shares with her fiancé, Avery, and their two kids. Did her car have same license plate as the suspect's vehicle? No. The same VIN? No. Was it the same model at least? ::Shuffles feet:: Um … no. Learn more here.

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[Ilya Somin] My New Brennan Center Article on "Sanctuary Policies in a Federal System"

[The article covers state sanctuary policies, their constitutional basis, how they can constrain Trump's mass deportation efforts, and how Trump can try to get around them.]

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Earlier today, the Brennan Center (NYU) published my article on "Sanctuary Policies in a Federal System." It describes what state immigration sanctuary policies are, their constitutional basis, how they might hamper Trump's mass deportation policies, and how he can try to get around them. I also draw parallels with conservative "gun sanctuaries." Here is an excerpt from the introduction:

President Donald Trump's new administration has made a high priority of pursuing mass deportation of undocumented immigrants. It has also stripped hundreds of thousands of legal migrants of status, thus making them eligible for deportation.

If fully implemented, the administration's deportation agenda may consign hundreds of thousands of migrants to poverty, oppression, and sometimes even death in their countries of origin, such as Cubans and Venezuelans fleeing brutal authoritarian socialist regimes. It could also gravely damage the U.S. economy by deporting a large part of its labor force.

Over the last decade, "sanctuary" jurisdictions have become a focus of political and legal controversy. Sanctuary policies are adopted by state and local governments that refuse to aid federal officials in enforcing particular types of federal laws, including immigration restrictions and gun control regulations.

Sanctuary policies have their flaws and limitations, and the Trump administration may be able to use various means to at least partly get around them. But sanctuaries also have strong constitutional grounding and can help mitigate the harmful effects of his immigration policies.

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[Jim Lindgren] Disparate Impact Theory Rejected for DEI, but Embraced for Tariffs

[Tariffs #1: Administration assumes that Trade Deficits are "the sum of all cheating."]

Peter Navarro: "the sum of all cheating"

TARIFFS:

The data that President Trump put out on foreign countries' existing tariffs and non-tariff barriers turns out to be something else entirely, a fact already pointed out by me and others.

Trump's table purports to show "Tariffs Charged to the U.S.A. Including Currency Manipulations and Trade Barriers."  But for most countries with which we have a deficit, it actually presents that country's trade deficit with the US, shown as a percentage of that country's exports to the US.

The Administration is claiming that the trade deficit is the correct measure of the total of all tariffs, currency manipulations, and non-tariff barriers—or as Peter Navarro put it on CNBC—"the sum of all cheating."

In essence, the Administration is adopting disparate impact theory and applying it to tariffs. They are assuming that without tariffs and non-tariff barriers, every country would have balanced trade with every other country—and thus essentially no trade deficits.  Further, if you have a trade deficit with another country, not only is that difference is due to discrimination and cheating, but the trade deficit is the measure of the amount of that cheating.  The country that sells more goods than it buys from another country is the cheater. This is a simple application of disparate impact theory to trade and tariffs.

DEI

In the fields of DEI and affirmative action, disparate impact theory treats any deviation from equal results as strong evidence of discrimination. The "'central assumption' of discrimination testing is that in the absence of discrimination, groups would be randomly distributed." (Lindgren, Measuring Diversity)

The Trump Administration seems to have rejected the theory of disparate impact, at least as a justification for compensatory discrimination in favor of under-represented groups. But it now adopts it for tariffs: treating differences in results as essentially conclusive evidence of cheating and discrimination.

NEXT: Tariffs #2: If running a trade deficit is cheating, then is the US cheating countries like the Netherlands, Australia, and the UK with whom the US runs a trade surplus?

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[Josh Blackman] Will Salerno Replace Chevron?

[Salerno is "unique among these Chevron substitutes, in that the 'no set of circumstances' framework is far more favorable to the government than even Chevron ever was."]

I will grouse a bit more about VanDerStock. If our case was such a loser, it should have been easy enough for the Court to reject all of our arguments, and find the government had the best reading of the statute. That was the upshot of Loper Bright. Instead, for reasons that continue to confound me, Justice Gorsuch of all people decided to extend the Salerno standard to administrative challenges, thus greenlighting for the government a doctrine far more deferential than Chevron. I vigorously disagree with Bostock and McGirt, but understand why Gorsuch did what he did. But for the life of me, I cannot fathom why VanDerStock came out the way it did. Whatever good was done by jettisoning Chevron has now been unraveled.

And you don't have to take my word for it. Will Yeatman and Charles Yates of the Pacific Legal Foundation query if VanDerStock is an "accidental landmark." I didn't realize that DOJ lawyers were already pushing Salerno as a Chevron alternative:

The Salerno standard is another Chevron replacement that has been shopped by the government in the wake of Loper Bright. For example, last year in a challenge brought by Pacific Legal Foundation (where we work) to a 2023 Environmental Protection Agency and Department of the Army Clean Water Act regulation, the Justice Department invoked the "no set of circumstances"standard as a reason for that challenge to fail. Of course, the Salerno approach is unique among these Chevron substitutes, in that the "no set of circumstances" framework is far more favorable to the government than even Chevron ever was.

For practitioners and scholars of administrative law, the crucial concrete result from VanDerStok is that the Court linked APA § 706(C) with facial review. Already, the Justice Department is on the hunt for alternatives to Chevron in a post-Loper world. After VanDerStok, we can expect government lawyers to more freely argue for facial review of an agency's statutory interpretations under the "no set of circumstances" test.

Now, the lower courts have a green light to uphold all manner of regulations, without uttering the shibboleth of Chevron. This test cannot be beat! It is like Lee Optical deference for the APA:

Let's assume, arguendo, a future scenario where the Supreme Court conclusively interprets APA § 706(2)(A) or (C) to require facial review, Salerno-style, for all pre-enforcement challenges. Because this "no set of circumstances" test is nearly impossible to pass, judicial review would be unavailable as an effective matter.  To put it another way, such a reading of § 706 would obviate Abbott Laboratories v. Gardner, the seminal 1967 decision on ripeness that unlocked the door to pre-enforcement review under the APA. This is not so far-fetched a scenario: it is, after all, what happened in VanDerStok, and at least a couple of circuit courts already seem open to the idea.

Is this really what Justice Gorsuch intended? Sure, the Court offered some limits on its majority opinion, but those won't hold for long. Yeatman and Yates doubt that the majority really thought things through:

Given the case's potential fallout, we doubt the VanDerStok majority thought through its holding, despite the sobering dissents. It makes little sense, as Professor Josh Blackman put it at the Volokh Conspiracy, for the Court to "create[] a far more powerful deference doctrine" after just ditching the Chevron doctrine.

I will end where I began. Over the past decade, the legal arguments in favor of Defense Distributed have been scoffed at. Yet, in case after case, the courts have refused to engage with our actual positions. Instead, judges on all sides of the spectrum mischaracterize the record, toy with rules about venue and jurisdiction, disregard our inconvenient arguments, and make up new doctrine. There is just such an irrational fear of people making their own firearms, that even the most ardent opponents of the administrative state will shrug. Again, though we suffered a defeat, I do not feel defeated.

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Stephen Halbrook] Second Amendment Roundup: 9th Circuit Upholds California Magazine Ban (Again)

[The third time isn’t the charm.]

A lot of water has poured over the dam since Judge Roger Benitez of the Southern District of California issued a preliminary injunction in 2017 against enforcement of California's ban on possession of a magazine holding over ten rounds.  Since then, Duncan v. Becerra has been up and down the ladder from the district court to the Ninth Circuit for multiple panel and en banc decisions and then to the Supreme Court, which sent it back for reconsideration in light of Bruen.  After Judge Benitez found that the ban is invalid under Bruen, the Ninth Circuit went directly en banc and for the third time upheld the ban.

"Third time's the charm" means you finally got something right, but here "third time isn't the charm," as the Ninth Circuit has now tripled-down in its resistance to the Second Amendment and to the Supreme Court's holdings.  On March 20, the en banc court issued two opinions, one upholding the ban on the merits, and the other justifying its circumvention of en banc rehearing rules to allow five senior judges from the previous en banc court to participate again.  I won't discuss that second decision here, but suffice it to say that it leaves the strong odor of the appearance of impropriety.

Authoring the majority's opinion on the merits, Senior Judge Susan Graber wrote: "Large-capacity magazines are optional accessories to firearms, and firearms operate as intended without a large-capacity magazine. A large-capacity magazine is thus an accessory or accoutrement, not an 'Arm' in itself. Possession of a large-capacity magazine therefore falls outside the text of the Second Amendment."  But even if the text "encompasses the possession of [such] an optional accessory," its "especially dangerous uses" negate its protection.

The court conceded that "experts estimate that approximately half of privately owned magazines hold more than ten rounds," but claim – against the judgment of those citizens – that such magazines have "almost no utility in the lawful defense of the home."  And such magazines are not even "arms": "At the time of ratification, a clear distinction was recognized between weapons themselves, referred to as 'arms,' and accessories of weaponry, referred to as 'accoutrements.' Common accoutrements included flint, scabbards, holsters, and ammunition containers such as cartridge cases and cartridge boxes."

The majority doesn't seem to know that a flintlock musket would not fire without a flint, meaning that it is an essential part of an arm protected by the Second Amendment.  And speaking of flintlocks, given the majority's imperative that the more inferior the arm, the better, modern repeating arms that fire smokeless cartridges aren't protected because single-shot flintlock firearms are available.  But Heller explicitly rejected that argument.

While claiming that a magazine that holds over ten rounds is not an arm, the majority asserts that a magazine that holds ten or less is an arm because it "is necessary to the ordinary operation" of the firearm "as intended."  Ordinary operation as intended by whom?  This made up distinction could be used to justify a ban on magazines that hold more than two rounds, as that would still allow the semiautomatic function.

Instead of historical analogues per Bruen, the court calls upon "a more nuanced approach" because the case "implicates both unprecedented societal concerns and dramatic technological changes."  That refers to the fact that firearms have developed technologically (Heller said they are still protected) and they have been used in murders (Heller said that was no reason to ban handgun possession by law-abiding persons).  The court cites the usual historical restrictions on lancegays, gunpowder storage, trap guns, Bowie knives, slungshot, and pistols but none of these were bans on mere possession.

Of course, Bruen's language about unprecedented social change is inapplicable to Second Amendment challenges to arm ban laws.  As explained in Professor Mark Smith's Harvard JLPP article "What Part of 'In Common Use' Don't You Understand?":

Bruen noted that, unlike the relatively straightforward analogues in Heller and in Bruen itself, there might be circumstances in "other cases" in which "unprecedented societal concerns or dramatic technological changes may require a more nuanced approach." But this consideration comes into play only when a court is engaged in examining analogues in non-arms-ban cases for which Heller does not provide the binding rule of decision. Bruen acknowledges that in these "other," non-arms-ban cases some questions may require a "more nuanced" approach to the use of historical analogues than the relatively easy questions presented in Heller and Bruen. Because Bruen's discussion of societal concerns and technological changes applies only in non-arms-ban cases, arguments about alleged societal concerns and technological changes are not relevant in arms-ban cases because Heller provides the relevant legal test.

Heller also held that firearms that are in common use for lawful purposes are protected, but the Duncan court pretends not to know what that means.  Despite having recognized above that half of all magazines hold over ten rounds, it faults plaintiffs for supposedly not explaining "why, under their ownership-statistics theory, 176,000 [machineguns nationwide] is insufficient while the somewhat larger, but unknown, number of large-capacity magazines suffices."  Why change the subject to machineguns when, as Judge Bumatay noted in dissent, "more than a hundred million 'large-capacity' magazines exist in the country today."

As a last hurrah, the court suggests that so many Americans own magazines over ten rounds because manufacturers force them to buy them.  Since such magazines are standard on many models, "a consumer who wants to buy those models has no choice regarding whether the weapon will include a magazine that can fire more than ten rounds without reloading."  In reality, why would a consumer want an inferior magazine when a superior one is available? This assertion by a San Francisco court based in the same state as Hollywood is most odd given the frequency of box office bombs like the recent Snow White Disney movie—the point being that American consumers don't buy products they don't want no matter how much money is spent by business on the product.

Next comes the concurrence of Senior Judge Marsha Berzon, joined by five other judges.  Judge Lawrence VanDyke included a video explanation along with his written opinion, which Judge Berzon found improper because opinions must be written and because Judge VanDyke set himself up as an expert.  More on that below.

Judge Patrick Bumatay, joined by three other judges, dissented.  He takes issue with the term "large-capacity magazines," when in fact "magazines holding more than ten rounds are the most common magazines in the country."  This would make magazines holding over ten rounds "standard capacity" magazines." Judge Bumatay finds the ban to be presumptively unconstitutional for the following three reasons:

First, like triggers and barrels, magazines are "arms," which Bruen says "covers modern instruments that facilitate armed self-defense."  They are not "accoutrements," which an 1810 dictionary defined as "habits, equipage, or furniture, of a soldier, such as belts, pouches, cartridge-boxes, saddles, bridles, &c."

Second, "the majority's faux-Solomonic splitting of magazines based on the number of rounds" concedes that those holding ten or fewer rounds are "arms" entitled to Second Amendment protection, but "as soon as you add one more round—poof—the magazine is no longer 'integral' and it disappears from the Second Amendment's ambit. Call this the 'magic bullet' theory of the Ninth Circuit."

Third, the test is not what's strictly "necessary" for self-defense, but what Americans choose to "facilitate armed self-defense."

Next, Judge Bumatay explains why the "common use" factor is tied not to the level of text, but to that of history.  Nothing in the plain text covers common use.  As Joel Alicea explains in "Bruen Was Right," forthcoming in U. Pa. L. Rev., "the common-use test is not about the semantic meaning of the Second Amendment's plain text."  The issue thus becomes whether, per Bruen, a restriction is "consistent with this Nation's historical tradition," which covers whether a firearm is "dangerous and unusual" or "in common use."  There, California has the burden of disproving "common use."  Not only is it indisputable that the banned magazines are in common use, but also none of the historical restrictions cited by California banned mere possession of the items.

Finally, the majority's "more nuanced approach" and the "straightforward," unnuanced approach amount to "interest balancing 101—this time masquerading as respect for the Second Amendment's historical scope."  Here Judge Bumatay inserted a chart showing how little the majority's language in its pre-Bruen and post-Bruen opinions changed.

Judge Lawrence VanDyke's dissent featured a video in which he dissembled several pistols, explaining how each part is an essential component of the firearm.  As for Judge Berzon's attack on the video as improper, the court has long included links to videos in its opinions.  The video here doesn't introduce new facts and instead "unmasks their invented constitutional test as obviously grounded in a factual fantasy."

While the majority concedes that a trigger is an essential part and thus has some Second Amendment protection, its "test" would support a ban on all but the most dumbed-down triggers:

Even something as essential to the firearm as a manufacturer-issued trigger could be considered an unprotected "accessory" under the majority's view because that particular trigger is not essential to the function of the firearm, as it could be swapped out for one with less effective, and therefore less "dangerous," attributes.

Similarly, according to the majority, "a grip or a sighting system is not a protected component of a firearm because those pieces are 'optional components' not strictly necessary to make the gun fire a round."  Since a comfortable grip and sights make a firearm more useful to a criminal, California could ban most grips and all sights.  It could also ban the semi-automatic mechanism and allow citizens to possess only a revolver, a bolt-action, or a single-shot firearm.

The majority's arbitrary conception of what is a "standard" firearm, Judge VanDyke continues, assumes that "there is some Platonic ideal of a firearm, which I guess makes sense if you think judges are the Platonic Guardians of the Second Amendment."  And its historical test is at such a high level of generality that the restrictions struck down in Heller and Bruen would survive, because "lots of historical laws have prohibited dangerous things," and "even the jankiest firearm in the hands of the wrong person is 'especially dangerous.'" (See Professor Smith's Harvard JLPP article "Third Rails of Second Amendment Jurisprudence" concerning how courts can avoid deriving historical principles at too high of a level.)

Judge VanDyke concludes that the Ninth Circuit has "established an even more government-friendly version of the very interest balancing the Supreme Court rejected in Bruen" and the court "once again improves its undefeated record against the Second Amendment."

That won't change unless the Supreme Court reins in the courts of appeal.  For the tenth time, the Court recently relisted two Second Amendment cases for its conference on Friday April 4.  They include Ocean State Tactical v. Rhode Island, which concerns Rhode Island's magazine ban, and , which concerns Maryland's ban on semiautomatic rifles.

The magazine issue is otherwise coming to a head.  On February 26, a cert petition was filed in Hanson v. District of Columbia challenging D.C.'s magazine ban.  West Virginia and 25 other states filed an amici curiae brief in support.

* * *

There is a growing trend for courts to uphold restrictions on the basis that the item in question is not an "arm" at all.  Duncan does that by claiming that a magazine that holds over ten rounds is not a component of an "arm."  A variation of this burden flip is the assertion that to be an "arm," it must be in common use.

Heller stated that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms," and Bruen made clear that the government must show by historical analogues that an item is "dangerous and unusual," which disproves common use.

A recent example of the latter trend is Calce v. City of New York (S.D. N.Y. 2025), which held that plaintiffs did not provide data for the court to conduct a "statistical inquiry" to determine if stun guns and tasers are in common use.  No basis thus existed to find that they are "presumptively protected by the Second Amendment at Step 1 of the analysis, and the Court does not proceed to Step 2." Yet as Heller made clear, it is not the plaintiff's burden to establish "common use" but the government's burden to show an "arm" is not in common use, given that the test is derived from the historical tradition of regulating "dangerous and unusual weapons."

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