Eugene Volokh's Blog, page 129

[Ilya Somin] Why Trump's "Liberation Day" Tariffs are Illegal

[They weren't authorized by Congress and go against the major questions and nondelegation doctrines.]

President Donald Trump holds a graph with the list of "Reciprocal Tariffs" and the countries to which they will be applied, as U.S. Commerce Secretary Howard Lutnick stands nearby. (Andrew Leyden/ZUMAPRESS/Newscom)

 

Yesterday, President Donald Trump announced his gargantuan "Liberation Day" tariffs. They impose 10% tariffs on imports from almost every nation in the world (with the notable exception of Russia), plus additional "reciprocity" tariffs on some 60 additional countries, based on an utterly nonsensical formula that isn't actually about reciprocity at all. If allowed to stand, this will be the biggest trade war since at least the Great Depression (the tariff rates here may actually  be even higher than those of the notorious 1930 Smoot-Hawley Tariff, which greatly exacerbated the Depression), and the biggest tax increase on Americans in decades.

Economists across the political spectrum expect the tariffs to cause great harm. As my George Mason University colleague Tyler Cowen puts it, "[w]e will be moving into a future with higher prices, less product choice, and much weaker foreign alliances….. This is perhaps the worst economic own goal I have seen in my lifetime."

The enormous scale of the new Trump tariffs is at the heart of their illegality. In an earlier post, I explained why Trump's earlier use of the International Emergency Economic Powers Act of 1977 (IEEPA) to impose 25% tariffs on Canada and Mexico is illegal and unconstitutional under the major questions and  nondelegation doctrines. This much larger abuse of the IEEPA is even more clearly illegal.

As GOP Senator Rand Paul put it, in a speech denouncing the new tariffs: "One person in our country wishes to raise taxes. This is contrary to everything our country was founded upon. One person is not allowed to raise taxes. The Constitution forbids it." Exactly so. The Constitution gives Congress the power to impose tariffs, and the President cannot exercise it without, at the very least, having much clearer congressional authorization than exists here.

The IEEPA gives the president authority to impose various types of sanctions in situations where there is "any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat."

In a recent Lawfare article, international economic policy expert Peter Harrell makes a strong case that the IEEPA doesn't authorize tariffs at all. Even if it does, they can only be used if 1) the president legally declares a "national emergency" and 2) the emergency is over an issue that poses "unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States." Neither of these requirements has been met.

The supposed "emergency" here is the existence of bilateral trade deficits with many countries. By its nature, an "emergency" is a sudden, unexpected crisis. There is nothing new about bilateral trade deficits. They have existed for decades. Moreover, as economists across the political spectrum recognize, they are not actually a problem at all. America's bilateral trade deficit with Canada, Mexico, or the European Union is no more problematic than my trade deficit with my local supermarket: I buy thousands of dollars worth of food there every year; they virtually never buy anything from me!.

Even if courts defer to the president's claim that trade deficits qualify as an "emergency," they still don't count as an "unusual and extraordinary threat." There is nothing unusual and extraordinary about them (again, they have existed for decades), nor do they pose any real threat. Vice President J.D. Vance says the administration is trying to reverse a pattern that has gone on for "40 years." If so, there is no emergency here, and no "unusual and extraordinary threat."

In recent years, the Supreme Court has invalidated a number of executive initiatives under the "major questions" doctrine, which  requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast 'economic and political significance.'" If things are unclear, courts must reject the executive's assertion of power.

If Trump's sweeping use of the IEEPA to start the biggest trade war in a century does not qualify as a "major question," I don't know what does. Trump's "Liberation Day" makes even Joe Biden's $400 billion student loan forgiveness plan (which I opposed, and which the Supreme Court rightly invalidated under MQD) seem modest by comparison.

And, it is at the very least, far from clear that the IEEPA authorizes the use of tariffs, that we have an emergency here, or that there is any "unusual and extraordinary threat." If any of these three preconditions are not clearly and unequivocally met, then the major questions doctrine requires the courts to invalidate the tariffs unless and until Congress enacts new legislation clearly authorizing them.

In addition to running afoul of the major questions doctrine, Trump's new IEEPA tariffs also violate constitutional limits on delegation of congressional power to the executive. Even if Congress did clearly authorize these measures, it cannot give away its authority to the president on such an enormous scale. Admittedly, the Supreme Court has long taken a very permissive approach to nondelegation, upholding broad delegations so long as they are based on an "intelligible principle." But, in recent years, beginning with the 2019 Gundy case, several conservative Supreme Court justices have expressed interest in tightening up nondelegation rules.

Moreover, Trump's claims to virtually limitless tariff authority under the IEEPA undermine virtually any constitutional constraints on delegation. If longstanding, perfectly normal, bilateral trade deficits qualify as an "emergency" and as an "unusual and extraordinary threat," the same can be said of virtually any international economic transaction that the president disapproves of for virtually any reason. The president would have the power to impose any level of tariffs on goods or services from any country, pretty much anytime he wants. To borrow a turn of phrase from University of Texas law Prof. Sanford Levinson, this is "delegation run riot." If the courts are going to impose any limits on executive delegation at all, they have to draw the line here.

Finally, it's worth noting the relevance of the longstanding rule of statutory interpretation requiring courts to interpret federal statutes in ways that avoid constitutional problems. As the Supreme Court put it in Crowell v. Benson (1932), "[w]hen the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Here it is obvious that it's "fairly possible" for courts to conclude that the IEEPA doesn't authorize tariffs, that there is no genuine national emergency, or that there is no "unusual and extraordinary threat," or that the Trump administration's interpretation of the law violates the major questions doctrine. Any one of these moves can avoid the need to address the constitutional nondelegation issue.

In sum, Trump's new tariff policy is not only horrifically awful, but also illegal on multiple different grounds.

As I have previously noted, the Liberty Justice Center and I are looking for appropriate plaintiffs to challenge this grave abuse of executive power in court (which LJC will represent on a pro bono basis, with me providing assistance, as needed). We have gotten a number of potentially promising contacts, and are guardedly optimistic we will be able to pursue this issue soon.

 

 

 

 

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[Eugene Volokh] Free Speech Unmuted: Trump's War on Big Law

Jane Bambauer and I discuss President Trump's Executive Orders that target major law firms (such as WilmerHale and Jenner & Block). The Orders target the firms for retaliation based largely on their past support of various left-wing legal causes. Do those Orders violate the firms' (and their clients') Free Speech Clause or Petition Clause rights? Might they also violate the Fifth Amendment's Due Process Clause (in civil cases) and the Sixth Amendment right to counsel (in criminal cases)?

See also our past episodes:

Can Non-Citizens Be Deported For Their Speech? Freedom of the Press, with Floyd Abrams Free Speech, Private Power, and Private Employees Court Upholds TikTok Divestiture Law Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama Protests, Public Pressure Campaigns, Tort Law, and the First Amendment Misinformation: Past, Present, and Future I Know It When I See It: Free Speech and Obscenity Laws Speech and Violence Emergency Podcast: The Supreme Court's Social Media Cases Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky Free Speech On Campus AI and Free Speech Free Speech, Government Persuasion, and Government Coercion Deplatformed: The Supreme Court Hears Social Media Oral Arguments Book Bans – or Are They?

The post Free Speech Unmuted: Trump's War on Big Law appeared first on Reason.com.

[David Post] Judge Ho Dismisses - With Prejudice - the Criminal Case Against NYC Mayor Eric Adams

[The DOJ's rather heavy-handed attempt to coerce an elected municipal official to do its bidding on immigration matters is firmly and properly rejected ]

The district court in SDNY has dismissed the criminal case against NYC Mayor Eric Adams. The dismissal is with prejudice, i.e., the charges cannot be re-filed at a later date; the court rejected the DOJ's attempt to have the case dismissed without prejudice, which would have left the DOJ free to re-instate the charges at any time and for any reason. [The lengthy and quite comprehensive opinion by Judge Ho is available here].

"Everything here smacks of a bargain: dismissal of the Indictment in exchange for immigration policy concessions."

I have put lengthy excerpts from Judge Ho's opinion below.  A brief summary:

First, the court was highly skeptical of DOJ's asserted rationale for dismissing the charges against Adams, calling them "pretextual." But it felt that it was in no position to deny the motion to dismiss in its entirety, because it would then "have no way to compel the government to prosecute [the] case":

"A court cannot force the Department of Justice to prosecute a defendant. That is by design. In our constitutional system of separation of powers, a court's role in a criminal case is to preside over the matter—not to decide whether the defendant should be prosecuted….  Any decision by this Court to deny the Government's Motion to Dismiss would be futile at best, because DOJ could—and, by all indications, unequivocally would—simply refuse to prosecute the case, inevitably resulting in a dismissal after seventy days for violating the Mayor's right to a speedy trial"

However, as to whether the dismissal should be with or without prejudice, the court - correctly[**] - found that dismissing the charges without prejudice, as the DOJ had requested, would "leave Mayor Adams under the specter of reindictment at essentially any time, and for essentially any reason … a sword of Damocles … that would create the unavoidable perception that the Mayor's freedom depends on his ability to carry out the immigration enforcement priorities of the administration, and that he might be more beholden to the demands of the federal government than to the wishes of his own constituents."

It therefore had no real option other than a dismissal with prejudice. 

** Stalwart VC readers may recall the disagreement that erupted on the blog in connection with this case.  My position [see here, here, here, and here] was (and is) that the DOJ's motion to dismiss without prejudice was an outrageous and improper attempt to use the threat of criminal prosecution as a means to pressure a public official into co-operating with federal immigration policies. Two of my co-bloggers, Josh Blackman [see here and here] and Paul Cassell [here and here] disagreed. I think it's fair to say that Judge Ho took my side in the argument.

Here are some excerpts from the excellent opinion by Judge Ho, available here (emphases added):

DOJ's Motion states that dismissal of this case is justified for several reasons, including because "continuing these proceedings would interfere with" the Mayor's ability to govern, thereby threatening "federal immigration initiatives and policies." A critical feature of DOJ's Motion is that it seeks dismissal without prejudice—that is, DOJ seeks to abandon its prosecution of Mayor Adams at this time, while reserving the right to reinitiate the case in the future. DOJ does not seek to end this case once and for all. Rather, its request, if granted, would leave Mayor Adams under the specter of reindictment at essentially any time, and for essentially any reason.

The Court declines, in its limited discretion under Rule 48(a), to endorse that outcome. Instead, it dismisses this case with prejudice—meaning that the Government may not bring the charges in the Indictment against Mayor Adams in the future. In light of DOJ's rationales, dismissing the case without prejudice would create the unavoidable perception that the Mayor's freedom depends on his ability to carry out the immigration enforcement priorities of the administration, and that he might be more beholden to the demands of the federal government than to the wishes of his own constituents. That appearance is inevitable, and it counsels in favor of dismissal with prejudice.

DOJ's first asserted rationale for dismissing this case—that it has been tainted by "appearances of impropriety," — is unsupported by any objective evidence. Rather, the record before the Court indicates that the U.S. Attorney's Office for the Southern District of New York prosecutors who worked on this case followed all appropriate Justice Department guidelines. There is no evidence—zero—that they had any improper motives.

As for the immigration enforcement rationale, to the extent that DOJ suggests that Mayor Adams is unable to assist with immigration enforcement while this case is ongoing, such an assertion is similarly unsubstantiated. … The record does not show that this case has impaired Mayor Adams in his immigration enforcement efforts. Instead, it shows that after DOJ decided to seek dismissal of his case, the Mayor took at least one new immigration-related action consistent with the preferences of the new administration. Everything here smacks of a bargain: dismissal of the Indictment in exchange for immigration policy concessions.

Taking a step back from the particulars of this case, DOJ's immigration enforcement rationale is both unprecedented and breathtaking in its sweep. DOJ cites no examples, and the Court is unable to find any, of the government dismissing charges against an elected official because doing so would enable the official to facilitate federal policy goals. And DOJ's assertion that it has "virtually unreviewable" license to dismiss charges on this basis is disturbing in its breadth, implying that public officials may receive special dispensation if they are compliant with the incumbent administration's policy priorities. That suggestion is fundamentally incompatible with the basic promise of equal justice under law.

Ultimately, however, there are two reasons why these points do not support outright denial of DOJ's Motion to Dismiss Mayor Adams's case. … The more fundamental reason [of the two] is that a court, if it were so inclined, would have no way to compel the government to prosecute a case in circumstances like those presented here. If an individual prosecutor seeks to dismiss a case for improper reasons, a court can deny the motion and send the matter back to the government, which can then reassign the case to another prosecutor. But where, as here, a court has substantive concerns about the reasons for dismissal offered by the Justice Department itself, the court does not have the same option. A court cannot force the Department of Justice to prosecute a defendant. That is by design. In our constitutional system of separation of powers, a court's role in a criminal case is to preside over the matter—not to decide whether the defendant should be prosecuted.

Typically, a dismissal under Rule 48(a) "is without prejudice to the government's right to reindict for the same offense, unless the contrary is expressly stated." But if appropriate in light of the purposes of Rule 48(a), a court can grant the motion on the condition that dismissal be with prejudice—ensuring that the charges, once dropped, cannot be resurrected.

DOJ seeks to terminate the prosecution at this time, but it has confirmed that if its Motion were granted, Mayor Adams could be reindicted on the same charges in the future, with no clear limits on the grounds or timeline for reindictment.

DOJ has represented that it, "in its discretion, may or may not at some point revisit whether these charges are appropriate." The prospect of reindictment therefore hangs like the proverbial Sword of Damocles over the accused.

Here, the effect of dismissal without prejudice is unavoidable: The prospect of re-indictment could create the appearance, if not the reality, that the actions of a public official are being driven by concerns about staying in the good graces of the federal executive, rather than the best interests of his constituents.

The parties offer no good reason why dismissal should be without prejudice.

Whether anyone expressly incanted the precise words that they "would do X in exchange for Y" is not dispositive. As the Second Circuit has explained, "[a]n explicit quid pro quo . . . need not be expressly stated but may be inferred from the official's and the payor's words and actions." United States v. Benjamin, 95 F.4th 60, 67 (2d Cir. 2024); Evans v. United States, 504 U.S. 255, 274 (1992) (Kennedy, J., concurring in part and concurring in the judgment) ("The official and the payor need not state the quid pro quo in express terms, for otherwise the law's effect could be frustrated by knowing winks and nods."

But the disservice to the public interest in this case goes beyond DOJ's reliance on a pretextual rationale. If it is true that DOJ sought to extract a public official's cooperation with the administration's agenda in exchange for dropping a prosecution, that would be "clearly contrary to the public interest," Cowan, 524 F.2d at 513, and a grave betrayal of the public trust, because it would violate norms against using prosecutorial power for political ends.

And even if there were no quid pro quo, the breadth of DOJ's immigration enforcement rationale here is stunning. As DOJ acknowledges, the invocation of this rationale in the context of a public corruption prosecution is without precedent

And despite denying that this case involves a quid pro quo with Mayor Adams, DOJ argues that there would be nothing wrong with the executive branch explicitly conditioning dismissal of charges against a public official in exchange for his support of the administration's policy agenda. See id. at 49:5-7 (arguing that, "even if there was a quid pro quo," it would not affect the validity of the Government's Rule 48(a) Motion)

Ultimately, however, the Court would be overreaching if it attempted to force this prosecution to continue. As noted above, a court is not situated—either in terms of institutional competence, or as a matter of its proper role in our constitutional system—to make an assessment as to whether a prosecution "should" continue. A court's role is to preside over cases, not to determine if a case should be prosecuted.

DOJ's position on this Motion is essentially as follows: the Court should dismiss this prosecution because (1) it is tainted with impropriety; (2) it is detrimental to national security and immigration enforcement; and (3) it was a weak case to begin with—but the Court should also allow DOJ to bring the prosecution back at any time, for essentially any reason. For the reasons stated above, the Court cannot and will not authorize such a result.

The Court cannot order DOJ to continue the prosecution, and it is aware of no authority (outside of the criminal contempt context) that would empower it, as some have urged, to appoint an independent prosecutor. Therefore, any decision by this Court to deny the Government's Motion to Dismiss would be futile at best, because DOJ could—and, by all indications, unequivocally would—simply refuse to prosecute the case, inevitably resulting in a dismissal after seventy days for violating the Mayor's right to a speedy trial.

The Court notes only that it has no authority to require that it continue, and that the remedy for what some amici characterize as an abuse of power cannot be for the Court to arrogate to itself more power than it may properly wield in our system of government.

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[Evan Bernick] The Domicile Dead-End

[Evan Bernick's third in a series of guest-blogging posts on birthright citizenship.]

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Trump's anti-birthright executive order is often described as being targeted at people who enter the country unlawfully. But its scope is broader, closely tracking the anti-birthright "theory" of disgraced, disbarred, and discredited former Chapman University law professor John Eastman. Consistently with Eastman's proposals on the subject, the EO also excludes the children of immigrants who entered the country legally but are not lawful permanent residents—i.e., not green-card holders.

I've spent the last two posts critiquing Kurt Lash's shockingly weak argument that the original meaning of the Citizenship Clause excludes the children of unlawful entrants from citizenship. But not even Lash commits to defending the component of Trump's EO which excludes lawful temporary visitors. The obvious problem with this component from the standpoint of Lash's parental-loyalty-based account of birthright citizenship is that lawful temporary visitors have voluntarily submitted themselves to the sovereign power of the United States, which has authorized their presence within its borders. There's nothing "disloyal" about this that would rebut Lash's crucial presumption in favor of parental loyalty—and thus birthright citizenship.

But the Trump administration's lawyers are making arguments for exclusion, and they are citing articles which they claim to be supportive of their position. They assert the existence of a constitutional requirement that a person be "domiciled" within the United States before their children can be entitled to birthright citizenship. And they contend that neither the children of unlawful entrants nor the children of lawful temporary visitors are domiciled in the United States.

I mean to establish two propositions in this post. First, there is no domicile rule—not as a matter of original public meaning. Second, if there were a domicile rule, it would not categorically exclude the children of unlawful entrants from citizenship. To be faithful to the relevant history, any such rule would entail case-by-case subjective inquiries into the intentions of millions of parents. The EO's exclusion of the children of all unlawful entrants from citizenship could not be sustained.

No Domicile, No Problem

There's nothing in the constitutional text about domicile. Of course, there's nothing in the text about allegiance, and many (though not all—now-Judge James Ho being among the dissenters) scholars of the Citizenship Clause think that allegiance informs the meaning of "subject to the jurisdiction thereof." It's certainly possible that the framers of the latter language intended and/or members of the ratifying public understood "subject to the jurisdiction thereof" to include a requirement that the parents of birthright citizen be domiciled in the United States.

There is, however, an immediate difficulty that I've already discussed in critiquing Lash's account of allegiance. The text grants citizenship at the point of birth, and no one has adduced any persuasive evidence that parental allegiance (or lack thereof) was originally understood to determine a child's citizenship. Any required allegiance would have consisted in the child's obligation (once mature) to comply with the lawmaking, adjudicatory, and enforcement powers of the United States in the ordinary course of their affairs.

One of the striking (derogatory) features of the administration's briefs and Lash's article is selective citation. I'm thinking in particular of the citation of Mark Shawhan's 10-page student comment suggesting the possibility of a domicile requirement, based primarily on a statement made by Senator Lyman Trumbull about the Civil Rights Act of 1866. Speaking of that statute—a precursor to the Citizenship Clause—Trumbull claimed that a guarantee that "[a]ll persons born or naturalized in the United States, and subject to no foreign power, excluding Indians not taxed" declared the citizenship of "'all persons' born of parents domiciled in the United States." Of course, the Citizenship Clause substituted "subject to the jurisdiction thereof" for "subject to no foreign power, excluding Indians not taxed." But Shawhan proceeds on the assumption that Congress in framing the Citizenship Clause "understood that language to be more precisely describing, not substantively altering" the CRA's set of exclusions from birthright citizenship. And if that's right, parental domicile might determine access to birthright citizenship.

This was not, however, Shawhan's last word on the subject. Several years later, in a full-fledged journal article (uncited by either the administration or Lash), he provided an account of the original public meaning of the Citizenship Clause which lacked any domicile requirement. This article mentions domicile twice, once in a footnote which references his student comment. The reason for the lack of emphasis is simple: Trumbull's statement appeared in a private letter to President Andrew Johnson, the content of which never seems to have surfaced elsewhere. It's not the stuff of public meaning, because the public never saw it!

Indeed, it would have been impossible for Trumbull to insist—as he did—during the framing of the Citizenship Clause that the children of Chinese nationals would be citizens at birth and be understood to be suggesting a domicile requirement. The senators involved in the widely publicized exchange which inspired Trumbull to state that these children would "undoubtedly" be citizens knew well that Chinese nationals often had no intentions to permanently reside in the United States. Outside of scattered remarks best interpreted as references to an uncontroversial exception for the children of diplomats, the closest thing to a public endorsement of a domicile requirement is Ohio Representative John Bingham's assertion that "[a]ll free persons born and domiciled within the jurisdiction of the United States, are citizens of the United States from birth." It suffices to say that this statement was made eleven years before the framing of the Fourteenth Amendment and that Bingham never specified his belief that domicile was a condition of citizenship, either at the time or during discussions of the 1866 CRA or the Citizenship Clause.

Anti-birthrighters have seized on Justice Joseph Story's suggestion in his 1839 Commentaries on the Conflict of Laws that birthright citizenship "should not apply to the children of parents, who were …. who were abiding there for temporary purposes, as for health, or curiosity, or occasional business." But Story was not describing existing law; he was recommending a change in it. He acknowledged that this requirement was not "universally established" across the nations that he was surveying, and did not suggest that it was the general rule in the United States. In Lynch v. Clarke (1844), the only antebellum case adjudicating the citizenship of a child of temporary visitors, Vice-Chancellor Sandford of the New York Court of Chancery determined that it was not, writing that "[t]he rule contended for [by Story] is one confined to countries which derived their jurisprudence from the civil law." He held in favor of citizenship.

It's been claimed that people who voluntarily enter the country unlawfully cannot be domiciled because domicile requires legal residence. But Amanda Frost has shown how Republican commitments to birthright citizenship were shaped by the abolitionist push to establish birthright freedom. Birthright freedom meant that the children of enslaved people who unlawfully crossed borders into free states were entitled to freedom, even though their parents could be removed and re-enslaved. Any domicile requirement that conditioned birthright citizenship on lawful entry into a jurisdiction would be directly contrary to the basic premise of birthright freedom: the status of children in a jurisdiction where they are born does not turn upon whether their parents arrived in that jurisdiction legally.

Most importantly, any domicile requirement would leave us with a Citizenship Clause that is incapable of performing a very basic and uncontroversial function: that of nullifying Dred Scott. The Fourteenth Amendment makes birthright citizens of the children of formerly enslaved people. And yet it would be outrageous to suggest that enslaved people who were kidnapped and forced into the country illegally were "domiciled" in the United States.

Think about it. As Shawhan explains, in antebellum law U.S. domicile required "U.S. residence and the intention that it be permanent." Enslaved people imported into the country as property obviously had no desire to reside in the United States, much less do so permanently. It's unfathomable that anyone could have understood the Citizenship Clause to impose a requirement that would deny birthright citizenship to its primary beneficiaries.

If Domicile, Then Problems

Suppose, counterfactually, that there exists a domicile requirement. Here again, the authorities upon which anti-birthrighters rely embarrass them. If the Citizenship Clause were to confer birthright citizenship only upon those lawfully domiciled in the United State, the EO would still be unconstitutional. Further, ascertaining the birthright citizenship of millions of children would be a logistical nightmare—perhaps even by anti-birthright lights.

Several anti-birthrighters have suggested that the foundational birthright citizenship precedent, United States v. Wong Kim Ark (1898), need not be overruled to exclude the children of unlawful entrants from citizenship. They point out that the Court mentioned several times that Wong Kim Ark's parents were "domiciled" in the United States. A couple of them have urged that the Court answered only the question whether children born to lawful permanent residents were birthright citizens.

One might as well observe that the Court mentioned several times that Wong Kim Ark's parents were Chinese nationals and contend that the Court answered only the question whether children born to Chinese nationals were birthright citizens. The concept "lawful permanent resident" didn't exist in 1898, and the Court made plain that its decision turned on an understanding of English common law that drew no such distinctions. And as Margaret Stock and Nahal Kazemi detail in a devastating critique of Eastman that was published in his "home" law review, domicile in the nineteenth century just wasn't the same thing as lawful permanent residence in 2025.

Let's look again at anti-birthrighters' favorite antebellum treatise, Justice Story's Commentaries on the Conflict of Laws. Story's defined "domicile" as a place "in which [a person's] habitation is fixed without any present intention of removing therefrom." If domicile required only fixed habitation and intention to remain, there is no basis for deriving from references to Wong Kim Ark's parents being "domiciled" a limitation on the Court's holding to green-card holders.

Indeed, although the administration cites Shawhan's 10-page domicile comment (as distinguished, again, from his 40-page originalist article rejecting any domicile requirement) Shawhan positioned the comment as a refutation of anti-birthrighters who reject citizenship for the children of unlawful entrants. Shawhan's specific targets included "consensualists" like Eastman, for whom "subject to the jurisdiction thereof" requires mutual consent on the part of the parents of the would-be citizen and the political community—on the part of the parent, to exclusive loyalty to the United States; on the part of the political community, to the parent's status and presence. Shawhan could scarcely have been more explicit that no such consent was necessary for domicile: "[A]s of 1866, the requirements for domicile were solely residence and the intention that it be permanent. Domicile was neither mediated nor restricted by state or federal law and could arise irrespective of governmental consent."

Countless people who enter the country unlawfully do so because they want to stay. The possibility of deportation does not change that; to think otherwise is to mistake motivation for expectation. Only motivation—the desire to remain in a place—matters for domicile. The mind reels at the logistical difficulties entailed in trying to determine whether any given unlawful entrant both resides and desires to remain in the United States. But that is exactly what would be required to ascertain the citizenship of millions of children, were we to read a domicile requirement into the Citizenship Clause with minimal fidelity to the relevant history. Why would anyone want to do that?

Fortunately, we need not and indeed cannot do it, consistently with the original public meaning of the constitutional text. Like so many other suggestions from anti-birthrighters, the domicile requirement is unwelcome. It should not inhabit our constitutional law, even temporarily.

The post The Domicile Dead-End appeared first on Reason.com.

[Eugene Volokh] Former Trump Advisor's Libel Lawsuit Against Retired Mixed Martial Arts Fighter Can Go Forward

From Judge Jessica Clarke's opinion Monday in Delgado v. Sonnen (S.D.N.Y.):

Plaintiff Arlene Delgado is a lawyer and former senior advisor to Donald Trump's 2016 presidential campaign. Plaintiff filed this action on March 1, 2024 alleging that Defendant Chael Sonnen, a retired mixed martial arts fighter who previously competed in the Ultimate Fighting Championship ("UFC"), defamed her while he was a guest on a podcast called Flagrant…. Plaintiff alleges that during Flagrant's March 7, 2023 podcast episode, Defendant Sonnen made false and defamatory remarks regarding Plaintiff's educational background and employment, and falsely claimed she "stalked" Sonnen such that she was banned from UFC venues. Below are Sonnen's statements in full context:

A President of the United States, in their absolute inner circle, had a phony, and I knew the phony. And I knew the phony because the phony had come after me and it got all the way to the chief legal officer of the Ultimate Fighting Championship that had to put a notice at every venue that we went to, to ban this person who was stalking me, and that person was on the inner circle of a President [elect] of the United States. So I have to reach to the president, of which I don't know, to let them know that this human being is not who they're claiming they are, and they're getting ready to set you up. Not to mention, you're going to look like a fool when it comes out that this person is not named, does not have the title, and did not go to the school that you're running around Hannity and Colmes and telling them that they are. And I did. I got it to the president who removed this person ….

Delgado sued, and the court concluded that some of her claims could survive defendants' motion to dismiss:

First, Sonnen repeats his argument that the nature and tone of the Flagrant podcast makes clear that reasonable listeners would not have taken his statements to be factual. In particular, he reiterates that the tone of the podcast is comedic, jocular, filled with emotionally charged language, and not to be taken seriously. But the R&R correctly concluded that the podcast episode at issue contained a mix of overtly serious and hyperbolic commentary. Moreover, the R&R also correctly noted that Sonnen delivered the alleged defamatory statements in an "unremarkable tone," prefaced the statements with hesitation, and that referred to himself as a "scumbag." This would suggest, to a reasonable listener, that what Sonnen was about to say was meant to be kept confidential, not that it was false.

Second, Sonnen objects to the R&R's finding of actual malice, arguing that the Amended Complaint has not met the "high standard" required. But the R&R correctly found, and the Court adopts the conclusion, that the Amended Complaint plausibly alleges Sonnen knew of the falsity of these statements, given (1) Plaintiff confirmed she went to Harvard the first time they conversed; (2) Sonnen referred to her as "Harvard" throughout their friendship; and (3) Sonnen and Plaintiff had an amicable relationship for a not insignificant period of time.

Sonnen next objects to the R&R's denial of the motion to dismiss by arguing the alleged statements do not constitute defamation per se. Here, again, the Court finds the R&R to be well grounded in fact in law, because a statement that a lawyer did not actually go to law school or receive their degree would certainly injure their professional reputation. Similarly, assertions that someone is a "stalker" (i.e., that they committed a crime) also qualifies for per se defamation.

Still, Sonnen tries to object that Plaintiff suffered no special damages because "[w]here someone attends school is not relevant to their ability to engage in a profess[ion] or trade" and that "[t]here are countless people in this [c]ountry that did not attend Harvard." This argument can only be characterized as unserious: of course, the harm to Plaintiff lies not in a misstatement of the caliber of the school she attended, but the implication that she lied about having gone to Harvard, or any law school, at all. In other words, the damage lies in the suggestion that Plaintiff purportedly misrepresented her experience and credentials, which would lead a reasonable person to see her as a fraud or as not credible….

The Court finds that Podcast Defendants' [objections] lack merit for similar reasons. Podcast Defendants first object to the R&R's conclusion that "phony," as used in the context and in conjunction with Plaintiff's identifying information, qualifies as defamatory. According to Podcast Defendants, "phony" is a statement of opinion, not provable fact, and does not become provable "merely because that opinion was stated alongside allegedly factual statements about Delgado's name or academic credentials." The Court disagrees …. [A] reasonable listener would have understood Sonnen to be claiming Plaintiff is a "phony" with respect to the specific facts mentioned: her credentials and education….

The Court rejects Podcast Defendants' remaining objections regarding actual malice and whether "stalking" can be defamatory. Regarding the former objection, … [there were] sufficient factual allegations giving rise to the requisite inference, such as the decision to censor the name Sonnen used, and a failure to investigate the statements despite what Podcast Defendants insist was clear skepticism and non-belief by the podcast participants. And as to the latter, … in the context of Sonnen's full statement, which included the assertion that Plaintiff had been banned from entering UFC venues, it could indicate to a reasonable listener she had in fact been stalking Sonnen….

[T]he Court agrees with Plaintiff that Sonnen's statement she was banned from the UFC could be considered defamatory in context. The R&R correctly concluded that the term "phony" "alone may not be libel per se, [but] in the context of this case it is appropriately grouped with the other statements" that Plaintiff "was not using her real name, did not have a law degree, and did not graduate as claimed from Harvard Law." … [And] just as "phony" could be deemed as defamatory in its context, so too can the statement that Plaintiff was banned from UFC venues. Sonnen stated, in relevant part, "I knew the phony because the phony had come after me and it got all the way to the chief legal officer of the Ultimate Fighting Championship that had to put a notice at every venue that we went to, to ban this person who was stalking me …." Here, in context, a reasonable listener could believe Plaintiff had been banned from UFC venues because of the alleged stalking, and an individual being "banned" for committing what the R&R correctly recognized as a serious crime can suffice to establish libel per se….

The court also concludes that plaintiff was a limited purpose public figure, because of "her work on the 2016 Trump campaign, frequent media and primetime appearances, and public travels with Donald Trump." That will be relevant at later stages in the proceedings.

The post Former Trump Advisor's Libel Lawsuit Against Retired Mixed Martial Arts Fighter Can Go Forward appeared first on Reason.com.

[Eugene Volokh] Law Professors' Amicus Brief Supporting the Perkins Coie Law Firm in Challenge to Executive Order

The brief, just filed yesterday in district court is here; I was pleased to be one of the very many signers. Here's the Summary of Argument:

The President's Order is a self-declared act of retribution that targets a law firm for representing clients and causes the President disfavors. In inflicting this retribution, the Order contradicts centuries of precedent safeguarding free speech, the right of association, and the right to petition. These precedents establish that the First Amendment "prohibits government officials from 'relying on the threat of invoking legal sanctions and other means of coercion … to achieve the suppression' of disfavored speech." Nat'l Rifle Ass'n v. Vullo, 602 U.S. 175, 176 (2024) (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963)). Targeting Perkins Coie for representing clients and espousing views the President dislikes is viewpoint discrimination, plain and simple.

The Order violates the Fifth and Sixth Amendments as well. The Fifth and Sixth Amendments were designed to check executive power and to ensure a meaningful way to assert rights before a judicial authority. Powell v. Alabama, 287 U.S. 45, 61, 64–65 (1932). Forcing lawyers to bend to the preferences of federal officials robs clients of their right to counsel and introduces the very type of government interference in the administration of justice the Founders acted to prevent.

Finally, the Order threatens the rule of law. If the Order stands, it will be open season on lawyers who have dared to take on clients or causes the President or other officials don't like. This is no hypothetical threat. In the run-up to the election, the President posted on Truth Social that "WHEN I WIN, those people that CHEATED will be prosecuted to the fullest extent of the Law …. Please beware that this legal exposure extends to Lawyers …." Trump Threatens Long Prison Sentences for Those Who 'Cheat' in the Election if He Wins, PBS News (Sept. 8, 2024). More recently, the President has pledged that Perkins Coie is merely among the first of "a lot of law firms that we're going to be going after." Erin Mulvaney & C. Ryan Barber, Fear of Trump Has Elite Law Firms in Retreat, Wall St. J. (Mar. 9, 2025) (quoting President Trump).

Indeed, since the Order at issue here, the President has issued three more Executive Orders targeting Paul, Weiss, Rifkind, Wharton & Garrison; Jenner & Block; and WilmerHale, all leading law firms. See Exec. Order No. 14237, 90 Fed. Reg. 13,039 (Mar. 14, 2025) (targeting Paul Weiss); Exec. Order No. 14246, 90 Fed. Reg. 13,997 (Mar. 25, 2025) (targeting Jenner & Block); Exec. Order, Addressing Risks from WilmerHale (Mar. 27, 2025). And, one of those firms caved to the President's pressure, donating what the President described as "$40 million in pro bono legal services over the course of President Trump's term to support the Administration's initiatives" in exchange for the Order's revocation. Ali Abbas Ahmadi, Trump Rescinds Order Targeting Law Firm After It Makes $40m Promise, BBC (Mar. 21, 2025) (quoting the President's Truth Social post); see also Exec. Order No. 14244, 90 Fed. Reg. 13,685 (Mar. 21, 2025) (revoking Executive Order targeting Paul Weiss).

The impact of the Order reverberates far beyond the particular firm that is targeted. Going forward, a lawyer or law firm that is asked to represent a client on a matter that is likely to trigger the President's ire will have to weigh whether they are willing to be placed on the President's target list—and lose the business such a placement entails. They must also ask whether taking on a client of this sort, and whether zealously advocating on that client's behalf, will hurt other existing clients to whom ethical duties are owed. The Executive branch has no constitutional authority to use executive orders as a cudgel to beat the American legal system into submission.

Beyond the impact on clients and lawyers, orders of this type threaten the integrity of the judicial process, including the core role of judicial review. That anchor of our constitutional system cannot function when one person—regardless of his position—is empowered to threaten and punish lawyers for zealously representing their clients in court. "The Government of the United States has been emphatically termed a government of laws, and not of men." Marbury v. Madison, 5 U.S. 137, 163 (1803). Let it not "cease to deserve this high appellation." Id.

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[Josh Blackman] Today in Supreme Court History: April 3, 1962

4/3/1962: Engel v. Vitale argued.

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Josh Blackman] White Lion Reverses Fifth Circuit Again By Narrowly Reading Record And Question Presented

[It is very easy to reverse a court when you exclude virtually every argument from consideration.]

Yesterday, I expressed frustration how the Court narrowly construed, and indeed reimagined, the record in Bondi v. VanDerStock. Worse still, the Court applied Salerno to reject a facial challenge to a regulation. This move amply rehabilitates Chevron. And why did the Court do this? In my jaundiced view, the Justices were looking for a narrow way to reverse the Fifth Circuit.

Another day, another reversal of the Fifth Circuit. This time, the Court unanimously reversed the en banc Fifth Circuit in FDA v. Wages and White Lion Investments, LLC. Justice Alito's majority opinion is striking in how narrowly it reads the record and the question presented.

For example, Justice Alito's opinion states:

In a footnote, the en banc majority also suggested thatthe FDA had violated a provision of the TCA's notice-and-comment requirements, see 21 U. S. C. §§387g(c)–(d), by imposing a "de facto ban on flavored e-cigarettes" through mass adjudicatory denials, 90 F. 4th, at 384, n. 5.

Suggested? Here is the footnote from Judge Oldham's en banc majority opinion:

FDA's categorical ban has other statutory problems. For example, the TCA states that FDA must follow notice-and-comment procedures before adopting a "tobacco product standard." See 21 U.S.C. § 387g(c)–(d). And Congress specifically called a ban on tobacco flavors a "tobacco product standard." See id. § 387g(a)(1)(A) (referring to tobacco flavors, "including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke"); see also id. § 387g(a)(2) (cross-referencing noticeand- comment obligation to revise flavor standards). FDA unquestionably failed to follow § 387g's notice-and-comment obligations before imposing its de facto ban on flavored ecigarettes.

This is not a suggestion. It seems like a definitive statement of illegality. Is there really some new rule now that an issue not properly preserved unless it is raised in the body of an opinion? Or is this only a rule for circuits abutting the Gulf of America? It does seem different rules apply to the Fifth Circuit.

Justice Alito further argues that the notice-and-comment issue is only "touched on" in the Respondents' brief:

The question we agreed to decide is whether the FDA acted arbitrarily and capriciously in denying respondents' applications for premarket approval of their tobacco products. See Pet. for Cert. I. But before tackling that question, we briefly address as a preliminary matter an argument that is touched on in respondents' brief: namely, that either the APA or the TCA required the FDA to use notice-and-comment rulemaking to set out the requirements that must be met in a premarket tobacco product application.

There is an entire free-standing section in the Table of Contents, and two full pages of the brief (pp. 47-49), focusing on the notice-and-comment issue. What the heck does it take to squarely raise an issue?

Justice Alito repeats that the Fifth Circuit only touched on this issue in a "short footnote"--as if the length of a footnote matters:

But their brief also suggests that the FDA's decision to issue denials based on standards developed in adjudication violated other provisions of the APA and TCA that, they claim, required notice-and-comment rulemaking. See Brief for Respondents47–49, and n. 33. This echoes an argument the Court ofAppeals made in a short footnote. See 90 F. 4th, at 384, n. 5 (citing 21 U. S. C. §§387g(a)(1)(A), (a)(2), (c)–(d)).

But, the Court will not address that issue:

We did not grant certiorari on that question, and without adequate briefing, it would not be prudent to decide it here.See Anza v. Ideal Steel Supply Corp., 547 U. S. 451, 461 (2006). Accordingly, we do not reach that question and express no view on its merits.

There is a malleable standard here. If an issue is fairly encompassed within the question presented, the Court can decide it. Here, the Court chooses not to decide the issue.

There is another malleable standard: the Court can affirm on alternate grounds. Justice Alito identifies several such grounds:

3Respondents' amici offer numerous alternative grounds for affirmance. Three of these arguments are based on the Constitution: (1) that the TCA unconstitutionally delegated lawmaking power to the FDA with respect to, among other things, the necessary contents of a premarket tobacco product application, see Brief for Taxpayers Protection Alliance as Amicus Curiae 7–8; (2) that the relevant provisions of the TCA are unconstitutionally vague, see id., at 6–8; and (3) that respondents weredenied due process, see Brief for Washington Legal Foundation as Amicus Curiae 8–11; Brief for Thirteen Members of Congress et al. as Amici Curiae 13–16. Some amici also argue that the FDA violated our "majorquestions" doctrine. See, e.g., Brief for Vaping Industry Stakeholders as Amici Curiae 30–34; Brief for Thirteen Members of Congress et al. as Amici Curiae 6–13.

But, once again, these issues were not presented by the Respondents, so they will not be addressed:

Although these issues have a bearing on what appears to have been the Court of Appeals' animating concern—i.e., that the FDA did not give respondents and other applicants fair and accurate notice regarding what it would insist that an application contain—these arguments falloutside the scope of the question presented, were not passed on below,and were not pressed in respondents' brief. We therefore decline to reach them. See, e.g., Atlantic Marine Constr. Co. v. United States Dist. Court for Western Dist. of Tex., 571 U. S. 49, 61 (2013). And our opinion should not be read to suggest any view on their merits.

I'd have to review more carefully, but it may have been a strategic error on the part of the Respondents here. How do you not mention the major question doctrine? Everything is a major question now!

The Court also declines to address the due process issue:

At one point, however, respondents seem to suggest that the FDA violated their due-process rights simply because it failed to provide clearnotice before it denied their applications and thus effectively put themout of business. See Brief for Respondents 44. But the freestanding due-process question to which the respondents fleetingly refer lies outside the question on which we granted review and is not well developed in their brief. We therefore decline to decide it. See Anza v. Ideal Steel Supply Corp., 547 U. S. 451, 461 (2006).

The Court also refuses to consider whether the Fifth Circuit was correct about whether the FDA erred.

As to the failure to consider marketing plans, the FDA does not seek review of the Fifth Circuit's finding of error. See Brief for Petitioner 31. Rather, it asks us to clarify the harmless-error rule and remand for application of the proper standard. See id., at 38. We agree withthe FDA that that is the appropriate course of action.

The Court notes another conflict that has existed since the time of Henry Friendly. The Court won't resolve that dispute, other than to say that the Fifth Circuit erred.

There is thus obviously tension between Calcutt and Sanders, and neither decision sought to harmonize the remand and harmless-error rules. Calcutt made no reference to the APA's prejudicial-error provision, and Sanders did not discuss the remand rule or even cite Chenery. Commentators have long puzzled over this tension andproposed ways to bridge the divide. See H. Friendly, Chenery Revisited: Reflections on Reversal and Remand of Administrative Orders, 1969 Duke L. J. 199, 222–225 (Friendly); N. Bagley, Remedial Restraint in Administrative Law, 117 Colum. L. Rev. 253, 302–307 (2017) (Bagley); C. Walker, Against Remedial Restraint in AdministrativeLaw, 117 Colum. L. Rev. Online 106, 115–120 (2017). And the courts of appeals have apparently developed their own practices to reconcile the remand and harmless-error rules.See Bagley 302, n. 328 (citing cases). We will not attempt to provide a complete answer to this vexing problem here. For now, we agree with the FDA that the Fifth Circuit read Calcutt too broadly.

Okay then.

The Court also declined to consider what it deemed the Fifth Circuit's "alternative holding" in a "short discussion."

Despite its holding that Calcutt is the sole exception to the remand rule, the Court of Appeals appears to have issued a brief alternative holding at the very end of its opinion. In that short discussion, the court cited Circuit precedent echoing the rule of Massachusetts Trustees. See 90 F. 4th, at 390 (citing United States v. Johnson, 632 F. 3d 912, 930 (CA5 2011)). But the Court of Appeals applied Massachusetts Trustees at a high level of generality, and absent any analysis applying Massachusetts Trustees to the FDA's failure to consider respondents' marketing plans specifically, we are unable to affirm the decision on that alternative basis.

What is this business of focusing on how short a discussion is? I thought concise writing was a virtue?! An issue raised is an issue raised. The Court is bending over backwards to not address issues raised below.

To be sure, this case was 9-0, but only because virtually every other issue was excluded.

Whenever the Court stresses how narrow the question presented is, you know there is something going on behind the scenes. Some Justices want to address an issue but others do not. Justice Alito, who was assigned the majority, is stuck trying to mediate the dispute. The best he can do is to note these questions were not raised. The implication of these notes is that the issue can be raised in some future case, but almost certainly will not.

Did Chief Justice Roberts assign this opinion to Justice Alito as some kind of punishment, where he would have to reverse his former law clerk? Maybe. Really, not a good week or Judge Oldham, who was also reversed in VanDerStock. Yet another reminder that President Trump could have filled all three of his vacancies from the Lone Star State, but did not.

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[Ilya Somin] Looking for Plaintiffs to Challenge Trump's IEEPA Tariffs in Court

[The Liberty Justice Center and I are looking for appropriate plaintiffs to bring this type of case. LJC (a prominent public interest law firm) can represent them pro bono.]

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I have previously written about how Trump's abusive use of the  International Emergency Economic Powers Act of 1977 (IEEPA) to start a massive trade war can be challenged under the major questions and nondelegation doctrines. See also this analysis by Georgetown law Prof. Jennifer Hillman.

The Liberty Justice Center, a prominent public interest law firm with extensive experience litigating economic liberties issues, is looking for an appropriate plaintiff (or group of plaintiffs) to file this kind of case. They can provide representation pro bono, for the right type of client. LJC has litigated and won many important cases related to economic freedom, most notably Janus v. AFSCME (2018), a major Supreme Court decision vindicating the rights of public employees to be free of mandatory union dues.  I myself will assist LJC, as may be needed - also on a pro bono basis.

LJC Senior Counsel Jeffrey Schwab has authorized me to post this description of the types of plaintiffs they are looking for:

I think the ideal client would be a privately-held company affected by the tariffs that imports materials directly from one of the countries subject to the tariffs imposed by Trump under the IEEPA. The company doesn't have be considered a small business, but since I suspect many small businesses will be disproportionately harmed by the tariffs, that may be an ideal plaintiff. We may also be able to represent a business that imports goods through a third party like a wholesaler. But a business that directly imports goods would be ideal because it would make it easier to get standing. We would also not be opposed to representing more than one plaintiff, but I think the max would be 4 or 5.

Trump has imposed IEEPA tariffs on Canada and Mexico, and tariffs on many more countries are likely imminent. If you are a business owner or representative of one who  fits the description above and wishes to pursue this issue, please contact Jeffrey Schwab, or myself.

 

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