Eugene Volokh's Blog, page 132

[Evan Bernick] 88 Problems for Kurt Lash

[Evan Bernick's first in a series of guest-blogging post: Part I of a critique of an important defense of the constitutionality of Donald Trump's executive order on birthright citizenship.]

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On February 24, 2025, Kurt Lash posted 8 pages on SSRN. It was an introduction to a work-in-progress about the original public meaning of the Citizenship Clause. Lash stated his intention to challenge a scholarly consensus which spans the ideological and methodological spectrum, asserting that "children born in the United States to noncitizen parents who intentionally refuse to comply with the legal requirements for entry into United States" are not constitutionally entitled to citizenship. He gave assurances that although the paper was still in production, it would be "written with all deliberate speed."

We now have 80 more pages. Lash has described the resulting 88 as a "completed article." I expect Lash's paper to be the leading academic defense of the constitutional position articulated in President Trump's January 20, 2025 executive order, "Protecting the Meaning and Value of American Citizenship" ("EO"). The EO purports to end birthright citizenship for the children of people who have entered the country unlawfully ("unlawful entrants"), as well as the children of temporary visitors. Lash's status as one of the leading Fourteenth Amendment scholars in the country compels careful attention to his arguments.

What follows will be overwhelmingly critical. But I want to begin by giving credit where it is due. Lash prudently distances himself from two other kinds of pro-EO arguments that have been advanced in recent months and which I will engage in subsequent posts. The first argument turns on a supposed requirement that the parents of birthright citizens be "domiciled" in the United States. The second turns on a claimed need for reciprocal consent on the part of the parents and the polity: The parents, to allegiance to the sovereign; the sovereign, to the protection of the parents.

Lash acknowledges that requiring reciprocal consent "would seem to exclude children of families kidnapped into slavery and smuggled into the United States in violation of bans on the international slave trade." I agree, and I believe that the requirement should be rejected for that reason alone. Lash allows that it is "possible" that parental domicile is required, but he does not commit to this claim. I think it apparent that there is no domicile requirement and that even if there were, it would not exclude the children of unlawful entrants. Still, I appreciate Lash's careful hedging in the face of what he takes to be "mixed" evidence.

If only this care were evident throughout. Overall, Lash's draft is shockingly unpersuasive, given the reputation for rigor and attention to detail that Lash has earned through prior Fourteenth Amendment scholarship. I am not sure why he decided to post it in its current state, but I mean to show that this decision was unwise.

Problems With Allegiance

Lash's core thesis is admirably straightforward. The Citizenship Clause establishes a strong presumption that any person born within the United States is a citizen of the United States. That presumption cannot be overcome by a child's race, a lack of reciprocal parent-polity consent, or even a parent's criminal conviction. It can, however, be overcome by a demonstration that the child's parent lacks sufficient allegiance to the United States. Parental allegiance determines the child's entitlement to birthright citizenship.

Most scholars of the Citizenship Clause agree that whether one is "subject to the jurisdiction of the United States" is somehow related to one's allegiance to the United States. The conventional wisdom holds that allegiance in the sense meant by Lyman Trumbull, Jacob Howard, and other leading Reconstruction Framers who used the term was a duty imposed by a sovereign power. Whether a person owed allegiance turned on the power that the state was entitled to exercise over them because (in political theory, anyway) it was offering protection for their natural rights. Roughly, if you're protected by the lawmaking, adjudicatory, and enforcement powers of the United States in the ordinary course of things, you're obligated to comply with those powers.

Lash disagrees. He asserts that allegiance "refers to one's loyalty to, or fidelity towards, a sovereign, in return for which the sovereign provides protection." Loyalty to the United States is presumed, but if there is no loyalty, there can be no allegiance. And again, Lash claims that the allegiance of parents is determinative of a child's citizenship status.

All the evidence Lash needs to see why what's wrong with his loyalty-based account is right in front of him, in his own sources. One of the starkest examples is James Kent's Commentaries on American Law, which Lash traces through several editions leading up to the ratification of the Fourteenth Amendment.

Lash observes that Kent insisted upon birth within US territory and within the "allegiance of the United State." But this tells us nothing about what allegiance means. The 1848 edition, cited by Lash for the latter language, asserts that "[t]his is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent." This language appears in all subsequent editions through the ratification of the Fourteenth Amendment.

Lash does not deal convincingly with this language, which is in pronounced tension with his account of allegiance. First, he says it's "not clear" whether Kent wrote it, since he was working on the 1848 edition just before he died. Second, Lash says that it summarizes a decision that was "not representative of a consensus understanding" of its subject matter at the time of the Fourteenth Amendment's framing and ratification. But Kent's death is irrelevant absent evidence that whether Kent or his son wrote it somehow affected its reception. And the second claim is unsubstantiated, resting on at least one premise that is outright false.

The 1848 language summarizes the holding of Lynch v. Clarke, decided in 1844. This appears to be the only antebellum case which adjudicated the citizenship of a child born in the United States to foreign nationals who were temporarily visiting the country. In it, Vice-Chancellor Sandford of the New York Court of Chancery determined that Julia Lynch, a child born in New York of Irish parents, was a citizen of the United States. Sandford described a common-law rule which he asserted "prevailed and was the law … in all the states" and treated "every person born within the dominions and allegiance of the United States, whatever were the situation of his parents" as a "natural born citizen."

Lynch was widely reported as an important decision, cited by Lincoln's Attorney General Edward Bates (twice), and invoked by a leading Republican framer, Ohio Representative William Lawrence, during debate over the Citizenship Clause. Still, Lash tries to cast doubt upon its relevance to the Citizenship Clause. He reports that "as far as I [Lash] can tell" no newspapers "report[ed] Lawrence's attribution."

In fact, several Ohio papers printed Lawrence's remarks. They reported his citation to Lynch; Lawrence's statement that the Citizenship Clause "is only declaratory of what the law is without it"; and his claim that Lynch held that "children born here are citizens without any regard to the political condition or allegiance of their parents." What is striking about Lash's error is how easily I found these papers. "Great case" and "lynch" generated the first, and "political condition or allegiance" the others.

It's also hard to understand why Lash omitted Sandford's extended discussion of one of the few exceptions to birthright citizenship recognized by any antebellum court. This exception allowed people who were loyal to Britain during the Revolutionary War to elect to remain British subjects and thereby exclude their children from U.S. citizenship. Indeed, counsel in Lynch contended for a broadly applicable requirement of parental allegiance, citing the election exception.

Vice-Chancellor Sandford rejected this argument. He wrote that cases involving the "state of allegiance produced by the Revolution" were "anomalous" and could not "with propriety be deemed authorities against well established principles, as applicable to the ordinary questions of alienage and allegiance." Lash omits this discussion entirely, even though it is highly relevant to his own claim that parental allegiance was well-established in antebellum law. Ultimately, we are left not only with a paucity of evidence supporting Lash's concept of allegiance but questions about Lash's reliability as narrator.

Problems With Abolition

Concerns about Lash's reliability are exacerbated by his neglect of abolitionist contributions to the antebellum legal and political landscape. The word "abolitionist" appears once in Lash's essay, and he cites one abolitionist source—what Lash refers to as an 1859 "declaration" by the American Anti-Slavery Society that "citizenship, as the term is used in the Constitution of the United States, is the inevitable consequence of birth and allegiance."

First, it's not a declaration—it's a summary of an opinion given by the Supreme Court of Maine in response to a legislative inquiry about the right of Black people to vote. Second, it's unhelpful to Lash except on the assumption that allegiance means what he thinks it means. In context, the summary is solely concerned with denying that birthright citizenship is "dependent on race or color."

So, what did Lash miss? Despite acknowledging comments by, and occasionally citing, Gerard Magliocca, Lash does not engage Magliocca's pathbreaking work on the development of abolitionist support for Tribal sovereignty. This solidarity, forged in the wake of the genocidal removal of the Cherokee, Muscogee (Creek), Choctaw, Chickasaw, and Seminole Nations from their ancestral lands, shaped Republican support for Native freedom and Republican understanding of Indian law circa 1868, and it informed their decision not to impose birthright citizenship on citizens of Native nations. Republicans spoke of Worcester v. Georgia as the "law of the land" long after the Supreme Court had retreated from Worcester's premise of territory-centered Tribal sovereignty. Tellingly, Lash cites United States v. Rogers, a notoriously racist and anti-Tribal decision written by the author of Dred Scott, as evidence of the state of antebellum law. As Indian law scholar Bethany Berger has shown, this is precisely the kind of antebellum law that Republicans rejected.

Comparably problematic is Lash's omission of the work of Amanda Frost, who has documented how abolitionist struggles shaped an understanding of citizenship that placed little significance on the legality of border crossing. What Frost terms "birthright freedom" was established through legislation and litigation, not only in northern states and in territories governed by the Northwest Ordinance but in a few courts in enslaving states. It entailed that all children born within the borders of free states were automatically free, regardless of the status of their parents. Indeed, the fact that enslaved parents had broken the law by fleeing across state lines did not affect the child's entitlement to freedom, even as the child's mother faced removal. Republicans framed the Citizenship Clause "against a backdrop of antebellum legal rules in which birth within borders granted new status and rights of membership."

I do not mean to suggest that Lash deliberately disregarded abolitionist history or Citizenship Clause scholarship which investigates it in great detail. I do mean to assert that Lash fails to confront scholarship that either contradicts or challenges his account of the Citizenship Clause—including cutting-edge originalist scholarship—or engage scholars from whom he might have learned. He cites Michael Ramsey's authoritative 2020 pro-birthright article but his most substantial engagement with it comes in the form of spotlighting a concession in Lash's favor. He cites Mark Shawhan's 10-page student comment suggesting a possible domicile requirement but not Shawhan's full-length article advancing an original-public-meaning case for expansive birthright citizenship without any such requirement. Lash thanks and cites John Eastman, the disgraced and disbarred architect of a scheme to overturn the 2020 election who has a track record of misrepresentation concerning birthright citizenship. But he doesn't discuss the work of Bethany Berger, who has written on the intersection between Indian law and the Citizenship Clause and has never tried to sabotage the constitutional order.

Problems with "Prima Facie"

Finally, Lash's treatment of the foundational source upon which he relies for the concept of "prima facie citizenship" is unsatisfactory. There is no gainsaying the all-things-considered importance of Lincoln Attorney General Edward Bates's 1862 opinion on citizenship, particularly with respect to abolitionist struggles. And Lash is right to underscore its presence in debates over the Civil Rights Act of 1866, during which Iowa Representative James Wilson praised its "careful and painstaking examination" of Black citizenship and its affirmation that a "free man of color … if born in the United States, is a citizen of the United States." Yet he leaves out and underplays crucial components of Bates's opinion.

Lash briefly discusses an 1821 opinion by James Madison's Attorney General William Wirt in which Wirt denied the citizenship of free people of color in Virginia. Lash touts this as evidence that "to some antebellum legal commentators, the wide-spread denial of equal civil rights constituted evidence that free [B]lack Americans were not 'citizens of the United States.'" But it also expresses an understanding of allegiance that Bates rejected. Indeed, Bates protested that he could scarcely "understand" Wirt's argument that free Black allegiance to Virginia must follow a consensual oath because "if it be true that the oath of allegiance must either create or precede citizenship, then it follows, of necessity, that there can be no natural-born citizens, as the Constitution affirms, because the child must be born before it can take the oath."

Lash does not inform readers about Bates's emphatic rejection of Wirt's account of allegiance. More, he fails to note about Bates's insistence that citizenship "is as original in the child as it was in his parents …. always either born with him or given to him directly by law," even though scholars like Garrett Epps and Michael Shawhan have centered it as evidence of broad birthright citizenship.

What little of Bates's reasoning that Lash does engage does not support his thesis. Bates identifies only one exception to the rule of birthright citizenship beyond the no-longer-relevant exclusions for slavery, color, and race. This is "the small and admitted class of the natural born composed of the children of foreign ministers and the like." Lash seizes on "and the like" and infers that Bates did not mean to be exhaustive. Still, this language goes nowhere near the articulation of a general principle according to which executives in 2025 might be authorized to create new exclusions covering countless children. The limited nature of the one "small … class" of children excepted Bates is yet another unacknowledged problem for Lash.

I'll be blunt: I don't think Lash's thesis can survive his failure to demonstrate the centrality of his concept of allegiance to antebellum law and political practice—at least, not any law or practice that Republicans would have wanted to preserve. But there is much more to say about Lash's draft—in particular, about his treatment of Indian law and his effort to analogize Tribal citizens to unlawful entrants. To preview: the analogy fails, owing to the profound differences between the former and the latter. Lash missed a lot, in ways that will hopefully be instructive to any who venture unaided well beyond the borders of their expertise.

The post 88 Problems for Kurt Lash appeared first on Reason.com.

[Ilya Somin] Evan Bernick, Guest-Blogging About Birthright Citizenship

[Bernick is a leading academic expert on the Fourteenth Amendment.]

The Volokh Conspiracy and I are pleased to welcome guest-blogger Prof. Evan Bernick. He is a law professor at Northern Illinois University, and author of numerous works on constitutional theory and the Fourteenth Amendment. Evan will be guest-blogging about the ongoing debate over the legality of President Trump's executive order denying birthright citizenship to children of undocumented immigrants and immigrants in the US on temporary visas.

Evan is coauthor (with Anthony Michael Kreis and Paul Gowder) of an important forthcoming Cornell Law Review Online article on the birthright citizenship controversy. He is also coauthor (with Randy Barnett) of The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit, one of the leading analyses of the the Fourteenth Amendment.

Interestingly, Evan and Randy are on opposite sides of the current birthright citizenship controversy. See Randy's NY Times op ed (coauthored with Ilan Wurman) offering a partial defense of President Trump's executive order, my critique of it, Barnett and Wurman's response to their critics, and my rejoinder. Evan Bernick and his coauthors critiqued Barnett and Wurman in the forthcoming Cornell Law Review Online article linked above.

I look forward to Evan's posts!

The post Evan Bernick, Guest-Blogging About Birthright Citizenship appeared first on Reason.com.

[Eugene Volokh] How the Government Should Deal with Lawyers' Alleged Bad Behavior: Substance and Procedure

Last week, I posted an excerpt of Paul Clement's arguments as to why the Executive Order targeting the WilmerHale law firm violates the Constitution, and said they struck me as quite correct. (The analysis is similar, I think, with regard to the other Executive Orders targeting law firms.) In response, a reader asked:

With all the hub-bub now around Big Law firms being attacked, it might be nice to see a piece harkening back to the way numerous lawyers and law firms were attacked by the left back when we were representing Trump in 2016 and 2020 and how the profession didn't so much as yawn in our direction about it.

For example, in a WSJ article on March 9, 2025 ("Fear of Trump Has Elite Law Firms in Retreat"), Rep. Jamie Raskin's (D., Md.) was fired up that the Trump administration was singling out law firms that solicited the Steele dossier and which vigorously attacked Trump's own lawyers in 2020. Raskin was a Constitutional law professor before his election to Congress. He was utterly silent when his then Congressional colleague, Bill Pascrell, Jr. (D., NJ.) wrote a letter on November 20, 2020 to the Pennsylvania Disciplinary Board seeking to have [various lawyers] disbarred solely because we represented President Trump in courts across Pennsylvania on mundane election law issues not involving allegations of fraud….

It didn't much seem to matter to anyone back then because we were mostly small firm and solo practitioners under attack. Now that its Big Law getting punched, suddenly everyone's up in arms. Where was the rest of our profession when we were getting hit with both barrels back then?

I think this is an important question; let me offer a tentative and partial answer.

Lawyers are bound by specific professional obligations, and violating them can rightly lead to discipline. Those start with reprimands and financial sanctions, and move up to loss of one's license and therefore one's livelihood. Indeed, some lawyer misconduct may actually be criminal.

Just to give some examples, lawyers aren't allowed to help their clients commit crimes (though of course they are often supposed to help their clients avoid punishment for committing crimes). Lawyers aren't allowed to make misrepresentations to courts. Lawyers aren't allowed to make legally frivolous arguments (though my sense is that making such frivolous arguments very rarely leads to punishment beyond the occasional financial sanction).

Now of course the existence of these disciplinary rules sometimes leads to demands that lawyers be punished for behavior that, viewed objectively, is perfectly legitimate. Disgruntled opponents sometimes make that arguments. Sometimes political opponents do, too. There's a risk that the bar authorities might erroneously punish legitimate behavior, whether because of simple error or political bias. And in any event, often the process is the punishment, even if the accused is ultimately cleared.

Nonetheless, if we are to have any rules governing lawyers' conduct, there needs to be a system to adjudicate claims of misconduct. If people, including government officials, think they've spotted a lawyer misbehaving, they are entitled to call for a bar investigation. If their calls seem to lack legal or factual basis, they can be criticized. If a bar finds misconduct but its explanation is unpersuasive, then it can be criticized.

But all that is part of our system of rule of law, not inherently an interference with it. The disputes also often have to do with contested factual claims (who made what assertions, what they knew at the time, and so on). They have to do with how rules, which are often imprecise, apply to the contested facts. As a result, many observers might have little to say about such allegations, especially before the bar investigates the matter and issues a decision (and sometimes even after).

The Executive Orders targeting the firms, on the other hand, have nothing to do with either the substantive rules that lawyers must follow or the procedures set up for adjudicating disputes about such rules. Consider some of the allegations in the Executive Order targeting WilmerHale:

WilmerHale engages in obvious partisan representations to achieve political ends, supports efforts to discriminate on the basis of race, backs the obstruction of efforts to prevent illegal aliens from committing horrific crimes and trafficking deadly drugs within our borders, and furthers the degradation of the quality of American elections, including by supporting efforts designed to enable noncitizens to vote.

None of that is actually inherently against the established rules governing lawyers. No rules of lawyer conduct forbid partisan representations to achieve political ends. (Many Republican-leaning lawyers do that all the time.) No rules forbid supporting efforts to discriminate on the basis of race; a court may reject an argument in favor of race discrimination, but lawyers are free to make such an argument. Likewise as to lawyers' opposition to enforcement of immigration law or criminal law, or their "supporting efforts designed to enable noncitizens to vote."

The premise of our legal system is that lawyers can take either side in any of these disputes. Indeed, the lawyers' speech and petitioning in such cases are generally protected by the First Amendment, and the government generally may not retaliate against them based on such First-Amendment-protected actions.

The same is basically true, I think, as to most of the allegations in this paragraph:

WilmerHale is also bent on employing lawyers who weaponize the prosecutorial power to upend the democratic process and distort justice. For example, WilmerHale rewarded Robert Mueller and his colleagues—Aaron Zebley, Mueller's "top aide" and "closest associate," and James Quarles—by welcoming them to the firm after they wielded the power of the Federal Government to lead one of the most partisan investigations in American history. Mueller's investigation epitomizes the weaponization of government, yet WilmerHale claimed he "embodies the highest value of our firm and profession." Mueller's "investigation" upended the lives of public servants in my Administration who were summoned before "prosecutors" with the effect of interfering in their ability to fulfill the mandates of my first term agenda. This weaponization of the justice system must not be rewarded, let alone condoned.

But even if you think that the named people actually did violate any prosecutorial obligations in their behavior, it's not up to the President to decide whether as a result these lawyers—or their law firms—should be banned from representing federal contractors (or, under unspecified circumstances, excluded from federal government buildings). We have rules, and for good reason, that (1) clients should have the right to choose which lawyers represent them, unless (2) the courts or the bar authorities (which are ultimately answerable to the courts) find that the lawyers have committed sufficiently serious misconduct.

I've joked that lawyers' true superpower is the power to turn every question into a question about procedure. But there's good sense behind the legal system's obsession with procedure (even if at times that obsession goes too far).

We leave adjudication of claims of lawyer misconduct to the judiciary, and we have rules for how those claims are adjudicated. We don't make the President the decisionmaker on such matters. That's especially sensible when the President is upset with the lawyers because of their behavior in cases involving himself, or his subordinates. But it's also true in other cases as well.

Now, to be sure, the President does have considerable authority to make some decisions about perceived lawyer misbehavior. To take the most obvious example, if he thinks the Attorney General has acted improperly, he doesn't have to wait for a bar investigation to dismiss him. Likewise, the Executive Branch has great authority over security clearances. The questions about possible loss of security clearance for lawyers at the targeted firms are potentially harder precisely because of that.

The President may also have some authority over decisions about which lower-level lawyers to hire or fire, or which law firms to engage on the government's behalf if the government wants private representation. Yet even that authority is constrained by the First Amendment, and probably by the various procedural rules that have been set up to protect government employees and government contractors.

And the Executive Branch doesn't have the same employment relationship with the lawyers who represent federal contractors. The President is not allowed, I think, to just unilaterally decide that some law firms have misbehaved and therefore should be effectively barred from representing federal contractors. And, again, that is especially so when the alleged misbehavior is the firm's taking litigation positions of which the President disapproves.

In any event, the reader asked the question, and I thought I'd offer my answer. I'd love to hear what others think as well.

The post How the Government Should Deal with Lawyers' Alleged Bad Behavior: Substance and Procedure appeared first on Reason.com.

[Eugene Volokh] "The 2024 Presidential Campaign Saw a Massive Disinformation and Misinformation Campaign, …

[which likely helped bring the current administration into power."]

I had the pleasure of attending the very interesting conference on Free Speech in Crisis & the Limits of the First Amendment at Yale Law School on Friday and Saturday; I was invited to participate on the Media Environment panel, for which the description was:

It is widely believed that a profoundly broken media system is responsible for bringing the current administration into power, and for critics, the political crisis it has unleashed. Is this correct? And if so, what is to be done about it? How can public opinion be harnessed to serve constitutional purposes in the new media landscape? How can and should the media system be reformed? And what can free speech law do about any of this?

We were all asked to write up to about 2000 words on our topics, and here was my submission.

[* * *]

The 2024 presidential campaign saw a massive disinformation and misinformation campaign, which likely helped bring the current administration into power. Leading media organizations failed to stop it in time. Indeed, some of them were complicit, through inadequate investigation and perhaps even willful blindness, in the misinformation. We thus face an urgent question, raised by the workshop organizers: "How can and should the media system be reformed?"

I'm speaking, of course, of the campaign to conceal President Biden's mental decline—a campaign that was only conclusively exposed by the June 27, 2024 debate. At that point, little time was left for deciding whether the President should be persuaded to step aside; for the actual persuasion; for the selection of a replacement; and for the replacement's attempt to persuade the people to elect her.

Had the Administration leveled with the public earlier, or had the media exposed the concealment earlier, there would likely have been time for a full primary campaign, in which Democratic voters could have made their choice about whom to run against Donald Trump. Perhaps that candidate would have been more effective than Kamala Harris. Or perhaps the candidate would have still been Harris, but a Harris who was seen as having more legitimacy with the public. "Democracy Dies in Darkness," the Washington Post tells us. It appears that the Democratic Party's prospects died in this particular darkness.

The single most consequential fact of the 2024 Presidential campaign had thus been largely hidden for a long time, including from (and, perhaps unwittingly, by) the media organizations whose job it is to inform us. Indeed, this a fact not just of immense political significance, but also central to national security: If President Biden was indeed cognitively impaired, that bore on his ability to make decisions as President, not just his ability to be re-elected.

When, for instance, Trump and Vance spread unfounded rumors of Haitian immigrants eating cats and dogs, the media rightly blew the whistle. But when some media outlets tried to point out the evidence of Biden's likely incapacity, others didn't pick up on the investigation—and, indeed, sometimes pooh-poohed the investigation.

As late as mid-June 2024, the White House and many of its supporters characterized videos of Biden apparently freezing up and seeming confused as "cheap fake" disinformation created by his enemies. Only Biden's televised debate performance on June 27, 2024 made it impossible to deny there was something badly wrong. It seems likely that many of the supposed "cheap fakes" actually accurately captured Biden's cognitive slippage, especially since the slippage apparently went back a good deal before the debate. And even if some particular videos had indeed been disinformation from his enemies, the fact remains that the media failed to adequately identify the disinformation from his friends. Indeed, isn't it shocking that so many White House reporters appear to have learned thanks only to the nationally televised debate and not to their investigative journalism?

Of course, reaching the truth on this question wasn't easy. Biden insiders apparently tried hard to conceal the facts (that's the disinformation part). And indeed it's not surprising that people who are both personally loyal to a President and rely on the President's success for their ongoing careers would want to conceal such facts. In our fallen world, we can't expect much candor from political insiders. And I expect most journalists sincerely believed the reassurances they were getting from the insiders.

But getting sincerely duped isn't a great professional mark for a journalist. Their job was to dig and find out—before things became evident, not after. Indeed, to the extent that the media's credibility has declined over recent years, such failures of investigation seem likely to only exacerbate this decline.

Undoubtedly, the White House wanted to keep this fact [of Biden's decline] under wraps until Biden was safely over the finish line in November. But media organizations that participated, even unwittingly, in this farce have not only made a subsequent Democratic administration far less likely—they have profoundly undermined their own integrity.

* * *

How could this happen? I hope we will learn more about this in the years to come. A CNN headline the day I write this, discusses a forthcoming book by Jake Tapper and Alex Thompson called "Original Sin: President Biden's Decline, Its Cover-Up, and His Disastrous Choice to Run Again."

But at this point, at least a first cut—informed by our shared knowledge of human nature—is that many in the media likely didn't dig hard because they didn't really wanted to uncover things. It isn't controversial, I think, that most in the mainstream media much preferred President Biden over his challenger, Donald Trump. Indeed, I agree they had good reason to dislike Trump. Certainly Trump himself had done much to stoke that hostility.

"Biden is cognitively impaired" was a standard talking point on the Right. So long as Biden was the nominee, that fact, if demonstrated, would help Trump. (As I've argued, if the fact helped Democrats replace Biden with a better candidate, it might have hurt Trump, but that would have been a less direct chain of causation.) It's human nature to accept stories that fit one's political preferences than to challenge them. A thought experiment: If the sitting President in 2024 had been a Republican—whether Trump or, say, an older Ron DeSantis—would the media have acted the same way they did? Or would they have worked harder, dug deeper, and uncovered the truth earlier?

Yet of course institutions should be designed to counteract the flaws generated by human nature while working within the constraints created by human nature. (That knowledge was old when Madison was young.) This is true of media institutions as well as governmental ones. There need to be mechanisms to keep reporters' and editors' inevitable ideological predilections from turning into ideological blinders and ideological blunders.

Of course, it's much easier to identify the problem than a suitable solution. One can imagine, for instance, newspapers deliberately seeking out reporters and editors with many different ideological beliefs, hoping that colleagues will fill each others' blind spots (or, in collegial conversations, help each other identify their blind spots). But this may be hard to implement; and, as with preferences based on race and sex, preferences based on politics may be challenged as leading to hiring based on ideology rather than merit. (They may also be defended, as with preferences based on race and sex, as a tool for fighting subconscious bias that keeps meritorious candidates from being fairly considered.) Indeed, hiring that considers applicants' ideological beliefs may violate some states' laws that limit employment discrimination based on political ideology or party affiliation, just as hiring that considers applicants' religious beliefs may violate bans on employment discrimination based on religion.

Newspapers might also return to prohibiting reporters and editors from publicly opining on controversial issues. Of course, realistic readers will recognize that reporters may still be biased. But taking a public stand on an issue may increase such bias: If one has publicly endorsed position X, it might become harder to write fairly about evidence that instead tends to support the rival position Y. Few of us like writing something that suggests that we were mistaken in the past, or that our critics can interpret as making such a suggestion.

Again, though, in some jurisdictions such public neutrality rules for newspaper employees may violate state employment statutes. One state court held (by a 5–4 vote) that those statutes themselves violate the First Amendment when applied to newspaper reporters or editors. But in AP v. NLRB (1937), the U.S. Supreme Court held (also 5–4) that federal labor law, which bans discrimination based on union membership, didn't violate the Associated Press's rights to select reporters or editors.

Likewise, one can imagine newspapers and magazines deliberately courting a broad ideological mix of readers—not just for the extra revenue, but also to commit themselves to having a base that they will need to be seen as treating fairly. A publication that has many readers on the left, right, and center might feel more pressure to be fair and careful to all sides. Of course, it may be hard these days to acquire such a broad reader base. And there's always the danger that concern about reader reactions may press a newspaper to avoid controversial topics altogether, rather than to try handling them fairly.

Finally, newspapers can just try to recommit themselves to objectivity, fuzzy as the term may sometimes be. (Many commentators have expressly taken the opposite view.) In their news coverage, they may recommit to discussing the best arguments on both sides of contested issues. In choosing what to cover, they may try hard to see what both sides of the aisle view as especially important. On their editorial pages, they may avoid a party line, either instituted top down or by staff revolts. Instead, they may adopt the policy that whatever ideas are shared by at least substantial minorities of the public should be seriously covered, even when editors think that one side is obviously wrong.

Again, though, that's easier said than done (and it's not even that easily said). It will inevitably require hard choices that will leave many observers skeptical about the media organization's fairness —e.g., which sides of a multi-sided issue should be covered, which topics are important enough to cover, which positions are such outliers that they can be set aside, how to allocate scarce space and attention. And it may not do much to solve the problem we began with, which is the ability of media organizations to be massively duped by the side they sympathize with.

Thus, these solutions are likely to be far from perfect. The cures may even be worse than disease.

But there is indeed a disease, "a profoundly broken media system" (to quote the workshop organizers). This system is one that the public has good reason to distrust. Its flaws undermine the media's ability to check government malfeasance. It may have been so captured by the desire to #Resist one movement that it failed to resist the disinformation spread by another. And it may thus have ended up helping the very candidate and movement that it had (understandably) viewed as dangerous.

See, e.g., Josh Barro, This Is All Biden's Fault, N.Y. Times, Nov. 11, 2024; Four Writers on What Democrats Should Do, N.Y. Times, June 30, 2024.

See, e.g., Hanna Panreck, Karine Jean-Pierre Doubles Down on 'Cheap Fake' Biden Videos: 'So Much Misinformation', Fox News, June 19, 2024.

See, e.g., Annie Linskey & Siobhan Hughes, Behind Closed Doors, Biden Shows Signs of Slipping, Wall St. J., June 4, 2024; Michael Williams, George Clooney Says Democrats Need a New Nominee Just Weeks After He Headlined a Major Fundraiser for Biden, CNN, July 10, 2024.

Robby Soave, Why Didn't the Media Notice Joe Biden's 'Jet Lag' Sooner?, Reason, July 3, 2024.

Cf. The American Journalist, Key Findings from the 2022 American Journalist Study (reporting that 51.7% of journalists identified as Independent, 36.4% Democrat, 8.5% Other, and 3.4% Republican). I appreciate that this is an online survey, and one that doesn't specifically ask about views on Trump; but it reinforces what is generally seen as conventional wisdom, and I've seen no data pointing in the opposite direction.

See Eugene Volokh, Should the Law Limit Private-Employer-Imposed Speech Restrictions?, 2 J. Free Speech L. 269 (2022); Eugene Volokh, Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, 16 Tex. Rev. of L. & Pol. 295 (2012).

See Nelson v. McClatchy Newspapers, 131 Wash. 2d 523 (1997).

See, e.g., Leonard Downie Jr., Newsrooms That Move Beyond 'Objectivity' Can Build Trust, Wash. Post, Jan. 30, 2023.

See, e.g., Washington Post Owner Jeff Bezos Says Opinion Pages Will Defend Free Market And 'Personal Liberties', PBS News, Feb. 26, 2025.

See, e.g., Marc Tracy, James Bennet Resigns as New York Times Opinion Editor, N.Y. Times, June 7, 2020.

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[Paul Cassell] Convicting Boeing for Its Deadly Crime Becomes Simple Under the "Judicial Admission" Doctrine

[In its deferred prosecution agreement, Boeing stipulated to an agreed statement of facts demonstrating that it is guilty.]

Last week, I blogged about how Boeing had confessed to committing a deadly conspiracy crime connected with the two 737 MAX crashes and should now plead guilty to the charge pending against it. In that earlier post, I argued that Boeing's concessions in a statement of facts (connected with an earlier deferred prosecution agreement) constituted a "confession" that would greatly simplify the Government's task at trial. An alert reader has passed along an interesting argument that I failed to consider … which further strengthens my position.

Under the "judicial admission" doctrine, some issues can be withdrawn from consideration in a case. As the Tenth Circuit recently summarized (United States v. Gallegos, 111 F.4th 1068, 1076 (10th Cir. 2024)), a judicial admission is an "express waiver made … by the party or his attorney conceding for the purposes of the trial the truth of some alleged fact." Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 592 (2013) (quoting 9 J. Wigmore, Evidence § 2588 (J. Chadbourn rev. 1981)). Such admissions "include 'formal concessions in the pleadings' and 'are not evidence at all but rather have the effect of withdrawing a fact from contention.'" Wells Fargo Bank, N.A. v. Mesh Suture, Inc., 31 F.4th 1300, 1313 (10th Cir. 2022) (quoting Keller v. United States, 58 F.3d 1194, 1198 n.8 (7th Cir. 1995)). "Judicial admissions are not just any statements made before the court," but rather "formal, deliberate declarations which a party or his attorney makes in a judicial proceeding for the purpose of dispensing with proof of formal matters or of facts about which there is no real dispute." United States v. E.F., 920 F.3d 682, 688 (10th Cir. 2019) (quoting U.S. Energy Corp. v. Nukem, Inc., 400 F.3d 822, 833 n.4 (10th Cir. 2005)).

Did Boeing's agreements in its deferred prosecution agreement (DPA) constitute "judicial admissions"?  It seems to me that they did. In its DPA, Boeing formally agreed that all 54 paragraphs in the statement of facts accompanying the DPA were true:

The Company admits, accepts, and acknowledges that it is responsible under United
States law for the acts of its officers, directors, employees, and agents as charged in the Information, and as set forth in the Statement of Facts, and that the allegations described in the Information and the facts described in the Statement of Facts are true and accurate. The Company agrees that, effective as of the date it signs this Agreement, in any prosecution that is deferred by this Agreement, it will not dispute the Statement of Facts set forth in this Agreement, and, in any such prosecution, the Statement of Facts shall be admissible as: (a) substantive evidence offered by the government in its case-in-chief and rebuttal case; (b) impeachment evidence offered by the government on cross-examination; and (c) evidence at any sentencing hearing or other hearing. In addition, in connection therewith, the Company agrees not to assert any claim under the United States Constitution, Rule 410 of the Federal Rules of Evidence, Rule 11(f) of the Federal Rules of Criminal Procedure, Section 1B1.1(a) of the United States Sentencing Guidelines ("USSG" or "Sentencing Guidelines"), or any other federal rule that the Statement of Facts should be suppressed or is otherwise inadmissible as evidence in any form.

This specific agreement by Boeing (through its CEO and legal counsel) that the allegations against it were "true and accurate" and that Boeing would "not dispute" any facts in any prosecution deferred by the agreement seems to place this case squarely within the "judicial admission" doctrine. And, thus, prosecuting Boeing for its deadly conspiracy crime connected with the 737 MAX crashes is even more of a slam dunk than I suggested earlier.

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[Ilya Somin] Universities Should Challenge Trump's Speech-Based Deportations of Students in Court [Updated]

[A lawsuit brought by universities could potentially be much more effective than leaving individual students to fend for themselves.]

Tufts University. (Tufts University)

 

The Trump administration has been detaining and trying to deport immigrant and foreign students for their First-Amendment protected speech. That includes even speech that does not actually support terrorism, as in the case of a Tufts graduate student detained for an anti-Israel op ed that, however flawed, does not endorse Hamas terrorism, or indeed even mention it. Such detention and deportation is an assault on freedom of speech, and violates the First Amendment, which has no exception for immigration restrictions.

In a recent public letter, the faculty of Tufts' Fletcher School of Law and Diplomacy propose universities take action to stop this travesty:

Resolved: That the undersigned Executive Faculty of the Fletcher School of Law and Diplomacy urge and would support Tufts University commencing legal action, without delay and in concert with other universities if possible, to enjoin the government and its agents from arresting, detaining, or deporting university students, staff, or faculty based upon their engagement in constitutionally protected expression.

The signatories below constitute a majority of the Executive Faculty.

This is a good idea, and schools should pursue it.  I am just a rank-and-file academic and do not speak for my university. But I will do what I can to persuade relevant authorities to act on the Tufts Fletcher School faculty's suggestion. I urge other academics and university officials to do the same.

Up till now, students and university employees targeted for deportation based on their speech have been largely left to fend for themselves, trying to challenge the deportations after they have already been detained. A lawsuit brought by a coalition of universities would have important advantages over this case-by-case approach.

Most obviously, the universities could file a class action lawsuit or seek a nationwide injunction. This could block such detentions and deportations throughout the country in one fell swoop. By contrast, under the status quo, individual students and employees targeted for deportation for their speech often have to spend weeks or months in cruel detention. Even if they ultimately prevail in court, they will have undergone considerable suffering, and potentially significant losses to their education and career prospects. Moreover, freeing one such detainee won't necessarily protect others. Thus, the "chilling effect" on other students' and employees' speech could continue.

A class-action lawsuit or nationwide injunction could solve these problems. If successful, it could preemptively block speech-based detention and deportation of university students and employees throughout the country. This would save targeted immigrant and foreign students from enduring weeks in detention, and lift the cloud of fear that has descended on campuses.

Moreover, universities have far greater resources to conduct litigation than individual students and employees do. They could much more easily employ topnotch legal talent, and expend the resources needed to prevail.

The case for a nationwide injunction here is similar to that which led to the grant of multiple nationwide injunctions against Trump's birthright citizenship executive order. In both situations, the unconstitutional policy in question is categorical and nationwide in scope, and affects large numbers of people, many of whom cannot easily protect themselves.

I would add that the First Amendment context provides additional support for systematic nationwide relief. Courts have long recognized that the Free Speech Clause protects against "chilling effects" on speech, as well as direct speech restrictions. The Trump administration's deportation policies are an obvious example of this problem. The standards of what counts as speech supporting "terrorism" or having "potentially serious adverse foreign policy consequences for the United States" are incredibly vague. So much so that the late Judge Maryanne Trump Barry (Donald Trump's sister) ruled in 1996 that the law authorizing deportation for the latter type of speech was unconstitutional because of its extreme vagueness.

Allowing deportation based on these types of vague standards could easily chill speech on a wide range of issues involving armed conflict, international relations, US foreign policy, and much more. And it isn't just immigrant and foreign students' speech that would be affected. Other students and faculty maybe be chilled in discussing these subjects on campus, for fear of exposing international students or non-citizen immigrants to danger, if the latter participate in the relevant discussions.

For example, in my constitutional law classes, I teach segments on the use of racial profiling in the War on Terror, executive war powers, immigration, and other issues related to foreign and security policy. If a non-citizen student participates in class discussion or writes a paper on one of these topics, there is a chance they might say something the administration defines as supporting terrorism or having "adverse foreign policy consequences for the United States," and thereby be targeted for deportation. To completely forestall that danger, instructors must either avoid such topics altogether, or forego discussing them with non-citizen students. Similar points apply to scholars researching and writing on such issues in collaboration with non-citizen students or faculty.

These kinds of chilling effects are an obvious threat to free speech on campus, and the academic enterprise of teaching and research. Universities owe it to their students and faculty to protect them against this menace.

If commitment to principle isn't enough to motivate schools to fight, perhaps financial self-interest might do so. International students are an important source of revenue for many schools. The risk of deportation for speech may well deter many from coming, thereby hurting universities' bottom line.

Success in a lawsuit like the one I advocate isn't guaranteed. While the Supreme Court ruled in  a 1945 case that "Freedom of speech and of press is accorded aliens residing in this country," later decisions have upheld some speech-based deportations and entry restrictions. However, none of these have endorsed the idea that immigrants or students can be excluded or deported based solely on speech otherwise protected by the First Amendment. For example, in the 1952 Harisiades decision, the Supreme Court  only upheld deportation of Communist Party members on the ground that - under then-current precedent - membership in the Party wasn't protected by the First Amendment at all, even for US citizens.

Today's Supreme Court is often hostile to immigrants' rights, but it also provides strong protection for freedom of speech. The latter tendency might well prevail over the former, especially when the speech restrictions in question are as vague and sweeping as those the Trump Administration seeks to implement.

In any event, the courts are going to address Trump's speech-based deportations one way or another, since students targeted for deportation are raising First Amendment defenses. A lawsuit brought by universities maximizes both the odds of success, and the potential payoff from prevailing.

I will not, in this post, try to address all the various procedural issues that might come up in such a lawsuit. But I will note one: Universities should be able to get standing to sue on the grounds that deportation of students and employees affect their economic interests. In addition, they also have a chilling effect on the free speech rights of other university students and employees, and ultimately those of universities as institutions.

I would add that state governments might be able to get standing to sue on behalf of their state university systems. Blue state attorneys general should consider that possibility.

As I have previously noted, I have little sympathy for recent anti-Israel campus protests, and for the views of many of the students now targeted for deportation (many of those views are awful in various ways). I also think students and others who engaged in violence, intimidation, or property damage during protests should be punished.

But a principled commitment to free speech requires protecting even those viewpoints we believe to be badly wrong. And the vague standards used by the Trump administration create an obvious slippery slope risk. The Israeli-Palestinian conflict is far from the only issue discussed on campus that involves terrorism or impinges on US foreign policy interests.

And, yes, I know some universities have fallen short on free speech issues themselves, with policies such as speech codes and mandatory "diversity statements" for faculty candidates. Such failings should be remedied. But they don't justify caving to the Trump Administration's much more sweeping speech restrictions. Among other things, a  censorship regime imposed nationwide by the federal government is much more dangerous than restrictions adopted by some individual universities, but rejected by others.

If universities want to protect free speech and academic freedom on campus, they should fight for it. The Tufts Fletcher School faculty have shown us the way.

UPDATE: Jameel Jaffer of the Knight First Amendment Institute informs me that, on March 25, his organization filed a lawsuit similar to the one envisioned above on behalf of the American Association of University Professors (AAUP) and the Middle East Studies Association (MESA). I am glad to hear of it! It is also good that their complaint seeks a nationwide injunction against deportations based on speech.  But I don't think this obviates the need for a suit by universities. Among other considerations, I think the latter can more easily get standing than AAUP or MESA, as they likely suffer more extensive and more direct injuries from the deportation of students and employees.

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[Josh Blackman] Harvard Law School v. Vermeule

[Dueling letters from 90+ members of the HLS faculty and Adrian Vermeule]

Yesterday, more than ninety members of the Harvard Law School faculty issued a statement concerning the rule of law:

We are privileged to teach and learn the law with you. We write to you today—in our individual capacities—because we believe that American legal precepts and the institutions designed to uphold them are being severely tested, and many of you have expressed to us your concerns and fears about the present moment. Each of us brings different, sometimes irreconcilable, perspectives to what the law is and should be. Diverse viewpoints are a credit to our school. But we share, and take seriously, a commitment to the rule of law: for people to be equal before it, and for its administration to be impartial. That commitment is foundational to the whole legal profession, and to the special role that lawyers play in our society. As the Model Rules of Professional Conduct provide: "A lawyer is … an officer of the legal system and a public citizen having special responsibility for the quality of justice."

The rule of law is imperiled when government leaders:

• single out lawyers and law firms for retribution based on their lawful and ethical representation of clients disfavored by the government, undermining the Sixth Amendment;

• threaten law firms and legal clinics for their lawyers' pro bono work or prior government service;

• relent on those arbitrary threats based on public acts of submission and outlays of funds for favored causes; and

• punish people for lawfully speaking out on matters of public concern.

While reasonable people can disagree about the characterization of particular incidents, we are all acutely concerned that severe challenges to the rule of law are taking place, and we strongly condemn any effort to undermine the basic norms we have described.

On our own campus and at many other universities, international students have reported fear of imprisonment or deportation for lawful speech and political activism. Whatever we might each think about particular conduct under particular facts, we share a conviction that our Constitution, including its First Amendment, was designed to make dissent and debate possible without fear of government punishment. Neither a law school nor a society can properly function amidst such fear.

We reaffirm our commitment to the rule of law and to our roles in teaching and upholding the precepts of a fair and impartial legal system.

To be sure, this statement was not issued in the name of Harvard University, or the law school. But this statement was signed by a significant portion of the faculty. At quick glance, a few names are missing: co-blogger Steve Sachs, Jack Goldsmith, and Adrian Vermeule, among others. Quite fittingly, Vermeule has written a response.

Vermeule identifies a problem: how are students who agree with President Trump's policies to approach professors who have castigated Trump as antithetical to the rule of law?

Among you, the students of Harvard Law School, there is a surprisingly large and intellectually powerful contingent who are conservative in some sense or other, many of whom support the current President and the legal policies of his administration. What exactly are you supposed to think when an overwhelming supermajority of the faculty, although purporting to speak "in their individual capacities," jointly condemn those policies? You might be forgiven for wondering if you will get a fair shake during your time at the law school. Perhaps that concern will turn out to be objectively warranted, or perhaps it won't. But the concern in itself is entirely legitimate, and as the collective letter speaks to the "fears" of other students without asking whether those fears are objectively justifiable, it seems only fair to do the same in the other direction.

The professors are certainly concerned how students who agree with them will react. But what about students who disagree with them? Their concerns simply are not as important.

Vermeule writes further that these signatories were silent during breaches over the past four years:

Where were the letter's signatories when federal prosecutors took the unprecedented step of bringing dozens of criminal charges against a former president, who also happened to be the leading electoral opponent of the then-incumbent president? Where were the signatories when Jeff Clark, Rudy Giuliani, John Eastman, and other lawyers were disbarred or threatened with disbarment, and indeed prosecuted, for their representation of President Trump? Was this not a threat to the rule of law? Where were the signatories when radical activists menaced Supreme Court Justices in their homes, or when a mob hammered on the doors of the Supreme Court itself? Where were the signatories when the Senate Minority Leader shouted to an angry crowd outside the Court that "I want to tell you Gorsuch, I want to tell you Kavanaugh, you have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions"? Were these not also literal threats to the rule of law?

As I recall, Professor Tribe, one of the signatories, urged President Biden to renew the eviction moratorium even after the Supreme Court clearly stated it was unlawful. Was this a breach of the rule of law?

Another one of the signatories of the Harvard letter is Richard Fallon. I think Fallon's joining this letter is especially striking in light of his important work on the problems with scholar amicus briefs. More than a decade ago, Fallon wrote that "many professors compromise their integrity by joining such briefs too promiscuously." He urged "standards that professors should insist upon before signing amicus briefs that they do not write." Fallon was and is right.

In December 2016, I discussed the relationship between scholar amicus briefs and scholar letters:

Fallon's critique about scholars' briefs applies equally to scholars' letters. Here, the 1,100 professors who signed the letter had absolutely no role in its drafting. Take it or leave it. To the extent that they all agree with every sentence of the letter, then the statement must be so anodyne that it adds little beyond what the New York Times editorial page has already said. Imagine an actual law school workshop attended by over 1,000 professors–would anything be agreed upon?!. Law professors would never add their name to a law review article they didn't write. Why are scholars' letters any different?

The more things change, the more they stay the same.

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[Ilya Somin] Lee Kovarsky on the Venue Issue in the Alien Enemies Act Case

[A leading expert on habeas corpus explains why the Trump Administration is wrong to claim the case must be heard in Texas, rather than Washington, DC.]

In my recent post on the DC Circuit's decision upholding a temporary restraining order blocking deportations under the Alien Enemies Act, I explained why the DC Circuit majority is right on the merits. See also my other writings on the subject, such as those here, here, and here. But I could not address Judge Walker's dissent arguing that the case should have been heard in a different venue (in Texas, where the five named Venezuelan immigrant plaintiffs are now being detained, rather than in DC). I lack expertise on that technical issue. Now the Trump Administration has made this issue the central focus of their attempt to persuade the Supreme Court to intervene to vacate the TRO.

Professor Lee Kovarsky (University of Texas School of Law) is one of the nation's leading experts on habeas corpus and associated jurisdictional issues. He has generously agreed to write a guest post for us on this issue. The rest of this post is his explanation of why the Trump Administration's position on venue is badly wrong. The material that follows is all by Prof. Kovarsky, not me (Ilya Somin):

JGG v. Trump is shaping up as a generationally important case. It features pretextually activated war powers, rendition of civilians to foreign sites of potential torture, and extreme noncompliance with judicial orders. But in the early stages of litigation, the case centers on an obscure habeas corpus question. Since I co-author the case book they use to teach habeas courses in most law schools, I want to address DOJ's (very bad) argument that JGG is a habeas case that can proceed only in Texas.

Start with some background. On March 15, 2025, President Trump invoked authority under the 1798 Alien Enemies Act ("AEA")—thereby unlocking emergency powers to remove alleged members of Tren de Aragua ("TdA"), a designated foreign terrorist organization based in Venezuela. The AEA requires that the United States be at war with, invaded by, or subject to the predatory incursion of a foreign government. For that reason, President Trump's proclamation asserted that TdA was an alter ego of the Venezuelan government, and that its transnational criminality was both an "invasion" and a "predatory incursion." The legality of the proclamation is dubious, but its legality vel non is not the subject of this post.

Five Venezuelan nationals who were already in removal proceedings got wind of the administration's plan to expel them, and they sued in a D.C. federal district court. Insisting that they were not TdA members, they asserted various grounds for relief, including claims under the Administrative Procedure Act ("APA"). After issuing a temporary restraining order ("TRO") for the individually named Plaintiffs, the district court provisionally certified a class of all similarly situated noncitizens and issued a second TRO to protect them during the pendency of the litigation. The TROs are in effect until April 12, while the district court considers a motion for preliminary injunction. Before the district court, and in passing, DOJ argued that habeas was the exclusive remedy for the Plaintiff's grievances. And if habeas is the exclusive remedy, the argument goes, then the Plaintiffs had to litigate in Texas—which contains the detention center holding the Plaintiffs. DOJ lost appellate arguments on the TRO, but Judge Walker's dissent adopted the habeas-exclusivity argument. DOJ then made Judge Walker's position into its leading argument to the Supreme Court, where a request to stay the lower court relief remains pending.

Judge Walker and DOJ misunderstand habeas exclusivity, quite profoundly.

There is some doctrine making habeas the exclusive vehicle for certain remedies against certain custodians, but it doesn't apply in the JGG scenario. During the 1960s and 1970s, people serving state criminal sentences got creative with 42 USC § 1983, seeking relief that implied that their sentences were unlawful or otherwise required reduction. The problem was that, while habeas remedies for criminal convictions were subject to carefully tailored restrictions, § 1983 remedies weren't. In this context and in this context only, the Supreme Court told a subset of these § 1983 claimants to knock it off, and to stick to habeas as a means of challenging the lawfulness of criminal sentences. The "Preiser line" of cases specifying permissible § 1983 litigation in this context include: Preiser v. Rodriguez (1973), Wolf v. McDonnell (1974), Heck v. Humphrey (1994), Edwards v. Balisok (1997), Muhammed v. Close (2004), Wilkinson v. Dotson (2005), and Skinner v. Switzer (2011). All these cases involve the administration of state criminal sentences, and not one has anything to do with immigration detention—let alone removal or rendition to a foreign detention site.

The arguments that Judge Walker and DOJ make derive from the Preiser line, whether the line is cited directly or operates as precedent for the lower-court cases that are mentioned. The line's basic logic is that a challenge to a criminal sentence is a "core" habeas challenge, and any order that would directly invalidate or reduce a sentence is "core" relief. If either (1) the challenge or (2) the relief wasn't "core," then § 1983 remedies were available. Hence Dotson: "Section 1983 remains available for procedural challenges where success in the action would not necessarily spell immediate or speedier release for the prisoner."

The JGG claims aren't "core" in any sense. The Plaintiffs aren't challenging state criminal sentences, or even their removability generally. In fact, they're not even seeking release. All the TROs and injunction seek is a bar on transfer under the AEA. The form of relief the plaintiffs seek isn't just "outside the core;" it's on the other side of the universe.

On whether this type of relief is "core," I'll cede the floor to Justice Alito. Here's his majority opinion in DHS v. Thuraissigiam (2020), on whether the Suspension Clause permitted Congress to strip habeas power over expedited removal procedure: "Rejecting th[e] use of habeas [to bar transfers to foreign sovereigns], we noted that habeas is at its core a remedy for unlawful executive detention and that what these individuals wanted was not simple release but an order requiring them to be brought to this country. Claims so far outside the core of habeas may not be pursued through habeas." I'll also borrow from Chief Justice Roberts, writing for the Court in Munaf v. Geren (2008): "[H]abeas is not appropriate [when claimants seek to preclude transfer to another sovereign so that they may face criminal charges]. Habeas is at its core a remedy for unlawful executive detention. The typical remedy for such detention is, of course, release. But here the last thing petitioners want is simple release … ." Thuraissigiam and Munaf don't mean that habeas claimants can never stop transfer orders, but those decisions extinguish DOJ's argument that such remedies are "core" habeas relief.

The whole idea—that an order precluding foreign-prison rendition sits at some historical "core" of Anglo-American habeas tradition—is risible. The United States didn't even begin to exclude and deport noncitizens until the very end of the nineteenth century. Even then it sent the Chinese people it excluded back to China, and not to a prison in some other country.

DOJ makes a related-but-distinct exclusivity argument tracing to a D.C. Circuit case: LoBue v. Christopher (1996). I cannot understand why DOJ is emphasizing LoBue, which cuts in favor of the Plaintiffs. In LoBue, the prisoner sought a declaratory judgment that extradition was unlawful—state action for which, LoBue itself highlights, the APA didn't permit suit against the named defendants. LoBue quite explicitly distinguished declaratory judgment challenges to extradition, which had to go through habeas, from APA challenges to immigration removal, which didn't. In so doing, it flagged the two Supreme Court cases that had blessed the use of the APA to challenge removal orders: Shaughnessy v. Pedreiro (1955) (deportation) and Brownell v. We Shung (1956) (exclusion). DOJ's reliance on LoBue is nothing short of bizarre.

I'll note two other weaknesses in DOJ's habeas-exclusivity argument. First, the exclusivity holdings assume generally that non-habeas remedies can be displaced because habeas will adequately test the detention at issue. In this case, however, DOJ is arguing that the administration can remove the Plaintiffs the second the injunction lapses, and it will thereafter argue (I assume) that the Plaintiffs are beyond the scope of habeas power. The Venezuelan nationals would be shipped to a Salvadoran "mega prison," and DOJ will presumably argue that habeas power doesn't reach a foreign custodian that holds foreign nationals. I'm not sure that argument is correct because the United States seems to retain some control over the custody by way of contract with the facility, but the argument certainly cannibalizes the habeas exclusivity argument that DOJ is making right now.

Second, DOJ's argument for habeas exclusivity builds from the premise that, because the Plaintiffs are in Texas facility, a habeas case couldn't proceed in D.C. But that's not clear at all. The leading case on the question, Rumsfeld v. Padilla (2004), suggests otherwise. Padilla held that the "immediate custodian rule … does not apply when a habeas petitioner challenges something other than his present physical confinement." Separately, and even in cases that challenge "present physical confinement," Padilla indicated that the immediate custodian rule might lapse if "there was any attempt to manipulate behind [the prisoner's] transfer," or if the Government "attempted to hide from [the prisoner's] lawyer where it had taken him." And if the immediate custodian rule is inapplicable, then Kristi Noem could be named as a respondent in a D.C. lawsuit seeking habeas relief and there is no forum-selection issue.

All of this is to say that I do not think highly of DOJ's habeas arguments or of Judge Walker's dissent. They are invoking a rule of habeas exclusivity that the Supreme Court has never entertained—even remotely—and they are relying on D.C. Circuit precedent that supports the Plaintiffs.

 

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[Josh Blackman] A Rendezvous With Humphrey

[The Justices have had plenty of time to think about how to resolve Humphrey's Executor and should not punt.]

Very soon, the Supreme Court will be asked to decide whether Humphrey's Executor should be overruled. Critics often assert that the Justices should not decide important questions on the emergency docket. Indeed, some Justices said these sorts of disputes are better resolved in the orderly process on the merits docket, as if "percolation" matters anymore.

I don't think this rationale holds up for Humphrey's Executor. Since Seila Law, everyone has been on notice that Humphrey's Executor was on life support. As we learned in Janus, parties should have taken notice that Abood was put on a death watch. Ditto for the Lemon test.

I seriously doubt that the members of the Supreme Court have not considered what to do with Humphrey's Executor. All of the arguments for and against Humphrey's Executor have been vetted for nearly a century. It is time.

Whatever the Court does here, it should not simply punt because the issue arises on the shadow docket. The nation is currently divided about whether the President can remove members of the NLRB, MSPB, FTC, and a jumble of more acronyms. Decide the issue, and move on. Indeed, I expect the emergency docket will implode over the next few months. If all of the national TROs and preliminary injunctions ripen to timely appeals, the Court will become overwhelmed with deadlines.

My previous posts on the issue are here, here, here, here, here, and here.

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[Josh Blackman] Today in Supreme Court History: March 30, 1875

3/30/1875: U.S. v. Cruikshank argued.

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