Eugene Volokh's Blog, page 133

[Josh Blackman] Coastal Judges Play Keep-Away From The Fifth Circuit

[The Trump administration detains individuals in Texas and Louisiana, yet federal courts on the Amtrak Corridor continue to exercise jurisdiction.]

Fights over forums are not new. Long before national injunctions flew from Amarillo and San Francisco, the executive branch sought to control were legal challenges could be filed. Perhaps the most prominent such recent example was Guantanamo Bay. The Bush Administration detained enemy combatants on the military base to avoid federal habeas jurisdiction. That plan, however, did not work out. In a series of cases leading to Boumedienne v. Bush (2008), the federal courts in the District of Columbia asserted jurisdiction over Guantanamo Bay.

However, the Bush Administration did secure a venue victory in another case: Rumsfeld v. Padilla (2004). At the time, the Fourth Circuit was considered the most conservative circuit in the country. And in that case, the Bush Administration detained Jose Padilla, a declared "enemy combatant," in a South Carolina military prison. A habeas suit was brought in the Southern District of New York. The Supreme Court held that the suit was not proper in New York. Rather, "for core habeas petitions challenging present physical confinement, jurisdiction lies in only one district: the district of confinement."

That past brings us to the present. In two prominent cases, the Trump Administration has taken actions to keep legal challenges within the Fifth Circuit. And in both cases, judges on the East Coast have played keep-away from the Fifth Circuit.

The first case is Trump v. J.G.G. In this case, aliens were held at a facility in Texas. They were then loaded on a plane bound for El Salvador. Around the same time, Judge Boasberg in the District of Columbia ordered this operation to be halted immediately. Yet, there was a threshold issue: was the federal court in the District of Columbia the proper court to even bring this suit? Last time I checked, the federal courts in Texas remain operational--true, they are far less busy now then they were before the inauguration. The obvious response is that the ACLU did not want this case anywhere near the conservative Fifth Circuit. But sometimes a strategic choice can backfire.

The Solicitor General's emergency application in J.G.G. explains that Texas, and not D.C., was the only forum where a habeas claim could have been brought. The SG further argues that a claim under the Administrative Procedure Act (APA) is not proper under the Alien Enemies Act (AEA). (That was too many acronyms in one sentence.)

Habeas claims, however, must be brought only in the district of detention— and that is not where respondents sued. See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). Respondents should have brought habeas claims in the Southern District of Texas. Yet they filed in the District of Columbia. Respondents may not leverage the APA to attack the President's exercise of authority under the Alien Enemies Act in a forum of their choosing. See Ludecke, 335 U.S. at 164. The APA is a particularly poor fit given that APA review extends only to "agency action" and not to action "of the President" like the Proclamation. Franklin v. Massachusetts, 505 U.S. 788, 796 (1992); see App., infra, 80a (Walker, J., dissenting).

Somewhat perplexingly, Judge Henderson's controlling opinion declined to resolve the venue/habeas/APA question:

The decisions below disregarded the problem. Indeed, no majority of D.C. Circuit panel rejected the habeas argument. Only Judge Millett concluded that respondents' "claims are not habeas claims and do not sound in habeas." App., infra, 63a. By contrast, Judge Walker, in dissent, opined that respondents' claims sound in habeas and must be brought in Texas. Id. at 78a. But Judge Henderson—the deciding vote—merely "[a]ssum[ed] habeas relief is no longer sought," then "assume[d]" that respondents' APA claims "constitute claims they can assert thereunder." Id. at 10a. That assumes away the decisive issue: the AEA does not let respondents refashion habeas claims into APA claims.

There is an even deeper problem here. The plaintiffs originally brought a habeas claim, but the judge nudged them to shift to an APA claim. Consider the government's recitation of the posture:

Hours after respondents filed their complaint, and without waiting to hear from the government, the district court granted respondents' motion for a TRO and ordered applicants not to "remove any of the individual Plaintiffs from the United States for 14 days absent further Order of the Court." App., infra, 147a (3/15/25 Second Minute Order). The government moved to stay the order and filed an appeal. Later that day, and without waiting for a brief from the government, the district court held a hearing on respondents' motion for class certification. App., infra, 147a (3/15/25 Third Minute Order). At that hearing, the government's counsel explained that certification of a nationwide class was not appropriate because (among other reasons) respondents' claims sound in habeas and accordingly must be brought in the district (in Texas) in which they are confined. Id. at 165a; see Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). In response, the district court inquired whether respondents might want to dismiss their habeas claims. App., infra, 169a. Respondents' counsel explained that "if the Court felt like it needed us to dismiss the habeas [claim] in order to issue a classwide TRO, then we are prepared to do that." Ibid. The court granted respondents' "motion to dismiss their habeas count" without prejudice. Ibid. The court then stated without elaboration that "class certification is warranted under Federal Rule of Civil Procedure 23(a) and 23(b)(2)." Ibid.

Here is the relevant exchange on 169a:

THE COURT: Do you want to dismiss your habeas claim, Mr. Gelernt? I don't know. It's certainly not your primary claim. You may have other reasons for including it.

MR. GELERNT: Your Honor, I think if the Court felt like it needed us to dismiss the habeas in order to issue a class-wide TRO, then we are prepared to do that. We certainly don't feel like we need it. On the other hand, I think the Court could just hold it in abeyance. I mean, I think that it's very clear that if you don't need to bring it in habeas, you don't have to and you can bring it -- in other words, I think Your Honor could not have been clearer in IRLR. There are a number of cases that say that. Otherwise, virtually every case would be brought in habeas.

THE COURT: Again, I think this is a reasonably close question, but I've got to rule on it with essentially 40 minutes' notice given that this was first raised by the government in our hearing. And I'm not blaming the government at all because they haven't had an opportunity to brief it. And so as brief as my research has been at this period of time, I don't think that venue bars certification. I will, for clarity, I will grant the plaintiffs' -- first grant the plaintiffs' motion to dismiss their habeas count. So that count is dismissed without prejudice at this point.

But I do find that class certification is warranted under Federal Rule of Civil Procedure 23(a) and 23(b)(2). So I will certify a class, and the class will be -- let's talk about the definition. The plaintiffs ask for all noncitizens who were, are, or will be subject to the AEA proclamation and its implementation.

The transcript also references venue with regard to certification at 165a of the appendix.

To be clear, the District Court invited the plaintiffs to drop their habeas claim to focus on the APA claim. I'll put my cynical hat on for a moment. Judge Boasberg may have recognized the venue problems with the habeas claims, or saw problems with certifying a class with habeas. The judge urged the Plaintiffs to restyle their case, and the consequence of that order was that the case could remain in the District of Columbia, and that a nationwide class could be certified to bring an APA claim.

I've seen this sort of move before. In the Foreign Emoluments Clause litigation, the plaintiffs only brought an official capacity claim against President Trump. Seth Barrett Tillman and I argued in an amicus brief that an official capacity claim was not proper, as the suit challenged alleged personal actions taken by Trump. Judge Peter Messitte acknowledged our brief during oral argument, and basically asked the parties to also bring an individual capacity claim. Unsurprisingly, the plaintiffs dutifully amended their complaint. Here, a reasonable observer could see the judge as the plaintiffs' co-counsel. The transcript in the Emoluments Clauses case closely resembled Judge Boasberg's colloquy.

Litigants, and not judges, should be litigating the case. When a judge tells parties how to litigate their case, the judge becomes a party, not a neutral magistrate. It's true the case was fast-moving. And if the judge did not move quickly, the aliens may have been transported out of the country. But if the Plaintiffs did not bring their claim properly, the remedy is to dismiss the case and ask the plaintiffs to be restyle. The Supreme Court has recognized that aliens who were deported in error could be returned. Judges have a duty to maintain their own jurisdiction, but only in a claim that is properly filed. I think Judge Boasberg's attempt to "help" the plaintiffs reformulate their suit, and keep it in his courtroom, was a clear abuse of discretion, if not an abuse of the judicial power.

Moreover, on the merits, I remain unconvinced that judges can certify a class action on the fly during a TRO hearing. I criticized this practice during the early days of the travel ban litigation.

There is a second case where a coastal judge has played keep-away from the Fifth Circuit. Mahmoud Khalil, a resident of New York, was briefly detained at an immigration facility in New Jersey before he was transferred to Louisiana. Counsel for Khalil brought suit in the Southern District of New York. Judge Jesse Furman ordered that Khalil could not be removed, transferred the case to New Jersey, rather than Louisiana. Again, Khalil was never detained in New York, and it is not clear why a New York judge even had jurisdiction to issue any ruling. Worse still, there was no basis to transfer the case to New Jersey, other than the fact that the defendant was briefly detained there.

I'll put my cynical hat on for another moment. Everyone realizes that the Fifth Circuit is a more favorable forum than the Second or Third Circuits. So Judge Furman made a judgment that Khalil's rights would be "better" protected by federal judges in New Jersey than Louisiana. I've read Judge Furman's order, and there is nothing about the Fifth Circuit, but I strongly suspect this fear was lurking in the background.

For those who may not remember, here is how Justice Thomas described Judge Furman's ruling in the census case:

The District Court's lengthy opinion pointed to other facts that, in its view, supported a finding of pretext. 351 F. Supp. 3d, at 567–572, 660–664 (discussing the statements, e-mails, acts, and omissions of numerous people involved in the process). I do not deny that a judge pre-disposed to distrust the Secretary or the administration could arrange those facts on a corkboard and—with a jar of pins and a spool of string—create an eye-catching conspiracy web. Cf. id., at 662 (inferring "from the various ways in which [the Secretary] and his aides acted like people with something to hide that they did have something to hide").

Thomas faulted Judge Furman for not affording the executive branch the "presumption of regularity." And I think Judge Furman likewise did not afford the Fifth Circuit a "presumption of judicial regularity."

On Friday, the judge in New Jersey held a hearing. I've not yet seen a transcript, but the Times offered this account:

On Friday in Newark, Baher Azmy, a lawyer for Mr. Khalil and legal director of the Center for Constitutional Rights, argued in court that transferring the case to Louisiana would set a precedent for other activists to be moved without legal justification, which he called "Kafkaesque."

The government's case against Mr. Khalil was undertaken "in order to retaliate against constitutionally protected speech," Mr. Azmy said.

But a lawyer for the government, August E. Flentje, said it "made no good sense" for the case to be heard in New Jersey when Mr. Khalil had been arrested in New York, asserting that "the case belongs in Louisiana."

Let's be very clear here what is going on: federal judges in Louisiana cannot be trusted to protect Khalil from "Kafkaesque" hearings. Here, Khalil is not being transferred to Guantanamo Bay; he is being transferred to the Gulf of America. But within the Amtrak Corridor, Louisiana may as well be a "black site."

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[Ilya Somin] Challenging Trump's Tariffs Under the Major Question Doctrine

[Georgetown law Prof. Jennifer Hillman explains why Trump's tariffs are vulnerable to challenge on this basis.]

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Back in February, I explained why Trump's planned use of the  International Emergency Economic Powers Act of 1977 (IEEPA) to wage a massive trade war against Canada and Mexico is vulnerable to challenge under the nondelegation and major questions doctrines. Georgetown law Prof. Jennifer Hillman has an excellent Lawfare article laying out the major questions argument against Trump's IEEPA tariffs in greater depth and detail:

The U.S. Supreme Court's articulation of the major questions doctrine may have created insurmountable hurdles to the president's desire to use IEEPA as the legal basis for sweeping tariffs. Congress frequently delegates authority to the executive branch to regulate particular aspects of society, but in a number of recent decisions, the Supreme Court has declared that for an agency to decide an issue of major national significance, its action must be supported by clear congressional authorization….

The major questions doctrine entails that the Court "expect[s] Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance'," looking at the "the history and the breadth of the authority that [the Executive Branch agency] has asserted." In Utility Air Regulatory Group v. EPA, the Court expressed skepticism when agencies claim to have discovered in a long-extant statute "an unheralded power to regulate 'a significant portion of the American economy'…."

There can be no doubt that using IEEPA to impose broad tariffs is a major question. It falls squarely within the Supreme Court's notion of a "novel" use of an "unheralded" power given that no other president has used IEEPA in its nearly 50-year history to impose tariffs. The decision to impose the new tariffs on the United States's three largest trading partners constitutes a "transformative power expansion" and carries "vast economic and political significance" as it has significant breadth, national impact, and an effect on large segments of the economy. In 2024, imports from Canada, China, and Mexico exceeded $1.3 trillion. U.S. exports to Canada and Mexico totaled $680 billion, and trade among the three USMCA parties supports over 17 million jobs. Chinese imports of goods in 2024 were $439 billion, and additional tariffs on China will impact smartphones, computers, furniture, shoes, toys, food, and more. The Peterson Institute for International Economics estimates that these tariffs collectively are the "largest tax increase in at least a generation" and will cost the typical U.S. household more than $1,200 a year. Moreover, much of the burden of paying the tariffs will fall on lower- and middle-income households. Trade historian Douglas Irwin has noted that these IEEPA tariffs "would constitute a historic event in the annals of U.S. trade policy."

Applying the major questions doctrine to IEEPA also shows that Congress did not "clearly authorize" the president to impose broad-based tariffs. IEEPA sets forth a wide array of actions that the president can take following the formal declaration of a national emergency, including the power to "regulate … importation or exportation" of any property in which a foreign government or foreign national has any interest. While the power to regulate importation can be read to include the imposition of tariffs, an argument can be made that this does not constitute a sufficiently explicit congressional authorization. If Congress clearly intended to delegate its tariff power, it would have used tariff terms ("tariffs," "duties," or "taxes") and called for a tariff-related process to establish the factual predicate for and the appropriate level of such duties. This is not the case with IEEPA.

As Hillman notes, Trump's abuse of the IEEPA is not limited to imposing tariffs against Canada, China, and Mexico. He also intends to use it to impose a variety of other massive tariffs, as well. Hillman makes several other good points, as well.  Anyone interested in this extremely important issue should read the whole thing.

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[David Post] The WilmerHale Complaint

[Paul Clement and Erin Murphy brilliantly defend what shouldn't need defending, but does]

Further to Eugene's post about the TRO that was entered in the suit filed by WilmerHale against the Trump Administration Executive Order, I highly recommend taking a look at the Complaint filed by the Paul Clement-Erin Murphy firm.  The first six pages or so is as eloquent a defense of an independent legal enterprise as you are likely to read.

13. The Order violates the separation of powers twice over. The President's role is to enforce the law—not to create new law or adjudicate litigation conduct before the courts — and no statute or constitutional provision empowers him to unilaterally sanction WilmerHale in this manner. That is unsurprising; any legislative effort to restrict lawyers' access to government buildings, services, and materials just for representing disfavored clients or causes would be patently unconstitutional. And any executive-branch effort to deter private attorneys from representing particular clients or advancing particular arguments "threatens severe impairment of the judicial function," as courts depend on attorneys to "present all … reasonable and well-grounded arguments" on their clients' behalf. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 545- 46 (2001).

14. On top of that, the Order flagrantly violates due process. It imposes severe consequences without notice or any opportunity to be heard; it uses vague, expansive language that does not adequately inform WilmerHale (or its clients) of what conduct triggered these extraordinary sanctions; and it unfairly singles out WilmerHale based on its perceived connections to disfavored individuals and causes.

Nicely put.

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[Josh Blackman] Today in Supreme Court History: March 29, 1937

3/29/1937: West Coast Hotel v. Parrish decided.

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[Eugene Volokh] Court Temporarily Blocks Much of Executive Order Targeting the WilmerHale Law Firm

[UPDATE 3/28/25 10:17 pm: See also a similar result, but with less explanation, from Judge John Bates (D.D.C.) in Jenner & Block LLP v. U.S. Dep't of Justice.]

From today's decision partly granting a temporary restraining order in Wilmer Cutler Pickering Hale & Dorr LLP v. Executive Office of the President by Judge Richard Leon (D.D.C.) (see here for more details on plaintiff's arguments):

[P]laintiff has shown a likelihood of success on the merits of its First Amendment claims as to Sections 3 and 5 of the Executive Order. Undisputably, "the First Amendment prohibits government officials from subjecting individuals to 'retaliatory actions' after the fact for having engaged in protected speech." Houston Cmty. Coll. Sys. v. Wilson (2022).

This prohibition includes retaliatory actions based on perceived viewpoint. The retaliatory nature of the Executive Order at issue here is clear from its face-not only from Section 1, but also from the Fact Sheet published the same day. Indeed, the Executive Order requires government contracting agencies to disclose, review, and terminate all contracts with plaintiff—that is Section 3—and restricts WilmerHale employees from access to federal officials, buildings, and employment—that is Section 5. There is no doubt this retaliatory action chills speech and legal advocacy, or that it qualifies as a constitutional harm.

Regarding Section 2, however, plaintiff has not met its burden in showing a likelihood of success on the merits. Our Circuit has held that security clearance decisions are within the purview of the Executive Branch, see Lee v. Garland (D.C. Cir. 2024), and plaintiff has not pointed to persuasive authority that would support extraordinary injunctive relief at this early stage….

[T]he Court [also] finds that plaintiff would suffer irreparable injury should the Court deny a TRO as to Sections 3 and 5 of the Executive Order. As an initial matter, violations of plaintiffs constitutional rights constitute irreparable harm, even if the violations occur only for short periods of time. Moreover, implementation of Sections 3 and 5 would cause specific, irreparable, and non-remediable economic and reputational harm to plaintiff. While economic loss does not always warrant a TRO, this is not a typical situation because plaintiff faces more than economic harm—it faces crippling losses and its very survival is at stake.

Indeed, enforcing Section 3—the government contracts provision—would threaten almost one-third of plaintiff's revenues. The declaration of Bruce Berman states that "[a]t least 21 of the firm's 25 largest clients in 2024 have contracts with federal agencies. These 21 clients accounted for more than 30% of the Firm's revenue in 2024—nearly $500 million." Plaintiff is also "currently handling over 100 open government contracting matters involving various federal agencies." Losing these clients as a result of Section 3 would be a devastating blow to plaintiff—threatening plaintiff's very existence. This says nothing of the potential clients who may not even consider hiring plaintiff because of their concerns about losing government contracts.

Regarding Section 5—the personnel provision—it is clear that plaintiff's business is inextricably intertwined with interactions with the federal government. The Berman Declaration states that WilmerHale attorneys are working on approximately 1,110 matters before or involving federal agencies. WilmerHale attorneys are scheduled to attend meetings on behalf of clients at the Department of Justice ("DOJ'') on March 31, 2025 and the Securities and Exchange Commission ("SEC") on April 1, 2025.

According to the Berman Declaration, plaintiff does not know either if its attorneys will be denied access to DOJ or the SEC, or if the federal employees will refuse to meet with them. Plaintiff's counsel stated during the TRO hearing that since the Executive Order issued, the federal government has already cancelled two meetings with plaintiff's attorneys, at the last minute and without explanation. Should Section 5 be enforced, plaintiff would be thoroughly hamstrung from representing clients because its attorneys could not enter federal courthouses or other buildings, or meet with federal employees regarding cases. The impact on plaintiffs business and reputation cannot be overstated. Thus, I find that the second factor, irreparable injury, favors granting a TRO regarding Sections 3 and 5….

[T]he balance of the equities and public interest[] also favor issuing a TRO preventing enforcement of Sections 3 and 5. The injuries to plaintiff here would be severe and would spill over to its clients and the justice system at large. The public interest demands protecting against harms of this magnitude….

Paul Clement, Erin Murphy and Joseph J. Demott (Clement & Murphy, PLLC) represent WilmerHale.

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

[Facsimile fun, federal funding freezes, and fateful photos.]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New cert petition: Friends, it is almost entirely illegal to advertise medical marijuana in Mississippi even though the state has legalized the industry. And yet! The First Amendment protects truthful speech that proposes a legal commercial transaction, so we're asking the Supreme Court to step in and resolve a circuit split on how to apply its four-part test for the regulation of commercial speech.

New on the Short Circuit podcast: What's up with substantive due process?

In response to various federal funding freezes imposed by the Trump administration, 22 states, the District of Columbia, and the governor of Kentucky sue, alleging that the freezes and an OMB memo implementing them are illegal in a slew of ways. The day after the lawsuit is filed, the administration revokes the OMB memo, but the funding freezes remain. A moot case? First Circuit: Not on your life. And the administration's motion to stay the district court's preliminary injunction is denied. New Jersey wife and husband are convicted of various horrendous child-endangerment crimes. District court (2015): 24 months' imprisonment for the wife and probation for the husband seems good enough. Third Circuit: No way. District court (2018): Okay, 40 months' imprisonment for the wife, and still probation for the husband. Third Circuit: You've screwed it up again. District court (2021): Fine! 40 months' imprisonment for the wife, and 18 months' home confinement for the husband. Third Circuit: No! And the case needs to get a new judge. District court (2023): 140 months for the wife, and 108 for the husband. Third Circuit: Affirmed. And the fact that the couple had already served their original, defective prison sentences during the (many) appeals doesn't give them a get-out-of-jail-free card on serving their at-long-last-correct sentences. The fun thing about being a lawyer is that sometimes you're fighting about how copyright intersects with advanced AI technology and sometimes you're fighting about whether a facsimile confirmation sheet is probative evidence that a plaintiff sent a fax in 2023. (The Fifth Circuit says it is.) You may have heard of East Coast rappers vs. West Coast rappers. A bit less familiar are Upwind States vs. Downwind States. While having little to do with music, their dispute intersects with how the EPA approves or rejects state implementation plans for reducing ozone. The EPA rejected those for Louisiana, Mississippi, and Texas. Fifth Circuit: And that was fine, except for the rejection of Mississippi's. The Supreme Court recently ruled that a party which receives preliminary relief against the gov't cannot later be granted attorneys' fees if the case becomes moot before it reaches a final judgment. (An outcome with which IJ disagrees.) Sixth Circuit: And that means a Kentucky church that successfully challenged orders prohibiting church services during the height of the pandemic cannot now get any money. Man is convicted and sentenced to death for murder of 12-year-old boy in Warren, Ohio in 1985. His direct appeal fails, as does his first habeas petition (after much activity, including a trip to SCOTUS). He files another habeas petition. Sixth Circuit (2023) (en banc): The new one is "second or successive," so it must meet the gatekeeping provisions of AEDPA. Sixth Circuit (2025) (unpublished): Modern forensic scientists no longer endorse bitemarks, resulting in the revelation that a mark on the victim crucial to the conviction was not a human bitemark. He can file his petition. (NB: One might reasonably expect further decisions, as the three judges on the 2025 panel decision dissented in the 2023 en banc decision.) Detroit man spends 15 years in jail for a murder he didn't commit, based primarily on inconsistent and retracted testimony of an eyewitness who identified him from a standalone photo (not in a photo array) that didn't match the witness's prior description of the shooter. After exoneration, he sues the detective on the case. Sixth Circuit: No qualified immunity for due-process claims for withholding evidence and using an overly suggestive identification. Concurrence: That's what our precedents require, but I'm not sure suggestive identifications are themselves constitutional violations, and we should give more qualified immunity in suppressed-evidence cases. Dissent: The real problem was not the detective, but shoddy defense counsel and poor choices by the prosecutor and judges. Chicago man spends 15 years in jail for a murder he didn't commit, in part because police showed suggestive photos to witnesses. Seventh Circuit: Which isn't itself a violation of due process. Your qualm is instead with the prosecutors and judges (and shoddy defense counsel). Allegation: Whittier, Calif. police take woman to ground without warning during 2020 police appreciation parade. A counter protestor, she'd been yelling expletives to express distaste for police brutality. Once on the ground, she tries to bite an officer, resulting in more rough handling that necessitates surgery for nerve damage. Ninth Circuit (unpublished): And since the video doesn't show any lawbreaking prior to her arrest, her claims must proceed to trial. The fourth entry in Laura Loomer's ill-fated saga of lawsuits alleges that various organizations, including Facebook and Twitter, did the RICO by conspiring to censor conservative voices and interfere with elections. Ninth Circuit (unpublished): Loomer's complaint lacks plausible allegations of RICO violations. She already amended the complaint once, and the lower court was within its discretion to deny another amendment. Dismissal affirmed. In 2020, Burlington, Wash. officers get a warrant to scour a man's computer after an alleged sexual assault, including a catch-all "dominion and control" clause that effectively authorized an unlimited search of any documents or files. They find child porn from 2016 and charge him in federal court. Ninth Circuit (over a partial dissent): That's an unlawful general warrant if I've ever seen it—no good-faith exception, no plain view, no dice. Evidence suppressed, conviction and sentence vacated. Florida's Lake Okeechobee had no defined southern border before humans got involved, leaving it to flow into the Everglades in the wet seasons. Since the first canals were dredged and housing built along the lake in the 1920s, the gov't has constantly fought the incursion of water. A slew of laws and regulations have sought to address it, by way of levees, hurricane gates, canals, dikes, and scrupulously maintaining the level of the lake. Agricultural users of the water prefer the lake to contain more water than the baseline level indicated by a project authorized by the Army Corps of Engineers, which the farmers contend violates the aforementioned slew of laws and regulations. Eleventh Circuit: No violation here.

Some good news from the states: This week, Virginia prohibited occupational licensing boards from using vague and arbitrary criteria like "good moral character" and "moral turpitude" to reject applicants. Also salutary is a new provision that lets applicants request a written predetermination on whether their past criminal record will prevent them obtaining a license (before they spend years completing various schooling and training requirements). Not to be outdone, Utah this week enacted a law barring occupational licensing boards from rejecting applicants over unrelated criminal convictions that are over five-years old. The law, which passed both houses unanimously, also stops boards from considering expunged or juvenile records. Huzzah! Click here and here to learn more.

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[Ilya Somin] Michael Ramsey's "The Originalist Case Against the Insular Cases"

[An important new article explains why the Supreme Court's precedents denying many constitutional rights to residents of America's overseas territories are wrong.]

In the Insular Cases of the early twentieth century, the Supreme Court ruled that much of the Constitution does not apply to America's "unincorporated" overseas territories, such as Puerto Rico. Thus, the federal government could rule the people there without being constrained by a variety of constitutional rights.  In 2022, Supreme Court Justice Neil Gorsuch urged the Court to overrule these decisions.

Prominent originalist legal scholar Michael Ramsey has an important new article explaining why Gorsuch was right. Here is the abstract:

Concurring in United States v. Vaello Madero, Justice Neil Gorsuch argued that the Insular Cases are contrary to the Constitution's original meaning and should be overruled. The Supreme Court's decisions in the Insular Cases, which created a second-class constitutional status for U.S. overseas territories, have also been criticized by leading originalist scholars such as Professors Gary Lawson and Michael Paulsen. However, there is no fully developed scholarly assessment of the Insular Cases from an originalist perspective; their inconsistency with an originalist approach is more assumed than proven. This Article fills that gap. Using the methodology of original public meaning, it considers the constitutional status of U.S. territories from the founding era through the early nineteenth century to the constitutionalization of U.S. citizenship in the Fourteenth Amendment.

Although the matter is somewhat more complicated than Justice Gorsuch's concurrence may suggest, this Article finds no foundation in traditional originalist sources for the Insular Cases' differential treatment of overseas territories. To the contrary, it concludes that U.S. territories were widely understood to be broadly encompassed by the Constitution without differentiation until an academic and judicial reassessment at the beginning of the twentieth century, impelled by U.S. acquisition of territories with substantial non-white populations, set the stage for the Court's newly invented doctrine. This Article thus concludes that Justice Gorsuch's assessment is correct and should carry weight with the Court's originalist-oriented majority. Finally, this Article examines from an originalist perspective the implications for territorial government of overruling the Insular Cases, which it concludes would be significant but not substantially destabilizing.

At the Legal Theory Blog, Prof. Larry Solum gives this article his much-coveted "highly recommended" rating.  I agree! The article is both compelling and important.

I would add that the Insular Cases are not the only important nonoriginalist, atextual abrogations of constitutional rights blessed by the Supreme Court as a result of late-19th century racial bigotry. The same is true of the "plenary power" doctrine, which exempts immigration restrictions from many of the constitutional constraints that apply to all other exercises of federal power. While later decisions have called elements of this doctrine into question, enough remains that it is not completely clear whether, for example, the government can deport immigrants for speech protected by the First Amendment (though I argue the answer should be an emphatic "no").

The Supreme Court would do well to definitively repudiate both these pernicious legacies of the same era that gave us Plessy v. Ferguson.

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[Eugene Volokh] Paul Clement's Argument Against the Executive Order Targeting the WilmerHale Law Firm

[It's a lawyer's argument, not an attempt at objective analysis. But I think that on balance it is generally quite correct, and powerfully framed.]

I'll have a further post next week about the First Amendment and right-to-counsel problems with some of President Trump's Executive Orders. But in the meantime I thought I'd quote the introduction to the Complaint in Wilmer Cutler Pickering Hale & Dorr LLP v. Executive Office of the President, filed by former Solicitor General Paul Clement and his colleagues Erin Murphy and Joseph J. Demott at Clement & Murphy, PLLC:

"[T]he right to counsel is the foundation for our adversary system," Martinez v. Ryan (2012), and the "courage" of attorneys who take on unpopular clients has long "made lawyerdom proud," Sacher v. United States (1952). John Adams famously embodied these principles by defending eight British soldiers in the "Boston Massacre" trial, an effort he described as "one of the best pieces of service I ever rendered my country." And British monarchs' practice of punishing attorneys "whose greatest crime was to dare to defend unpopular causes"—which threatened to reduce lawyers to "parrots of the views of whatever group wields governmental power at the moment"—helped inspire the Bill of Rights. Cohen v. Hurley (1961) (Black, J., dissenting). It is thus a core principle of our legal system that "one should not be penalized for merely defending or prosecuting a lawsuit." F. D. Rich Co. v. United States ex rel. Indus. Lumber Co. (1974).

In an unprecedented assault on that bedrock principle, the President has issued multiple executive orders in recent weeks targeting law firms and their employees as an undisguised form of retaliation for representing clients and causes he disfavors or employing lawyers he dislikes. These "personal vendetta[s]" are so facially improper that the first court to address the merits of one of these orders concluded that it likely violates multiple foundational safeguards enshrined in the Bill of Rights.

The latest such directive …, dated March 27, 2025, targets Wilmer Cutler Pickering Hale and Dorr LLP …. Titled "Addressing Risks From WilmerHale LLP," the Order avowedly punishes WilmerHale for various matters the Firm has handled, including some it has taken on pro bono, and for its employment of certain attorneys who participated in the Department of Justice's investigation of the 2016 presidential election. In particular, WilmerHale has been a professional home for public servants like Robert Mueller and represented (among many others) President Trump's political opponents, including in litigation on behalf of the Democratic National Committee and the Biden and Harris campaigns in the two most recent presidential elections. This past month, WilmerHale also filed a lawsuit challenging the President's sudden dismissal of eight inspectors general at major federal agencies.

The Order's declared purpose is to retaliate against WilmerHale—and certain of its clients—for WilmerHale attorneys' constitutionally protected advocacy in matters that President Trump perceives to be adverse to his personal and/or political interests. Among other things, the Order accuses WilmerHale of "abus[ing] its pro bono practice," specifically referencing the Firm's election- and immigration-related litigation and its defense of race-based college admission policies.

The Order also singles out retired WilmerHale partners Robert Mueller and James Quarles and current partner Aaron Zebley because of their involvement in the Department of Justice's investigation into allegations of Russian interference in the 2016 presidential election, in which Mr. Mueller served as Special Counsel. While most litigation requires discovery to unearth retaliatory motive, the Order makes no secret of its intent to punish WilmerHale for its past and current representations of clients before the Nation's courts and for its perceived connection to the views that Mr. Mueller expressed as Special Counsel.

Section One of the Order vigorously criticizes WilmerHale for advocating in favor of clients and causes that the President disfavors. The Order accuses WilmerHale of "earmarking hundreds of millions of [its] clients' dollars for destructive causes" and "engag[ing] in activities that undermine justice and the interests of the United States." It also accuses the Firm of "abus[ing] its pro bono practice" to "engage[] in obvious partisan representations to achieve political ends, support[] efforts to discriminate on the basis of race, back[] the obstruction of [immigration-enforcement] efforts," and "further[] the degradation of the quality of American elections, including by supporting efforts designed to enable noncitizens to vote." The Order makes clear that these allegations are based on actions WilmerHale has taken in certain client representations before this Nation's courts, many of which have been successful and drawn plaudits—and certainly not sanctions—from the courts that directly oversaw the litigation.

Section One further criticizes WilmerHale for "employing" certain "lawyers" whom President Trump dislikes. Specifically, the Order criticizes WilmerHale for "welcoming" Robert Mueller, James Quarles, and Aaron Zebley back to the Firm after the conclusion of the Special Counsel investigation into the 2016 election.

The Order accuses these attorneys—all of whom were involved in a Justice Department investigation conducted under an appointment by the Acting Attorney General of the United States—of having "weaponize[d] the prosecutorial power to upend the democratic process and distort justice" during "[Mr.] Mueller's investigation" and states that this alleged "weaponization of the justice system must not be rewarded, let alone condoned." The Order specifically criticizes WilmerHale for claiming that Mr. Mueller "embodies the highest value of our firm and profession," when, in the President's view, he "l[ed] one of the most partisan investigations in American history."

Section Two directs "[t]he Attorney General, the Director of National Intelligence, and all other relevant heads of executive departments and agencies" to immediately "suspend any active security clearances held by individuals at WilmerHale" and to review whether to revoke them permanently. This direction bypasses the existing procedures for granting and revoking security clearances and addresses individuals at the Firm without regard to when they joined the Firm and whether they had any personal connection to any of the representations criticized in the Order.

Section Three takes aim at WilmerHale's finances by pressuring its current clients to leave the Firm and prospective clients to stay away. The Order accomplishes this by directing federal agencies to (1) "require Government contractors to disclose any business they do with WilmerHale"; (2) seek to "terminate any contract … for which WilmerHale has been hired to perform any service"; and (3) reassess all "contracts with WilmerHale or with entities that do business with WilmerHale," suggesting that such relationships may not "align[] with American interests."

Section Four references a portion of the Perkins Order that instructs federal officials to "investigate" diversity, equity, and inclusion policies at "large, influential, or industry leading law firms."

Lastly, Section 5 of the Order directs federal agencies to "limit[]" WilmerHale employees' "access" to "Federal Government buildings" and stop "engaging with WilmerHale employees" whenever it would "be inconsistent with the interests of the United States." It also instructs agency officials to "refrain from hiring employees of WilmerHale, absent a waiver from the head of the agency, made in consultation with the Director of the Office of Personnel Management."

The President's sweeping attack on WilmerHale (and other firms) is unprecedented and unconstitutional. The First Amendment protects the rights of WilmerHale, its employees, and its clients to speak freely, petition the courts and other government institutions, and associate with the counsel of their choice without facing retaliation and discrimination by federal officials. Indeed, the Supreme Court recently reaffirmed the bedrock law that the government may neither "use the power of the State to punish or suppress disfavored expression" nor "attempt to coerce private parties in order to" accomplish those forbidden ends. NRA v. Vullo (2024).

The Order also violates the separation of powers twice over. The President's role is to enforce the law—not to create new law or adjudicate litigation conduct before the courts— and no statute or constitutional provision empowers him to unilaterally sanction WilmerHale in this manner. That is unsurprising; any legislative effort to restrict lawyers' access to government buildings, services, and materials just for representing disfavored clients or causes would be patently unconstitutional. And any executive-branch effort to deter private attorneys from representing particular clients or advancing particular arguments "threatens severe impairment of the judicial function," as courts depend on attorneys to "present all … reasonable and well-grounded arguments" on their clients' behalf. Legal Servs. Corp. v. Velazquez (2001).

On top of that, the Order flagrantly violates due process. It imposes severe consequences without notice or any opportunity to be heard; it uses vague, expansive language that does not adequately inform WilmerHale (or its clients) of what conduct triggered these extraordinary sanctions; and it unfairly singles out WilmerHale based on its perceived connections to disfavored individuals and causes.

Finally, the Order violates the right to counsel protected by the Fifth and Sixth Amendments and imposes unconstitutional conditions on federal contracts and expenditures.

For any and all these reasons, the Order cannot stand….

For more legal details, you can also see the preliminary injunction motion. Note also Ed Whelan (National Review) on Clement's filing. [UPDATE: I should have noted at the outset that I have no informed opinion on the security clearance portion of the argument, since that's a specialized area of law about which I know little.]

The post Paul Clement's Argument Against the Executive Order Targeting the WilmerHale Law Firm appeared first on Reason.com.

[Ilya Somin] Federalist Society Webinar on "The California Wildfires and America's Housing Shortage"

[The panelists included M. Nolan Gray, Jennifer Hernandez, and myself.]

(Erin Donalson | Dreamstime.com)

Earlier this week, the Federalist Society held a webinar on "The California Wildfires and America's Housing Shortage." I have posted the video below.

The participants were M. Nolan Gray (nationally recognized housing expert and author of Arbitrary Lines: How Zoning Broke the American City and How to Fix It), Jennifer Hernandez (prominent California land-use lawyer), and myself. It is notable that experts with widely divergent political views (Gray seems to be a political moderate, Hernandez is on the left, and I am a libertarian) largely agreed that a combination of exclusionary zoning and regulatory restrictions on building are impeding post-fire reconstruction and exacerbating a housing crisis that was already severe before the fires. Gray warns that, if regulatory barriers are not cut back, much of the destroyed area might still be in ruins years from now. Sadly, that is exactly what has happened in Maui, where only 3 of 2000 burnt-out homes have been rebuilt some 18 months after a devastating fire hit that area.  In Pacific Palisades, only four rebuilding permits have been issued some 75 days after the end of the fire there, which destroyed 6800 structures.

I previously wrote about how exclusionary zoning exacerbated the impact of the fire and makes recovery more difficult here. In a recent Texas Law Review article my coauthor Josh Braver and I argue that zoning restrictions on housing construction violate the Takings Clause of the Fifth Amendment. For a  summary of our argument, see our June 2024 article in the Atlantic.

Here is the video:

The post Federalist Society Webinar on "The California Wildfires and America's Housing Shortage" appeared first on Reason.com.

[Eugene Volokh] Sixth Circuit Won't Hear Pre-Final-Judgment Appeal in Case Alleging Ohio School "Encouraged Young Children to Become Transgender …

[and then lied to parents about what was happening." Because some claims remain undecided in trial court, the court of appeals holds it lacks jurisdiction over the appeal.]

From yesterday's opinion by Judges Eric Clay, Amul Thapar, and Stephanie Dawkins Davis in Kaltenbach v. Hilliard City Schools (6th Cir.):

Plaintiffs—several parents of children who are currently enrolled in the Hilliard City School District (the "In-District Plaintiffs"), and one parent, D.S., of a student who was previously enrolled in the school district—appeal the district court's dismissal, without prejudice, of the In-District Plaintiffs' claims and all but three of D.S.'s claims for lack of standing….

We have jurisdiction over appeals from final judgments of the district court. 28 U.S.C. § 1291. In the absence of a certification by the district court, an order or decision "that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action." Three of D.S.'s claims remain pending in the district court, which did not grant certification under Rule 54(b) for Plaintiffs to appeal its dismissal order.

Plaintiffs therefore attempt to invoke the collateral order doctrine, which vests us with jurisdiction over an appeal from a non-final order if it conclusively determines the disputed question, resolves an important issue completely separate from the merits, and is effectively unreviewable on appeal from a final judgment. We have held that standing fails the final prong of the collateral order doctrine inquiry; thus, we lack jurisdiction to review a non-final order on the basis that it granted or denied standing. Because Plaintiffs appeal a non-final order dismissing their claims only on standing grounds, the collateral order doctrine does not apply. Accordingly, the appeal is DISMISSED for lack of jurisdiction.

Judge Thapar concurred, writing:

The allegations in this case are beyond troubling. The plaintiffs say that a school district in Ohio encouraged young children to become transgender and then lied to parents about what was happening. They also say this decision wasn't just the act of a rogue educator; it was district policy. For one child, T.S., the ramifications were tragic: she attempted to commit suicide. And she's getting her day in court.

Because the District hasn't been forthcoming about what is taking place inside its walls, other parents sued to protect their children, too. While the complaint paints a detailed and stark picture of what happened to T.S., it leaves these other parents as an afterthought.

Because of this, the district court found that those plaintiffs lacked standing. In other words, the complaint doesn't explain how any injury to these plaintiffs is imminent. And it's well settled that we don't have jurisdiction to review this determination until the case is complete.

Of course, this procedural defect in no way diminishes the gravity of the plaintiffs' allegations. And while this case will ultimately make its way to us, for some that might be too late. Thus, plaintiffs would be wise to amend their allegations below so their case can go forward.

[1.] According to the complaint, this case began when one of the plaintiffs' daughters, an eighth-grader named T.S., began suffering from mental health issues. Her mother, D.S., did what any parent would do: she tried to get help for her child.

But T.S. 's school had a different plan. The plaintiffs assert that some teachers in the Hilliard City School District concluded that T.S. was experiencing so-called "gender dysphoria." Without asking T.S.'s parents, the school decided, on its own, that it would start treating T.S. as a male. The plaintiffs say the teachers "convinced T.S. she was a boy in a girl's body" and had her "adopt a new name and identity as the opposite sex." The school's decision had tragic consequences: T.S. attempted suicide at school.

But this distressing series of events is about more than the school's "remedy" for T.S. 's struggles. It's also about the school's deception. While T.S. was suffering, the school allegedly misled her parents about the well-being of their daughter. The school treated T.S. as a girl whenever she was around her parents, hoping to hide from T.S. 's family the new identity that the school had concocted for her.

Indeed, T.S.'s mother only found out about her daughter's alleged transgender status when the school sent T.S. a postcard using a male name. Had T.S.'s parents known about the school's actions, they could've intervened and sought medical help for their daughter. But the school stripped them of that possibility.

After T.S. attempted suicide, a group of parents discovered the District's policy of deception. The parents report that, if the Hilliard City School District thinks a parent isn't supportive enough of what it calls "LGBTQA+ youth or issues," the district will label that parent ''unsafe." And if a parent is tarred with that label, the school will withhold important information from the parents, such as whether the school thinks the child should be "transitioned" from one sex to the other.

Allegedly, the school even asked students for their preferred pronouns while at school and their preferred pronouns around their parents. The parents also learned that teachers wore badges with QR codes that students—who are young children—could scan to access pornographic content and obscene material instructing children about sexual acts.

All told, the parents learned of many appalling activities at the schools with which they had entrusted their children. So, D.S. and other parents filed a lawsuit. By the time she sued, D.S. had taken T.S. out of Hillard schools. But the other parents still had children in the school district.

In a combined complaint, D.S. and the parents raised eight claims. The first three involved only D.S. She argued that the district's decision to secretly "diagnose[]" and "treat[]" her child for a mental health issue violated D.S.'s rights to (1) familial integrity and (2) freedom of conscience to make decisions about her daughter. She also alleged that the District caused intentional or reckless infliction of emotional distress.

D.S. also joined with the rest of the in-district parents to bring five additional claims. The first four of these claims requested declaratory judgments that the District's policies violated the parents' rights to freedom of conscience, familial integrity, freedom of speech, and due process. The last claim requested an injunction against teachers' ability to display QR codes that led students to explicit materials.

The district court dismissed counts four through eight for both D.S. and the in-district parents. The court said that because D.S. had removed her daughter from the school, she no longer faced harm from the challenged policies. And the court said the in-district parents hadn't alleged an injury-in-fact.

In the court's view, that meant that D.S. and the in-district parents lacked Article III standing to bring these claims. In dismissing the parents' claims, the court highlighted that the complaint said very little about the in-district parents. As the district court saw it, the parents never alleged that their children would show signs of mental illness or would be subjected to the school's gender-transitioning efforts. For that reason, the court suggested that the parents hadn't alleged the sort of injury that's necessary to support a federal lawsuit.

And, while parents are right to be concerned about the conduct at their child's school, to succeed in court, they must tie their concern to a specific and individualized harm. For example, while the parents alleged in paragraph 21 that they had "identified other Hilliard parents who will be witnesses in this matter, who have similar stories" to T.S., they never said whether those particular plaintiffs with "similar stories" were among the plaintiffs to the suit.

Likewise, while the complaint said that the parents were concerned about the district's policies, it never explained that their children would likely be subjected to those policies. Thus, the district court found there wasn't enough to show why these specific parents were harmed by these specific policies. So the court held that these plaintiffs lacked standing. But the court allowed three of D.S.'s individual claims to remain. The plaintiffs appealed.

[2.] Our order today does not decide the merits of the parents' claims, which raise serious questions about the district's policies. Instead, we decide only a limited question: whether this court has jurisdiction over a non-final order of a district court. We do not.

Why? Intermediate appellate courts can hear appeals only from final judgments. 28 U.S.C. § 1291; see Cohen v. Beneficial Indus. Loan Corp. (1949). And there's no final judgment here. Instead, the court dismissed only some of the lawsuits' claims.

Faced with this final judgment rule, the plaintiffs argue they fall into an exception called the collateral order doctrine. Under the collateral order doctrine, we can hear an appeal if the appealed order conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action, and is effectively unreviewable on appeal from a final judgment.

The plaintiffs say a partial dismissal for lack of standing falls within that exception. But the collateral order doctrine doesn't let us rule on plaintiffs' arguments at this stage of the litigation. To be sure, the court's dismissal of some of the action's claims for lack of standing determines a disputed question and resolves an important issue separate from the merits. But the resolution of the standing question is not "effectively unreviewable on appeal from a final judgment." Once the district court reaches a final judgment, we will be able to review the court's standing determination and, if necessary, reverse.

Further, we have previously held (albeit in an unpublished opinion) that we lack jurisdiction to review a district court's order on standing. Our sister circuits agree that a district court's ruling on standing isn't immediately appealable. Thus, we can't review the district court's determination that some of the parents lack standing.

[3.] That doesn't leave the plaintiffs without a remedy. Federal Rule of Civil Procedure 15(a)(2) states that courts should grant leave to amend a complaint "when justice so requires." Here, the plaintiffs have alleged an injustice, both as to D.S. and to the other parents. If ever there were a case ripe for amending a complaint, this is it.

In considering how to proceed, the plaintiffs might consider a few things. First, D.S. still has three live claims. That means she will get her day in court. Second, while the district court dismissed the other parents' claims for lack of standing, it did so only because of defects in this version of the plaintiffs' complaint. The district court just said the parents hadn't explained that the school was likely to deem them unsafe. So the in-district plaintiffs have a choice: either (1) wait for final judgment in this suit, and then bring their appeal about the district court's standing determination back to this court or (2) amend their complaint to provide more detail about what happened to them, so they can avoid dismissal for lack of standing in the first place.

In reworking their complaint, the plaintiffs would be wise to pay attention to the rules of standing. As the Supreme Court has explained, any alleged threatened injury must be certainly impending. Here, the district court found that the complaint didn't adequately explain why the plaintiffs were likely to suffer from the policies. In other words, it said that the plaintiffs' allegations were too vague for the court to conclude they raised the specific type of certainly impending injury the Supreme Court requires.

To determine whether an injury meets that bar, a court would ask several questions:

Did the parents plausibly plead that their specific children are at risk of the school thinking they have gender dysphoria? Did the parents plausibly plead that they have "similar stories" to D.S., meaning that the District denied them information and tried to transition their child? Did the parents plausibly plead that they have specific views that that the school was likely to deem "unsafe," meaning that the school is likely to hide information about their children from them? Did the parents plausibly plead that their particular schools were enforcing policies like those that D.S. and T.S. faced?

Answers to these questions would help the court discover why these plaintiffs face the harms they describe. They're designed to get at the level of specificity that the plaintiffs alleged when they recounted what happened to T.S.

And if the plaintiffs revise their pleadings, it shouldn't be hard for them to establish Article III standing. Indeed, the court's primary concern was that the in-district parents "have not alleged that they do anything … that might earn them the label of 'unsafe."' So it dismissed for lack of standing. But that determination does not doom future plaintiffs who answer such questions in their complaints.

Because the collateral order doctrine forecloses our review, I concur in the order.

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