Eugene Volokh's Blog, page 137

[Josh Blackman] Guest Post: Reconsidering the [Non-]Appealability of TROs

["To the contrary, an examination of the history of TROs and interlocutory appeals reveals that TROs were not appealable solely because of a now-repealed statutory requirement that the appealed-from interlocutory order be issued 'upon a hearing.'"]

One of the recurring issues in Trump 2.0 is the issuance of "non-appealable" TROs. Indeed, some district courts have issued "non-appealable" administrative stays. There is a host of circuit precedent holding that such temporary orders cannot be appealed; rather, the only appellate process is the extraordinary writ of mandamus. That argument may make sense when a TRO only affects two parties in routine litigation. As a general matter, it would not be a good use of judicial resources to jam the circuit courts with emergency motions to stay on a mundane case. But the concept of an unappealable order is far more problematic the context of a universal TRO against the federal government. Could it really be the case that a single district court judge can force the federal government to do, or not do something, and the appellate courts lack jurisdiction to reverse that ruling?

Tyler B. Lindley, Morgan Bronson, and Wesley White have published a new essay that looks at the issue of unappealable orders. Here is the abstract for Appealing Temporary Restraining Orders, which is. forthcoming in the Florida Law Review:

Temporary restraining orders (TROs) are a powerful injunctive tool for district courts to maintain over a case by directly controlling the parties' out-of-court conduct, especially when both the facts on the ground and the litigation are moving at breakneck speed. In response to the wave of TROs against the Trump Administration, appellate courts have struggled with the power of these orders and the longstanding rule that parties cannot appeal from TROs. But that rule is not found anywhere in the relevant statute, which authorizes interlocutory appeals from any order concerning an injunction. To the contrary, an examination of the history of TROs and interlocutory appeals reveals that TROs were not appealable solely because of a now-repealed statutory requirement that the appealed-from interlocutory order be issued "upon a hearing." Even if that requirement applies today, most modern TROs (especially against government defendants) are now issued after a hearing and so should be appealable. Those appeals might quickly become moot at the TRO expires or merges into a preliminary injunction, but appellate courts should nevertheless have the option to expedite the appeal or grant emergency relief.

I asked the authors if they would be willing to submit a guest post to the Volokh Conspiracy, and they were kind enough to offer this entry:

The Trump administration has been unable to appeal several temporary restraining orders (TROs) issued against it because of the accepted rule that TROs are ordinarily not appealable. But that rule appears to run counter to the current text of the interlocutory-appeal statute. Our new essay, Appealing Temporary Restraining Orders (forthcoming in the Florida Law Review), argues that the general rule barring appeals from TROs originated when an earlier version of the statute required that the appealed-from interlocutory order be issued "upon a hearing," and by design, most TROs were not.

Since January, district courts have issued numerous TROs enjoining the Trump Administration from carrying out or implementing various policies and programs. One TRO even ordered the Administration to treat former head of the Office of Special Counsel Hampton Dellinger as if he had not been fired. But the D.C. Circuit refused to allow an appeal, and the Supreme Court refused to address the issue until the TRO expired.

Why couldn't the government appeal the TRO? The relevant statute states that "the courts of appeals shall have jurisdiction of appeals from . . . [i]nterlocutory orders" concerning "injunctions." And TROs are a species of injunction just like a preliminary injunction. Nevertheless, as Steve Vladeck summarized, "[T]he consensus has long been that it would cause chaos if grants or denials of TROs were immediately appealable." However, notwithstanding that general rule, courts have allowed appeals from TROs when the TRO (or denied TRO) operates like a preliminary injunction and causes the losing party serious harm that would undermine the purpose of the interlocutory-appeal statute.

Generally, such practical concerns would be insufficient to deviate from unambiguous language. And if the statute does exclude TROs, it is unclear why there is an exception to promote the supposed purposes of the statute. We dug into the history to figure out whether this was an instance of loose statutory interpretation or whether there was a better explanation for why courts have excluded TROs from the statute.

Congress first authorized TROs in 1872. Under that statute, judges were authorized to issue TROs as soon as the motion for a preliminary injunction was filed if there was "danger of irreparable injury." The restraining order would then be served with notice of the motion and the hearing. So TROs were almost always issued ex parte and without a hearing. By contrast, preliminary injunctions required notice and an opportunity to be heard. Thus, a hearing was an important dividing line between a TRO and a preliminary injunction, (together with other distinctions including the burden for obtaining the injunction, its purpose, and its length).

In 1891, Congress bucked the common-law limitation of appeals to final judgments and authorized interlocutory appeals from "an interlocutory order or decree granting or continuing [an] injunction." (Congress later expanded the scope of the statute to include nearly all interlocutory orders concerning injunctions.) But the statute limited such orders to those issued "upon a hearing in equity." As noted above, TROs in the late 1800s were not issued "upon a hearing." So with rare exception, TROs were textually excluded from the interlocutory-appeal statute.

Early courts recognized this distinction. Although some courts concluded that all TROs were appealable, and some pointed to the practical differences in excluding TROs, the hearing requirement remained the driving divide. For example, the Fifth Circuit in Joseph Dry Goods Co. v. Hecht, 120 F. 760 (5th Cir. 1903), explained that the hearing requirement was included to "distinguish the temporary order from the injunction [ultimately] granted at the hearing after notice." Id. at 763–64. Although judicial decisions were not always clear about why appeals were or were not allowed, our research (which is, admittedly, not perfectly exhaustive due to reporting practices at the time) reveals that TROs without a hearing were not appealable and those issued after a hearing were.

Later developments obscured this distinction. Through a combination of Supreme Court procedural rules and statute, courts were required to provide notice and hold hearings before issuing TROs, unless waiting would be impractical. Eventually, in 1966, the Court promulgated a rule requiring attorneys to certify to the efforts made to notify the opposing party and explain why a TRO could not be delayed. Today, ex parte TROs are rare, especially against government defendants.

In 1948, Congress recodified the Judicial Code. In doing so, it reorganized the interlocutory-appeal statute into the version we have today. In the process, however, Congress omitted the hearing requirement altogether. So any textual basis for excluding even TROs issued without a hearing is lacking. But no one appears to have noted the change, much less noticed the potential impact it could have on the appealability of TROs. And when Congress had earlier removed the phrase "in equity" from the requirement that the order be issued "upon a hearing in equity," the Supreme Court held that no substantive change was intended. See Schoenamsgruber v. Hamburg Am. Line, 294 U.S. 454, 457 (1935). Perhaps the same rationale applied here, especially considering the context of Congress's massive reorganization and recodification of the Judicial Code. Regardless, the statute supports at most a hearing requirement, which would mean that most TROs today are appealable.

To be sure, stare decisis plays a role here. The Supreme Court and every court of appeals has held that TROs are not generally appealable. And statutory stare decisis places a heavier burden on those seeking to jettison precedent. But even if there are reasons to counsel against overruling those precedents, understanding the source, scope, and history of that general rule might lead courts to apply the current test loosely, increasing the number of TROs that are appealable.

What would appeals from TROs look like? Many would quickly become moot, as the TRO either expires or merges into a preliminary injunction. And this practical concern has led courts to generally exclude appeals from TROs while maintaining a purposivist carve-out for TROs that risk serious, perhaps irreparable, harm. But courts can use their resources to move quickly when the circumstances justify it. Courts might want to do so when there is an apparent legal error; when the balance of the equities weighs against the TRO, even if the harm to the losing party is not quite irreparable or sufficiently serious; or where the TRO takes the form of a nationwide injunction, and the appellate court wishes to pare it back. Even an appellate court's affirmance of a clearly correct TRO might save resources and signal to the parties the relative strengths of their arguments. In some ways, then our approach to appeals from TROs carries the benefits of both a formalist interpretation of the statute and a functionalist approach to when appeals from TROs should be allowed.

Moreover, posing the obstacles to appealing from TROs as a jurisdictional bar rather than a discretionary decision to expedite forecloses emergency relief. Courts of appeals should instead recognize that even if they are not able to reach a full decision on the merits of the TRO, they can still issue emergency relief staying that TRO (or issuing their own injunction should the TRO have been denied), provided that the other requirements for emergency relief have been satisfied.

The exception from immediate interlocutory appeals from TROs is now justified on practical grounds. But the reason for the bar initially flowed from the requirements of the statute, which have since been repealed. In light of the statutory authorization for immediate interlocutory appeals, appellate courts today should not reflexively refuse to hear appeals from TROs.

This argument should make its way into the litigation

The post Guest Post: Reconsidering the [Non-]Appealability of TROs appeared first on Reason.com.

[Michael Abramowicz] Major Technological Questions: The Example of Powered Flight

(Coauthored with John F. Duffy)

As discussed in a prior post, the core argument in our recently published article "Major Technological Questions" is that courts and agencies should hesitate to interpret ambiguous pre-existing legal authority as resolving legal questions newly raised by major technological developments. As we noted in that earlier post, we draw an explicit analogy to the modern major questions doctrine. Nonetheless, major technological questions differ from the large scale economic and social issues that currently trigger the major questions doctrine. Furthermore, major technological questions have applications not only in judicial interpretations of old statutes, but also in judicial application of pre-existing common law. In this post, we provide an excellent historical example of how courts should approach major technological questions in the application of pre-existing common law and in the formulation of new common law.

Our example involves a major technological question arising during the early legal history of powered flight. (Appropriately enough, one of us was writing and editing this post in a comfy chair 36,000 feet over the North Atlantic—something that would have been nearly unimaginable a century ago.)  When the Wright brothers made their historic flight in 1903, they avoided legal complications because their tests occurred on unowned beaches or personally owned land. But as aviation developed, a key legal issue soon emerged: whether airplanes flying over private land constituted trespass.

At the center of this issue was the old common law maxim: "Cujus est solum, ejus est usque ad cœlum et ad infernos"—translated as, "To whomsoever the soil belongs, he owns also to the sky and to the depths." This phrase, originating from Roman legal traditions and later embedded into English common law by preeminent legal authorities like Lord Coke and William Blackstone, seemed to suggest that landowners had rights extending vertically into the air above their land.

However, the maxim, while often cited, is riddled with ambiguities, especially when applied to the context of flight. Blackstone's Commentaries on the Laws of England provides the best source for understanding those ambiguities, and they fall into three major categories.

What's the Nature of Property Rights in Airspace?

Blackstone asserts that land legally extends both upward and downward, seemingly supporting the view that landowners control the space above their land. Yet, elsewhere, he distinguishes between tangible property (like land and buildings) and things like air and water, which he describes as common to all and only capable of "usufructuary" ownership—meaning that people can own and use them only while they remain in possession.

Thus, while landowners have some rights in the air above their property, these rights may be temporary and use-based, not absolute. The implication would be that surface ownership may not entail a right to exclude all overflights, particularly if the flights don't interfere with the use and enjoyment of the land and the physical structures attached to the land (like a building).

How High is the Sky?

The Latin phrase "ad cœlum" implies ownership "to the sky," but not necessary into or through it. The phrase thus raises the question of where exactly the sky begins or ends. Blackstone does not define this limit, but he does refer to land rights as having "indefinite" rather than "infinite" extent. Historically, the "sky" was conceptualized as relatively low, particularly before modern structures and technologies like skyscrapers and airplanes became common. Even in the 19th century, tall buildings—reaching only a few hundred feet—quickly became known as "skyscrapers," and many sources referred to such tall buildings as extending "into the sky." Such references suggest that, prior to the modern era, people viewed the "sky" as beginning at a relatively low altitude. If this interpretation holds, then aircraft flying at higher altitudes might not infringe on landowners' property rights even under the "ad coelem" maxim because property rights reached only "to the sky."

Do Property Rights Include Absolute Exclusionary Rights?

Another issue lies in the distinction between owning property and having an absolute right to exclude others from it. Blackstone himself notes in another volume that not all trespasses are unlawful; some may be justifiable, especially when they serve the public good. For example, hunting certain dangerous or nuisance animals on private land could be allowed if such hunting benefits the broader public. This idea—that some intrusions are acceptable if they are, in Blackstone's words, "profitable to the public"—could extend to airplane overflights. While flying over someone's land is not the same as chasing a fox through it, both could be justified if they serve a greater good, such as efficient transportation.

Implications for New Technology

Each of those ambiguities in traditional legal doctrine demonstrates why it is risky to treat past law as dispositive when dealing with new technologies. The maxim that a landowner owns everything "to the sky" or "to the heavens" was never precise or universally applicable, and its application to aviation—let alone to emerging technologies like drones, satellites, or space tourism—is highly uncertain.

The broader point is that the legal system must be forward-looking when addressing the implications of new technology. Courts should recognize that new inventions will often not fit neatly into preexisting legal categories. In fact, attempting to force new developments into old frameworks can result in stifling innovation or creating legal instability.

Ultimately, that is what the courts did with the trespass claims made during the early era of powered flight. They did not try to look at the pre-existing materials and ask, for example, what Blackstone would have thought if he had thought about the possibility of powered flight. They also did not try to parse the exact words of the legal maxim and then try to decide where a Roman or early English lawyer would view the sky as beginning.

Instead, the courts viewed the prior legal materials as simply not addressing the issue whether overflights were trespasses. The courts then, as common law courts, were free to adopt a legal rule based on policies that were responsive to the new technology. The end result—that planes flying over private property at relatively high altitudes did not trespass on the underlying owner's property but that ones at low altitudes (such as under 500 feet)—was based on modern assessments of, and balancing of, the economic interests that flight presented. Importantly, that resolution left open the possibility of further development in the industry and prevented an ancient and ambiguous legal maxim from thwarting the development of a new technology that, while small then, was destined to grow into one of the world's vital industries.

The post Major Technological Questions: The Example of Powered Flight appeared first on Reason.com.

[Ilya Somin] Supreme Court Refuses to Hear Case that Might Have Led to Overruling of Kelo v. City of New London

[We don't know why the justices chose not to take it.]

Susette Kelo's famous "little pink house," which became a nationally known symbol of the case that bears her name. (Institute for Justice.)

 

Today, the Supreme Court denied the petition for certiorari in Bowers v. Oneida County Industrial Development Agency, a case in which the Institute for Justice sought to persuade the Supreme Court to overrule Kelo v. City of New London (2005). Kelo was the controversial case in which the  Court held that the government could use eminent domain to take property in order to promote private "economic development," even though the Fifth Amendment says property can only be taken for a "public use."

I and other property rights advocates very much hoped the Court would take this case. I outlined the reasons why in an amicus brief I wrote on behalf of the Cato Institute and myself.

Today's outcome is disappointing. And, as is their usual practice, the justices did not give any reasons for why they chose not to hear a case, so we are left wondering why they didn't like Bowers, and what it would take to get them to hear another case on this issue.

However, as explained in our brief, "pretextual" takings doctrine is a big mess, and four current Supreme Court justices have expressed interest in revisiting or overruling Kelo. So there is yet hope they will take another case addressing this issue, perhaps even in the near future.

The post Supreme Court Refuses to Hear Case that Might Have Led to Overruling of Kelo v. City of New London appeared first on Reason.com.

[Jonathan H. Adler] What the Honorable Maryann Trump Barry Said about the Ability of the Secretary of State to Order the Deportation of Individuals Lawfully Present in the U.S.

[It turns out the President's sister concluded the law being used to deport Mahmoud Khalil is unconstitutional. ]

Adam Liptak reports that the law the Trump Administration is citing to deport Mahmoud Khalil was declared unconstitutional by President Trump's sister when she was a trial court judge. Liptak's story begins:

The 1952 law under which the Trump administration seeks to deport Mahmoud Khalil, a lawful permanent resident who helped organize protests at Columbia University, is largely untested.

Largely, but not entirely. It was ruled unconstitutional in 1996 — by President Trump's sister. . . .

At the time, Judge Barry was a federal trial judge, and so her ruling did not establish a precedent binding on other courts. In any event, an appeals court later reversed her decision, though on grounds unrelated to its substance.

But it remains the most thorough judicial examination of the constitutionality of the law, and other judges may find its reasoning persuasive.

The case was Massieu v. Reno, and here is how Judge Barry's opinion began:

Plaintiff, Mario Ruiz Massieu, seeks a permanent injunction enjoining the deportation proceeding instituted against him pursuant to 8 U.S.C. § 1251(a)(4)(C)(i) and a declaration that the statute, which has not previously been construed in any reported judicial opinion, is unconstitutional. That statute, by its express terms, confers upon a single individual, the Secretary of State, the unfettered and unreviewable discretion to deport any alien lawfully within the United States, not for identified reasons relating to his or conduct in the United States or elsewhere but, rather, because that person's mere presence here would impact in some unexplained way on the foreign policy interests of the United States. Thus, the statute represents a breathtaking departure both from well established legislative precedent which commands deportation based on adjudications of defined impermissible conduct by the alien in the United States, and from well established precedent with respect to extradition which commands extradition based on adjudications of probable cause to believe that the alien has engaged in defined impermissible conduct elsewhere.

Make no mistake about it. This case is about the Constitution of the United States and the panoply of protections that document provides to the citizens of this country and those non-citizens who are here legally and, thus, here as our guests. And make no mistake about this: Mr. Ruiz Massieu entered this country legally and is not alleged to have committed any act within this country which requires his deportation. Nor, on the state of this record, can it be said that there exists probable cause to believe that Mr. Ruiz Massieu has committed any act outside of this country which warrants his extradition, for the government has failed in four separate proceedings before two Magistrate Judges to establish probable cause. Deportation of Mr. Ruiz Massieu is sought merely because he is here and the Secretary of State and Mexico have decided that he should go back.

The issue before the court is not whether plaintiff has the right to remain in this country beyond the period for which he was lawfully admitted; indeed, as a "non-immigrant visitor" he had only a limited right to remain here but the right to then go on his way to wherever he wished to go. The issue, rather, is whether an alien who is in this country legally can, merely because he is here, have his liberty restrained and be forcibly removed to a specific country in the unfettered discretion of the Secretary of State and without any meaningful opportunity to be heard. The answer is a ringing "no".

The post What the Honorable Maryann Trump Barry Said about the Ability of the Secretary of State to Order the Deportation of Individuals Lawfully Present in the U.S. appeared first on Reason.com.

[Eugene Volokh] Exclusion of Drag Shows from Texas A&M Venues Likely Unconstitutionally Viewpoint-Based

A short excerpt from today's long decision by Judge Lee Rosenthal (S.D. Tex.) in Texas A&M Queer Empowerment Council v. Mahomes:

The Texas A&M Queer Empowerment Council ("QEC"), a student organization at A&M's College Station flagship campus has, for each of the last five years, sponsored a drag show cleverly named "Draggieland" on campus.  It is a ticketed event; only those who want to attend do so.  Anyone who finds the performance or performers offensive has a simple remedy: don't go. This year, the performance was scheduled for March 27, 2025.  But on February 28, after tickets were sold, the A&M Board of Regents banned the show from its "Special Event Venues" [which are otherwise generally open to student groups -EV].  No one can go to the scheduled March 27 performance at the on-campus venue that was reserved in advance, even those who want to attend.

The court noted (among other things) that, when a university opens up venues to student groups, it can't then impose viewpoint-based limits on the groups' speech (see, e.g., Rosenberger v. Rector (1995), among many other cases); and the court concluded that this exclusion was viewpoint-based, because the premise of the exclusion was that drag shows are "demeaning" to women:

The Board argues that the ban is viewpoint-neutral because "[t]he Resolution finds that the act of a drag performance that falls within specific parameters—namely, one that features biological males dressing in women's clothing with makeup or prosthetics exaggerating stereotypical female physiognomies, is open to the public, involves 'sexualized, vulgar, or lewd conduct,' and involves conduct that demeans women—is 'inconsistent with the System's mission and core values.'" Put another way, the Board argues that "[t]he Resolution targets conduct that is demeaning, regardless of whether that conduct is meant to express a viewpoint that is itself demeaning." The Board appears to argue that the ban is not a viewpoint-based restriction because the QEC and Draggieland performers do not intend to convey a demeaning message.

The Board's argument is both faulty in logic and contrary to longstanding First Amendment jurisprudence. First, "censorship based on a state actor's subjective judgment that the content of protected speech is offensive or inappropriate is viewpoint discrimination." Whether drag shows are "demeaning" is precisely the type of subjective judgment that … cannot form the basis for a restriction on expression. The distinction the Board attempts to make could be used to justify restraints on a wide variety of expressive conduct that is intended to convey a message but may be construed as offensive, shocking, or demeaning by state actors, such as burning the American flag. Our Constitution does not allow for such subjective and unrestricted limits on expression based on viewpoint.

Performances by men dressed as women are nothing new. Men have been dressing as women in theater and film for centuries. It is well-established among scholars of Shakespeare's literary works that, when his plays were written and performed, female characters were played by young men dressed in women's attire. Women may not have been permitted to perform themselves in Shakespeare's time, but that has not been true for many years. Yet many popular contemporary musicals and films have included male characters dressed in what amounts to drag, including Hairspray (1988), Mrs. Doubtfire (1993), and White Chicks (2004). In the college campus context, organizations like Harvard University's Hasty Pudding Club have put on performances with male performers dressed in drag in campus theaters for centuries. Those performances continue to this day. When do performances in which men dress as women cross the line from entertaining to demeaning? The impossibility of objectively answering that question demonstrates why such standards are impermissible as the basis for a restriction on expressive conduct.

The Board's argument that a recent federal executive order necessitates banning drag shows from Special Event Venues fares no better. The Board points to the president's executive order stating that "[f]ederal funds shall not be used to promote gender ideology." The executive order defines gender ideology, in part, "as [the] ever-shifting concept of self-assessed gender identity, permitting the false claim that males can identify as and thus become women and vice versa."

This executive order cannot override First Amendment protections. The Board states that it is banning drag shows on campus because they "promote gender ideology" by advancing the view "that that there is a vast spectrum of genders that are disconnected from one's sex." The fact that the Board justifies its ban on drag shows by saying it aligns with the rejection of a certain ideology belies the Board's contrary position that the ban is viewpoint neutral. The Board's stated justification is the kind of viewpoint discrimination proscribed by the Court in Rosenberger v. Rector (1995): a restriction that "targets not subject matter, but particular views taken by speakers on a subject."

The Board's position conflates biological sexual identity—which the executive order defines as limited to male and female—with the various ways humans have creatively described sex and sexuality in literature, art, and theater. Nothing in the Draggieland performance offends the executive order the Board cites. No male performer in the drag show is stating an intent to become a woman. Nor does the Board point to evidence in the record establishing that the president's executive order on "biological truth" specifically refers or applies to drag shows.

The QEC's complaint makes clear that by donning clothing and makeup traditionally associated with the opposite sex, Draggieland performers intend to convey a message of LGBTQ+ support by engaging in a protected art form. The performers are just that: performers. They are acting. The performance is theater. It is not about individuals seeking to change their biological sex or claim a different biological sex. It is about actors who perform dressed differently than their biological sex.

Again, the Board's argument conflates the existence of two sexes with different ways to express sexuality and sexual themes. The record does not show that the Draggieland performance is in the purview of President Trump's executive order or Governor Abbott's statement in support.

The Fourth Circuit's decision in IOTA XI Chapter of Sigma Chi Fraternity v. George Mason University (4th Cir. 1993), is instructive. In that case, the court found that George Mason University could not punish a fraternity for holding an "ugly woman contest" merely because the contest "ran counter to the views that the University sought to communicate to its students and the community." In doing so, the court found that the University was "silencing speech on the basis of its viewpoint."

George Mason took the further step of sanctioning the student group that hosted the "ugly woman contest," while A&M banned the QEC from hosting its event at a campus venue, but both actions violate the First Amendment. Sanctioning a student group for sponsoring an event and precluding a student group from holding an event on campus based on the events' content and viewpoint have the same result: stifling expression because it is offensive to some….

The argument that the ban is a permissible restraint on speech because it aligns with A&M's Student Conduct Code is similarly unpersuasive. The court notes that when "Codes of Conduct" adopted by universities and the First Amendment conflict, the First Amendment takes precedence. See, e.g., DeJohn v. Temple Univ. 9 (3d Cir. 2008); Keefe v. Adams (8th Cir. 2016) ("[A student's] statements may indeed violate the administrators' interpretation of certain provisions of the College's professionalism Code, but that does not answer the question of whether that interpretation is consistent with the First Amendment.") (Kelly, J., concurring in part and dissenting in part). The court finds that there is a high likelihood that the ban is an unconstitutional prior restraint on speech….

Adam Steinbaugh, Jeffrey Daniel Zeman, and JT Morris (Foundation for Individual Rights and Expression) represent plaintiffs.

The post Exclusion of Drag Shows from Texas A&M Venues Likely Unconstitutionally Viewpoint-Based appeared first on Reason.com.

[Stephen E. Sachs] Is and Ought in Constitutional Law

[A response to Joel Alicea on whether originalism needs a moral defense.]

Does originalism need a moral defense? In his newly published Vaughan Lecture, Joel Alicea argues that it does:

Justifying a constitutional methodology requires arguing that judges ought to employ that methodology, which requires making a moral argument that the methodology is better than its competitors. And we can only know the comparative moral soundness of competing methodologies by reference to some standard of moral evaluation. . . .

Thus, if originalists wanted judges to accept their view and reject competitor theories, they had to provide a moral argument based on contested moral truth claims. That does not mean that originalist judges necessarily have to make case-by-case moral judgments when adjudicating cases, but it does mean that they necessarily have to make moral judgments in choosing originalism over its competitor methodologies.

The Harvard Journal of Law and Public Policy was kind enough to publish my response, entitled "Is and Ought in Constitutional Law."

Addressing as well similar arguments by Francisco Urbina and Cass Sunstein, my paper puts forward a simple proposition. If, on your theory of law, originalism correctly describes what the law is, then judges and officials ought to say so, for the same reasons we all have to tell the truth.

From the abstract:

Does originalism need a moral defense? To choose one method of interpretation over another, some argue, is an action: it affects how judges and officials will affect the real world. So interpretive choices might have to be justified the way actions are justified, namely on moral grounds.

These action-focused arguments prove too much. Just as a choice to say the Earth goes around the Sun is usually justified by whether or not it really does, a choice to say that the law provides thus-and-so is usually justified by whether it really so provides, not on the moral benefits of it so providing. Constitutional texts don't just fall in our laps like manna from heaven, to be put to whatever uses might seem best; they often emerge from a process of enactment, with their content already determined in light of an existing legal system. The moral case for originalism, such as it is, rests on its being true: originalism really is the law around here, and judges and officials should say so.

(further discussion after the jump)

The reason why arguments like Alicea's have bite is that knowing what the law is doesn't always prove we ought to follow it. Even natural lawyers, who see law and morals as interrelated, should still agree that legal requirements and moral requirements can potentially come apart. (Sometimes we really ought to jaywalk, even when jaywalking really would be against the law.) So a judge can't just rest on arguments about what the law is; the judge's choice of interpretive methodology is an action, and the judge has to justify it the same way actions are justified, namely on moral grounds.

But all these arguments about actions prove too much. Saying that the Earth goes around the Sun is an action too! But in most contexts it's justified by the fact that Earth really does go around the Sun. The specifically moral parts of this reasoning are the totally uninteresting ones, just the ordinary moral reasons to say true things rather than false ones. Once you have the facts down, the reasons become pretty trivial (or, if you want to be more precise, the reasons-to-act are downstream of the reasons-to-believe).

So too with law. The best reason to say "the law provides X" is usually that the law really so provides. So whatever your theory of what the law is, if it turns out on that theory to be originalist, you ought to represent it that way. That's as much of a moral defense as originalism needs. With a coauthor, I've suggested that American law is originalist on positive grounds, given the higher-order rules that ground our legal system, through the account of the law's structure and sources that the American legal community publicly accepts and defends. And other people have argued for originalism on natural-law grounds, as in Jeff Pojanowski and Kevin Walsh's "Enduring Originalism" and Alicea's own "The Moral Authority of Original Meaning." But whatever approach is right, whether originalism is or isn't the law, we ought to represent things accurately.

Understanding things this way undermines many claims about "interpretive choice" on moral grounds. At least for legal purposes, those choices might be a matter for legal rules, and the law might not leave the interpretive choices open. Constitutional texts don't just fall in our laps like manna from heaven, to be put to whatever use seems best; often their content is already determined by the existing legal system within which they arise. To paraphrase a famous argument from Robert Nozick:

If legal instruments "fell from heaven like manna"—simply as marks on paper, unconnected to any particular interpretive approach—then it might be plausible to choose among ways of interpreting them on ordinary normative grounds. But is this the appropriate model for deciding how legal instruments are to be read? To the extent that these instruments come into being in the context of some existing legal system—not just as arbitrary marks on paper, but as well-formed legal objects, statutes and contracts and constitutions and so on—there's no need to search for some optimal interpretive theory to apply to them. "The situation is not an appropriate one for wondering, 'After all, what is to become of these things; what are we to do with them.'" In the non-manna-from-heaven world in which legal instruments are made or produced or transformed by preexisting legal institutions, with an eye to preexisting legal rules, there's no separate process of interpretive choice for a theory of interpretive choice to be a theory of.

In sum: the moral case for originalism, such as it is, rests on its being true. If originalism really is the law around here—on whatever the right theory of law might be—judges and officials should say so.

In any case, read the whole thing! Also on SSRN.

(Make sure to read Alicea's Vaughan lecture, Conor Casey's response, and Alicea's reply. Relevant Twitter thread here; cross-posted on Divided Argument.)

The post Is and Ought in Constitutional Law appeared first on Reason.com.

[Eugene Volokh] Monday Open Thread

[What's on your mind?]

The post Monday Open Thread appeared first on Reason.com.

[Ilya Somin] Lawsuit Challenges Use of Eminent Domain as NIMBY Tool to Block Housing Project

[A Rhode Island town seeks to use eminent domain to block construction of a large-scale affordable housing project. ]

Rhode Island property targeted for condemnation to prevent construction of affordable housing on the site. (PLF)

 

The town of Johnston, Rhode Island is targeting property for condemnation in order to prevent the construction of an affordable housing project on the site. The Pacific Legal Foundation (a public interest law firm representing the property owners) in the case, has a helpful description of the facts  [Note: PLF is also my wife's employer, though she has no involvement in this case and does not work on property rights issues]:

SCLS Realty, LLC and Sixty Three Johnston, LLC were formed by Salvatore Compagnone, Jr, a fourth-generation general contractor in Johnston, Rhode Island, whose family has a long history in the building trade dating back to Italy. After Salvatore's father passed away in early 2024, his family took the helm of development in the town with plans to carry on the building tradition and provide desperately needed, new affordable housing.

A 2023 Rhode Island law aimed at incentivizing private creation of affordable housing (housing that costs less than a third of a moderate- or low-income household's income) seemed to pave the way. This law allows more living units per acre than local rules usually permit and requires local governments to streamline the approval process with quicker and simpler permitting procedures.

SCLS and Sixty Three Johnston own just over 31 vacant acres of land in the Providence suburb of Johnston. The town of some 30,000 residents is just a few miles from the state capital, yet only 7% of its housing serves low- and moderate-income residents.

SCLS and Sixty Three Johnston's property was already zoned for dense apartment-style development. Sal Compagnone and his partner, Ralph Santoro, designed a 252-unit, five-building complex, and in October 2024, submitted a preliminary land-use application to the Town planning department, which set a December 3 hearing to review the plans. But Johnston's mayor, Joseph Polisena, Jr., had other ideas. On the same day as SCLS and Sixty Three Johnston's planning board hearing, he posted a letter on social media attacking the project. He claimed it would create "a trifecta of chaos" with increased traffic, drainage problems, and an overwhelmed school system. And although Rhode Island law specifically allows—indeed encourages—this type of housing development, the mayor accused the LLCs of trying to "force-feed" an unwanted project on the Town. His letter also fired out a clear threat: "If you insist on moving forward with the currently proposed project, I will use all the power of government that I have to stop it."

The mayor wasn't bluffing. On January 27, 2025, Polisena abruptly announced the Town would seize the LLCs' land by eminent domain. He claimed the Town needed the LLCs' property for a new municipal complex, despite zero evidence the Town had ever previously considered such an acquisition or that relocation of the Town's facilities nearly three miles away from their present central location to the edge of the town had ever been mentioned, much less planned. But the Town Council unanimously approved the taking the very next day.

PLF and the owners are challenging the use of eminent domain to take the property on the grounds that the condemnation here is not for a "public use," as required by the Fifth Amendment, and the Rhode Island state constitution.

In cases like Kelo v. City of New London, the Supreme Court has ruled (wrongly, in my view) that almost any potential benefit to the public qualifies as a "public use." Thus, in Kelo the Court upheld the condemnation of homes for purposes of promoting privately owned "economic development," even though the development plan in question was so badly flawed that it predictably fell through, and the condemned property ended up (for many years) being used only by a colony of feral cats.

But the Kelo majority also indicated that a taking can still be invalidated if the government tries to "take property under the mere pretext of a public purpose." This has led to much litigation over what counts as "pretextual" taking, with different state and federal courts reaching a wide range of conclusions.

In some ways, this case reminds me of last year's federal Second Circuit ruling in Brinkmann v. Town of Southold  the "passive park" case which I discussed here. Both cases feature a bogus supposed "public use" that served as a thinly veiled cover for a NIMBY ("not in my backyard") effort to forestall a use that the authorities objected to (a hardware store in Brinkmann) and both differ from the typical "pretextual" taking case because the condemned property is slated for public ownership rather than a transfer to a private party. For reasons outlined in my post about Brinkmann, this makes it more difficult to argue that there is no public use here:

Pretextual takings doctrine is a mess generally. But I think it can legitimately be used to strike down a variety of takings for transfer to private parties; indeed, I believe most such takings are unconstitutional even aside from the pretextual motives, because I support the "narrow" view of "public use" under which the government may only take property for publicly owned facilities or private ones that have a legal duty to serve the entire public.

In most situations, the narrow view is satisfied when the government takes property for public ownership - even if the motive for the taking is unrelated to the potential benefits of the new use…. But this case is different from most takings for public ownership because the government isn't actually using the condemned property for anything….

This opens up the possibility there can be public ownership without public use. To be sure, there can sometimes be "use" even if the government doesn't build anything on the land it takes. For example, it could decide to use the property as a nature preserve. But there is no such use here, not even a "passive" one. The only goal is to block the Brinkmanns' plan to build a hardware store, not to use the land for any affirmative purpose.

Perhaps such blocking can still be a "use." But the issue is a difficult and murky one.

A divided Second Circuit ultimately decided the passive park did qualify as a public use, and the Supreme Court refused to hear the case. But I think this case may be a better one for the property rights side than Brinkmann was. A "passive park" can potentially be created simply by eliminating the previous use of the land, and then leaving it empty and open to the public. The "park" may not be very attractive. But at least people can take walks there, kids can play on it, and so on. By contrast, the Town of Johnston's supposed public use of building a municipal complex requires actively restructuring the property and building a new facility on it. That can't be accomplished if there is no viable plan to do it - as there appears not to be here.

In addition, even if the property owners ultimately lose under the federal Public Use Clause, they might be able to prevail under that of the Rhode Island state constitution. The state supreme court there has established tighter limits on public use than the US Supreme Court imposes under Kelo (see my discussion of relevant Rhode Island precedent in  Chapter 7 of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain). 

This case potentially has a broader significance, in so far as it might empower local governments to use eminent domain as a NIMBY tool for blocking affordable housing projects, thereby exacerbating the national housing crisis. The usual NIMBY tool is exclusionary zoning. Unlike eminent domain, it doesn't require the government to pay owners whose rights it restricts! In this case, the local government couldn't resort to zoning, because such restrictions had been preempted by state law. Thus, they tried eminent domain instead.

Other local governments could also potentially use eminent domain as a tool to circumvent state laws restricting exclusionary zoning. As Josh Braver and I argue in our article "The Constitutional Case Against Exclusionary Zoning," there is a limit to such abuse of eminent domain, because local governments can't afford to impose sweeping building restrictions if they have to pay every affected owner to do so. But eminent domain could potentially be a viable NIMBY tool in cases where state law only partially overrides local zoning restrictions, as is the case with the 2023 Rhode Island state law here (which creates only a limited override for affordable housing projects). That potentially enables local governments like Johnston to use condemnation to keep out those projects without breaking the bank.

The lesson here is that statewide reform should comprehensively ban exclusionary zoning, not just create limited workarounds. In addition, Braver and I argue that most exclusionary zoning rules are takings requiring compensation under the federal constitution. If courts adopt that approach, local governments would find it much more difficult to use eminent domain for NIMBY purposes, because doing so would require taking (and paying compensation for) a much wider range of properties.

Unless and until more states adopt more comprehensive zoning reform or federal courts adopt the Braver-Somin approach to takings, public use litigation could potentially help limit eminent domain NIMBYism - if the plaintiffs win this Rhode Island case. For that reason, among others this case is definitely worth keeping an eye on for anyone interested in property rights, land use, or housing policy.

Recently, the Town tried to  secretly take over the property and lock out the owners even before the eminent domain process was officially completed. PLF attorney Robert Thomas (one of the nation's leading eminent domain lawyers), said: "In 40 years, I've seen some pretty outrageous exercises of eminent domain powers. Never anything like this." For what it's worth, I have been studying eminent domain issues for over twenty years, and I've never seen anything quite like this attempt at a stealth seizure either.  Fortunately, PLF and the owners managed to get the court to issue a temporary restraining order to block the Town from occupying the land at least until the court decides whether to issue a preliminary injunction against the condemnation.

The case continues, and I will cover the court's ruling when it comes down.

 

The post Lawsuit Challenges Use of Eminent Domain as NIMBY Tool to Block Housing Project appeared first on Reason.com.

[Ilya Somin] Trump Cruelly Terminates Program for Legal Migrants Fleeing Communist Tyranny, and Seeks to Deport them

[The Administration ended the CHNV "parole" program for 530,000 migrants from four Latin American nations, including three ruled by authoritarian socialist regimes. They will soon be subject to deportation.]

Venezuelans fleeing the socialist regime of Nicolas Maduro. (NA)

 

Yesterday, the Trump Administration terminated legal "parole" status for some 530,000 legal migrants who entered the United States under the CHNV program, which allowed residents of four Latin American countries - Cuba, Haiti, Nicaragua and Venezuela - to live and work in the US for up to two years if they passed a background check and had a US-resident sponsor willing to provide financial support. These people will be subject to deportation, as of April 24.

The termination of CHNV parole is a further expansion of Trump's cruel campaign against legal immigration. In this case, it targets for deportation hundreds of thousands of people who fled horrific communist tyranny in Cuba, Nicaragua, and Venezuela, and now risk being deported back to it. There was a time when American conservatives saw themselves as opponents of socialism and welcomed those fleeing it. No longer.

The revocation of parole will also needlessly deprive the US economy of tens of thousands valuable workers and entrepreneurs. Hispanic immigrants, like those from other countries, disproportionately contribute to various types of innovations and businesses startups. Given the horrors that await them in their countries of origin, I expect many of the CHNV migrants will try to remain in the US illegally rather than "self-deport." If so, they will be less productive than before (as they could only work black market jobs). And the administration's policy will actually increase the number of illegal migrants, rather than reducing it.

White House Press Secretary Karoline Leavitt claims "[t]hese are the 530,000 illegal immigrants that Joe Biden flew to the United States on the taxpayers dime." Every word of this is false. There were no flights "on the taxpayers dime." The migrants either paid for their own transportation or did so with the help of their sponsors. 

And the CHNV program was entirely legal. I summarized the reasons why in a 2023 article criticizing a lawsuit filed against it by a group of GOP-led state governments:

The legal basis for these private sponsorship programs is the 1952 Immigration and Nationality Act, which, as later modified, gives the Department of Homeland Security the power to use "parole" to grant foreign citizens temporary residency rights in the United States "on a case-by-case basis for urgent humanitarian reasons or significant public benefit." Here, we have both "urgent humanitarian reasons" and "significant public benefit."

The humanitarian need is undeniable. Three of the four nations included in the program — Cuba, Nicaragua, and Venezuela — are ruled by oppressive socialist dictators, whose policies have created horrific conditions. Few have put it better than Florida Gov. Ron DeSantis (R), whose state is one of the plaintiffs in the present case.

As he said last year, Venezuela's socialist president Nicolas Maduro is a "murderous tyrant" who "is responsible for countless atrocities and has driven Venezuela into the ground." Venezuelan oppression and socialist economic policies have created the biggest refugee crisis in the history of the Western hemisphere, with some 7 million people fleeing. Texas Gov. Greg Abbott (R), whose state is spearheading the lawsuit, has also noted the severe economic crisis in Venezuela, which he (rightly) blames on socialism.

In 2021, DeSantis rightly described Cuba's communist regime as responsible for "poverty, starvation, migration, systemic lethal violence, and suppression of speech." Cuba's government continues to be highly repressive,  including recent brutal suppression of protests in July 2021.

Nicaragua, under the increasingly authoritarian socialist rule of Daniel Ortega, is a similar story. That's why many Nicaraguans have sought to flee. As one Nicaraguan human rights activist puts it, conditions are so bad that migrants fleeing the country say  "[t]hey'd rather die than return to Nicaragua…"

Haiti has long been one of the poorest and most dysfunctional societies in the world. Over the last year, conditions have gotten even worse, with intensifying violence and shortages of basic necessities.

If conservatives mean what they say about the evils of socialism, they cannot simultaneously deny that people fleeing communist tyranny have "urgent humanitarian reasons" for seeking freedom elsewhere. When we deport victims of communism back to the tyrannies they fled, we become complicit in that oppression and lose credibility in condemning it. The situation in Haiti is also indisputably dire, albeit for somewhat different reasons.

In the article, I also explain how the program created the "significant public benefit" of reducing pressure on the border. It could have done so to an even greater extent if not for the arbitrary 30,000 per month numerical cap imposed by the Biden Administration. I went over the legal issues in greater detail in an amicus brief I filed in the case on behalf of myself, the Cato Institute, and MedGlobal. Ultimately, a conservative Trump-appointed federal judged handpicked by the plaintiff states dismissed the case because he concluded the states' lacked "standing" for reasons that undercut their substantive arguments, as well.

Trump's revocation of CHNV parole is a dark day for victims of communism - and for America. The administration's cruel actions victimize people fleeing the sort of tyranny conservatives most claim to oppose, tarnishes America's image in the war of ideas against authoritarian states, and damages the US economy - all for no good reason.

The post Trump Cruelly Terminates Program for Legal Migrants Fleeing Communist Tyranny, and Seeks to Deport them appeared first on Reason.com.

[Josh Blackman] Luttig: "A rebuke from the nation's highest court … could well cripple Mr. Trump's presidency and tarnish his legacy"

[No, this fight will not end well for the courts. ]

Former-Judge Luttig wrote a guest essay in the New York Times, titled "It's Trump vs. the Courts, and It Won't End Well for Trump." The essay concludes with these two paragraphs:

If the president oversteps his authority in his dispute with Judge Boasberg, the Supreme Court will step in and assert its undisputed constitutional power "to say what the law is." A rebuke from the nation's highest court in his wished-for war with the nation's federal courts could well cripple Mr. Trump's presidency and tarnish his legacy.

And Chief Justice Marshall's assertion that it is the duty of the courts to say what the law is will be the last word.

I think every sentence is demonstrably incorrect. First, the Court has no power to "assert" its own authority. The Court lacks the power of the sword or purse.

Second, I can say with a high degree of certainty that a "rebuke" from the Supreme Court would do little to "cripple Mr. Trump's presidency and tarnish his legacy." As for the "legacy," if two impeachment trials, an alleged insurrection, and federal and state indictments didn't keep him out of the White House, then a few pages in the U.S. Reports will hardly leave a mark. By contrast, I think such a feeble effort to control Trump very well could "cripple" the Supreme Court.

Third, Luttig tries to invoke Marbury, but in that case Chief Justice Marshall had the good sense to not assert any authority agains Jeffrson. The Court did not order the Jefferson Administration to deliver the commission, as such an order would likely be ignored. Likewise, Marshall never ordered President Jackson to do anything. Marbury teaches the judiciary to avoid unwinnable conflicts with the President.

Let me try to put this conflict in perspective. Donald Trump was able to roll over Jeb Bush, Hillary Clinton, Joe Biden, Kamala Harris, and every other politician that stood in his path. Does anyone think John Roberts can do better? Does anyone think Roberts's press statement to respond to Trump's social media post even moved the needle? Op-eds like this from people like Luttig likely give the Chief some faint echoes of praise within his echo chamber, but will not register beyond the Capital District. (I think Texas would be considered District 12.)

I'll repeat what I wrote last week:

The Constitutional Crisis is a coin with two sides. Trump causes judges to overact, and judges cause Trump to overreact. Any resolution must be bilateral, not unilateral. Roberts could de-escalate the situation by promptly reversing some of these out-of-control lower court rulings. But instead, he would rather sit on his hands and pontificate. I've long said that the Chief Justice is living in a different reality than the rest of us. This episode proves it. There are three co-equal branches of government; the judiciary is not supreme.

Chief Justice Marshall had the good sense to avoid a confrontation with Presidents Jefferson and Jackson. But Roberts apparently thinks this sort of statement will make everything better. But every time Roberts puts pen to paper to avoid some perceived catastrophe, he usually invites an even greater one down the road. This is a lesson he has not learned during his tenure.

I think Roberts's decision to punt on the USAID case will come to be a defining moment of his Chief Justiceship, and not in a good way. Roberts may not see that, but I hope Justice Barrett will.

The post Luttig: "A rebuke from the nation's highest court … could well cripple Mr. Trump's presidency and tarnish his legacy" appeared first on Reason.com.