Eugene Volokh's Blog, page 145

[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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

[Josh Blackman] Neutral Principles for Birthright Citizenship on the Emergency Docket

On Thursday, the Acting Solicitor General filed emergency applications in three birthright citizenship cases (24A884, 24A885, and 24A886). These are appeals from the First, Fourth, and Ninth Circuits. The government has sought only a partial stay. First, the SG argues that the universal injunctions improperly granted relief to non-parties. Second, the SG contends that it was not proper to grant relief to the states. Third, the SG argues that the lower-court injunctions are overbroad insofar as they prevent the Executive Branch from even developing implementation guidance.

Even measured against other universal injunctions, those at issue here stand out. The universal injunctions here extend to all 50 States and to millions of aliens across the country—even though tailored interim relief for the plaintiffs to these suits would fully redress their alleged harms. The courts granted these universal injunctions to States who plainly lacked standing to raise Citizenship Clause claims—defying the bedrock principle that States (like other litigants) may assert only their own rights, not the rights of third parties.

The government does not seek any remedy based on a likelihood of success on the merits. Rather, the "modest" relief sought is purely procedural.

At various junctures, five members of the Court have criticized nationwide injunctions. The brief doesn't just list the name of the authoring justice. The brief names-names:

Universal injunctions transgress constitutional limits on courts' powers, which extend only to "render[ing] a judgment or decree upon the rights of the litigants." United States v. Texas, 599 U.S. 670, 693 (2023) (Gorsuch, J., joined by Thomas and Barrett, J.J., concurring in the judgment) (citation omitted). Universal injunctions are also incompatible with " 'foundational' limits on equitable jurisdiction." Department of State v. AIDS Vaccine Advocacy Coalition, No. 24A831, slip op. 7 (2025) (Alito, J., joined by Thomas, Gorsuch, and Kavanaugh, J.J., dissenting) (citation omitted).

The brief favorably cites Brackeen for the proposition that states lack standing to assert the rights of third parties:

The courts granted these universal injunctions to States who plainly lacked standing to raise Citizenship Clause claims—defying the bedrock principle that States (like other litigants) may assert only their own rights, not the rights of third parties. See, e.g., Haaland v. Brackeen, 599 U.S. 255, 294-295 (2023). . . .  In Haaland v. Brackeen, 599 U.S. 255 (2023), [the Court] rejected Texas's claim that a federal statute violated the Equal Protection Clause because a State "has no equal protection rights of its own" and "cannot assert equal protection claims on behalf of its citizens." Id. at 294- 295. . . . This Court has repeatedly rejected States' "thinly veiled attempt[s] to circumvent the limits on parens patriae standing." Murthy, 603 U.S. at 76 (citation omitted); see Brackeen, 599 U.S. at 295 n.11.

The brief cites Does 1-3 v. Mills, and says this case is certworthy:

This Court has frequently granted complete or partial stays of universal orders issued by district courts. See McHenry v. Texas Top Cop Shop, Inc., 145 S. Ct. 1 (Jan. 23, 2025); Garland v. Vanderstok, 144 S. Ct. 44 (2023); Labrador v. Poe, 144 S. Ct. 921 (2024); Wolf v. Innovation Law Lab, 140 S. Ct. 1564 (2020); DHS v. New York, 140 S. Ct. 599 (2020); Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019); Trump v. Hawaii, 583 U.S. 1009 (2017); Trump v. International Refugee Assistance Project, 582 U.S. 571 (2017) (per curiam). The usual stay factors support granting similar relief here. See Ohio v. EPA, 603 U.S. 279, 291 (2024) (discussing stay factors); Does 1-3 v. Mills, 142 S. Ct. 17, 18 (2021) (Barrett, J., concurring) (same). . . .  Again, the underlying issues are certworthy. See Does 1-3, 142 S. Ct. at 18 (Barrett, J., concurring). . . . This question too is certworthy. See Does 1-3, 142 S. Ct. at 18 (Barrett, J., concurring). Whether a district court may properly enjoin the Executive Branch's development and publication of policies is a weighty separation-of-powers question that warrants this Court's attention.

The brief cites Murthy v. Missouri to prevent states from asserting interests on behalf of its residents:

Universal injunctions also contravene this Court's precedents on Article III standing. "[S]tanding is not dispensed in gross," so plaintiffs must establish standing "for each form of relief that they seek." Murthy v. Missouri, 603 U.S. 43, 61 (2024) (citations omitted). . . . And in Murthy v. Missouri, 603 U.S. 43 (2024), [the Court] rejected Missouri's claim that the federal government had violated the First Amendment by censoring its citizens' speech because Missouri lacked "third-party standing" to sue for those citizens. Id. at 76.

The import here is clear. In the bad old days, Erwin Chemerinsky used to joke that if he could put Justice Kennedy's photo on the front cover of a brief, he would. But as I observed two years ago, briefs are now being directed to Justice Barrett. Will Justice Barrett deny standing to the blue states, as she did to Texas in Brackeen? Will Justice Barrett deny universal relief to the blue states, as she did to Texas in Texas? Will Justice Barrett scrutinize the blue state's claim for standing as meticulously as she scrutinized Missouri's claim in Murthy?

These would be the sorts of neutral principles that should govern on the emergency docket. Again, Justice Barrett has downplayed any assessment of the merits on the emergency docket. And the government has not made any merits arguments. Granting a party-specific injunction would ensure the parties are not injured by the policy. Of course, lurking in the background is that there are potentially millions of aliens who are not part of the litigation, whose unborn children might stand to lose birthright citizenship. Would this be a merits question? Or one of maintaining the status quo? Does the Supreme Court have the power to avoid irreparable harm to non-parties?

This is not the sort of case where discovery or percolation will make much of a difference. The facts are known, the history has been discussed for generations, and the issue is ripe for review. The only question here is whether the injunctions are too broad.

This passage from Justice Gorsuch's Texas concurrence, which Justice Barrett joined, is worth repeating:

Traditionally, when a federal court finds a remedy merited, it provides party-specific relief, directing the defendant to take or not take some action relative to the plaintiff. If the court's remedial order affects nonparties, it does so only incidentally. See, e.g., Doran v. Salem Inn, Inc., 422 U. S. 922, 931, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) ("[N]either declaratory nor injunctive relief can directly interfere with the enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs."); Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (CA2 1930) (L. Hand, J.) ("[A] court of equity … cannot lawfully enjoin the world at large."); see also Trump v. Hawaii, 585 U. S. ––––, ––––, 138 S.Ct. 2392, 2427, 201 L.Ed.2d 775 (2018) (THOMAS, J., concurring). This tracks the founding-era understanding that courts "render a judgment or decree upon the rights of the litigant[s]." Rhode Island v. Massachusetts, 12 Pet. 657, 718, 37 U.S. 657, 9 L.Ed. 1233 (1838). It also ensures that federal courts respect the limits of their *694 Article III authority to decide cases and controversies and avoid trenching on the power of the elected branches to shape legal rights and duties more broadly. After all, the "judicial Power" is the power to "decide cases for parties, not questions for everyone." S. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 421 (2017).

The brief does offer this stunning statistic:

Universal injunctions have reached epidemic proportions since the start of the current Administration. Courts have graduated from universal preliminary injunctions to universal temporary restraining orders, from universal equitable relief to universal monetary remedies, and from governing the whole Nation to governing the whole world. District courts have issued more universal injunctions and TROs during February 2025 alone than through the first three years of the Biden Administration. That sharp rise in universal injunctions stops the Executive Branch from performing its constitutional functions before any courts fully examine the merits of those actions, and threatens to swamp this Court's emergency docket.

I will repeat what I wrote last week. Lower courts are issuing universal orders with impunity, and are not granting stays to seek appellate review. There has been an inversion of Article III. I know the Court does not want to be accused of another Dred Scott (and you know that criticism is coming). The Court could have cleaned up this mess in the USAID case, but we all know how that one turned out. When you keep kicking the can down the road, eventually the can is no longer a can.

The post Neutral Principles for Birthright Citizenship on the Emergency Docket appeared first on Reason.com.

[Ilya Somin] Trump Administration Asks Supreme Court to Lift Universal Injunctions Against its Birthright Citizenship Order

[If ever a universal injunction makes sense, it's in a case like this.]

(Maria Butrova | Dreamstime.com)

Four different federal courts have issued rulings blocking Donald Trump's executive order denying birthright citizenship to children of undocumented immigrants and immigrants in the US on the temporary visas. Three of them have issued nationwide injunctions, blocking enforcement of the the order throughout the country. The Trump Administration has filed nearly identical emergency applications asking the Supreme Court to intervene in all three cases (see here, here, and here): not to overturn them on the merits, but to narrow the scope of the injunctions so they apply only to specific parties in the case, and also exclude state governments, who are among the plaintiffs (they have standing because the order affects their public finances).

There is a longstanding debate among jurists and legal scholars about whether nationwide injunctions (also often called "universal injunctions") are appropriate. If you oppose nationwide injunctions on principle, I don't expect you will make an exception in these cases. While I am admittedly not an expert on the subject, I have always held the view that nationwide injunctions are not only permissible but essential in some situations. Nationwide lawbreaking by the federal government requires a nationwide remedy. And that's especially true if the illegality affects the rights of large numbers of people, many of whom could not easily or quickly bring individual suits to challenge it. Justice delayed - in some cases indefinitely - is justice denied.

The case for nationwide injunctions is also strong in situations where the resolution of the issue in question doesn't depend on variations in circumstances across states and localities. If the government's actions are illegal in the same way across the nation, then the best way to get justice is to strike it down everywhere at once.  University of Virginia law Prof. Amanda Frost develops this point in much greater detail in her well-known 2018 article on this subject. As she summarizes her position:

In some cases, nationwide injunctions are the only means to provide plaintiffs with complete relief, or to prevent harm to thousands of individuals similarly situated to the plaintiffs who cannot quickly bring their own cases before the courts. And sometimes anything short of a nationwide injunction would be impossible to administer. When a district court is asked to pass on the validity of a federal policy with nationwide effects—such as one affecting the air or water, or the nation's immigration policy—it can be extremely difficult to enjoin application of the policy to some plaintiffs but not others. Furthermore, nothing in the Constitution's text or structure bars federal courts from issuing a remedy that extends beyond the parties. To the contrary, such injunctions enable federal courts to play their essential role as a check on the political branches. Indeed, the recent surge in nationwide injunctions could be seen as a symptom of the real problem—the executive branch's increasingly common practice of unilaterally making major policy changes outside of the legislative process.

I agree. And I am not much moved by the opposing concern that one overreaching district judge can unjustifiably block a federal policy. If the judge's ruling is indeed badly wrong, it can be overturned on appeal, if necessary on an expedited basis. It is much less of a burden for the government to seek such appellate review than for many thousands of people to have to file individual lawsuits to vindicate their rights.

And the birthright citizenship cases are virtually textbook examples of Frost's points. Trump's executive order imperils the rights of hundreds of thousands of innocent children. Many of their families lack the resources to bring a lawsuit quickly, if at all. And a situation where the order is in force for some people, but not others (or, alternatively, in some states but not others), creates obvious confusion and anomalies, especially when it comes to a policy (citizenship rules) that is supposed to be uniform throughout the nation. As one of the rulings imposing a nationwide injunction explains:

Only a nationwide injunction will provide complete relief to the plaintiffs. ASAP [one of te plaintiff organizations] has "over 680,000 members . . . who reside in all 50 U.S. states and several U.S. territories."… ASAP expects that "[h]undreds or even thousands of ASAP members will give birth to children in the United States over the coming weeks and months…." Because ASAP's members reside in every state and hundreds of them expect to give birth soon, a nationwide injunction is the only way "to provide complete relief" to them….).

Further, "a nationwide injunction may be appropriate when the government relies on a
'categorical policy…'" See HIAS, 985 F.3d at 326. The Executive Order is a categorical policy. A nationwide injunction against the categorical policy in the Executive Order is appropriate. It also is necessary because the policy concerns citizenship—a national concern that demands a uniform policy. See Arizona v. United States, 567 U.S. 387, 394–95 (2012)….. A nationwide injunction is appropriate and necessary.

I would add that an injunction limited to a particular state or set of states would result in a situation where many children are considered US citizens in some states, but not others.

If the Supreme Court wants to put an end to nationwide injunctions generally, they can do so. But if not, there are extraordinarily compelling reasons to maintain the injunctions in these cases.

I have written about the substantive issues at stake in the birthright citizenship cases in a Just Security article, and several previous posts at this site (see here, here, and here).

The post Trump Administration Asks Supreme Court to Lift Universal Injunctions Against its Birthright Citizenship Order appeared first on Reason.com.

[Ilya Somin] Trump Administration Asks Supreme Court to Lift Universal Injunctions Against its Birthright Citzenshipp Order

[If ever a universal injunction makes sense, it's in a case like this.]

(Maria Butrova | Dreamstime.com)

Four different federal courts have issued rulings blocking Donald Trump's executive order denying birthright citizenship to children of undocumented immigrants and immigrants in the US on the temporary visas. Three of them have issued nationwide injunctions, blocking enforcement of the the order throughout the country. The Trump Administration has filed nearly identical emergency applications asking the Supreme Court to intervene in all three cases (see here, here, and here): not to overturn them on the merits, but to narrow the scope of the injunctions so they apply only to specific parties in the case, and also exclude state governments, who are among the plaintiffs (they have standing because the order affects their public finances).

There is a longstanding debate among jurists and legal scholars about whether nationwide injunctions (also often called "universal injunctions") are appropriate. If you oppose nationwide injunctions on principle, I don't expect you will make an exception in these cases. While I am admittedly not an expert on the subject, I have always held the view that nationwide injunctions are not only permissible but essential in some situations. Nationwide lawbreaking by the federal government requires a nationwide remedy. And that's especially true if the illegality affects the rights of large numbers of people, many of whom could not easily or quickly bring individual suits to challenge it. Justice delayed - in some cases indefinitely - is justice denied.

The case for nationwide injunctions is also strong in situations where the resolution of the issue in question doesn't depend on variations in circumstances across states and localities. If the government's actions are illegal in the same way across the nation, then the best way to get justice is to strike it down everywhere at once.  University of Virginia law Prof. Amanda Frost develops this point in much greater detail in her well-known 2018 article on this subject. As she summarizes her position:

In some cases, nationwide injunctions are the only means to provide plaintiffs with complete relief, or to prevent harm to thousands of individuals similarly situated to the plaintiffs who cannot quickly bring their own cases before the courts. And sometimes anything short of a nationwide injunction would be impossible to administer. When a district court is asked to pass on the validity of a federal policy with nationwide effects—such as one affecting the air or water, or the nation's immigration policy—it can be extremely difficult to enjoin application of the policy to some plaintiffs but not others. Furthermore, nothing in the Constitution's text or structure bars federal courts from issuing a remedy that extends beyond the parties. To the contrary, such injunctions enable federal courts to play their essential role as a check on the political branches. Indeed, the recent surge in nationwide injunctions could be seen as a symptom of the real problem—the executive branch's increasingly common practice of unilaterally making major policy changes outside of the legislative process.

I agree. And I am not much moved by the opposing concern that one overreaching district judge can unjustifiably block a federal policy. If the judge's ruling is indeed badly wrong, it can be overturned on appeal, if necessary on an expedited basis. It is much less of a burden for the government to seek such appellate review than for many thousands of people to have to file individual lawsuits to vindicate their rights.

And the birthright citizenship cases are virtually textbook examples of Frost's points. Trump's executive order imperils the rights of hundreds of thousands of innocent children. Many of their families lack the resources to bring a lawsuit quickly, if at all. And a situation where the order is in force for some people, but not others (or, alternatively, in some states but not others), creates obvious confusion and anomalies, especially when it comes to a policy (citizenship rules) that is supposed to be uniform throughout the nation. As one of the rulings imposing a nationwide injunction explains:

Only a nationwide injunction will provide complete relief to the plaintiffs. ASAP [one of te plaintiff organizations] has "over 680,000 members . . . who reside in all 50 U.S. states and several U.S. territories."… ASAP expects that "[h]undreds or even thousands of ASAP members will give birth to children in the United States over the coming weeks and months…." Because ASAP's members reside in every state and hundreds of them expect to give birth soon, a nationwide injunction is the only way "to provide complete relief" to them….).

Further, "a nationwide injunction may be appropriate when the government relies on a
'categorical policy…'" See HIAS, 985 F.3d at 326. The Executive Order is a categorical policy. A nationwide injunction against the categorical policy in the Executive Order is appropriate. It also is necessary because the policy concerns citizenship—a national concern that demands a uniform policy. See Arizona v. United States, 567 U.S. 387, 394–95 (2012)….. A nationwide injunction is appropriate and necessary.

I would add that an injunction limited to a particular state or set of states would result in a situation where many children are considered US citizens in some states, but not others.

If the Supreme Court wants to put an end to nationwide injunctions generally, they can do so. But if not, there are extraordinarily compelling reasons to maintain the injunctions in these cases.

I have written about the substantive issues at stake in the birthright citizenship cases in a Just Security article, and several previous posts at this site (see here, here, and here).

The post Trump Administration Asks Supreme Court to Lift Universal Injunctions Against its Birthright Citzenshipp Order appeared first on Reason.com.

[Ilya Somin] Trump May Soon Try to Use the Alien Enemies Act as a Tool for Deportation

[His apparent plan to do so is illegal and would set a dangerous precedent if allowed to stand.]

Cartoon depicting congressional debate over the Alien and Sedition Acts of 1798. (NA)

 

Media reports indicate the Trump Administration may be about to invoke the Alien Enemies Act of 1798 as a tool to facilitate deportation:

The Trump administration is expected to invoke a sweeping wartime authority to speed up the president's mass deportation pledge in the coming days, according to four sources familiar with the discussions.

The little-known 18th-century law, the Alien Enemies Act of 1798, gives the president tremendous authority to target and remove undocumented immigrants, though legal experts have argued it would face an uphill battle in court.

CNN previously reported that the authority was being widely discussed at several agencies as administration officials prepared to implement the law. The primary target remains Tren de Aragua (TDA), a Venezuelan organized crime group that is now operating in the United States and other countries….

Trump had ordered his administration to designate TDA as a foreign terrorist organization and use the measure to remove those identified.

The announcement, which could come as soon as Friday, has been a moving target as officials finalize the details. The move would likely pave the way for quicker removals of certain immigrants.

I have previously written about why such a use of the Alien Enemies Act would be both illegal and set a dangerous precedent here and here.

The Act is the only part of the notorious Alien and Sedition Acts of 1798 that remains on the books. If courts let the Administration use it, they could potentially detain and deport even legal immigrants with little or no due process. However, the Act can only be used in the event of "invasion" or "predatory incursion" perpetrated by a "foreign nation or government." As explained in my earlier writings about this issue, illegal migration and cross-border drug smuggling do not qualify  as an "invasion" or "predatory incursion." Even if they did, they aren't being perpetrated by a "foreign nation or government." Tren de Aragua and other organized crime groups engaged in drug smuggling are pretty obviously not nations or governments.

I previously wrote about why drug cartel activities don't qualify as an "invasion" here:

The Administration uses the involvement of cartels in cross-border drug trade to buttress their position. But the fact that some cross-border smuggling is conducted by organized crime does not make it the equivalent of an armed attack. Otherwise, the United States was constantly under "invasion" under Prohibition, when armed organized crime organizations smuggled illegal alcoholic beverages across the Canadian border. Smuggling by organized crime groups is a virtually inevitable consequence of prohibition regimes, whether for alcohol in the Prohibition era or drugs today. By this theory, there is a constant, never-ending state of "invasion."

If illegal migration and drug smuggling do qualify as an "invasion," there would be dire implications that go far beyond immigration issues. States would be authorized to "engage in war" in response (even without congressional authorization), and the federal government would empowered to suspend the writ of habeas corpus, and thereby detain people - including US citizens - without charges or trial.

If Trump does try to use the Alien Enemies Act as a tool for deportation, courts should strike it down.

For more on the Alien Enemies Act, see this helpful analysis by Katherine Yon Ebright of the Brennan Center.

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[Eugene Volokh] Professor Can Continue with First Amendment Claim Over Denial of Raise for Including Expurgated Slurs on Exam

[The Seventh Circuit so held yesterday; the case also involved other controversial statements besides the expurgated slur.]

From yesterday's decision by Seventh Circuit Judge Thomas Kirsch, joined by Judges Ilana Rovner and David Hamilton, in Kilborn v. Amiridis:

This appeal arises out of a motion to dismiss, so we accept the well-pleaded facts in the complaint as true and draw all reasonable inferences in the plaintiff's favor….

Jason Kilborn is a tenured professor at the University of Illinois Chicago School of Law, where he regularly teaches a course on civil procedure. For the past decade, he has included the same question on the final exam. The question concerns a fictional former employee who says she "quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a 'n____' and 'b___' (profane expressions for African Americans and women) and vowed to get rid of her." The exam question appears exactly like this, with the racial and gender slurs expurgated.

Unlike in prior years, students who took the exam in December 2020 were upset by Kilborn's use of the expurgated slurs and shared their displeasure with the law school dean. In response, Kilborn reached out to students to discuss the exam question. He sent a note of regret to his class for any distress caused by the expurgated references, exchanged emails with a student about the incident, and participated in a cordial, constructive, four-hour Zoom meeting with a member of the Black Law Students Association (BLSA).

During the Zoom meeting, the BLSA member asked Kilborn why the dean had not shown him a student petition criticizing the exam question. Kilborn replied that perhaps the dean had not shared the petition with him because she feared he might "become homicidal" if he read it. Kilborn made the comment in jest, and the conversation continued for another three hours without any indication that the student felt threatened or distressed by the statement. However, the student later told the dean and other University administrators that Kilborn had said that he "was feeling homicidal" or "would become homicidal."

Asserting that they feared a possible threat of imminent violence, University officials placed Kilborn on indefinite administrative leave, cancelled his classes for the term, and barred him from campus. Kilborn was ultimately released to unrestricted duty a few days later, but only after he submitted to drug testing and a medical examination. His classes remained cancelled. Kilborn believes that the University officials' concern about his homicidal jest simply provided a pretext to punish him for his exam question and to mollify complaining students.

The University's response to Kilborn's controversial exam question did not end there. It opened an investigation into allegations that Kilborn had created a racially hostile environment for non-white students. As part of the investigation, the University reviewed comments Kilborn had made in a class he taught two semesters earlier. There, Kilborn had discussed the relationship between frivolous litigation, plaintiff incentives, and media coverage:

The fact that other plaintiffs see that one other plaintiff lost isn't a disincentive. If it were, frivolous litigation would have ended long ago, because lots of plaintiffs have been pushed to the wall and lost. You don't hear about those stories in the media. You hear about idiot people winning $1 million verdict against Subway for having 11.5"-long sandwiches. That's what makes the press, right, that Subway lost. Not that they win against this ridiculously frivolous case. That wasn't in the media, only in the legal media, maybe, if you were paying attention. And that's the problem. If they win, no one hears about this. They only hear about it if they lose, and God forbid that, then all the cockroaches come out of the walls, they're thinking, right?

In the same discussion, Kilborn also remarked: "I'm not subjecting my corporate bottom line to that public lynching; I'm sorry, that's not the right word to use." And in a discussion on race-based police stops, Kilborn used an African American Vernacular English (AAVE) accent while repeating the lyrics of a Jay-Z song which describes the pretextual stop of a young Black man ("You was doin' 55 in a 54.").

At the end of its investigation, the University concluded that Kilborn had violated the harassment aspect of its nondiscrimination policy. The University based its finding on Kilborn's use of the expurgated racial slur in the exam question, his out-of-class conversations with students concerning the exam question, his in-class remarks about "cockroaches" and "lynching," and his use of an AAVE accent. Specifically, it found that Kilborn's out-of-class comments expressed insensitivity and hostility toward students voicing concern and that his in-class remarks were inappropriate and racially charged. Kilborn believes these findings are unsupported by the facts and that University officials only relied on them to reach the predetermined conclusion that he should be punished.

Kilborn received two punishments for violating the University's nondiscrimination policy. The University declared him ineligible for an across-the-board two percent merit raise and required him to participate in an eight week diversity training program. The training program included coursework, self-reflection papers, and meetings with a trainer who would provide feedback regarding his engagement and commitment to the goals of the program. Kilborn could not return to the classroom until he satisfactorily completed the program.

Kilborn sued, claiming this violated his First Amendment rights, and the Seventh Circuit allowed the case to go forward (reversing a District Court decision that would have thrown the case out). The court began by concluding that Garcetti v. Ceballos (2006), which generally held that government employees have no First Amendment rights when speaking as part of their job, didn't apply to public university professors:

The Supreme Court [in Garcetti] made clear that its decision did not extend to cases "involving speech related to scholarship or teaching." Instead, it reserved the question in response to Justice Souter's concern that the decision would otherwise "imperil First Amendment protection of academic freedom in public colleges and universities." …We decline the University officials' invitation to extend Garcetti to speech involving university teaching and scholarship when the Supreme Court was unwilling to do so. Nor are we alone. Every other circuit to decide the issue has recognized that Garcetti does not apply to university teaching or scholarship. [Further details omitted. -EV]

The court went on to conclude that Kilborn's speech qualified as "involv[ing] a matter of public concern," a threshold requirement for First Amendment protection for government employee speech:

Kilborn's exam question, out-of-class statements, and in-class remarks are all academic speech that address matters of public concern, notwithstanding the limited size of Kilborn's audience. The exam question was designed to give students experience confronting a highly charged situation that they may encounter in real-life practice and to be a continuation of the learning that occurred in the classroom. The content, form, and context of the exam question give no indication that it involved a matter of private concern rather than serving broader pedagogical purposes. Kilborn's in-class statements performed a similar function. They were designed to engage students and stimulate in-class discussion on topics of significant interest to the broader community, including frivolous litigation and pretextual police stops. Kilborn's out-of-class remarks also contributed to a public discussion, initiated by members of the BLSA community, on the propriety of using expurgated slurs in a law school exam. Although Kilborn's remarks were made to individual students, even the University recognized that they were directed at a broader group of people….

The dominant theme of Kilborn's in-class speech concerned pretextual police stops and the relationship between frivolous litigation, plaintiff incentives, and media coverage. These are undeniably matters of public concern. Kilborn's references to cockroaches and lynching and his use of an AAVE accent may have been insensitive, but they do not affect the public character of his speech. Similarly, Kilborn made his out-of-class statements in the context of a public discussion that was occurring at the University. Although he expressed his personal reaction to the controversy with individual students, the overall thrust of his speech addressed a matter of public concern: the propriety of using expurgated slurs in exam questions….

Finally, the court turned to the third prong of the test for First Amendment protection for government employee speech—whether its disruptiveness outweighed its constitutional value (the so-called Pickering balance):

Although Kilborn's speech receives some measure of protection under the First Amendment, it is not absolute. We weigh Kilborn's interest in expressing his speech against the interests of the University. A public employer's interest is generally limited to the efficient and effective delivery of public services. But in the academic setting, a public university also possesses its own First Amendment interests in academic freedom. For example, we have recognized that a university's "ability to set a curriculum is as much an element of academic freedom as any scholar's right to express a point of view."

The University officials do not suggest that the University had its own competing academic freedom interests. In fact, the University noted that its findings did not hinge on whether there were legitimate pedagogical reasons for Kilborn's use of the expurgated racial slur. Instead, the University officials assert an interest in maintaining a safe campus where students can learn free of harassment.

To be sure, the University has a substantial interest in ensuring its students can learn free of harassment. But here, the parties dispute why Kilborn was punished. The University officials claim they disciplined Kilborn because his speech was threatening and harassing to students. The University's investigation concluded that Kilborn's out-of-class remarks expressed insensitivity and hostility toward students voicing concern and that his in-class comments were inappropriate and racially charged. By contrast, Kilborn alleges that the investigation was not supported by the facts and that University officials intentionally misconstrued his statements to provide a pretext for punishing him for his controversial exam question and to mollify complaining students.

That is not a dispute we can resolve this early in the litigation. At this stage, we accept the well-pleaded facts in the complaint as true and draw reasonable inferences in Kilborn's favor. And it is reasonable to infer from the well-pleaded facts in Kilborn's complaint that University officials punished him for the controversial exam question and used the investigation to establish a pretext for their actions.

To take one example, the University's investigation substantiated an allegation that Kilborn had referred to racial minorities as cockroaches and found that the comment was racially charged. But a transcript of the class recording, which is included in the complaint, supports Kilborn's allegation that his reference to cockroaches had nothing to do with race or racial minorities.

We conclude that this is not "one of those rare cases" where we can engage in Pickering balancing "on the basis of pleadings alone." … Pickering balancing generally requires a more fully developed factual record than is available on a motion to dismiss ….

The court rejected, however, Kilborn's compelled speech claim, due process claim, and vagueness claim.

Note that courts have recognized a First Amendment right to quote unexpurgated epithets in class, and not just expurgated ones. For more on the question, beyond just the First Amendment issue, see Randall Kennedy's and my The New Taboo: Quoting Epithets in the Classroom and Beyond.

Patrick F. Solon (Vitale, Vickrey, Niro, Solon & Gasey LLP) represents Kilborn.

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[Eugene Volokh] Free Speech Unmuted: Can Non-Citizens Be Deported For Their Speech?

Jane Bambauer and I discuss the First Amendment and immigration law: deportation, exclusion, denial of citizenship, and more.

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[Eugene Volokh] UC's National Center for Free Speech and Civic Engagement $20K Non-Residential Fellowships (Applications Due March 21)

From the materials:

Applications for the UC National Center for Free Speech and Civic Engagement's fellowship program are now open (due March 21). Each year, the Center selects fellows from a broad range of disciplines and backgrounds such as law, journalism, higher education, social science, technology and government. The Center welcomes candidates from all backgrounds to apply and invites a wide range of innovative projects.

This is a one-year, non-residential program that gives selected fellows $20,000 in addition to up to $5,000 in research funds. Find details here.…

This year we are particularly interested in the following issues:

How best to safeguard academic freedom in response to the national and global climate including legislative assaults and other threats to the creation and transmission of knowledge; Exploring the interaction between anti-discrimination laws and expression on campus; Navigating values-based polarization and political partisanship in higher education; The role of AI and/or social media in the future of free speech and civic engagement in higher education; Higher education's role in supporting democracy and democratic learning; Strategies for engaging students, faculty, and staff in democratic governance and policy making at the institutional, local, and national level; The relationship between civic engagement and anti-authoritarianism; The intersection of climate and expression on campus, including the impact of national and international events; The role of civic engagement and service-learning work in restoring public trust in higher education.

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[Josh Blackman] Today in Supreme Court History: March 13, 1963

3/13/1963: Ernesto Miranda is arrested.

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[Josh Blackman] Remember When The Obama Administration Pressured Baker Hostetler To Drop Its Representation In House of Representatives v. Burwell?

[I have a very hard time getting worked up over revoked security clearances. ]

For the past two decades or so, conservatives have been systematically excluded from big law. Paul Clement was pushed out of two big law firms for his representation of conservative causes. A lawyer at Hogan Lovells was fired after defending Dobbs. Associates are routinely forced to do pro bono work on progressive causes, including abortion. But you will not find AMLAW 100 firms that filed an amicus brief in support of abortion restrictions. With good reason, boutique firms like Consovoy McCarthy and Clement Murphy have flourished. Big law firms have decided they would take a position on ideological issues, conservatives be damned. Maybe that was a good business judgment in the past, though those tides may have turned.

I don't think anyone would quibble with what I wrote above. But they would probably draw a distinction between a law firm making a business decision to favor progressive causes, and the government taking actions against a firm because of their political decisions. The Trump Administration's revocation of security clearances for attorneys at certain firms would be an example of the latter issue.

Is this sort of action unprecedented? Not really. I will repost below I wrote in 2016 about the origin of House of Representatives v. Burwell. This post was based on my 2016 book, Unraveled: Obamacare, Executive Power, and Religious Liberty. The bottom line: the Obama Administration indirectly pressured Baker Hostetler to drop its representation of the House. And that pressure worked. I'll add a coda at the end of the post.

In House of Representatives v. Burwell, the House challenged the legality of subsidies the Obama administration paid to insurers. Judge Rosemary M. Collyer ruled that the House as an institution had standing and that the payments were made without an appropriation. Currently, the case is on appeal to the U.S. Court of Appeals for the D.C. Circuit. Though the litigation has had unexpected success in the courts, its origin was rocky. As I discuss in Chapter 23 of "Unraveled," one of the most difficult aspects the case was finding an attorney to take it - or, more precisely, an attorney whose law firm would allow him keep the case.

In 2014, David Rivkin of the Baker Hostetler law firm and Florida International University law professor Elizabeth Price Foley wrote a series of articles, sketching a theory of why the House would have standing to challenge the president's implementation of the Affordable Care Act. At the time, their writings focused on the White House's delay of the employer mandate. Behind the scenes, Rivkin, Foley and their colleagues at Baker Hostetler were advising the House on how to take legal action.

With their counsel, on June 25, 2014, then-Speaker John A. Boehner (R) circulated a memorandum to the House GOP caucus. The Ohioan wrote that "for the integrity of our laws and the sake of our country's future, the House must act now" to stop the president's illegal executive actions. In July, Boehner would bring legislation to the floor to authorize the House general counsel "to file suit in the coming weeks in an effort to compel the president to follow his oath of office and faithfully execute the laws of our country." On July 30, the House voted along nearly straight party lines - 225 to 201 - to authorize the litigation. (One Republican voted nay.) House Resolution 676 was framed very broadly: The lawsuit could "seek any appropriate relief regarding the failure" of all executive-branch officials - including the president himself - "to act in a manner consistent with that official's duties under the Constitution and laws of the United States with respect to implementation" of the ACA.

After the House authorized the suit, Rivkin and Baker Hostetler signed a contract to litigate the case, which was capped at $350,000. The reaction from Democrats was swift. The White House called the suit "unfortunate." Minority Leader Nancy Pelosi (Cslif.) criticized the case as a waste of "time and taxpayer dollars." Rep. Louise M. Slaughter (D-N.Y.) called the suit a "sorry spectacle of legislative malpractice" and "political theater." Even many conservatives critiqued the decision. Talk radio host Mark Levin, who served in the Reagan administration, called the litigation a "foolish move."

Soon, the law firm was ridiculed on late-night television. Jimmy Fallon aired a fake infomercial for Baker Hostetler on "The Tonight Show." The parody featured an ambulance-chasing lawyer pitching his firm. "At Baker Hostetler, we specialize in one thing," the actor said, "suing the president. For instance, have you ever been forced to pass Obamacare, even though you didn't like it? We can help you waste thousands of dollars in taxpayer money to fight for what you sort of believe in."

The New York Times reported that Rivkin was "under pressure after facing criticism" from his colleagues "that he had taken on an overly partisan lawsuit." Partners at his firm, the Times wrote, "feared the case against Mr. Obama could drive off potential clients and hurt Baker Hostetler's credibility."

I learned from an attorney involved in the matter that when the contract was initially signed, a conflict check was performed, and the firm "backed the case." However, within a week after the contract was announced, partners at the firm started to receive urgent calls from general counsels of clients in the health-care industry. Baker Hostetler represents many hospital management firms and insurance companies, particularly at its office in Columbus, Ohio. All the calls from the general counsels had the "identical" message: They were under pressure and could not continue to associate with Baker Hostetler if it litigated the House's lawsuit.

The attorney I spoke with said it was "suspicious" that they all gave the "same" message very shortly after the contract was announced. There was a concern - confirmed by at least one general counsel - that the Obama administration was quietly pushing health-care companies to drop Baker Hostetler. After these calls came in, Rivkin's colleagues told him, "You can't do this." The contract with the House prohibited partners at Rivkin's firm from any "lobbying or advocacy" concerning the ACA. Many of Rivkin's colleagues lobbied for health-care reform. Although the House was willing to amend the contract to strike this provision, all of the parties agreed that this would be a valid basis to cancel the representation.

This withdrawal was particularly bittersweet for Rivkin. In 2010, he was the first attorney to represent Florida in its constitutional challenge to Obamacare. However, after Pam Bondi was elected as attorney general of Florida, she opted to replace Rivkin with Supreme Court superstar Paul Clement. Bondi wanted to hire someone who would argue at the high court, though she admitted it was an agonizing decision to switch horses in the middle of the race. In 2013, Rivkin told me that he understood the decision and took it graciously. It was a "typical Washington thing," he said. In 2014, after he had to withdraw from the House's case, Rivkin was angry at this political hardball that was completely beyond his control.

This was also not the first time the House Republicans had been in this sort of predicament. In 2011, the Obama administration announced that it would no longer defend the constitutionality of the Defense of Marriage Act. The House hired Clement, then of the King & Spalding law firm, to take the case and litigate it all the way to the Supreme Court. Under pressure, Clement's firm asked him to drop the case. Rather than quitting, Clement announced that he would resign from King & Spalding "out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters."

Tony Mauro reported in the National Law Journal that "pressure from within King & Spalding - as well as from some of its clients - were said to be factors in Clement's exit." Dahlia Lithwick wrote in Slate that "Human Rights Campaign, the gay rights advocacy group that had been agitating against Clement's defense of the law, is happy to claim responsibility for pressuring the firm to abandon its representation."

A spokesman for HRC said that the LGBT organization "contact[ed] King & Spalding clients to let them know that the group viewed the firm's defense of DOMA as unacceptable." He added: "We are an advocacy firm that is dedicated to improving the lives of gays and lesbians. It is incumbent on us to launch a full-throated educational campaign so firms know that these kinds of engagements will reflect on the way your clients and law school recruits think of your firm."

In a tradition dating back to John Adams's defense of the Red Coats who opened fire during the Boston Massacre, attorneys are ethically obligated to continue representing a client even if the cause is unpopular, or if they may lose other business. Clement wrote in his resignation letter that "when it comes to lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism." Firms should consider those factors before accepting a client, not after the representation begins.

For example, after he retired as attorney general, Eric Holder joined the firm of Covington and Burling. It was reported in the National Law Journal that the former Obama administration official - no friend of the financial industry - "may have lost a client because the firm hired him back." Holder recalled, "One big bank went to Covington and said, 'If you hire this guy, that is going to put at risk the relationship between this firm and this bank.' " The former attorney general relayed a conversation with the firm's chairman, who said, "I guess we're not going to have a relationship anymore, because he's coming back to Covington." Note that this decision happened even before Holder had joined the firm, whereas Clement was asked to withdraw after the firm accepted the case.

Following his resignation, Clement was able to immediately join the Bancroft law firm and continue his representation of the House. Over the next five years, Clement would establish Bancroft PLLC as a preeminent Supreme Court litigation boutique. Recently, Clement and his colleagues went back to big law by joining Kirkland Ellis.

Rivkin told me that during the summer of 2014, he and his colleagues "spent weeks scrambling to see whether [they] could find a way to continue representing the House." He explained that "this was a very difficult process for all of us as we had to balance our ethical obligations to the House and other Firm clients as well as numerous other considerations," particularly in light of their work over the past year to "develop the legal architecture" of the case. "A number of options were considered," Rivkin said. "Unfortunately, all of them would have required a considerable period of time to implement and the House wanted to file the lawsuit as soon as possible. In the end, withdrawing was the only viable option."

The House, without a lawyer for its case, frantically approached many of the top firms in Washington. They asked veteran litigator Chuck Cooper, who served in the Reagan administration, to take the case. The founding partner of the Cooper and Kirk law firm declined.

The House also asked Michael Carvin and Greg Katsas of Jones Day. Katsas had argued alongside Carvin before the Supreme Court in NFIB v. Sebelius. Jones Day also declined the House's case. An attorney at the firm told me they did not think it was a winning argument to challenge the delay of the employer mandate. Specifically, the employer mandate would go into effect in 2016, thus potentially mooting the case before it worked its way up to the Supreme Court. President Obama made a similar point in ridiculing the suit. In a July speech in Kansas City, Obama said, "It's estimated that by the time the thing was done, I would have already left office. So it's not a productive thing to do."

After a harried search, the House selected D.C. lawyer William Burck of Quinn Emanuel Urquhart & Sullivan LLP. I learned that Quinn Emanuel was deemed a better option because it was a litigation firm that did not lobby on behalf of the health-care industry. However, three weeks later, without any explanation, Burck withdrew from the case under similar pressure from his firm. An attorney involved in the selection process told me it was "embarrassing." Another attorney said House Republicans were "pissed" and "irritated how everything played out."

After two attorneys dropped out in one month, the House could not afford another miscue. An attorney advised Boehner that they needed an academic to litigate the case who "would not have any conflicts." (Academics can do more than write about the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria).

They soon chose Jonathan Turley, a law professor at George Washington University. Turley, though a liberal who supported national health care, had been a staunch critic of President Obama's executive actions. Months earlier, he warned that "what the president is doing is effectively amending or negating the federal law to fit his preferred approach. Democrats will rue the day if they remain silent in the face of this shift of power to the executive branch." On Nov. 18, Turley was officially hired. House Democrats still objected to the case. Rep. Robert Brady (Pa.) carped that Turley should not allow unpaid law students who have "not passed the bar" to be "exploited" by working on this case.

On Nov. 21 - nearly four months after the House authorized the suit - Turley filed House of Representatives v. Burwell. In addition to the employer mandate claim, Turley's complaint also asserted that the Obama administration was paying subsidies to insurances companies that were not appropriate. This additional claim proved decisive, as the court dismissed the mandate-delay claim. In May 2016, Collyer ruled that the payments were illegal. The case is already on appeal to the D.C. Circuit and will probably be argued in early 2017.

Coda

The government routinely applies pressure to private entities to achieve goals they cannot do so directly. Based on my research, I have little doubt that the Obama administration called clients of Baker Hostetler, and told them it would be bad for this lawsuit to proceed. Surprise, surprise, those clients told Baker Hostetler to drop the case. In Murthy v. Missouri, the Court wanted to bury its head in the sand based on standing, but the evidence of "jawboning" was palpable.

It seems there is only outrage when conservatives do these sorts of things. Trump, to his credit, made his actions public and provided reasoning. The public, and the judiciary, can then assess the validity of these actions.

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