Eugene Volokh's Blog, page 146

[Josh Blackman] SCOTUS DOGE: The Wall of Receipts for President Trump's Three Appointees

Republicans have a problem. Since the Nixon Administration, Republican Presidents have appointed sixteen out of twenty-one Supreme Court justices. But only about a third of those sixteen nominees have been principled conservative jurists. The rest either were not very conservative in the first place or simply drifted to the left. Perhaps the most confounding selection has been Chief Justice John Roberts. In his never-ending pursuit to depoliticize the judiciary, Roberts renders these faux-Solomonic decisions based on his own sense of political compromise. His decision to save the Affordable Care Act by rewriting the law's individual mandate and Medicaid expansion was just the tip of the iceberg.

These problems with Republican appointed judges are well known, and have been the source of massive frustration on the right. Ironically enough, the current Court's two most conservative members were flukes. Justice Samuel Alito was only picked after the nomination of Harriet Miers (thankfully) flamed out. And I am confident that President George H.W. Bush would have never selected Clarence Thomas had he known how conservative the jurist would be.

President Trump was gifted a golden opportunity in his first term with three Supreme Court nominees. As Trump's second term begins, with potential vacancies on the horizon, it is not too early to assess the three nominees. But how best to measure their performance? One possible benchmark is whether they built a conservative majority on the Court. On that front, they unquestionably succeeded. Justice Antonin Scalia, the conservative lion, was replaced by another conservative, Justice Neil Gorsuch. Justice Anthony Kennedy, who swung from left to right in any given case, was replaced by a more-reliable conservative in Justice Brett Kavanaugh. And Justice Ruth Bader Ginsburg, the leader of the Court's progressive wing, was replaced by Amy Coney Barrett, who briefly served on the court of appeals after a career in academia. These three jurists have cast votes in landmark cases that have unquestionably shifted the law to the right: they voted to overrule Roe v. Wade, abandoned the dreaded Lemon test, nixed most affirmative action policies, and more.

If we limit our focus to these high-level cases, the Trump trio are resounding successes. But we can look deeper. In my view, the relevant metric is not whether they have made the Court more conservative, but how they compare to the Court's most conservative appointees: are they voting with Justices Thomas and Alito, or drifting towards Chief Justice Roberts? I documented their records meticulously in a 2024 article, and have carefully tracked recent developments. On this front, the Trump appointees can be easily ranked. First, Justice Gorsuch is the member most likely to join Thomas and Alito, though he has led the liberals on significant cases concerning LGBT rights and Indian tribes. Second Justice Brett Kavanaugh started off a bit rocky, and was more likely to vote with Chief Justice Roberts, though more recently, he has settled down to preserve certain legal principles. Third, Justice Barrett has been the biggest wildcard. From her earliest days, she has consistently voted opposite Thomas, Alito, and Gorsuch with regard to emergency applications and denials of certiorari. More recently, Justice Barrett has been trending towards Chief Justice Roberts's mode of alternative dispute resolution.

You don't have to take my word for it. In the spirit of DOGE, here is the wall of receipts.

Rulings on the Emergency Docket

On the Supreme Court's emergency docket, it takes five votes to reverse a lower court's ruling. I have counted more than a dozen cases in which Justices Thomas, Alito, and Gorsuch would have granted relief on the emergency docket, while Justice Barrett and, in some cases, Justice Kavanaugh, voted in the opposite fashion. Almost all of these votes came in high-profile cases that may be viewed as controversial. I've described this dynamic as the 3-3-3 Court on the Court's emergency docket.

The common thread in each case is that Justices Thomas, Alito, and Gorsuch were willing to grant emergency relief to a conservative litigant challenging a progressive policy in a high-profile case. It would be a mistake to say that this trio is voting for the conservative causes because they are conservative justices. Rather, conservative litigants are more likely to make conservative legal arguments which are more appealing to conservative judges. Judicial philosophies matter. But in each high-profile case, which may be deemed controversial, one or two of the other Trump appointees were silent. And their silence is a pretty good indication they voted opposite of the conservative wing of the Court.

South Bay United Pentecostal Church v. Newsom (2021) - Justices Thomas, Alito, and Gorsuch would have declared unconstitutional a ban on singing in church. Justice Barrett's first concurrence on the bench, which Justice Kavanaugh joined, upheld the singing ban. We The Patriots USA v. Hochul (2021) - Justices Thomas, Alito, and Gorsuch would have blocked the enforcement of a state vaccine mandate. Justices Kavanaugh and Barrett were silent. Dr. A. v. Hochul (2021) - Justices Thomas, Alito, and Gorsuch would have blocked the enforcement of a state vaccine mandate. Justices Kavanaugh and Barrett were silent. (2022) - Justices Thomas, Alito, and Gorsuch would have blocked the enforcement of a federal vaccine mandate. Justices Kavanaugh and  Barrett were silent. (2022) - Justice Thomas, Alito, and Gorsuch would have ruled in favor of Navy Seals challenging a vaccine mandate. Justice Kavanaugh, and likely Justice Barrett, declined to grant relief.   Coalition for TJ v. Fairfax County School Board (2022) - Justices Thomas and Alito would have blocked an affirmative action policy at an elite public high school. Justices Gorsuch, Kavanaugh, and Barrett were silent. Moore v. Harper (2022) - Justices Thomas, Alito, and Gorsuch would have blocked a state supreme court's finding of a partisan gerrymander. Justice Kavanaugh, and likely Justice Barrett, declined to grant relief. (2022) - Justices Thomas, Alito, and Gorsuch would have allowed a Texas regulation of social media companies to go into effect. Justices Kavanaugh and Barrett voted to allow the Texas law to be blocked. (2022) - Justices Alito, Thomas, and Gorsuch would have blocked the counting of undated mail-in ballots. Justices Kavanaugh and Barrett were silent. (2023) - Justices Thomas, Alito, and Gorsuch would have allowed a lower court to block the Biden Administration from "jawboning" social media companies. Justices Kavanaugh and Barrett likely voted to put that lower court ruling on hold. Griffin v. HM Florida-ORL (2023) - Justices Thomas, Alito, and Gorsuch would have allowed a Florida law to be enforced that prohibited restaurants from showing "adult live performances" to children. Justices Kavanaugh and Barrett allowed a lower court to block the law.  (2023) - Justices Thomas, Alito, Gorsuch, and Kavanaugh would have blocked enforcement of a "ghost gun" regulation. Justice Barrett allowed the restriction to go into effect. (I am co-counsel in that case.) Moyle v. United States (2024) - Justices Thomas, Alito, and Gorsuch would have blocked the Biden Administration from requiring emergency room doctors to perform abortions. Justices Barrett and Kavanaugh did not join that opinion. DHS v. Texas (2024) - Justices Thomas, Alito, Gorsuch, and Kavanaugh would have allowed Texas to install razor wire in the Rio Grande River. Justice Barrett allowed a lower court to block Texas from doing so.  Department of State v. AIDS Vaccine Advocacy Coalition (2025) - Justices Thomas, Alito, Gorsuch, and Kavanaugh would have blocked lower court ruling that required the Trump Administration to pay $2 billion in foreign aid funding. Justice Barrett denied the government's request for a stay.

The most recent case concerning USAID is the most significant. Justice Barrett joined Chief Justice Roberts to rule against the Trump Administration--sort of. On paper, at least, the Court rejected the federal government's urgent appeal. But in reality, the 5-4 majority opinion hinted that the lower court should reduce the amount of money that has to be spent. The Court purported to rule against Trump, while at the same time not actually ruling against Trump. This split has all the trademarks of a John Roberts compromise opinion.  This compromise was an impermissible advisory opinion. The Court lacks the power to make suggestions; it can only issue orders by granting a litigant's petition.

The outrage on social media to Justice Barrett's vote in the USAID case was swift, but largely missed the mark. The problem with this case is not that she lacked loyalty to President Trump. No judge should ever profess fidelity to any politician, full stop. Rather, the problem is this decision was yet another data point to show that Barrett is moving towards the John Roberts school of judging: rather than deciding the actual legal question presented, the Court makes "compromises" to avoid actions that could be deemed controversial. 

As I noted above, Justice Kavanaugh's earlier decisions were often with Barrett. However, increasingly, he seems to have settled in with Justices Thomas, Alito, and Gorsuch. In January, Professor Steve Vladeck of Georgetown University Law observed the emerging lineup "in which both the Chief Justice and Justice Barrett are inclined to join the Democratic appointees, but neither Justice Gorsuch nor Justice Kavanaugh are." More recently, Vladeck stated that "it's a bit alarming that Justice Kavanaugh joined the dissent" in a case involving foreign funding. I don't find Kavanaugh's votes alarming. They are reassuring. By contrast, Barrett's trend of late on the emergency docket is moving towards Roberts.

Denials of Certiorari

On the Supreme Court it takes four votes to grant a petition for writ of certiorari. The Supreme Court has near-complete discretion over its docket. A case that is not granted is a case that is not decided. In recent years, the number of the cases the Court hears has continued to drop. Court watchers have privately speculated that Justice Barrett may be the most cert-stingy Justice. Indeed, as the Court's median voter, she can largely dictate which cases to hear. If she thinks the lower court got it right, she can leave the case undisturbed. But if she thinks the lower court erred, she can take the case to reverse. "Cert-worthiness," as it is called, is largely a function of what Justice Barrett thinks. (For that reason, cert-worthiness is a poor standard to determine whether relief is warranted on the emergency docket.)

A Justice's performance can be measured based on how often he or she vote to review cases that may be deemed controversial. By my count, there have been more than ten cases where Justices Thomas, Alito, and usually, Gorsuch would have granted review, but where Justices Barrett, and to a lesser extent, Justice Kavanaugh were silent. I say silent because unless a Justice records her vote, we can only speculate. To continue the theme, almost all of these denials came in high-profile cases that may be viewed as controversial. 

Republican Party of Pennsylvania v. DeGraffenreid (2021) - Justices Thomas, Alito, and Gorsuch would have reviewed a decision upholding the power of the state supreme court to alter deadlines for mailed ballots. Justices Kavanaugh and Barrett were silent. (2021) - Justices Thomas, Alito, and Gorsuch would have heard the appeal of a florist who declined to make floral arrangements for a same-sex wedding. Justices Kavanaugh and Barrett were silent. (2021) - Justices Thomas, Alito, and Gorsucsh would have heard a challenge to a Washington law that granted employee information to unions. Justices Kavanaugh and Barrett were silent. Dignity Health v. Minton (2021) - Justices Thomas, Alito, and Gorsuch would have reviewed a challenge to a California law that required a Catholic hospital to perform a hysterectomy on a transgender patient. Justices Kavanaugh and Barrett were silent. Roman Catholic Diocese of Albany v. Emami (2021) - Justices Thomas, Alito, and Gorsuch would have reviewed a challenge to a New York mandate that religious employers must fund abortions through their employee health plans. Justices Kavanaugh and Barrett were silent. Eychaner v. Chicago (2021) - Justices Thomas, Alito, and Kavanaugh, would have reconsidered the notorious Kelo ruling concerning adverse possession. Justices Gorusch and Barrett were silent. Dr. A. v. Hochul (2022) - Justices Thomas, Alito, and Gorsuch would have reviewed the constitutionality of a state vaccine mandate. Justices Kavanaugh and Barrett were silent. This is also a case in which Kavanaugh and likely Barrett denied relief on the emergency docket. Boston Parent Coalition for Academic Excellence Corp. v. The School Committee For the City of Boston (2024) - Justices Thomas and Alito would have reviewed an affirmative action policy at an elite public school. Justices Gorsuch, Kavanaugh, and Barrett were silent. Tingley v. Ferguson (2023) - Justices Thomas, Alito, and Kavanaugh would have reviewed a Washington restriction on counseling children who present gender dysphoria. Justices Gorsuch and Barrett were silent. Parents Protecting Our Children v. Eau Claire Area School District, Wisconsin (2024) - Justices Alito, Thomas, and Kavanaugh would have reviewed a challenge to a school's policy to encourage students to "transition" without parental knowledge or consent. Justice Barrett was silent, as was Justice Gorsuch. Justice Alito warned that "some federal courts are succumbing to the temptation" to "avoid[] some particularly contentious constitutional questions." Coalition Life v. City of Carbondale (2025) - Justices Alito and Thomas would have reconsidered a precedent that upheld a buffer zone around abortion clinics. Justices Gorsuch, Kavanaugh, and Barrett were silent. 

To his credit, Justice Kavanaugh routinely notes that he would grant cases. By my count, Justice Barrett has only done so once, in a mundane case about jurisdiction. It is entirely possible that in any one of these cases, there are vehicle problems. In other words, there is some factual or procedural reason why the Court may not be able to neatly resolve the case. But could it really be that in all of these cases, Justices Thomas, Alito, and Gorsuch or Kavanaugh ignored glaring issues that Justice Barrett discerned? Are those other jurists just right-wing hacks that are taking cases to advance a conservative agenda? Or could it be, as Thomas and Alito have repeatedly noted, that the Court is simply unwilling to tackle all of these controversial issues. 

One other case bears mentioning. Ultimately, Justices Kavanaugh and Barrett cast the deciding votes to overrule Roe v. Wade. But what is less known is how long it took the Court to grant review in that seminal decision. Mississippi's petition for a writ of certiorari was filed in Dobbs in June 2020. But the case would not be granted till nearly a year later in May 2021. According to SCOTUSBlog, the case was "rescheduled nine times, then relisted 12 times." These delays likely reflect the fact that there were not four solid votes to grant review. Presumably, the conservatives would not grant the case unless they thought there were five votes to overrule Roe. The New York Times reported that Justice Barrett originally voted to grant certiorari in Dobbs. However, as the case was relisted several times, Justice Barrett switched her vote to deny certiorari. The Times said her rationale for flipping her vote was unclear. Yet, once Dobbs was granted, Justice Barrett promptly joined Justice Alito's majority opinion when granting Roe. In what was arguably the most significant case of the twenty-first century, it seems that Justice Barrett did not even want to take the case. As a result, Justice Kavanaugh would have had to become the decisive fourth vote to grant. But when Justice Barrett's vote would be visible for all to see, she joined the majority without reservation. 

The Defenses of Justice Barrett

I have seen three primary defenses of Justice Barrett. The first defense focuses on the votes she cast in blockbuster cases. Without question, she provided the deciding vote in Dobbs, the 5-4 decision that overruled Roe v. Wade. Barrett joined the majority in Kennedy v. Bremerton, which abandoned the Lemon test. And Justice Barrett joined the majority opinion in Students for Fair Admission v. Harvard, which jettisoned decades of precedent concerning affirmative action. I am pleased to praise the three Trump appointees for these votes, including Justice Barrett in particular. But, in candor, these sorts of votes should have been a given with the current composition of the Court. For decades, Justices Scalia and Thomas called on their colleagues to reverse course on abortion, religious liberty, and affirmative action. Do we give a gold star to a Republican-appointed Supreme Court justice who did what Justices Scalia and Thomas said had to be done in the 1990s? These rulings are the baseline. I find it much more fruitful to focus on the emergency docket and the certiorari denials. For all of the Court's important decisions, there are many more cases that could have been advanced, but were summarily turned away.

A second defense contends that Barrett is one of the most influential conservative jurists in decades. This metric may be true, but it does not prove very much. As I noted above, most of the Republican appointees since the Nixon Administration have not been principled conservative jurists. A simple ranking illustrates the trend. For the top spot, it is hard to decide between Justices Scalia and Thomas. Scalia was the pathbreaker for originalism, but Thomas's lengthy tenure has allowed him to see so many of his seeds grow into tall oaks. I will simply call it a tie for first. In third place is Justice, and later Chief Justice, William Rehnquist, who presided over the federalism revolution. Fourth, I would place Justice Samuel Alito, who has been a stalwart conservative for nearly two decades. I would place Justice Gorsuch at fifth, as he has provided keen insights about the separation of powers and religious liberty. Justice Kavanaugh is sixth, and the gap between him and Gorsuch seems to be closing by the term. Justice Barrett is seventh, and the gap between her and Kavanaugh is growing. Indeed, from my vantage point, Barrett is drifting towards number eight, Chief Justice Roberts. Beyond Roberts, the rankings really do not matter much. Chief Justice Warren Burger may have been conservative on criminal procedure issues and some federalism cases, but not much more. Justices Lewis Powell, Sandra Day O'Connor, and Anthony Kenendy were swing-vote moderates who usually leaned right. Justices David Souter, John Paul Stevens, and Harry Blackmun were reliable liberals. By contrast, the list of Democratic-appointed justices in the last half-century that have drifted to the right is shorter than the period at the end of this sentence.

The final defense comes from President Trump himself. On Air Force One, Trump told the press pool, Barrett is "a very good woman. She's very smart, and I don't know about people attacking her, I really don't know. I think she's a very good woman. She's very smart." Here, I cannot disagree. Barrett is unquestionably intelligent, and she is by all accounts very nice. However, being "good" and "smart" is not an appropriate test for being a Supreme Court Justice. Yet, these are the sorts of things Presidents have looked for. President George W. Bush "was impressed with [John] Roberts's intellect" and "liked [his] personal style and smooth, easygoing manner." Personality matters for an interview, but it does not determine how a Justice will decide cases. How did those smarts and niceness turn out for the Roberts Court? Given a President's focus on the &tag=reasonmagazinea-20"soft" factors, so much turns on the final roster of potential nominees presented.

Perhaps the best response to these defenses is to look at what the left is saying about Justice Barrett. In the same breath that they tar Justices Thomas and Alito as fascists, they praise Barrett. The USA Today published an essay titled "Liberals owe Justice Barrett an apology. She's clearly not in Trump's pocket." Ruth Marcus called Barrett a "pleasant surprise" in the Washington Post. And so on.

In the end, the three Trump appointees can be judged based on the votes they cast, and the votes they do not cast. These votes teach lessons, I hope, about how the next Supreme Court vacancy ought to be filled. 

The post SCOTUS DOGE: The Wall of Receipts for President Trump's Three Appointees appeared first on Reason.com.

[Jonathan H. Adler] The EPA Announces a Fool's Errand: Reconsidering the Endangerment Finding

[The move is part of a broader suite of deregulatory actions announced by the EPA Administrator, and is likely the least advisable item on the list.]

Today Environmental Protection Agency (EPA) Administrator Lee Zeldin announced 31 deregulatory actions it was undertaking to reduce the burden of environmental regulations on the American economy. Many of the announced actions represent efforts to reconsider Biden Administration policies and adopt less burdensome alternatives. "Today is the greatest day of deregulation our nation has seen. We are driving a dagger straight into the heart of the climate change religion to drive down cost of living for American families, unleash American energy, bring auto jobs back to the U.S. and more," Zeldin said in the EPA's release.

One of the more significant actions Zeldin announced is also the most foolish: Reconsidering the EPA's "endangerment finding" with regard to greenhouse gas emissions. Focusing on this finding is understandable, as this finding is what triggers GHG regulation under the Clean Air Act. Yet given the relevant statutory language, trying to undo this finding is a fool's errand that threatens to divert limited agency resources and staffing away from the other announced initiatives.

Under various provisions of the Clean Air Act, the EPA is required to regulate any emissions that "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." In Massachusetts v. EPA, greenhouse gases are air pollutants under some of the Act's provisions, so whether they must be regulated turns on whether GHG emissions "may reasonably be anticipated to endanger public health or welfare." This is not a high threshold to meet, and it is one that GHG emissions easily satisfy (something the EPA has, in effect, conceded for decades).

Note that for purposes of the Clean Air Act, the question is not whether climate change is catastrophic, nor whether climate adaptation is preferable to mitigation, nor whether federal regulation of sector-specific emissions is rational or cost-beneficial, nor whether such regulations represent a serious or rational way to address the threat of climate change. Nor is the question whether the science is unequivocal, nor is it whether there is certainty about the likely affects of increased atmospheric concentrations of GHGs over any given time period. Rather the question is simply whether the EPA Administrator can "reasonably anticipate" that the accumulation of GHG emissions can cause negative effects -- i.e. threaten "public health or welfare." (And note further that "welfare," under the Clean Air Act, is an expansive term explicitly defined to include effects on climate, "economic values," and "personal comfort and well-being.")

What this means is that none of the justifications for reconsidering the endangerment finding in the EPA's press release are remotely relevant to the question at hand, as none address the relevant statutory language which defines and delimit EPA's inquiry. Indeed, the Trump EPA seems to be repeating the same mistake made by the Bush Administration prior to Massachusetts v. EPA  when it claimed it could simply decline to regulate GHGs simply because it concluded there were better ways to address climate change than utilizing the Clean Air Act. The Bush Administration was correct as a policy matter, but wrong on the law--as the Supreme Court ultimately concluded. [N.B.: the EPA release quotes Acting OIRA Administrator Jeff Clark who helped spearhead the Bush Administration's failed legal strategy in Massachusetts v. EPA.]

A further obstacle to reconsidering the endangerment finding is that it would effectively require the EPA to repudiate virtually everything it has said about greenhouse gas emissions and climate change for the past several decades--and then convince federal courts that these disavowals represent the sort of reasoned decision-making that courts should uphold. Again, it will not be enough for the EPA to now claim some studies exaggerated risks or reached improper conclusions, for that would not be enough to unring the endangerment bell. Rather, the EPA has to claim--with a straight face--that the Administrator cannot "reasonably anticipate" that anthropogenic GHG emissions do not even "contribute" to any adverse impacts on health or welfare. OIRA's Clark may believe that the endangerment finding should require "a consideration of downstream costs imposed on both mobile sources like cars and stationary sources like factories," but that's not what the Clean Air Act says, nor is it how the statute has been interpreted by the courts.

The Trump Administration is correct that seeking to stabilize atmospheric concentrations of greenhouse gases through the Clean Air Act is costly and unwise. I am long on record calling such policies unserious and destined for failure. But that is largely irrelevant to the legal question before the EPA. Like it or not (and I do not), the Supreme Court concluded the greenhouse gases are pollutants under the Clean Air Act, and the relevant statutory language is highly precautionary and easily triggered. That the result is a raft of costly regulations that increase prices, constrain innovation, and suppress energy use is legally irrelevant.

The bottom line is that if the Trump Administration wants to fully disarm the EPA from climate regulation, it will have to go to Congress. The Clean Air Act may be a poor way to try and adjust the planetary thermostat, but that is the sort of problem that the legislature needs to fix.

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[Ilya Somin] District Court Rules Trump Violated Constitution by Usurping Congress's Spending Power

[The decision involved administration attempts to withhold spending on foreign aid contracts, but has much broader implications.]

(Photo 181642336 © Zimmytws | Dreamstime.com)

On Monday, US District Judge Amir Ali ruled against the Trump Administration in an important case involving control over the spending power. The court held the administration could not withhold payments from foreign aid contractors, that had been allocated by Congress. The issues in the case go far beyond the relatively modest sums of money immediately at stake. Indeed, this is just one of many cases where the administration is being sued for illegally withholding funds, in defiance of Congress. Judge Ali has a valuable summary of the broader constitutional principle involved:

The provision and administration of foreign aid has been a joint enterprise between our two political branches. That partnership is built not out of convenience, but of constitutional necessity. It reflects Congress and the Executive's "firmly established," shared constitutional responsibilities over foreign policy, Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 62 (2015) (Roberts, C.J., dissenting), and it reflects the division of authorities dictated by the Constitution as it relates to the appropriation of funds and executing on those appropriations. Congress, exercising its exclusive Article I power of the purse, appropriates funds to be spent toward specific foreign policy aims. The President, exercising a more general Article II power, decides how to spend those funds in faithful execution of the law….

This case involves a departure from that firmly established constitutional partnership. Here, the Executive has unilaterally deemed that funds Congress appropriated for foreign aid will not be spent. The Executive not only claims his constitutional authority to determine how to spend appropriated funds, but usurps Congress's exclusive authority to dictate whether the funds should be spent in the first place. In advancing this position, Defendants offer an unbridled view of Executive power that the Supreme Court has consistently rejected—a view that flouts multiple statutes whose constitutionality is not in question, as well as the standards of the Administrative Procedure Act ("APA"). Asserting this "vast and generally unreviewable" Executive power and diminution of Congressional power, Defendants do not cite any provision of Article I or Article II of the Constitution….

Judge Ali has a more detailed discussion of the constitutional issues later in the opinion (pp. 29-38).

I have previously covered the issues at stake in Trump's effort to usurp the spending power here. It's a massive power grab that must be blocked, even if you believe (as I do) that federal spending is way too high and needs to be cut. As noted in my earlier post, much of the administration's agenda is not really about cutting spending, but about using the threat of withholding to bend state and local governments and various private organizations to the administration's will. See also this discussion by Georgetown law Prof. Meryl Chertoff. Even if you think a Republican president should be able to wield such vast, unconstrained power, I bet you don't have similar confidence in the next Democratic one.

The actual savings achieved by DOGE cuts (about $9 billion, once we strip away errors and distortions), are relatively piddling, in the context of the gargantuan nearly $7 trillion federal budget. This isn't about balancing the budget, or even about reducing waste and fraud. It's a massive unconstitutional power grab.

For those keeping score, I have also been highly critical of Democratic administrations' attempts to usurp spending authority, as with Biden's student loan forgiveness program (rightly invalidated by the Supreme Court, in a decision I defended here). But Trump's assault on the spending power is distinctive for its sweeping nature. He doesn't just claim that vague statutes give him vast discretion over some particular spending category (as, e.g., Biden did with student payments). He's claiming a general power to "impound" any federal funds for almost any reason. That claim is badly wrong, and extremely dangerous.

Judge Ali also concluded that the Administration violated the Administrative Procedure Act. I will leave that issue to APA experts.

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[Orin S. Kerr] New Draft Article: "Data Scanning and the Fourth Amendment"

[Just posted to SSRN.]

I have recently posted a new draft article, Data Scanning and the Fourth Amendment, to SSRN.  The abstract:

A crucial question of Fourth Amendment law has recently divided courts: When government agents conduct a digital scan through a massive database, how much of a "search" occurs? The issue pops up in contexts ranging from geofence warrants and reverse keyword searches to the installation of Internet pen registers. When a government agent runs a filter through a massive database, resulting in a list of hits, is the scale of the search determined by the size of the database, the filter setting, or the filter output? Fourth Amendment law is closely attuned to the scale of a search. No search means no Fourth Amendment oversight, small searches ordinarily require warrants, and limitless searches are categorically unconstitutional. But how broad is a data scan?

This essay argues that that Fourth Amendment implications of data scans should be measured primarily by filter settings. Whether a search occurs, and how far it extends, should be based on what information is exposed to human observation. This standard demands a contextual analysis of what the output reveals about the dataset based on the filter setting. Data that passes through a filter is searched or not searched depending on whether the filter is set to expose that specific information. The proper question is what information is expressly or implicitly exposed, not what raw data passes through the filter or the raw data output. The implications of this approach are then evaluated for a range of important applications, among them geofence warrants, reverse keyword searches, and Internet pen registers.

The idea for this article started with my blog posts here reacting to the Fifth Circuit's geofence warrant ruling in United States v. Smith, but I think the issue is one that applies more broadly.  Indeed, the more that lower courts construe the Fourth Amendment broadly on what data is protected, the more Fourth Amendment protection depends on how you answer the scanning question.

This is a first draft, and comments are very welcome.  I especially welcome comments on the technology discussions (mostly in Section I),  including about whether I get the basics correct, whether the examples and analogies work, and whether the terminology is on or off. Thanks.

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[David Bernstein] Peter Beinart Has Gone Full Antisemite

[In his recent book and an oped column, he channels Nazi and other antisemitic propaganda about the Purim Holiday]

The basic story of the holiday of Purim, which starts Thursday night, is this. The King of the Persian empire takes a Jewish bride, Esther, who conceals her Jewish identity. Meanwhile, the king's evil vizier, Haman, plots a genocide of Jews throughout the empire, and wins the king's blessing to undertake the massacre on the 14th day of the month of Adar. Esther's uncle Mordechai gets wind of the plot, and beseeches Esther to intervene. Esther persuades the king to execute Haman, but the decree approving the massacre cannot be revoked. The king instead gives Jews throughout the empire the right to defend themselves, and the following transpires:

For the Jews that were in Shushan gathered themselves together on the fourteenth day also of the month Adar, and slew three hundred men at Shushan; but on the prey they laid not their hand. But the other Jews that were in the king's provinces gathered themselves together, and stood for their lives, and had rest from their enemies, and slew of their foes seventy and five thousand, but they laid not their hands on the prey on the thirteenth day of the month Adar; and on the fourteenth day of the same rested they, and made it a day of feasting and gladness

The text could not be clearer that the Jews rose in self-defense, and killed not random people, but the enemies who were preparing the genocide.

Nevertheless, for centuries antisemites have distorted the text to suggest that Jews were inherently bloodthirsty chauvinists who sought to massacre the people around them. The Nazis, for obvious reasons, particularly loved to rely on a story about Jews fighting back against genocidal enemies to libel Jews. The holiday loomed so large in Nazi consciousness that just before Hitler henchmen Julius Streicher was hanged, he shouted out, "Purimfest 1946!" But you don't have to take my word for it:

So what sort of vicious antisemite would spread similar libels about Purim in 2025? For one, New York Times writer Peter Beinart. Beinart has evolved over the years from "liberal Zionist" to "non-Zionist" to "anti-Zionist" to his later iteration, which is "deranged antisemitic anti-Zionist."

Here he is in a column in the Guardian, based on his recent book, explaining Purim in the same terms as the Nazis and other antisemites:

On the 13th day of the month of Adar, the Jews kill 75,000 people. They declare the 14th "a day of feasting and merrymaking". With the blood of their foes barely dry, the Jews feast and make merry. That's the origin of Purim.

Purim isn't only about the danger Gentiles pose to us. It's also about the danger we pose to them.

For most of our history, when Jews had little capacity to impose our will via the sword, the conclusion of the book of Esther was a harmless and even understandable fantasy. Who can blame a tormented people for dreaming of a world turned upside down? But the ending reads differently when a Jewish state wields life and death power over millions of Palestinians who lack even a passport. Today, these blood-soaked verses should unsettle us. When we recite them aloud in synagogue, we should employ the anguished, sorrowful tune in which we chant the book of Lamentations, which depicts the destruction of our ancient temples.

Instead, most of us ignore the violence that concludes the Esther scroll. Some contemporary Jews justify it as self-defense. On the far right, some revel in it. But they're the exception. More often, we look away. We focus on what they tried to do to us.

No, Peter, we don't look away. According to the story (which is, fwiw, historical fiction), armed mobs of 75,000 people came to murder the entire Jewish population of the Persian Empire, who were innocent of any wrongdoing. The Jews killed them before they could do it. Hooray! If only someone had done this to the Nazis in 1938, we could be celebrating Purim II, instead of mourning on Yom HaShoah.

If this doesn't cost Beinart his job on the New York Times op-ed page, it's a terrible sign of how antisemitism has been normalized in elite discourse.

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[Eugene Volokh] "Misguided Anti-Racism Campaign Cancels College Sondheim Production"

From Northwestern law professor Andrew Koppelman (The Hill) (this is the unexpurgated version that I received by e-mail, so I'm including it instead of just linking to the Hill version):

John Wilkes Booth was a racist murderer, but that apparently wasn't the worst thing about him. The worst thing was that he used "the N-word."

Isn't that a bizarre thing to say? Not too bizarre, evidently, for the social media campaign that pressured a Northwestern University theater group into cancelling its production of Stephen Sondheim's classic musical "Assassins." The cancellation was part of a misguided effort to fight racism, and it is a window into how counterproductive such efforts have sometimes become.

"Assassins" is a deeply ironic depiction of America's presidential assassins, attempted and successful, and their place in the national imagination. It flopped when it first opened on Broadway in 1990 but has since been recognized as one of Sondheim's major works.

At one point in the show, Booth, who killed Abraham Lincoln, calls his victim a "niggerlover." It comes at the end of a soliloquy full of the familiar bilge about the noble lost Southern cause, and it is intended to shock the audience. It does. No substituted euphemism could have the same effect. It is an ugly moment, and it is historically accurate. But racist murder is an ugly thing.

Theater is a potent medium for showing us the truth of what people do to one another. Iris Murdoch wrote that the best art "shows us the world, our world and not another one, with a clarity which startles and delights us simply because we are not used to looking at the real world at all."

The objections to the show, as reported by the Daily Northwestern, included claims that "using that word in that statement is a form of violence," a "racist action" with "nothing else to defend it," "disregarding of the humanity," that "reflects a failure to consider the lived experiences of Black students."

The theater group eventually capitulated to the pressure, cancelled the final weekend of performances and released an official statement: "We are profoundly sorry for the harm we caused. Art should never come at the expense of the safety of Black and POC communities. Because of our actions and inactions, it did."

This is magical thinking. Some unspecified Black Americans are allegedly going to suffer some unspecified harm because somewhere on the Northwestern campus, someone is uttering a vicious word. Does anyone really believe that? Or is there just some satisfaction (or, in some cases, safety) in joining a solidaristic ritual of people together saying they believe it?

One of the persistent follies of the political left is confusing symbolic actions for real ones. Real racial subordination consists of decaying neighborhoods, bad education, joblessness, mass incarceration, poor health and violence — real violence, not hurt feelings because of vicious language. These injuries are not ameliorated by a requirement that any literary depiction of racism must make it appear less nasty than it is.

It is, of course, easier to engage in this kind of performative virtue-signaling than to address the causal processes that are actually destroying the lives of Black Americans. We need our best minds, the kind of students who attend Northwestern, to think hard about that. One strategy that is guaranteed to fail is relentless self-examination by whites — what John McWhorter calls "willfully incurious, self-flagellating piety, of a kind that has helped no group in human history."

After this sorry episode, one wonders whether the theater program at Northwestern will ever dare again to portray racism on the stage. It will likely turn, instead, to safer topics. One of the central ways in which oppression maintains itself is by keeping people thinking about something else.

This is a disaster both for education at the university where I teach and for the effort to actually do something about the genuine evils that Black Americans suffer in American society. In its small way, this misguided campaign has contributed to systemic racism.

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[Josh Blackman] Today in Supreme Court History: March 12, 1889

3/12/1889: Justice John Campbell dies.

 

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[Eugene Volokh] Wednesday Open Thread

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[Stephen Halbrook] Second Amendment Roundup: Rehearing En Banc Sought in 5th Circuit Suppressor Case

[The panel’s ruling that suppressed firearms aren’t protected should be reconsidered.]

A petition for rehearing en banc has been filed seeking review of the Fifth Circuit's panel decision in United States v. Peterson, which held that noise suppressors (aka silencers or mufflers) are not "Arms" protected by the Second Amendment.  As I recently posted about the case here, the decision overlooked that millions of law-abiding Americans use suppressed firearms for ear protection and reduction of recoil, attributes just as relevant to the scope of the Second Amendment as other important firearm features.

The Court has ordered the United States to file a response by March 17.  This is an opportunity for the Attorney General to comply with the President's Executive Order to examine all actions of executive departments and to present a plan to protect the Second Amendment rights of Americans.  That includes review of "The positions taken by the United States in any and all ongoing and potential litigation that affects or could affect the ability of Americans to exercise their Second Amendment rights."

The Brief of the United States previously filed under Attorney General Garland is the familiar excuse list of why the Second Amendment never impedes any restriction: suppressors are not "bearable arms," but even if they are, they are "dangerous and unusual," but even if they're not, the registration requirements of the National Firearms Act do not "infringe" on Second Amendment rights, and in any event, the registration requirements are analogous to historical regulation of commerce in firearms.

The same excuse list could be applied to any other firearm feature, including those that anti-gun advocates depict with exaggerated rhetoric to dupe judges who are unfamiliar with firearm technology.  Such false depictions including the horrifying conspicuously-protruding pistol grip on a rifle, the devastating .223 caliber cartridge that blows up people to pieces, or the sniper scope designed to take out enemies two miles away.

The United States should file a response to the petition to rehear that addresses the very serious arguments made in the petition and should change the position of the Merrick Garland-run Department of Justice.  It should acknowledge that suppressors reduce but do not eliminate the noise emitted from a firearm, which supports the safe and effective use of a firearm by reducing damage to one's hearing.  Millions of Americans possess and use suppressed firearms for target practice, self-defense, and hunting, which thus meet Heller's common-use test.

The panel acknowledged that the case was a matter "of first impression in [this] circuit," but with little reasoning held that suppressors are afforded no Second Amendment protection whatsoever.  The panel adopted a broad categorical rule: certain firearm parts, which the panel labeled as "firearm accessories," are not "covered by the plain text of the Second Amendment" because they do not fire projectiles.  Neither do ammunition magazines, adjustable stocks, sights, and braces, but they are standard parts that are used to assemble a firearm.

More fundamentally, the court ignored that suppressed arms are "arms" under the plain text.  The court treats suppressors as optional accessories that do not fire bullets.  The court did not consider that while many suppressors may be installed on and removed from threaded barrels or quick attachable/detachable locks, others are integral with the barrel.  Generally, an integral suppressor is permanently fixed to and is part of the barrel, and it may not be removed from the barrel.  For more details, see "The Truth About Integral Suppressors."

There are plenty of firearms with integral suppressors on the market.  Examples include the S&W SW22 Victory pistol and the Ruger 10/22 rifle.  Both being in .22 rimfire, they are excellent firearms to use to train beginners as well as to use for target shooting and hunting.  To reduce chaos and preserve hearing, a homeowner might choose an integrally-suppressed 9 mm pistol for self-defense.  Given that the suppression feature is part of the functioning firearm itself, just as are the firing pin and the ejector, that feature cannot be characterized as a mere "accessory."

As for firearms with attached suppressors, it no more makes sense to depict them as "accessories" than it would be to call a scope attached to a firearm a mere "accessory."  The former is a suppressed firearm and the latter is a scoped firearm.  These features are integrated into the functioning of the firearm and they are part of the firearm.  The fact that they can be removed and the firearm can still be fired no more removes them from Second Amendment protection than would the fact that a rifle stock can be removed and the rifle will still fire.

The Supreme Court has provided no categorical exception for "accessories."  Bruen held that the "general definition [of 'arms'] covers modern instruments that facilitate armed self-defense." That necessarily includes instruments equipped with various features, whether characterized as so-called "accessories" or not, that affect the functionality of a firearm. Indeed, by restricting suppressors, the NFA really is restricting suppressed firearms.

Heller's "common-use" test applies generally to firearms without regard to whether they are suppressed or unsuppressed.  Heller held that handguns in general are in common use by law-abiding persons for lawful purposes, rendering the District of Columbia's handgun ban unconstitutional.  That rule would not countenance a ban on subcategories of handguns, such as those with a semiautomatic function, a red-dot sight, a magazine well for a detachable magazine, or a suppressor.  With or without those features, they are handguns.

In support of its opinion, the panel cited Ninth and Tenth Circuit opinions that predated Bruen, an unpublished Fourth Circuit opinion, and two opinions from district courts in other Circuits.  None of those decisions seriously address the Supreme Court's statement in Bruen that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

Textually, it is undisputable that a suppressed firearm is an "Arm."  The Second Amendment is not restricted to a bare-bones contraption that will expel a projectile and no more.  Moreover, the Constitution implicitly protects those closely related acts necessary to their exercise.  That's why, for instance, shooting ranges have Second Amendment protection, as Ezell v. City of Chicago (7th Cir. 2011), held.

En banc review would allow the Court to consider the viewpoints of other judges that are inconsistent with the panel decision.  The panel in this case held that "accessories" are not protected, while Judge Willett, concurring in Mock v. Garland (5th Cir. 2023), reasoned that the use of "accessories that make an otherwise lawful weapon safer" likely is "protected Second Amendment 'conduct.'" He was repeating ATF's use of the term "accessories" to describe attachments on pistols, not suggesting that the term described a separate category other than the features of a firearm.

As the petition concludes, the case presents exceptionally important questions.  Suppressed firearms are among the most common, popular, and safe firearm designs in the United States.  But the panel decision went far beyond the issue of suppressers.  As the petition states:

The panel laid down a broadly stated rule that all firearm "accessories" are due no Second Amendment protection…. If that ruling were to stand, the Government could ban all manner of integral components of firearms, effectively rendering a nullity of the fundamental Second Amendment right under the guise of banning "accessories." All the while, the government could continue to prosecute individuals like Peterson on the assertion that such parts are firearms. The Second Amendment's protections are not so flimsy.

The response to the petition by the United States should flip positions from those advocated by the anti-Second Amendment previous Administration.  It should unabashedly confirm that suppressed firearms are protected arms under the Second Amendment.  It should acknowledge that Heller's common-use test is the proper test in arms prohibition cases.  And it should concede that restrictions on suppressors do implicate the text of the Second Amendment, even if it then argues that history justifies the NFA's taxation and registration requirements and that it should be up to Congress to change that.

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[Josh Blackman] "My Dearest, Angelica"

["Indeed my dear, Sir if my path was strewed with as many roses, as you have filled your letter with compliments, I should not now lament my absence from America."]

I treasure the Hamilton musical on so many levels. In addition to the wonderful score and fluid lyrics, the story is so well-researched. For example, in Take A Break, Alexander Hamilton and Angelica Schuyler Church express their affection for one another with special attention to grammar.

Alexander writes to Angelica:

My dearest, Angelica
"Tomorrow and tomorrow and tomorrow
Creeps in this petty pace from day to day"
I trust you'll understand the reference to
Another Scottish tragedy without my having to name the play
They think me Macbeth, and ambition is my folly
I'm a polymath, a pain in the ass, a massive pain
Madison is Banquo, Jefferson's Macduff
And Birnam Wood is Congress on its way to Dunsinane

Angelica then writes back to Alexander, and notices his punctuation:

My dearest Alexander
You must get through to Jefferson
Sit down with him and compromise
Don't stop 'til you agree
Your fav'rite older sister
Angelica, reminds you
There's someone in your corner all the way across the sea

In a letter I received from you two weeks ago
I noticed a comma in the middle of a phrase
It changed the meaning. Did you intend this?
One stroke and you've consumed my waking days
It says:

"My dearest Angelica"

With a comma after "dearest." You've written

"My dearest, Angelica."

There is a big difference between "My dearest Angelica" and "My dearest, Angelica."

For some time, I have tried to track down the primary source behind that lyrics. Professor Joanne Freeman at Yale kindly pointed me in the right direction. (Lin-Manuel Miranda received a lot of the Hamilton documents from Freeman's collection of Hamilton papers while he was writing the play.)

Here's what happened.

On October 2, 1787 (a few weeks after the Constitution was signed), Angelica wrote to Hamilton:

Indeed my dear, Sir if my path was strewed with as many roses, as you have filled your letter with compliments, I should not now lament my absence from America: but even Hope is weary of doing any thing for so assiduous a votary as myself.

The comma came after "dear."

On December 6, 1787, Hamilton wrote back to Angelica. At the time, things were busy. The day before, Hamilton published Federalist #17, and the following day, Delaware became the first state to ratify the Constitution.

You ladies despise the pedantry of punctuation. There was a most critical comma in your last letter. It is my interest that it should have been designed; but I presume it was accidental. Unriddle this if you can. The proof that you do it rightly may be given by the omission or repetition of the same mistake in your next.

I wish I could write like that.

On November 8, 1789 (about a month after the Judiciary Act of 1789 passed), Hamilton wrote to Angelica:

Adieu Dear Angelica! Remember us always as you ought to do—Remember us as we shall you

Your ever Affect friend & brother

And on February 4, 1790 letter, Angelica replied, calling Hamilton "dear friend" with friend emphasized.

Adieu my dear Brother, remember me affectionately to Eliza. I have this moment received her letter, and have received three from you.4 I accept this attention on your part as I ought, and if in return I cannot give you any agreeable information, I can at least give you the History of my Mind, which is at present very much occupied by a very great, and very amiable personage. Adieu my dear friend.

A. Ham. got friend-zoned!

This mystery was unriddled.

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