Eugene Volokh's Blog, page 15

[Ilya Somin] My New Paper on "How Speech-Based Immigration Restrictions Threaten Academic Freedom"

[It is forthcoming in Academic Freedom in the Era of Trump, (Lee Bollinger and Geoffrey Stone, eds., Oxford University Press).]

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I recently posted to SSRN a draft of my new paper on "How Speech-Based Immigration Restrictions Threaten Academic Freedom." It is forthcoming in Lee Bollinger and Geoffrey Stone, eds., Academic Freedom in the Era of Trump (Oxford University Press). I will likely make revisions before publication, and welcome comments, suggestions, and criticisms. Here is the abstract:

Since he returned to office in January 2025, President Donald Trump's administration has engaged in a systematic effort to deport non-citizen university students and academics who express views inimical to those of the US government on a number of issues. Litigation over these attempted deportations has focused on First Amendment free speech issues. But speech-based deportations of students and academic university employees also threaten academic freedom. This chapter explains how and why.

Part I briefly summarizes the Trump Administration's campaign of speech-based deportation of non-citizen students and academics. That campaign focuses primarily on students with anti-Israel and pro-Palestinian views regarding the ongoing war in Gaza. But its logic could just as easily justify targeting a wide range of other viewpoints.

Part II presents an overview of the idea of academic freedom. That principle is related to, but distinct from freedom of speech. In some respects, it is narrower than the latter. But academic freedom does nonetheless require faculty and researchers to be able to consider and express a wide range of viewpoints on the issues they work on, and to be free of sanctions for viewpoints they express outside of the context of their academic work. The same goes for students. Part III explains how speech-based deportations undermine the academic freedom of both non-citizens subject to deportation, and US-citizen scholars and students. The former effect is obvious. The latter is more indirect, but nonetheless large. Speech-based deportations of foreign students and academics chills the speech of their US-citizen colleagues and also deprives the latter of the opportunity for valuable interactions that could enhance their research, teaching, and learning. What is true of speech-based deportations is also true of speech-based exclusions of potential migrants even before they are allowed to set foot in the United States.

Finally, Part IV considers multiple possible rationales for speech-based deportations and exclusions. Ironically, some of these rationales—currently advanced by a right-wing administration—turn out to be similar to traditional left-wing rationales for restrictions on "hate speech." Whether deployed by the right or the left, the rationales are badly flawed. If correct, they cannot logically be limited to suppressing speech by non-citizens. Bigoted or otherwise reprehensible speech by US citizens creates comparable or greater dangers.

The post My New Paper on "How Speech-Based Immigration Restrictions Threaten Academic Freedom" appeared first on Reason.com.

[Ilya Somin] Deference Due? Trump, the National Guard, and the Misuse of Martin v. Mott

[A guest post by Joshua Braver and John Dehn.]

Members of the Texas National Guard assemble in Elwood, Illinois, at the Army Reserve Training Center in the southwest suburb of Chicago. ( Brian Cassella/TNS/Newscom)

 

President Donald Trump's attempts to federalize the National Guard and use it for domestic law enforcement are the subject of ongoing litigation in California, Oregon, and Illinois. What follows is a guest post on this important issue by legal scholars Joshua Braver and John Dehn, two leading experts on legal issues surrounding domestic use of the military. Prof. Dehn is also former US Army officer, who spent fifteen years serving as a military judge advocate. In the post Braver and Dehn explain why courts should generally not defer to the president in addressing the issue of whether his invocation of extraordinary emergency powers to use the National Guard domestically, is legal, and why such deference is not required by the Supreme Court's 1827 decision in Martin v. Mott.

I myself have written about the California litigation here and here, and about the more general issue of judicial review of emergency powers here. What follows below was written by Joshua Braver and John Dehn, not by me (Ilya Somin), though I agree with virtually all their points:

[* * *]

The Trump administration's efforts to federalize and deploy the National Guard in Los Angeles, Portland, and Chicago has become mired in litigation. But it's not simply the courts versus Trump—the courts themselves are divided over how much deference to afford the President's determination that the conditions necessary for federalizing and deploying the guard have been met. Must courts take the Trump administration at its word, or may they independently determine whether the facts on the ground justify a deployment? No precedent figures more prominently in this debate than the Supreme Court's 1827 decision in Martin v. Mott, which has been cited by scholars as supporting broad judicial deference to presidential determinations that statutory preconditions to both federalization and deployment have been met. This post argues that this conventional reading of Mott as well as its application to these deployments is mistaken: no such broad deference is due as Judge April Perry correctly concluded in her opinion supporting the Chicago TRO.

The cases center on two provisions of 10 U.S.C. § 12406, which authorize the President to federalize the National Guard if (1) "there is a rebellion or danger of a rebellion against the authority of the Government of the United States," or (2) the President "is unable with the regular forces to execute the laws of the United States." Citing both triggers, the President issued a memorandum on June 7 directing that "members and units of the National Guard of any State [be called] into Federal service in such numbers as he considers necessary" to protect Immigration and Customs Enforcement (ICE) operations, agents, and facilities.

Federal district courts adjudicating the Chicago and Los Angeles cases refused to grant deference to the President's determinations and issued temporary restraining orders (TROs) halting both the federalization and deployment of National Guard units. The Seventh Circuit issued a partial administrative stay of the Chicago TRO, permitting the federalization of Guard units to continue but not their deployments. In the Los Angeles litigation, the Ninth Circuit stayed the Los Angeles TRO, reasoning that the district court had failed to grant sufficient deference. Citing Martin v. Mott and "the settled understanding of the Supreme Court and among legal scholars," the Ninth Circuit quoted Mott: "the authority to decide whether the exigency has arisen, belongs exclusively to the President, and his decision is conclusive upon all other persons." The panel stated that, consistent with Mott and later precedent, courts have only a limited role—to ensure that the President made a "colorable assessment of the facts and law within a 'range of honest judgment'" that was "conceived in good faith."

Frustrated and perplexed by this deferential standard, the district court shifted course and struck down the L.A. deployment on narrower, fact-specific grounds. When the administration later attempted to federalize the National Guard in Portland, the district court there was also bound by the Ninth Circuit's more forgiving standard. Even under that standard, however, it issued a TRO—though some question whether the court actually applied the standard as written. It remains to be seen whether the Ninth Circuit will overturn the rulings concerning Portland or Los Angeles.

Given the central role Martin continues to play in this and other emergency powers litigation, this post endeavors to clarify its context and its limited value as precedent in the present litigation. Jacob E. Mott was a militiaman in New York who had been convicted by a court-martial for failing to muster in response to his Governor's orders. Those orders were issued in response to requisitions of troops by President Madison in August of 1814, the same month that the British had invaded Virginia, burned Washington, D.C., and attempted to invade Baltimore during the War of 1812. The British also unsuccessfully attacked Plattsburg, New York in September of 1814 via Lake Champlain.

Mott was court-martialed and convicted in May of 1818. To satisfy the fine imposed, Martin, a deputy federal marshal, seized Mott's mule. Mott then filed suit to reclaim it, arguing (among other things) that the court-martial lacked authority to prosecute him. Addressing these claims, Justice Story first acknowledged that the statute at issue, an earlier version of §12406, is within Congress's constitutional power to provide for calling forth the militia. He then described the power conferred by the statute as a "limited power, confined [in the case] to cases of actual invasion, or of imminent danger of invasion." Story then opined "that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons," the very passage quoted by the Ninth Circuit.

In context, however, Story was referring only to persons within the chain of command over the militia, not to the courts. He framed the issue as one of military discipline—of obedience to the Commander in Chief. The question that immediately precedes the Ninth Circuit's quoted passage asks: "Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question upon which every officer to whom the orders of the President are addressed may decide for himself, and equally open to be contested by every militiaman who shall refuse to obey the orders of the President?" The inquiry, in other words, concerns the allocation of authority between the President and the military chain of command—not the courts.

Several aspects of the Martin opinion confirm that Story's focus was the narrow issues of military discipline and obedience to orders.  They include:

Mott was engaged in a collateral attack on his court-martial proceeding for failing to report for duty rather than a challenge to any specific deployment or use of federalized militia members or units. In other words, Mott's challenge to his conviction involved only the authority to federalize of the militia—lawfulness of the order to perform his military duty—not to the specifics of the militia's use. Story's analysis is replete with references to the need for military discipline. For example, he observed that "[a] prompt and unhesitating obedience to orders is indispensable" and that allowing officers or militiamen to question presidential orders in this context would be "subversive of all discipline, and expose the best disposed officers to the chances of ruinous litigation." Story repeatedly emphasized the need to protect officers who carry out the President's orders from potential legal liability for doing so, such as by punishing those who disobeyed. To emphasize and substantiate this point, he cited Vanderhayden v. Young , a case in which the Court rejected a claim for damages against a military officer who presided over the court-martial of a mobilized New York militiaman who had deserted his post (coincidentally, in Plattsburg, New York).

Moreover, Story relied on a "sound rule of [statutory] construction." Martin is not a decision about the deference required by the Constitution or the political question doctrine, nor did the Court say that the "rule" it observed is mandatory in all cases. Nothing about the decision suggests that it is a rule of construction that should override other constitutional considerations.

Martin is also readily distinguishable from the present deployments not only because of its focus on military discipline, but also because its broader context is radically different.  The contextual differences include:

Martin did not raise any substantial question about the existence of the exigency. At the time, and certainly by 1818 when Mott was convicted, it would have been well known that the British had invaded the United States and had attempted other invasions during the relevant time period. Martin arose during a declared war. Martin did not address the power to federalize the militia for domestic law enforcement purposes. Even if it had, Martin was decided before the Posse Comitatus Act imposed a general prohibition on the domestic use of federal armed forces to "execute the laws," and the clear applicability of that prohibition to federalized National Guard units pursuant to 10 U.S.C. § 12405. When faced with a dubious declaration of martial law for a clearly improper purposes in Sterling v. Constantine, the Court adopted a different standard of review for executive determinations of fact and law. (The Ninth Circuit standard of review reflects an attempt to reconcile Sterling and Martin.)

The standard reading of Martin v. Mott is mistaken, Although the decision might require deference regarding presidential decisions to mobilize the Guard, it does not require deference to the administration's determination that protesters' resistance to ICE agents amounts to a rebellion or renders the President unable to execute the law. As Steve Vladeck has observed, such matters involve determinations of fact and law that courts routinely make, and that must be made to prevent the abuse of statutory powers for improper ends.

Joshua Braver is an assistant professor at the University of Wisconsin Madison school of law.  John Dehn is the associate professor and faculty director, National Security and Civil Rights Program at Loyola Law School.

The post Deference Due? Trump, the National Guard, and the Misuse of Martin v. Mott appeared first on Reason.com.

[Eugene Volokh] Colorado Child Porn Law Didn't Ban Deepfake Porn Until Recent Amendments, Court Holds

From In the Interest of Juvenile: S.G.H., decided yesterday by the Colorado Supreme Court, written by Justice Carlos A. Samour, Jr.:

S.G.H., a young teenager, … is accused of using a generative-AI tool to blend authentic images of three classmates' actual faces and clothed bodies with computer-generated images portraying naked intimate body parts to make it appear as though the classmates are nude….

Every state has laws prohibiting the nonconsensual distribution of authentic intimate images, and the federal government recently enacted a similar measure. But "few laws in the United States" specifically protect minors from exploitation through the use of generative AI tools, and many current statutes do not cover computer-generated explicit images that use real people's faces. [The court doesn't mention the federal TAKE IT DOWN Act, enacted in May 2025, which broadly bans nonconsensual deepfake porn. -EV] …

Colorado is among those states that have been slow off the mark to address the use of explicit images created with generative AI. To our legislature's credit, it recently stepped up and bridged the generative-AI gap that existed in the relevant statutes. But that was after S.G.H. had been charged in this case with six counts of sexual exploitation of a child (two counts for each victim), so any recent legislative amendments cannot serve as a lifeline for the People here.

The People nevertheless contend that they need no rescuing by the recent amendments because the law in effect on the dates of the charged offenses prohibited S.G.H.'s alleged conduct. According to the People, the amendments merely clarified that such conduct is prohibited. We disagree….

All six charges of sexual exploitation of a child (three charged pursuant to subsection (3)(b) and three charged pursuant to subsection (3)(b.5)) require proof of "sexually exploitative material." … As of December 2023, when the offenses charged allegedly occurred, our legislature defined "sexually exploitative material" as

any photograph, motion picture, video, recording or broadcast of moving visual images, livestream, print, negative, slide, or other mechanically, electronically, chemically, or digitally reproduced visual material that depicts a child engaged in, participating in, observing, or being used for explicit sexual conduct….

The images recovered from S.G.H.'s email account are not photographs, motion pictures, videos, recordings or broadcasts of moving visual images, livestreams, prints, negatives, or slides. That leaves "mechanically, electronically, chemically, or digitally reproduced visual material." As the People impliedly agree, the images collected from S.G.H.'s email account were not "mechanically, electronically, [or] chemically" reproduced. No, the images are digital. But while they are digital, there is no evidence in the record that they were "reproduced." This is the death knell in the People's case: Even according to the People's own brief, S.G.H. prepared, produced, made, possessed, and/or controlled the images found in his email account; there is no assertion in the answer brief that S.G.H. reproduced the images at issue—digitally or otherwise.

{While the composite images allegedly created by S.G.H. may appear photographic in form, we perceive a significant distinction between those images, which synthesized computer-generated and original properties, and a photograph. A "photograph" is a "picture or likeness" obtained by "photography," which refers to the process of producing images through the precise action of exposing "radiant energy" on a "sensitive surface" such as a film or an optical sensor. By contrast, the images found in S.G.H.'s email account did not originate from photographic processes.} …

Reproduction in this context implies fidelity to the source. Indeed, photographs, motion pictures, videos, and the other items listed in subsection (2)(j) all faithfully capture a visual image. They do not distort, manipulate, modify, or fabricate a visual image. In this case, we deal with distortion, manipulation, modification, and fabrication, not reproduction: The images stored in S.G.H.'s email account are fabricated images that were digitally produced by distorting, manipulating, or modifying photographs.

Because the People did not present any evidence that the activity S.G.H. engaged in involved the digital reproduction of images or otherwise met the definition of sexually exploitative material, they failed to establish probable cause to believe that he violated either subsection (3)(b) or subsection (3)(b.5). Therefore, we conclude that the district court erred in finding probable cause as to all six charges….

[W]e do not condone S.G.H.'s alleged conduct. Computer-generated explicit images often have a devastating impact on victims. We understand, of course, that our decision today means that the People will not have an opportunity to seek justice for the three named victims. Unfortunately, it took our legislature time to catch up to the recent advances in generative-AI technology. But regardless of the reason for this delay, S.G.H. cannot be penalized based on statutory provisions that came into effect after he allegedly engaged in the appalling conduct in question. As undesirable as it may be to deprive the named victims of their day in court in this proceeding, it is the result the law requires and thus the one we reach. In so doing, we are ever mindful that "[r]esult-oriented justice is … directly contrary to the concept of the rule of law."

Michael S. Juba (The Juba Law Office, PLLC) represents defendant.

The post Colorado Child Porn Law Didn't Ban Deepfake Porn Until Recent Amendments, Court Holds appeared first on Reason.com.

[David Post] The Lowly Stay Takes Center Stage

[SCOTUS' "stay jurisprudence" is a bit of a mess ]

SCOTUS' "stay jurisprudence" – the standards the Court uses to decide, inter alia, whether or not, during the weeks and months and sometimes years that are required before a final judgment is issued in any case, Executive Branch officials must obey the injunctions that have been entered against them – is of growing importance these days.

It's becoming increasingly clear – I'd call it obvious, even - that the lowly stay, heretofore a rather pedestrian and deeply unspectacular procedural device, is a central pillar of the President's strategy for dismantling statutory and constitutional constraints on executive power.

Here's how it works. The pattern is mind-numbingly familiar by now, having been repeated in dozens and dozens – probably  hundreds, by now – of cases:

1 The President issues an Executive Order, authorizing and directing his subordinates in the Executive Branch to do something (or to stop doing something that they had previously been doing).

Nobody connected to the Oval Office appears to spend much time worrying about whether the action complies with constitutional and statutory requirements, or whether the President is authorized to do what he wants to do; he orders it done, and his subordinates start the process of getting it done. Rescind Harvard's federal grants. Close down US AID. Revoke the security clearances of everyone working at WilmerHale. Deport Venezuelan migrants. Close down the National Science Foundation. Impose a travel ban on 19 countries. Raise tariffs on Vietnamese textile imports. Lower tariffs on Vietnamese textile imports. Etc.

2 Lawsuits challenging the action assert that it violates some constitutional or statutory provision, or is otherwise beyond the power of the President to accomplish unilaterally through an Executive Order.

3 The challengers seek immediate, temporary relief, in the form [first] of a Temporary Restraining Order and [immediately thereafter] a Preliminary Injunction, ordering the Administration to cease whatever it was that it was doing (or had plans to do) while the case is being heard.

To obtain a P.I., the challengers must, of course, persuade the trial court, inter alia, that (a) they are "reasonably likely" to prevail on the merits (once the case reaches a final judgment), and that (b) they will suffer "irreparable harm" if the interim relief is not granted.

4 The Administration raises many objections – most of them procedural -  to the motion for a P.I. 

As it has, of course, every  right to do:  Standing, mootness, ripeness, justiciability, sovereign immunity, jurisdiction, the "political question" doctrine, etc.

5 But in the end, the court grants plaintiffs' requested relief.

Not always!  But the Administration has lost and continues to lose an enormous and an alarming number of these cases at this preliminary stage - "enormous" in comparison to any other presidency in US history,  and "alarming" because these are, after all, cases in which a federal judge (and often more than one federal judge) has said: "It is likely – at least on my first look at the case - that the Administration is breaking the law."

The Administration immediately seeks a stay of the judgment and the order for an injunction. And, increasingly often:

7  The Supreme Court grants the Administration's emergency application for a stay of the lower court's order.

Again, not always.  But it has happened a lot, including in some of the highest-profile challenges to Administration action.

*****

Obtaining a stay means, as both a practical and a legal matter, that the Administration may disregard the injunction entirely – i.e., it can do pretty much whatever it wants –  until a final judgment has been reached and all avenues of appeal have been exhausted.  These cases take a great deal of time to litigate to final judgment – months at a minimum, often years – even in the best of circumstances; when the entry of a stay gives one of the parties such an obvious incentive to use every device imaginable to delay the proceeding as much as humanly possible - because it gets to do pretty much whatever it wants, lawful or not,  in the interim – it can stretch out for years.

Hence the importance of the Court's rules regarding stays.  If we are ever unfortunate enough to have a Chief Executive who would like total, one-man control over everything the federal government does or doesn't do, one who acts on dozens of different fronts simultaneously as though there were no legal or constitutional constraints on his power, a Court that was too generous with its stay-granting power would play right into that authoritarian-wannabe's hands.

Of course, the President will, ultimately, prevail in some, perhaps even many, of those cases. He will also lose in many; I am quite confident that the highest Court will find that he cannot unilaterally revoke birthright citizenship, that he cannot unilaterally set tariff rates, that he cannot unilaterally order federal troops into our cities to quell civic unrest or "fight crime," that he cannot order ICE agents to round up anyone who looks Hispanic and poor and take them downtown for questioning, he cannot unilaterally turn over the information in the Social Security Administration databases to his friends and political supporters, that he cannot unilaterally revoke all of a university's federal contracts because he doesn't approve of their DEI policies, etc.

But because the Court has granted the Administration's request for a stay of the lower court injunctions regarding each of these matters, he can do all of those things. And more. At least, for a good long while.

So perhaps I was wrong when I wrote that the President and his legal advisers give no thought whatsoever to the legality or illegality of the President's actions. Maybe they are cleverer than I give them credit for; maybe they understand more than I do about how the process works, and the Oval Office conversation has actually been going like this:

President to Legal Advisor: "I want to deny all federal disaster assistance to states that voted for Kamala Harris in 2024. Write me up an Executive Order to that effect."

Legal Advisor: "Um, Mr. President, I don't think you can do that."

P: "No? What'll happen if I do it?"

LA:  "The courts will surely tell you to stop."

P:  "How long will that take?"

LA: "Probably just a few days to slap you with an injunction  – you really don't have a very good case, I'm afraid. However, …."

P:  "'However' what?"

LA: "Well, If we can get a stay of the injunction – and the Supreme Court's been pretty generous in handing those out - we can probably stretch it so that you can do it for a year or two."

P:  "Now you're talkin'!  Do it."

So we really do need to understand how the Court decides whether or not to grant a stay in cases in which the Administration is acting – or at least appears, at first glance, to a federal district judge and possibly to an Appeals Court panel as well, to be acting – unlawfully, if we want to understand whether and how our constitutional system can withstand this kind of assault by some dictator-wannabe.

*****

It's a little hard to say how the Court is deciding these stay cases, given the custom that has arisen whereby the Court rarely reveals its reasoning when deciding cases on its "emergency docket."

Here, though, is the standard formulation of the "familiar rules that govern stay applications," taken from an opinion by Justice Gorsuch, concurring in a case granting the State of Idaho a stay last term (Labrador v. Poe, 2024):

"This Court, like every other federal court, is guided by the same 'sound principles.' Nken v. Holder, 556 U. S. 418, 434 (2009). We ask (1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits, (2) whether it will suffer irreparable injury without a stay, (3) whether the stay will substantially injure other parties interested in the proceedings, and (4) where the public interest lies. Nken, 556 U. S., at 434.

Notice that the Court does not ask whether the stay applicant is "likely to succeed on the merits"; it asks whether the stay applicant has made a "strong showing" that it is likely to succeed on the merits.

That strikes me as a pretty significant difference. And one that actually matters, too. Here's why:

In any contest or experiment with two possible outcomes – e.g., plaintiff wins/defendant wins, petitioner wins/respondent wins, Brewers win/ Dodgers win, the stock market goes up/the stock market goes down, it will rain tomorrow/ it will not rain tomorrow, etc. – an outcome is "likely to occur" only if it has a probability of occurrence that is greater than 50%.

That means that the other outcome has a probability of occurrence that is less than 50%.

And that means that only one of the two possible outcomes can be "likely" to occur. If plaintiff is likely to prevail, the defendant is not likely to prevail (and vice versa). They're mutually exclusive categories; the plaintiff and the defendant cannot both be likely to prevail, just as it cannot be likely to rain tomorrow and likely not to rain tomorrow, or that the Brewers and the Dodgers are both likely to win tonight's game.

"Strong showings," though, aren't like that; they're not mutually exclusive outcomes in this way. Anyone who has ever attended a high school debate tournament  (or a Supreme Court oral argument) knows that both sides in a 2-person contest can make a "strong showing that they're likely to prevail." Happens all the time.

So in this sense, the "strong showing" requirement is a lower bar, easier to satisfy, than the "likely to prevail" requirement. There's nothing illogical about the position both that the Administration has made a strong showing that it should prevail, and that the challengers are likely to prevail (because they have made a stronger showing that they should prevail).

Persuading a court that you have made a "strong showing" that you are likely to prevail on the merits does not require you to persuade the court that you have a greater than 50% chance of winning.  As a logical matter, persuading a court that you're "likely to win" is equivalent to persuading a court that the other side is "likely to lose."  But persuading a court that you've made a "strong showing" that you're likely to prevail does not require you to show that the other side is likely to lose; it is perfectly logical to hold the position that the Administration, though it has made a "strong showing" that it is likely to prevail, is actually likely to lose – just as the lower courts in all of these cases have found.

Remember:  the cases we're talking about are cases in which a lower court has entered an injunction against the Administration.  The Administration is applying for a stay precisely because it lost in the court(s) below, and it lost because the challengers persuaded the court below that, among other things, they were "likely to prevail" on the merits, and that the Administration was therefore not "likely to prevail" on the merits.

It follows, then, that when the Court grants a stay to the Administration, it is not overturning the lower court's finding that the challengers are "likely to prevail" on the merits, nor is it saying that the Administration is likely to prevail on the merits.

It is surprising how many otherwise perspicacious observers of the legal scene and developments in legal doctrine appear to misunderstand this point.  Justice Gorsuch, for one.  In the case I quoted from above, immediately after stating that the Court, when evaluating a stay application, first asks "(1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits," he writes:

"Applying that traditional stay test here yields a ready answer. Start with the first question: whether Idaho [the applicant for the stay] has shown it is likely to succeed on the merits . . ."

Weird, no?  He just told us the first question is "whether the applicant has made a strong showing that it is likely to succeed on the merits," and now he says the first question is "whether the applicant has shown it is likely to succeed on the merits." Just sloppy drafting? Or is he signaling that the Court's position is that the lower court was incorrect when it granted the challengers a preliminary injunction?

And things get weirder. Though the Court as a whole is generally silent when dealing with these "emergency" stay requests, Justice Kavanaugh, to his credit, has written separately to explain his reasoning for joining the majority. In the recent case of Noem v. Vasquez Perdomo, where the Court stayed a lower court injunction prohibiting ICE agents from detaining individuals based on nothing more than their race, ethnicity, clothing, and job-hunting activities, he wrote:

"To obtain a stay from this Court, the moving party must demonstrate a fair prospect that, if the District Court's decision were affirmed on appeal, this Court would grant certiorari and reverse. The moving party also must show a likelihood that it would suffer irreparable harm if a stay were not granted. Those two factors are the "most critical." Nken v. Holder, 556 U. S. 418, 434 (2009)."

A "fair prospect" that the Court would reverse the 9th Circuit's decision here – what, pray tell, does that mean?

It sounds like something out of Jane Austen or Thomas Hardy, no?

From Blenheim peak, 'tis a fair prospect/Over the hills of Wessex to the sea …

That's presumably not what Justice Kavanaugh has in mind.  I invite commenters to take a crack at what they think he does have in mind. To my mind, a "fair prospect" that the Administration will ultimately prevail is an even lower standard than either (a) a "strong showing" that it will prevail, or (b) a finding that it is "likely" to prevail. But maybe that's just me.

Not surprisingly, here too commentators have, I think, been confused, and have missed the main point. Amy Howe on ScotusBlog, for instance, writes this:

"In a concurrence, Kavanaugh explained that the Trump administration had met both of the "most critical" factors that the court considers in deciding whether to grant temporary relief. First, he explained, "given the significance of the issue to the Government's immigration enforcement efforts," the Supreme Court would be likely to grant review if the 9th Circuit were to uphold [the district court's] injunction.

Second, Kavanaugh continued, the Trump administration has shown not only that the Supreme Court would be likely to grant review, but also that it would be likely to reverse the lower court's ruling in the challengers' favor.

I don't think Justice Kavanaugh said that. By his own terms, he has determined that the Administration has shown it has a "fair prospect" the the Court would reverse, not that it is likely to reverse. It makes a big difference, I think.

All of which leaves the question:  Why should the applicant for a stay have a significantly lighter burden than the applicant for a preliminary injunction?

 

See the excellent compendium of the 498 (as of 9/18/2025) cases filed against Trump Administration policies at https://clearinghouse.net/collections/38759, or the one at JustSecurity.com.

A week after the inauguration in 2025, I wrote:

"He [Trump] has figured it out: He can do whatever he wants, and nobody can stop him. Unilaterally impose 25% tariffs on Colombian imports? Do it! Withhold federal disaster relief to cities that don't assist ICE agents carrying out their raids? Absolutely! Halt all payments due for dispersal under NIH research grants until grantees dismantle their DEI programs? Sure!

Does anyone actually believe that, during the discussion in the Oval Office concerning those moves, Trump asked: 'Are we sure we have statutory and constitutional authority to do this?'?"

"One Man Rule", Jan 27, 2025.

  In his guest post here on the VC several months ago, Prof. Abner Greene helpfully compiled a list of 28 cases (pending as of May 31, 2025 – 4 months or so after Inauguration Day) in which Administration officials had been enjoined from carried out a presidential policy directive. The pace has picked up considerably since then.  See the compendia listed in note 1. [It does make me wonder: Are U.S. Attorneys doing anything besides defending the Administration in these lawsuits?] Visit either of those websites and click on any of the categories and notice how many "Preliminary Injunction Granted" labels you see. It is a remarkable record of lawlessness on the part of our government. That is has become so commonplace – another day, another outrage, and another P.I. - should not stop us from remarking, at every opportunity, on just how awful it is in its lawlessness.

I don't know of any actual data on the number of times that, say, Presidents GW Bush, or Clinton, or Eisenhower, were enjoined, even preliminarily, from doing what they wanted to do.  I am nonetheless quite certain that the number was lower – probably by an order of magnitude or two -- than is the case with the Trump Administration (which is now in triple digits on this metric. See note 6 below.), despite having had a mere 8 months to achieve this grim milestone.

They're not, of course, final judgments that the Administration is acting unlawfully. Final judgments are,  in most cases, months away – in part because there are some pretty complicated procedural and substantive legal issues in many of these cases, in part because the Administration has many tools, and the incentive, to delay the proceedings for as long as possible. These P.I.s only represent a judge's initial take on the matter. But still – 100+ and counting?

Here is my hastily-compiled and undoubtedly incomplete list of cases where SCOTUS has stayed preliminary injunctions against Trump Administration officials:   Boyle v. Trump (D. MD) (firing CPSC Commissioners); Harper v. Bessent (DDC) (firing of MSPB members); Am. Fed. Gov't Employees v. Trump (ND CA) (mass firings of probationary employees); W.M.M. v Trump (ND TX) (Alien Enemies Act deportation power); AFSCME v. Social Security Administration (D MD) (challenge to SSA data disclosures to DOGE); Wilcox v Trump (DDC) (firing of NLRB member); AFGE v OPM (ND CA) ; New Jersey v. Trump (D MA) (birthright citizenship executive order); Massachusetts v. Kennedy (D MA) (research funding freeze); California v. US Dept of Education (D MA) (teacher training funding freeze); Citizens for Responsibility and Ethics in Gov't v DOGE (DDC); D.V.D. v. DHS (D MA) (deportation removals); Doe v. Noem (D MA) (immigration status changes); National TPS Alliance v. Noem (ND CA) (status change for Venezuelan immigrants); Massachusetts v. Kennedy (D MA) (research funding freeze); Am. Public Health Assn. v. Kennedy (D MA) (termination of NIH grants); Oregon v. Trump and V.O.S. Selections v. Trump (Ct of Int'l Trade) (tariffs); Shilling v. Trump (D WA) (military trans ban).

The wheels of justice, as the saying goes, turn slowly.  If you're unfamiliar with the pace and process of complex constitutional take a look at some of the complete docket listings in some of the cases compiled at at https://clearinghouse.net/collections/38759, or JustSecurity.com.   Scores, even hundreds, of docket entries for pretty much every case – motions challenging plaintiffs' standing or the case's ripeness for resolution, motions to dismiss, motions for summary judgments, motions requesting permission to file amicus briefs, motions to admit lawyers pro haec vice, motions requesting extensions of filing deadlines, motions requesting class certification, motions contesting any of the other motions, status conferences, transcripts of status conferences, motions to seal certain documents, motions to otherwise limit public disclosure of the court's deliberations, declarations averring or contesting the factual allegations in plaintiff's complaint, etc.  Not to mention that the legal issues raised may be themselves thorny and complex, requiring time to research and review.  It's more surprising that they ever reach final judgment than that it takes them a long while to do so.

See Justice Sotomayor's dissenting opinion in a recent case granting the Administration's request for a stay, Noem v. Vasquez Perdomo:

"The Court's order is troubling for another reason: It is entirely unexplained. In the last eight months, this Court's appetite to circumvent the ordinary appellate process and weigh in on important issues has grown exponentially. See, e.g., Trump v. J. G. G., 604 U. S. ___ (2025); Trump v. Wilcox, 605 U. S. ___ (2025); Noem v. Doe, 605 U. S. ___ (2025); United States v. Shilling, 605 U. S. ___ (2025).

Its interest in explaining itself, unfortunately, has not. See Trump v. Boyle, 606 U. S. ___, (2025) (KAGAN, J., dissenting from grant of application for stay) (slip op., at 2–3)

There may be good justification for issuing an unreasoned order in some circumstances. See Labrador v. Poe, 601 U. S. ___ (2024) (Kavanaugh, J., concurring in grant of application for stay) (explaining how opinions on emergency applications "can sometimes come at a cost"). But some situations simply cry out for an explanation, such as when the Government's conduct flagrantly violates the law, or when lower courts and litigants need guidance about the issues on which they should focus.

  Think about a single toss of a fair coin.  Two outcomes: Heads or Tails.  "Heads" is not a "likely" outcome of that toss. Neither is "tails." Though each has exactly a 50% probability of occurrence, 50% is not sufficient to make something "likely."  The "likely" outcome of a two-outcome contest must have a greater than 50% chance of occurring.

Because the probabilities of the two outcomes summed together cannot be more than 100% (by definition).

 Justice Sotomayor, too, appears to drop the "strong showing" language from time to time.   See, e.g., her dissent from the Court's decision to grant a stay in Noem v. Vasquez Perdomo, a case involving ICE's detention policies.

"A stay is an 'intrusion into the ordinary processes of administration and judicial review.'" Nken v. Holder, 556 U. S. 418, 427 (2009). This Court will not grant one absent "extraordinary circum_stances." Ruckelshaus v. Monsanto Co., 463 U. S. 1315, 1316 (1983). The applicant bears "an especially heavy burden" where, as here, the matter remains pending before the Court of Appeals, and two lower courts have already denied such relief. Packwood v. Senate Select Comm. on Ethics, 510 U. S. 1319, 1320 (1994).

Ordinarily, the Court considers the applicant's likelihood of success on the merits, the likelihood of irreparable harm absent emergency intervention, and the balance of the equities. See Nken, 556 U. S., at 434; see also Hollingsworth v. Perry, 558 U. S. 183, 190 (2010). . . .  An applicant must not only show a likelihood of success on the merits, but must also demonstrate that "the implementation of the judgment pending appeal will lead to irreparable harm." Graves v. Barnes, 405 U. S. 1201, 1203 (1972).

As in Justice Gorsuch's case, one cannot help but wonder if this is a strategic omission. Justice Sotomayor has dissented from most of the Court's recent stay decisions, and would clearly like the Court to be applying a higher standard to the applicant's request than merely that it had made a "strong showing."

Noem v. Vasquez Perdomo is one of the more inexplicable of the Court's recent "emergency docket" rulings staying a district court's preliminary injunction against an Administration policy. [See ScotusBlog entry here with links to the relevant primary documents, including the district court opinion here].

Long-standing precedent allows immigration enforcement agents to "briefly detain an individual for questioning if [the agents] have a reasonable suspicion, based on specific articulable facts, that the [detainee] is an alien illegally in the United States." See U.S. v. Brignoni-Ponce, 422 U. S. 873, 884 (1975). ;

This past summer, roving partrols of ICE agents were deployed to car washes, Home Depot parking lots, tow yards, bus stops, and other locations in and around L.A., detaining various individuals and demanding proof of US citizenship; individuals who could not provide such proof on the spot were transported to an ICE questioning center in downtown L.A. for further questioning.

The district court (CD CA) found that the agents' decisions about whether or not to detain someone were based "solely on four factors:  (1) the individual's apparent race or ethnicity; (2) whether they spoke Spanish or English with an accent; (3) the type of location at which they were found (such as a car wash or bus stop); and (4) the type of job they appeared to work. Concluding that that that the presence of these four factors cannot satisfy the requirement of "reasonable suspicion based on specific articulable facts,"  the court concluded that the challengers were "reasonably likely to prevail" in their challenge  and that they would suffer "irreparable harm" if an injunction were not granted pending a full trial on the merits, and accordingly preliminarily enjoined ICE from using these factors, "alone or in combination," in deciding whom to detain.

The Court's decision to stay the injunction is appalling, insofar as it allows continuation of the practice whereby armed agents of the United States government confront and detain individuals solely because they speak English with an accent, have brown skin, and are hanging around a Home Depot parking lot looking for construction work. I'm no expert on the 4th Amendment, but I would naively assume – and hope - that the 4th Amendment's prohibition on "unreasonable searches and seizures" prohibits this practice. The district court certainly took this position, in holding that the challengers are "likely to succeed" on their claim, as did the 9th Circuit in upholding the injunction and denying the Administration's request for a stay. Indeed, I would think a challenge to such a practice would be something of a constitutional slam dunk.

But in the meantime, the practice can continue.

See also Steve Vladek, "Brett Kavanaugh's Defense of the Shadow Docket is Alarming":

Stays are supposed to be an 'extraordinary remedy' meant for extraordinary cases where the three different things are true: First, the party seeking the stay must be likely to win their appeal.  Second, it must be the case that not freezing the lower court ruling while it appealed would cause the appealing party 'irreparable harm.'  And third the public interest must be served by such relief.

 

The post The Lowly Stay Takes Center Stage appeared first on Reason.com.

[Eugene Volokh] "Viewpoint Diversity" Requirements as a New Fairness Doctrine: Why Countervailing Pressures to Protect Controversial Views Are Likely to Be Inadequate

I have an article titled "Viewpoint Diversity" Requirements as a New Fairness Doctrine forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. You can see my argument about why viewpoint diversity requirements are likely to chill controversial faculty speech here; here is a brief follow-up section to that:

[D.] Why Countervailing Pressures to Protect Controversial Views Are Likely to Be Inadequate

To be sure, despite the chilling effect described above, not all controversial faculty speech (or hiring of controversial faculty) will be chilled. University faculty may have their own reasons to speak out in controversial ways: perhaps personal ideological commitment, a felt obligation to express what they see as the truth even when it may draw ideological fire, a desire to win approval from people (inside and outside the academy) who share their ideological views, or a desire to make a name for themselves as interesting and important scholars. To the extent that universities maintain a strong system of tenure protection, even risk-averse administrators might not be able to constrain at least some such faculty members.

Likewise, if universities are committed to academic freedom, they might choose not to try to constrain faculty members even when the faculty's actions are causing political and financial problems for the university. And as noted above, the very mandate of "viewpoint diversity" could pressure universities to hire more faculty members who seek to express politically controversial viewpoints, rather than just faculty members who are seen by the public as apolitical.

This, of course, is also what the Court argued in Red Lion:

The communications industry … [has] taken pains to present controversial issues in the past, and even now they do not assert that they intend to abandon their efforts in this regard…. And if experience with the administration of [the Fairness Doctrine] indicates that [it has] the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications….

[Moreover,] if present licensees should suddenly prove timorous, the Commission is not powerless to insist that they give adequate and fair attention to public issues.

Indeed, the Doctrine itself imposed "an affirmative obligation" on broadcasters "to cover vitally important controversial issues of interest in their communities."

Yet the FCC ultimately concluded that licensees' general obligation to cover public issues didn't do much to counteract the chilling effect created by the Fairness Doctrine. And it added that "the fact that some broadcasters may not be inhibited in the presentation of controversial issues of public importance does not prove that broadcasters in general are similarly uninhibited."

Likewise, the viewpoint diversity mandates are likely to create a chilling effect on controversial faculty speech. The mandates are unlikely to eliminate such speech altogether, especially to the extent that universities continue to be committed to faculty academic freedom (or to the extent that the First Amendment requires public universities to be thus committed). But the mandates are likely to reduce controversial faculty speech, especially since faculty members may suspect that academic freedom norms are unlikely to completely prevent retaliation in promotion, lateral hiring, and the like. And the reduction will be necessarily viewpoint-based, because the mandates "inherently provide[] incentives that are more favorable to the expression of orthodox and well-established opinion with respect to controversial issues than to less established" (or at least less publicly popular) "viewpoints."

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[Josh Blackman] From October 7, 2023 to October 13, 2025

[Blessed are You, L-rd our G‑d, King of the Universe, who has granted us life, sustained us and enabled us to reach this occasion.]

On the evening of October 6, 2023, the Jewish holiday of Simchat Torah began. This is a joyous holiday, when it is a mitzvah (commandment) to be happy. Jews sing and dance with the Torah, and toast many L'Chaims. While many Jewish holidays can be a bit somber, Simchat Torah is a fun holiday. Hamas no doubt chose this day deliberately. In the early hours of the morning of October 7, people would be scattered, tired, and probably a bit hungover.

In 2024, Simchat Torah began on October 24. (The Jewish calendar follows the Lunar cycle, so dates shift around.) Around the world, Jews tried to be merry, but there was a sadness that those in captivity could not celebrate. We said we would "Dance for them," praying the hostages would soon be released.

On the evening of October 13, 2025, the Jewish holiday of Simchat Torah began again. Now, all of the living hostages have been returned to their families and friends. For the first time in nearly two years, we could celebrate without any restraints or reservations. Tonight's holiday was a joyous one for me, and I'm sure for Jews around the world.

In the summer of 2024, during a mission trip, I watched the surveillance footage of the atrocities of October 7. Many of those gruesome images will forever be burned in my mind. I wasn't sure there could ever be a video that could help reduce the sting.

This video of the hostages being reunited with his family will help. Try to watch this montage without tearing up.

Several of the grieving parents, upon seeing their sons, recited a very well-known Jewish prayer, the Shehecheyanu:

Blessed are You, L-rd our G‑d, King of the Universe, who has granted us life, sustained us and enabled us to reach this occasion.

These parents must have imagined this moment, over and over again, for two years. They no doubt planned what they would say and how they would act. And in the moment, the first words that left their mouths was the prayer to the Almighty, expressing thanks for letting them reach this momentous occasion. These moments should reinforce the faith in all of us.

A few related points.

First, President Trump deserves the eternal thanks of the Jewish people. He accomplished something that I didn't think was possible. In earlier days, I was quite critical of Trump, but over time, I've come to appreciate the singular and transformative talents he possesses. The Israel deal is perhaps his greatest move yet. No other President could have pulled it off.

Second, we can finally lay to rest this slander that Trump is an anti-semitic. Watch his speech before the Knesset (the Israeli Parliament). He gave thanks to the "Almighty G-d of Abraham, Isaac, and Jacob." He referred to the Abraham Accords as the Avraham Accords, the way you would pronounce it in Hebrew. He celebrates that his daughter converted to Judaism, and married a Jewish person.  Jews throughout Israeli, even those on the political left, celebrated President Trump. I've written before how being a Democrat is part of the American Jewish culture. Fine. I don't expect to change that norm, though I think that political homogeneity is fading.

Third, I don't pretend the road ahead is simple or easy. We can juxtapose the release of the twenty innocent hostage with the release of 2,000 Palestinian prisoners. Families in Gaza and the West Bank celebrated as mass murderers and terrorists were released onto the streets.

Until Palestinian children are no longer taught that Jews are evil and Israel must be destroyed, I am dubious that peace can be sustained. Perhaps a model can be found in another post-war setting. I have a friend whose mother grew up in Japan following World War II. She relayed how a primary goal of America's reconstruction of Japan was to change the culture, and eliminate the belief that Emperor Hirohito was a deity. It was this fanaticism that inspired countless Japanese pilots to fly their Kamikazes into American ships. (My grandfather, Irving Blackman, thankfully survived the attack on the USS Luce.) One of the defining moments of the Reconstruction was when General Douglas MacArthur took a photograph next to Emperor Hirohito. This picture proved that the emperor was not a deity. Indeed, Hirohito was dwarfed by the commanding presence of the general. Japanese people who saw this photo realized at once their fanaticism was misplaced.

I'm not sure what the MacArthur equivalent would be for the Palestinian people, but we need to think about it carefully.

Still, I am thankful. Today is still a momentous start for a process.

The post From October 7, 2023 to October 13, 2025 appeared first on Reason.com.

[Orin S. Kerr] Thoughts on Case v. Montana and the Standards for the Emergency Aid Exception

[The Fourth Amendment returns.]

It's been a long, long time since the Supreme Court heard argument in a real Fourth Amendment case.  This Wednesday, the Court will finally break the spell with argument in Case v. Montana.  I thought I would offer some thoughts on it. (Full disclosure: I have consulted with the lawyers for the petitioner in the case, although the thoughts here are my own.)

Here's the context. In Brigham City v. Stuart (2006), officers entered a home to break up a fight in which one person was being badly beaten in view of the officer from outside. The Court ruled that an "objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury" allows a warrantless entry into the home. In such circumstances, the thinking runs, there is a strong and immediate government interest in saving the life and preventing further injury of the person being attacked.

On the other hand, in Caniglia v. Strom (2021), the Supreme Court held that the community caretaking exception to the warrant requirement does not allow entry into a person's home.  In Caniglia, officers had entered the home of a suicidal man and taken his guns.  Although the Court had recognized a community caretaking exception in an earlier case that allowed the entry into a car to prevent a gun from falling into the wrong hands,  Caniglia ruled that this exception did not apply to allow entry into a home.  Justice Thomas's short majority opinion in Caniglia was followed by concurrences from Justices Alito and Kavanaugh that speculated about circumstances in which entry into a home to aid might be allowed under other exceptions to the warrant requirement, such the emergency aid exception of Brigham City.

The Case case—confusing name, I know—picks up where Caniglia and Brigham City left off.  The facts here are somewhere in between those two precedents. William Case, who lived in a small town in Montana, called his ex-girlfriend and threatened suicide. The police in the small town all knew Case and his mental health problems, and they had reason to believe from past interactions that he was planning "suicide by cop"— a shoot out with the police when they checked on him. Officers eventually decided to enter his home with their guns drawn.

The question in Case is the legality of the officers' entry, and in particular, what's the specific standard for entry under the emergency aid exception. Case argues that entry under Brigham City's objectively reasonable evidence standard requires probable cause of an emergency.  The state argues that probable cause isn't needed, and that all the officers need is an objectively reasonable belief that they needed to enter to render emergency medical aid.

As I read the briefs, the dispute here is really a choice between a very general standard (was the belief about the need to enter to render emergency aid a reasonable belief) or a somewhat more rule-based approach (was there probable cause of an emergency).  Do you keep the standard more abstract, leaving it at case-by-case reasonableness, or do you provide more guidance and root that in the known standard of probable cause?

Here are the two things I will be listening for at Wednesday's argument:

(1) The role of common law history versus the role of pragmatism.

As I blogged last December, back at the cert stage, one of the things that makes Case unusual is that there's actually a lot of common law authority on the standards for emergency entry.  A key question to look out for is how much the Justices focus on that authority. As Justice Scalia emphasized in Kyllo v. United States, the Fourth Amendment must be interpreted to ensure "preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." And the common law standards of search and seizure have long provided the Fourth Amendment baseline of what is "reasonable," especially where there is "precise guidance from the founding era," as Riley put it.  Given the originalist turn at the Court in recent years, that history may matter a lot.

But there's a very different approach Justices might take instead. The concurrences in Caniglia suggest that at least some Justices are likely to have quite strong instincts about what kinds of entries officers should be able to make.  I think it's fair to say that those views are rooted not in history but instead in the Justices' view of common sense and what amounts to reasonable and sensible police practices.  It's not obvious that the history and a particular Justice's view of sensible police practices will happen to line up.  So one thing to watch for is what particular Justices will care about more.  Are they focused on figuring out what the 18th Century authorities say, or are they focused on finding a standard that matches their intuitions about what the police should and should not be able to do?

(2) How important is the "emergency" part of the emergency aid exception?

A challenge of Caniglia is that it wasn't entirely clear what the Court was doing when it ruled that the community caretaking exception did not apply to entries into the home.  Was Caniglia saying that a real emergency was needed to enter the home, and that community caretaking concerns were irrelevant to the lawfulness of a warrantless entry?  Or was Caniglia just saying that community-caretaking-related concerns had to be addressed under the emergency aid exception?  Everyone wants short opinions until you actually get one, it seems to me.  Caniglia's brevity left a lot unclear.

The reason that matters, I think, is that the variable of time tends to challenge the notion of an emergency.  In Brigham City, the officer watched and observed the victim being brutally beaten; obviously, time was of the essence.  Wait even just a few more seconds, and the victim could be injured worse or even killed.  In Caniglia, by contrast, there was no hurry at all. The suicidal man was not home when officers entered to take the guns.  But between those facts you can imagine a lot of scenarios in which there isn't much of a pressing need for immediate entry in terms of time but there may be a government interest in entering nonetheless.  A big question there is how much does the time element matter.  Is the emergency aid exception really focused on emergencies, when time is of the essence?  Or is it the exception more about countervailing government interests in warrantless entry, even if, as a formal matter, the community caretaking exception is not available?

As always, stay tuned.

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[David Bernstein] Hostages and "Hostages"

[There is no moral equivalence between the hostages released by Hamas and the prisoners released by Israel.]

From a post circulating yesterday:

Hamas will release Elkana Buchbut, a 32 yo party producer and musician, married and father of a 4 yo boy.

Israel will release Baher Badar, who in 2004 was responsible for a suicide terror attack which killed 11 Israelis.

Hamas will release Bar Kuperstein, a 23 yo security guard of the Nova festival, and the manager of his father's falafel restaurant.

Israel will release Faras Ganam, who was responsible for at least 5 terror attacks, and at least 4 dead Israelis.

Hamas will release Maxim Herkin, a 36 yo who got to Israel from Ukraine with his family, including his 4 yo daughter.

Israel will release Jihad Rom, who kidanpped 17 yo Yuri Goshchin in Jerusalem to Ramallah, abused him, murdered him and abused his corpse.

Hamas will release Segev Halfon, a 27 yo from Dimona who suffers from PTSD and worked in his family's bakery.

Israel will release Maher al-Hashlamun, who stabbed 3 people, killing one of them - Dalia Lemkus, who was a survivor of another terror attack 8 years prior to her murder.

Hamas will release Eitan Mor, a 25 yo who lived in Jerusalem and worked at a coffee shop.

Israel will release Hussein Sharrif Jauadra, who was 16 yo when stabbing 19 yo Eden Atias to death on a bus.

Hamas will release Alon Ahel, a 24 yo talented pianist and musician.

Israel will release Nabil Abu Hadir, who murdered his own sister for suspecting she was an Israeli agent.

Hamas will release Yosef Chaim Ohana, a 24 yo bartender, who helped others to escape from the party until he was kidnapped himself.

Israel will release Eiad Abu-Al-Rub, the head of The Islamic Jihad in Jenin, who's personally responsible for terror attacks, among them a suicide terror attack in Hedera, where 6 were murdered.

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[Jonathan H. Adler] Forum Shopping in the First Circuit

[An interesting Reuters report on the new locus of lawsuits challenging the Trump Administration.]

Those seeking to file legal challenges against the Trump Administration's avalanche of executive actions have largely sought friendly fora in which to bring their claims. Increasingly, this appears to mean filing suit in New England, in district courts within the U.S. Court of Appeals for the First Circuit, the only federal appellate court in the nation without a single Republican appointee in active service (though there is one nominee pending).

Nate Raymond of Reuters has an interesting and informative exploration of how the First Circuit has become a forum of choice for anti-Trump Administration litigation, and includes some interesting data on how often such suits are now filed within the circuit.

A Reuters analysis found that at least 72 lawsuits challenging Trump's policies have been filed in federal courts in those four states by plaintiffs, including Democratic state attorneys general, advocacy groups and institutions targeted by the administration. Trial court judges have made at least an initial decision in 51 of those cases, ruling against Trump in 46 of them, the analysis showed.

These have included challenges to Trump's policies to restrict birthright citizenship, gut the U.S. Department of Education, revoke the legal status of thousands of migrants and fast-track deportations of migrants to countries other than their own - so-called "third countries" - including politically unstable South Sudan. . . .

The 1st Circuit, in handling Justice Department appeals of rulings by these trial judges against the president's policies, has issued 15 decisions, granting the administration's request to set aside judicial orders only three times.

The report goes on to explain why the First Circuit would be a popular circuit in which to file these suits.

While nationwide the U.S. judiciary is closely divided among judges appointed by Democratic and Republican presidents, in these four states 17 of the 20 active federal trial judges are Democratic appointees. These states fall under the umbrella of the Boston-based 1st U.S. Circuit Court of Appeals, whose five active judges all were appointed by Democratic presidents while a Trump nominee awaits Senate confirmation. . . .

The regional federal appellate court that has jurisdiction over the most challenges this year to Trump's policies is the one that covers Washington, D.C., as might be expected considering it is the seat of the U.S. government. But the courts under the 1st Circuit have attracted the second-most such lawsuits, according to data from Just Security, an online publication based at New York University School of Law.

The article also provides a useful explanation of forum shopping, why litigants engage in it, and how it's not new. Too often this sort of context is missing from news reports and analyses of litigation against the Trump Administration. Among other things, the report notes that the First Circuit is, in many respects, replacing the Ninth Circuit as the preferred circuit of anti-Trump litigants. As the story notes, President Trump made ten appointments to the Ninth Circuit during his first term, "reducing the likelihood that Democratic appointees would dominate its judicial panels that decide appeals."

President Trump has yet to make a single appointment to the First Circuit (which is also the smallest circuit court, with only six seats). As one might expect given its composition, anti-Trump suits have fared well within the First Circuit.

The 1st Circuit, in handling Justice Department appeals of rulings by these trial judges against the president's policies, has issued 15 decisions, granting the administration's request to set aside judicial orders only three times.

The Trump Administration has often sought Supreme Court review of the First Circuit's failure to stay or reverse district court orders entered against it.

The Supreme Court already this year on seven occasions fully or partially put on hold judicial orders against Trump policies arising out of the 1st Circuit's jurisdiction in cases concerning the Department of Education, legal status of migrants and third-country deportations.

But, the story also notes, the Trump Administration has not always been quick to appeal adverse judgments from the First Circuit. Rather, as I have highlighted in prior posts, the Administration has been selective, only seeking Supreme Court review of cases in which its complaints about district court overreach are particularly strong.

While the Supreme Court has backed the administration in some important cases this year arising from the 1st Circuit, the Justice Department has not yet asked the justices to review some other adverse rulings from judges in the region.

That means, for example, that decisions by judges in Boston and Providence, Rhode Island, remain in place blocking the administration's efforts to make changes in federal elections including limits on counting mail-in ballots, cap federal research funding to universities and disfavor arts organizations seeking grant funding because they support "gender ideology."

Just as anti-Trump litigants are being selective in deciding where to bring which cases, the Trump Administration is being selective about which cases to bring to One First Street. The result is both that a disproportionate share of suits brought against the Trump Administration are successful, and a disproportionate share of Supreme Court orders vindicate the Trump Administration's position. But if you've been following my posts on this subject, you already knew that.

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[Eugene Volokh] "Viewpoint Diversity" Requirements as a New Fairness Doctrine: Regulators' Motivations

I have an article titled "Viewpoint Diversity" Requirements as a New Fairness Doctrine forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. You can see the opening sections  drawing the Fairness Doctrine / viewpoint diversity requirements analogy here; here is a brief section that dismisses one argument against viewpoint diversity requirements:

[IV.] Regulators' Motivations

[It does not matter for purposes of my analysis] that modern viewpoint diversity mandates come out of a desire to promote certain viewpoints (today, conservative ones) that their backers think are unfairly discriminated against.

Many regulations stem from perceived problems caused by particular groups that express particular views. The 36-foot bubble zone around abortion clinics in McCullen v. Coakley, for instance, was enacted in response to speech that expressed anti-abortion views. The bubble zone disproportionately affected anti-abortion speech. The legislators who voted for it were likely abortion rights supporters. But the Court treated the restriction as viewpoint-neutral and even content-neutral because the government's stated purposes were sufficiently neutral: protecting safety and preventing obstruction of passageways.

One could say the same of other restrictions, such as the residential picketing ban in Frisby v. Schultz, which was enacted in response to picketing outside an abortion provider's home, or the bans on picketing near funerals, which appear to have been prompted by the actions of the Westboro Baptist Church.

Likewise, a stated purpose of protecting the "widest possible dissemination of information from diverse and antagonistic sources" should be seen as sufficiently viewpoint-neutral as well. And that would be so even if Republican government officials considered the underlying imbalance in dissemination as skewed against Republicans.

To be sure, Moody v. NetChoice, LLC, rejected the government's attempt to provide ideological balance on social media platforms by restricting the platforms' ability to curate their news feeds. But this involved direct regulation of privately funded speakers. The Court didn't speak to whether the government may try to promote viewpoint diversity through conditions on government spending.

I will argue below that viewpoint diversity mandates are necessarily viewpoint-discriminatory in operation. But the argument will not turn on the likelihood that the backers were likely concerned about the underrepresentation of viewpoints that the backers favored and thought had been treated unfairly.

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