Eugene Volokh's Blog, page 155

[Jonathan H. Adler] D.C. Circuit Stays Mandate in Marin Audubon Society v. FAA

[After refusing to order remand without vacatur, the D.C. Circuit pauses the effect of its decision.]

Last fall, in Marin Audubon Society v. Federal Aviation Administration, a divided panel of the U.S. Court of Appeals for the D.C. Circuit concluded that the Council on Environmental Quality lacks statutory authority to issue binding regulations implementing and interpreting the National Environmental Policy Act.

Last month, the full court denied a petition for en banc review in the case, while a majority of judges on the court joined an opinion suggesting the above holding was merely dicta.

Today, the original panel granted a stay of the judgment in the case (having previously denied the petitioners request for remand without vacatur). Writing for the panel, Judge Randolph explained that in cases like this, in which the party challenging a government regulation for being too lax as opposed to too stringent, a stay may be justified so as not to leave the petitioner in worse condition than before filing suit. In such cases, Judge Randolph explained, equitable considerations may justify a stay without compromising the effect of the court's conclusion that the agency action was unlawful.

Judge Srinivasan concurred separately "in the disposition" on the grounds that he would have granted remand without vacatur as an initial matter.

For myself, I prefer Judge Randolph's approach. One reason for this is I do not understand how remand without vacatur is consistent with the instruction for courts to "set aside" unlawful agency actions. Whether or not one believes universal relief is appropriate, once a court concludes that an agency action is unlawful, the court should not be willing to enforce that action, either in the instant case or going forward.

In addition, remand without vacatur does not put much pressure on an agency to fix the problem. As a consequence, agencies often drag their feet to comply with such orders. While staying the mandate produces much the same outcome--a court judgment that the agency action was unlawful that does not take effect--a stay that can be lifted at the court's discretion or that expires at a date certain does more to incentivize the agency to fix the problem. Indeed, if the primary justification for remand without vacatur is that courts should not enter judgements that are disruptive to the prevailing party, this is actually a stronger argument for Judge Randolph's position than Judge Srinivasan's.

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[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

[Private islands, signal fires, and a salmagundi of sadness.]

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

New on the Short Circuit podcast: Our long-time friend Robert Thomas stops by to proclaim his support for "old property."

Friends, we wish to honor Judge Selya of the First Circuit, whose sesquipedalian style graced many an edition of this newsletter, with a vocab quiz: dithyramb, perfervid, panegyric, anent, obsequies, catafalque, velivolant, encomiastic, columbarium, salmagundi. A trio of finance bros, one of whom owns a private island, puts together a sophisticated operation that aggregates small class action claims and submits them to settlement funds. Its clients are supposedly hedge funds registered in Gibraltar, the Bahamas, and Colombia. The only problem? The whole thing is a sham, and the clients are in fact defunct shell companies. One bro appeals his conviction and restitution order. Third Circuit: This guy is such a jerk that not only do we affirm his conviction but we're vacating the restitution order—which we admit is tricky, as there are a lot of defrauded class action members—so on remand so he can pay more. Allegation: Fort Worth, Tex. police respond to reports of a house with an open front door at 2:00 a.m. They walk around the house, looking for signs of a burglar. When the homeowner hears the noise and goes to the window to see what it is, one of the officers shoots her through the window before he can even finish saying, "Put your hands up! Show me your hands!" She dies. Fifth Circuit: And it is extremely clearly established that you can't shoot people under those facts, so no qualified immunity. After 11 years of service, man retires from job at Wayne County, Mich. and begins drawing $5.4k/mo. pension. Then he returns to work at Wayne County full time in different positions, continuing to draw his full pension (as is fully permitted). But when he starts appearing at public meetings and testifying that he—and many other retirees—are being systematically underpaid, county officials terminate his pension. Jury: Which was unconstitutional retaliation for his protected speech. Sixth Circuit (unpublished): Affirmed, in part because his speech made clear his concern was more for his fellow retirees than himself. Police go to Knoxville, Tenn. high school to arrest teen who assaulted his girlfriend. Officers find him in a bathroom stall, and during the ensuing struggle a gun falls out of the teen's pocket. It discharges but doesn't hit anyone. Four seconds later, an officer shoots the teen, as he yells, "Wait, wait, wait, wait!" The officer fires again moments later, striking a fellow officer. The officer lives. The teen dies. Sixth Circuit (unpublished, over a dissent): No qualified immunity for failing to provide medical assistance as the teen bled out. It is the dream of all young lawyers to use their finely honed reasoning skills to carefully parse timeless philosophical questions about the true nature of reality. Also, here's a Seventh Circuit opinion considering whether a cavity inspection is part of a jailhouse strip search or whether it is instead a separate search requiring a separate justification. Tech-savvy airman thinks one of his friends has been the victim of a theft by a fellow airman, metes out some rough justice by rerouting the thief-airman's next paycheck to an orphanage in Siberia. Maverick move! And one that leads to a court-martial, conviction, and dishonorable discharge. Seventh Circuit: And now, after 20 years and many, many appeals, we can give this prankster no relief. In 2020, after parties unknown posted an athletics department poster with the hashtag "#BlackLivesMatter" on his office door, an Illinois State U football coach replaces it with a handwritten note saying, "All Lives Matter to Our Lord & Savior Jesus Christ." He's fired. Unconstitutional retaliation for his protected speech? Seventh Circuit: It's too soon for school officials to invoke qualified immunity. Try again at the summary judgment stage. Jefferson County, Mo. prisoner: May I have a Bible while in administrative segregation? Prison: No. "[F]eel free to quote the constitution all you want to—I don't mind at all." Prisoner: Lawsuit for you. District court: The Religious Land Use and Institutionalized Persons Act doesn't allow claims for money damages. Eighth Circuit (over a partial dissent): Yes, it does, at least against the county that took federal money on condition of respecting religious liberty. Not against the prison administrator who wasn't part of that bargain, but she can be sued under good-ol'-fashioned Section 1983. Human Rights Defense Center wants to send Arkansas prisoners information on their legal rights and news stories about the criminal justice system, but the Baxter County Jail limits all nonlegal mail to inmates to postcards. HRDC sues, alleging the ban violates their First Amendment rights. Eighth Circuit: Correct. We've upheld similar postcard rules before, including against this plaintiff, but Baxter County also bans the internet and any other means through which HRDC could communicate with inmates, which is going too far. Look, your summarist is just gonna put his cards on the table and say he's bumping up against a deadline and doesn't have time to decipher this 156-page opinion of the Ninth Circuit holding (over a dissent) that various provisions of Arizona voter registration law are legally … not good … in some fashion. Practical tips for the outdoorsy in Arizona. Tip #1: Don't go on a daylong hike in the hot, parched wilderness alone without a compass. Tip #2: If you ignore Tip #1, and then get lost and set a series of indiscriminate signal fires that end up burning 230 acres, don't expect much sympathy from the Ninth Circuit. Bad news for the founders of your favorite now-shuttered blood-testing-technology company: the Ninth Circuit affirms Elizabeth Holmes's and Sunny Balwani's convictions and sentences. Turns out that their business was built on a house of lies: they used third-party devices to run tests instead of their own (while pretending to use their own); they inflated revenue (projecting $230 mil profits when running at $57 mil+ losses); they said the military was using their product on the battlefield (it was not); they said that their partnership with Walgreens was expanding (it was contracting); and they said that pharma companies were vouching for their tech (they did not). For this, they're convicted of a bunch of kinds of fraud and sentenced to 135 months (Holmes) and 155 months (Balwani) in prison, plus $452 mil in restitution—all of which is fine, per the appellate court. You know those terms of service that nobody reads when you get an online account? Well, turns out if you lie (like we all do) and say you've "read" them—but weren't forced to actually view their text—that's different than the website forcing you to scroll through them before you lie. So says the Ninth Circuit (over a dissent), ruling a California woman, and her class, doesn't have to go to arbitration over the automatic renewal of her gym subscription and therefore "eludes the Gordian knot that Ross Geller and Chandler Bing struggled against." Allegation: Though a bystander frantically tries to roust them, Honolulu police remain in police station as a mentally ill man beats homeless woman to death in the station's parking lot—with a tree that he had uprooted—over the course of about 30 minutes. Ninth Circuit (unpublished): Her estate's constitutional and state tort claims fail. This (unpublished) Tenth Circuit opinion reminds us not to live our lives in such a way that the local police department announces a zero-tolerance policy arising out of our decade of disputes with our neighbors and also, separately, to live our lives in such a way that our warrants explicitly incorporate their supporting affidavits by reference when necessary. Man is charged with four counts of assault with a deadly weapon in Indian country after stabbing his then-girlfriend. (She survives.) After being read his Miranda rights, he keeps quiet until trial, where he first testifies that he acted in self-defense. The jury convicts after the gov't repeatedly references his post-Miranda silence to cast doubt on his credibility. Tenth Circuit: The right to remain silent implies that you won't be punished for exercising it. And that violation may have changed the outcome in this "credibility contest between two proven liars." Reversed and remanded. Family members call Las Cruces, N.M. police for help with mentally ill, septuagenarian woman who is threatening them with knives. When an officer arrives, however, the woman has calmed down, and he's asked to "please be very careful with her." Instead, he screams at the woman to drop the knives and shoots her dead as she steps toward him. Tenth Circuit: Grant of QI reversed. To trial this must go. Allegation: When indigent Alabama inmate complains (and shows evidence) of an ear infection to a nurse, she blows him off. His repeated efforts to obtain care after that are ignored. Yikes! Six months later, he has a seizure and is diagnosed with "an untreated sinus infection" that resulted in a ruptured ear drum, bone infection, and brain abscess. Eleventh Circuit: He gets another chance to prove his deliberate indifference claim, which accrued only when he became aware of his injuries at the hospital, not when he interacted with the nurse. Reversed and remanded. Concurrence: "District courts should also reconsider the "special report process" used for pro se prisoner cases, "an informal and opaque pseudo-summary-judgment process" that isn't even authorized by the federal rules." Allegation: Domestic violence victim calls 911 for help, but Palm Beach County, Fla. deputies arrest her despite a total lack of even arguable probable cause. District court: It's too soon for the officers to invoke qualified immunity. Try again at summary judgment. Eleventh Circuit: Vacated. It's never too soon to invoke qualified immunity. And in en banc news, the Third Circuit will not reconsider its opinion that 18-20 year olds are members of "the people." One judge "dissenting sur denial" says the original panel don't know much about history. And in cert denial news, the Supreme Court will not review the Fifth Circuit's grant of qualified immunity to a SWAT commander who ordered his team to raid the wrong home.

Victory! Last September, Kalispell, Mont. officials voted to shut down the Flathead Warming Center, a 50-bed homeless shelter that is clean, well-organized, and had never been cited for any code violations. Asked by a federal judge where he expected people to sleep instead (in below-freezing temperatures), the mayor said, "They have to go back into the trees." But this week, the city agreed to permanently reinstate the shelter's permit. The shelter, consistent with its long-standing commitment to being a good neighbor, agreed to organize cleanup patrols and to maintain its high standards for its guests' behavior. "With this legally-binding agreement in place, we can finally look ahead with renewed hope," says the Center's director, Tonya Horn. "Addressing homelessness is divisive in our community. We seek reconciliation and collaboration. The work is far from over; we cannot do this work alone." Click here to learn more. Or click here for a neat little interview about the case.

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[Jonathan H. Adler] Divided Fourth Circuit Denies Partial Stay of Preliminary Injunction Against Executive Order Curtailing Birthright Citizenship

[If nationwide injunctions were okay against other administrations, the Fourth Circuit see no reason they are not okay now.]

Today a divided panel of the U.S. Court of Appeals for the Fourth Circuit denied the Trump Administration's application for a partial stay of a nationwide preliminary injunction granted by a district court  against the implementation of the Administration's Executive Order curtailing birthright citizenship. The denial was largely based upon the question of whether it was appropriate for the district court to grant universal relief and not the merits of the case.  The U.S. Court of Appeals for the Ninth Circuit previously denied an application for emergency relief in parallel litigation challenging the same E.O.

The Fourth Circuit order was entered on behalf of Judge Harris, joined by Judge Gregory. Judge Niemeyer dissented, also focusing on the question of nationwide relief. He would have narrowed the injunction to the parties in the case. Assuming the Trump Administration seeks Supreme Court review, this case would present a clear opportunity for the Supreme Court to (finally) provide guidance on when universal relief is appropriate (and the answer should be "only in special circumstances").

Here are the opinions from the Fourth Circuit. Judge Harris in support of the order:

The government seeks a partial stay of the district court's February 5, 2025, preliminary injunction in this matter. As the parties agree, we consider that request under the traditional factors laid out in Nken v. Holder, 556 U.S. 418 (2009). We find that the government has not shown an entitlement to a stay pending appeal and accordingly deny its motion.

Our court has reviewed and approved so-called "universal" or "nationwide" injunctions in the past. See Roe v. Dep't of Def., 947 F.3d 207, 231–33 (4th Cir. 2020); HIAS, Inc. v. Trump, 985 F.3d 309, 326–27 (4th Cir. 2021). As we have explained, a district court has "wide discretion" in fashioning the scope of a preliminary injunction, and that discretion includes, in appropriate cases, the entry of "an injunction extending relief to those who are similarly situated to the litigants." Roe, 947 F.3d at 231–32. The burden is on the government to show that it is likely to prevail in its claim that the district court abused its discretion here, and that the equities favor an atypical "intrusion" into the ordinary judicial process. Nken, 556 U.S. at 427, 433–34. In our view, the government cannot meet that burden.

We join the Ninth Circuit in finding that the government has not made a "strong showing" that it is "likely to succeed on the merits" of its argument against universal injunctions. See Washington v. Trump, 2025 WL 553485, at *1 (9th Cir. Feb. 19, 2025) (quoting Nken, 556 U.S. at 434) (denying similar stay request). Our circuit precedent forecloses the government's position that injunctions extending relief to those "similarly situated" to the plaintiffs are "categorically beyond the equitable power of district courts." Roe, 947 F.3d at 232; see also HIAS, 985 F.3d at 326. And that precedent is based on our understanding that the Supreme Court, too, has "affirmed the equitable powers of district courts, in appropriate cases, to issue nationwide injunctions extending relief to those who are similarly situated to the litigants." Roe, 947 F.3d at 232 (citing Trump v. Int'l Refugee Assistance Project, 582 U.S. 571, 580 (2017) (per curiam)).

We are of course aware of separate writings by Supreme Court Justices, emphasized by the government, that express concerns about the propriety of universal injunctions and an interest in taking up that question. But notwithstanding these reservations, the Supreme Court has allowed most universal injunctions to remain in effect during the course of litigation, see, e.g., Biden v. Nebraska, 143 S. Ct. 477 (Mem.) (2022), even in cases in which the Court has ultimately reversed on the merits, see Biden v. Texas, 12 S. Ct. 926 (Mem.) (2021); United States v. Texas, 143 S. Ct. 51 (Mem.) (2022). No decision of the Supreme Court has superseded our precedent in this area, and we have no reason to think the Court will soon announce a change in course.

We agree with the government that a court must "mold its decree to meet the exigencies of the particular case," and ensure that a preliminary injunction is not "more burdensome to the defendant than necessary" to provide complete relief to the plaintiffs. See Roe, 947 F.3d at 231 (internal quotation marks omitted). But to the extent the government argues that the district court abused its discretion in fashioning this universal injunction, in particular, we think that claim, too, is unlikely to succeed. As the district court identified, see CASA, Inc. v. Trump, No. 25-cv-00201-DLB, 2025 WL 545840, at *1 (D. Md. Feb. 18, 2025), this case falls within the parameters for universal injunctions we have outlined in our precedent: It enjoins a "categorical policy"; the "facts would not require different relief for others similarly situated" to the plaintiffs; and limiting the injunction would make the citizenship of babies turn on the happenstance of their parents' membership in the plaintiff organizations, causing "inequitable treatment" in an area in which uniformity is needed. See HIAS, 985 F.3d at 326–27; Roe, 947 F.3d at 323–33; see also U.S. Const. art. I, § 8, cl. 4 (empowering Congress to "establish an uniform Rule of Naturalization"). The district court also carefully explained why an injunction limited to the parties – including organizations with hundreds of thousands of members nationwide – would be unworkable in practice and thus fail to provide complete reliefs to the plaintiffs. CASA, 2025 WL 545840, at *1 & n.2; see Nebraska v. Biden, 52 F.4th 1044, 1088 (8th Cir. 2022) (per curiam). "Crafting a preliminary injunction is an exercise of discretion and judgment," see Int'l Refugee Assistance Project, 582 U.S. at 579, and we do not think the government can make the requisite "strong showing," Nken, 556 U.S. at 434, that the district court abused its discretion here.

Nor has the government shown that the equities favor the granting of a stay. For well over a century, the federal government has recognized the birthright citizenship of children born in this country to undocumented or non-permanent immigrants, a practice that was unchallenged until last month. The government has not shown that it will be harmed in any meaningful way if it continues to comply, for the pendency of its appeal, with that settled interpretation of the law and consistent executive branch practice. See Washington, 2025 WL 553485, at *2 (Forrest, J., concurring) (explaining that there is no "obvious" need for stay relief where "it appears that the exception to birthright citizenship urged by the Government has never been recognized by the judiciary, see United States v. Wong Kim Ark, 169 U.S. 649, 693 (1899), and where executive-branch interpretations before the challenged executive order was issued were contrary, see, e.g., Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Legislation Denying Citizenship at Birth to Certain Children Born in the United States, 19 O.L.C. 340, 340-47 (1995)"). It may sometimes be hard to identify which stays disrupt the status quo and are thus disfavored, see Labrador v. Poe ex. rel. Poe, 144 S. Ct. 921, 930 (Mem.) (2024) (Kavanaugh, J., concurring), but the status quo in this case is clear, and adding a bit more time to its century-plus pedigree will not impose any substantial harm on the government.

Second, it is notable that the government is not prepared to argue that it will likely prevail on the merits of the Executive Order itself. We are aware of no case – and the government has not cited one – in which a court has stayed a preliminary injunction of a policy, already found likely unlawful, in which the movant did not argue for the policy's legality. Under these circumstances, especially, we are hesitant to disturb a preliminary injunction that maintains the status quo while the lawfulness of the Executive Order is litigated.

Finally, we agree with the district court that the public interest favors its preliminary injunction. CASA, 2025 WL 408636, at *16. It is hard to overstate the confusion and upheaval that will accompany any implementation of the Executive Order. Today, virtually every child born in the United States becomes a citizen at birth – allowing us to prove our citizenship with our birth certificates, which identify our place of birth but not the citizenship status of our parents. The Executive Order will do away with that longstanding practice. Even for children born to two citizen parents, a standard birth certificate will no longer suffice to prove citizenship – not under the Executive Order, and not for any other purpose. Existing administrative systems will fail, states and localities will bear the costs of developing new systems for issuing birth certificates and verifying citizenship, and anxious parents-to-be will be caught in the middle. See id.; Br. for Local Gov'ts as Amici Curiae at 10–12, No. 25-cv-00201-DLB, ECF No. 37 (Jan. 29, 2025). The public interest would not be served by courting this chaos while we take up an appeal of an Executive Order that the district court already has found is very likely unconstitutional.

Judge Niemeyer, dissenting:

I respectfully dissent from the majority's order denying the government's motion for a partial stay of the district court's preliminary injunction. The government does not seek a stay with respect to the injunction's provision of relief to the parties in this case. It only seeks to stay the effort by the district court to impose its injunction nationwide to afford relief to persons beyond the District of Maryland. By its terms, the district court's order seeks to apply its injunction for the benefit of hundreds of thousands of individuals "throughout these United States." In effect, therefore, the government simply seeks to cabin the district court's injunction to the parties in the District of Maryland. In this posture, the government does not address the merits of the plaintiffs' case, and I express no view here on the merits.

The majority's order denying the government's motion focuses almost all of its discussion to whether the government has satisfied the criteria for a stay outlined in Nken v. Holder, 556 U.S. 418, 426 (2009). That analysis prescribes a look at the merits of the case — even though they have not yet been briefed before us — to assess the government's likelihood of success. But the merits are not before us, even for a quick look. At this stage, the government seeks only to restrict the scope of the preliminary injunction, which purports to cover every person and every district court in the country. It states, "This motion does not require the Court to address the merits. For the present, the government asks only that the Court stay the preliminary injunction to the extent it sweeps beyond the sixteen individuals whose claims are identified in the complaint and whose relief is not contested in this motion."

The President issued Executive Order 14160 construing the Citizenship Clause of the Fourteenth Amendment. Stated broadly, the Executive Order construes specific limiting language of the Citizenship Clause — which applies the Clause to persons "subject to the jurisdiction" of the United States — to conclude that it does not extend citizenship to children born in the United States of aliens illegally present in the United States or of aliens only temporarily present in the United States. U.S. Const. amend XIV, § 1.

Whether the Order's interpretation is correct is yet to be briefed in this case and determined. The plaintiffs in this case commenced this action to challenge the Executive Order's interpretation and claim that they will suffer "irreparable harm" from its implementation that can only be redressed by preliminary and permanent injunctive relief. The district court granted the plaintiffs' motion for a preliminary injunction, but it provided relief not only to the plaintiffs but also to everyone in the nation similarly situated by categorically enjoining the defendants from implementing and enforcing the Executive Order. The government has appealed, and the issue now is not whether the district court was correct in entering a preliminary injunction. Rather, it is whether the court was entitled, in the circumstances of this case, to extend its injunction to apply "throughout these United States" — to persons not before the court nor identified by the court.

I would grant the government's modest motion, which seeks only to cabin the order's inappropriate reach.

The judicial unseemliness of such a broad extension of judicial power is highlighted by the fact that within "these United States" — the coverage of the district court's injunction — at least four cases in other United States District Courts are addressing similar challenges to Executive Order 14160. See Washington v. Trump, No. 2:25-cv-00127-JCC, in the Western District of Washington; New Jersey v. Trump, No. 1:25-cv-10139-LTS, in the District of Massachusetts; Bell v. Trump, No. 1:25-cv-10135-LTS, in the District of Massachusetts; and New Hampshire Indonesian Community Support v. Trump, No. 1:25- cv-00038-JL-TSM, in the District of New Hampshire. And there may be others. The judges in these four, however, have all issued injunctions against Executive Order 14160.

Thus, the district court's order in this case could have the effect of preempting or at least interfering with the orders in these other districts. It implicates unnecessarily potentially conflicting orders or reasoning, claims preclusion, res judicata, and other similar principles that order the work of different courts. Moreover, the orders in all four of these cases have been or will be appealed to the appropriate court of appeals, which are or will be considering the same issues that are presented to us here. As a matter of order and equity, it is simply presumptuous and jurisdictionally messy for one district court to issue an injunction that covers the jurisdiction of other district courts and courts of appeals, which are considering the same issues. And for good reason, the Supreme Court has demonstrated grave concern generally over district courts' issuing national injunctions, as the government has demonstrated at greater length in its papers. See e.g., Labrador v. Poe ex rel. Poe, 144 S. Ct. 921 (2024) (mem.).

While a broad injunction having de facto national effect might be appropriate in some circumstances, it is not so here, in my view. The specifically identified plaintiffs here claim harm that can only be redressed by injunctive relief, and the other district courts across the country are likewise addressing similar claims of harm.

At bottom, I would grant the partial stay requested, which is modest, and proceed to receive the briefs of the parties on the merits and hear oral argument in furtherance of our role to review the district court's injunction on the merits.

 

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[David Bernstein] Hamas, Israel, and the Death of International Humanitarian Law

[Taken over by the far left, the IHL community discredited the field by going easy on Hamas and libeling Israel.]

[Cross-posted at my Times of Israel blog]

International humanitarian law is dead. Ideologically motivated hostility to Israel since the Hamas massacre of Israelis on October 7 killed it.

IHL was invented after World War II. The war saw tens of millions of civilians were killed, some intentionally as in the Shoah, and some because their lives were not valued when military decisions were being made.

The underlying idea was that regardless of which side was right or wrong in any given international conflicts, armed forces on both sides have obligations to protect civilians to the extent possible while engaged in war.

If the IHL community had taken this seriously, imagine what would have happened immediately after October 7.

IHL scholars, activists, and organizations would have been unified in their intense denunciation of the massive violation of all precepts of international law by Hamas in their massacre, torture, rape and kidnapping of Israeli civilians.

They would have demanded that Hamas immediately release its hostages, and insisted that the world pressure not just Hamas but its allies and enablers in Egypt, Qatar, and Iran, to ensure the safe and unconditional release of the hostages. They would have insisted, publicly and consistently, that Hamas surrender.

And when Hamas would have then, inevitably, refused to give in, the IHL community would have denounced Hamas's failure to wear uniforms to allow Israel to distinguish enemy fighters from civilians, its intentional placing civilians at risk, its obstruction and theft of humanitarian aid, and, not least, its continuing to hold, torture, and rape hostages.

An IHL community actually devoted to IHL would also of course have had concerns about Israeli actions. They would have reviewed Israeli military responses in Gaza to see if they met the proportionality standard. That standard is quite vague, but surely IHL scholars, activists, and organizations could have contributed measured analyses and occasional criticism of Israeli actions. They also could properly have insisted that to the extent Israel took control of territory that ensured that the civilian population was properly fed and sheltered, consistent with international law.

None of this happened, of course. The IHL community, writ large, had been taken over by the far left, and for a variety of interrelated ideological reasons IHL activists are hostile to Israel's very existence, and do not believe that Israel has any right to defend itself, including from Hamas terrorism. Therefore any civilian casualties caused by Israeli military action were unacceptable.

As a result of these ideological biases, the first reaction of the IHL community to 10/7 ranged from rather tepid criticism of Hamas to exculpatory language suggesting that Hamas's actions on October 7 were understandable as an effort at so-called de-colonization. Either way, IHL people and organizations called for an immediate cease-fire and more general Israeli restraint, even though legally speaking Israel and every right to go after Hamas.

Things just spiraled downward from there. False accusations of genocide, intentional targeting of civilians, intentional starvation of Gazans, and more have been the coin of the realm the IHL world. Meanwhile, Hamas has largely been given a pass, despite the fact that its terrorist forces violate IHL every single time they take military action.

Two particularly absurd manifestations of the IHL world's anti-Israel bias stick out in my mind. First, there was the condemnation of Israel's pager operation against Hezbollah. For months, IHL activists had been alleging that at best Israel was not narrowly targeting Hamas terrorists and at worst was engaging in genocidal indiscriminate bombing. So you think these groups would rejoice and praise Israel when it managed to kill or wound three thousand enemy terrorists with almost no civilian casualties. Instead, various IHL organizations and prominent individuals accused Israel of terrorism.

After that, we may have reached the reductio ad absurdum a few months ago, when Amnesty International came out with a report accusing Israel of genocide. The report acknowledged that Israel's actions didn't really seem to meet what it called the prevailing "overly cramped interpretation of international jurisprudence" that would "effectively preclude" finding that Israel committed genocide. Amnesty's solution to that quandary, since it really, really wanted to accuse Israel of genocide, was to make up a new definition of genocide that would encompass Israel's actions.

There were a lot of failures on before 10/7, on 10/7 and thereafter. But as a law professor no failure hits home like the willingness of people around the world who claim to be devoted to international humanitarian law to ignore, distort, and pervert the law, lest it be used to protect Jews and condemn their enemies.

[Author's note: This post is based on a speech I gave at a memorial for the Bibas children, Shiri Bibas, and Oded Lipfshitz on February 26, 2025, at George Mason University's Antonin Scalia Law School. The event was sponsored by the Jewish Law Students Association.]

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[Sasha Volokh] Expressive Discrimination: Universities' First Amendment Right to Affirmative Action

[Maybe some universities can continue to do race-based affirmative action, even after SFFA v. Harvard.]

My article Expressive Discrimination: Universities' First Amendment Right to Affirmative Action has finally been published by the Florida Law Review. In these days of federal attacks on private DEI, maybe some private universities might find this useful as a strategy for fighting back against the Trump Administration! I'll reproduce the Abstract and Introduction today, and continue to post the rest of the article next week. In the meantime (and especially if you want all the juicy footnotes), read the whole thing.

A note before starting: One of the earliest contributions to this literature was my co-blogger David Bernstein's 2001 article in the William & Mary Bill of Rights Journal. Another was David Geary's 2004 student note in The University of Chicago Law Review. Aside from that, there hasn't been much. A couple of articles were written more or less simultaneously with (and independently from) my article: Kent Greenfield's 2024 article in the American Journal of Law & Equality, and Part III of Taylor Barker's 2024 essay in the Stanford Law Review.

Abstract

In the wake of Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, affirmative action proponents should pursue a First Amendment approach. Private universities, which are speaking associations that express themselves through the collective speech of faculty and students, may be able to assert an expressive association right, based on Boy Scouts of America v. Dale, to choose their faculty and students. This theory has been recently strengthened by 303 Creative LLC v. Elenis.

I discuss various complexities and counterarguments: (1) Race is not different from sex or sexual orientation for purposes of the doctrine. (2) The market context may not matter, especially after 303 Creative. (3) The conditional-federal-funding context does give the government more power than a simple regulatory context; the government will still be able to induce race-neutrality by the threat of withdrawing federal funds, but the unconstitutional conditions doctrine precludes draconian penalties such as withdrawing all funds from the entire institution based only on affirmative action in some units. (4) This theory doesn't apply to public institutions.

I also explore the potential flexibilities of this theory, based on recent litigation. The scope of the Boy Scouts exception might vary based on (1) what counts as substantial interference with expressive organizations, (2) what counts as a compelling governmental interest, and, most importantly, (3) what it takes for activity to be expressive.

Introduction

June is always a big month for Supreme Court watchers, but the last two days of June 2023 were more interesting than usual for constitutional and civil rights law. In one case, the Court made race-conscious affirmative action—which had long been only grudgingly accepted—even more difficult. But the decision in another case paves the way for an argument that private universities have a First Amendment right to engage in affirmative action.

On June 29, 2023, the Supreme Court decided Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, cutting back on the legality of race-conscious affirmative action in universities and all but overruling Grutter v. Bollinger. This was both a statutory and a constitutional opinion: all universities that accept federal funds are governed by Title VI of the Civil Rights Act of 1964; public universities are also governed by the Equal Protection Clause. But the two have been interpreted to impose identical standards, so the distinction didn't make much practical difference.

The very next day, the Court decided 303 Creative LLC v. Elenis. Lorie Smith, a website designer, decided to enter the wedding-website business; she didn't want to create websites promoting gay weddings or otherwise contradicting her beliefs, but that could have opened her up to prosecution under the Colorado Anti-Discrimination Act. The Supreme Court held that the statute couldn't be applied to force her to create websites she disagreed with. A website is just words and images—"pure speech." If the state made Smith create a website for a gay marriage—just because she was willing to create one for a straight marriage—that would be compelled speech, which would violate her First Amendment rights.

These two lines of doctrine don't usually talk to each other, but they should—especially now.

Suppose you're a private-university president who wants to have affirmative action for faculty hiring or student admissions (or both). You've tried to fit your program within the confines of Grutter. You've steered clear of impermissible interests such as racial balancing or remedying societal discrimination, avoided illegal methods such as quotas or inappropriately numerical targets, and stuck to approved interests such as the value of diversity. Then, on June 29, your general counsel said such efforts should be curtailed or abandoned. After sleeping on it—you sleep late the next morning, so you don't wake up until after the Supreme Court has released its opinions—is there anything you can do on June 30?

Yes, there is.

Lorie Smith's websites were pure speech. But so is virtually all your university's activity. Everything significant that universities do—lectures, homework, exam-taking, paper-writing—boils down to talking and writing. That includes the all-important transcript and diploma, which are just the university speaking to certify what the student has accomplished. If this isn't pure speech, what is?

You think back to an older case: Boy Scouts of America v. Dale, where the Supreme Court upheld the Boy Scouts' exclusion of a gay assistant scoutmaster even though this violated an antidiscrimination statute. The Boy Scouts engaged in expression, part of which included a position against homosexuality. Given this position, forcing the organization to accept a gay person in a leadership position "would, at the very least, force [it] to send a message, both to the youth members and the world, that [it] accepts homosexual conduct as a legitimate form of behavior."

Boy Scouts built on a previous case—the unanimously decided Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, which upheld the right of parade organizers to exclude an LGBT Irish-American organization from the parade even though this violated an antidiscrimination statute. The state courts interpreted this as an exclusion of LGBT people, but the Court recognized that this was an attempt to alter the parade organizers' message. Organizations have the right to choose their message, and sometimes the speaker's identity is the message. This is why you can limit yourself to actors of color for Hamilton or cisgender female contestants for a beauty pageant.

Freedom of speech implies a right against compelled speech: the right to speak includes the right to choose what to say, i.e., the right not to say certain things. The First Amendment also includes a right of expressive association: people have the right to group together to express their views. In the expressive-association context: the right to speak in groups includes the right to choose whom to speak with, i.e., the right to choose whom not to associate with in speaking. We can call this principle—the marriage of the expressive-association right with the right against compelled speech—the principle of "expressive discrimination."

What does this mean for your university's affirmative action programs? Your university is a speaking organization whose "message" may include teachings about diversity. The university speaks not only through its administration but also through its entire scholarly community, which includes faculty and students (perhaps also some staff). Using an antidiscrimination law such as Title VI or 42 U.S.C. § 1981 to force the university to speak through people not of its choosing—which could mean a faculty and student body that don't match the university's notions of diversity—could impede the university's ability to speak. The university's expressive-association right can include the ability to take race into account to create a university community with the desired amount or type of diversity.

Previously, one could have argued that the Boy Scouts expressive-discrimination principle was limited to noncommercial, volunteer organizations such as parades and the Boy Scouts and that it wouldn't protect the discrimination in contracting required for affirmative action for faculty and students. But this is where 303 Creative helps: the Court reaffirmed the right against compelled speech in an economic, for-profit context. Lorie Smith "offers her speech for pay and does so through . . . a company in which she is 'the sole member-owner.' But none of that makes a difference."

The legal landscape on June 30 is thus more promising than it was on June 29. You can assert an expressive-association right to choose your faculty and students because those are the speakers in your pure-speech organization. And this right can trump mere statutory antidiscrimination policies.

And just in time! The day before yesterday, you could simply rely on your affirmative action program's legality. You've never before needed a constitutional theory that would let you ignore the statutes, but now you do. The expressive-association theory can give you what you need and more: if this works, not only can you go back to running your previous programs, but now you can run any affirmative action program you like, even one that would have been illegal under Grutter. If you like, you can use quotas and pursue outright racial balancing or try to remedy societal discrimination, rather than be limited to the single rationale of the educational benefits of diversity. If the government can't force the Boy Scouts to have a gay assistant scoutmaster or force Lorie Smith to design a pro-gay-marriage website, what right does it have to tell your university what speakers to choose?

If only Harvard's lawyers had argued this First Amendment theory. This should be the next frontier in private-university affirmative-action litigation—or the basis of a private university's defense next time it gets sued.

*     *     *

Part II of this Article presents this theory and explores some of its complexities.

The Supreme Court has never endorsed a strong form of expressive-association rights, whereby restrictions on an expressive organization's ability to choose its members is a per se burden. Antidiscrimination cases such as Bob Jones University v. United States and Roberts v. United States Jaycees are still good law. Your expressive-association claim will thus look better if your facts look a lot like those in Boy Scouts. But then you have a problem. The assistant scoutmaster was an authority figure who spoke on behalf of the organization and was expected to inculcate the organization's values. Many universities aren't like that—at least not with respect to faculty and students—because they have strong faculty- and student-based academic-freedom and free-speech norms.

The universities that are the best fit for an expressive-association theory are those that expect or require faculty and students to promote university values, which might require weakening academic-freedom and free-speech norms. Other universities might be able to use the theory, but it won't be as good a fit, so the result will be harder to predict.

Part III addresses various follow-on questions:

Does the racial angle matter, given that the other cases arose in the context of sexual-orientation discrimination? (The cases don't support treating these different types of discrimination differently.) Does the market angle matter, since the other cases arose in the context of volunteer or nonprofit activity? (303 Creative suggests it doesn't.) What about laws such as Title VI, which don't regulate universities outright but merely impose conditions on recipients of federal money—bringing into play the looser constraints of the unconstitutional conditions doctrine? (This is the greatest hurdle. But the unconstitutional conditions doctrine bars pulling funding from the entire university based on discrimination by any single unit.) Could public institutions use this theory too? (No.)

Part IV asks how far this theory can go. Based on recent litigation, I identify three flexibilities in the doctrine, which help us understand what doctrinal movement is plausible.

One is what it takes to make a substantial burden on an association's expression. Another is what governmental interests can be characterized as "compelling," so as to overcome the expressive-association right under strict scrutiny. But the biggest question is what activities are characterized as "expressive." That's a threshold issue—if the action isn't expressive, then First Amendment analysis isn't even relevant. You can't unilaterally make nonexpressive conduct, such as tax avoidance, expressive by talking about it or claiming civil disobedience. This threshold question preserves the core of antidiscrimination law in the vast majority of cases, even for expressive associations. But some activities, such as flag burning or parades, are inherently expressive. The test has to do with social expectations and how the particular conduct is likely to be perceived. This test is flexible, and different attitudes on the part of courts can lead to different results.

*     *     *

The key takeaway, though, is that—at least in private education, and possibly more broadly—the First Amendment expressive-association theory is potentially liberating for affirmative action. The expressive-association cases have been criticized as giving a free pass to racists, sexists, and homophobes. (Perhaps; but they have rights too.) But affirmative action can dwarf all of that. For decades, affirmative action has tried to fit into the constraining framework of Equal Protection/Title VI—satisfying neither affirmative-action opponents who advocate colorblindness nor proponents who would prefer programs forthrightly grounded in reparations for past injustices or remedying current inequalities. Now that Equal Protection/Title VI doctrine has come down strongly for colorblindness, the First Amendment theory has the potential (at least in some private universities) to convert affirmative action from a grudgingly allowed concession to a strongly protected right.

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[Josh Blackman] Today in Supreme Court History: February 28, 1966

2/28/1966: Miranda v. Arizona argued.

The Warren Court (1966)

 

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Josh Blackman] Fifth Circuit Panel Issues 24-Page Unpublished Opinion In Favor Of Planned Parenthood and Reverses Judge Kacsmaryk⁩

[Is this opinion a "one and done" decision to evade en banc review?]

There is a long-running debate in FedCourts circles about unpublished opinions. These decisions, by their terms, are not precedential. Yet, lawyers, and some courts, will cite unpublished opinions as precedents. The line between published and unpublished is fuzzy at best. And, as I understand things, if one judge on a panel requests it, an opinion will be published.

There is another element of unpublished opinions that is less understood: because unpublished opinions are not precedent, there is less of a need to review them en banc. To be clear, the en banc court can review en unpublished opinion, but because the decision is not precedential, it may not be considered a good use of the court's resources.

In 2022, this issue arose on the Fifth Circuit. A panel of the Fifth Circuit (Smith, Elrod, Oldham) ruled in favor of the plaintiff in Sambrano v. United Airlines. The panel  issued an unpublished opinion. Judge Smith dissented on the merits. But he also objected to the majority's decision to issue an unpublished opinion:

I call this the "one and done" method of decisionmaking. Two judges randomly selected for a panel decide that—for whatever reason—a particular result is correct but can be achieved only by divorcing the opinion from the common-law tradition, by evading precedent, and by obscuring the path in the shroud of an unpublished per curiam opinion. The obvious result is to foster whatever happens to be the "Blue Plate Special" cause on a given day.

Judge Smith hints that the decision to use an en banc opinion was designed to evade en banc scrutiny.

The fact that an opinion is unpublished furnishes just another reason to vote to deny en banc scrutiny. But by today's ruling, the Good Ship Fifth Circuit is afire. We need all hands on deck.

At the time, I wrote "Judge Smith shot up a flare over the Gulf of Mexico." I will need to amend that post to the "Gulf of America."

Any member of the panel could request that opinion should be published. Judge Smith could have made that request, but he (apparently) didn't. There is a bit of game theory behind this move. By Smith not voting to publish the opinion, he ensures that a decision he thinks is erroneous will not be a circuit precedent. Had he voted to publish the opinion, and made the decision a precedent, that would have made en banc review more likely. But this latter option creates the risk that en banc review is denied, and there is now an entrenched precedent.

With the benefit of hindsight, en banc review was denied in Sambrano by a 13-4 vote. Judge Smith dissented from the denial of rehearing en banc. He lamented a 1996 rule change that made it easier to designate opinions as non-published. And he doubled down on his criticism of the majority:

Our concern was prescient. As I say in my panel dissent, the "obvious result" of the majority's decision is to foster today's "'Blue Plate Special' cause" without committing to sweeping legal changes that may not always produce the same outcomes.21 This "'one and done' method of decision-making"22 is made possible only by abusing the availability of unpublished opinions―a device that the full court has now fully validated by denying re-hearing.

Judge Smith worried that other rogue panels can avoid en banc review by marking the opinion as unpublished:

And by a lopsided vote, the en banc court declines to lift a finger. After today, a future panel that wishes to use the "one and done" method of decisionmaking can feel more secure in thinking there will be no consequences.

I think we have found just such a panel.

Yesterday, a Fifth Circuit panel issued a twenty-four page unpublished decision. The panel reversed a judgment by Judge Matt K, which found that Planned Parenthood was liable for $2 billion in damages. This issue was complex, and of great significance. There was every reason to publish it. But it wasn't. Judges Barksdale, Southwick, and Graves were on the panel. Though, on paper, this panel has two Republican-appointed judges, Barksdale and Southwick consistently vote with the liberal bloc on the en banc court. When I read this decision, my immediate thought was a "one and done" move  designed to shield the opinion from en banc review.

I would expect activity before the en banc court soon.

Update: Is it possible for the en banc court to vacate the panel's decision to issue an unpublished decision, and then vacate that precedential opinion. This approach would send a clear signal about "one and done" panel opinions. Even judges who agree with the panel on the merits should disfavor this evasion principle.

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[Paul Cassell] Should the Charges Against Mayor Adams Now Be Dismissed With Prejudice … Because of Prosecutorial Misconduct?

[That's the powerful argument that Mayor Adams's lawyers are making, citing (among other grounds) the leaking of a resignation letter containing "the wildly inflammatory and false accusation that Mayor Adams and his counsel had, in essence, offered a quid to the Department of Justice in exchange for the quo of dismissal."]

I've been following the Justice Department's pending motion to dismiss corruption charges against Mayor Adams, focusing on the question of whether the dismissal involves some sort of illegal quid pro quo.  The motion seeks to dismiss the charges without prejudice. Yesterday, the Mayor's skilled defense attorneys filed a new motion to dismiss the charges—with prejudice—based on alleged prosecutorial misconduct in leaking internal Justice Department correspondence critical of the dismissal. The Mayor's new motion raises important issues and highlights why, in my view, the existing motion to dismiss has become even more easily defensible.

To set the stage: On this blog, we've had a debate about the dismissal motion that I think (to some degree) tracks the national debate in New York and elsewhere about the dismissal motion. To simplify,  initially there was a wave of outrage about an alleged quid pro quo in the dismissal motion (as suggested in the resignation letter by Acting U.S. Attorney Danielle Sassoon). But faced with sworn denials from lawyers on both sides of the case, that outrage seems to have morphed into concern about whether the dismissal should be with or without prejudice.

Illustrating that transition from the debate here on this blog, VC readers will recall two initial posts by David Post asserting that there was an improper quid pro quo in the dismissal, the first one linking to a full copy of the Sassoon letter and the second one developing her allegation. Josh Blackman responded, and then David Post replied, reasserting his quid pro quo position. I then supported Josh Blackman's view by arguing that motion to dismiss was easily defensible and, in a second post, that there was no quid pro quo. David Post then rejoined with a post entitled: "No Quid Pro Quo. So?" My reading of this post (as suggested by its title) is that David has retreated to the position that whether there was, in fact, a negotiated quid pro quo is unimportant because things will implicitly shake out in way that resembles quid pro quo. I've seen similar arguments elsewhere. And another recent post (relating views of Professor Ryan Snyder) notes the debate over the quid pro quo and then proceeds on the assumption that there was a quid pro quo—without attempting to defend that characterization.

Yesterday's motion by Mayor Adams highlights an overlooked feature of the trajectory of this debate: the mere fact that government prosecutors have leaked an internal allegation of an improper "quid pro quo" has been highly and unfairly damaging to Mayor Adams. I was going to try and summarize the motion's allegations. But it seems best to begin by simply quoting from the motion's powerful introductory paragraph:

Following the Department of Justice's long-overdue decision to dismiss the case against Mayor Adams, someone within the government leaked a February 12, 2025 letter from the former interim U.S. Attorney for the Southern District of New York to the Attorney General. The leaked letter disclosed, among other things, the former interim U.S. Attorney's self-proclaimed confidence in Mayor Adams's guilt; the fact that Southern District prosecutors were planning to re-indict Mayor Adams, including on a new and equally baseless obstruction charge; and the wildly inflammatory and false accusation that Mayor Adams and his counsel had, in essence, offered a quid to the Department of Justice in exchange for the quo of dismissal. The disclosure of this letter to the press was part of an extraordinary flurry of leaked internal Justice Department correspondence that included memoranda from the Acting Deputy Attorney General to the Southern District and an unhinged resignation letter by one of the former line prosecutors on this case. In addition to violating Mayor Adams's fundamental constitutional rights and ability to receive a fair trial, the government's leaks violated numerous statutory and court rules, including the Justice Department's own longstanding policies aimed at curbing prosecutorial misconduct.

The Mayor's new motion goes on to support these allegations with detailed argumentation. I am not endorsing the motion but want to focus here on the quid pro quo issue.

The Mayor's motion discusses, first, allegations in the Sassoon letter about Mayor Adams's guilt and, second, the possibility of "restoring" the credibility of the Adams's prosecution by filing new charges against the Mayor. The motion then turns to a third point: the quid pro quo allegations in the leaked letter:

Third, and perhaps most troublingly, the February 12 [Sassoon] letter contained defamatory accusations that Mayor Adams and his counsel had offered the Justice Department an illicit bargain to drop the charges against him. The former interim U.S. Attorney claimed to have attended a meeting where Mayor Adams's attorneys "repeatedly urged what amounted to a quid pro quo, indicating that Adams would be in a position to assist with the Department's enforcement priorities only if the indictment were dismissed." Id. at 3 n.1. She dubbed Mayor Adams's efforts to comply with federal initiatives "an improper offer of immigration enforcement assistance in exchange for a dismissal of his case." Id. at 3.

Notwithstanding there was no quid pro quo, see ECF No. 130, news outlets across the country zeroed in on that inflammatory rhetoric, and the February 12 letter has dominated front-page news ever since. Its contents have led to a litany of public condemnations of Mayor Adams and calls for his resignation. Mayor Adams's political opponents have capitalized on the letter's false allegations, using it to promote their own campaigns. The New York Times reported that the leak of a planned new indictment "drop[ped] a bit of a bomb here, at least to anyone outside the Justice Department." And the carnival continued on February 19, as protestors heckled Mayor Adams outside the courthouse when he arrived for his hearing.

The motion points out what seem indisputable: The leaking of the Sassoon letter must have been done by a Justice Department prosecutor. After all, the letter was internal Justice Department correspondence between Ms. Sassoon and the Attorney General. And its seems an almost indisputable follow-on inference, as alleged in the motion, that "[o]nly the government actors who wish to see Mayor Adams prosecuted have benefitted from the leak, and only those same bad actors would have had access to the leaked material."

The motion further points out the letter's leak has caused enormous damage to the Mayor, such as the resignation of four deputy mayors and other political fallout.  The motion then explains why the quid pro allegations in the letter were particularly damaging:

All this was caused by the government's decision to leak the February 12 letter and its falsehoods. As reported by The New York Times, "in this extraordinary letter to the attorney general, [the former interim U.S. Attorney] says, I was sitting in the room when the mayor's lawyers and the Justice Department were working out this deal. And basically, the mayor was offering assistance for something in exchange for these charges being dropped." To be clear: Mayor Adams and the Justice Department never made or even discussed any deal. See ECF No. 130. Indeed, it is a ludicrous notion that the Mayor's lawyers walked into the Department of Justice and proceeded to try to "bribe" the highest ranking officials in the Department to drop a bribery case, all right in front of the Southern District prosecutors who were pursuing the case. But the letter's disregard for the truth only fueled the fire that an illicit quid pro quo had occurred—all to Mayor Adams's severe detriment. As The New York Times put it: "New York City leaders] are reading these letters coming out from the Justice Department. And their conclusion is that [Mayor Adams is] no longer the mayor of New York City's 8 million residents. [Mayor Adams] appear[s] to be the mayor of Donald Trump's agenda, or at least his immigration agenda."

One technical point that has been lost in much of the discussion is that Ms. Sassoon hedged to some degree and did not allege a direct, negotiated quid pro quo. Instead, she wrote that, in her view, she had attended a meeting where "Adams's attorneys repeatedly urged what amounted to a quid pro quo, indicating that Adams would be in a position to assist with the Department's enforcement priorities only if the indictment were dismissed." Sassoon Ltr. at 3 n.1 (emphasis added). She then argued that this trade was improper—indeed, improper to such a degree that she needed to resign.

As I explained in my first post, in my view it was easily defensible for the Department to conclude (as seems quite plausible) that forcing the Mayor to sit through a four-to-six week trial would impair Department's enforcement priorities, justifying the dismissal motion. But regardless of how one views that question, I tend to agree with the Mayor's lawyers that an internal Department discussion has now undoubtedly become highly charged "inflammatory rhetoric" through being deliberately and improperly leaked to the public.

Against this backdrop, the Mayor's motion asks District Court Judge Ho to dismiss the charges with prejudice. I think it is a close question whether a judicial dismissal is appropriate in light of the fact that Justice Department prosecutors have, from all the evidence, deliberately leaked a letter that caused enormous political damage to Mayor Adams. Andy McCarthy has this interesting analysis (behind a National Review paywall), concluding that, given the demanding standard for dismissing a case, the Mayor's dismissal motion is so weak that it "borders on the frivolous." I'm not so sure. In many cases involving prejudicial leaks, it is impossible to determine who is responsible. Indeed, in this very case, previous defense motions based on other pre-trial leaks were rejected by the district judge on grounds that they did not necessarily come from the government. But, from all appearances, this latest round of massive adverse publicity could only have been the responsibility of a line, Justice Department prosecutor who wanted the Mayor prosecuted. While the prosecutors were entitled to argue for continuing the case internally, leaking that view constituted politically motivated wrongdoing designed to harm (among others) the Mayor. An appropriate response to that deliberate, Government-caused harm could well be ending the Government's prosecution once and for all.

But regardless of whether the district judge grants the Mayor's new motion to dismiss with prejudice, that motion makes a compelling case that the prosecutors' misconduct, at a minimum, requires swiftly granting the pending motion to dismiss without prejudice. I've already reviewed the deferential standards applicable to judicial review of a motion to dismiss. My conclusion was that the district court would almost certainly need to approve the dismissal motion. The Mayor's new motion only strengthen the need for a quick dismissal.

The Mayor's motion states that he is not "seeking any delay in the Court's resolution of the government's pending motion to dismiss without prejudice." And with good reason.  The Mayor, no doubt, wants the charges dismissed as quickly as possible, so that he can focus on running the City and running for reelection. If the district judge were to deny the pending motion to dismiss without prejudice, the net result would be further delay in the case—while the Justice Department would have to decide whether to proceed with the prosecution or to move to dismiss with prejudice. The rule allowing dismissals (Federal Rule of Criminal Procedure 48) is designed, at least in part, to protect defendants' interests. See, e.g., Rinaldi v. United States, 434 U.S. 22 (1977) (per curiam). Denial of the pending motion to dismiss would, on these facts, convert it into an engine for harming the defendant.

And the motion to dismiss with prejudice poses complications for the new leaders of the Justice Department, who are now charged with defending the indefensible leaks of at least one line prosecutor. Judge Ho has called for a response from the Justice Department by March 7 and a reply from the Mayor by March 11, all with an eye to a scheduled court hearing on March 14. One option open to the Justice Department would be to simply agree to the new motion to dismiss with prejudice, which would avoid the need for the new Administration to attempt to justify the damage that the leakers have done. If that is what the Department decides (and I don't have a fully developed view on what it should say), the leakers who were apparently seeking to keep their corruption prosecution alive will have only succeeded in destroying it.

My standard disclaimers apply here, as included in earlier posts. In particular, I am not opining here on general immigration issues or the pros and cons of continuing the underlying corruption prosecution of Mayor Adams.

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[Eugene Volokh] Protesters Disrupt Stanford Class

Stanford reports:

On Tuesday afternoon, Feb. 25, several individuals disrupted the Democracy and Disagreement course in Cemex Auditorium to protest a guest speaker, former Secretary of the Treasury Larry Summers, who was there to debate with the economist Emmanuel Saez on the idea of a wealth tax.

The protestors were not Stanford students.

This behavior violates university policy and will not be tolerated. The Department of Public Safety collected information from the disruptors and is referring the information to the Santa Clara County District Attorney's Office. We are taking steps to ban these individuals from our campus, which is private property. We extend the university's apologies both to the speakers and to the students who were in attendance.

The expression of divergent views is welcome and expected in our community, and our policies provide ample opportunities for protest. But the classroom is at the center of the university's educational mission. Disruption in the classroom setting is a fundamental disruption of the university's operations and of the enrolled students' opportunity to learn. Indeed, the Stanford students in the class on Tuesday afternoon vocally demanded that the demonstration stop so that the students could hear the speakers. The Democracy and Disagreement class has successfully hosted eighteen sessions of respectful debate on controversial topics in the last year, and we are encouraged by the fact that a few hundred audience members were present to actually hear the debate and promote the values of civil discourse.

For more on the Democracy and Disagreement course, which I think is generally excellent and admirably balanced, see here. Of course, no class should be disrupted, even if it isn't excellent or balanced, but it's particularly regrettable when a class such as this is targeted.

You can see more coverage of the disruption at the Stanford Review (Dylan Rem).

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