Eugene Volokh's Blog, page 162

[Paul Cassell] The Battle over Judge Newman's Unconstitutional "Stealth Impeachment" Continues

[Judge Newman files a powerful reply to the unprecedented claim of the Federal Circuit's Judicial Council that she can be suspended from her duties indefinitely. And the Judicial Council's recent hiring of adversarial experts raises new questions about bias against Judge Newman. ]

I've previously blogged about the "stealth impeachment" of Judge Pauline Newman of the Federal Circuit. This post reviews Judge Newman's recently filed reply brief and the Federal Circuit's recent hiring of adversarial experts against Judge Newman. The whole process continues to raise troubling constitutional questions.

Some quick background: Judge Newman has been "temporarily" suspended by the Federal Circuit's Judicial Council due to her alleged failure to cooperate with a Special Committee of the Circuit. The Committee was investigating Judge Newman's alleged declining mental capacities. Judge Newman has sought federal judicial review of whether her indefinite suspension violates her constitutional rights. But a judge on the D.C. District Court dismissed many of her claims as not subject to judicial review and rejected her facial constitutional challenges to the Judicial Conduct and Disability Act. She has appealed to the D.C. Circuit.

In December, I joined former judges Susan Braden, Janice Rogers Brown, Paul Michel, Randall Rader, and Thomas Vanaskie in an amicus brief (written by experienced appellate lawyer Richard Samp) urging the D.C. Circuit to direct that Judge Newman's claims be reviewed on their merits.  And now, just last week, Judge Newman herself weighed in with a powerful reply to the Judicial Council's position that it can simply suspend her from her judicial duties under the Judicial Conduct and Disability Act, at least so long as she continues to draw her salary.  Here is Judge Newman's response (some citations omitted):

Article III does require that duly-appointed judges exercise "judicial power," which is "the power to make authoritative and final judgments in individual cases." William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1815 (2008).

[The Judicial Council's] argument that a judge "subject to a temporary suspension who still holds her commission and is still entitled to draw her salary has not been dismissed from her office" must fail. First, entitlement to salary is a guarantee that is separate and apart from the guarantee that office will be held "during good Behaviour." Nat'l Comm'n on Judicial Discipline and Removal, Report, 152 F.R.D. 265, 287 (1993). Second, there is nothing "temporary" about Judge Newman's suspension. This is recognized even by neutral commentators. See Dennis Crouch, Is Google Simply Asking for More Efficient Infringement?, Patently-O (Jan.29, 2025), https://tinyurl.com/5bushudm ("I put 'temp' in scare quotes because it appears that [Judge Newman's] suspension is—in fact—permanent."). And third, having a framed commission on the wall while being unable to exercise any powers granted by that very commission, is meaningless. Judge Newman's commission, like commissions of Defendants-Appellees and of every judge of this Court, "empower[s] her to execute and fulfil the duties of [her] Office … and to Hold the said Office with all the powers … to the same of right appertaining …." Judge Newman's suspension from her judicial office deprived her of the effects of the very commission upon which Defendants-Appellees rely as evidence that she continues to hold office. While it is true that as a literal matter Judge Newman's seat on the Court is not vacant, the Constitution "deals with substance, not shadows." Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1867). A functional removal runs afoul of Article III's protections no less than a formal removal would. Ergo, any act of Congress other than impeachment and removal that divests a judge of "the power to make authoritative and final judgments" violates Article III's guarantee that judges "shall hold their Offices during good Behaviour." U.S. Const. art. III, § 1. Such a divestment is a removal from office (whether permanently or temporarily) in all effects.

You can read Judge Newman's entire brief here.

Judge Newman's on-going suspension has the potential to interfere with many other cases. For example, with Judge Newman suspended, it would seem that en banc proceedings in the Federal Circuit could be improperly constituted—and later en banc decisions could be invalidated—because Judge Newman has been barred from participating. The New Civil Liberties Alliance (which is representing Judge Newman in the suspension proceedings) recently made this point in an amicus brief in an important en banc case currently before the Federal Circuit. En banc proceedings must be conducted before all judges in "regular active service." And yet Judge Newman is not being allowed to participate.

H/T to my co-blogger, Josh Blackman, for coming up with a pithy phrase that captures exactly what is happening here: "stealth impeachment." Of course, the Constitution does not permit stealth impeachment. That should be the end of the matter.

BTW: If you want to see the (supposedly mentally disabled) Judge Newman speaking just a few months ago, you can watch her cogently defending her legacy—and her right to serve—in a 49-minute video here. Frankly, she seems to be on the ball and "with it." Watching the video prompts one to wonder if her suspension has anything to do with the fact that she has long been a powerful critic of the judicial opinions of other members of the Federal Circuit?

Speaking of other members of the Federal Circuit, one curious thing about the Judge Newman's suspension is that it appears to have been orchestrated by the Chief Judge of the Federal Circuit, and then agreed to by other members of the Circuit. It is not unusual for issues of judicial conduct to be resolved by referrals to judges in a different Circuit from the one involved, who would have a more detached point of view. Josh Blackman made this point powerfully when the suspension proceedings started, explaining that the decision not to refer the issues to a different circuit

is especially problematic due to the nature of the allegations. Here, we are not dealing with a misconduct complaint from a litigant, or private citizen, who objects to something the judge did on bench, or in public. Rather, the allegations here concern actions that Judge Newman has taken during the opinion writing process. Other than the final date on which an opinion is actually published, the public has no knowledge about how the sausage is made. We do not know when drafts were circulated. We do not know how long judges took to make and revise edits. And we do not know whether complicated legal issues made the process take longer. The only people who have this evidence would be the fellow judges of the circuit, including [the Chief Judge], and court staff. Yet, [the Chief Judge] purports to decide whether there was misconduct. She is the fact-witness, the fact-finder, and the adjudicator. There is an apparent conflict of interest.

In its brief, the Judicial Council responds that it has given Judge Newman due process and that this is not a case that would be better handled by judges outside the Federal Circuit. But Josh's point about an apparent conflict of interest seems even more salient given recent events in the case, namely the Federal Circuit's hiring of adversarial experts against Judge Newman.

While Judge Newman's appeal remains pending before the D.C. Circuit on the jurisdictional and constitutional issues discussed above, just last Friday three new documents appeared on the Federal Circuit's website, under the heading "Release of Materials in Judicial Investigation."  The documents are three expert reports, by three highly credentialed doctors. All three of the reports were finalized in the last several weeks and focus on rebutting medical reports that Judge Newman had submitted to the Judicial Council. The Judicial Council, of course, is supposed to be a neutral evaluator of allegations of disability. But these three expert reports bear all the hallmarks of adversary litigation—the proverbial "hired gun" problem.

So far as I can tell, none of the three reports discloses who exactly asked for the report. So far as I can tell, none of the three reports reveals the process by which the expert came to be selected, including whether the experts' opinions were vetted in advance. And so far as I can tell, while the experts were compensated at rates of between $400 to $650/hour, none of the reports explains exactly who is covering the substantial costs, which must amount to tens of thousands of dollars.

I assume that the three reports were solicited by lawyers working for the Judicial Council and that the taxpayers will ultimately foot the bill. But I have to wonder why money is being spent to hire experts on the merits of the case at this time, when the Judicial Council's position is that Judge Newman has been suspended only for alleged "lack of cooperation" with the process. The Council has argued to the D.C. Circuit that only a "narrow question" is before it, i.e., whether Judge Newman "committed misconduct in refusing to comply with Judicial Council orders absent good cause." (Judicial Council Br. at 29-30.) And the Council has further argued that the "relevant judicial council orders could not be clearer that [Judge Newman] has been only temporarily suspended from new case assignments, subject to reconsideration if she ceases refusing to comply with the Special Committee's investigation. The keys to the suspension are in her pocket." (Council Br. at 28.)

If the keys truly are in Judge Newman's pocket, one wonders why the Judicial Council seems to be providing the prison guards with additional ammunition to keep her off the job. In hiring adversarial experts challenging Judge Newman's reports, the Council has added fuel to the fire that it is biased against her.

There were ways the Council could have proceeded more fairly.  As an illustration, the Federal Rules of Evidence provide two ways in which experts in a case can be secured: an adversarial selection process by a party in the case (Fed. R. Evid. 706(e)), or, alternatively, a court selection process with input from the parties (Fed. R. Evid. 706(a)). If the neutral court-selection process is used, the court typically will ask the parties to submit nominations and there are additional procedural safeguards involved (such as a right to depose the expert). But rather than proceed even-handedly, the Judicial Council has apparently determined to proceed in an  adversarial way as a party aligned against Judge Newman, apparently determined to do whatever it takes to defeat her claim that she is entitled to serve.

So how will the arguments about all this ultimately unfold before the D.C. Circuit? Well, of course, that depends on what the attorneys argue to the D.C. Circuit. One interesting fact is that the Judicial Council is currently represented by the Civil Division of the U.S. Department of Justice. (See Council Br. at cover page.) Of course, in many routine cases, the Justice Department will provide legal representation for the Judicial Branch—at least when its positions are meritorious. But given the serious constitutional and other issues involved, this may be a case where the Justice Department's new leadership may wish to more carefully review the case and decide if the Council's litigating position is consistent with the current Administration's understanding of the Constitution.

In any event, the final decision on these constitutional issues will be made by the D.C. Circuit and, perhaps, the Supreme Court. The more I learn about Judge Newman's "temporary" suspension, the more concerned I become. Allowing a judge to be suspended indefinitely by her colleagues is a dangerous precedent that could be used for partisan maneuvering. I hope the D.C. Circuit will quickly put an end to the unconstitutional decommissioning of Judge Newman.

The post The Battle over Judge Newman's Unconstitutional "Stealth Impeachment" Continues appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: February 19, 1942

2/19/1942: President Roosevelt issues Executive Order 9066. The Supreme Court would consider the constitutionality of this Executive Order in Korematsu v. U.S. (1944).

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[Steven Calabresi] President Trump's Executive Order on Birthright Citizenship is Unconstitutional

[Trump is doing many great things but trying to get rid of birthright citizenship is not one of them]

Section 1 of the 14th Amendment says that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Trump's defenders argue that children born of illegal immigrants in the United States have never entered into a social compact that makes them citizens of the United States protected by U.S. law.

Samarth Desai, a second year law student at Yale Law School, has a devastating response to this claim, which was recently argued for by Georgetown Law Professor Randy Barnett and University of Minnesota Law Professor Ilan Wurman in an op-ed in the New York Times. Desai's article, with which I totally agree, appears below.

Birthright Citizenship: A Test Case

Samarth Desai

President Trump's birthright-citizenship executive order is illegal and unconstitutional, and no "allegiance-for-protection theory" can save it.

No one doubts that children born on American soil to unauthorized migrants were "born … in the United States." So if these children are not birthright citizens, it must be because they were not "born … subject to the jurisdiction" of the United States despite being born under the American flag.

Two prominent scholars claim, in the New York Times and elsewhere, that the children of unauthorized migrants were not born "subject to the jurisdiction" of the United States because their parents disobeyed the laws by entering illegally. According to these scholars, (1) jurisdiction depends on obedience (as a condition of a theoretical social compact), and (2) the disobedience of a parent can be imputed to a child. Unauthorized migrants "gave no obedience or allegiance to the country when they entered," these scholars say. "[T]hey and their children are therefore not under the protection or 'subject to the jurisdiction' of the nation."

This allegiance-as-obedience theory has an obvious and simple test case: Confederate rebels and their children.

If Professors Barnett and Wurman are right, then Confederate rebels and their children would also not have been "subject to the jurisdiction" of the United States, and it would have been perfectly constitutional to deny or revoke their birthright citizenship. Confederate rebels were, after all, paradigmatically disobedient. In the words of the Prize Cases (1863), they had "declared their independence," "cast off their allegiance," "organized armies," and "commenced hostilities" against the United States. True, Confederate rebels, unlike unauthorized migrants, were at one point citizens, but this distinction is irrelevant if jurisdiction requires the existence of a social compact conditioned on obedience to the laws.

The Barnett-Wurman theory fails this easy test case. In 1867, the Fourteenth Amendment's framers—John Bingham among them—were emphatic that Confederate rebels remained "allegiant" and therefore "subject to the jurisdiction" of the United States despite having flagrantly and treasonously disobeyed the laws. In doing so, they expressly repudiated the allegiance-as-obedience theory; obedience was a duty of citizenship, not a condition. And whatever the sins of the fathers, absolutely no one (as far as I can tell) suggested that the children of Confederate rebels could be stripped of their birthright citizenship because of what their parents had done.

Confederate Rebels

The impetus for this key 1867 episode, almost entirely ignored until now, was an effort to suspend the citizenship of a wide swath of former Confederate rebels. Language proposed by Thaddeus Stevens provided

[t]hat all persons who, on [March 4, 1861], were of full age, and who at any time held office, either civil or military, under the government called the "Confederate States of America," or who swore allegiance to said government, are hereby declared to have forfeited their citizenship and to have renounced allegiance to the United States ….

Ohio's John Bingham declared the bill containing this provision "a clear, palpable departure from the intent and letter of your constitutional amendment"—that is, the Fourteenth Amendment, which Congress had proposed to the states just six months earlier and of which Bingham had been one of the principal authors. "[T]he Congress of the United States has no color of authority for providing by law," he explained, "that a million persons, natural-born male citizens of this Republic and resident therein, are no longer citizens of the United States."

But what about jurisdiction, allegiance, and obedience? Tennessee's Horace Maynard asked just that: "I would ask the gentleman if he recognizes the right of citizens of this Government to throw off their allegiance?" "Not at all, while they remain within its jurisdiction," Bingham replied. "[T]heir treason and revolt does not make them a foreign nationality, nor put them or the States in which they reside beyond the jurisdiction of the United States, nor absolve them from their allegiance to this Government, nor make the faithful, law-abiding citizens of their States alien enemies and traitors."

Contrary to Professors Barnett and Wurman, it did not matter that Confederate rebels had disobeyed the laws, that they had engaged in "treason and revolt." They were still subject to "the jurisdiction of the United States." Their acts did not "absolve them from their allegiance to this Government." Nor could the rebels' acts be imputed to "the faithful, law-abiding citizens of their States." All born on American soil and under the American flag were "natural-born … citizens." End of story.

Illinois's Jehu Baker echoed Bingham. Twice quoting the words of the Citizenship Clause, Baker insisted that "the terms of that amendment cover those persons who have engaged in armed revolt against the United States." Confederate rebels "were born in the United States; they are subject to the jurisdiction of the United States; and it results by force of the first article of the proposed amendment that they are citizens of the United States." Like Bingham, Baker denied that disobedience of the laws rendered a citizen nonallegiant: "[T]hey have not by their act of rebellion absolved themselves from allegiance to the supreme sovereignty of the Republic."

There's more:

If the Fourteenth Amendment were already to have been ratified, "this bill would be in plain and direct violation of that amendment itself," Kentucky's Lawrence Trimble avowed, "because that amendment declares that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.'" "I contend, Mr. Speaker, that no rebellious act on the part of the rebels could dissolve their allegiance to the Government of the United States," Pennsylvania's George Miller maintained, "and consequently they are amenable to its laws." "How, then, can Congress make aliens of native-born citizens?" Kentucky's Andrew Ward asked in disbelief. "[I]f their citizens are not citizens of the United States I would be obliged to the author of this bill if he will tell me of what country they are citizens?" (Bingham would ask the same question later that year: "If a man is not a citizen of the country in which he was born, in God's name of what country is he a citizen?")

To be sure, some members of Congress did subscribe to the allegiance-as-obedience theory. In words that Professors Barnett and Wurman could have written, Indiana's George Julian argued: "The citizen's duty of allegiance and the nation's obligation of protection are reciprocal. The one is the price of the other, and the compact is alike binding upon both parties. When the rebels broke this compact by attempting the crime of national murder their right of citizenship was forfeited, and the nation has the undoubted right to declare the consequences of that forfeiture by law." Ohio's Samuel Shellabarger similarly called attention to the "contract" citizens make with their nations.

The problem is that this minority view—the view that disobedience precluded allegiance and therefore jurisdiction—lost in the fair and open field of debate. After almost two weeks of discussion, Bingham once more reminded his colleagues that the bill "recede[d] from the principles of the pending constitutional amendment." A majority that included Bingham then voted to kill the bill containing the problematic provision. That provision would never again see the light of day, and no similar language claiming that Confederate rebels had "forfeited their citizenship" and "renounced allegiance to the United States" would appear in any of the Reconstruction Acts. The provision had been widely reprinted in newspapers across the land, as had some of the speeches opposing it on constitutional grounds. Informed ratifiers would thus have been well aware of the provision's death and the debates leading up to it.

Children

All that debate was about the parents—to say nothing about the children. Throughout the entire episode, not even the provision's defenders ever seem to have broached the possibility of denying birthright citizenship to children who had been born to Confederate rebels during the war.

This should not surprise us. Imputing the acts of parents to their children and denying them citizenship on that basis would have "work[ed] Corruption of Blood" in violation of the spirit of Art. III, sec. 3, cl. 2, and debased the core birth-equality principles of the then-pending Fourteenth Amendment. It also would have transgressed basic principles of humanity—Lincolnian humanity—of "malice toward none" and "charity for all," none more than the "orphan." That March, Bingham backed a joint resolution providing for relief to destitute Southerners. His words are instructive:

The unoffending little children are not enemies of your country or of mine; the crime of treason is not upon their souls. Surely, surely they are not to be denied your care…. "Little children at least are innocent, for God wills it so." … Do not, then, I pray you, ask that this Government shall degrade itself in the presence of the civilized world by refusing supplies to its own citizens who are famishing for bread ….

Professors Barnett and Wurman's argument has other problems, too:

It treats the Trump executive order's denial of birthright citizenship to the children of "lawful but temporary" migrants—migrants invited to America, like students on student visas and workers on temporary-worker visas—as "a more complicated question not addressed here." But that part of the order is clearly illegal even on Professor Barnett and Wurman's own terms, since lawful migrants entered the United States in obedience to its laws. It confuses the sufficient with the necessary in treating the citizenship "status of children born to citizens residing within enemy-occupied territory" as supposedly "anomal[ous]" under the dominant view of birthright citizenship. The Citizenship Clause defines what is sufficient for American citizenship, not what is necessary. Nothing prevents grants of citizenship above and beyond constitutional birthright citizenship. (That is why Ted Cruz could run for president in 2016.) Similarly, it mistakenly treats as supposedly anomalous the noncitizenship "status of children born to foreigners on foreign public vessels in U.S. waters." Foreign public vessels flew foreign flags, not American flags, which is why "foreign public ships" was one of the four exceptions listed in Wong Kim Ark (1898). Speaking of Wong Kim Ark, it reads that case too narrowly. The language of Wong Kim Ark is utterly clear: children born on American soil and under the American flag are birthright citizens "with the exceptions or qualifications (as old as the rule itself) of [1] children of foreign sovereigns or their ministers, [2] or born on foreign public ships, [3] or of enemies within and during a hostile occupation of part of our territory, and [4] with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes." Yes, Wong Kim Ark's facts involved parents with a "permanent domicile and residence in the United States," but the decision never suggested that its reasoning was in any way limited to the children of such parents. (Wong Kim Ark, which glossed the Citizenship Clause, in turn served as the backdrop for two congressional immigration statutes enacted in 1940 and 1952.) It does not sufficiently explain the birthright-citizenship status of the children of antebellum slaves illegally smuggled into the United States in violation of laws banning the transatlantic slave trade, slaves who had not entered into a social compact with the United States either at the time of their birth or at the time of their coerced migration.

But most of all, the allegiance-as-obedience theory collides with the considered judgment of John Bingham and other framers, publicly articulated in 1867 in the very moment that the states were ratifying the Fourteenth Amendment. If Confederate rebels who took up arms against the United States nevertheless owed it allegiance and were subject to its jurisdiction, then of course unauthorized migrants, lawbreakers though they were, are subject to U.S. jurisdiction on U.S. land. And if even Confederate rebels could not constitutionally be stripped of their birthright citizenship, then the legal case for denying birthright citizenship to legally innocent children born on American soil and under the American flag is feeble indeed.

More precisely, they voted to refer the bill to committee. But as Stevens complained, and as all understood, "the reference of the bill to that committee is the death of the measure."

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[Paul Cassell] There Was No Quid Pro Quo in the Mayor Adams Case. Period.

[So say Mayor Adams's distinguished defense attorneys in a letter to the district court filed earlier today. And they offer to say so under oath. ]

I blogged this morning about the Justice Department's motion to dismiss the pending federal charges against Mayor Adams. In my post, I criticized those who argued that there was a "quid pro quo" for the dismissal motion. See, e.g., this VC post by David Post. I explained that the Department's motion to dismiss did not provide any conditions on the dismissal. And I argued that there was no proof of a quid pro quo, and any such deal seemed unlikely.

In breaking news, powerful new support for my conclusion was just filed today on the docket of the criminal case. In a letter to Judge Ho, Mayor Adams's well-regarded criminal defense attorneys—Alex Spiro and William A. Burck of the well-regarded national law firm, Quinn Emanuel—have denied any quid pro quo directly. Discussing the January 31, 2025, presentation made by the defense, they state unequivocally:

At no time prior to, during, or after the meeting did we, Mayor Adams, or anyone else acting on behalf of Mayor Adams offer anything to the Department, or anyone else, in exchange for dismissal of the case. Nor did the Department, or anyone else, ever ask anything of us or the Mayor in exchange for dismissing the case. There was no quid pro quo. Period.  

(Emphasis added.)

As recounted in their letter, the defense attorneys explained that Acting Deputy Attorney General Bove invited them to a meeting, where he asked the defense attorneys how the case might be affecting Mayor Adams's ability to do his job and whether there was any evidence of politicization. At the meeting, the defense attorneys explained that "the indictment and upcoming trial were impeding Mayor Adams in myriad ways, including as to enforcement of federal immigration laws, and that Damian Williams's post-SDNY conduct raised serious concerns about his motives in authorizing the prosecution." They were asked to memorialize their position, which they did in a letter. (Found here as Exhibit A.)

In their letter today, the defense attorneys further explain that they heard nothing more until they learned from the press a few days ago that the Justice Department had decided to dismiss the case:

We heard nothing further until February 10, 2025, when we learned from the press that the Department had decided to dismiss the case. We had no heads up or prior notice. We never coordinated with the Department or anyone else. We never offered anything to the Department, or anyone else, for the dismissal. And neither the Department, nor anyone else, ever asked anything of us for the dismissal. We told the Department that ending the case would lift a legal and practical burden that impeded Mayor Adams in his official duties. And that it was the just thing to do because the case was exceptionally weak on the merits and very likely had been championed by Mr.  Williams for what appeared to be self-interested reasons. We believe we were right and stand by what we said. What we never said or suggested to anyone was that Mayor Adams would do X in exchange for Y, and no one said or suggested to us that they would do Y in exchange for X.

The distinguished defense attorneys offers to confirm all these points "under oath in sworn declarations."

This new statement should put to rest any argument that there was a negotiated quid pro quo between the Justice Department and Mayor Adams. I have not seen any reason to doubt what the distinguished defense attorneys say. To be sure, as noted in my earlier post, one can still legitimately debate whether the dismissal motion was appropriate. But the argument that the dismissal motion is inappropriate because a quid pro quo was negotiated has effectively collapsed. Period.

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[Eugene Volokh] Court Declines to Block Federal Government's New "Government-Wide Email System"

[The employees who claimed adoption of the system violated the E-Government Act of 2002 lacked standing to bring the challenge, a federal judge concluded.]

From yesterday's decision by Judge Randolph Moss (D.D.C.) in Doe v. Office of Personnel Mgmt.:

In late January 2025, the Office of Personnel Management ("OPM") began to test "'a new capability allowing it to send important communications to ALL civilian federal employees from a single email address,'" and OPM subsequently began using this new system to send messages "to most if not all individuals with Government email addresses." That new system uses the email address HR@opm.gov and is known as the "Government-Wide Email System" or "GWES." This putative class action challenges the process by which OPM implemented this new system.

Plaintiffs are two federal executive branch employees and five other individuals who have ".gov" email addresses but are not executive branch employees. They contend that in the rush to adopt this new system, OPM at first entirely failed to comply with Section 208 of the E-Government Act of 2002, which requires the preparation of a Privacy Impact Assessment ("PIA") before "initiating a new collection of [certain] information … using information technology," and, then, when confronted with that omission, immediately threw together an inaccurate, insufficient, and unconsidered PIA in the hope of mooting the case. According to Plaintiffs, OPM's failure to prepare a meaningful Privacy Impact Assessment has left vast amounts of private information, including the government email addresses of millions of individuals (which reveal their names and, at least in some cases, their employers) at risk of disclosure in the event that the GWES is hacked.

OPM, for its part, contends that it was not required to prepare a PIA because, on OPM's reading, Section 208 does not apply to the collection of information about government employees, as opposed to about members of the public. And, even if that contention is wrong—either because it has misread the statute or because OPM inadvertently collected email addresses from individuals who do not work for the federal government but nonetheless use .gov or .mil email addresses—OPM, in any event, has now prepared a PIA. That is all that is required, on OPM's telling, and the Court lacks the authority to examine the "substance and accuracy" of the PIA that the agency prepared….

Pending before the Court is Plaintiffs' motion for a temporary restraining order ("TRO"), which asks the Court to enjoin OPM "from continuing to operate the Government-Wide Email System or any computer system connected to it prior to the completion and public release of a required legally sufficient Privacy Impact Assessment." But Plaintiffs have failed to carry their burden of demonstrating (1) that they likely have standing to bring this action, and (2) that they are likely to suffer irreparable injury in the absence of emergency relief….

The court held that plaintiffs lacked standing to challenge the government's actions:

[OPM argues Plaintiffs] have failed to identify an "injury in fact" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." It bears emphasis, moreover, that a plaintiff cannot establish standing by merely asserting that the government has failed to follow a required procedure (say, for example, failing to conduct a PIA), since "bare procedural violation[s], divorced from any concrete harm" do not "satisfy the injury-in-fact requirement of Article III." Spokeo, Inc. v. Robins (2016).

As the Supreme Court has explained, not every statutory violation results in the type of concrete injury-in-fact sufficient to support Article III standing. TransUnion LLC v. Ramirez (2021). Rather, "Article III standing requires a concrete injury even in the context of a statutory violation." The question, then, is "[w]hat makes a harm concrete for purposes of Article III?" To answer that question in a case like this one, which does not involve an alleged constitutional violation, Plaintiffs must "identif[y] a close historical or common-law analogue for their asserted injur[ies]." In TransUnion, for example, a credit reporting agency had erroneously placed Office of Foreign Assets Control or "OFAC" alerts in the plaintiffs' credit reports, "labeling them as potential terrorists." The Supreme Court assumed that the credit reporting agency "violated its obligations under the Fair Credit Reporting Act" to maintain accurate information about consumers. But the Court held that plaintiffs whose information had not been communicated to third parties lacked standing to bring that claim. The Court explained that an uncommunicated erroneous OFAC alert was not a "concrete injury" because "there is no historical or common-law analog" to this type of harm. Instead, "the plaintiffs' harm [wa]s roughly the same, legally speaking, as if someone wrote a defamatory letter and then stored it in her desk drawer." Thus, "the mere existence" of an incorrect OFAC alert in a consumer's credit file—even if a violation of federal law—was "insufficient to confer Article III standing."

Here, neither of the injuries that Plaintiffs have identified at this stage of proceeding are sufficient to confer Article III standing. Plaintiffs' first alleged injury—the mere fact that their .gov email addresses are being stored on an allegedly unsecured system—cannot survive TransUnion. Even assuming that Plaintiffs' .gov email addresses are being held on an unsecured system, that alleged injury is no more concrete or actual than the alleged injury of those members of the TransUnion class who complained about uncommunicated erroneous OFAC alerts. Moreover, rather than identify any common-law analogues, as TransUnion requires, Plaintiffs instead resort to a policy argument unmoored to Article III. They contend that, if standing is unavailable here,

the only way that any court could ever enjoin any agency from operating an insecure system to prevent it from being hacked would be if it had already been hacked, at which point an injunction would be pointless.

But it is not the job of the federal courts to police the security of the information systems in the executive branch, just as it is not the job of the federal courts to police the internal notations on consumers' credit reports.

{Plaintiffs also conjure a hypothetical, asking the Court to

imagine a scenario in which an agency posted a list of its employees' social security numbers on its website and then argued that no court could make it take the list down until someone's identity was stolen.

But that hypothetical hurts Plaintiffs' argument more than it helps. This case is very different from a case in which the loss of sensitive personal information is a near certainty. Just as TransUnion drew a distinction between those individuals whose erroneous credit reports were shared with third parties and those whose erroneous reports were not, so too is a case where personally identifying information has been published different from one where the harm is a yet-unrealized risk of disclosure.}

Plaintiffs' second theory of standing, which posits that the OPM computers that are connected to the GWES are vulnerable to hacking, fares no better. Although an actual hacking incident or an imminent hack might suffice, Article III requires more than a possibility of future harm—a "theory of future injury" must be "certainly impending" and non-speculative. Clapper v. Amnesty Intern. USA (2013) (internal quotation marks omitted). Here, at least on the present record, Plaintiffs have failed to carry their burden of demonstrating that their .gov email addresses (which reveal their names and, possibly, their places of employment) are at imminent risk of exposure outside the United States government—much less that this risk is a result of OPM's failure to conduct an adequate PIA. Rather, their arguments "rel[y] on a highly attenuated chain of possibilities."

Plaintiffs premise much of their argument on an earlier hack of OPM databases containing sensitive information about millions of government employees, which occurred almost a decade ago. But past is not always prologue, particularly when it comes to Article III. Where, as here, a plaintiff seeks prospective, injunctive relief, the plaintiff must demonstrate that she is "likely to suffer future injury from the" alleged unlawful conduct, and a past violation will not suffice absent reason to believe it will occur again in the future. Here, that means that Plaintiffs must do more than point to a decade-old failure to protect sensitive data; they must show that OPM computer systems that are connected to the GWES are at imminent risk of cyberattack and that this risk would be mitigated were the agency required to conduct a new and improved PIA.

As evidence that a hack is supposedly imminent, Plaintiffs point to a podcast on which an anonymous "systems security expert" discusses potential vulnerabilities related to the GWES. {According to a blurb accompanying the podcast, Plaintiffs' counsel was the person who introduced the podcast host to the "system security expert" who the host interviewed. Plaintiffs' counsel has indicated that this expert is prepared to testify in this matter. Subject to the governing rules, Plaintiffs are welcome to proffer whatever evidence they deem appropriate at a later stage of the proceeding. For present purposes, however, the Court can consider only the evidence that is before it.}

Although that podcast raises questions about the process by which the GWES servers were set up, it does not provide any specific information that would permit the Court to conclude that the servers housing .gov email addresses collected for purposes of the GWES are at imminent risk due to likely cyberattack. To the contrary, the anonymous expert mostly addresses a past vulnerability that has since been rectified. He explains that, when the GWES was first set up, hundreds of "host names" that "appeared" to be linked to "internal" OPM systems (which included systems with names that indicated they were "admin portals" or "security portals") were made "accessible from the internet." But those "host names" were later "redacted" and are no longer visible on the public domain. The fact that those systems were more visible than they should have been for some period of time after the GWES was set up does not support Plaintiffs' assertion that a hack is likely or imminent.

Although the anonymous expert also stated that the GWES servers were possibly set up in ways that were not "within the standard that you would consider an internal system to be held to," he also indicated that the system was protected in other ways, such as by a using "a web application firewall from Akamai" that "provide[s] some degree of protection." The evidence provided by the podcast is, therefore, mixed at best. More is required to satisfy Article III, and more is required to demonstrate, as Plaintiffs must do to obtain emergency injunctive relief, that they are likely to succeed in establishing standing to sue. The information that Plaintiffs have offered does not satisfy Plaintiffs' burden of showing that they face a concrete and impending risk that their .gov email addresses will be misappropriated in the absence of emergency injunctive relief—or that their proposed relief would redress that risk. This is not to say that Plaintiffs will not be able to establish standing at a later stage of the proceeding. But they have failed to carry their burden for purposes of obtaining a TRO.

The Court, accordingly, concludes that Plaintiffs' motion for a TRO fails because they have not shown that they likely have standing to sue….

The court also added, in discussing the separate TRO requirement of "irreparable injury":

In assessing irreparable injury, moreover, the Court must also consider the nature of the potential injury. That matters because this is not a case in which Plaintiffs seek to protect highly sensitive personal information, like tax records or sensitive medical files. Instead, they seek to protect their work email addresses. The Court does not doubt that government employees, at times, have a privacy interest in their work email addresses, which identify their names and oftentimes where they work. In some cases, revealing that information could result in harassment or unwanted attention. But, here, the seven named Plaintiffs have failed to offer any evidence that, even if a massive hack were to occur due to OPM's failure to prepare an adequacy PIA, the disclosure of their .gov email addresses—along with millions of other .gov email addresses—would likely subject them to personal harassment, much less that it would cause them a harm that is "certain" and "great."

{At oral argument, Plaintiffs' counsel indicated that one of the Plaintiffs works for the Federal Emergency Management Agency ("FEMA"), and he argued that associating her with FEMA could invite harassment. But that argument, raised by counsel and without any evidentiary support, is insufficient to justify the issuance of a TRO. And, in any event, the argument fails to address the more fundamental problem with Plaintiffs' theory of irreparable injury; they have failed to offer evidence sufficient to permit the Court to find that the risk of a breach is "certain"—or even likely to occur in the next 14 days [the length of time the TRO would last].}

Were this a case brought under the Freedom of Information Act ("FOIA"), the Court might conclude that the agency is entitled to withhold the email addresses on the ground that disclosure "would constitute a clearly unwarranted invasion of personal privacy." But this is not a FOIA case, and the requirement for issuance of a TRO is far more demanding.

The Court, accordingly, concludes that Plaintiffs have failed to carry their burden of demonstrating that they are likely to incur some irreparable injury if the Court does not enjoin OPM from operating the GWES without first preparing a more robust and accurate PIA….

Elizabeth J. Shapiro and Olivia Grace Horton (Justice Department) represent the government.

 

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[Eugene Volokh] Chris Christie on the Eric Adams Controversy

Since my cobloggers have been discussing this, on both sides of the question, I thought I'd also pass along Chris Christie's column on this in the Free Press. (Before becoming Governor of New Jersey, Christie had been a federal prosecutor, culminating in heading the federal prosecutorial office for the District of New Jersey.) His conclusion:

Finally, as to Mayor Adams, I have reached no judgment on his guilt. How could I? Like every American, he is presumed innocent, and an indictment contains allegations by the DOJ that have to be proved beyond a reasonable doubt. His job now is to prove to the citizens of New York City that he serves the people who elected him and has not become a tool of any other force in order to save himself personally from having to face these charges. The oath he took requires nothing less from him.

The administration has an obligation to work as hard as they can to implement the policies the American people voted for in November. They also have an obligation to assure the public that the criminal law will be administered fairly and not used as a carrot or a stick to achieve any goal other than to have the guilty held to account for their conduct and the innocent free of unwarranted criminal charges.

This is an embarrassing episode for the Department of Justice and further undercuts the public confidence in our system of justice. Congress and the courts must play their constitutional role as well and not sit as idle bystanders while our system of justice is not de-weaponized, but just weaponized in a different direction. Either dismiss forever an indictment Mr. Bove characterizes as politicized and tainted, or let the charges proceed and let a jury of his peers judge the allegations against Mayor Adams.

Again, I have no well-informed view on the subject, but I agree that it's an important issue, and thought Christie's perspective was worth passing along.

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[Paul Cassell] The Crime Victims' Rights Movement's Past, Present, and Future (Part I - the Past)

[The victims' rights movement is rooted in America's long tradition of private prosecution, in which crime victims were able to initiate and pursue their own criminal prosecutions.]

I've just posted on SSRN my comprehensive law review article on the crime victims' rights movement's past, present, and future.  This is the first of three posts this week,  summarizing my article. This post discusses the roots of the movement. Historically, crime victims played a central role in criminal justice processes through private prosecutions—i.e., the ability of victims to initiate or participate in criminal prosecutions. In light of this history, the recent efforts to protect victims' interests in the criminal justice system are a throwback to times past.

Interestingly, while the crime victims' rights movement is often alluded to, no definitive history has yet been written. Perhaps this is because, at least among legal academics, relatively little interest exists in victims' rights. But whatever the reason, this absence of a clear description of the movement has had important consequences. With the victims' rights movement inadequately described, some critics have tried to paint it as nothing other than a "carceral rights movement"—a thinly veiled, retributive effort to lock up as many criminals as possible for as long as possible. Because the movement is broadly based, these academics have been free to cherry-pick a few victims' initiatives and argue that they prove the movement's general, punitive thrust.

My article responds to the critics who have capitalized on the void in scholarship to unfairly critique the movement's aims and policy successes. Contrary to the simplistic portrait often drawn, the movement's primary goals do not focus on substantive criminal case outcomes, such as increasing death sentences or extending prison terms. Instead, the movement is concerned with the procedural objective of ensuring that victims' voices are heard throughout the criminal justice process. The movement contends that criminal justice procedures should incorporate victims voices without regard to any outcomes that may result. And the movement can powerfully argue that, properly understood, American history supports this procedural inconclusion.

The relevant history begins with America's system of private prosecution—that is, criminal prosecutions pursued by private citizens. In a world of private prosecution, crime victims' rights become a redundancy. Because historically crime victims could initiate and pursue their own prosecutions, their rights were automatically protected.

In reviewing the history of private prosecution, we are fortunate to have four recent scholarly endeavors shedding light on the practice. First, in 2020, Professor Bennett Capers published his provocative article—"Against Prosecutors"—which critiqued the overwhelming power of prosecutors in modern criminal justice. Capers sought to show that private prosecution is "part of our collective cultural DNA." Indeed, Capers concluded that the American public prosecutor is a "historical latecomer," whose arrival was not inevitable. The public prosecutor's ascendancy meant that "[v]ictims have lost power," particularly victims who were "already disadvantaged because of gender, or race, or class, or sexuality." Capers noted that this shift of power is "all but absent from criminal law casebooks" but sheds important light of how a criminal justice system with more victim involvement might operate.

Two years later, in 2022, two comprehensive historical reviews of private prosecution were published. In an extended law review article, historian Jonathan Barth assessed what he called the "confusion and mystery surrounding the history of the office of the public prosecutor in early America." Barth noted that some historians believed that private prosecution had disappeared by the time of the Constitution's ratification. But his meticulous scholarship demonstrated that early Americans used "a hybrid system of criminal prosecution through at least the middle of the nineteenth century."

At the same time in 2022 as Barth's article appeared, Professor John D. Bessler published his impressive book, Private Prosecution in America: Its Origins, History, and Unconstitutionality in the Twenty-First Century. Bessler outlined the history and use of private prosecution in the United States. Tracing its origins to medieval Europe and English common law, Bessler showed how private prosecution became a common feature of early American criminal procedure. In colonial and early America, private prosecutors pursued criminal cases on behalf of victims (and, in homicide cases, their families). But he also documented how, in more recent times, many courts continue to allow private prosecutions. Bessler provided a fifty-state survey of the status of private prosecutions, along with his arguments against continuing the practice.

Most recently, in 2024, Professor Emma Kaufman reviewed "the puzzling persistence of private prosecution." Kaufman began by describing the alleged "state monopoly of criminal law." But Kaufman then contrasted this monopoly with the well established history of private prosecution.  Kaufman explained that "the government has long relied on private actors to manage criminal law, and the state's capacity for crime control has never matched its ambitions. In important and underappreciated ways, the state monopoly on criminal law has always been something of a myth."

In light of the extensive record of private prosecution in America, the question naturally arises whether this "dusty history" tells us anything useful for our day and age. Joining several other recent articles, this article contends that the history demonstrates that victims could usefully play an important role in criminal processes today. These four sources, along with a burgeoning body of other scholarship, demonstrate convincingly that private prosecutions were an important part of America's criminal justice past. In the past, criminal prosecutions were often driven by victims and their families. Thus, the modern victims' rights movement stands on well-trodden ground in urging that victims should be part of America's criminal justice present and future.

You can download my full article here. I will be presenting the article as a keynote address at the University of Pacific Law Review's Annual Symposium this Friday, starting at 8:30 a.m. Pacific time. You can find more information about how to watch the symposium here.

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[Ilya Somin] More on Birthright Citizenship and Undocumented Immigrants - Rejoinder to Barnett and Wurman

[Why their response to me and other critics fails to refute key objections.]

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In a recent blog post, Randy Barnett and Ilan Wurman have responded to my piece and others criticizing their NY Times op ed that had offered partial defense of President Trump's executive order denying birthright citizenship to children of undocumented immigrants, and migrants in the US on temporary visas. I think they fail to effectively rebut several key points, most notably that their argument - if applied consistently - would also deny birthright citizenship to recently freed slaves - the group the Citizenship Clause of the Fourteenth Amendment was principally intended to protect.

Section 1 of the Amendment grants citizenship to anyone "born … in the United States and subject to the jurisdiction thereof." Barnett and Wurman argue that only people who have exchanged "allegiance" for "protection" qualify as "subject to the jurisdiction" of the US. As pointed out in my earlier post, freed slaves did not qualify, because they had never made any such exchange. The US government sought to compel their obedience, but did not offer any meaningful protection. To the contrary, it facilitated their subjugation and oppression.

In their response, Barnett and Wurman state that " enslaved persons brought here against their will were not afforded protection of the law. But obedience and ligeance were demanded of them nonetheless." The US, they say, owed them protection in exchange. The obvious problem here is that a demand for obedience without any reciprocal provision of protection is not an "allegiance-for-protection" compact. It's just straight-out coercion in exchange for virtually nothing. One could just as easily say that a Mafia protection racket qualifies as "allegiance-for-protection." Indeed, the slavery situation was actually worse than that, since the Mafia usually doesn't impose lifelong forced labor on its victims.

If a mere demand of obedience is enough to trigger "jurisdiction," than illegal migrants also qualify. After all, the US government certainly demands their obedience to its laws. They can be prosecuted for crimes, subjected to civil suits in US courts, and so on.

At one point, if I interpret them correctly, Barnett and Wurman seem to suggest that the allegiance-for-protection exchange may have occurred when the former slaves were freed. I anticipated this kind of argument in my previous post:

This situation changed, to an extent, with the abolition of slavery through the Thirteenth Amendment. But the "subject to the jurisdiction" language of the Citizenship Clause refers to people subject to that jurisdiction at the time they were born. For example, the [US-born] child of a foreign diplomat doesn't get birthright citizenship if her parents later lose their diplomatic immunity.

By its very nature, birthright citizenship is acquired through circumstances present at the time of one's birth, not by ones that occur years later.

Barnett and Wurman also continue to err in focusing almost exclusively on materials that predate the drafting and enactment of the Fourteenth Amendment. Given that the whole purpose of the Citizenship Clause was to grant citizenship to a large class of people who didn't have it before, we cannot assume that it was merely following preexisting legal rules (even assuming that Barnett and Wurman interpret the latter correctly). Scholars who have canvassed the drafting and enactment history, and its aftermath find that the evidence supports birthright citizenship for the undocumented. See, for example, Michael Ramsey's extensive work on this subject.

The source Barnett and Wurman rely on the most is an 1862 opinion by Attorney General Edward Bates. Even assuming this opinion is relevant to the construction of the Citizenship Clause (drafted years later), Barnett and Wurman fail to effectively address Jed Shugerman's critique of their construction of it. As Shugerman points out, far from concluding that an allegiance-for-protection exchange is necessary to trigger birthright citizenship, Bates argued the exact opposite: being born in the United States creates a presumption of citizenship, which in turn triggers both allegiance and protection. As Bates put it, "nativity furnishes the rule, both of duty and of right, as between the individual and the government" (emphasis added).

Barnett and Wurman overlook this crucial point in both their original article and their response. I am not convinced the Bates opinion should be given any great weight in interpreting the Citizenship Clause. As a legal matter, it is not actually an interpretation of the Citizenship Clause, which had not yet been drafted. As a matter of political theory, I find the argument that mere birth triggers an obligation of allegiance morally repugnant. But to the extent that Bates' position matters, it actually undercuts the Barnett-Wurman thesis rather than supports it.

Finally, Barnett and Wurman continue to claim that their opponents' position cannot account for such anomalies as the denial of birthright citizenship to people born on foreign public vessels in US waters and its extension to children of American citizens born in territories occupied by an invading army.  I covered both in my original post:

These aren't actually anomalies at all. As the Supreme Court ruled in 1812, foreign public vessels in US territorial waters remain under the sovereignty of their governments, and therefore are not within US jurisdiction. Citizens residing within enemy-held territory remain under an obligation to follow US law, and that duty can be enforced upon them in a way it cannot be on foreign troops (for example through prosecutions undertaken after the US recaptures the territory).

I would add that the US government retains a variety of other means of leverage over US citizens residing in temporarily occupied territories. For example, it can strip them of citizenship if they commit treason by collaborating with the enemy. Such people remain under US jurisdiction in a way invading enemy troops are not.

Finally, I think Barnett and Wurman are wrong to suggest that the phrase "subject to the jurisdiction" is ambiguous with respect to the issue at hand. In both ordinary usage and legal parlance, "jurisdiction" refers to authority. A person is subject to the jurisdiction of a government if that entity can exercise power over her by enforcing its laws against her. There may be some situations where the term is used in a non-standard or counterintuitive way. But if so, the burden of proof is on those who advocate an interpretation that deviates from ordinary usage.

In sum, I much appreciate Barnett and Wurman's thoughtful efforts to address criticisms and clarify their position. But the ultimate result does more to highlight the power of the critiques than to refute them.

UPDATE: It may be worth reiterating, as stated in my earlier post, that the Barnett-Wurman argument - even if completely sound - cannot justify the part of Trump's order denying birthright citizenship to children of migrants who legally entered the US on temporary visas.

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[Eugene Volokh] Every #Resistance Has an Equal and Opposite Counter-Resistance

Not to defend any particular action of the counter-resistance or the resistance, but just to observe something about politics.

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[David Kopel] Supreme Court amicus briefs on gun crime in Mexico

[Mexico's amici take shots at our brief in Smith and Wesson v. Mexico]

In , the Mexican government is suing several of the most popular American firearm manufacturers in an attempt to hold them liable for violence committed by Mexican drug cartels in Mexico. The Mexican government seeks billions of dollars in damages and the imposition of extensive gun controls in America.

This post is coauthored with Joseph Greenlee, who is a research associate at the Independence Institute (where I work) and Director of the Office of Litigation Counsel for the National Rifle Association's Institute for Legislative Action.

We filed an amicus brief on behalf of the National Rifle Association, FPC Action Foundation, and Independence Institute in support of the American manufacturers. The State of Montana, joined by 25 more states, filed a brief as well. In response to these two briefs, a group of social science, medical, and legal scholars supporting the Mexican government joined a brief filed by Crowell & Moring aimed at refuting our claims. This post addresses their arguments.

Homicides in Mexico after the 2004 repeal of the American "assault weapon" ban

Mexico's amici accuse us of denying "there has been a significant increase in gun violence in Mexico since the expiration of the U.S. assault weapons ban in 2004." They fault us for "conflat[ing] the Mexican homicide rate . . . with the overall rate of national gun violence." Actually, it was the Mexican government that argued "homicides in Mexico . . . increased dramatically beginning in 2004." Mexico Complaint at ¶ 13 (emphasis added). And the Mexican government has focused its statistical case on the number of homicides and the homicide rate. E.g., Complaint at ¶¶ 14, 279, 440, 441, 442, 444, 450, 471, 472.

Our brief provided statistics—which the amici did not dispute—that "Mexico's homicide rate was lower during each of the first three years after the ban's expiration (2005–2007) than during any year in which the ban was in effect (1995–2003)." The plaintiff, the  Mexican executive branch, incorrectly told courts that Mexican homicides "increased dramatically beginning in 2004."

In later years, Mexican homicides have increases. We argued that the increases were caused by the Mexican government's military offensive against its own citizens, the militarization of public security forces, government corruption, the government's failure to punish criminal conduct, and the Mexican government's human rights violations—including unlawful killings by police and military, forced disappearance by government agents, torture committed by security forces, and violence against journalists. In other words, the homicide increase is the result of the Mexican government's own misdeeds and failures, not the American manufacturers' lawful activity.

ATF Traces of Firearms Seized in Mexico

Our statement in the amicus brief that "few Mexican crime guns are determined to have come from America" is factual. The Mexican government claimed that "Almost all guns recovered at crime scenes in Mexico—70% to 90% of them—were trafficked from the U.S." But this percentage is based on the number of firearms that are submitted to the U.S. Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) for tracing. And relatively few guns used in Mexican crimes are submitted. Moreover, ATF's report on Mexican traces includes the same "ATF Firearms Trace Data Disclaimer" ATF puts on every trace report, as required by federal law:

Firearm traces are designed to assist law enforcement authorities in conducting investigations by tracking the sale and possession of specific firearms. Law enforcement agencies may request firearms traces for any investigative reason, and those reasons are not necessarily reported to the federal government. Not all firearms used in crime are traced and not all firearms traced are used in crime.

Firearms selected for tracing are not chosen for purposes of determining which types, makes or models of firearms are used for illicit purposes. The firearms selected do not constitute a random sample and should not be considered representative of the larger universe of all firearms used by criminals, or any subset of that universe. Firearms are normally traced to the first retail seller, and sources reported for firearms traced do not necessarily represent the sources or methods by which firearms in general are acquired for use in crime.

We provided the example of 2008, in which 30,000 guns were seized by Mexican officials, but only 4,000 were successfully traced. While 3,480 of the 4,000 were traced to America, these 3,480 represent less than 12 percent of the total arms seized in Mexico. Thus, over 88 percent could not successfully be traced back to the U.S.

Mexico's amici suggest that these numbers are skewed because "the 2008 data . . . were gathered before the eTrace system was functioning in Spanish in Mexico." But the amici do not provide an example after the system started functioning in Spanish that produced a different result. Instead, the amici cite a recent ATF report they claim shows that "the number of crime guns that could be traced to the U.S. between 2018 and 2023 hovered around 70%." Again, this report also included only firearms submitted for tracing, and the amici did not provide the total number of crime guns recovered in Mexico during those years. Thus, although the amici claim that we "misrepresent[ed] the data" and relied on a "misleading and acrobatic statistical analysis," they failed to identify a single falsehood or provide a contrary example.

Time to Crime

We emphasized in our brief the significance of "time-to-crime" for firearms that originate in America and are recovered in Mexico. The "time-to-crime" is the amount of time between the first retail sale of the firearm and its use in a crime. According to this theory, the shorter the "time-to-crime," the greater the possibility that the gun was originally sold to someone acting on behalf of a criminal. The longer the "time-to crime," the greater the probability that the gun was acquired through the nonretail market, such as being stolen and then resold among criminals. Thus, a long "time-to-crime" supports the absence of connection between the conduct of American manufacturers or dealers and Mexican crime.

Mexico's amici asserted that we argued, "without any citation, that the average age of crime guns seized in Mexico is 15 years." To the contrary, we provided a citation along with a description explaining that we were citing an "ATF report identifying average time-to-crime rate for U.S.-sourced firearms recovered and traced in Mexico between December 1, 2006, and August 31, 2010."

After calling our "assertion regarding the average age of guns used in Mexican crimes baseless and incorrect," Mexico's amici cited a newer ATF report "indicat[ing] that from 2022-2023 the average time to crime (TTC) for guns recovered in Mexico is 5.6 years." While the amici indeed identified a period with a shorter time-to-crime rate, the amici did not mention that the same report showed that the time-to-crime rate was "14.8 years in 2017."

The Mexico amici's 5.6-year-statistic from 2022–23 proves our point as well. The ATF has written that only a time-to-crime "of less than three years" is "an indicator of illegal firearm trafficking." Because guns with TTC of under one or three years are overrepresented in crime guns, ATF concludes: "These patterns suggest that
diversion of non-stolen firearms remains a prominent source of crime guns." In other words, many of the guns with short TTC were obtained by fraudulent retail transactions, whereas guns with longer TTC are more likely to have entered the black market via theft.

In a recent analysis of firearms recovered in Mexico from 2014 to 2018,  ATF considered firearms with a "'time to crime' of more than 1 year" to be "purchased primarily through the secondary market," rather than from retailers, according to the U.S. Government Accountability Office.

Mexico's amici asserted that "There are no data or analysis suggesting that a longer [time-to-crime] signals that guns were stolen . . . as opposed to trafficked unlawfully." This is true in a technical sense, since ATF traces do not include details about whether a firearm was stolen or a how a firearm moved around in the black market.

In ATF's Mexican trace report, ATF states: "ATF investigative experience indicates
TTC of less than three years can be an indicator of illegal firearm trafficking." The support for this statement is in endnote 9:

Pierce, Glenn L., Anthony A. Braga, Raymond R. Hyatt, and Christopher S. Koper. 2004. "The Characteristics and Dynamics of Illegal Firearms Markets: Implications for a Supply-Side Enforcement Strategy." Justice Quarterly, 21 (2): 391 – 422; Kennedy, David M., Anne M. Piehl, and Anthony A. Braga. 1996. "Youth Violence in Boston: Gun Markets, Serious Youth Offenders, and a Use-Reduction Strategy." Law and Contemporary Problems, 59 (1): 147-196; Bureau of Alcohol, Tobacco and Firearms. 2002. Crime Gun Trace Analysis (2000): National Report. Washington, DC: Bureau of Alcohol, Tobacco and Firearms.

These are the "data or analysis" that ATF cites in support of its understanding that longer time-to-crime is less likely to be a result of malfeasance by a retailer, as opposed to theft.

Sources

Lastly, Mexico's amici write that we "primarily rely on a single 2013 article authored by David Kopel." (Mexico's Gun Control Laws: A Model for the United States? 18 Texas Review of Law & Politics 27 (2013)). In fact, we cited that article only once in the section that the amici responded to, and in only one footnote elsewhere in the brief. By contrast, we cited multiple times the United Nations' Office on Drugs and Crime's Global Study on Homicide; the U.S. Congressional Research Service; the U.S. Bureau of Democracy, Human Rights, and Labor; the FBI's Uniform Crime Reports; an International Studies professor; a professor at the National Autonomous University of Mexico; the Executive Director of the Institute for Security and Democracy; and news articles. While the amici disparage Kopel's 2013 article as "old" and "outdated," the Mexican government's complaint focused largely on data from the 1990s and 2000s, which the Kopel article addressed.

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