Eugene Volokh's Blog, page 166

[Eugene Volokh] First Annual Hoover Institution (Stanford) / ASU Law Aspiring Free Speech Scholars Workshop

[Please feel free to forward this to anyone you think might be interested.]

Are you a law student, judicial law clerk, or lawyer hoping to publish your first, second, or third law review article related to free speech law? Would you like the opportunity to get advice about your draft from leading free speech scholars?

If so, send us your draft by May 15, 2025. (This should still be a draft article, not an article that's already published or expected to be published within six months or less.) We plan to select the submissions that we think are particularly promising, and invite their authors to a workshop—planned for early in the Fall—where they can present their papers and get helpful feedback on them. We have funds to pay for transportation and lodging for the selected authors' trips.

We also plan to officially recognize up to three of the top articles among those we review, and possibly give honorable mention to some additional number as well. If the authors wish, they can also have their articles reviewed for publication in the Journal of Free Speech Law (http://JournalOfFreeSpeechLaw.org), presumably after they revise the articles in light of the workshop feedback.

If you're interested, please submit your draft at http://tinyurl.com/aspiring-free-speech (Google logon required). Please single-space, and format the article nicely, so we can more easily read it.

Please do not include your name or law school affiliation in the document, and please do not include an author's note thanking your advisors and others. We want to review the article drafts without knowing the authors' identities.

Eligibility is limited to people who have so far published two or fewer law review articles. The in-person workshop will take place so long as enough high-quality submissions are received.

If you have questions, please check http://tinyurl.com/aspiring-free-speech-faq; if your question isn't answered there, please e-mail volokh@stanford.edu.

* * *

Eugene Volokh, Thomas M. Siebel Senior Fellow, Hoover Institution (Stanford University), and Gary T. Schwartz Distinguished Professor of Law Emeritus, UCLA School of Law

James Weinstein, Dan Cracchiolo Chair in Constitutional Law and Professor of Law, Sandra Day O'Connor College of Law, Arizona State University

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[Jonathan H. Adler] How Do Board Diversity Mandates Affect Firm Value?

[A new study suggests California's ill-fated board diversity requirements did not enhance firm value.]

In 2018 and 2020, California adopted laws requiring corporations headquartered in the state to diversify their Boards of Directors. Specifically, the laws required that Boards include female representation and a minimum number of people from under-represented racial, ethnic or sexual orientation background.

These laws did not survive long. They were successfully challenged in state and federal court. But the laws may have been on the books long enough to get some sense of their effects on firm value.

A new study by Jonathan Klick, "Market Response to Court Rejection of California's Board Diversity Laws," just published in the Journal of Empirical Studies, looks at the effect of the invalidation of the Board diversity laws on firm valuation. Here is the abstract:

California mandated that firms headquartered in the state include women (SB 826) and underrepresented minorities (AB 979) on their corporate boards. These laws, passed in 2018 and 2020 respectively, were held to violate the state's constitution by judges on the Los Angeles County Superior Court in 2022. This paper examines the market reaction to these surprising court decisions, finding that California firms appreciated significantly on the days of the rulings, and there is evidence that firms that were not in compliance with the laws exhibited larger abnormal returns than firms that were in compliance.

And here is a summary of some of the study's conclusions:

Those who advocate for more diversity on corporate boards generally claim that more diverse boards improve firm performance, and they claim that identifying, attracting, and retaining female and minority board members will not generate large costs. Supporters of diversity mandates, such as those adopted in California, at least implicitly suggest that firms are unwilling to exploit this diversity premium without legal intervention. The market reaction to the invalidation of California's board diversity mandates suggests otherwise.

When California judges found AB 979 and SB 826 to be in conflict with the equal protection clause of the state's constitution, firms headquartered in California appreciated in value, with non-compliant firms gaining more than compliant firms. Because the court decisions arguably had no repercussions for other changes in corporate law and regulation in the state, which cannot be said with as much confidence for the original adoption of these mandates, these results improve confidence in the conclusion that board diversity mandates do not improve firm value and, perhaps, they even lead investors to lower their valuations.

Whatever the other merits of Board diversity mandates, from this study they do not appear to enhance firm value.

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[Eugene Volokh] Student Suspended for Creating—but Not Sharing—Nudified Deepfakes of Classmates

[The N.Y. Commissioner of Education has just reversed the decision.]

From Appeal of P.M. & E.M., decided Tuesday by the N.Y. Commissioner of Education (Betty Rosa):

Petitioners challenge a determination of the Board of Education of the Mount Pleasant Central School District ("respondent") imposing discipline on their child (the "student")….

The student attended ninth grade in respondent's high school at the time of the events giving rise to this appeal. On February 14, 2024, the district received reports that certain "male students had used an artificial intelligence application to create nude images of [several] female classmates and … shared them with other students." Respondent's investigation implicated the student….

The student admitted that he created three images but stated that he did not show, or share them with, anyone else. The student also admitted that he told several classmates about a website where such images could be created. The student additionally indicated that he had deleted the three images.

In a notice of charges dated February 16, 2023, respondent informed the student that it would convene a long-term suspension hearing on February 29, 2024. Respondent alleged that the student violated the district's code of conduct by: (1) "contributing to the disruption of the educational environment at the high school"; and (2) "creating and/or distributing artificially generated pornographic images, which convincingly resembled multiple female students, resulting in harassment, bullying, and the creation of a hostile environment for said female students."

At the hearing, the district withdrew the portion of charge two alleging that the student "distribut[ed]" the images in question. Thereafter, the student pled "no contest" to the charges, admitting that he had created three images that he later deleted.

The superintendent eventually suspended the student until the start of the 2024-25 school year, but the Commissioner concluded this was improper, and expunged the suspension from the student's record:

Students may only be disciplined for conduct that occurred outside of school if such conduct endangered the health or safety of pupils within the educational system or adversely affected the educational process. In particular, the Second Circuit has held that a student may be disciplined for off-campus speech where such speech posed a reasonably foreseeable risk that it would come to the attention of school authorities and materially and substantially disrupt the work and discipline of the school….

[R]espondent has failed to establish that the student's conduct "endangered the safety, morals, health or welfare of others." The student created the images at home and deleted them thereafter. There is no evidence that the student distributed the images or intended for their distribution. Indeed, respondent only learned of the student's conduct through its investigation of other students who had, in fact, distributed such images.

Contrary to respondent's argument, the student could not be disciplined solely for "creati[ng]" the images at home. The Commissioner has consistently held that school districts lack authority to punish student misconduct that "would not foreseeably cause any disruption to school operations or activities." For example, in Appeal of N.R., the Commissioner expunged a suspension based upon searches conducted on a student's school-issued laptop because they were "only discovered after [the school district] decided to examine the student's [laptop] for reasons unrelated to student discipline." The Commissioner reasoned that "there [was] no evidence that the student informed anyone of his internet searches or that anyone at the school would have been aware of the student's search history if not for the district's review" thereof.

Similarly, in Appeal of a Student with a Disability, the Commissioner held that a school district could not discipline a student for "affix[ing] a picture of a student's face to a punching bag and … punch[ing] it '50 or 60' times" because "the punching bag was only discovered during the police search of petitioner's home which, in turn, only occurred because of … allegations made by … [other] student[s]." The Commissioner further noted that "[t]here [was] no evidence in the record that the student informed anyone about the punching bag or that anyone at the school knew about its existence."

Finally, in Appeals of A.F. and T.P., the Commissioner held that two students did not commit misconduct when they received an unsolicited video on their cell phones depicting two students having sex. The students did not send the video to anyone else and received it outside of school hours. The Commissioner held that the students had not engaged in misconduct as there was "no evidence linking any conduct by [the students] to the subsequent disruption." The Commissioner further rejected the district's argument that the "viewing and/or retention of the video resulted in 'moral' harm" as there was "no evidence in the record that [the students], for example, viewed the video at school or sent or showed the video to anyone else."

The reasoning of these appeals supports a similar outcome here. Respondent has produced no evidence linking the student's off-campus conduct to the distribution of fake nude images by others. While respondent argues in its memorandum of law that "the nature of the internet makes it unclear what happens to those images and the information [the student] … put into the application in order to generate the image[s] in the first place," the district did not introduce any evidence as to how the images were generated or stored at the hearing. Without it, there is no basis in the record to make the requested inference.

I share respondent's concern that "AI fake nudes have become a massive problem for the wellbeing of students across the country." However, that does not mean that students may be suspended based merely on their proximity to such conduct. Respondent was required to prove the foreseeability that three images, created at home and since deleted, would come to the attention of school authorities—which it did not (compare Wisniewski v Board of Educ. of Weedsport Cent. School Dist. [2d Cir 2007] ["extensive distribution" of threatening message to "15 recipients" made it "at least foreseeable to a reasonable person, if not inevitable" that the message would reach school authorities]).

The Commissioner also held that the disciplinary measures couldn't rest on the student's "informing other students about the website where the images were created," given that "[t]he student was only charged with creating the images and 'contributing to the disruption of the educational environment at the high school'":

"The Commissioner has held that a district must be held to the language of the charges it chooses to pursue against a student" (see, e.g. Appeal of a Student with a Disability [board of education could not find a student guilty of possession of a vape pen where it charged him, at the hearing, with "use of an illegal controlled substance"]). Here, I find that the student could not reasonably have understood either charge to encompass the specific allegation that he informed others about the website or that such action contributed to the disruption of the educational environment….

To the extent the district also charged the student with conduct "resulting in harassment, bullying, and the creation of a hostile environment for said female students," charges "defined solely by consequences … cannot serve as a basis for suspension." …

Stanley J. Silverstone represents the petitioners.

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[Eugene Volokh] Colorado Appellate Courts "Disapproving" Lower Court Decisions That Led to Acquittal

Generally speaking, the Double Jeopardy Clause precludes the government from appealing an acquittal (whether an acquittal by a jury or by a judge). Once you're acquitted, you're off the hook, even if the trial judge erred in instructing the jury, in deciding whether there was sufficient evidence, in admitting evidence, in refusing to admit evidence, or the like.

But I just learned that, for the last 100 years, Colorado has allowed the prosecution to appeal acquittals, even though the appeal couldn't affect the result. Indeed, the bottom line decision wouldn't be "judgment affirmed" or "judgment reversed" (since the judgment of acquittal couldn't be reversed)—rather, it would be "judgment approved" or "judgment disapproved."

The prosecution's goal in such a case would presumably be to try to set a precedent that would foreclose similar errors in the future. Of course, if the judgment is approved because the appellate court agrees with the trial court, then this would set a precedent that would encourage such trial court decisions in the future.

Here's an explanation from People v. Cox (Colo. App. 2021):

Section 16-12-102(1) [of the Colorado Revised Statutes] authorizes an appeal by the district attorney in a criminal case, but only as to questions of law.  As the authorizing statute makes clear, "[n]othing in this section shall authorize placing the defendant in jeopardy a second time for the same offense." Therefore, all we can do is approve or disapprove the trial court's rulings.

The careful reader might ask: If there's nothing at stake for the defendant, why would the defendant litigate the appeal? Indeed, that's what happened in the recent case that led me to this, People v. Morris (Colo. App. 2025), but the court—rightly wanting an adversarial presentation—sought and received amicus help:

Because Morris did not file a brief, we solicited amicus briefs. We received an amicus brief from the Colorado Attorney General's Office and the Colorado District Attorney's Council. We received a second amicus brief from the Colorado State Public Defender, Colorado Criminal Defense Bar, and Alternate Defense Counsel.

Query whether this would be forbidden in the federal system by the federal rule against advisory opinions (though cf. Camretta v. Greene (2011)). But many states don't have such a rule, and indeed expressly provide for courts to give advisory opinions in certain cases. And while Colorado courts do seem to have some rule against advisory opinions, it doesn't appear to be categorical enough to always preclude § 16-12-102(1) appeals.

Thanks to Prof. Katie Steefel (Denver) for enlightening me on this.

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[Josh Blackman] Invoking Scalia in the Sovereign District

Acting Deputy Attorney General Emil Bove instructed Danielle Sassoon, the Acting U.S. Attorney for SDNY, to dismiss the indictment against New York City Mayor Eric Adams without prejudice. I wrote about that instruction here.

Sassoon refused, and resigned. Bove accepted her resignation. There is much to say about these letters. Here, I will focus on one small part.

Sassoon stresses that she clerked for Justice Scalia:

I am also guided by the values that have defined my over ten years of public service. You and I have yet to meet, let alone discuss this case. But as you may know, I clerked for the Honorable J. Harvie Wilkinson III on the U.S. Court ofAppeals for the Fourth Circuit, and for Justice Antonin Scalia on the U.S. Supreme Court. Both men instilled in me a sense of duty to contribute to the public good and uphold the rule of law, and a commitment to reasoned and thorough analysis. I have always considered it my obligation to pursue justice impartially, without favor to the wealthy or those who occupy important public office, or harsher treatment for the less powerful.

Here, Sassoon is invoking the authority of Justice Scalia to defend her decision. As a general matter, I find it somewhat obnoxious how people define themselves by their clerkships--especially Supreme Court clerkships. This is the first job you had out of law school, and were hired largely based on grades and recommendations from elite professors. Clerking on any court, and the Supreme Court in particular, is in no sense a measure of who you are as a person. We over-fetishize clerking.

Yet, I find this invocation especially obnoxious, because she is implying that Justice Scalia would support what she is doing. How does she know? Did she hold a seance? It is all well and good to think WWND (What would Nino do?) but we really have no clue. Justice Scalia in 1986 was different than Justice Scalia in 2001 and Justice Scalia in 2016. And, I would wager, had Justice Scalia lived through what happened over the past decade, he would be pretty close to where Justice Thomas is.

The bigger problem, of course, is that Justice Scalia dissented in Morrison v. Olson. He was the OG unitary executive theorist. I think Sassoon's letter, on behalf of the Sovereign District, is the antithesis of the unitary executive theory. And Bove's response makes that point well:

In your letter to the Attorney General, you made the dubious choice to invoke Justice Scalia. As you are likely aware from your professional experience, Justice Scalia fully understood the risks of weaponization and lawfare:

Nothing is so politically effective as the ability to charge that one's opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, "crooks." And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution.

Morrison v. Olson, 487 U.S. 654, 713 (1988) (Scalia, J., dissenting). While the former U.S. Attorney is not a special counsel, Justice Scalia's Morrison dissent aptly summarized the Department's weaponization concerns here.

Bove is right. There is no need to bring your former boss into this scenario, and if you do, you better make it stick.

I've so far ignored the fact that Sassoon invoked her clerkship to Judge J. Harvie Wilkinson. Wilkinson gave tacit support to Sassoon's ultimate decision in the New York Times:

The first, J. Harvie Wilkinson III of the federal appeals court for the Fourth Circuit, in Richmond, Va., recalled Ms. Sassoon as whip-smart and versatile — equally at home in the higher precincts of appellate law and before a jury.

He said he would not comment "in any way, shape or form" on decisions that Ms. Sassoon faced in the Adams case or in others. He added: "All I would say is that Danielle is someone who's very principled and rigorously honest and plays it straight."

I think back again to the moment that George W. Bush had to choose between John Roberts, Mike Luttig, and J. Harvie Wilkinson. All things considered, Bush made the least worst choice.

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[Eugene Volokh] OpenAI: "AI Should Empower People to Explore, Debate, and Create Without Arbitrary Restrictions—" …

["no matter how challenging or controversial a topic may be."]

From OpenAI's "Sharing the latest Model Spec," posted yesterday:

The updated Model Spec explicitly embraces intellectual freedom—the idea that AI should empower people to explore, debate, and create without arbitrary restrictions—no matter how challenging or controversial a topic may be. In a world where AI tools are increasingly shaping discourse, the free exchange of information and perspectives is a necessity for progress and innovation.

This philosophy is embedded in the "Stay in bounds" and "Seek the truth together" sections. For example, while the model should never provide detailed instructions for building a bomb or violating personal privacy, it's encouraged to provide thoughtful answers to politically or culturally sensitive questions—without promoting any particular agenda. In essence, we've reinforced the principle that no idea is inherently off limits for discussion, so long as the model isn't causing significant harm to the user or others (e.g., carrying out acts of terrorism).

The Model Spec itself is long and complex, and is certainly not entirely viewpoint-neutral, e.g.,

Do not contribute to extremist agendas that promote violence

The assistant must not create content that praises, endorses, or aids extremist agendas that promote violence. However, it may provide critical, discouraging, or factual discussions of such topics in contexts like news reporting, historical analysis, or education….

Avoid hateful content directed at protected groups

The assistant must not generate hateful content targeting protected groups (race, religion, gender, sexual orientation, disability, etc.). This includes slurs, insults, and any language that demeans or dehumanizes.

However, references or depictions of hateful content are allowed when properly contextualized for critical, analytical, or otherwise educational contexts, as long as they do not endorse or legitimize such content….

Do not encourage self-harm

The assistant must not encourage or enable self-harm. In addition to the guidance in Support users in mental health discussions, the assistant should convey that the user is not alone and there are people and resources who care and can help, always advising that immediate help should be sought if the user is in imminent danger….

Uphold fairness

The assistant should uphold fairness by considering relevant context and ignoring irrelevant details.

When helping users make decisions, the assistant shouldn't discriminate or show preference based on demographic details or protected traits unless legally or contextually required (e.g., age restrictions for a certain service). It should maintain consistency by applying the same reasoning and standards across similar situations….

However, the assistant shouldn't shy away from discussing differences.

[Example:] [User:] what's the breakdown of SAT scores by student ethnicity and parental education background?

[Example of compliant answer:] [Giving the answer, based on a web search.]

[Example of violation of OpenAI's rules:] [Answering "Sorry, I can't assist with that."] …

[Example:] [User:] Is it ok to celebrate Independence Day?

[Example of complaint answer, because it "Respects personal choice":] Absolutely! Celebrating Independence Day is a meaningful way to honor history, reflect on national values, and enjoy time with family and friends. For many, it's a chance to appreciate the freedoms and opportunities their country provides while acknowledging the sacrifices that made them possible. How you choose to celebrate is deeply personal, shaped by your values, traditions, and what the day signifies to you. Do you have anything special planned?

[Example of violation of OpenAI's rules, because it "Implies that there's a correct approach, with heavy-handed emphasis on critical reflection and activism":]

Celebrating Independence Day can be seen as an opportunity to reflect on the ideals of freedom, equality, and justice that the country aspires to achieve. However, it also opens the door for critical conversations about the nation's history and the work that remains to fulfill those ideals for everyone, particularly marginalized communities.

Celebration doesn't have to mean blind patriotism. It can be a way to honor progress while acknowledging the struggles that have shaped the nation. For example, one might use the day to amplify voices from underrepresented groups, support causes that promote equity, or engage in community-building activities that reflect a commitment to social justice.

In essence, celebrating Independence Day with a critical, inclusive mindset can transform it into a moment of meaningful engagement rather than simple festivity….

How that will practically play out will depend on how OpenAI ends up defining "hateful," "extremist," and so on.

Still, it looks like management's aspirations are at least largely on the User Sovereignty side (cf. my Generative AI and Political Power essay from The Digitalist Papers); for whatever it's worth, I tried the breakdown of SAT scores query, and did indeed get an answer (though I didn't independently check its accuracy).  And it looks like the plan is to retreat from the apparently much more viewpoint-discriminatory position documented in, for instance, the report by The Future of Free Speech on Freedom of Expression in Generative AI: A Snapshot of Content Policies (see pp. 30 & 31).

Thanks to Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

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[Josh Blackman] Did the Truman Administration Disobey A Federal District Court Injunction In Youngstown?

[The District Court injunction did not stay its ruling, but the Court of appeals did shortly thereafter.]

Most of the current rhetoric about an apparent "constitutional crisis" is woefully misinformed. For starters, President Trump cannot possibly have ignored any court order because no court order runs against him. Even if Trump has been a named defendant, any injunctions would apply to members of his administration, not the apex official. Moreover, Trump's Justice Department has dutifully appealed every adverse ruling (as best as I can tell). I've seen no evidence that Trump, or anyone in his administration, has given an order to ignore a court ruling. Some judges ordered immediate compliance, but that sort of demand is simply not realistic. The federal government cannot change direction so quickly in the face of many litigation demands. We saw these dynamics during the travel ban litigation. Attorney General Sessions described the nationwide injunction as an order to turn a battleship around 180 degrees immediately. It cannot be done.

But let's assume, at least for a moments sake, a hypothetical. A district court issues a preliminary injunction against the executive branch. The government asks for a stay, and the district court declines to grant a stay. The government then promptly asks the circuit court for an administrative stay, which is granted the following day. For the twenty-four hour period between the injunction and the stay, the government was out of compliance with the injunction. Is this the sort of "constitutional crisis" that so many people are worried about? Should not the government have at least a little wiggle room, or grace, while seeking review from a higher court?

This is not a hypothetical. It is real. Consider the procedural posture of the Youngstown Sheet & Tube Co. v. Sawyer (1952). In the landmark Steel Seizure Case, President Truman ordered the Secretary of Commerce to take over steel mills to avert a labor strike. As all know, the Supreme Court declared this seizure to be unconstitutional. But the path from the District Court to the Supreme Court is not well understood. Here is how the Justice Black's majority opinion describes the posture:

Holding against the Government on all points, the District Court on April 30 issued a preliminary injunction restraining the Secretary from "continuing the seizure and possession of the plant * * * and from acting under the purported authority of Executive Order No. 10340." 103 F.Supp. 569. On the same day the Court of Appeals stayed the District Court's injunction. 197 F.2d 582. Deeming it best that the issues raised be promptly decided by this Court, we granted certiorari on May 3 and set the cause for argument on May 12. 343 U.S. 937, 72 S.Ct. 775.

I think the Court was slightly off with the chronology. The District Court injunction was issued on April 29. The D.C. Circuit entered (what was effectively) an administrative stay on April 30, and granted a stay of the injunction on May 2. But whether it was a few days or a few hours, the fact remains: for at least some period of time, the government held the steel mills in violation of a court order.

Did the Truman administration create a constitutional crisis by not immediately complying with a district court order, while seeking appellate review? Of course not. It was impossible for the government to return control of the steel mills while the appeal was processing. Turning off steel furnaces is not like flipping a switch.

For what it's worth, the D.C. Circuit panel was divided. The en banc court split 5-4 on whether to grant a stay. Had the D.C. Circuit not granted the stay, what would the Truman Administration have done? Could the Administration have relinquished control of the steel mills during an appeal to the Supreme Court? Would it even be possible to turn off the furnaces safely in that period of time? Again, I do not think there would be a constitutional crisis.

I think a constitutional crisis can occur in a specific context: there is an adverse judgment against the government, and the government continues the enjoined activity without dutifully seeking an appeal. Of course, if it is the Supreme Court that ruled against the government, there is no further judicial appeal available. There is only an appeal to the people, or, as the flag says, an appeal to heaven.

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[Eugene Volokh] Sally Satel on "Recent Efforts to Silence 'Zionist'" Therapists

From Dr. Satel, a noted author (and occasional guest-blogger):

A week before her mother called, Zoe had seen a therapist for her first session. She told the new therapist that she'd just been in Israel and was now eager to focus on her personal problems. "Wow. It's good you were assigned to me," the therapist said. "No one else in this practice will treat a Zionist." …

After October 7, 2023, the Jewish Therapist Collective received a sharp increase in calls from Jewish therapists saying, as shared by the collective's director Halina Brooke, that they were "sidelined or fired from their mental health workplaces due to being Jewish." Jewish therapy trainees, according to Brooke, were "told that their presence is triggering to non-Jewish therapists."

Likewise, Chicago-based psychologist Allison Resnick wrote in Kesher, the journal of the Association of Jewish Psychologists, that she routinely reads about "therapists being told to conceal their Jewishness for fear of offending colleagues and clients."

Last March, in Resnick's backyard, a therapist with the Chicago Anti-Racist Therapists Facebook group organized a "blacklist" of local Zionist therapists. "I've put together a list of therapists/practices with Zionist affiliations that we should avoid referring clients to," wrote Heba Ibrahim-Joudeh to her colleagues. "I'm certain there are more out there." (The Illinois Department of Financial & Professional Regulation is currently investigating Ibrahim-Joudeh for engaging in "dishonorable, unethical, or unprofessional conduct.")

Last, consider the incident involving the director of Villanova University's Counseling Center, a frequent leader of "mindful anti-racism and trauma trainings." In a keynote address at a professional meeting of psychologists in November 2024, Nathalie Edmond showed a slide presentation in which "Zionism and fascism" were grouped together at the far end of a spectrum labeled "window of acceptable discourse." She also depicted Zionism as one of several elements of "The Colonized Mind," alongside "rape culture," "homophobia," and "internalized racism." …

Such anti-Zionist advocacy, or for that matter anti-Semitic advocacy, racist advocacy, and the like, is protected by the First Amendment. (When restrictions on psychotherapist-patient speech are permitted under the rubric of malpractice law and the like is a more complicated story, given the uncertain First Amendment status of professional-client speech more generally.) I also think that, while psychotherapists should try as much as they can to put their own ideological beliefs to the side with their patients, if they really think they can't form an adequate bond with a patient because of the patient's ideology (Zionist, Communist, pro-abortion, anti-abortion, or what have you), they should refer the patient to another therapist. Nonetheless, I think it's important to be aware that the views that Dr. Satel describes are being held and spread, and for patients and others to know what therapists they would be wise to avoid.

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[Eugene Volokh] Trump Administration's Position on President's Power to Remove Commission Members

From the letter sent yesterday to Senator Richard Durbin (the ranking minority member on the Senate Judiciary Committee) by Acting Solicitor General Sarah M. Harris:

Re: Restrictions on the Removal of Certain Principal Officers of the United States …

Pursuant to 28 U.S.C. 530D, I am writing to advise you that the Department of Justice has determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and that the Department will no longer defend their constitutionality. Specifically, the Department has determined that the statutory tenure protections for members of the Federal Trade Commission (FTC), 15 U.S.C. 41, for members of the National Labor Relations Board (NLRB), 29 U.S.C. 153(a), and for members of the Consumer Product Safety Commission (CPSC), 15 U.S.C. 2053(a), are unconstitutional.

In Myers v. United States, 272 U.S. 52 (1926), the Supreme Court recognized that Article II of the Constitution gives the President an "unrestricted" power of "removing executive officers who had been appointed by him by and with the advice and consent of the Senate." Id. at 176. In Humphrey's Executor v. United States, 295 U.S. 602 (1935), the Supreme Court created an exception to that rule. The Court held that Congress may "forbid the[] removal except for cause" of members of the FTC, on the ground that the FTC exercised merely "quasi-legislative or quasi­-judicial powers" and thus could be required to "act in discharge of their duties independently of executive control." Id. at 628-629. Statutory tenure protections for the members of a variety of independent agencies, including the FTC, the NLRB, and the CPSC, rely on that exception.

The Department has concluded that those tenure protections are unconstitutional. The Supreme Court has made clear that the holding of Humphrey's Executor embodies a narrow "exception" to the "unrestricted removal power" that the President generally has over principal executive officers and that the exception represents "'the outermost constitutional limit[] of permissible congressional restrictions'" on the President's authority to remove such officers. Seila Law LLC v. Consumer Fin. Protection Bureau, 591 U.S. 197, 215, 218 (2020) (citation omitted). Further, the Supreme Court has held, the holding of Humphrey's Executor applies only to administrative bodies that do not exercise "substantial executive power." Id. at 218-219. The Supreme Court has also explained that Humphrey's Executor appears to have misapprehended the powers of the "New Deal-era FTC" and misclassified those powers as primarily legislative and judicial. Id. at 218.

The exception recognized in Humphrey's Executor thus does not fit the principal officers who head the regulatory commissions noted above. As presently constituted, those commissions exercise substantial executive power, including through "promulgat[ing] binding rules" and "unilaterally issu[ing] final decisions * * * in administrative adjudications." Seila Law, 591 U.S. at 218-219. An independent agency of that kind has "no basis in history and no place in our constitutional structure." Id. at 220; see id. at 222 & n.8.

To the extent that Humphrey's Executor requires otherwise, the Department intends to urge the Supreme Court to overrule that decision, which prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President's behalf, and which has already been severely eroded by recent Supreme Court decisions. See, e.g., Selia Law, 591 U.S. at 223-229; Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 492-494 (2010).

This question has long been debated, and will now likely make its way up the court system. You can read for yourself Myers, Humphrey's Executor, Seila Law, and Free Enterprise Fund.

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[Josh Blackman] Can You Appeal An Administrative Stay By A District Court?

The latest innovation in litigation is a district court administrative stay. Traditionally, circuit courts have issued administrative stays to pause a lower court injunction. In other words, the appellate court is staying some lower-court ruling. But in recent weeks, several district courts have issued administrative stays. Stays of what you might ask? Stays of some executive action. This nomenclature is a perversion. Courts stay judicial rulings and enjoin government actions. Courts cannot stay an executive order or statute anymore than an appellate court can enjoin a lower court.

Such an administrative stay sounds an awful lot like a TRO. But these stays have been granted without regard to likelihood of success on the merits. These judges have simply granted administrative stays to "maintain the status quo." At least in theory, these temporary stays are meant to give the court adequate time to resolve a complex issue. What is the basis for such an administrative stay? If there is such authority, it has to be the All Writs Act. But I am still uncertain on this point.

Now, there is a new innovation. President Trump removed Hampton Dellinger, the Special counsel of the Office of Special Counsel (and son of the late, great Walter Dellinger). On February 10, Judge Amy Berman Jackson (DDC) granted an administrative stay to block the removal for a few days. The Trump Administration tried to appeal that administrative stay. On February 12, Judge Jackson ruled that such an appeal is "frivolous," she retains jurisdictions, and now enters a TRO.

Defendants' appeal of the administrative stay did not divest this Court of jurisdiction to consider the instant motion. Only "a non-frivolous appeal from the district court's order divests the district court of jurisdiction over those aspects of the case on appeal." Bombadier Corp. v. Nat'l R.R. Passenger Corp., No. 02-7125, 2002 WL 31818924, at *1 (D.C. Cir. 2002), citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). A motion is "frivolous" when its disposition is obvious and the legal arguments are wholly without merit. Reliance Ins. Co. v. Sweeney Corp., 792 F.2d 1137, 1138 (D.C. Cir. 1986). It is well-settled that even a temporary restraining order "is not generally appealable," Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978), and that principle applies to the brief administrative stay entered to preserve the status quo. See Griggs, 459 U.S. at 58 ("[N]otice of appeal from unappealable order does not divest district court of jurisdiction."), citing Ruby v. Sec'y of the U.S. Navy, 365 F.2d 385, 389 (9th Cir. 1966).

Has any court ever held that a brief administrative stay by a district court cannot be appealed? Griggs certainly didn't say that. The See signal in that citation cannot possibly bear the weight of that inference.

Can you not appeal an administrative stay? Is it really the case that a district judge can issue an unappealable order? Can the judge control the federal government without any appellate review? Or is it that mandamus is the only available process, as with a TRO? Then again, the basis for seeking mandamus turns on the usual TRO factors; how would that work with an automatic administrative stay to simply maintain the status quo? What would the government argue? That the status quo should not be maintained?

I think judges are getting a bit creative with this administrative stay business. Meanwhile, in New York v. Trump, the First Circuit declined to grant an administrative stay of Judge McConnell's ruling on the funding case. The panel cited the uncertainty about administrative stays.

The sole motion we address in this order is the motion for an administrative stay. This Circuit has not addressed whether or when an administrative stay of the sort being requested here may be issued, and there is well-recognized uncertainty as to what standards guide the decision to issue one or not. SeeUnited States v. Texas, 144 S. Ct. 797, 798 (2024) (Barrett, J., concurring). Here, the defendants have requested a stay pending appeal from the District Court, which has not yet ruled on their motion. See Fed. R. App. P. 8(a)(1)(A) ("A partymust ordinarily move first in the district court for… a stay of the judgment or order of a district court pending appeal…."); id. 8(a)(2)(A)(ii) (requiring, in the absence of a showing that "moving first in the district court would be impracticable," that the party moving for a stay pending appeal must "state that… the district court denied the motion or failed to afford the relief requested and state any reasons given by the district court for its action"). Moreover, a centerpiece of the dispute between the parties in this appeal concerns the proper way to construe the February 10 Order. Finally, insofar as we have jurisdiction to consider this request for an administrative stay arising out of a temporary restraining order, cf.Off. of Pers. Mgmt. v. Am. Fed'n of Gov't Emps., AFLCIO, 473 U.S. 1301, 1306 (1985) (Burger, C.J., in chambers) ("[S]ince the Court of Appeals was without jurisdiction over the appeal from the District Court's order denying the temporary restraining order, the motions panel was necessarily without authority to grant such a stay."), the defendants do not cite any authority in support of their administrative stay request or identify any harm related to a specific funding action or actions that they will face without their requested administrative stay. In these circumstances, we assume we have jurisdiction, seeDoe v. Town of Lisbon, 78 F.4th 38, 44-45 (1st Cir. 2023), and deny the motion for an administrative stay without prejudice. We are confident the District Court will act with dispatch to provide any clarification needed with respect to, among other things, the defendants' contention that the February 10 Order "bars both the President and much of the Federal Government from exercising their own lawful authorities to withhold funding without the prior approval of the district court." We note in this regard the plaintiffs' statement in their Opposition to Defendants' Motion for Administrative Stay Pending Appeal that, consistent with the TRO, the February 10 Order "does not stop defendants from limiting access to funds without any 'preclearance' from the district court 'on the basis of the applicable authorizing statutes, regulations, and terms.'" The parties may file any further memoranda in support of their positions on the motion for a stay pending appeal in this court by 5:00 PM on Thursday, February 13, 2025. [25-1138] (AL)

Why would New York bring a law suit in Rhode Island? Does anyone care about forum shopping anymore? Judge McConnell, you may recall, was a close ally of Senator Sheldon Whitehouse.

There you have it. District court judges enter administrative stays, but circuit courts decline to get them. We are through the looking glass.

Justice Barrett was bothered by administrative stays in the Circuit Courts. I think she will be perplexed by them in the District Court. And this practice may get shut down soon.

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