Eugene Volokh's Blog, page 170

[Stephen Halbrook] Second Amendment Roundup: 5th Circuit nixes ban on gun sales to 18 to 20 age group.

On January 30, the Fifth Circuit decided Reese v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, holding that the federal Gun Control Act's prohibition on the sale of firearms to persons under 21 years old, as applied to adults aged 18 to 20 years old, violates the Second Amendment.  The law effectively banned handgun sales, as it has an exception for rifles and shotguns, which may be sold to persons 18 and older.

The opinion was authored by Judge Edith H. Jones and was joined by Chief Judge Elrod and Judge Barksdale.  The provisions at issue are 18 U.S.C. § 922(b)(1), which governs in-person sales from a federally-licensed firearm dealer (FFL), and § 922(c)(1), a little-used provision which applies to sales in which the buyer does not appear at the FFL's premises in-person.  Ironically, the court notes, "The Act and regulations do nothing to prohibit eighteen-to-twenty-year-olds from owning, possessing, or carrying handguns, nor does it prohibit them from buying handguns in the unlicensed, private market or receiving handguns as gifts."

While the words "purchase" and "sale" do not appear in the Second Amendment, the court noted that the right to "keep and bear arms" "surely implies the right to purchase them."  Applying the first step of the analysis as directed by the Supreme Court in Bruen and Rahimi, the court stated: "The threshold textual question is not whether the laws and regulations impose reasonable or historically grounded limitations, but whether the Second Amendment 'covers' the conduct (commercial purchases) to begin with."  Like the First and Fourth Amendments, the Second Amendment refers to "the people" without mention of age or maturity restrictions.

The court rejected the government's further textual argument that eighteen-to-twenty-year-olds lacked certain "civic rights" at the founding, such as jury service and suffrage, and thus were not part of "the people" protected by the Amendment.  Women, not to mention African Americans, did not have such civic rights either.  As the court continued:

Thus, to say that "the people" covered by the Second Amendment is limited to those who were a part of the "political community" at the founding would imply excluding "law-abiding, adult citizens" based on property ownership, race, or gender…. Just as defining "arms" as "only those arms in existence in the 18th century" "border[s] on the frivolous," likewise, attempting to limit "the people" to individuals who were part of the "political community" at ratification is ludicrous.

The reference to arms not being limited to those from the 18th century comes from the Supreme Court's decision in Heller holding that modern firearms are protected by the Amendment.  As an aside, circuits covering states with prohibitions on modern firearms such as the AR-15 disregard what Heller said in upholding the bans.  It's unlikely that the Fifth Circuit will have occasion to consider and weigh in on such bans because the states it covers are unlikely to enact them.  That's why there is no circuit conflict on the issue and also why the Supreme Court should grant cert in  and Ocean State Tactical to resolve the issue without a circuit conflict.

In contrast to civic rights, the Reese court explained that the Second Amendment protects an individual right founded on the right to self-defense.  At the founding, not only were there no age restrictions on the purchase of firearms, but eighteen-to-twenty-year-olds were required by both state and federal militia laws to obtain and keep firearms.  The federal Militia Act of 1792 mandated "that each and every free able-bodied white male citizen" aged 18 to 44 must enroll in the militia and "provide himself with a good musket or firelock, … or with a good rifle…."  Also, in view of the Second Amendment's "well regulated militia" clause, the court stated: "Eighteen-to-twenty-year-olds therefore must be covered by the plain text of the Second Amendment, as they were compulsorily enrolled in the regiments that the Amendment was written to protect."

The Fifth Circuit thus joined two other circuits in holding that eighteen-to-twenty-year-olds are part of "the people" protected by the Amendment.  The Eighth Circuit, in Worth v. Jacobson, invalidated a Minnesota law barring 18-to-20-year-olds from carrying handguns in public.  And the Third Circuit, in Lara v. Commissioner, invalided a Pennsylvania law prohibiting persons aged 18 to 20 from carrying firearms on public streets and property during a declared state of emergency.

The Reese court next applied step two of the Bruen/Rahimi analysis, asking whether the age ban is consistent with the Nation's historical tradition of firearm regulation.  It is here where the government sought to turn that analysis upside down:

The government's theory inverts historical analysis by relying principally on mid-to-late-19th century statutes (most enacted after Reconstruction) that restricted firearm ownership based on age. Then the government works backward to assert that these laws are consistent with founding-era analogues focusing on the minority status and general "irresponsibility" of eighteen-to-twenty-year-olds. The government thus confects a longstanding tradition of firearm restrictions imposed on individuals under twenty-one.

The government presented nothing pertinent from the founding period.  Two antebellum public universities were cited that prohibited students (without regard to age) from possessing firearms (but only on campus).  A state law about constables cited by the government is almost laughable – as the court puts it, "Although 'infants,' i.e., legal minors under the age of 21, were categorically excluded from serving as constables, so also were justices of the peace, lawyers, attorneys, physicians, the poor, the sick, and the elderly."

By contrast, "eighteen-to-twenty-year-olds could be obliged to join the posse comitatus…. Instead of refusing to arm young Americans for fear of their irresponsibility, founding-era regulations required them to be armed to secure public safety."

The government made the further argument that the class of persons under 21 is more prone to being dangerous (I've never understood why the low rate of violence by females never gets mentioned).  As the court rejoined, the handgun purchase ban requires no "judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon."  That's a quote from Rahimi about the federal ban on possession of a firearm by a person with a domestic violence restraining order.  Contrary to those who think that Rahimi weakens Bruen, that shows that Rahimi has teeth in support of Second Amendment rights.

Next, the government cited a number of mostly late 19th century state laws that restricted the subject age group's ability to purchase firearms, but Reese found that these laws "were passed too late in time to outweigh the tradition of pervasively acceptable firearm ownership by eighteen-to-twenty-year-olds at 'the crucial period of our nation's history.'"

To be sure, Bruen acknowledged an "ongoing scholarly debate" regarding the most relevant period of history for issues arising under the Fourteenth Amendment, but as Reese notes, Bruen clarified that "post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text."  In Reese, the government presented "scant evidence" that persons 18 to 20 at the founding "were restricted in a similar manner to the contemporary federal handgun purchase ban," and its 19th century evidence, as Bruen (and Heller before it) said, "cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence." The federal sale ban was thus held to be unconstitutional.

In a case like Reese involving a federal law, it should never be an issue whether the original public understanding of the Second Amendment governs.  But following its practice in other cases, amicus Everytown for Gun Safety actually argues that the 1868 understanding overcomes that of 1791, even in cases that are purely federal and involve no state action.  Latching on to Bruen's comment that the Court has "assumed" that the scope for both state and federal governments "is pegged to the public understanding … in 1791," the brief asserts that "the Court expressly left open the question whether 1868 or 1791 is the relevant focus," and it pointed to "ongoing scholarly debate" mentioned above.  Given what the Court has "assumed" in countless Bill of Rights cases, it is hardly the case that the Court "expressly" left the issue open based merely on the scholarly book and the law review article that the Court cited.

The Everytown brief goes on to argue: "If the Court decides to resolve the issue for future cases, … it should conclude that 1868 is the correct focus in cases challenging both federal and state laws."  That's completely upside down.  Heller teaches that the meaning of the Second Amendment is based on the 1791 understanding.  McDonald teaches that the Fourteenth Amendment was understood to incorporate the Second Amendment, not to change the original meaning of the Second Amendment.  For the definitive analysis of the subject, see Mark Smith's "Attention Originalists: The Second Amendment was adopted in 1791, not 1868" in Harv. J.L. & Pub. Pol'y Per Curiam. 

The Reese case was argued by John Ohlendorf of Cooper & Kirk.  It remains to be seen what will become of the ruling.  As Prof. Jonathan Turley notes, "Had this decision come down under the Biden Administration, an appeal would likely have been taken and this could have strongly reinforced the Court's Second Amendment jurisprudence."  One can only guess whether the Trump Administration will file a cert petition or let well enough alone.

But even if the Administration does not seek review, this issue likely is headed to the Court soon.  On the same day Reese was decided, a panel of the Fourth Circuit heard McCoy v. ATF, a challenge to the same law.  The questioning was very hostile to the Second Amendment challengers, so it appears likely that the Fourth Circuit will create a circuit split.  If that happens, the likelihood of Supreme Court review would be high.

 

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[Josh Blackman] The Flip-Side to CFPB v. CFSAA: What if the Director Requests $0 in appropriations?

The Consumer Finance Protection Bureau was structured to give its director independence from the executive branch and Congress. The CFPB Director served a fixed-term, and could only be removed by the President for proper cause. And the CFPB did not have to ask Congress for appropriations. Rather, the Director could request funds from the Federal Reserve that he deemed "reasonably necessary." And if the agency has a budget surplus, it could maintain and even invest those funds. From its inception, the CFPB was a separation of powers abomination.

Yet, despite the best efforts of regulated parties, the CFPB has survived to this day. Seila Law v. CFPB (2020) found the for-cause protection to be unconstitutional, but saved the agency by making the director removable at will. However, CFPB v. CFSAA (2024) upheld the funding scheme. As a result, Congress has not actually appropriated a penny for the CFPB. This sort of independence made sense when the director sought to maximize the agency's effectiveness. But this independence will have a very different effect with a director who seeks to defenestrate the agency.

Ross Vought, the acting director of the CFPB, announced that the agency will take no further money from the Federal Reserve.

Pursuant to the Consumer Financial Protection Act, I have notified the Federal Reserve that CFPB will not be taking its next draw of unappropriated funding because it is not "reasonably necessary" to carry out its duties. The Bureau's current balance of $711.6 million is in fact…

— Russ Vought (@russvought) February 9, 2025

Instead, Vought will rely on the $700+ million budget surplus. If he even uses that money. Vought has effectively shut down operations and told workers to stay home. However, I don't think anything would stop Vought from transferring that amount back to the federal reserve.

What happens going forward? Vought can starve the agency of funding if he deems the money not "reasonably necessary." And Congress can't do a damn thing about it. I don't even know if there is some mechanism by which Congress could force the agency to take appropriated funds. I'm sure some D.C. Circuit panel could try to force Vought to request funding from the Federal Reserve. But that would be a striking and novel interference with executive power. Again, if the CFPB was a normal agency, the failure to spend money would raise impoundment concerns. But the CFPB was made above the appropriation power.

Elizabeth Warren and her colleagues sought to create an agency insulated from the President and Congress. That strategy may have made sense with Barack Obama in office and Mitt Romney on the horizon. But this approach is quite different with President Trump.

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[Eugene Volokh] Brandon Garrett Guest-Blogging About "Defending Due Process: Why Fairness Matters in a Polarized World"

I'm delighted to report that Prof. Brandon Garrett (Duke Law School) will be guest-blogging this week about his new book. The publisher's summary:

We all feel unfairness deeply when treated in rash ways. We expect, and the law requires, government officials to take fairness seriously, giving us notice and an opportunity to be heard before taking our rights away. That is why the U.S. Constitution commands, twice, that no one shall be deprived of life, liberty, or property without due process of law. Yet, in overheated debates, people argue that others do not deserve any presumption of innocence. In courtrooms and colleges, police stations and jails, restaurants and libraries, print and online, the democratic value of due process is up for grabs.

Why is due process under so much pressure? Brandon Garrett exposes widening fault lines. One division lies within our own attitudes, and he explores why we are tempted to put desired outcomes before fair process. Another lies in government, as judges adopt toothless due process rules. People are trapped in debt for unpaid traffic fines; sheriffs seize and forfeit belongings; algorithms suspend teachers' employment; officials use flawed data to cancel healthcare; and magistrates order arrestees to be jailed because they cannot pay cash bail. Meanwhile, the rise of AI threatens what remains of due process with black-box technology.

To fight against such unfairness, lawyers try to challenge unjust systems, researchers demonstrate why such processes are so counterproductive, and lawmakers try to enact new protections. Common ground matters now more than ever to mend political polarization, cool simmering distrust of government, prevent injudicious errors, and safeguard constitutional rights. A revival of due process is long overdue.

And the blurbs:

"Defending Due Process is stunning in its originality; it is, in every way, a superb book that deserves a wide readership. I know of no other work like it."
Erwin Chemerinsky, University of California, Berkeley

"Defending Due Process does just what the title promises ― it makes a persuasive case for the importance of procedural values. Brandon Garrett has done a wonderful job of making the topic accessible by illustrating his argument with compelling and often heart-wrenching stories of people harmed by government actions they can barely comprehend. This is an important book for anyone who wants to understand the virtues and vices of our legal system."
Stuart Banner, University of California, Los Angeles

"What counts as a fair process when the government is taking away your liberty or your property? No question is more fundamental to our legal system, and no question is harder to answer with precision. Defending Due Process offers a comprehensive rethinking of the problem, drawing on narrative, original empirical research, and a cautious assessment of emerging technologies. Scholarly rigor is combined with readability, making this a valuable read for anyone who cares about getting fairness right in a complex and changing world."
Noah Feldman, Harvard University

"Whenever we are wronged or feel wronged, we rightfully want to understand what happened, and why, and to have a chance to object. Governments and companies increasingly make crucial decisions about us that shape our lives, but we have little chance to say anything. With his characteristic care and wisdom, Brandon Garrett helps us understand the importance of due process in all aspects of our lives. Clearly and compellingly, he shows us how, in ways personal and societal, due process has the potential to repair and reinvigorate our democracy. Bravo."
Danielle Keats Citron, University of Virginia School of Law

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[Jonathan H. Adler] Can the Trump Administration Unilaterally Cut Indirect Costs for NIH Grants?

On Friday, the Trump Administration announced that it would cap the indirect cost rate for federal grants from the National Institutes of Health at fifteen percent. According to the Administration, this cap is justified because the federal government often pays far higher indirect cost rates than do private foundations that fund health research, and that the generous reimbursement of such costs subsidizes administrative bloat at universities and other grant recipients.

However justified the Trump Administration's move may be as a matter of policy, it has significant legal problems, not least because it purports to apply to existing grants and appears to contravene an appropriations rider that remains in force for the current fiscal year. These and other legal short-comings are detailed by former HHS General Counsel Sam Bagenstos in his Inside/Outside newsletter. Bagenstos disagrees with policy on the merits, to be sure, but his legal analysis is persuasive whether or not one agrees with his policy priors.

So, for instance, I do not equate the Trump Administration's efforts to "reduce federal taxpayer subsidization of leftist agendas" with an "attack" on "independent institutions," as I do not agree with Bagenstos that all of the institutions he has in mind should be considered "independent," or that they are deserving of federal support. I also think it's quite reasonable for the federal government to be more deliberate about the degree of indirect costs that should be included in research grants, particularly given the way administrative costs and staffing have exploded at many universities. But I agree that these propositions should be debated, and that any unilateral action taken by the executive branch on such matters should comply with the law.

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[Jonathan H. Adler] Calls for Popular Constitutionalism in the Rear-View Mirror

In 2023, Mark Tushnet and Aaron Belkin published an "Open Letter to the Biden Administration on Popular Constitutionalism" making recommendations on how the Biden Administration should respond to the "not . . . normal" Supreme Court. It read in part:

We urge President Biden to restrain MAGA justices immediately by announcing that if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations. . . .

The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court's interpretation of the Constitution should offer and then follow an alternative interpretation. If voters disagree with the President's interpretation, they can express their views at the ballot box. Popular Constitutionalism has a proud history in the United States, including Abraham Lincoln's refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential powers.

The premise of this letter was that the Supreme Court's conservative jurisprudence is and would be at odds with popular opinion, and that the political branches could enlist popular support to resist the Court's decisions. However true that premise was at the moment the letter was written, it was a grave error to assume that premise would hold. Today courts will be called upon to constrain MAGA initiatives, and there will be pressure for the Trump Administration to resist decisions that do not go its way. (And, if the first term is a harbinger of things to come, there will be many such decisions.)

President Biden never heeded Tushnet and Belkin's advice. Can we be so sure that a Trump Administration will be so reticent? Particularly in areas on which the administration was quite clear about its intentions during the campaign, such as immigration, does popular constitutionalism lead in the direction Tushnet and Belkin want it to go?

This is not the first time Tushnet has suggested breaking norms to advance progressive aims, only to find it is conservatives (not progressives) who are poised to act on Tushnet's recommendations. Recall how he suggested the Supreme Court should abandon a "defensive crouch" posture once Justice Scalia's replacement was confirmed.

These episodes remind us that opportunistic calls to abandon norms can be quite short-sighted--sometimes dangerously so.

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[Josh Blackman] Can President Trump Appoint Himself Chairman of the Kennedy Center Board of Trustees?

President Trump announced that he would appoint himself as chairman of the Kennedy Center Board of Trustees. 20 U.S.C. § 76h provides that "The general trustees shall be appointed by the President of the United States." As a statutory matter, Trump seems to have this authority. I am unaware of any instance in which any President has ever appointed himself to an office. (Here, I will assume that the chairman position is in fact an office, but I haven't thought the issue through fully; indeed, the precise status of the Kennedy Center is apparently an open question.)

Is such a self-appointment constitutional? First, in the abstract, government officials have used their authority to obtain new offices. Governors have appointed themselves to fill Senate vacancies. As best as I can recall, these governors also resigned from their state position to avoid dual-office holding. But such a resignation was not required by the Constitution. Perhaps a related issue occurred during the impeachment of President Andrew Johnson. At the time, Benjamin Wade, the Senate President Pro Tempore, was next in line for the presidency. Wade voted to convict Johnson, though Johnson was ultimately acquitted.

Second, Trump's self-appointment does not violate the Incompatibility Clause. That provision states that "and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." This clause does not prohibit dual office-holding within the executive and/or judicial branches. Chief Justice Marshall concurrently served as Secretary of State in the final days of the Adams Administration. (Marshall was at fault for not delivering William Marbury's commission).

Third, the Constitution does impose a limit on the President's ability to hold other offices. The Foreign Emoluments Clause provides that the President can accept an "Office . . . from any King, Prince, or foreign State" only with the consent of Congress. And the Domestic Emoluments Clause provides that the President "shall not receive within that Period any other Emolument from the United States." But this text only applies to a position that provides emoluments, or compensation. By contrast, the Impeachment Disqualification Clause extends to an "Office of honor, Trust or Profit under the United States." Tillman and I have written that an office of honor refers to an uncompensated position. As I understand it, the chairman position is uncompensated, so there is no emolument problem. I do not think the Framers who drafted this provision considered the President appointing himself to an unpaid position, but that is a separate question.

Fourth, there may be a structural problem with this appointment. The President has the duty to take care that the laws are faithfully executed. This obligation is supervisory in nature. That is, the President supervises that his subordinates execute their statutory authorities. The President generally does not execute statutory authority. I am not sure how the President could exercise this supervisory function while at the same time executing the statutory duties himself. No man should be a judge in his own cause; I would think a similar standard applies to the duty of faithful execution. But I am tentative on this last point.

Once again, President Trump brings obscure constitutional provisions and questions to the fore. Do not think for a moment these questions have easy answers.

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[David Post] Muskgate

Last night, the federal district court in New York (SDNY) issued a temporary restraining order in State of New York et al. v. Donald J Trump et al., a lawsuit filed by the AGs of 19 States against Trump and Treasury Secretary Scott Bessent.

The suit (and a separate lawsuit filed by Public Citizen in D.D.C.) challenges one of the more outrageous actions taken by President Trump in his first three weeks: granting Elon Musk and members of the "Department of Government Efficiency" - private citizens, all - full access to the Treasury Department's main payment system, the one through which virtually all of the $6 trillion or so disbursed by the federal government each year - to bondholders, social security recipients, NIH grantees, Medicare providers, university laboratories and hospitals, military contractors, armed services personnel,  etc. - is channeled.

Is anyone not riled up about this? The President simply picks one of his cronies - one who just happened to have contributed tens of millions of dollars to his successful campaign for office - and says "Go at it"? Can he really do that? Lawfully?

As it turns out, no, he can't do that - not lawfully.

I suppose there are those who think: "Well, he's the head of the Executive Branch, and he runs the Treasury Department, and he can (apparently) fire pretty much anyone and everyone in it - so why can't he tell them who does and who doesn't have access to the payment databases?" And the answer, of course, is: Because his conduct as head of the Executive Branch is bound and constrained by law, in this case, by the relevant provisions of both the Privacy Act of 1974 and the Administrative Procedure Act, each of which restricts the government's ability to collect, store, and disseminate confidential personal information of the kind in the Treasury systems in ways that are completely inconsistent with Trump's actions here.

This isn't the place for a detailed statutory analysis of two rather complicated statutes. The AGs' memorandum accompanying their motion for a TRO [available here] has a cogent and brief summary of the requirements these statutes impose on the government in its handling of confidential and personal information ,and why the president cannot simply authorize, unilaterally, a private citizen to access this information.

It's what stands between "the President" and "one-man rule."

It is just a TRO; the court has not ruled on the merits of the States' claims beyond noting that the States have (as required for a TRO) demonstrated a "likelihood of success on the merits of their claims" - adding "with the States' statutory claims presenting as particularly strong." !

The order itself is an interesting document. The Treasury Department is, at least temporarily, prohibited from:

(i) granting access to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information … other than to civil servants with a need for access to perform their job duties within the Bureau of Fiscal Services who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations;

(ii) granting access to political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department, to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees.

And the Department is further ordered:

(iii) to direct any person prohibited above from having access to such information, records, and systems but who has had access to such information, records, and systems since January 20, 2025, to immediately destroy any and all copies of material downloaded from the Treasury Department's records and systems.

I take it that "any person prohibited above" refers to the "political appointees, special-government employees, and government employees outside the Treasury Department."  I wonder if the court will demand proof from the Treasury Department that, in compliance with the order, the information collected up to this point by Musk and the DOGE has, in fact, been destroyed.

A hearing on whether the TRO should be converted into a preliminary injunction against Trump and the Treasury Department has been scheduled for this coming Friday. The court, I predict, will issue the injunction - does anyone out there think otherwise?

This episode raises, once again, the question of whether Trump cares one whit about whether his actions are or are not lawful. The pattern's becoming pretty clear, no? The now-you-see-it-now-you-don't freeze on federal grants, the closing of US AID, the supposed elimination of birthright citizenship via Executive Order, Muskgate . . . So far, the courts, fortunately, have been there to restrain him from violating the law.

What happens when he ignores one of these restraining orders? Is there anyone out there who doesn't believe that day is coming?  What will we do then?

 

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[Josh Blackman] Today in Supreme Court History: February 9, 1937

2/9/1937: NLRB v. Jones & Laughlin Steel Corp. argued.

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[Ilya Somin] Two Federal Courts Issue Injunctions Against Trump's Birthright Citizenship Executive Order

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Two federal district courts - one in Maryland and one in Washington - recently issued injunctions blocking Donald Trump's executive order denying birthright citizenship to children of undocumented immigrants and those in the US on temporary visas. The Washington decision was written by Judge John Coughenour (a Reagan appointee), and the Maryland one by Judge Deborah Boardman (appointed by Biden). Between them, the two rulings do a good job of highlighting the weaknesses of Trump's position on this issue, which goes against the text and original meaning of the Fourteenth Amendment, and longstanding precedent. As Judge Boardman summarizes, "[t]he Executive Order flouts the plain language of the Fourteenth Amendment to the United States Constitution, conflicts with binding Supreme Court precedent, and runs counter to our nation's 250-year history of citizenship by birth."

Reason's Jacob Sullum has a helpful summary and discussion of the two rulings here.

I have previously written about this issue here, here, and here. One key point worth reiterating is that many of the arguments put forward by the administration and its supporters would also have allowed denial of birthright citizenship to many formerly enslaved blacks (even though giving them citizenship was the main purpose of the Birthright Citizenship Clause), and to children of permanent resident legal immigrants, as well. The latter is a logical implication of the administration's argument that birthright citizenship is denied to children of parents who, by virtue of being citizens of another nation, owe that government "allegiance."

The administration will appeal these rulings and the legal battle will continue, possibly all the way to the Supreme Court. So far, however, courts have forcefully rejected the government's weak arguments.

 

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[Ilya Somin] Trump's Cruel Assault on Legal Immigration

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Most of the media coverage and public debate over Trump's new immigration policies focus on his efforts to ramp up mass deportation of undocumented immigrants. But it is also important to emphasize  how the new administration has sought to gut much of the legal immigration system. If they succeed, it is likely to cause great harm and injustice to both immigrants and US citizens. My Cato Institute colleague David Bier has a helpful summary of Trump's actions against legal migration so far:

- Suspending indefinitely all US refugee entries, canceling 10,000 previously scheduled flights, and stranding 22,000 refugees who were approved to travel. A report on a potential limited restart is due in 90 days (Apr. 20).

Suspending all case processing for refugees, which means that no progress will be made toward restarting entries. Closing Safe Mobility Offices in Latin America that allowed some people to apply for lawful entry to the United States. Requiring refugees undergo "stringent identification verification beyond that required of any other alien seeking admission," which may invalidate all prior vetting approvals….

- Removing the ability to schedule appointments for lawful entry at the US-Mexico border using the CBP One phone app, which had permitted 1,450 people per day (529,250 per year) to enter the United States legally. About 270,000 people waiting for appointments are stranded in Mexico.

- Canceling 30,000 scheduled appointments for people stuck in Mexico. There is a lawsuit on behalf of one asylum seeker and her child who "depleted their life savings and survived kidnapping, robbery, and threats of sexual abuse" while waiting for an appointment….

Ending the parole sponsorship processes for new arrivals from Cuba, Haiti, Nicaragua, Venezuela, and Ukraine.

- Ending the family reunification parole programs for some Cuban, Guatemalan, Haitian, Colombian, and Salvadoran immigrant visa applicants who seek to reunite with their families when green cards are not immediately available under the caps.

- Ending the Central American Minors program, which allowed children from Guatemala, Honduras, and El Salvador to reunite legally with parents in the United States.

- Allowing Immigration and Customs Enforcement (ICE) agents to invalidate anyone's parole. Trump is reportedly going to strip all Cubans, Haitians, Nicaraguans, and Venezuelans of parole en masse.

- Rescinding the Temporary Protected Status (TPS) redesignation for 600,000 Venezuelans, including many who entered the country legally via the parole processes and CBP One. This means that their status will expire sooner than it would otherwise.

- Terminating TPS completely for 300,000 Venezuelans: These Venezuelans will lose their status in 60 days (April 1).

- Canceling visa interviews for hundreds of Colombians in response to their government's temporary refusal to accept deportations on military planes.

- Promising to quickly cancel student visas for and deport all "Hamas sympathizers," which some analysts interpret as a threat to anyone critical of Israel's government. It is possible this could affect future visa issuances.

- Denying birthright citizenship to American children born in the United States to mothers who are here illegally or in a temporary status, unless the father is a permanent resident or US citizen, starting no later than February 19, 2025. This has been temporarily blocked by a court.

Elsewhere, I have written about Trump's "invasion" executive order that relies on a dangerous legal theory to block nearly all legal migration pathways across the southern border.

In combination, this entails a massive gutting of legal migration. It will predictably consign many thousands of migrants and would-be migrants to a lifetime of poverty and oppression. Particularly egregious are the actions stripping legal status from hundreds of thousands of Venezuelans fleeing a brutally oppressive socialist regime. Trump's actions are far from the first unjust immigration restrictions in American history. But never before has the US tried to deport so many people fleeing a regime we ourselves condemn as horrifically oppressive, after those immigrants had entered completely legally.

Trump's actions also include blocking the admission of 1700 previously vetted Afghan refugees, including some who had risked their lives supporting US forces in the Afghan war. This kind of betrayal is both wrong in itself, and likely to be damaging to national security, deterring potential future allies from working with the US to combat terrorism.

In addition to the harm inflicted on immigrants, these actions will also severely damage the US economy, as immigrants contribute disproportionately to entrepreneurship and innovation, and promote economic growth. Cutting immigration will also worsen the federal government's already dire fiscal situation, as most immigrants .are net contributors to the public fisc. And, obviously, making legal migration more difficult is a major factor in incentivizing more of the illegal kind, and causing disorder at the border.

Bier also notes additional actions against legal immigration, that are likely in the offing, including severely curbing visas for legal entry, and ideological litmus tests for immigrants, barring those who "bear hostile attitudes toward [US] citizens, culture, government, institutions, or founding principles." If you are skeptical of government censorship in the domestic context, you should be equally so when it comes to migration. The government should not have the power to restrict freedom of movement based on its subjective assessment of what views qualify as "hostile" to US citizens, culture, or government.

Trump has proposed to make legal migration easier for one group: white Afrikaner South Africans, who are to be prioritized for refugee status.  I am all in favor of letting white South Africans immigrate freely. But the idea that they are somehow more threatened by oppression or more worthy of refugee status than, say, Cubans, Venezuelans, and Afghans, is ridiculous and perverse.

Bier concludes that Trump's efforts to throttle legal migration are likely to lead to "four years of indescribable lawlessness, waste, chaos, and economic uncertainty that will leave America smaller, poorer, and less free." I can't disagree.

 

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