Eugene Volokh's Blog, page 182

[Josh Blackman] The Birthright Citizenship Executive Order

Much has been written about President Trump's executive order concerning birthright citizenship. I'll add a few thoughts here.

First, this order did not tie the denial of birthright citizenship to the invasion order. Rather, it is far broader. A child born to any mother who is not lawfully present, or a mother who only lawfully present for a temporary period, would not be a birthright citizen. This position can be refined in the inevitable litigation.

Second, the order only applies prospectively to children born 30 days after the issuance of the order. But if this order is successful, there is nothing that would prevent this policy from being enforced retroactively. Trump would not have to denaturalize people. It would be sufficient to deny them documentation of citizenship.

Third, the order simply withholds the issuance of certain identity documents:

It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship . . . .

This order brings to mind Zivotofsky v. Kerry (2015). Justice Thomas's concurrence found that the President has a "residual foreign affairs power" to regulate passports, but the President has no such power over "consular reports of birth abroad." Perhaps one of the most significant exercises of this power was when the Lincoln Administration issued passports to Black Americans, notwithstanding that Dred Scott ruled that such people could never become citizens. Remember, Lincoln did not defy Dred Scott; he simply limited that ruling to the named parties. If Thomas is right, then Congress has no power, whatsoever, over passports. Would Trump argue that the President's residual foreign affairs power over passports gives him any special authority to interpret Section 1 of the 14th Amendment? There may be something more here. I need to think about it some more.

By contrast, in Zivotofsky, Justice Scalia's dissent rejected Thomas's analysis.

The concurrence's stingy interpretation of the enumerated powers forgets that the Constitution does not "partake of the prolixity of a legal code," that "only its great outlines [are] marked, its important objects designated, and the minor ingredients which compose those objects [left to] be deduced from the nature of the objects themselves." McCulloch, 4 Wheat., at 407. It forgets, in other words, "that it is a constitution we are expounding." Ibid.

This is one of the rare cases where Scalia and Thomas disagree, and vigorously so, on an originalist question.

The ACLU challenged this birthright citizenship order in New Hampshire. And two dozen blue states, led by New Jersey, filed suit in Massachusetts. I guess it was determined the First Circuit would have jurisdiction over this claim. That makes sense, since the First Circuit has ruled over the status of Puerto Rico, which is adjacent to the insular cases. There is probably some favorable precedent there.

I watched as Trump signed this order. He did not seem particularly confident that he would win this case, as opposed to some of his other actions. The Court will almost certainly rule against Trump. But in the process, does John Roberts tell us what "subject to the jurisdiction thereof" actually means? Is it just the children of diplomats who are excluded? Who else is not covered? You can be sure Trump will respond accordingly. Indeed, maybe that is the point of drawing the categories so broadly. Any wiggle room that the Court leaves will be wiggled.

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[Josh Blackman] President Trump's Executive Order on the U.S. Refugee Admissions Program

During the first Trump Administration, there were three iterations of the travel ban. Just as one version got to the Supreme Court, it lapsed, and another version came shortly thereafter. This strategy frustrated the litigation, and made it tougher to get a final judgment. President Trump's new order on the U.S. Refugee Admissions program will likely follow a similar pattern.

First, President Trump invokes Section 1182(f), the statute at issue in the travel ban. He deems the entry of all refugees to be detrimental to American interests. And he orders the denial of their entry.

Sec. 3. Realignment of the U.S. Refugee Admissions Program. (a) I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that entry into the United States of refugees under the USRAP would be detrimental to the interests of the United States. I therefore direct that entry into the United States of refugees under the USRAP be suspended — subject to the exceptions set forth in subsection (c) of this section — until a finding is made in accordance with section 4 of this order. This suspension shall take effect at 12:01 am eastern standard time on January 27, 2025.

The order goes into effect one week after the inauguration. This provides for a pre-enforcement challenge--a bit more orderly than the travel ban order that went into effect by surprise. And the order remains in effect until Trump makes some future finding (see below). Unlike the travel ban, which was indefinite, this order has some theoretical end point. This fact will aid in the litigation.

Second, there is not a categorical ban. Trump allowed for the exercise of prosecutorial discretion. In theory, at least, some refugees can be admitted, so long as they do not pose a threat to American interests.

(c) Notwithstanding the suspension of the USRAP imposed pursuant to subsections (a) and (b) of this section, the Secretary of State and the Secretary of Homeland Security may jointly determine to admit aliens to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the entry of such aliens as refugees is in the national interest and does not pose a threat to the security or welfare of the United States.

Third, there is a ninety day clock. In theory at least, in three months, there will be a careful review which can be used to support the policy.

Sec. 4. Resumption of the U.S. Refugee Admissions Program. Within 90 days of this order, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit a report to the President through the Homeland Security Advisor regarding whether resumption of entry of refugees into the United States under the USRAP would be in the interests of the United States, in light of the policies outlined in section 2 of this order. The Secretary of Homeland Security, in consultation with the Secretary of State, shall submit further reports every 90 days thereafter until I determine that resumption of the USRAP is in the interests of the United States.

It may take about three months to get this case up to the Supreme Court. Just as it gets there, the Secretary of Homeland Security will release a report, which will likely force the Supreme Court to remand the case to the District Court, with instructions to consider the new policy. This structure will make it very hard to obtain a final judgment. And I think this structure reflects lessons learned from the travel ban litigation.

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[Josh Blackman] When The Resistance Tail Catches The DOGE

Mere moments after President Trump his oath, a group of progressive public interest groups filed suit to challenge DOGE. Of course, DOGE had not yet been created. It wasn't even clear what DOGE was. And who has standing to challenge a non-existent entity? But Resistance demands being the first to file.

The complaints assumed that DOGE would be some sort of advisory committee outside the aegis of the federal government. These committees may be subject to the Federal Advisory Committee Act (FACA). In 1993, a federal district court found that the President's Task Force on National Health Care Reform, chaired by Hillary Clinton violated FACA. However, the D.C. Circuit reversed that decision, finding that the task force was not subject to FACA. (This is a rare case where Judge Silberman reversed Judge Lamberth.)

But there's a problem for the Resistance. DOGE is not an advisory committee. It is not subject to FACA. The President's order explains that DOGE will be housed within the Executive Office of the President:

Sec. 3. DOGE Structure. (a) Reorganization and Renaming of the United States Digital Service. The United States Digital Service is hereby publicly renamed as the United States DOGE Service (USDS) and shall be established in the Executive Office of the President.

(b) Establishment of a Temporary Organization. There shall be a USDS Administrator established in the Executive Office of the President who shall report to the White House Chief of Staff. There is further established within USDS, in accordance with section 3161 of title 5, United States Code, a temporary organization known as "the U.S. DOGE Service Temporary Organization". The U.S. DOGE Service Temporary Organization shall be headed by the USDS Administrator and shall be dedicated to advancing the President's 18-month DOGE agenda. The U.S. DOGE Service Temporary Organization shall terminate on July 4, 2026. The termination of the U.S. DOGE Service Temporary Organization shall not be interpreted to imply the termination, attenuation, or amendment of any other authority or provision of this order.

(c) DOGE Teams. In consultation with USDS, each Agency Head shall establish within their respective Agencies a DOGE Team of at least four employees, which may include Special Government Employees, hired or assigned within thirty days of the date of this Order. Agency Heads shall select the DOGE Team members in consultation with the USDS Administrator. Each DOGE Team will typically include one DOGE Team Lead, one engineer, one human resources specialist, and one attorney. Agency Heads shall ensure that DOGE Team Leads coordinate their work with USDS and advise their respective Agency Heads on implementing the President's DOGE Agenda.

DOGE will be within the government, and be staffed by government employees. There may be "Special Government Employees," such as Elon Musk. But that is not a FACA issue.

How embarrassing for the Resistance. Will any of these groups explain to their donors how they sued a non-existent entity based on a completely irrelevant statute? I hope the Resistance takes it easy. It will be a long four years.

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[Josh Blackman] President Trump's TikTok Executive Order

Four days ago, the Supreme Court upheld the TikTok ban. Even before that decision was issued, President Biden announced that he would not enforce the policy for the final 36 hours of his presidency. (In hindsight, he may have been too busy signing pardons.) Yet, for a short while, TikTok went dark. And then TikTok turned on again, in anticipation of Trump's inauguration. On his first day in office, Trump signed an executive order concerning TikTok.

The order echoes President-Elect Trump's amicus brief. Trump asserts that the law impinges on his authority over national security:

I have the unique constitutional responsibility for the national security of the United States, the conduct of foreign policy, and other vital executive functions. To fulfill those responsibilities, I intend to consult with my advisors, including the heads of relevant departments and agencies on the national security concerns posed by TikTok, and to pursue a resolution that protects national security while saving a platform used by 170 million Americans. My Administration must also review sensitive intelligence related to those concerns and evaluate the sufficiency of mitigation measures TikTok has taken to date.

Like in the brief, Trump refers to the timing of the statute as "unfortunate." This timing was no accident. Congress intended this decision to fall to President Biden.

The unfortunate timing of section 2(a) of the Act — one day before I took office as the 47th President of the United States — interferes with my ability to assess the national security and foreign policy implications of the Act's prohibitions before they take effect.

And Trump repeats his refrain that he can make a deal.

This timing also interferes with my ability to negotiate a resolution to avoid an abrupt shutdown of the TikTok platform while addressing national security concerns.

Trump directs his administration to take no action against anyone for seventy-five days.

Accordingly, I am instructing the Attorney General not to take any action to enforce the Act for a period of 75 days from today to allow my Administration an opportunity to determine the appropriate course forward in an orderly way that protects national security while avoiding an abrupt shutdown of a communications platform used by millions of Americans.

Trump doesn't quite say that the statute is unconstitutional. There is no basis, then for an Article II override. Rather, this seems to be purely an act of prosecutorial discretion. But it is more than that. Trump promises that no future penalties will be imposed on companies that work with TikTok.

Sec. 2. Action. (a) I hereby order the Attorney General not to take any action on behalf of the United States to enforce the Act for 75 days from the date of this order, to permit my Administration an opportunity to determine the appropriate course of action with respect to TikTok. During this period, the Department of Justice shall take no action to enforce the Act or impose any penalties against any entity for any noncompliance with the Act, including for distributing, maintaining, or updating (or enabling the distribution, maintenance, or updating) of any foreign adversary controlled application as defined in the Act. In light of this direction, even after the expiration of the above-specified period, the Department of Justice shall not take any action to enforce the Act or impose any penalties against any entity for any conduct that occurred during the above-specified period or any period prior to the issuance of this order, including the period of time from January 19, 2025, to the signing of this order.

In theory at least, the next administration could choose to bring an action within the statute of limitations. But that is unlikely. What makes this more unlikely is that the Attorney General must issue a non-enforcement letter:

(b) The Attorney General shall take all appropriate action to issue written guidance to implement the provisions of subsection (a).

(c) I further order the Attorney General to issue a letter to each provider stating that there has been no violation of the statute and that there is no liability for any conduct that occurred during the above-specified period, as well as for any conduct from the effective date of the Act until the issuance of this Executive Order.

I am fairly certain that these sorts of letters can be relied upon in the event of any future enforcement action. Alan Rozhenstein flags Zach Price's article about reliance on non-enforcement. Alan makes some fair points, but as a matter of realpolitik, I doubt there will ever be a prosecution. And that is enough for the lawyers at Oracle and Akami.

Apart from the estoppel argument, I see here a fairly clear violation of the Take Care Clause. This is not simply an exercise in discretion. The President is authorizing the violation of a statute that was just upheld by the Supreme Court. And this order, like others, issues direct orders to the Attorney General about how to exercise prosecutorial discretion. Trump is making clear that he sees the Attorney General as his subordinate. I am inclined to agree with this view of Article II, but it represents a departure from how past presidents have interacted with their Attorneys General.

Finally, the Attorney General can take steps to block enforcement of the ban by private parties or states.

(d) Because of the national security interests at stake and because section 2(d) of the Act vests authority for investigations and enforcement of the Act only in the Attorney General, attempted enforcement by the States or private parties represents an encroachment on the powers of the Executive. The Attorney General shall exercise all available authority to preserve and defend the Executive's exclusive authority to enforce the Act.

I'm a bit confused, as I don't see any private causes of action under the statute.

As a coda to signing the order, President Trump announced one possible deal:

The order, one of Mr. Trump's first acts after taking office, instructs the attorney general not to take any action to enforce the law so that his administration has "an opportunity to determine the appropriate course forward." The order is retroactive to Sunday.

As he signed the order, Mr. Trump told reporters that "the U.S. should be entitled to get half of TikTok" if a deal for the app is reached, without going into detail. He said he thought TikTok could be worth a trillion dollars.

The order could immediately face legal challenges, including over whether a president has the power to halt enforcement of a federal law. Companies subject to the law, which forbids providing services to Chinese-owned TikTok, may determine that the order does not provide a shield from legal liability.

Trump said: "If I do the deal for the United States, I think we should get half."

After Trump filed his brief, I wrote:

After nearly a decade, I think people still do not understand Trump. He doesn't play like everyone else does, and that is what infuriates people. When he says something that people deem outlandish, it is merely an opening bid, not the final offer. I think he views this case like he views just about everything else--as a deal to be made.

All his proceeding are going to plan.

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[Josh Blackman] President Trump's Executive Order About Exclusion and Removal of Aliens

In immigration law, there are two broad categories of executive actions: exclusion and removal. The former policy prevents aliens from entering the country, and the latter policy removes aliens already in the country. As a general matter, aliens in the United States benefit from a host of constitutional, statutory, and treaty-based protections, reinforced by robust judicial review. But aliens seeking entry stand in a different position. They generally lack any constitutional rights and can only apply for admission through fairly intricate statutory or treaty-based processes. And a denial of a visa is generally subject to a doctrine of consular non-reviewability. In practice, an alien can't sue the federal government if a visa is denied.

Still, American citizens and other organizations can sponsor, or seek the admission of certain aliens. Indeed, the courts have held that when the government denies entry to an alien, that denial can violate the First Amendment rights of U.S. Citizens. This doctrine stems from the case of Kleindienst v. Mandel (1972). American professors were allowed to challenge the denial of entry of a Marxist professor from Belgium, on the ground that the professors wanted to hear the professor's message. I've long thought Mandel was wrongly decided. The professors should have no basis to challenge the denial of entry of an alien based on the professors' asserted First Amendment interest. Indeed, with the age of Zoom, the notion that the United States has to admit a professor to talk to college students does not fly.

Four decades later, a fractured Court in Kerry v. Din (2015) held that an American citizen has some due process interest to ensure a family member can seek entry to the United States. I do not think Justice Kennedy's plurality opinion in that case stands for much anymore. More recently, Trump v. Hawaii (2018) broadly read the President's power to exclude aliens. And, despite unified Democratic government, Congress did not actually modify that statutory authority. It should be no surprise, then, that President Trump seeks to use this authority.

One of President Trump's new orders provides some broader parameters over who will be admitted--but it also speaks to the types of aliens in the United States who will be removed.

The policy provides:

And the United States must ensure that admitted aliens and aliens otherwise already present in the United States do not bear hostile attitudes toward its citizens, culture, government, institutions, or founding principles, and do not advocate for, aid, or support designated foreign terrorists and other threats to our national security.

I'm sure immigration groups will seize upon this standard as a violation of the First Amendment. Again, Aliens inside the United States have some First Amendment rights. Although, under Bluman v. FEC (2012), they do not have full rights to support political campaigns. And the courts are divided about whether aliens have Second Amendment rights.

The order also seeks to remove aliens who have hostile attitudes to the American government:

(c) Whenever information is identified that would support the exclusion or removal of any alien described in subsection 2(b), the Secretary of Homeland Security shall take immediate steps to exclude or remove that alien unless she determines that doing so would inhibit a significant pending investigation or prosecution of the alien for a serious criminal offense or would be contrary to the national security interests of the United States.

Again, aliens in the United States, even if here unlawfully, can assert First Amendment rights.

Section 1182(f) provides that the President can deny entry to "any class of aliens into the United States would be detrimental to the interests of the United States." The statute does not define what "detrimental" means. Generally, that term has concerned some national security interest. But Trump would go further:

(c) Evaluate all visa programs to ensure that they are not used by foreign nation-states or other hostile actors to harm the security, economic, political, cultural, or other national interests of the United States.

What does it mean for an alien to harm the "cultural" interests of the United States?

Moreover, entry is denied to people who have undermined "fundamental constitutional rights" including free speech and freedom of religion.

(d) Recommend any actions necessary to protect the American people from the actions of foreign nationals who have undermined or seek to undermine the fundamental constitutional rights of the American people, including, but not limited to, our Citizens' rights to freedom of speech and the free exercise of religion protected by the First Amendment, who preach or call for sectarian violence, the overthrow or replacement of the culture on which our constitutional Republic stands, or who provide aid, advocacy, or support for foreign terrorists;

If I'm reading this right, certain students who participated in anti-Israel protests will be denied visas. Universities were prudent to encourage their students to return to the United States before January 20. But their visas may not be renewed.

Finally, the order calls for a policy of "proper assimilation."

(f) Evaluate the adequacy of programs designed to ensure the proper assimilation of lawful immigrants into the United States, and recommend any additional measures to be taken that promote a unified American identity and attachment to the Constitution, laws, and founding principles of the United States; and

There are no specifics here.

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[Eugene Volokh] FBI Director Nominee Kash Patel Loses Libel Appeal Against CNN

An excerpt from today's Virginia Court of Appeals decision in Patel v. CNN, Inc., decided by Judge Rosemarie Annunziata, joined by Judge Vernida Chaney (the opinions weigh in at over 12,000 words, so I only excerpt some key passages):

Generally, Patel alleged in an amended complaint that CNN defamed him by reporting that the House Permanent Select Committee on Intelligence (Intelligence Committee) had uncovered evidence that "connected" him to President Trump's efforts to (1) spread conspiracy theories about then-Vice President Joseph R. Biden, Jr. and (2) coerce Ukraine into announcing an investigation into Vice President Biden and his son, Hunter Biden….

It is undisputed that Patel is a public official and the challenged statements involve a media company's reporting on a widely publicized political issue. Thus, for Patel's claims to survive demurrer, he was obliged to allege facts with "sufficient definiteness to enable" the conclusion that CNN published the challenged statements with actual malice [i.e., knowledge that the statements were false or likely false -EV]. Yet his amended complaint was comprised of unspecified conclusions, contradicted by the attached documents, and did not otherwise allege specific instances of conduct "sufficient … to enable [a] court to find the existence of a legal basis for its judgment." …

Patel argues that the "aggregate" of his allegations demonstrated that CNN published the challenged statements "with knowledge that they were false or with reckless disregard for whether they were false." He alleged that CNN "harbored extreme professional and personal animus, bias, spite and ill will" toward him, and published the statements to "sensationalize the 'news,'" "profit from … its false statements," and "insult" him.

He maintains that CNN's "agents" were "present during the House impeachment inquiry" and had read the Ukraine Report, so CNN "knew" that no "evidence" was actually "'uncovered' connecting [him] to" conspiracy theories or "any 'diplomatic back channel led by … Giuliani.'" Consequently, he alleged, CNN "manufactured" the challenged statements "out of whole cloth." In doing so, CNN "abandoned all journalistic integrity," "violated its own code of ethics," and "ignored its own prior reporting and reliable information that contradicted" the challenged statements. Indeed, Patel alleged that CNN "purposefully avoided … the truth" by publishing the challenged statements despite knowing that he had denied the allegations….

[U]nder the actual malice standard, a public official must plead with sufficient definiteness, even for media companies that harbor ill will and ordinary malice, that specific persons within those companies who were responsible for the challenged statements knew the statements were false or had "a high degree of subjective awareness of their probable falsity." Yet Patel's allegations do not enable such a conclusion because they do not sufficiently "bring home" the actual malice standard to a person or persons at CNN responsible for publishing the challenged statements.

Patel's amended complaint targets CNN generally, alleging, among other things, that CNN was biased and harbored ill will against him, CNN fabricated the challenged statements, CNN ignored its own reporting and reliable information contradicting the challenged statements, CNN abandoned journalistic integrity and violated its own code of ethics, CNN deliberately and recklessly conveyed a false message to sensationalize the news, CNN republished the statements after being informed that Patel contested them, and CNN purposefully avoided the truth.

But CNN is a media corporation. And the actual malice standard is a subjective one that requires facts demonstrating the specific "state of mind" of a person within a media corporation at the time of publication. "Under th[at] standard, knowledge of [a statement's] falsity held by a principal cannot be imputed to its agent. It is the state of mind of the speaker that is relevant." Thus, Patel's complaint was obliged to do more than target CNN generally. It had to allege material facts sufficient to establish a basis for a court to "impute[ ]" any knowledge CNN had generally to the specific persons who were responsible for publishing the challenged statements in this case.

Patel's obligation to "bring home" actual malice to the minds of specific persons at CNN is particularly pronounced in this case, where each defamatory statement had multiple and different authors, rendering the state of mind of each person critical to discerning which of the statements, if any, may have been published with the requisite intent. For although we accept as true on demurrer Patel's claim that CNN harbored ill will against Patel for his work on the Nunes Memo, we cannot reasonably infer from that allegation that every journalist and publisher harbored the same ill will, or to the same degree. And although we accept as true that CNN's unidentified "agents" attended the House impeachment inquiry and "saw transcripts of testimony and reports of the impeachment proceedings," that allegation does not enable the conclusion that the specific publishers of the challenged statements in this case were those "agents" or knew what was revealed in those transcripts or during the impeachment inquiry hearings. Thus, even taking those allegations as true, they do not enable the conclusion that the specific publishers of the challenged statements in this case knew the statements were false or acted with reckless disregard of their falsity….

Moreover, Patel's allegations that CNN "ignored its own prior reporting," "public records," and "reliable information" contradicting the challenged statements also are not sufficiently definite to bring home actual malice to the mind of a person or persons. As an initial matter, outside of Patel's own denials in the CBS News article, the amended complaint does not identify what prior reporting, public information or other reliable information he refers to, let alone how such information contradicted the challenged statements. Thus, the allegations are conclusory and not binding. In any event, "[t]he mere presence of news stories in a newspaper's files containing information that contradicts an allegedly defamatory statement by the news organization is insufficient to establish malice." For the reasons explained above, that CNN generally "ignored" certain prior articles or information does not "bring home" the requisite state of mind to any of the various authors of the challenged statements in this case.

In addition, the Ukraine Report and CBS News article contradict Patel's allegations that CNN ignored reliable information demonstrating that the challenged statements were false, "lacked reasonable grounds" supporting them, and instead "fabricated" and "manufactured" the statements "out of whole cloth" without reliable sources. As facts supporting those allegations, Patel alleges that because CNN "agents" were aware of what was revealed during the House impeachment inquiry and had read the Ukraine Report, it "knew" that no "evidence" was actually "'uncovered' connecting [him] to" conspiracy theories or "any 'diplomatic back channel led by … Giuliani.'"

This Court takes no position on the veracity of the Ukraine Report's contents, claims, and implications. Nor do we suggest that the Ukraine Report proved that Patel was connected to any back-channel communications regarding Ukraine. Nevertheless, the Ukraine Report in fact connected Patel to Giuliani's "meddling" efforts in Ukraine on behalf of Trump. It presented Giuliani's May 10, 2019 phone call with Patel as being sandwiched between other calls that were explicitly about Giuliani's intent to pressure Ukraine into launching investigations into the alleged "conspiracy theories" on behalf of President Trump. The report implied that Giuliani was busy that day with a "flurry" of phone calls about his intended Ukraine trip and that his relatively lengthy call to Patel was a part of that overall effort. Moreover, as the Intelligence Committee spokesman said after the Ukraine Report was released, Dr. Hill's testimony during the impeachment inquiry implying that Patel might have retained "some special … representational role on Ukraine" suggested that he may have been "providing information to the President on Ukraine as part of an alternate channel."

Based on those circumstances, CBS News reported about a year before CNN published the challenged statements in this case that the Ukraine Report had in fact linked Patel to Giuliani's efforts, reporting that Dr. Hill's testimony and Giuliani's "call records" as "revealed in the report" had "suggested" that Patel "may have been part of a back channel to the president on Ukraine." Indeed, Patel's denials in the CBS News article demonstrate that he too reached the same conclusions from the Ukraine Report because he stated that he was "never a back channel to President Trump on Ukraine matters, at all, ever. Never—no meetings, no shuttling of documents, no meetings in secret. Never happened. I have no idea where they [the Democrats who drafted the Ukraine Report] got that from."

The above documents attached via oyer belie Patel's allegations that CNN "fabricated" and "manufactured" the challenged statements "out of whole cloth" without a source. CBS News, CNN, and even Patel made the same inference from the Ukraine Report—that it in fact made such a connection. Moreover, the report cited Giuliani's call records and Dr. Hill's testimony as evidence its authors believed supported the connection. Thus, the challenged statements plainly were not purely fictional fantasies that sprung from the imaginations of (unidentified) persons at CNN, and we may therefore "ignore" Patel's allegations that they were so "fabricated" and "manufactured" when reviewing the demurrer. Rather, the challenged statements merely reported the same conclusions from the Ukraine Report that CBS News and even Patel had previously inferred, explicitly citing the House impeachment inquiry as the source in one instance….

Judge Steven Frucci dissented; an excerpt:

I … agree that mere allegations that CNN was biased against Patel and that CNN relied on the Report without investigating it would not be sufficient to establish "knowledge of falsity or reckless disregard for the truth." However, Patel's amended complaint not only alleges facts of bias and failure to investigate but also contains allegations of fabrication, "manufactur[ing] the [s]tatements out of whole cloth," failure to follow CNN's code of ethics, contrary prior reporting by CNN, CNN's agents reviewing public records and reports that contradicted the claims of their statements prior to making the statements, CNN having no factual basis for their statements, and CNN "purposefully misrepresent[ing] facts" and "omit[ing] facts … in a way that intentionally convey[ ] a false meaning." "These allegations are concrete and amount to more than a 'mere recitation' of the actual malice standard."

In reaching their conclusion, the majority opinion conflates the standard of review of a demurrer with that for the sufficiency of the evidence. Though Patel includes numerous factual allegations of CNN having "multiple agents who were present during the House impeachment inquiry," seeing "transcripts of testimony and reports of the impeachment proceedings," and having no basis for the contested statements, the majority opinion incorrectly dismisses allegations in the amended complaint as having no weight, and further, improperly makes assumptions and inferences beyond a reasonable reading of the amended complaint and its accompanying documents, thus usurping the role of the factfinder at trial. At the time of a demurrer, the "factual allegations [pleaded in a complaint are] … wholly untested by the adversarial process."

This Court must "accept as true all factual allegations expressly pleaded in the complaint" and is required to interpret them and any accompanying inferences "in the light most favorable to the plaintiff." Any factual allegations that "fairly can be viewed as impliedly alleged or reasonably inferred from the facts [expressly] alleged" must be accepted by this Court as true. Looking at the allegations in their entirety for the purposes of the demurrer at issue, Patel did sufficiently allege facts that CNN acted with "knowledge of falsity or reckless disregard for the truth" to allow the amended complaint to survive the demurrer.

The majority opinion agrees with CNN that the amended complaint fails to allege facts that "brought home" the state of mind for actual malice to the individuals at CNN who made the statements. However, in addition to the factual allegations already described, the amended complaint also includes allegations of who wrote the CNN statements and actions taken by CNN agents. It is also undisputed the Report was a public document. As such, it is not unreasonable to infer under the allegations of the amended complaint that the authors acted with a "knowledge of falsity or reckless disregard for the truth." As we accept as true allegations expressly pleaded and those that can be fairly inferred, I would conclude that the amended complaint sufficiently alleged facts that "brought home" the state of mind of the authors as agents of CNN with respect to the allegedly false statements for the limited purposes of the demurrer…

Katherine M. Bolger (Davis, Wright Tremaine LLP) and John D. McGavin (McGavin, Boyce, Bardot, Thorsen & Katz, PC) represent CNN.

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[Eugene Volokh] Free Speech and Private Power: Uncertainty About Disclosure Rules

[I am serializing my short Harvard Law Review Forum essay titled "Free Speech and Private Power", responding to the Harvard Law Review's publication of Evelyn Douek & Genevieve Lakier's excellent new article, Lochner.com? I actually agree with much of what Douek & Lakier say, but offer a somewhat different perspective on the matter, mostly asking what the Court's recent cases mean going forward, rather than trying to critique them.]

Sometimes, private power can be constrained by transparency requirements rather than outright hosting mandates. The Moody Court suggested that such requirements, as applied to social media moderation policies and decisions, must be judged under Zauderer v. Office of Disciplinary Counsel, a case that dealt with compelled disclosures in lawyer advertising. In this regard, the Court echoed the Fifth Circuit's decision in NetChoice, LLC v. Paxton, which said that the "control[ ling]" Zauderer precedent "established that States may require commercial enterprises to disclose 'purely factual and uncontroversial information' about their services."

Yet the quoted material in Zauderer comes from a sentence that relies on the disclosure being within "commercial advertising"—and the Moody disclosure rules weren't limited to compelling disclosures in social media platform ads, or even more broadly compelling disclosures as part of commercial transactions that the platforms entered into with their users. They would apply even in the typical relationship between social media platforms and users, where no money changes hands.

To be sure, the relationship does involve services by a profit-seeking business (albeit one that chiefly profits through advertising rather than direct payment). And indeed, in National Institute of Family and Life Advocates v. Becerra, the dissenters would have applied Zauderer to compelled speech by entirely noncommercial entities—the clinics in that case were generally nonprofits that provided free services to their clients, for ideological reasons rather than for profitmaking. It thus appears that many Justices are open to applying Zauderer to at least some mandated disclosures in relationships between service providers and clients, including disclosures (1) in speech that does not "propose a commercial transaction" (the commercial speech definition used in Zauderer), (2) in relationships in which the client does not pay, and (3) in relationships in which the speaker is not commercially motivated.

Perhaps this is sound. Perhaps there should be more room for compelled disclosure in such relationships, so long as the compulsion doesn't change the speaker's other speech (as it would have in, say, Hurley or Miami Herald Publishing Co. v. Tornillo or Riley v. National Federation of the Blind of North Carolina, Inc.). But it does appear to be a shift from an earlier understanding of Zauderer, and it seems likely that many lower courts may not notice the shift—consider, for instance, the recent NetChoice, LLC v. Bonta, which held that Zauderer didn't apply to certain platform reporting requirements because they "regulate [] far more than mere commercial speech"—or perhaps notice it but push back against it.

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[Josh Blackman] President Trump Comments on President Biden's Pardons: "An Unbelievable Precedent.

Shortly after the inauguration, I observed that President Biden and his supporters would soon come to regret the Eleventh Hour pardons.

Monday evening, around 8:20 p.m., President Trump delivered these remarks about the pardons in the Oval Office (my transcription):

Trump: I was a little bit surprised he did it. It makes them look guilty. He will have to live with that. Now with that being said, it sets an unbelievable precedent, it creates poor precedent. But the precedent is unbelievable. Now maybe every president who leaves office they are going to pardon every person they ever met so they don't have some lunatic like deranged Jack Smith, whose a total lunatic by the way, not a smart guy, he's a dummy, but we beat the hell out of him. And I helped my reputation.

Question: Do you think you are going to have to do the same thing at the end of this

Trump: Well I guess now I have precedent to do it, but I don't want to do it, it makes you look very guilty. It makes Biden look very bad, very weak, very guilty.

What goes around comes around.

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[Josh Blackman] Short Thoughts on Several Of President Trump's Executive Actions

I have now reviewed each of the new presidential actions signed by President Trump. Here, I will offer some short thoughts on some of the lower-profile orders. I'll address several of the more significant actions in different posts.

First, a common theme in the orders was a focus on protecting American values and ideals. The order reforming the hiring process for government service provides:

(b) This Federal Hiring Plan shall:

(i) prioritize recruitment of individuals committed to improving the efficiency of the Federal government, passionate about the ideals of our American republic, and committed to upholding the rule of law and the United States Constitution;

I suspect some applicants for federal employment will bring a First Amendment challenge. Is there some objective "ideal of our American republic"?

Second, the order ending DEI program anticipates that the Biden Administration simply renamed DEI programs after the election to avoid being cut. The President asks for programs that have been "misleadingly relabeled."

(A)  agency or department DEI, DEIA, or "environmental justice" positions, committees, programs, services, activities, budgets, and expenditures in existence on November 4, 2024, and an assessment of whether these positions, committees, programs, services, activities, budgets, and expenditures have been misleadingly relabeled in an attempt to preserve their pre-November 4, 2024 function;

The President also requests a list of:

(B)  Federal contractors who have provided DEI training or DEI training materials to agency or department employees; and

(C)  Federal grantees who received Federal funding to provide or advance DEI, DEIA, or "environmental justice" programs, services, or activities since January 20, 2021.

I wonder if the Trump Administration will investigate these grants, and perhaps attempt to claw back some of the funding.

Third, the gender ideology order seems to undermine a core tenet of Bostock:

(a)  "Sex" shall refer to an individual's immutable biological classification as either male or female.  "Sex" is not a synonym for and does not include the concept of "gender identity."

To be clear, Justice Gorsuch did not actually conclude that "gender identity" was equivalent to "sex." Gorsuch accepted, at least begrudgingly, the concept of biological sex. Rather, Bostock was premised on applying the but-for test to Title VII. I never found this standard persuasive, but that was in the past. Given this new order, I don't see how the Solicitor General maintains the government's position in Skrmetti. We should expect a new brief from the SG shortly. Let's see if the Court appoints an amicus to defend the government's prior position, or simply dismisses the case altogether.

The order also rejects the Biden Administration's extension of Bostock to Title IX.

(f) The prior Administration argued that the Supreme Court's decision in Bostock v. Clayton County (2020), which addressed Title VII of the Civil Rights Act of 1964, requires gender identity-based access to single-sex spaces under, for example, Title IX of the Educational Amendments Act. This position is legally untenable and has harmed women. The Attorney General shall therefore immediately issue guidance to agencies to correct the misapplication of the Supreme Court's decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities. In addition, the Attorney General shall issue guidance and assist agencies in protecting sex-based distinctions, which are explicitly permitted under Constitutional and statutory precedent.

I have not seen an order, yet at least, reversing the extension of Bostock to the Affordable Care Act. This Biden-era policy would require religious hospitals to perform transition surgeries. I suspect Trump will nix that policy.

Fourth, the order concerning Alaska denies a request for an "indigenous sacred site."

(xx)     deny the pending request to the United States Fish and Wildlife Service to an establish indigenous sacred site in the Coastal Plain of the Arctic National Wildlife Refuge;

No obvious justification is given for this denial. I don't know if there is a RFRA claim here. The Court has now relisted Apache Stronghold four times, so there may be a dissental in the works, probably from Justice Gorsuch. Dissenting about a denial of religious liberty for Indians is peak Gorsuch.

Fifth, Trump has determined that members of the Senior Executive Service must be removable at will:

The President's power to remove subordinates is a core part of the Executive power vested by Article II of the Constitution and is necessary for the President to perform his duty to "take Care that the Laws be faithfully executed." Because SES officials wield significant governmental authority, they must serve at the pleasure of the President.

Only that chain of responsibility ensures that SES officials are properly accountable to the President and the American people. If career SES officials fail to faithfully fulfill their duties to advance the needs, policies, and goals of the United States, the President must be able to rectify the situation and ensure that the entire Executive Branch faithfully executes the law. For instance, SES officials who engage in unauthorized disclosure of Executive Branch deliberations, violate the constitutional rights of Americans, refuse to implement policy priorities, or perform their duties inefficiently or negligently should be held accountable.

And Trump has called for the abolition of the current Executive Resources Board, and replace them with a majority of political appointees.

(d) Each agency head should terminate its existing Executive Resources Board (ERB), institute a new or interim ERB, and assign senior noncareer officials to chair and serve on the board as a majority alongside career members;

SES members who do not follow the Administration's priorities are to be removed:

(f)  Any agency head who becomes aware of an SES official whose performance or continued occupancy of the position is inconsistent with either the principles reaffirmed in this Order or their duties to the Nation under section 3131 of title 5, United States Code, shall immediately take all appropriate actions, up to and including removal of that official, with the support of OPM and OMB.  Restoring an accountable government workforce is a top priority of my Administration.

Sixth, President Trump ordered the revocation of John Bolton's security clearance, in part, due to Bolton's book:

National security is also damaged by the publication of classified information. Former National Security Advisor John R. Bolton published a memoir for monetary gain after he was terminated from his White House position in 2019. The book was rife with sensitive information drawn from his time in government. The memoir's reckless treatment of sensitive information undermined the ability of future presidents to request and obtain candid advice on matters of national security from their staff. Publication also created a grave risk that classified material was publicly exposed.

To remedy these abuses of the public trust, this Order directs the revocation of any active or current security clearances held by: (i) the former intelligence officials who engaged in misleading and inappropriate political coordination with the 2020 Biden presidential campaign; and (ii) John R. Bolton.

Sec. 2. Policy. (a) It is the policy of the United States to ensure that the Intelligence Community not be engaged in partisan politics or otherwise used by a U.S. political campaign for electioneering purposes. The term "Intelligence Community" has the meaning given the term in section 3003 of title 50, United States Code.

In the abstract, denying someone a governmental benefit due to their protected speech would violate the First Amendment. But there is a longstanding protocol in which people with security clearances must submit their books for pre-publication review. The argument is that people given this access to classified information surrender some of their First Amendment rights. Look for Bolton to file suit. As best as I can tell, he did not receive a pardon.

I will develop some of the other orders in future posts.

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[Sasha Volokh] Time to Impeach Yet?

Reading The Debates in the Several State Conventions (as one does), I see the following:

Mr. GEORGE MASON: . . . You will please, says he, to recollect that removal from office, and future disqualification to hold any office, are the only consequences of conviction on impeachment. Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me.

. . .

Mr. MADISON, adverting to Mr. Mason's objection to the President's power of pardoning, said . . . [t]here is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected, also, he may likewise be suspended till he be impeached and removed, and the legislature may make a temporary appointment. This is a great security.

Since "a grave national injustice . . . has been perpetrated upon the American people," is anyone already keeping a list of impeachment-worthy offenses?

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