Eugene Volokh's Blog, page 217

[Eugene Volokh] Lawsuit Challenging Hawaii's Ban on Gun Ownership by Micronesians Who Aren't U.S. Citizens but Who Are Allowed to Live in the U.S. Long-Term

From the motion for preliminary injunction in Peter v. Lopez (D. Haw.), filed Wednesday:

Plaintiff is a long-term resident of Hawaii who legally lives in the United States pursuant to the Compact of Free Association ("COFA") the United States has with various islands nations located in the Pacific. "The Compact grants [citizens of the Federated States of Micronesia] and citizens of other compact states [Palau and the Marshall Islands] liberal opportunities to work and reside in the United States." COFA aliens "admitted to the United States under the Compacts may reside, work, and study in the United States. They do not have the status of lawful permanent residents (also known as Green Card holders) under the Immigration and Nationality Act (INA)."

Hawaii Revised Statutes § 134-2 generally bans gun ownership by non-citizens, with some exceptions, which covers COFA aliens among others:

In Fotoudis v. City & County of Honolulu (D. Haw. 2014), this Court enjoined H.R.S. § 134-2's prohibition on noncitizen's owning firearms as applied to permanent resident aliens i.e. green card holders. After the Fotoudis ruling, Hawaii maintained a ban on other noncitizen residents of Hawaii. This included U.S. Nationals from the U.S. Territory of America Samoa until a lawsuit was filed. Shortly after the filing of that lawsuit, the State entered into a stipulated injunction which compelled Hawaii to allow U.S. Nationals to own firearms. See Alanoa Nickel v. Connors (D. Haw. 2020) (stipulated injunction as to State of Hawaii's ban on U.S. Nationals owning firearms). Since then, Hawaii has updated H.R.S. § 134-2 to include U.S. Nationals and green card holders as being among those authorized to own firearms. However, Hawaii maintains a flat ban on firearm ownership for other lawfully present aliens including COFA aliens.

Plaintiffs argue the Hawaii ban violates the Second Amendment, and violates the Equal Protection Clause, which generally forbids states (though not the federal government) from discriminating against noncitizens in various ways. An excerpt from the equal protection section:

Alienage, or the state of being an alien, i.e. a non-citizen of the United States, is a suspect class that triggers strict scrutiny in equal protection claims when dealing with state law. Graham v. Richardson (1971)….

Applying strict scrutiny, denying Plaintiff the opportunity to apply for (and to obtain) a permit merely because he is a COFA alien "is not a narrowly tailored means of achieving that goal." See also Fletcher v. Haas (D. Mass. 2012) ("Although Massachusetts has an interest in regulating firearms to prevent dangerous persons from obtaining firearms … the statute here fails to distinguish between dangerous non-citizens and those non-citizens who would pose no particular threat if allowed to possess handguns."); Say v. Adams (W.D. Ky. 2008) (granting an injunction against enforcing a Kentucky law limiting the issuance of a license to carry concealed weapons to U.S. citizens, reasoning in part that "[a] blanket prohibition discriminating against aliens is not precisely draw[n] to achieve the goal of facilitating firearms purchases when there exists a nondiscriminatory way to achieve the same goals")….

Kevin O'Grady and Alan Beck represent plaintiff; Beck had also represented the plaintiff in Fotoudis (the green card holder case) and Nickel (the American Samoan case).

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[Eugene Volokh] Avoid Super-Embarrassing Redaction Failures

[I first posted a version of this post in 2020, but I've seen the problem enough since to think it was worth mentioning again.]

I have often run across documents written by lawyers that looked redacted—but all the supposedly secret information in them could be extracted with literally three keystrokes (ctrl-A, ctrl-C, ctrl-V). One was a court filing that was filed pursuant to a court order authorizing the redaction; but the material so carefully marked secret proved not to be secret at all.

Another carefully tried to hide the real name of a litigant whom the lawyer was trying to keep pseudonymous; but the name was one copy-and-paste away from being visible. What's more, when the documents were posted online in searchable spaces, search engines indexed the supposedly hidden material, so searching for the real name would find the document in which the lawyer had been trying to redact the name.

For at least one of the documents, I know what improper redaction mechanism was used: The lawyer used Google Docs to highlight passages using black highlighter, and then saved the document as a PDF. That looked blacked out on the screen; but the underlying text still remained in the PDF document—as far as the software was concerned, the text wasn't removed but was just set in a different color. (Something similar would happen with Microsoft Word.)

By clicking ctrl-A in PDF, I selected the whole document. (You can also just select the passage that contains the redactions.) By clicking ctrl-C, I copied the selected text to the clipboard. And then by clicking ctrl-V in another app, I pasted it with all the formatting, including the highlighting, removed. (In some situations, it takes a ctrl-shift-V.) The text was then completely visible. Commenter anorlunda on an earlier post explained the problem well:

Users are trained WYSIWYG. What you see is what you get. That's brilliant marketing, but when you make black text on a black background, what you see is nothing, but what you get is something else. So redaction contradicts our training.

To the best of my knowledge, Adobe Acrobat Pro redaction actually deletes the underlying text, if you mark the text for redaction and then apply the redactions. I'm sure there is other software available to do this, including free software. Just make sure that whatever you do, the redaction is actually complete.

Of course, the most reliable redaction mechanism (because it tends to be less likely to involve user error in the use of even excellent redaction software) is still printing, blacking out the material completely, and then scanning it back into a new file. [UPDATE: Two commenters caution that even this might not work, because the highlighter may be a different shade of black than the text; I'm unaware of any instances where the text was recovered from a photocopy of a page where the text was fully blocked out by a black-looking highlighter, but I can't vouch for that never happening.] But this option won't work for court filings in the many courts that require full-text-searchable PDFs generated directly from the computer, rather than from a scanner.

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[Josh Blackman] Today in Supreme Court History: November 29, 2004

11/29/2004: Randy Barnett argues Gonzales v. Raich.

Randy Barnett argues Gonzales v. Raich

 

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[Eugene Volokh] What Material Things Are You Thankful for?

Skip love, health, liberty, for believers the grace of God, and the like: They are surely the most important, but they're also pretty obvious. Tell us what material things you most appreciate. They can be big things, such as the unimaginably vast amount of books, music, and video that all of us can have at a moment's notice. (True, 99+% of that is bad, or at least of no interest to us, but it's usually not hard to find the good stuff.) Or they can be tiny things, such as your favorite food. Whatever you'd like, post about it in the comments.

And try to keep the focus on what you're thankful for, not what you loathe or why you think the other commenters are wrong.

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[Josh Blackman] Today in Supreme Court History: November 28, 1872

11/28/1872: Justice Samuel Nelson resigns.

Justice Samuel Nelson

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[Eugene Volokh] Thursday Open Thread

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[Eugene Volokh] N.J. Exclusion of Churches from Broadly Available Historical Restoration Grants Violates Free Exercise Clause

So holds Judge Evelyn Padin (D.N.J.) in today's Mendham Methodist Church v. Morris County. The court applies recent Supreme Court cases, such as Carson v. Makin (2022) and Espinoza v. Montana Department of Revenue (2020), which hold that "a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits." And it in the process rejects the New Jersey Supreme Court's decision in Freedom From Religious Foundation v. Morris County Board of Chosen Freeholders (N.J. 2018), which interpreted the New Jersey Constitution as mandating such exclusion; FFRF, the court holds, is inconsistent with the more recent Espinoza and Carson cases.

This oversimplifies matters in some measure, but it should offer a good general summary. For more, see the full opinion. Mark M. Roselli of Roselli Griegel Lozier & Lazzaro, PC represents plaintiffs.

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[Eugene Volokh] Acknowledgment of AI Hallucinations in AI Misinformation Expert's Declaration in AI Misinformation Case

From the declaration filed today by the expert witness in Kohls v. Ellison (D. Minn.), a case challenging the Minnesota restriction on AI deepfakes in election campaigns:

[1.] I am writing to acknowledge three citation errors in my expert declaration, which was filed in this case on November 1, 2024 (ECF No. 23). I wrote and reviewed the substance of the declaration, and I stand firmly behind each of the claims made in it, all of which are supported by the most recent scholarly research in the field and reflect my opinion as an expert regarding the impact of AI technology on misinformation and its societal effects. Attached as Exhibit 1 is a redline version of the corrected expert declaration, and attached as Exhibit 2 is a redline version of the corrected list of academic and other references cited in the expert declaration.

[2.] The first citation error appears in paragraph 19 and cites to a nonexistent 2023 article by De keersmaecker & Roets. The correct citation for the proposition is to Hancock & Bailenson (2021), cited in paragraph 17(iv). The second citation error appears in paragraph 21, a citation to a nonexistent 2023 article by Hwang et al., and is identified by the Plaintiffs in their motion to exclude my declaration. The correct citation for that proposition is to Vaccari & Chadwick (2020), which appears in paragraph 20. The third citation error appears in Exhibit C to the declaration (ECF No. 23-1, at 39): the citation to Goldstein et al. lists the first author correctly, but the remaining authors are incorrect. The correct authors are Goldstein, J., Sastry, G., Musser, M., DiResta, R., Gentzel, M., and Sedova, K. I discovered the errors in paragraph 19 and Exhibit C when Plaintiffs brought the error in paragraph 21 to the Court's attention, and I re-reviewed my declaration.

[3.] I apologize to the Court for these three citation errors, and I explain how they came to be below. I did not intend to mislead the Court or counsel. I express my sincere regret for any confusion this may have caused. That said, I stand firmly behind all of the substantive points in the declaration. Both of the correct citations were already cited in the original declaration and should have been included in paragraphs 19 and 21. The substantive points are all supported by the scientific evidence and correcting these errors does not in any way alter my original conclusions.

[4.] To provide an explanation for how these errors occurred and why they do not impact any of the scientific evidence or opinions presented in my declaration, I lay out more specifics about my expertise, some of the context regarding the production of the declaration, my workflow for researching and drafting this report, and the role that AI tools played in my process.

[5.] In mid-October I was contacted by counsel for Defendants to provide an expert declaration. I agreed to do so in my personal capacity as part of my private consulting work. I produced an expert declaration regarding the scientific literature on the psychological and social implications of deepfakes, particularly in the context of credibility, their spread online, their influence on trust in the media, and the effectiveness of countermeasures. These issues are squarely within my area of expertise. I have written and published over 15 studies on AI and communication since 2017, and I co-wrote the foundational piece on AI-Mediated Communication, which has been cited over 400 times and is the most cited paper in this new field. I co-edited the first special issue on the social consequences of deepfakes in Cyberpsychology and Behavior and Social Networking, a high impact peer-reviewed journal that publishes research examining the social, behavioral and psychological impact of emerging technologies. I have published extensively on misinformation in particular, including the psychological dynamics of misinformation, its prevalence, and possible solutions and interventions, and I have published a study examining misinformation in virtual reality.

[6.] As a researcher and professor in the field of AI, my work at present already focuses on the challenges deepfakes pose. The literature has increased dramatically with the release of ChatGPT in November 2022, however, which has accelerated the development of tools that can be used to create deepfakes. For example, since the publication of the special issue on the social consequences of deepfakes that I co-edited in 2021, there have already been over 140 citations to our article leading that special issue (Hancock & Bailenson, 2021), which represents a very high citation rate in the social sciences for a recent article. For example, after only 3 years, this citation rate would almost rank in the top 25% of all social science publications (see Ionnadis et al., 2019). Since the release of ChatGPT in 2022, I have also published five peer-reviewed papers on the impact of AI on trustworthiness and communication (Hohenstein et al, 2023; Jakesch, Naaman & Hancock 2023; Karinshak et al, 2023; Markowitz & Hancock, 2024; Markowitz et al, 2024). Because I cofounded the Journal of Online Trust and Safety, which is a leading journal on research related to, among other things, misinformation and deepfakes online, and because I am asked to present on my research and the impacts of AI on society, I regularly review the latest scientific literature in fields that intersect with my own. I also teach a graduate class on language and technology that focuses on AI and communication.

[7.] My workflow for this declaration involved three main phases: (a) surveying the literature, (b) analyzing the scientific evidence, and (c) drafting the declaration.

[8.] I began by surveying the literature on deepfakes, which I know well but wanted to refresh for the most recent scholarship. This a highly active research area, spanning several fields and disciplines, including computer science, engineering, psychology, communication, human-computer interaction and law, and there are thousands of citations related to the term "deepfakes." To go through the large volume of scientific evidence related to deepfakes in the survey phase, I primarily used two tools (namely, Google Scholar and GPT-4o) to identify articles that were likely to be relevant to the declaration so that I could merge that which I knew already with new scholarship. Google Scholar is a tool that allows researchers to search across many scholarly disciplines and sources for journal articles, conference proceedings, books, online repositories and professional societies. Google Scholar provides indexed information about publications, how often they have been cited and by which other publications, and it provides links to locate copies of the publications. GPT-4o is a generative AI tool referred to as a large language model (LLM) that powers chatbots and other agents, such as ChatGPT, as well as an increasing number of online services and technologies, including search, translation, drafting, and document summarization and analysis. Indeed, the use of generative AI tools is on the rise given that most current tools used for writing and research, such as Microsoft Word, Google Docs, Adobe Acrobat and even email services like Gmail and Outlook, offer AI-based functions that complete or suggest sentences or provide initial drafts of communication. In general, I use tools like GPT-4o to enhance the quality and efficiency of my workflow, including search, analysis, formatting and drafting. For this declaration, during the survey phase I used GPT-4o to assist with searching for and identifying articles that would likely be relevant to the declaration. I am already familiar with many of these articles and conclusions, and the search results included articles I authored.

[9.] In the analysis phase, one part of my process is to use GPT-4o to summarize some of the relevant articles identified in the survey phase so that I might identify themes and research questions that emerged across studies. Examples of such themes and research questions include how deepfakes may be detected by humans or whether deepfakes can undermine trust in news or media, which included themes and research questions that are already known to me and new ones that more recently emerged in the field (such as new ways of analyzing human perception of deepfakes). I used the GPT-4o tool to both verify my knowledge of literature that I had both read and written and to make sure that there was no new scholarship that I needed to be aware of as I was writing my declaration. I used GPT-4o and Google Scholar to produce an initial list of references that I would consider citing in the declaration.

[10.] The citation errors here occurred in the drafting phase, and as such, I explain my process in granular detail here. The drafting phase involved two parts—the substance and the citations. As to the substance, I began by outlining the main sections of the declaration in MS Word. I then outlined the key substantive points for each section, also in MS Word. I continued to engage Google Scholar and GPT-4o.

[11.] The two citation errors, popularly referred to as "hallucinations," likely occurred in my use of GPT-4o, which is web-based and widely used by academics and students as a research and drafting tool. "Hallucinated citations" are references to articles that do not exist. In the drafting phase I sometimes cut and pasted the bullet points I had written into MS Word (based on my research for the declaration from the prior search and analysis phases) into GPT-4o. I thereby created prompts for GPT-4o to assist with my drafting process. Specifically for these two paragraphs, I cannot remember exactly what I wrote but as I want to try to recall to the best of my abilities, I would have written something like this as a prompt for GPT-4o: (a) for paragraph 19: "draft a short paragraph based on the following points: -deepfake videos are more likely to be believed, -they draw on multiple senses,—public figures depicted as doing/saying things they did not would exploit cognitive biases to believe video [cite]"; and (b) for paragraph 21: "draft a short paragraph based on the following points: -new technology can create realistic reproductions of human appearance and behavior, -recent study shows that people have difficulty determining real or fake even after deepfake is revealed, -deepfakes are especially problematic on social media [cite]."

[12.] When I inserted the bullet points pertaining to paragraphs 19 and 21 into GPT-4o I also included the word "[cite]" as a placeholder to remind to myself to go back and add the academic citation. As I explained earlier, both of the now corrected cites were articles that I was very familiar with—one of which I wrote myself. I did not mean for GPT-4o to insert a citation, but in the cut and paste from MS Word to GPT-4o, GPT-4o must have interpreted my note to myself as a command. The response from GPT-4o, then, was to generate a citation, which is where I believe the hallucinated citations came from. This only happened in these two instances and nowhere else in my declaration.

[13.] When GPT-4o provided me these answers, I cut and pasted them from the online tool into my MS Word declaration. I then edited my declaration extensively as to its substance, and where I had notes to myself in both instances to add the citation, GPT-4o had put them in for me incorrectly and deleted the "[cite]" placeholder I had included to remind myself to go back and include the right citation. Without the "[cite]" placeholders, I overlooked the two hallucinated citations and did not remember to include the correct ones. This was the error on my part, and as I stated earlier, I am sorry for my oversight in both instances here and for the additional work it has taken to explain and correct this.

[14.] Finally, the last part of the drafting phase involves the citation list. I asked GPT-4o to generate a reference list in APA format using the in-text citations already in the draft declaration. Given the relatively small number of citations, I did not run this through the reference software I typically use when I write my academic papers, which might have caught the hallucinated citations. Here too, I realize that I should have vetted this through my usual process. I then mistakenly included the two citations that were created by GPT-4o. I meant to cite to the source that was immediately before the erroneous one in both implicated paragraphs.

[15.] Given that background, the citation error identified by plaintiffs occurred in paragraph 21, which stated: "Moreover, the difficulty in disbelieving deepfakes stems from the sophisticated technology used to create seamless and lifelike reproductions of a person's appearance and voice. One study found that even when individuals are informed about the existence of deepfakes, they may still struggle to distinguish between real and manipulated content. This challenge is exacerbated on social media platforms, where deepfakes can spread rapidly before they are identified and removed. (Hwang et al., 2023)."

[16.] The correct citation for paragraph 21, which is cited immediately above in paragraph 20, is to Vaccari & Chadwick (2020), a paper that I was already familiar with as part of my research. This paper reports on a large study that found that even when people were informed that a video is a deepfake, approximately 44 percent of the participants were deceived by or uncertain of (i.e., struggled with) the manipulated video. This citation directly supports the proposition regarding the study described in paragraph 21.

[17.] This substantive point in the declaration has also been empirically supported by other research, including consulted citations in the references. For example, one study finds that even when participants were warned about the existence of deepfakes, their ability to detect deepfakes remained low (Köbis et al, 2021). Another recent study, published in The International Journal of Press/Politics (a Sage journal with a high impact factor, which was not cited in the original declaration) also supports this claim (Weikmann et al, 2024). After revealing to participants that they had been exposed to a deepfake, participants' self-efficacy for detecting deepfakes declined. That is, participants' confidence in detecting deepfakes declined after they were informed about deepfakes.

[18.] The citation error that I identified after re-review appears in paragraph 19, which stated "Research indicates that deepfake videos are more likely to be believed than text-based misinformation because they engage multiple senses simultaneously, creating a stronger illusion of authenticity. The realistic portrayal of individuals, especially public figures, engaging in fabricated actions or statements exploits the cognitive biases that lead people to accept visual and auditory information as truth. (De keersmaecker & Roets, 2023)."

[19.] The correct citation is to Hancock & Bailenson (2021) for paragraph 19, which is cited above in paragraph 17. I co-authored this article, and it lays out why the visual medium is so dominant in human perception and why communication research indicates that misleading audiovisual information may be more likely to be trusted than verbal messages (Hancock & Bailenson, 2021, p. 150). Specifically, the article states: "the impact of deception by deepfake has the potential to be greater than that of verbal deception because of the primacy of visual communication for human cognition. Deepfakes not only change verbal content, but they also change the visual properties of how the message was conveyed, whether this includes the movement of a person's mouth saying something that he or she actually did not, or the behavior of a person doing something that he or she did not. The dominance of visual signals in human perception is well established."

[20.] The claim that the visual medium is dominant in human perception is not controversial. It has also been empirically supported by additional and more recent research on deepfakes. In one study that sought to examine why doctored videos shared online lead to strong reactions among users that resulted in the wrongful death of innocent people, participants found video misinformation to be more credible than audio or text-based misinformation, and they were more likely to share it. This finding, published in the Journal of Computer-Mediated Communication, one of the top ranked journals in communication (ranked #6 out of 227 journals in the communication category), is entirely consistent with the substantive point in paragraph 17 (Sundar et al, 2021).

[21.] Finally, as noted above, upon the re-review I identified a minor error in the authorship in a citation (Goldstein et al, 2023). The correct author list for this source is: Goldstein, J., Sastry, G., Musser, M., DiResta, R., Gentzel, M., and Sedova, K. As noted in paragraph 14 above, I did not run the citation list through the reference software I typically use when I write my academic papers, resulting in the inclusion of the two hallucinated sources. I believe GPT-4o also generated an incorrect list of secondary authors for Goldstein et al.—a real paper with which I was already familiar.

[22.] In conclusion, despite the presence of these three mistakes, I stand firmly behind the substantive points presented in the report. As demonstrated in the scientific evidence, the correct citations already used in the report provide empirical support for the specific arguments made. In particular, both Hancock and Bailenson (2021) and Vaccari and Chadwick (2020) already appear in the declaration immediately before the now corrected paragraphs.

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[Ilya Somin] Trump's Plans to Coerce Sanctuary Cities Likely to Run Afoul of the Constitution - Again

(NA)

Media reports indicate the incoming Trump administration plans to try to pressure sanctuary cities by withholding federal funds unless they agree to help the federal government deport undocumented immigrants.  If the new administration tries to do this, it might reprise legal battles that occurred during Trump's previous term in office. At that time, the administration tried to pressure sanctuary cities by denying them a variety of law enforcement and other grants allocated by Congress. These efforts resulted in extensive litigation, with Trump losing the vast majority of the cases, in decisions handed down by both liberal and conservative judges. I surveyed the relevant cases and their implications in a 2019 Texas Law Review article.

The first Trump administration lost most of these cases because it ran afoul of constitutional limits on federal power and on executive power over the budget. Thanks to a series of Supreme Court decisions (most written by conservative justices), the federal government cannot simply commandeer state and local authorities into helping enforce federal law. Under current Supreme Court precedent, it can try to use financial incentives to secure such assistance. But any such conditions on federal grants must, among other things, 1) be enacted clearly indicated by Congress (the executive cannot make up its own grant conditions), 2) be related to the purposes of the grant in question (e.g. - grant for health care or education cannot be conditioned on immigration enforcement), and 3) not be "coercive."

Virtually all of Trump's first-term efforts to pressure sanctuary jurisdictions ran afoul of one or more of these constitutional constraints. I went over the details in my article. Whether his second-term efforts fare any better remains to be seen. But, at the very least, any effort to withhold all or nearly all grants from sanctuary jurisdictions is likely to violate the relatedness requirement and the admittedly vague rules against coercion. That would be true even if the new Republican-controlled Congress enacts such sweeping conditions by legislation. Such legislation could satisfy the need for congressional authorization, but not get around restrictions on relatedness and coercion.

As I emphasized in various writings during the first Trump administration, the issues at stake here go far beyond immigration policy. If the administration can make up its own new conditions for federal grants to state and local governments, it would severely undermine the separation of powers, allowing the executive to usurp Congress's spending power. In addition, given the dependence of state and local governments on federal funds, it would create a massive club that the executive could use to coerce states and localities on a vast range of issues, thereby gravely imperiling federalism. Conservatives who support such coercion when a GOP administration does it are unlikely to be happy when the same tools are utilized by a Democratic president to compel support for left-wing policies.

And for those keeping score, I have made similar points in defense of conservative "gun sanctuaries," which refuse to help the federal government enforce some federal gun laws.

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[Ilya Somin] Trump's Plans to Coerce Sanctuary Cities Likely to Run Afoul of the Constitution—Again

(NA)

Media reports indicate the incoming Trump administration plans to try to pressure sanctuary cities by withholding federal funds unless they agree to help the federal government deport undocumented immigrants.  If the new administration tries to do this, it might reprise legal battles that occurred during Trump's previous term in office. At that time, the administration tried to pressure sanctuary cities by denying them a variety of law enforcement and other grants allocated by Congress. These efforts resulted in extensive litigation, with Trump losing the vast majority of the cases, in decisions handed down by both liberal and conservative judges. I surveyed the relevant cases and their implications in a 2019 Texas Law Review article.

The first Trump administration lost most of these cases because it ran afoul of constitutional limits on federal power and on executive power over the budget. Thanks to a series of Supreme Court decisions (most written by conservative justices), the federal government cannot simply commandeer state and local authorities into helping enforce federal law. Under current Supreme Court precedent, it can try to use financial incentives to secure such assistance. But any such conditions on federal grants must, among other things, 1) be enacted clearly indicated by Congress (the executive cannot make up its own grant conditions), 2) be related to the purposes of the grant in question (e.g.—grant for health care or education cannot be conditioned on immigration enforcement), and 3) not be "coercive."

Virtually all of Trump's first-term efforts to pressure sanctuary jurisdictions ran afoul of one or more of these constitutional constraints. I went over the details in my article. Whether his second-term efforts fare any better remains to be seen. But, at the very least, any effort to withhold all or nearly all grants from sanctuary jurisdictions is likely to violate the relatedness requirement and the admittedly vague rules against coercion. That would be true even if the new Republican-controlled Congress enacts such sweeping conditions by legislation. Such legislation could satisfy the need for congressional authorization, but not get around restrictions on relatedness and coercion.

As I emphasized in various writings during the first Trump administration, the issues at stake here go far beyond immigration policy. If the administration can make up its own new conditions for federal grants to state and local governments, it would severely undermine the separation of powers, allowing the executive to usurp Congress's spending power. In addition, given the dependence of state and local governments on federal funds, it would create a massive club that the executive could use to coerce states and localities on a vast range of issues, thereby gravely imperiling federalism. Conservatives who support such coercion when a GOP administration does it are unlikely to be happy when the same tools are utilized by a Democratic president to compel support for left-wing policies.

And for those keeping score, I have made similar points in defense of conservative "gun sanctuaries," which refuse to help the federal government enforce some federal gun laws.

The post Trump's Plans to Coerce Sanctuary Cities Likely to Run Afoul of the Constitution—Again appeared first on Reason.com.