Eugene Volokh's Blog, page 44

[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Stephen Halbrook] Second Amendment Roundup: Whatever Happened to Koons?

[Third Circuit still hasn’t decided New Jersey’s years-old “sensitive places” appeal.]

The ink wasn't even dry after the Supreme Court decided Bruen in 2022 when New Jersey and a handful of other disgruntled states rushed to counterattack by criminalizing the carrying of firearms by persons with permits in numerous public places.  "The legislative record reveals the Legislature paid little to no mind to Bruen and the law-abiding New Jerseyans' right to bear arms in public for self-defense. Again, the law's primary sponsor declared that 'Because of Bruen, more New Jerseyans will die as result of gun violence.'"

Chief Judge Renée Marie Bumb in the consolidated cases of Koons & Siegel v. Platkin, decided on May 16, 2023 wrote an incredibly thorough 230-page opinion, applied Bruen's text and history approach, and found that much of the New Jersey law likely violated the Second Amendment.  She issued a preliminary injunction against enforcement of those provisions.

The most egregious portions of the law made it a felony to enter private property open to the public unless a "gun owners welcome" sign was posted, or to carry a loaded handgun in a motor vehicle.  Other banned places ran the gamut from bars and beaches to public gatherings and state parks.

Judge Bumb analyzed countless historical laws cited by the state and found that they were not appropriate historical analogues that would justify the current prohibitions.  I'm proud to say that she repeatedly cited two of my books, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? and The Founders' Second Amendment.

New Jersey filed an emergency motion for stay pending appeal, which the Third Circuit granted in part and denied in part on June 20, 2023.  The injunction against the laundry list of specific "sensitive places" was stayed, while the injunction regarding private property open to the public and carry in vehicles was left in place.  The clerk's office was "instructed to issue an expedited briefing schedule forthwith."

The Third Circuit then held oral argument promptly on October 25, 2023.  For the two consolidated cases, the argument lasted two hours and forty minutes before Judge Cheryl Ann Krause, Judge David Porter, and Judge Cindy Chung.  And that's where the trail ends.  Almost two years have passed without a decision.

To be sure, the state submitted countless pages of historical laws into the record.  But they are all either not analogues, because they do not concern the peaceable carrying of arms, or were enacted toward the end of the nineteenth century, too late to be relevant to the original public understanding of the Second Amendment.  The judges and their clerks need not expend too much time reviewing them.

Justice Clarence Thomas has several times ended a dissent from denial of cert with words like the following, in this instance from Snope v. Brown: "I doubt we would sit idly by if lower courts were to so subvert our precedents involving any other constitutional right. Until we are vigilant in enforcing it, the right to bear arms will remain 'a second-class right.'"  The same logic applies when lower courts unduly extend deciding constitutional claims.

Hopefully the Third Circuit will decide Koons in the near future.

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[Ilya Somin] Trump's Trade Deals Won't End the Harm Caused by His Tariffs

[In each case, tariffs remain much higher than they were before the deals. ]

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Trump has reached a trade deal with the European Union, which follows previous deals with the UK, Japan, Vietnam, and the Philippines. Some might view these deals as vindication of Trump's "Liberation Day" tariffs, and other tariff hikes. But the truth is that these deals leave us worse off than before. In each case, tariff rates under the deals are vastly higher than they were before Trump started his trade war. For example, the new tariff on most EU goods will be 15%, compared to an average rate of 1.47% before Trump's second term (the EU imposed an average %1.35 rate on US imports). It's a similar story with Japan (15% vs. 2%), Britain (10% vs. 3.3%), and the others. Moreover, under the Administration's interpretation of the International Emergency Economic Powers Act (IEEPA), Trump would retain unfettered discretion to raise tariffs further any time he wants for any reason.

As a result, Americans will face much higher prices than before on many goods, and there will be other severe economic damage, as well. All told Trump's IEEPA tariffs are expected to impose some $1.9 trillion in tax increases on Americans over the next decade, costing the average household some $1000 per year, while also raising prices and greatly diminishing economic growth. In addition, giving one man total control over tariffs undermines the rule of law and the stable expectations on which the international economy depends. There is also the damage the tariffs do to relations with US allies, thereby weakening the Western alliance relative to rivals like China and Russia.

The relatively modest reductions in tariffs against US exports these deals include (e.g. Britain reduced its tariffs from an average of 3.8% to 1.8%) don't even begin to offset the enormous harm - even if we (wrongly) discount all harm done to foreign trading partners, and only consider effects on the US.

Obviously, the trade deals also don't change the fact that Trump's IEEPA tariffs are illegal for a wide range of reasons. The Liberty Justice Center and I secured a ruling against the "Liberation Day" tariffs in the US Court of International Trade, and our case (together with one filed by 12 state governments) is now on appeal in the Federal Circuit. We hope to continue to prevail, now aided by big-name legal scholars and appellate litigators Michael McConnell and Neal Katyal. We also have the support of amicus briefs from a wide range of group across the political spectrum.

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[Josh Blackman] Chief Justice Roberts as Chancellor of the Smithsonian Institute

[The New York Times offers some insights into the Parliamentarian in Chief.]

Chief Justice Roberts also serves as the Chancellor of the Smithsonian Institute. Historically, at least, this position did not involve much controversy. But times have changed. President Trump sought to remove the Director of the National Portrait Gallery. In June, the Smithsonian board discussed the matter. And the New York Times spoke with at least three people who were present at the meeting:

On June 9, the leadership of the Smithsonian gathered for a quarterly, but hardly routine, meeting behind closed doors.

President Trump had already called out the Smithsonian for being part of a "concerted and widespread effort to rewrite our nation's history" and announced he was firing the head of its National Portrait Gallery.

Now the Smithsonian's board planned to discuss a response — a resolution carefully calibrated to avoid a confrontation with the president. The resolution would reinforce that only the Smithsonian had the power to fire its museum leader, but would also order a full review of Smithsonian content for bias.

After the resolution had been introduced, Representative Carlos Gimenez of Florida, a Republican board member, interrupted, proposing instead that the board fire the gallery director, as Mr. Trump had sought. His effort was quickly shut down by the Smithsonian's chancellor — the chief justice of the Supreme Court, John G. Roberts Jr.

"We already have a motion on the floor," Chief Justice Roberts said, according to three people with knowledge of the proceedings.

The original resolution succeeded. The meeting quickly moved on.

If the moment was unusually tense for a gathering of a museum board, the intervention by the chief justice, a committed parliamentarian, was not. As chancellor, he is known to preside over meetings with a strict focus on rules and procedures, assiduously avoiding partisan debates — a demeanor that aligns with his reputation as an institutionalist and incrementalist jurist.

The rest of the article presents an informative background of the Chief Justices's role at the Smithsonian.

This vignette is largely consistent with things I've heard over the years about the Chief Justice. At the Judicial Conference, all discussions are limited to items on the "discuss list." And if an item is not on the discuss list, it cannot be debated. And Roberts has large control over what is on the discuss list. Remarkably, the Judicial Conference's ill-fated reassignment policy wasn't on the discuss list. I imagine he treats deliberations at the Smithsonian in a similar fashion.

Does Roberts bring this domineering approach to the Supreme Court's conference? Justice Steven discussed Roberts's role as a presiding officer in his memoir, Five Chiefs. Here is an excerpt:

With regard to all of his special responsibilities, John Roberts is an excellent chief justice. Perhaps he is not quite as efficient as his predecessor when presiding in open court or in the Court's conferences, but his occasional and minor deviations from strict enforcement are well justified. His own extensive experience as an advocate may have made him slightly more generous in allowing a few comments after the red light is turned on, but in my judgment those allowances have always been appropriate.

In our private conferences he was always a well-prepared, fair, and effective leader. For instance, when I added cases to the list of cert petitions to be discussed—that is, when I asked that the conference discuss petitions for certiorari that the chief had not thought worth our attention—it was apparent that he always took a second look at them. By the time the conference arrived, he was prepared to explain his vote to deny, or to acknowledge that there were valid reasons for considering a grant. He also welcomed more discussion of the merits of the argued cases than his predecessor—including expansions of the reasoning behind his own votes—but he maintained the appropriate impartiality in giving each of us an opportunity to speak. In sum, he is a better presiding officer than both of his immediate predecessors.

I think this story must be coupled with the recent leak to the Federalist about the Judicial Conference. People are apparently no longer afraid of talking to Roberts to the press. The grip of the iron fist loosens.

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[Josh Blackman] Today in Supreme Court History: July 27, 1929

/27/1929: The Geneva Conventions are signed by United States. The Supreme Court would consider the Conventions in Hamdan v. Rumsfeld (2006).

The Roberts Court (2006)

 

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[Steven Calabresi] Appointment of Interim U.S. Attorneys

[The attorney general can appoint interim U.S. Attorneys to successive 120-day terms of office unless the nominee is someone to whom the Senate has refused to give advice and consent by a vote either in committee or on the floor.]

Alina Habba's 120-day term as President Trump's appointed Interim U.S. Attorney for the State of New Jersey recently expired without the Senate ever voting on her nomination. A panel of U.S. District Court Judges used a rarely invoked and unconstitutional federal statute to appoint a new and different Interim U.S. Attorney for New Jersey, Desiree Leigh Grace, who had been Ms. Habba's first assistant.

Attorney General Bondi fired the court-appointed Interim U.S. Attorney the day she was appointed, saying "This Department of Justice does not tolerate rogue judges—especially when they threaten the President's core Article II powers."

On Thursday, July 24, President Trump withdrew Alina Habba's nomination to be U.S. Attorney for New Jersey, and Attorney General Bondi then appointed her First Assistant in that U.S. Attorney's Office and also appointed her Acting U.S. Attorney for New Jersey for the next 210 days under the Vacancies Act, 5 U.S.C. § 3345 et seq.

I do not think it was necessary to do that. I think Interim U.S. Attorneys, whose 120-day appointments have expired without the Senate ever voting on their nominations, can be reappointed to an indefinite number of 120-day terms as Interim U.S. Attorneys by the Attorney General under 28 U.S.C. § 546 until and unless the Senate votes down their nominations and so long as they have been nominated for the office in question.

The 120-day term limit does not bar reappointment if done by district court judges. Given that cross-branch appointment of inferior officers is unconstitutional, as I will explain below, there is no reason why 28 U.S.C. § 546 ought to be read as precluding the reappointment of nominated U.S. Attorneys whom Senators do not have the votes to defeat but whose confirmations they are able to delay.

Attorney General Robert Jackson in his famous speech on the role of the federal prosecutor pointed out that from 1789 to the present-day U.S. Attorneys have always required Senate confirmation because of their "immense power" and because they need to win "an expression of confidence in [their] character by both the legislative and the executive branches of the government." Jackson's point is certainly true. But a Senate minority that lacks the votes to reject a nominee cannot be rewarded if, after 120 days, they have used Senate procedure to prevent a vote from taking place.

This issue is coming up all over the country right now because Senate Democrats refuse to allow floor votes on President Trump's nominees to be U.S. Attorney. The matter is thus of great practical importance in the District of New Jersey and in other Districts as well.

The President is the nation's Prosecutor-in-Chief, with the Attorney General as his subordinate. The President has, both domestically and internationally, what the British referred to as the Monarch's Power of the Sword, in contrast to the Legislature's Power of the Purse. It is the President, himself, who swears to "take Care that the Laws be faithfully executed" using the Power of the Sword domestically. The Supreme Court held in Seila Law LLC v. Consumer Financial Protection Bureau (2020) that all of "[t]he executive Power" must be exercised by officers or employees who are removable at will by the President at any time.

The power to prosecute is a core "executive Power" as those words are used in Article II, Section 1. Only the President or the Attorney General can designate an Interim U.S. Attorney who will and must use only the "executive Power." The office of Interim U.S. Attorney is not quasi-judicial, or quasi-legislative. It involves solely the exercise of executive power. This means that only the Attorney General can appoint Interim U.S. Attorneys, and the President or Attorney General can and should on principle fire any Interim U.S. Attorney appointed by federal district judges.

Yes, it is true that the federal statute, 28 U.S.C. § 546, that governs appointment of Interim U.S. Attorneys—under some circumstances—allows federal district court judges to appoint Interim U.S. Attorneys. Versions of this unconstitutional law have been in the U.S Code since the Civil War, although they have rarely been invoked. That portion of § 546 is unconstitutional under Seila Law and Trump v. Wilcox (2025). Section 546 reads (with the unconstitutional language marked in bold):

(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.

(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.

(c) A person appointed as United States attorney under this section may serve until the earlier of—

(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or

(2) the expiration of 120 days after appointment by the Attorney General under this section.

(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.

Title 28 U.S.C. § 546(d) is unconstitutional under Seila Law because it allows the exercise of executive power by someone who has not been hired by the President or his Heads of Departments. It is also unconstitutional under the May 22, 2025, decision (on the so-called "shadow docket") in Trump v. Wilcox, which concluded that National Labor Relations Board Members and Merit Systems Protection Board Members had to be removable at will by the President, because they were exercising, in part, some portion of the President's "executive Power." Even setting aside the debate about removability of board members of supposedly independent quasi-judicial, quasi-legislative multi-member agencies, which were approved in Humphrey's Executor (1935), it has long been understood that, under the 1926 Myers v. United States precedent, all executive officers, such as a U.S. Attorney or an Interim U.S. Attorney, must be removable at will by the President or the Attorney General.

Since Interim U.S. Attorneys exercise exclusively executive power, two conclusions follow: First, 28 U.S.C. § 546(d) is unconstitutional insofar as it grants district judges the power sometimes to appoint officers who will exercise exclusively executive power. Second, Attorney General Bondi acted constitutionally when she fired the court appointed Interim U.S. Attorney.

Section 546(d) is also unconstitutional on Appointments Clause grounds for allowing a court appointed officer to exercise some portion of the President's "executive Power" in violation of Seila Law and of Trump v. Wilcox. Interim U.S. Attorneys are inferior officers whose appointments are governed by the following constitutional language:

[T]he Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Congress can delegate to a Head of a Department, like the Attorney General, the power to appoint an inferior executive branch officer to a congressionally created office, like the office of Interim U.S. Attorney. Or Congress can delegate to, for example, the Supreme Court, the power to appoint the Clerk of the Supreme Court, who is the officer of the Supreme Court of the United States responsible for overseeing filings with the court and maintaining its records, to a congressionally created office.

It is true that the text of the Inferior Officer Appointments Clause could be read as authorizing cross-branch appointments whereby judges can appoint Interim U.S. Attorneys, and the President or Attorney General Bondi could appoint the Clerk of the Supreme Court. The Clause does allow Congress to by "law" vest the appointment of inferior officer "as they think proper" in "the President alone, in the Courts of Law, or in the Heads of Departments."

It strains credulity, however, to assume that Congress could exercise its power to vest in the Courts of Law the power to appoint inferior executive branch officers, or that it could delegate to Attorney General Bondi the power to appoint inferior judicial branch officers like new Clerks of the U.S. Supreme Court.

This is an "Alice in Wonderland" absurd way to read the words "as they think proper." The far more likely meaning of those words is that Congress can delegate to the President, and not the Supreme Court, the power to hire the White House Chief of Staff or the White House Counsel who are inferior executive branch officers. Or it can delegate to the Supreme Court, and not to the President or Attorney General, the power to appoint an inferior judicial branch officer like the Clerk of the Supreme Court, or judicial employees like the nine justices' law clerks.

One might object that the President appoints Article III judges, who are judicial officers, so the Courts of Law should be able to appoint the White House Chief of Staff or the White House Counsel or Interim U.S. Attorneys who are executive inferior officers. But the President's power to appoint judges is constrained by the requirement that he must first nominate them, and the Senate must confirm them, before they can be appointed. Judges picking White House Chiefs of Staff, White House Counsels, or Interim U.S. Attorneys would not be constrained by the check of Senate confirmation, so the analogy fails.

Executive branch agencies do appoint Administrative Law judges (ALJs) who are inferior executive branch officers. But, in my opinion, that is only constitutional when a public benefit like social security disability benefits, or immigration into the U.S., or a suit for money damages against the U.S. is involved, as to which Congress has only partially waived its sovereign immunity. The disposal of public benefits in these cases is an exercise of executive power even though the ALJs who decide these cases have the prestigious but misleading title of "Judge."

The Supreme Court did uphold a court-appointed federal prosecutor in Morrison v. Olson (1988), but that case is no longer good law as to (1) its Appointments Clause holding; (2) its Removal Power holding; or (3) its cross-branch Appointments Clause holding. The Appointments Clause holding of Morrison was not followed in Edmond v. United States (1997) or in Free Enterprise Fund v. PCAOB (2010). The Removal Power holding of Morrison was not followed in Seila Law or in Trump v. Wilcox.

While the Supreme Court has not had the chance to pronounce specifically on the cross-branch Appointment of inferior officers like Interim U.S. Attorneys, it has made it clear in Seila Law and in Trump v. Wilcox that no inferior executive branch officer, who is appointed by the courts and not by the President or the Head of an executive Department, can ever exercise even a shred of the executive power. Yet executive power is the only power that court-appointed Interim U.S. Attorneys exercise. It is thus fair to conclude that the language allowing cross-branch appointment of inferior officers in Morrison is no longer good law.

Although the Supreme Court allowed the cross-branch appointment of minor inferior officers in Ex Parte Siebold (1880), in a brief casual construction, the better rule is that of Ex Parte Hennen (1839) where the Court held that,

The appointing power here designated, in the latter part of the section was no doubt intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged. The appointment of clerks of Courts properly belongs to the Courts of law; and that a clerk is one of the inferior officers contemplated by this provision in the Constitution cannot be questioned.

The rule of Ex Parte Hennen just quoted was demoted by Ex parte Siebold from the constitutional status to which Hennen meant it to apply to the status of mere guidance for Congress, though Siebold did not formally overrule Hennen. In my view, Hennen is clearly right, and Siebold is a much later and in my view erroneous construction of the constitutional text; so I think the Supreme Court should re-elevate Hennen to be the lead case on this question.

Since under Seila Law and Trump v. Wilcox, only the President or his agent the Attorney General can remove Interim U.S. Attorneys, who are not quasi-judicial or quasi-legislative officers, the rule of Hennen suggests that only the Attorney General has the power to appoint Interim U.S. Attorneys, which is what 28 U.S.C. § 546(a) says. To the extent Ex Parte Siebold suggests otherwise, it is no longer good law, as is the case with Morrison v. Olsen.

So, if the district court appointed Interim U.S. Attorney has been removed, how could Attorney General Bondi reappoint Alina Habba to ensure the running of the U.S. Attorney's office for New Jersey? In my opinion, Attorney General Bondi could have chosen to reappoint Alina Habba for another 120 days as Interim U.S. Attorney, since her initial appointment was not one to which the Senate had refused to give advice and consent. I do not think it was necessary to withdraw Habba's nomination and appoint her as Acting U.S. Attorney. All that happened to Alina Habba was that the New Jersey Senators refused to allow Alina Habba's nomination to be voted on by the full Senate. If her appointment is voted on and rejected by the Senate or at least by the Senate Judiciary Committee, her term ends immediately. But until and unless that happens 28 U.S.C. § 546(a) allows an interim re-appointment:

Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.

The statute nowhere says that the same person cannot be reappointed for another 120-day term, unless the Senate has refused to advise and consent to their nomination. Refusal to advise and consent requires a vote either in committee or on the floor. Delaying a U.S. Attorney's nomination vote to run out the 120-day clock on their service as Interim U.S. Attorneys is not a "refusal" of "advise and consent."

This situation differs from the unconstitutional appointments of Robert Mueller and Jack Smith to be Special Counsel because there was no statute that created the Office of Special Counsel, which they purported to hold, nor was there a statute that authorized the Attorney General to appoint a Special Counsel when Robert Mueller and Jack Smith were appointed. The Ethics in Government Act of 1978 sunset out of existence in 1999. It was replaced by an Attorney General Order governing appointment of Special Counsel's, which Gary Lawson and I explain is unconstitutional, as Judge Aileen Cannon held in an excellent 92-page opinion. Steven G. Calabresi & Gary Lawson, Why Robert Mueller's Appointment as Special Counsel is Unlawful?, 95 Notre Dame Law Review 87 (2019).

In Alina Habba's case, and in the case of other Interim U.S. Attorneys like her, there is both (1) a statute creating the office of Interim U.S. Attorney and (2) a grant of power to the Attorney General Bondi to appoint Interim U.S. Attorneys, so long as they have not been voted down by the Senate. There was thus no need to withdraw Habba's nomination when she could instead have been appointed to another 120-day term as Interim U.S. Attorney, at least until the Senate voted and refused to advise and consent to her nomination.

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[Josh Blackman] Today in Supreme Court History: July 26, 1892

7/26/1892: Justice George Shiras Jr. takes oath.

Justice George Shiras

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[Ilya Somin] My Jotwell Review of Michael Ramsey's "The Originalist Case Against the Insular Cases"

[The article makes a compelling argument that has broader implications.]

My just-published Jotwell review focuses on Michael Ramsey's important new article,, "The Originalist Case Against the Insular Cases." Here is an excerpt:

In the Insular Cases of the early twentieth century, the Supreme Court ruled that much of the Constitution does not apply to America's "unincorporated" overseas territories, such as Puerto Rico and other territories acquired as a result of the Spanish-American War of 1898. Thus, the federal government could rule the people there without being constrained by a variety of constitutional rights. Only "fundamental" rights were held to constrain the federal government's powers over the inhabitants of these territories, while other constitutional constraints on federal power did not apply. In a 2022 concurring opinion, Supreme Court Justice Neil Gorsuch urged the Court to overrule these decisions. Prominent originalist legal scholar Michael Ramsey's important new article explains why Gorsuch was right.

Ramsey compellingly demonstrates that the Insular Cases were wrongly decided, at least from an originalist standpoint. And his argument has potential implications that go beyond the status of people living in "unincorporated" territories. There have been various previous critiques of the Insular Cases. But Ramsey's is the first systematic scholarly dismantling undertaken from an originalist perspective.

The unincorporated territories currently include American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands, plus some minor islands….

In a detailed examination of the text and original meaning of the Constitution's Territories Clause and other relevant provisions, Ramsey shows that "under the Territory Clause, Congress's power over U.S. territory [outside the states] is very broad, essentially amounting to a general police power." But he argues persuasively that "the grant to Congress of general police power in territories does not suggest that Congress is thereby freed of other specific limitations on Congress's power arising from the Constitution's structural and individual rights provisions…."

Ramsey also demonstrates that this conclusion is consistent with federal policy and Supreme Court precedent of the pre-Civil War era. The tradition was continued in the initial aftermath of the Reconstruction Amendments. For example, it was generally understood that children born in federal territories were entitled to birthright citizenship.

That longstanding body of precedent was undercut by the Insular Cases as a result of the racism and imperialism of the late nineteenth and early twentieth centuries…

The Insular Cases are not the only important nonoriginalist, atextual abrogations of constitutional rights blessed by the Supreme Court as a result of late-19th century racial bigotry. The same is true of the "plenary power" doctrine, which exempts immigration restrictions from many of the constitutional constraints that apply to all other exercises of federal power. While later decisions have called elements of this doctrine into question, enough remains that it is not completely clear whether, for example, the government can deport immigrants for speech protected by the First Amendment….

Even if completely invalidating federal immigration restrictions entirely would be too great a break with precedent, federal courts would at least do well to rule that such restrictions are subject to the same individual rights and structural constraints as all other legislative powers…

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[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

[A sovereign See, a safehouse, and an infinite number of pronouns.]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

CA7 friends: The Short Circuit team is heading to downtown Chicago on Sunday, August 17 for a live recording of the podcast on the eve of the Seventh Circuit Judicial Conference. Come watch Sarah Konsky of UChicago Law and Christopher Keleher of Keleher Appellate Law hash things out with us. Click here to learn more.

New on the Short Circuit podcast: Steve Lehto provides a free diagnostic on license-plate-holder law.

We can neither confirm nor deny whether six federal agencies properly used Glomar non-responses about the existence of certain documents in response to FOIA requests. But we will say there seems to be no shredding of national security as an excuse for inaction in this D.C. Circuit opinion.The Stored Communications Act allows the government to subpoena social-media companies for user data, and it even allows those subpoenas to be kept secret from the user—but only if a court determines that certain statutory conditions justifying secrecy are met. The government: So when we subpoena X in this investigation, can we just be the ones to decide which subpoenas are secret instead of the court? D.D.C.: Okay. D.C. Circuit: Not okay.Starbucks baristas seek to decertify their union. When the NLRB refuses to grant their petition, the baristas sue, alleging that the NLRB's tenure protections are unconstitutional. NLRB: You know what, we agree. D.C. Circuit: And since you both agree, there's nothing for us to adjudicate and no standing.After the FBI raids a private safe-deposit company without probable cause to search the contents of the individual boxes, the FBI searches the boxes anyway and tries to forfeit the contents. Much meritorious litigation ensues, and the Ninth Circuit says that this is very bad. In another case, an innocent box holder brings a putative class challenge to the FBI's practice of issuing threadbare forfeiture notices that don't tell property owners what the supposed crime is. The government promptly moots her individual case by returning the $40k it took from her. D.C. Circuit: And because there was no proper appeal of the denial of class certification, the rest of the case is over too. (Ed. note: The lawyers on this case are still handsome and good.) (2d ed. note: This is an IJ case.)This sad D.C. Circuit case about child slavery on cocoa farms in Côte d'Ivoire holds that the child plaintiffs didn't plead a plausible connection to defendants like Hershey and Mars. "The Plaintiffs in this case deserve the greatest sympathy, and the people who took away their childhoods deserve the greatest condemnation." But no causation is still no causation.Did you know that, since 1922, baseball—alone among sports—has been exempt from federal antitrust laws, without any basis in statutory text? This was last reaffirmed in a 1972 Supreme Court decision, where two concurring justices took the unusual step of refusing to join the opening facts section of the opinion because Justice Blackmun's paean to America's pastime was so over-the-top. Anyway, the First Circuit says that antitrust exemption also holds in Puerto Rico—although territorial antitrust laws may nevertheless apply because there's no interstate dimension to the purely local Puerto Rican baseball league.Jury finds a Massachusetts man is liable for human-rights violations when he was previously the despotic mayor of a town in Haiti. First Circuit: But the district court needs to consider anew whether Congress did—or even could—create a cause of action in the Torture Victim Protection Act to sue for torture and extrajudicial killings if they occur abroad solely among foreign nationals. Also, that statute doesn't cover attempted extrajudicial killings.In which the Second Circuit issues a blockbuster ruling ordering the release of the Epstein files! (Not, to be clear, the Epstein files that have been in the news all week. Just some, but not all, of the filings in a defamation lawsuit against Epstein associate Ghislaine Maxwell. But still, that first sentence was exciting for a minute there, wasn't it?)New York boy disappears in 1979. Over 30 years later, a man with low IQ and a long history of mental illness and hallucinations is prosecuted for murder and kidnapping based on his confession—which occurred only after many hours of interrogations and before Miranda warnings, but which he repeated after being Mirandized. One jury hangs, and another convicts only after several notes inquiring about the voluntariness of the confessions. New York state courts: No constitutional problem, and any error was harmless. Second Circuit: There's a Supreme Court case directly on point saying police can't do this confession-Mirandize-repeat maneuver. Habeas granted.American victims of terrorist attacks in Afghanistan sue foreign banks for aiding and abetting terrorism, alleging that the banks facilitated money laundering and provided financial services to Pakistani fertilizer companies whose product was smuggled into Afghanistan and used to manufacture IEDs. Second Circuit: But the allegations don't show the banks knowingly and culpably aided and abetted the attacks. No leave to amend because "after filing two complaints together totaling over 1,200 pages" and no plan for fixing the complaint, the plaintiffs have exhausted the court's patience.Although the Pope no longer leads armies into battle, the Holy See is considered a sovereign nation. And thus has sovereign immunity in U.S. courts under the Foreign Sovereign Immunities Act. But not if the tortious activity exception applies. But not if the discretionary function exclusion to that exception applies. How does the Second Circuit figure out how any of this applies when alleged victims of abusive priests sue the See? By borrowing law from IJ's good buddy, the FTCA.In 2021, New Jersey passed a law banning the state, its local governments, and private parties from making, renewing, or extending any contract to detain people for civil immigration purposes. CoreCivic, operator of an immigrant detention center in New Jersey, challenges the ban as a violation of the Supremacy Clause. Third Circuit: More specifically the doctrine of "intergovernmental immunity." The feds are in charge of immigration, and states can't go making it impossible for them to contract for private detention facilities. Dissent: States can until Congress tells them they can't.Philly nonprofit called "Safehouse" wants to address opioid overdoses through providing a, well, safehouse, where people can more safely use drugs. The feds sue. Third Circuit (2021): That might violate the law. Safehouse: But what if we're religious about it? Third Circuit (2025): That might just work.Sex offender, incarcerated since 1986, refuses to complete a sex-offender program designed to reduce the likelihood of recidivism. As a result, he is repeatedly denied parole. He sues, alleging that prison officials violated due process by failing to give him a hearing before treating him as a sex offender and requiring him to participate in the sex-offender program to obtain parole. Sixth Circuit: For one thing, you are in prison for a sex offense. For another, parole is discretionary and nobody is stopping you from completing the program. Case dismissed.There is only one thing that Seventh Circuit Judge Frank Easterbrook could possibly enjoy more than drafting a merits opinion in a case involving antitrust law, the Rooker-Feldman doctrine, and Colorado River abstention: dismissing that same appeal for want of appellate jurisdiction.Schaumburg, Ill. passes a law changing how private fire alarm systems must handle an emergency. Rather than taking the calls first and connecting to the local dispatcher if emergency response is needed, the village now insists that an alarm notify the dispatcher directly. This saves the village a cool $300k per year via a credit from the dispatcher—and costs the private alarm companies all of their business in the village. An alarming Contracts Clause violation? Seventh Circuit: Not on this record, which leaves "much to the imagination."Man forces woman at gunpoint to drive him from Fargo, N.D. a few miles east, crossing the border, to Moorhead, Minn., where he tries (unsuccessfully) to get her to withdraw cash from an ATM, before she bolts and summons help. Man: The evidence showed only a robbery, not a distinct kidnapping, which you can tell by looking at this neat four-factor test from the Third Circuit. Eighth Circuit: Kidnapping conviction affirmed, and though we find that Third Circuit case interesting, no need to adopt it here. Concurrence: This is an easy one, and there's no need to add elements to the kidnapping statute like the Third Circuit did.Man is arrested for his part in a drug deal with the feds on the other side. Whoops. In addition to the pile of meth in the car meant for the deal, he also has a small bag of weed in his pocket. He admits to smoking a few times per day and to having a rifle at home that he'd used only once. Oh snap! Drug addicts can't possess guns. (You may have heard of this statute before.) Eighth Circuit: Smoking weed doesn't automatically blunt someone's Second Amendment right. On remand, the district court needs to determine if the man's marijuana use caused him to act like someone who is mentally ill and dangerous or made him pose a danger to others with his gun.Every four years, the FCC is required by law to assess whether its own rules limiting the number of TV and radio stations that someone can own are "necessary in the public interest as a result of competition." In December 2023, after years of delays and legal threats, the FCC decided that its rules are indeed in the public interest—one should be even more strict! Eighth Circuit: The FCC's review changed "almost nothing" and that's mostly fine, but its decision to keep one rule was arbitrary and capricious, and tightening another exceeded the FCC's authority.While working on a joint state-federal task force, a St. Paul officer lied to get a local teen arrested and the teen spent over two years in custody before charges were dropped. Prior Eighth Circuit decisions ruled out a Bivens remedy and held that § 1983 is off the table because the officer wasn't acting under color of state law. The plaintiff moved to amend her complaint and seek limited discovery after finding new evidence that the officer was working under color of state law. Eighth Circuit: The earlier decision controls—no § 1983 claim, and new evidence wouldn't change that. Affirmed. (This is an IJ case.)Oregon widow and mother of five wants to adopt two additional kids. A state agency has her take a class where, among other things, she's taught "[t]here are an infinite number of pronouns as new ones emerge in our language. Always ask someone for their pronouns." After she later says she doesn't agree with some of what the class taught or similar adoption policies, she's denied the chance to adopt. Ninth Circuit (over a dissent): Which violated her free speech and free exercise rights.You may not be surprised to learn that California requires a background check for every purchase of ammunition. You may be surprised to learn that even the Ninth Circuit (over a dissent) thinks the law violates the Second Amendment.District court (February): The Trump administration's executive order purporting to strip birthright citizenship is an unconstitutional travesty, and these plaintiffs deserve a universal injunction. Ninth Circuit (also February): That's not wrong! SCOTUS (June): Universal injunctions aren't even a thing, though maybe possibly the state plaintiffs need a nationwide injunction to get complete relief. Ninth Circuit (Wednesday): The state plaintiffs need a nationwide injunction to get complete relief. (Dissent: The state plaintiffs don't have standing to get any relief at all!)It seems like maybe bad business to fire a guy who put together the team that secured your company a $15 mil contract just because he said he needed an ADA accommodation to let him sit in exit rows on business trips, but the Tenth Circuit says there's enough evidence the defendant did exactly that for this case to go to the jury. Well, more specifically, it says the guy met the three-prong McDonnell-Douglas test to survive summary judgment without falling into either of the Reeves exceptions to those prongs—prompting a concurrence wondering why we need a system of prongs and anti-prongs instead of just saying "the facts presented at summary judgment make the case close enough to go to a jury."

New Class! (Certified, that is.) For years, police have seized cash at the FedEx processing center at the Indianapolis airport—FedEx's second-largest hub in the country—and used civil forfeiture to keep the money. They did this to $42,000 on route to Henry and Minh Cheng, cash that was a legitimate payment to their wholesale jewelry business. The Chengs and IJ fought back, not just for them but to stop the wider unconstitutional practice. This week they received some good news: Their class was certified, meaning the lawsuit can proceed on behalf of everyone facing similar forfeiture actions.

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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