Eugene Volokh's Blog, page 46

July 23, 2025

[Eugene Volokh] Brett Kimberlin Sues Over "The Speedway Murders" Hulu Program

You can see the Complaint starting with pp. 29 of this PDF; the case has just been removed to federal court. The allegations are complex, and I don't have the time to summarize them. I'm flagging the case chiefly because some of our longtime readers might be interested in Brett Kimberlin from his various appearances on the blog, chiefly stemming from brushes with early bloggers (see, e.g., some of these posts and these ones).

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Published on July 23, 2025 16:27

[Eugene Volokh] Federal Judge Withdraws Opinion "After Lawyers Complained That [It] Contained … Made-Up Quotes and Misstated Case Outcomes"

From Bloomberg (Justin Henry) today:

A New Jersey US district court judge withdrew his decision in a biopharma securities case Wednesday after lawyers complained that his opinion contained numerous errors, including made-up quotes and misstated case outcomes.

The judge's order states:

The Court is in receipt of Defendants counsel's letter dated July 22, 2025. On June 30, 2025, the Court issued an Opinion and Order. (ECF Nos. 114, 115.) That Opinion and Order were entered in error. Accordingly, the Court directs the Clerk of Court to remove the Opinion and Order at ECF Nos. 114 and 115 from the docket. A subsequent Opinion and Order will follow.

An excerpt from counsel's letter:

While Defendants do not seek reconsideration of the Opinion pursuant to Federal Rule of Civil Procedure 59(e), we wish to bring to the Court's attention a series of errors in the Opinion—including three instances in which the outcomes of cases cited in the Opinion were misstated (i.e., the motions to dismiss were granted, not denied) and numerous instances in which quotes were mistakenly attributed to decisions that do not contain such quotes—so that the Court may consider whether amendment or any other action should be taken. We also write to alert the Court that these and related issues have been raised in a parallel securities class action lawsuit pending in the District of New Jersey and are the subject of briefing in that case. See In re Outlook Therapeutics, Inc. Sec. Litig., 2:23-cv-21862 (D.N.J.).

Read the letter for more.

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Published on July 23, 2025 15:47

[Jonathan H. Adler] SCOTUS Stays Injunction Against Removal of CPSC Commissioners

[Further indication that independent agencies will not be "independent" much longer.]

Today the Supreme Court stayed a district court order barring President Trump from removing the three Democratic members of the Consumer Product Safety Commission. The Court's order is not particularly surprising given its prior order staying a similar injunction barring the removal of other appointees to independent agencies.  The three justices appointed by Democratic Presidents dissented.

As has become increasingly common, the Court issued the order with minimal explanation and without argument. The unsigned order in Trump v. Boyle suggested that lower courts should take greater queues from such orders than they have been, even though such orders are not precedential. From the order:

The application is squarely controlled by Trump v. Wilcox, 605 U. S. ___ (2025). Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases. The stay we issued in Wilcox reflected "our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty." Ibid. (slip op., at 1). The same is true on the facts presented here, where the Consumer Product Safety Commission exercises executive power in a similar manner as the National Labor Relations Board, and the case does not otherwise differ from Wilcox in any pertinent respect.

Justice Kavanaugh wrote separately to note that he would have granted cert before judgment in addition to granting the stay application. He wrote:


When an emergency application turns on whether this Court will narrow or overrule a precedent, and there is at least a fair prospect (not certainty, but at least some reasonable prospect) that we will do so, the better practice often may be to both grant a stay and grant certiorari before judgment. In those unusual circumstances, if we grant a stay but do not also grant certiorari before judgment, we may leave the lower courts and affected parties with extended uncertainty and confusion about the status of the precedent in question. Moreover, when the question is whether to narrow or overrule one of this Court's precedents rather than how to resolve an open or disputed question of federal law, further percolation in the lower courts is not particularly useful because lower courts cannot alter or overrule this Court's precedents. In that situation, the downsides of delay in definitively resolving the status of the precedent sometimes tend to outweigh the benefits of further lower-court consideration.


So it is here. Therefore, I not only would have granted a stay but also would have granted certiorari before judgment.


Apparently he did not have too many takers for this position. The three dissenters object to resolving these sorts of issues on the emergency docket, but did not want to accelerate the Court's resolution of the underlying question. Joining Justice Kavanaugh's call for certiorari would likely hasten Humphrey's Executor's demise.

Justice Kagan penned a brief dissent on behalf of the three liberal justices, lamenting the Court's hostility to Humphrey's, and in particular the justices' willingness to "the President to remove Commissioners for no reason other than their party affiliation." As Kagan notes, this could have the practical effect of eliminating bipartisan commissions with regulatory authority.

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Published on July 23, 2025 15:14

[Eugene Volokh] New Unsealing Decision from Second Circuit in Virginia Giuffre v. Ghislaine Maxwell

From today's decision in Giuffre v. Maxwell, before Second Circuit Judges José Cabranes, Rinna Raggi, and Myrna Pérez:


Following this court's remand in Brown v. Maxwell ("Maxwell I") (2d Cir. 2019), the … District Court … reviewed hundreds of sealed documents in this now-settled defamation action and, after considering the privacy interests of more than a hundred third-parties, issued a series of orders directing that a large number of the documents be unsealed either in whole or in part. Plaintiff Virginia Giuffre, now deceased, and Intervenors the Miami Herald Media Company and Miami Herald reporter Julie Brown … appeal from those parts of the district court's orders declining to unseal certain documents….


This appeal has its origins in a 2015 defamation action brought … by plaintiff Virginia Giuffre, a victim of sexual trafficking by financier Jeffrey Epstein. Giuffre charged defendant Ghislaine Maxwell, an Epstein associate, with defaming her by publicly calling her statements implicating Maxwell in Epstein's trafficking "obvious lies." In the extensive discovery conducted in that action, several hundred documents were produced, prompting multiple sealing motions …, which resulted in "nearly one-fifth of the docket" being filed under seal. Those documents, which included all filings pertaining to Maxwell's summary judgment motion, remained under seal when, on May 24, 2017, the parties executed a settlement agreement, prompting the district court to close the case the following day.


Both before and after closure of Giuffre's defamation action against Maxwell, various third-parties sought to intervene to seek the unsealing of numerous documents filed in that case. Among these parties was the Herald, which so moved on April 6, 2018. The district court allowed most third-parties (including the Herald) to intervene, but denied their motions for unsealing. On a consolidated appeal from those denials, this court ruled that materials submitted in connection with Maxwell's denied summary judgment motion in the defamation action were judicial documents subject to a strong presumption of public access, determined that the presumption was not overcome by countervailing interests, and ordered the materials unsealed (subject to minimal redactions)…. Over the next few years, the district court individually reviewed hundreds of sealed documents, considered the asserted privacy interests of more than a hundred third-parties, conducted additional hearings, and issued further decisions as to unsealing, some of which prompted appeals to this court challenging orders to unseal….


The Second Circuit partly affirms the decision below and partly reverses it, but here are the interesting legal conclusions:

A motion that's presumptively publicly accessible remains so even if "before the motion is decided, the case settles thereby making the motion moot."A document that's presumptively publicly accessible remains so (oversimplifying slightly) even if the "court does not rely on [that] particular judicial document in making a ruling."Motions to seal or unseal and related filings are themselves presumptively publicly accessible.

And here's an excerpt from the (long) analysis:


In deciding whether to seal or unseal filed materials, a court properly conducts a three-step inquiry:


First, the court determines whether the record at issue is a judicial document—a document to which the presumption of public access attaches. Second, if the record sought is determined to be a judicial document, the court proceeds to determine the weight of the presumption of access to that document. Third, the court must identify all of the factors that legitimately counsel against disclosure of the judicial document and balance those factors against the weight properly accorded the presumption of access….


To qualify as a "judicial document" the materials at issue must be "relevant to the performance of the judicial function and useful in the judicial process." … [T]he identification of a judicial document is a binary decision made as of the time of the document's filing, i.e., filed material either is or is not a judicial document depending on whether it could have a tendency to influence the court in the exercise of its Article III powers. Subsequent events do not alter that conclusion. Thus, insofar as the district court ruled in its December 2019 and January 2020 Orders that the settlement of Giuffre's defamation action rendered pending motions in that case moot such that they could no longer be deemed judicial documents, we identify error, vacate those orders, and remand the case to the district court with directions that it conduct an individual review of the motion materials consistent with this opinion and order unsealing as appropriate….


[T]his court has [also] "expressly rejected the proposition that 'different types of documents might receive different weights of presumption based on the extent to which they were relied upon in resolving a motion.'" … "[I]f the rationale behind access is to allow the public an opportunity to assess the correctness of the judge's decision … documents that the judge should have considered or relied upon, but did not, are just as deserving of disclosure as those that actually entered into the judge's decision." In other words, "the proper inquiry is whether the documents are relevant to the performance of the judicial function, not whether they were relied upon." …


"[A] court performs the judicial function not only when it rules on motions currently before it, but also when properly exercising its inherent supervisory powers." … The sealing or unsealing of court filings is an exercise of supervisory power over the court's docket…. The Doe filings [related to sealing or unsealing of court records] here at issue qualify as judicial documents because they were submitted to "influence [the] district court's ruling[s]" as to whether other judicial documents submitted throughout the defamation litigation should be maintained under seal …. Accordingly, a presumption of public access attaches to the Doe filings ….


Because the Doe filings invoked the court's supervisory powers with respect to its maintenance of other documents on its docket, the filings are incrementally more attenuated from and "ancillary to the court's core role in adjudicating a case," and, thus, entitled to a somewhat lower presumption of public access. How much lower depends on the underlying judicial documents at issue. The more those documents implicate a court's core adjudicative role, the stronger the presumption of access that applies to them and, by extension, to filings seeking to seal or unseal them. The more removed the underlying documents are from a court's core adjudicative role, the more reduced the presumption of access that applies to them, and to sealing filings pertaining to them.


Thus, where filings urging the court to seal or unseal pertain to documents that themselves play only a "negligible role" in a court's performance of its Article III duties, those documents are accorded only a low presumption of public access—"little more than a prediction"—and the related filings to seal or unseal no more so. These different weights—both for sealing filings and the documents to which they pertain—reflect differences not only in the degree to which the materials implicate core judicial functions but also in the "resultant value of such information to those monitoring the federal courts." ….


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Published on July 23, 2025 15:10

[Ilya Somin] Mark Graber on the History and Original Meaning of the Militia Act of 1903

[Graber shows that the act used by Trump to federalize the California National Guard does not allow the president to take this step in response to low-level violence and disorder.]

California National Guard members in Los AngelesCalifornia National Guard members in Los Angeles. (Apex/Mega/DFBEV/Newscom)

 

In June, Donald Trump federalized 4000 California National Guard troops and deployed them to Los Angeles, ostensibly for the purpose of combating protests, unrest, and lllegality in response to ICE deportation operations. The federal law Trump invoked - the Militia Act of 1903 - can only be used in the event of 1) "invasion" or danger of invasion by a foreign power 2) rebellion, or 3) a situation where the president  is "unable with the regular forces to execute the laws of the United States." A district court rightly invalidated Trump's actions on the grounds that none of these three conditions actually existed in LA. But  the US Court of Appeals for the Ninth Circuit overruled on the ground that Trump's assessment of the facts on the third issue deserves a high degree of judicial deference (though they did reject the administration's argument that such actions are left to completely unreviewable executive discretion). I criticized the Ninth Circuit ruling here.

In a just-published article, Prof. Mark Graber (Univ. of Maryland), a leading expert on post-Civil War era constitutional issues, has a valuable discussion of the history and original meaning of the Militia At of 1903. He shows that the Ninth Circuit got it wrong. Litigation over these issues continues (the district court and Ninth Circuit rulings only addressed a preliminary injunction). Moreover, the case could sent an important precedent for future executive efforts to use the military for domestic law enforcement - a very dangerous form of emergency power.

Here is Graber's summary of his conclusions:

Americans from the ratification of the Constitution to the passage of the Militia Act of 1903 recognized that Congress could empower the President to federalize state militia only under the wartime or wartime analogue conditions under which Congress could empower the President to impose martial law. These conditions were limited to a foreign invasion, a domestic rebellion, or some other violent uprising that caused judicial proceedings in part of the United States to be suspended. The state militia federalized by the Militia Act were expected to confront troops or the equivalent, not criminals or scattered violent protestors. Interpreting the Militia Act of 1903 or any other federal measure, to give near absolute discretionary power to the president to determine when vast wartime powers may be exercised, [The Supreme Court's ruling in] Ex parte Milligan noted, would subvert the strict limitations of  in the militia acts and threaten constitutional democracy in the United States by enabled the president and subordinates to "substitute military force for and to the exclusion of the laws," and govern as they "think right and properly, without fixed and certain rules."

The article isn't long. Anyone interested in this important issue should the whole thing!

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Published on July 23, 2025 14:00

[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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Published on July 23, 2025 00:00

July 22, 2025

[Ilya Somin] Why I Distrust Social Trust Rationales for Immigration Restrictions

[Evidence indicates immigration doesn't actually undermine social trust, and that reductions in social trust aren't necessarily bad, anyway.]

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In a recent post, co-blogger David Bernstein discusses the "social trust" rationale for immigration restrictions: the idea that the increased ethnic and cultural diversity caused by immigration reduces social trust, which in turn leads to various bad outcomes. This is one of the more sophisticated justifications for immigration restrictions. But it deserves to be rejected, nonetheless. For the main reasons, why see  this excellent analysis by my Cato Institute colleague Alex Nowrasteh, my discussion of his piece, and the relevant section of Chapter 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom.

To briefly summarize, shows that 1) the link between trust and various beneficial social outcomes is  highly questionable, 2) the evidence that immigration reduces trust is also weak, and 3) even if trust is beneficial and immigration reduces it, institutional incentives are often an effective substitute for it. Nowrasteh delves into the trust issue in greater detail in two social science articles (see here and here). His book Wretched Refuse: The Political Economy of Immigration and Institutions (coauthored with Ben Powell), also has lots of relevant material.

My own view, summarized in my previous post on this topic, is that some minimum threshold of social trust is essential, but it doesn't follow that higher trust is necessarily better:

[E]ven if social trust is desirable (and it's hard to deny that societies need at least some minimal level of trust), it doesn't follow that more is always better. It could be that once you achieve a relatively modest level of trust (e.g. - we generally trust strangers not to assault or swindle us, and the like), further increases have few benefits. At some point, increased trust could even be harmful. For example, excessive trust in commercial transactions make us vulnerable to exploitation by conmen. Excessive trust in government officials might enable them to get away with corruption and harmful and unjust policies, and so on. If so, declining trust - whether driven by immigration or other factors - may not be a problem unless and until it gets a society below that bare minimum.

In fairness, David Bernstein doesn't actually endorse the social trust rationale for immigration restrictions. He just uses this argument to counter a specific libertarian response to a different rationale for immigration restrictions: claims that unconstrained immigration would overburden the welfare state. One response to that claim is that immigration actually reduces natives' support for welfare benefits because the latter dislike seeing welfare payments going to immigrants (particularly ones from significantly different racial, ethnic, or cultural backgrounds). This is backed by evidence indicating that ethnically diverse societies, on average, have less welfare-state redistribution.

Pro-immigration libertarians need not rely on this point in countering the welfare-state rationale for restrictionism. We have several other strong responses, as well. But this one is also valid, despite David's concerns. It is important to remember that opposition to redistribution to a given group isn't the same thing as declining social trust, generally. People can and often do oppose coercive redistribution to those whom they nonetheless trust when it comes to a variety of commercial and social transactions. That happens all the time! I trust all sorts of people whom I not willing to pay higher taxes to give extra welfare benefits to. You likely feel the same way.  Moreover, as noted above, declining trust isn't necessarily a bad thing, unless it falls below minimally acceptable levels.

Even if increased diversity caused by immigration does somehow reduce trust to a degree that causes real harm, that has to be weighed against the enormous damage caused by immigration restrictions themselves, including that inflicted on receiving-country natives. Immigration restrictions reduce the economic liberty and prosperity of natives more than any other government policy enacted by Western democracies. It would require a truly enormous increase in social beneficial trust to even come close to offsetting that.

And if immigration simultaneously reduces both social trust welfare-state spending, it may well be that the benefits of the latter outweigh any harm caused by the former, even aside from other beneficial effects of free migration. That's especially likely to be true from a libertarian perspective, which holds that excessive government spending is a great menace.

Finally, as David points out, libertarians believe (rightly) that welfare state spending itself has a negative effect on social cohesion because "government tends to be corrosive of community and pits people who might otherwise get along against each other in a scramble for political rents." If so, the net effect of immigration on trust may actually be positive! It may initially reduce trust by increasing diversity; but then there is a countervailing increase caused by cuts in government spending.

 

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Published on July 22, 2025 19:00

[Ilya Somin] Upcoming Speaking Engagements

[Ilya Somin's upcoming speaking engagements. Most are free and open to the public.]

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I am putting up my list of upcoming speaking engagements earlier than usual, because several are upcoming even before the start of the Fall 2025 academic semester.

Unless otherwise noted, all events are free and open to the public—and in person. The listed times are those in the time zone where the event is being held.

I will likely add additional events and information to this post, as they are scheduled. In the meantime if your university, think tank, research institute or other similar organization would like to invite me to speak (either virtually or in person) on any topic within my expertise, I am open for business!

July 23, 12-1 PM, Society for the Rule of Law, Washington, DC (virtual event): "Trump's Tariffs and the Rule of Law." Panel on "Tariffs and the Rule of Law." Other participants are Andrew Morris (New Civil Liberties Alliance) and Gregg Nunziata (Society for the Rule of Law).  See here for link, where the event can be viewed live.

July 23, 6-7 PM, New Civil Liberties Alliance, Victims of Communism Museum and Memorial Foundation 900 15th St., NW, Washington, DC: "The Case for Nationwide Injunctions" (debate with Prof. Ronald Cass).

July 30, 1:30-2:30 PM, Pacific Legal Foundation, Arlington, VA (virtual event): "The Constitutional Case Against Trump's Trade War," panel on "Tariffs and the Constitution: Who Holds the Power?"  Other participants are Molly Nixon (Pacific Legal Foundation) and Rebecca Melsky  and Eva St. Clair (Princess Awesome). Links and registration available here.

August (exact date/time TBD), Autonomous University of Mexico, Mexico City, Mexico (virtual event): "The Constitutional Case Against Trump's Tariffs."

Aug. 27, 3-4 PM, International Young Lawyers' Association Annual Conference,  Washington, DC: "Challenges to the Rule of Law in the United States," Panel on "The Rule of Law in a Changing World." Registration and other information on the conference, available here.

Sept. 5, Time TBA,  51st Annual Advanced Business Law Conference, Virginia State Bar, Williamsburg, VA: "The Trump Tariff Litigation). I believe attendance is limited to participants in the conference. Registration and other information on the conference available here.

Sept. 15, 3:10-4:30 PM, Seminar on Constitutional Crisis, University of Miami Law School, Miami, FL (virtual event): "Trump, Emergency Powers, and the Constitution." This event is only open to students enrolled in the relevant seminar.

Sept. 25, Time TBA, Institute for Policy Integrity, New York University School of Law, New York, NY: "Trump's Abuse of Emergency Powers" (tentative title), panel on emergency powers.

October 2, Time TBA, University of Pennsylvania Carey Law School, Philadelphia, PA: "The Constitutional Case Against Trump's Tariffs." Sponsored by the UPenn Federalist Society.

Nov. 6, Time TBA, University of St. Thomas School of Law, Minneapolis, MN: "The Case for Universal Injunctions," panel on universal injunctions and related remedies. Other participants will include Prof. Greg Sisk (Univ. of St. Thomas) and Prof. Monica Haymond (Northwestern).

Nov. 7, Time TBA, University of St. Thomas School of Law, Minneapolis, MN: "The Constitutional Case Against Trump's Tariffs." This event may be limited to St. Thomas faculty and students.

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Published on July 22, 2025 16:05

[Eugene Volokh] Denying Funding to Planned Parenthood Groups Because Their "Affiliates" Perform Abortions Violates First Amendment

[So a federal judge held yesterday, acknowledging that the government may refuse to fund abortions, but concluding that the exclusion of funding to affiliates unconstitutionally violates their rights of expressive association.]

Yesterday's decision by Judge Indira Talwani (D. Mass.) in Planned Parenthood Fed. of Am., Inc. v. Kennedy (appeal pending) considered Section 71113(a) of the Reconciliation Act, which bars federal funding to any "entity, including its affiliates, subsidiaries, successors, and clinics," that provides abortions and satisfies certain other criteria (to oversimplify somewhat).

The court acknowledged that "Congress has long prohibited the use of any federal funds to reimburse the cost of abortions under the Medicaid program except in limited circumstances," and that "The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way." But it concluded that the restriction on funding groups because of the actions of their affiliates violated the freedom of expressive association protected by the First Amendment. Here's a short excerpt from the long opinion:


Section 71113 does not merely "withhold[ ] funding based on whether entities provide abortion services," but also based on whether "an entity, including its affiliates," provides abortion services. And Defendants assert that "two entities' existence under common control" would satisfy the dictionary definition of an "affiliate," and that, in Defendants' view, Planned Parenthood Federations' "membership standards," "accreditation standards," and "shared medical standards and guidelines," would be sufficient to show common control such that Planned Parenthood Members who do not provide abortion could be "affiliates" of the Planned Parenthood Members who do.


To the extent that Section 71113 may be applied to Planned Parenthood Members who do not provide abortion, Plaintiffs are likely to succeed in establishing that the law impermissibly conditions the receipt of Medicaid funding on these Members foregoing their right to associate with Planned Parenthood Federation and other Members. Members who do not provide abortions cannot escape the law's burden except by disassociating from Members that do. And because Section 71113 may be applied to Members who are affiliates of each other via the structure, governance, and membership requirements of Planned Parenthood Federation, disassociating with other Members requires disassociating from Planned Parenthood Federation itself.



While Defendants contend that Section 71113 does not regulate speech, the record demonstrates that Members' affiliation via their membership in Planned Parenthood Federation is expressive. Planned Parenthood Federation advocates before Congress, provides education and information about sexual and reproductive health, and through Planned Parenthood Action Fund, communicates with the public regarding lawmakers' voting records, supports campaigns for ballot initiatives, and supports candidates for federal, state, and local officials who will support reproductive freedom in furtherance of its mission. Members engage in those activities with Planned Parenthood Federation and each other.


Additionally, Planned Parenthood Federation provides leadership and financial support to Members around shared policy and program initiatives. Moreover, each Member licenses the use of the Planned Parenthood name, which expresses that each Member stands for particular values. Membership in Planned Parenthood Federation—and corresponding affiliation with other Members—is thus part and parcel with Planned Parenthood Members' associational expression….


The Supreme Court has underscored that the use of separate corporate entities, even where closely related, allows Congress to set conditions with its spending powers without unconstitutionally leveraging the funding to regulate speech. In Regan v. Taxation With Representation of Wash. (1983), the Court upheld a prohibition on "substantial lobbying activities" by 501(c)(3) organizations against an unconstitutional conditions challenge in part because the organization remained free to use a "dual structure …, with a § 501(c)(3) organization for non-lobbying activities and a § 501(c)(4) organization for lobbying," meaning the prohibition did not necessarily inhibit the organization's ability to engage in First Amendment activities.


In F.C.C. v. League of Women Voters of Cal. (1984), the Court struck down a statute barring any recipient of certain federal grants from engaging in editorializing. In so holding, the Court explained that "if Congress were to adopt a revised version" of the statute "that permitted … broadcasting stations to establish 'affiliate' organizations" that engaged in editorializing, "such a statutory mechanism would plainly be valid" because "[a] public broadcasting station[ ] would be free … to make known its views on matters of public importance through its nonfederally funded, editorializing affiliate without losing federal grants for its noneditorializing broadcast activities."


Here, Section 71113 prohibits the type of dual structure that would have insulated the abortion restriction from an unconstitutional conditions challenge. Instead of merely prohibiting Planned Parenthood Members that receive Medicaid funds from providing abortions, the statute prohibits them from affiliating with entities that do. Moreover, the record is devoid of evidentiary support for Defendants' suggestion that Planned Parenthood entities share funds that are ultimately used for abortions. Therefore, restricting funds based on affiliation with an abortion provider operates only to restrict the associational right of Members that do not provide abortion.


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Published on July 22, 2025 15:39

[Ilya Somin] Major Orange Juice Importer Files Lawsuit Challenging Trump's Planned Brazil Tariffs

[The case raises many of the same issues as our case against Trump's "Liberation Day" tariffs.]

Brazilian flag. (NA)

 

A major orange juice importer has filed a lawsuit in the US Court of International Trade challenging Trump's planned imposition of 50% tariffs on imports from Brazil:


A U.S.-based juice company is suing over President Trump's pledge to impose a steep 50 percent tariff on Brazilian imports starting next month.

Johanna Foods Inc., a major importer of orange juice, filed a lawsuit on Friday in the U.S. Court of International Trade in New York, saying that the measure, announced in a July 9 letter from Mr. Trump to President Luiz Inácio Lula da Silva of Brazil, threatened to upend its business and sharply drive up prices for American consumers.

Mr. Trump has used tariffs aggressively to shape trade policy. In justifying the tariff on Brazil, he cited factors including what he called an unfair trade relationship and a "witch hunt" trial against Brazil's former right-wing president, Jair Bolsonaro, a close ally.

Johanna Foods' complaint argues that such factors do not meet the legal threshold for invoking the International Emergency Economic Powers Act of 1977, which gives the president broad authority to regulate international economic transactions during a declared national emergency.

"There is no unusual or extraordinary threat," the company said in the complaint, pointing to the lack of a formal executive order or declaration of national emergency. The complaint also said that the letter to Mr. Lula did not constitute an executive order.

The complaint said the tariffs would increase Johanna Foods' annual import costs by $68 million and lead to retail price hikes of up to 25 percent. Johanna Beverage Co., a related company based in Washington State, is also listed as a plaintiff.

Orange juice prices are already high. In June, the price of frozen orange juice concentrate was 5.5 percent higher than in June 2024, according to the U.S. Bureau of Labor Statistics.

Brazil, the world's largest exporter of orange juice, supplies well over half of the fresh orange juice consumed in the United States, according to Agriculture Department figures. Brazil is also a major exporter of coffee to the United States.


The Johanna Foods complaint is available here. It raises many of the same issues as the lawsuit against Trump's "Liberation Day" tariffs, filed by the Liberty Justice Center and myself, on behalf of five small businesses harmed by this massive trade war. A unanimous ruling in our favor by the US Court of International Trade concluded that IEEPA "does not authorize the President to impose unbounded tariffs" and that such "an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government." The case (consolidated with a similar lawsuit filed by 12 state governments) is now on appeal before the US Court of Appeals for the Federal Circuit, with oral argument scheduled July 31 (see here for the appellate briefs of the parties, and here for the many amicus briefs supporting us, filed by groups on different sides of the political spectrum).

Like us, Johanna Foods argues that IEEPA does not authorize trade-deficit related tariffs, that there is no "emergency" and "unusual and extraordinary threat" of the sort required to utilize IEEPA, and that unconstrained presidential tariff authority would violate constitutional limits on delegation of legislative power to the executive. Their initial complaint does not make the argument that IEEPA doesn't authorize tariffs at all, or raise the major questions doctrine (which requires which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance"). But perhaps they will add these points in later filings.

In a previous post on the Brazil tariffs, I outlined how they highlight the egregious nature of the Administration's position even more than Trump's other IEEPA tariffs do:


The Brazil situation exemplifies why Trump's use of IEEPA is illegal and harmful. Brazil's prosecution of Bolsonaro is pretty obviously not an "emergency" or an "unusual and extraordinary threat"  to the US economy or national security. Both of these conditions are required to invoke IEEPA.  This situation just underscores the danger of allowing the president to define those terms however he wants, without any judicial review, as the administration claims he can.

The ostensible rationale for the Liberation Day tariffs is trade deficits, despite the fact that such deficits are not an "emergency," not at all "extraordinary" or  "unusual," or even a threat at all. On these points, see the excellent amicus brief in our case filed by leading economists across the political spectrum.

The Brazil tariffs are even more indefensible than Trump's other IEEPA tariffs. In addition to the Bolsonaro prosecution, Trump's letter announcing the new tariffs cites that country's supposedly unfair trade policies.  But the US actually has a substantial trade surplus with Brazil, of some $7.4 billion per year, according to the office of the US Trade Representative. In combination with  Brazil's retaliatory tariffs, Trump's massive new tariffs against that country will predictably harm consumers and businesses in both countries, for little if any gain.

If the president can use IEEPA to impose tariffs for completely ridiculous reasons like these, he can use it to impose them against any nation for any reason. That reinforces our argument that the administration's interpretation of IEEPA leads to a boundless and unconstitutional delegation of legislative power to the executive.


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Published on July 22, 2025 14:36

Eugene Volokh's Blog

Eugene Volokh
Eugene Volokh isn't a Goodreads Author (yet), but they do have a blog, so here are some recent posts imported from their feed.
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