Eugene Volokh's Blog, page 52

[Eugene Volokh] Interesting Third Circuit Statutory / Procedural Immigration Case

A short excerpt from today's long opinion by Judge Arianna Freeman, joined by Judge Cheryl Ann Krause, in Qatanani v. Attorney General:

The Supreme Court has long recognized that the admission and exclusion of noncitizens is a "fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." But in that endeavor, both political branches have particular roles to play.

On the one hand, the Executive has authority to enforce the immigration laws passed by Congress and to exercise the discretion Congress delegates to it. On the other hand, "the formulation of [immigration] policies is entrusted exclusively to Congress." Indeed, there is "no conceivable subject" over which the "legislative power of Congress [is] more complete" than the admission and exclusion of noncitizens. In this balance, it is the Judiciary's exclusive province to resolve separation-of-powers questions. So where an administrative agency purports by regulation to evade procedures mandated by Congress in the Immigration and Nationality Act ("INA"), it is incumbent upon us to intervene. We do so here.

In 1996, Mohammad M. Qatanani was admitted to the United States on a work visa. In 1999, he applied under 8 U.S.C. § 1255(a) to adjust his immigration status to that of a Lawful Permanent Resident ("LPR"). After lengthy proceedings regarding Qatanani's application, an Immigration Judge ("IJ") twice made fact findings and credibility determinations in Qatanani's favor and granted his application to adjust to LPR status. The IJ issued those orders in 2008 and 2020, respectively.

The IJ's 2008 order never became final; the Department of Homeland Security ("DHS") appealed the order within the 30-day period permitted for it to do so. On appeal, the Board of Immigration Appeals ("BIA") vacated the IJ's order and remanded the matter to the IJ for further proceedings. Those proceedings led to the IJ's April 2020 order that again granted Qatanani's application to adjust to LPR status.

DHS did not appeal the IJ's April 2020 order within 30 days, so that order became final. As part of Congress's regime for adjustment to and recission of LPR status, the Attorney General was then required to memorialize that final order by recording Qatanani's admission with LPR status as of the date of the IJ's April 2020 order. And Congress specified how the Attorney General could rescind that LPR status if warranted: Within five years of the adjustment date, the Attorney General could commence proceedings pursuant to § 1256(a).

But here, the Attorney General evaded that statutory path. Instead, the BIA invoked an agency regulation to "self-certify" an appeal of the IJ's April 2020 order eleven months after that order issued. And at the conclusion of those self-certified appeal proceedings, the BIA issued an order purporting to reverse the IJ's April 2020 order and to order Qatanani removed from the United States. Qatanani petitioned us for review of the BIA's decision.

The BIA exceeded its authority when it attempted to undo Qatanani's adjustment to LPR status by using an agency regulation in a manner inconsistent with the procedures set out by Congress in the INA. Accordingly, we granted Qatanani's petition for review and vacated the BIA's order….

Qatanani is Palestinian and a citizen of Jordan. He was born in the West Bank and lived there until he finished high school. In 1982, he began studying at the University of Jordan, where he earned his bachelor's and master's degrees and a Ph.D. In 1989, he began working as an Imam in Jordan.

In 1993, Qatanani traveled to the West Bank with his wife and children to renew his residency card. While there, he was detained, beaten, and interrogated by the Israeli military. Upon his release, Israeli authorities renewed Qatanani's residency card.

In 1996, Qatanani was admitted to the United States, along with his wife and then four children, on a non-immigrant H1-B visa to serve as an Imam at the Islamic Center of Passaic County ("Islamic Center") in Paterson, New Jersey. In 1998, the Immigration and Naturalization Service determined that Qatanani was eligible to receive an immigrant visa. On April 1, 1999, when his H1-B visa was set to expire, Qatanani applied to adjust his status to LPR. On his application form ("I-485 application"), Qatanani checked a box stating that he had not been arrested or imprisoned for violating a law or ordinance within or outside the United States.

In 2005, while his I-485 application was still pending, Qatanani requested a meeting with the Federal Bureau of Investigation ("FBI") and Immigration and Customs Enforcement ("ICE") to inquire about the reason for the delay. In February 2005, an FBI agent and an ICE agent conducted a voluntary interview in which Qatanani disclosed that the Israeli military detained him in the West Bank in 1993. The agents informed United States Citizenship and Immigration Services ("USCIS") that Qatanani had been arrested and possibly convicted in the West Bank, and officials reached out to Israeli authorities to obtain records.

In May 2006, USCIS interviewed Qatanani regarding his I-485 application. The USCIS officer presented a declaration executed in January 2006 by the FBI agent who conducted the February 2005 interview. Qatanani and his counsel, who were seeing the declaration for the first time, objected that its contents were inaccurate and that they needed more time to review the document. The interview was terminated soon thereafter, and there was no subsequent USCIS interview.

In July 2006, USCIS denied Qatanani's I-485 application. It stated that Qatanani was inadmissible because he made a material misrepresentation in his application. Relying on the FBI agent's declaration, USCIS found that, in the February 2005 interview, Qatanani admitted that he was arrested, pleaded guilty to a crime, and was imprisoned for three months by Israeli authorities in the West Bank in 1993. Accordingly, USCIS found that Qatanani made a material misrepresentation when he stated on an immigration form that he had never been arrested, charged, or imprisoned for violating any law or ordinance. USCIS also denied Qatanani's application in the exercise of discretion.

That same day, ICE placed Qatanani in removal proceedings. Qatanani appeared before the Newark Immigration Court and conceded his removability. As relief from removal, he renewed his request for adjustment of status before the Immigration Court.

After receiving voluminous documents in evidence and holding a hearing over four days, the IJ granted Qatanani's application for adjustment of status. In a lengthy opinion issued in 2008, the IJ found that Qatanani was admissible and that he merited adjustment of status as a matter of discretion.

The IJ rejected the two grounds upon which DHS claimed that Qatanani was inadmissible. The first ground was alleged engagement in terrorist activity. Specifically, DHS claimed that Qatanani provided material support to Hamas. DHS based this claim in large part on documents it obtained from the Israeli military. Those documents state that, in 1993, a military court convicted Qatanani of two charges: (1) membership in an unlawful association (specifically, Hamas) and (2) performing a service for an unlawful association.

The IJ conducted a detailed discussion of the evidence. Among other concerns, the IJ stated that the documents from the Israeli military were premised on a written confession that was absent from the record. The IJ found that the military court was internationally stigmatized for failing to meet fair-trial standards, and even the Israeli Supreme Court had condemned it for abusive treatment to coerce confessions from detainees during the time of Qatanani's detention. The IJ also found it "perplex[ing]" and "remarkable" that the Israeli military would convict Qatanani (who refused to cooperate or become a spy for Israel) of being a member of Hamas and then release him after three months and renew his West Bank residency permit. Because the military court documents were "highly questionable, fail to clarify the identity of the respondent[,] and border on being, flatly stated, unreliable," the IJ gave the documents "very low evidentiary weight." He found they did not prove Qatanani engaged in terrorist activity.

In addition to the military court documents, two DHS witnesses—the FBI agent and the ICE agent who interviewed Qatanani in 2005—testified that Qatanani admitted during the interview that he was arrested for being a member of Hamas. In Qatanani's own testimony, he maintained that he had not done so. The IJ found Qatanani credible. But the IJ recounted numerous examples of the FBI agent's evasive, unresponsive, implausible, and contradictory answers that caused the IJ to disregard the FBI agent's testimony as unreliable. The IJ also explained that the ICE agent contradicted herself in her testimony, which was further undermined by DHS's failure to present the documents the ICE agent reviewed to prepare for her testimony. As a result, the IJ did not credit either agent, leaving Qatanani as the "only one of the three that has been consistent" about whether he was detained in 1993 or whether he was arrested and convicted.

The other grounds DHS raised to support its allegation that Qatanani engaged in terrorist activity were Qatanani's possible associations with members of Hamas and his one-time transfer of money to the West Bank. But, upon review of the evidence, the IJ found none of Qatanani's associations were improper, and DHS presented no evidence that the money Qatanani transferred to the West Bank came from an illegal source or was used for an illegal purpose. So the IJ found that Qatanani was not inadmissible for having engaged in terrorist activity….

[More details available in the opinion. -EV] …

And a short excerpt from Judge Paul Matey's long dissent:

For more than a quarter century, five Presidents and ten Attorneys General have objected to Mohammad Qatanani's presence in our Nation. After his three-year allowance ended in 1999, these Executives and their representatives determined, over and again, that Qatanani must leave. Yet today, this Court makes him a lawful permanent resident because we have lost the "respect for the functions of the other branches," which was grounded in "a judicial attitude founded in law and hallowed by time" that "sees judicial review of agency action and executive action as sensitive business" deserving deference. Our decision today forgets that humility and adds another impediment to the Executive's ability to carry out his duty to take care of immigration matters, a power that is both derived from congressional will and inherent in any sovereign.

Nearly thirty years ago, the same year Qatanani arrived for his "temporary" visit to the United States, Congress, in an action praised by then-President Clinton as a "landmark immigration reform" that "strengthens the rule of law by cracking down on illegal immigration at the border,"1 acted to "'protec[t] the Executive's discretion' from undue interference by the courts." I would respect that political judgment, mindful that "[n]o one, so far as my search of the several constitutional records uncovered, look[s] to the Court for 'leadership' in resolving problems that Congress, the President … failed to solve." So with due regard for the political branches' control over immigration, I would dismiss Qatanani's petition….

{As the majority notes, Qatanani was detained and questioned by Israeli forces upon crossing into the West Bank from Jordan in 1993. From 1985 to 1991, Qatanani was an active member in the Muslim Brotherhood, which led to Israeli suspicion that Qatanani was a "member of the Islamic Resistance Movement; also known as HAMAS" because "HAMAS had been formed from the Muslim Brotherhood" in 1987. The same year Qatanani was detained by Israeli forces, Qatanani met with his now deceased brother-in-law, Sumaia Abu Hanoud, whom Qatanani himself described as the "military leader of HAMAS." Despite Qatanani's acknowledgment of Hanoud's leadership in Hamas, Qatanani's wife and her brothers have "denied the relationship between Mr. Hanoud and HAMAS when questioned by the U.S. authorities."}

[Here too, more details available in the opinion. -EV] …

For more on Judge Matey's First Amendment analysis (which goes beyond the statutory and procedural questions that the panel majority focused on), see this post.

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[Ilya Somin] Defending the Court of International Trade Ruling Against Trump's Tariffs—A Reply to Estreicher and Babbitt [Updated]

[Estreicher and Babbitt are right to conclude that Trump's tariffs violate the nondelegation doctrine, but wrong to reject other arguments against them.]

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In a recent Just Security article, NYU law Prof. Samuel Estreicher and attorney Andrew Babbitt criticize the May 28 Court of International Trade ruling against Trump's IEEPA tariffs, in VOS Selections, Inc. v. Trump, a case brought by the Liberty Justice Center and myself, on behalf of five small businesses harmed by the tariffs. The case is now on appeal before the US Court of Appeals for the Federal Circuit.

Estreicher and Babbitt (EB) actually agree with us and the court that the tariffs are illegal!  They just don't like much of the CIT's reasoning, and would prefer a ruling based on nondelegation doctrine. In this respect, they are similar to some previous critics of the ruling who support the result, but object to the reasoning, most notably John Yoo. He takes the exact opposite position: that CIT should have relied on the statutory text, rather than nondelegation and major questions doctrine (see my response to Yoo here).

EB overlook the fact that the CIT ruling did in fact rely, in part, in parton nondelegation. In addition, the other grounds for the court's decision are much stronger than they realize.

EB agree with us that Trump's interpretation of IEEPA grants the president virtually unlimited power to impose tariffs, and also agree that such boundless delegation violates constitutional constraints on delegation of legislative power to the executive. They chide the CIT for supposedly avoiding this constitutional issue. But CIT did not avoid it! The court's decision specifically states that "any interpretation of IEEPA that delegates unlimited tariff authority is unconstitutional." It clearly relied on this point as an additional reason to rule against the administration.

The CIT also relied on the closely related major questions doctrine (MQD), which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." EB complain that MQD may not apply here, because it is not clear that it applies to presidential actions, as opposed to those of administrative agencies. But there is no good reason to exempt the president from MQD scrutiny, and three federal circuit courts have ruled that way. This point is further reinforced by the Supreme Court's increasing embrace of "unitary executive" theory, under which the president is entitled to near-total control over executive branch subordinates, thus making distinctions between them illusory. For more on this point, see our appellate brief in the  case (pp. 51-53).

EB also note that MQD applies with greater force when an assertion of executive power is unprecedented. But, as they acknowledge, no previous president has ever used IEEPA to impose tariffs at all, much less on a scale large enough to start the biggest trade war since the Great Depression. It is true, as they emphasize, that President Nixon used IEEPA's predecessor statute, the Trading with the Enemy Act (TWEA), to enact more limited tariffs, and this was upheld by the predecessor court to Federal Circuit in United States v. Yoshida International Inc. (1975). But the Yoshida court specifically stated it was not endorsing unlimited tariff authority. It emphasized that the Nixon tariffs were linked to the preexisting tariff schedule set by Congress, and that "[t]he declaration of a national emergency is not a talisman enabling the President to rewrite the tariff schedules." It even noted that to "sanction the exercise of an unlimited [executive] power" to impose tariffs  "would be to strike a blow to our Constitution."

Thus, Yoshida actually refused to interpret TWEA as endorsing the kind of unlimited tariff authority Trump asserts under IEEPA. Moreover, we cannot assume that the even the more limited tariff authority Yoshida allowed continues under IEEPA, merely because the latter statute used wording similar to TWEA. Congress wanted IEEPA to be more limited than TWEA, and specifically emphasized  it could only be used to address an "emergency" that amounts to a "unusual and extraordinary threat…. to the national security, foreign policy, or economy of the United States" (concepts that were supposed to be narrowly defined and not a "normal" state of affairs). Trade deficits - the rationale for the Liberation Day tariffs at issue in our case - are neither an emergency, nor extraordinary, nor unusual, nor a threat (for more on these points see the excellent amicus brief in our case, filed by a cross-ideological group of leading economists).

Finally, it is worth emphasizing that IEEPA doesn't actually authorize tariffs at all. The statute does not even mention the word "tariff" or any synonym such as "duty" or "impost." All it allows is the power to "regulate" certain international economic transactions. Regulation and taxation are historically distinct powers, separately listed in the Constitution. The CIT decision deliberately chose not to address this issue. But in the Learning Resources case, decided a day later, Judge Rudolph Contreras  of the US District Court for the District of Columbia (DDC) did address this question and correctly ruled IEEPA doesn't allow tariffs.

EB argue that Judge Contreras got this issue wrong, but they have no good reason for that claim, other than just relying on the Yoshida precedent (which itself provides little analysis justifying its conflation of taxation and regulation). If "regulate" inherently implies a power to impose taxes or tariffs, that would render the constitutional grant of power to Congress to  "lay and collect… Duties, Imposts and Excises" superfluous, since the Constitution also gives Congress the power to "regulate" international commerce. Moreover, it would mean all of the many statutes that give some federal agency a power to "regulate" an activity also give it the power to impose taxes, which would be a massive expansion of executive branch taxation authority.

In addition, as Judge Contreras points out, this interpretation of IEEPA would render it unconstitutional, because the language of the statute applies to regulation of exports, as well as imports:

IEEPA provides that the President may "regulate . . . importation or exportation." 50 U.S.C. § 1702(a)(1)(B). The Constitution prohibits export taxes. See U.S. Const. art. I, § 9, cl. 5 ("No Tax or Duty shall be laid on Articles exported from any State."). If the term "regulate" were construed to encompass the power to impose tariffs, it would necessarily empower the President to tariff exports, too. The Court cannot interpret a statute as unconstitutional when any other reasonable construction is available. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 563 (2012).

Given these realities, there is every reason to confine Yoshida's reasoning to the narrow range of tariffs it upheld under TWEA, and not apply it to IEEPA at all. Even if Yoshida does apply, it explicitly rejects the kind of sweeping tariff authority claimed by the Trump Administration.

In sum, I completely agree with EB that it would be good if appellate courts struck down Trump's IEEPA tariffs under the nondelegation doctrine. Indeed, I have said as much since my very first piece on the subject, back in February (the post that eventually led to the filing of our case).

But there are also multiple additional reasons to rule against the tariffs, including 1) IEEPA doesn't authorize tariffs at all, 2) trade deficits are not an "emergency" or an "unusual and extraordinary threat" 3) deficit-related tariffs are now governed by the Trade Act of 1974 (a point noted by the CIT), not IEEPA, 4) the major questions doctrine, and 5) constitutional avoidance (relied on by both CIT and Judge Contreras). We cover all these in much more detail in our Federal Circuit brief.

UPDATE: EB also criticize the part of the CIT decision striking down Trump's fentanyl-related IEEPA tariffs imposed on Canada, Mexico, and China, which held that the tariffs in question do not actually "deal with" the fentanyl problem (IEEPA states that the statute can only be used to "deal with" the "unusual and extraordinary threat" it is invoked to address). This part of the decision relates not to our case, but to that brought by twelve state governments (decided in the same ruling).

EB argue the CIT's reasoning on "deals with" would inhibit all other efforts to use  IEEPA sanctions as leverage, such as their use against Russia's invasion of Ukraine. Not so. There is an obvious difference between the Russia sanctions and Trump's fentanyl tariffs. The Russian government is obviously responsible for its attack on Ukraine and pressuring Russia to stop its own wrongdoing is an obvious way of "dealing with" the threat it poses. In addition, reducing the flow of money to the Russian government reduces the resources available to it, and makes it harder for Vladimir Putin to continue his war. . By contrast, the flow of fentanyl from Canada to the US is negligible and pretty obviously not caused by the Canadian government; that from Mexico is overwhelmingly by US citizens returning home, and also not caused by the Mexican government. Thus, the fentanyl tariffs are not meaningfully dealing with the problem that supposedly justifies them, even assuming that cross-border drug smuggling qualifies as an "unusual and extraordinary threat" (which it doesn't, as such smuggling is a longstanding and virtually inevitable consequence of  the War on Drugs, which predictably creates large black markets).

The post Defending the Court of International Trade Ruling Against Trump's Tariffs—A Reply to Estreicher and Babbitt [Updated] appeared first on Reason.com.

[Eugene Volokh] May Aliens Be Denied Lawful Permanent Resident Status Based on Their Speech?

Third Circuit Judge Paul Matey argues yes, dissenting in Qatanani v. Attorney General. (The two judges in the panel majority seem to disagree, stating that "the [Board of Immigration Appeals] penalized Qatanani for quintessential First Amendment activity," but declines to discuss the matter in detail because it concludes Qatanani should prevail on statutory and procedural grounds.) Here's an excerpt:

Qatanani entered the United States in 1996 on a H-1B nonimmigrant visa with authorization to serve as an imam at The Islamic Center of Passaic Country (ICPC) until April 1, 1999. Rather than leave, he applied to adjust his status to lawful permanent residence (LPR). After almost two decades of administrative proceedings, an Immigration Judge (IJ) found Qatanani eligible for a status adjustment and deserving one as a matter of discretion. But the Board of Immigration Appeals (BIA) disagreed [in April 2024], noting Qatanani's lack of candor, admitted association with Hamas supporters, public call for a "new intifada," and failure to demonstrate yearly tax filings. As I explain below, I would not disturb the BIA's decision…. [Statutory and procedural details omitted. -EV]

Finally, I explain why the BIA's review of Qatanani's Times Square speech and admitted associations with Hamas supporters does not violate the First Amendment. Of course, an alien's speech can offer important insight into his character that informs the Executive's determination about whether the alien's presence will add to the common good. None disagree with that observation, nor does the First Amendment because Qatanani is not part of "the people" the First Amendment protects, nor is the denial of LPR status a punitive action….

[A]n alien "does not become one of the people to whom" the First Amendment applies "by an attempt to enter, forbidden by law." U.S. ex rel. Turner v. Williams (1904). That is because "[t]o appeal to the Constitution is to concede that this is a land governed by that supreme law, and as under it the power to exclude has been determined to exist, those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise." So there is no debate that excluded aliens cannot invoke the First Amendment.

Whether the First Amendment restrains government action against all aliens within our Nation's borders is less explored. Begin with Bridges v. California (1941), involving state contempt charges against a group including a resident alien lawfully within the country for at least two decades. With little analysis, the Court concluded the contempt charge was impermissible under the First Amendment. But the Court did not mention, let alone analyze, Bridges's alien status.

A few years later, the Court considered whether Bridges, still a lawful resident alien, was removable under 8 U.S.C. § 137(f) for affiliation with the Communist Party. Bridges v. Wixon (1945). The majority saw insufficient evidence of his alleged membership but, in dicta, wrote that "[f]reedom of speech and press is accorded aliens residing in this country," citing only the earlier decision in Bridges v. California. Concurring, Justice Murphy wrote that the statute was unconstitutional and that all aliens lawfully within our borders receive "the immutable freedoms guaranteed by the Bill of Rights," including freedom of speech. But Chief Justice Stone and Justices Roberts and Frankfurter found no fault with the statute based on Congress's "plenary power over the deportation of aliens." So Wixon does not resolve whether the First Amendment applies to all resident aliens, much less unauthorized aliens. At most, its dicta suggests that lawful resident aliens, what we today could call LPRs, can potentially invoke the First Amendment in some criminal prosecutions.

{Little has been clarified since Wixon. The Court has continued to acknowledge lawful resident aliens receive First Amendment protections, but it has never held the First Amendment restrains government action against aliens with less protective status. See, e.g., United States v. Verdugo-Urquidez (1990). Some decisions correctly understand Wixon to address no more than LPRs. See, e.g., OPAWL - Bldg. AAPI Feminist Leadership v. Yost (6th Cir. 2024); Nat'l Council of Resistance of Iran v. Dep't of State (D.C. Cir. 2001). But others read Wixon with less nuance and assume any alien within the country holds First Amendment guarantees, regardless of whether the alien is an LPR, only has temporary authorization to be in the country, or is here illegally. See, e.g., Kim Ho Ma v. Ashcroft (9th Cir. 2001); Underwager v. Channel 9 Austl (9th Cir. 1995); Am.-Arab Anti-Discrimination Comm. v. Reno (9th Cir. 1995).}

Our Nation's longstanding practice also yields few insights, as there is no unbroken chain of understanding or "regular course of practice" that might "liquidate & settle the meaning" of the First Amendment's applicability to aliens. Nor is there any evidence of "a governmental practice [that] has been open, widespread, and unchallenged since the early days of the Republic," that might "guide our interpretation." All to say, there is no long standing post-enactment practice—custom, we might properly call it—recognizing all aliens within our borders possess First Amendment rights….

But lack of precedent and practice does not mean an absence of answer derived from "the natural principles that support our legal tradition," which are the "certain 'primary truths, or first principles, upon which all subsequent reasoning must depend.'"

We know that many aliens within our borders do not enjoy constitutional protections against state action. Much like the Preamble and the Second, Fourth, Ninth, and Tenth Amendments, the First Amendment uses the term "the people," referring "to a class of persons who are part of a national community or who have otherwise developed sufficient connections with this country to be considered part of that community." Only as an alien "increases his identity with our society" do the "generous and ascending scale of rights" spring into action, some of which include the "constitutional provisions [that] extend beyond the citizenry." But neither "lawful but involuntary" entry, nor mere physical entry without "significant voluntary connection[s]," suffice for an alien to become part of "the people."

This distinction makes sense, as it has long been accepted that a sovereign's laws, including restrictions and privileges, extend only to "persons and things within its own territory according to its own sovereign will and public policy." This understanding was viewed as "inherent in nature, for it was derived from an underlying assumption about the essential purpose of government, protection, which in turn was derived from ideas about the equal freedom of human beings in the state of nature." Thus, "an individual ha[s] a right to the protection of government and its laws only by virtue of his allegiance."

Eighteenth-century thinkers recognized this principle as following the nature of things, making protectionism "a truism of the common law." "[F]ounded in reason and the nature of government," "[a]llegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject." Blackstone, Commentaries. But an alien falls into an "obvious division," because he owes only a "[l]ocal allegiance" to the Sovereign, a temporary affinity "for so long time as he continues within the king's dominion and protection … and it ceases the instant such stranger transfers himself from this kingdom to another." …

The Founders followed this understanding of the reciprocal relationship between allegiance and protection. Though they sometimes split over whether the principle of protection entitled aliens to the benefit of all constitutional rights, as contested during the debates over the Alien and Sedition Acts, all acknowledged that some relationship between the Sovereign and the alien was essential. Leading the Democratic-Republicans, James Madison contended "[a]liens are not more parties to the laws than they are parties to the Constitution; yet it will not be disputed that, as they owe, on the one hand, a temporary obedience, they are entitled, in return, to their protection and advantage." And even the Federalists—who reasoned that because aliens were not part of the people for whom the Constitution was created and thus have no rights thereunder—still recognized the protection principle. Thus, despite disagreement about what laws aliens were entitled to the protection of, the principle of protection was universally accepted. And early American law adhered to this understanding.

This history, and the tradition it follows, reveals three insights. First, the protection principle confers only a temporary license to aliens—a discretionary privilege to be within the land—so it cannot guarantee a right to indefinitely remain. That is because "[n]atural allegiance is therefore perpetual, and local temporary only."

Second, the relationship between the alien and the Sovereign can be terminated by "the express will of the sovereign power to order him away." Although "a vested right is to be taken from no individual without a solemn trial, … the right of remaining in our country is vested in no alien; he enters and remains by the courtesy of the sovereign power, and that courtesy may at pleasure be withdrawn." So "even as to alien friends, one who is ordered away or is present without permission would be outside the public protection."

Third, a temporary license does not confer aliens access to all rights enjoyed by citizens. "[T]he sovereign is supposed to allow [an alien] access only upon this tacit condition, that he be subject to the laws" limited to "the general laws made to maintain good order, and which have no relation to the title of citizen or of subject of the state." So "submitting to the laws of any country, living quietly, and enjoying privileges and protection under them, makes not a man a member of that society." Which explains why aliens had "circumscribed" rights such as a prohibition on political engagement and property ownership. The same thinking animated the Federalists' position that aliens cannot claim the Constitution's protection because, although the protection principle applies, the alien is not party to the Constitution.

All told, the protection principle establishes that the Sovereign does not owe all aliens within its borders the same obligation it does its citizens. Thus, Congress may make rules for aliens that would be unacceptable if applied to citizens.

{Arguments to the contrary violate not only precedent but the political branches' plenary power over immigration. The Court has upheld removals based on determinations that an alien's speech or association demonstrated undesirability sufficient to terminate the privilege of presence. See Harisiades v. Shaugnessy (1952) (rejecting the argument that the First Amendment barred removal of three based on their associations with the Communist Party); Kleindienst v. Mandel (1972) (upholding an alien's exclusion based on his speech the Sovereign deemed undesirable, regardless of citizens' First Amendment rights to hear that alien's speech); Reno v. Arab-Am. Anti-Disc. Comm. (1999) ("When an alien's continuing presence in this country is in violation of the immigration laws, the Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity."). And proper respect for the political branches' plenary power over immigration has repeatedly moved the courts against second guessing their judgment. See, e.g., Reno (declining to enjoin deportation proceedings based on the aliens' claim that they were selectively targeted for deportation because of their affiliations); Galvan v. Press (1954) (upholding constitutionality of deporting an alien based on his associations with the Communist Party despite First Amendment concerns); Kleindienst (courts may neither "look behind" the "facially legitimate and bona fide" denial of immigration waiver, nor weigh it against asserted "First Amendment interests"); United States v. Aguilar (9th Cir. 1989) (rejecting an alien's claims under the First Amendment in light of "the government's overriding interest in policing its borders").

Under the best understanding of the First Amendment, Qatanani is not part of "the people" whom the First Amendment restricts government action against, and he cannot claim its protection. At the time of the BIA's decision, Qatanani was not subject to the protection principle. He entered the country with permission via a non-immigrant H1-B visa to work for a limited time. During those three years, Qatanani was within the country with the express permission of the Sovereign and owed temporary allegiance in exchange for a temporary license. But once the visa expired, so did the protection principle. If not then, surely when USCIS denied his initial status adjustment application or when DHS initiated removal proceedings against him. No matter what date, the Executive had removed authorization for Qatanani to remain many years before he publicly called for a new intifada….

Even if Qatanani were afforded First Amendment protection as an unauthorized alien (or even an LPR), denial (or recission) of an immigration privilege, to which he has no right or entitlement, is not a punitive or adverse action that could trigger First Amendment restrictions on government action. Through the Constitution, "[t]he people of the United States … limit[ed] the power of their government over themselves; but la[id] no restraint on the power of their government over aliens." So until an alien "become[s] [a] citizen[ ], they are in the power of the ordinary legislature," which "may receive them, and admit them to become citizens; or may reject them, or remove them, before they become citizens." Thus, when aliens "come here, they know, that they come at the discretion of the ordinary legislature … and have no reason to complain, if this legislature remove them, before they become citizens." Put simply, an alien within our Nation as a matter of administrative grace has no right to remain.

That is why "[d]eportation is not a criminal proceeding and has never been held to be punishment." Rather, "[a] deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering or remaining unlawfully in this country is itself a crime." So "[w]hile the consequences of deportation may assuredly be grave, they are imposed not as a punishment" but "to bring to an end an ongoing violation of United States law."

The same is true for Executive determinations denying status adjustments because the legislature has not created a statutory entitlement to an adjustment of status under section 1255. To the contrary, Congress explicitly stated that the privilege of a status adjustment is purely discretionary and should be determined by the Executive. Immigration benefits differ from other benefits the Executive offers. True, neither Congress nor the Executive may condition the receipt of a government benefit in a manner that infringes constitutional rights. This principle has been applied to benefits such as "tax exemptions," "unemployment benefits," "welfare payments," and "denials of public employment." But legal status to enter or remain in our Nation is not an administrative benefit held out to all aliens who meet a strict set of qualifications. No. It is the highest privilege the political branches may grant to those individuals deemed, in their discretion, deserving of the opportunity to work towards the common good of our republic.

By design then, immigration determinations, without more, cannot serve as adverse actions against an alien, making appeals to First Amendment limitations inapposite.

UPDATE: My apologies; due to an editing error on my part, I originally wrote that Judge Matey answered the question "no," though of course as to the question that ended up being the title of the post, he answered the question "yes." I've corrected this; very sorry for the error.

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[Jonathan H. Adler] Richard Fallon R.I.P.

[The passing of a legal giant.]

Harvard law professor Richard Fallon passed away Sunday. He was an incredibly important and influential scholar and thinker. He was 73.

The Harvard Crimson reports:

A leading scholar in constitutional law, Fallon was widely regarded for his insightful, prolific academic output and his commitment to thoughtful debate.

He has written extensively about the Supreme Court and constitutional interpretation, tackling how the more than 200-year-old document applies to the country today. In 2021, he was nominated to the Presidential Commission on the Supreme Court of the United States, a committee established by then-President Joe Biden to investigate legal questions and possible reforms to the Supreme Court.

"HLS can be grateful for the more than forty years in which Professor Fallon wrote, taught, mentored, counseled, and led with extraordinary distinction," Goldberg wrote in the Monday announcement of Fallon's death. "His passing leaves a hole in our community that cannot be filled."

Fallon was also remembered by former students and colleagues for his humor and his down-to-earth nature — qualities many said could be uncommon in the rarefied halls of Harvard Law School.

Cass R. Sunstein, a professor at HLS, wrote in a statement to The Crimson that Fallon combined his intellectual "brilliance" with "humility in a way I have never seen in all my years."

Larry Solum has this remembrance on the Legal Theory Blog.

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[Jonathan H. Adler] Fourth Circuit Rejects Claim that West Virginia Abortion Law Is Preempted

[A mifepristone manufacturer is unsuccessful in evading West Virginia's prohibition on abortion, even when performed by medication.]

After the Supreme Court's Dobbs decision, West Virginia adopted a law, the Unborn Child Protection Act, that prohibits abortion in most circumstances. As enacted, the prohibition extends to medication abortions, such as those which may be performed with mifepristone.

GenBioPro, a manufacturer of generic mifepristone, challenged the West Virginia law, arguing that the prohibition is preempted by federal law, and the FDA's regulations governing the prescription and administration of mifepristone in particular, insofar as it prevents doctors from prescribing mifepristone for the purposes of terminating a pregnancy.

A federal district court rejected GenBioPro's claim. Today, in GenBioPro v. Raynes, a divided panel of the U.S. Court of Appeals for the Fourth Circuit affirmed. Judge Wilkinson wrote for the court, joined by Judge Alston (sitting by designation). Judge Benjamin dissented.

Judge Wilkinson's opinion for the court begins:

After the Supreme Court "return[ed] the issue of abortion to the people's elected representatives" in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215, 232 (2022), West Virginia enacted a law prohibiting abortion in most circumstances. The question before us is whether certain federal standards regulating the distribution of the abortion drug mifepristone preempt the West Virginia law as it applies to medication abortions. The district court determined there was no preemption, and we now do the same.

For us to once again federalize the issue of abortion without a clear directive from Congress, right on the heels of Dobbs, would leave us one small step short of defiance. Appellant GenBioPro finds this clear directive in a maze of provisions in the Food and Drug Administration Amendments Act of 2007. It argues that these provisions vested the FDA with the exclusive authority to regulate access to mifepristone. We disagree. In our view, the Act leaves the states free to adopt or diverge from West Virginia's path. Because the Act falls well short of expressing a clear intention to displace the states' historic and sovereign right to protect the health and safety of their citizens, we affirm.

The body of the opinion briiefly addresses standing (an easy question here), and then applies the existing law of preemption (such as it is) in a rather straight-forward manner (albeit in a typical Wilkinsonian way), implicitly acknowledging that the current Supreme Court does not appear particularly sympathetic to preemption claims. (One of several ways in which the current Court is less "pro-business" than is commonly assumed.)

Given the general presumption against finding preemption of traditional state authority, absent a clear congressional directive, the argument that federal pharmaceutical regulations preempt state abortion laws is hard to make. As in many contexts, the federal regulations provide a "floor" of regulation that states may exceed, as West Virginia has here, placing far greater limitations on the use of mifepristone (a de facto prohibition for its use in abortion) than does the federal government.

Judge Wilkinson's opinion concludes:

Just after the Supreme Court restored the states' traditional authority to regulate abortion, GenBioPro would have us wrest it right back from them. Appellant attempts to assemble a preemption theory out of statutory scraps and fragments that do nothing to hide the fact that the theory is but a fig leaf for an assault on the Dobbs decision. We are asked to infer sweeping field preemption over a broad swath of high-risk drugs in the face of a saving clause indicating that Congress chose nothing of the sort. We are further asked to prevent the states from protecting the health and safety of their citizens whenever their laws touch upon high-risk drugs in any way. Not only that, but we are asked to do all this under what are at best the fuzziest set of federal instructions when the Supreme Court has insisted upon congressional clarity. If Congress wishes to preempt laws like West Virginia's, why hasn't it come right out and said so? For us to sally forth and strike down this statute in the face of all these obstacles invites certain reversal. "Into the valley of Death Rode the six hundred." Alfred Lord Tennyson, The Charge of the Light Brigade (1854).

Our decision, by contrast, is a narrow one. We take no position on the wisdom or folly of West Virginia's abortion law. As Dobbs makes clear, that judgment belongs with the people and their elected representatives. One can of course agree or disagree with the Dobbs decision. But that is not the point. At a time when the rule of law is under blunt assault, disregarding the Supreme Court is not an option. We do not suggest that the FDAAA lacks any preemptive effect. States are certainly not free to dilute federal safety standards where they have been clearly established. Nor do we deny that Congress may preempt state abortion laws if it chooses to do so and acts pursuant to its enumerated powers. We simply hold that it must express that intention with the clarity befitting such a significant alteration to our system of dual sovereignty. Because the FDAAA does not do so, we decline to overturn the West Virginia law.

Judge Benjamin dissented. Her dissent begins:

In a troubling opinion, the majority finds that a West Virginia law, which is a near outright ban on access to mifepristone, is not preempted by federal regulations. Put plainly, this law erects barriers to life-saving healthcare for countless West Virginians in ways not envisioned by Congress. Despite the law's overbreadth and potentially fatal consequences—to say nothing of its dangerous spillover effects on healthcare systems serving vulnerable communities in neighboring states—the majority would allow West Virginia's Unborn Child Protection Act ("UCPA") to stand.

But the twin sensitivities of abortion access and states' rights cannot influence our willingness to recognize the Food and Drug Administration's (FDA) clear authority in this area. And they cannot justify inaction as West Virginia enacts legislation which upsets "the constitutional balance between the National Government and the States." See Maj. Op. at 14 (quoting Bond v. United States, 572 U.S. 844, 857 (2014)). So, while I concur in the majority's finding that GenBioPro has standing to sue, because the UCPA is preempted by federal law, I must respectfully dissent.

In the majority's view, neither field preemption nor conflict preemption thwarts West Virginia's passage of the UCPA. I address and reject each point in turn.

According to Judge Benjamin, insofar as the Food and Drug Amendments Act creates a "comprehensive framework" for a regulatory regime that mitigates risk while ensuring access, it should be understood to preempt state laws governing relevant drugs. I understand the appeal of this point, but it is hard to argue that Congress, in giving the FDA a way to approve and make available potentially dangerous drugs subject to regulations designed to protect patients, Congress gave the agency authority to preempt laws seeking to prohibit abortion -- laws that, in effect, are focused on a different set of risks or concerns than those with the FDa's purview.

I suspect GenBioPro will seek en banc review before seeking certiorari, in no small part because the makeup of the Fourth Circuit is far more favorable to its position (and concerns about the availability of abortion) than the Supreme Court is likely to be. But even should GenBioPro succeed with en banc review, I cannot imagine the current Supreme Court disagreeing with Judge Wilkinson's bottom line.

 

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[Natalie Alkiviadou] Hate Speech and the European Court of Human Rights: Hate Speech, Its Effects and the Question of Regulation

In this post I look at my book's key findings on the effects of hate speech and the controversies surrounding its regulation. This analysis lays out the groundwork for understanding both the harms attributed to hate speech and the dangers of over-regulating it in democratic societies. The central question is twofold: Does hate speech cause real-life harm? And if so, should that harm be addressed through legal restrictions on speech? The ECtHR systematically answers "yes," often without the depth of inquiry such a consequential response demands.

Hate speech and harm

One of the key contributions the book's chapter on hate speech, its effects and the questions of regulation is to unpack the multi-level impact of hate speech on individuals (micro), groups (meso), and society (macro). Drawing on work by scholars such as Mari Matsuda, Jeremy Waldron, Alexander Tsesis, and others, I trace how hate speech is said to erode dignity, reinforce systemic inequalities, and, in some contexts, incite violence.

As Matsuda has written, hate speech operates as "a mechanism of subordination reinforcing a historical vertical relationship," and its effects are "real and immediate" for those it targets. Tsesis, likewise, sees hate speech not merely as a personal insult, but as a vehicle for entrenching societal divisions and even fomenting mass violence. He links it to atrocities like the Rwandan genocide, where hate-filled broadcasts on RTLM radio incited mass murder. Quantitative work by Yanagizawa-Drott found that areas with more radio had noticeably higher rates of violence. A more recent example comes from Myanmar. A UN Fact-Finding Mission concluded that Facebook's failure to stem the spread of anti-Rohingya propaganda played a critical role in the 2017 ethnic cleansing campaign. The digital megaphone did not just amplify hate, it normalized it. Yet, despite these sobering examples, the causal chain between speech and harm is rarely straightforward. As Ronald Dworkin reminds us, claims about hate speech's harms are often "inflated and some are absurd." Empirical research remains fragmented and inconclusive. Heinze, for example, has noted that "despite decades of pro-ban law and policy … no empirical evidence has, in any statistically standard way, traced hatred expressed within general public discourse to specifically harmful effects."

Should the law step in?

The regulatory dilemma is as old as liberal democracy itself. Some scholars, Waldron, Matsuda, Tsesis, content that the dignitary and social harms of hate speech justify legal restriction. Waldron argues that hate speech undermines "the social sense of assurance on which members of vulnerable minorities rely," and should therefore be prohibited. For Tsesis, regulation serves as a bulwark against the normalization of dangerous inequality. Joel Feinberg holds that, the law should only intervene in cases of "profound offence" that are unavoidable, menacing, and morally reprehensible. Most hate speech, even if cruel or tasteless, does not meet that bar. To regulate it would, ironically, risk violating the very freedoms liberal democracies are meant to uphold. Nadine Strossen warns that hate speech laws are more likely to suppress the voices of the very people they are meant to protect. Eric Heinze contends that speech regulation undermines "the legitimising expressive conditions of democracy." Jonathan Rauch frames the issue powerfully: "bigoted ideas and hateful speech play an essential part in advancing minority rights. Even if we have every right to boycott Ender's Game, gays are better served by answering people like Card than by trying to squelch or punish them." This line of thinking views counterspeech, not prohibition, as the optimal response to hate. It also raises a practical concern: regulation can backfire. Banning speech often drives it underground, where it becomes more radicalized and less visible. It may also martyrize the speaker, deepening their cause. Another consequence of unavoidably and inherently selective hate speech regulation is what Eugene Volokh has termed "censorship envy." When certain groups receive legal protection against offensive speech, others inevitably ask: Why not us? This logic, if left unchecked, leads to a proliferation of competing claims to censorship. Instead of promoting equality, selective restrictions may generate resentment and deepen polarization.

The marketplace of ideas and its limits

The "marketplace of ideas" remains a foundational justification for robust free speech protections. From Mill to Justice Holmes, the belief has been that truth emerges from open contestation. But critics of this model, including Critical Race Theorists like Matsuda and Lawrence, argue that the marketplace is not neutral. Racial and economic inequalities distort participation, creating a system where dominant voices drown out the marginalized. This critique deserves attention. Lawrence discusses the silencing impact of hate speech on its target, by noting that it triggers an instinctive, defensive psychological reaction, characterised by fear, rage, shock and a tendency to flee, all of which hinder a reasoned response. He adds that many victims may not find words to articulate their experience 'until well after the assault, when the cowardly assaulter has departed.' While cognizant of the appalling psychosocial harm of hate speech, the book argues that the solution to such speech is not necessarily legal regulation. While I make the disclaimer that such solutions are suitable for violent speech, I argue that the problem of hate speech lies in structural conditions, not the speech itself. Regulating content will not address the root causes of exclusion; it may instead paper over them, while expanding the power of the state to police discourse.

The European Court of Human Rights and the dangers of militant democracy

The European Court of Human Rights (ECtHR) has used Article 17 of the European Convention on Human Rights (ECHR) entitled the "prohibition of abuse of rights" clause to deny protection to hateful or offensive speech. This article provides that "nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention." The ECtHR's invocation of militant democracy, originally theorized by Karl Loewenstein, is intended to safeguard democratic institutions from anti-democratic threats. But in practice, the Court's reasoning has drifted far from those original aims. In Kühnen v Germany (1988), the ECtHR upheld a ban on neo-Nazi speech, explicitly invoking democracy's right to self-defense. But in more recent cases, the ECtHR applies vague standards like "the spirit of the Convention" (Pastörs v Germany 2019) or "Convention values" such as "tolerance, social peace and non-discrimination" (Norwood v UK 2004) without fully explaining how such values are defined or applied. This opacity matters. Article 17's expansion from a narrow anti-totalitarian provision to a broad license to ban speech deemed offensive undermines legal certainty and democratic legitimacy. By applying Article 17, the ECtHR does not conduct the legal test set out by Article 10 of ECHR which provides for the freedom of expression and its restrictions.

A call for caution and context

I do not deny that hate speech can cause genuine harm. From incitement to genocide to lasting psychological trauma, its dangers are real and, in some contexts, deeply destructive. Yet, the cost of regulation must not be underestimated. Legal restrictions on speech can give rise to censorship, repression, selective enforcement, and a growing distrust in democratic institutions. Instead of adopting a one-size-fits-all model, responses to hate speech should be sensitive to context. Key factors must be weighed, including the seriousness of the speech in question, the likelihood that it will incite violence, the broader social and political climate in which it is expressed, and the capacity of those targeted to defend themselves through public discourse. As I argue in the book, "not all hate speech is equal, and, therefore, not all responses, if any, should be equal." For that reason, legal regulation should be reserved for instances where speech presents a clear and demonstrable risk of inciting violence. In other cases, the more appropriate and democratic tools lie in counterspeech, societal condemnation, and, where necessary, structural reforms that address the root inequalities that allow such speech to thrive.

Conclusion

The ECtHR's growing willingness to restrict hate speech through a loose application of militant democracy reflects a worrying trend. Instead of grappling with empirical nuance and normative complexity, the ECtHR often defaults to abstract values and unproven assumptions. This does little to protect vulnerable groups, and much to weaken the foundation of free expression. A democracy that cannot tolerate offensive speech is one that cannot tolerate dissent. And a court that restricts speech in the name of vague values does little to safeguard the rights it claims to protect. The answer to hate speech is not always silence, and certainly not censorship. It is reasoned analysis, institutional courage, and a commitment to the messy, essential project of democratic dialogue.

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[Eugene Volokh] Apparent AI Hallucinations in Briefing From Both Parties

That's a new one on me, from a UK trademark appeal; the plaintiff, who was self-represented, admitted to using generative AI, and the defendant's lawyer was strongly suspected of so doing:

8. At the start of the hearing, I asked Dr Soufian if he had drafted the documents and he said he had drafted it with the assistance of Chat GPT. I pointed out the numerous errors in the citations and problems with the skeleton and he politely apologised and did so unreservedly. Before moving on, it is worth noting that most of the skeleton produced by Chat GPT was made up of arguments purportedly relating to the evidence in the case. However, the factual issues highlighted were largely not relevant to the issues before me and the proposed arguments were not very helpful. In other words, even aside from the fabricated citations, the output of Chat GPT was in fact unhelpful to him.

9. In the case of Mr Caddy, who is a trade mark attorney, his skeleton argument dated 6 June 2025 included three cases which existed and were correctly cited. But it was unclear to me the cases cited stand for the propositions claimed by Mr Caddy.

10. During the Hearing, I asked Mr Caddy to identify the part of the judgments which supported the propositions made. He said, "I cannot actually remember that now, to be honest with you". I gave him time to read the judgments so as to find the relevant paragraphs. He could not do so. He then said he got the references from a "previous edition of Kerly's Law on Trade Marks". I could not find any support for the propositions (or anything similar) in Kerly during the hearing. He then said he could not remember where he got them from, saying maybe it was Wadlow [on the Law of Passing Off] but said he went on to say that did not make much sense. After the hearing, I checked Wadlow and could not find anything matching the propositions.

11. A few hours after the hearing, Mr Caddy sent an email to the Secretariat, he said in the email that he had not been expecting to "make out my own side's case more so than had been done in the skeleton". He then went on to try and show support for the propositions in the three cases cited in the skeleton. In my view, nothing in the email improved Mr Caddy's position and the quotation above clearly makes it worse….

30. I cannot say how Mr Caddy came up with the propositions of law he put forward for the three cases. I emphasise once more that a fabricated citation is not just an entirely made up case, but also includes citing a case for a proposition where there is absolutely no basis in the case for that proposition to be made. As I have already mentioned, even after his clarification I struggle to see how the cases he cites support his propositions more than in the most general and abstract sense.

31. Three things about Mr Caddy's conduct concern me greatly. First, he did not know when asked in the hearing where he obtained the propositions of law he included in a skeleton argument, even though the document was dated less than a week before the hearing. Secondly, he appears to think that he is not expected to be ready to expand on points made in his own skeleton argument at the hearing. Thirdly, he appears to think it is acceptable to use out-of-date textbooks. It is necessary for all lawyers to have access to relevant and up-to-date textbooks and relevant case reports whether online or printed and whether within their own firm or using one of the law libraries available to them, which for those who are London-based (like Mr Caddy) include the Intellectual Property Reading Room at the British Library.

32. In the end, I have decided I will not refer Mr Caddy to IPREG on this occasion. I accept that it is possible that he found these references and simply read them (misunderstood them) in a way I cannot follow or understand. However, even if this is the case he needs to seriously reflect on how he conducts his practice in the future, including how he undertakes legal research, how he drafts skeleton arguments, and he must ensure that when he appears before a tribunal he is properly prepared to do so. Advocates should always be prepared to explain to a court or tribunal what they have included in skeleton or other written arguments.

Check out Damien Charlotin's AI Hallucination Cases database, which is now at 210 cases (more than half from the U.S.), as well as Peter Henderson's AI Law Tracker, now at 223 cases.

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[Jonathan H. Adler] Senate Confirms First Judicial Nominee of Trump's Second Term. How Many More Will Follow?

[Indications are that the second Trump Administration will not have as significant an effect on the Courts as the first.]

Yesterday the Senate confirmed Whitney Hermandorfer to a seat on the U.S. Court of Appeals for the Sixth Circuit. A well-qualified nominee who I expect will make an excellent judge, Hermandorfer is the first judicial nominee to win confirmation in Donald Trump's second term.

As various news outlets have noted, judicial nominations are lagging in Trump's second term. The Administration has been slower to make nominations and the Senate has been slower to act than during the first Trump Administration. On top of that, there are fewer vacancies to fill, as many judges eligible for senior status are electing to remain on the bench (and there is speculation as to why that might be).

As of this morning, there are forty-nine current vacancies on the federal bench, and thirteen more future vacancies (which occur when judges announce their intent to retire or take senior status at a date in the future or upon confirmation of a successor). There are only eleven nominees pending before the Senate, however. (Three more nominees have been announced but have not been formerly submitted.) Of these, only five are on the circuit courts of appeals.

As for what could be, by my count there are forty circuit court judges eligible to take senior status, only two have which have announced their intention to create a vacancy. Of those twenty-six were appointed by Republican Presidents. What these judges decide to do could have a substantial effect on President Trump's ability to shape the judiciary during his second term.

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[Eugene Volokh] Plaintiffs Try to Sue Uber Because Their Father Was Killed by a Passenger Who Used a Lyft Platform

The plaintiffs alleged that Uber knew the passenger had committed two carjackings about a month before, should have warned Lyft about that. (The killer used the same e-mail address for both his Lyft and Uber accounts.) The father drove for both Uber and Lyft, but the killer called him using the Lyft app. No liability, as a matter of law, Judge Stephen Clark (E.D. Mo.) concluded Friday in Newman v. Uber Technologies, Inc., denying plaintiffs leave to amend their complaint on the grounds that such an amendment would be futile:

In Ameer [a previous Missouri case], Rochelle Ameer sued Lyft, a rideshare platform, after a rider "fraudulently and anonymously requested through Lyft's mobile ridesharing application" a ride from Ameer's son and killed him. Ameer asserted, among other claims, a negligence claim based on a wrongful-death theory…. [T]he Missouri Court of Appeals [held the case could go forward].

The complaint in Ameer alleged that two minors, who were "supposed to be ineligible to order rides through the Lyft [a]pp, met and conspired together to use the [a]pp to carjack a Lyft driver." The minors requested a ride through the Lyft app, and Ameer's son accepted the request. After Ameer's son arrived, the minors announced a robbery, pulled guns on Ameer's son, attempted to force him out of the car, and eventually shot and killed him. Ameer alleged that the minors had previously, on multiple occasions, carried out the same carjacking scheme that they carried out on Ameer's son. Ameer also alleged that "Lyft knew or should have known that multiple rideshare drivers had been assaulted, attacked, and carjacked as a result of the same fraudulent scheme."

In addressing the negligence claims, the Missouri Court of Appeals first acknowledged the general rule that "[a] duty to protect against the criminal acts of third parties is generally not recognized because such activities are rarely foreseeable." But the court recognized that, where "a victim is injured at a location other than the defendant's premises," two exceptions to the general rule exist. First, a duty exists where "the defendant 'should realize through special facts within his knowledge…that an act or omission exposes someone to an unreasonable risk of harm through the conduct of another.'" Second, a duty exists where "the defendant 'has brought the victim into contact or association with a person or persons whom he knows or should know to be particularly liable to commit criminal acts, and under circumstances [that] afford a peculiar opportunity or temptation for such misconduct.'"

The Missouri Court of Appeals held that the first exception applied to the facts of Ameer. The court explained that Ameer had alleged that "Lyft failed to utilize readily available and known measures" that would have protected Ameer's son. Those alleged omissions included (1) Lyft's failure to train Ameer's son "to identify particularly dangerous situations or people," (2) Lyft's failure to offer Ameer's son "security measures in his vehicle such as a surveillance camera or a physical barrier between the front and backseats," (3) Lyft's failure "to implement basic anti-fraud and identity-verification measures in its [a]pp that Lyft had implemented in other states." Assuming the truth of Ameer's allegations, the court reasoned that her petition established that "Lyft should have realized through special facts within its knowledge that its omissions exposed" Ameer's son "to an unreasonable risk of harm through the conduct of third parties, like [the] perpetrators, who were able to use the Lyft [a]pp to fraudulently and anonymously request a ride." Thus, the court held that the first exception applied.

Relying on the same allegations, the court held that the second exception applied, too. That's because the petition alleged that the Lyft app "brought" Ameer's son "into contact with his perpetrators." And the petition alleged that "Lyft knew or should have known" that the minors were "particularly liable to commit criminal acts" while Lyft could have employed "measures that would have arguably protected" Ameer's son "from harm."

The Court acknowledges that some factual similarities exist between the allegations in Ameer's complaint and the allegations in Plaintiffs' proposed amended complaint. First, like in Ameer, where Ameer alleged that the minors had carried out a similar carjacking scheme "multiple times" before Ameer's son's murder, Plaintiffs here allege that Wilson "committed at least two carjackings" of rideshare drivers before he murdered Newman. And second, Ameer alleged that the minors used Lyft's app "to fraudulently and anonymously request a ride by utilizing a false name, a false email address, and an anonymous form of payment," while Plaintiffs here allege that, when Wilson committed his carjackings, he too used an alias.

But at the end of the day, the distinctions between Ameer and this case carry far more weight on the issue of whether a federal court sitting in diversity should create a heretofore nonexistent duty to the contractors or employees of a competitor. Most notably, in Ameer, the fatal ride took place on the defendant's platform. But here, Newman's murder took place not on Uber's platform, but on Lyft's. That makes the second exception that Ameer applied inapplicable here, because Uber didn't bring Newman "into contact with" Wilson.

The difference-in-platform distinction makes a meaningful difference as to the first exception, too, because the Ameer duty would lack a limiting principle if that duty applied to this case, and the policy implications of extending liability to the contractors of a competitor are on a different plane than imposing liability on one's own contractor or employee. The proposed scope of the duties between the two cases illustrates this. In Ameer, Ameer tried to hold Lyft liable based on Lyft's (1) failure to train Ameer's son "to identify particularly dangerous situations or people," (2) failure to offer Ameer's son "security measures in his vehicle," and (3) failure to require its passengers using "an anonymous form of payment" to provide identification before requesting a ride. That is, Ameer sought to hold Lyft responsible for its failures to police its own rideshare platform. Surely, that duty contains a limiting principle to ensure that the duty doesn't swallow the general no-duty-to-protect-against-third-party-criminal-acts rule: your duty ends where your platform ends, or so it would seem. In any event, it will be up to the Missouri courts to determine whether to extend Ameer beyond its confines, but this Court has no warrant to do so.

But Plaintiffs' proposed duty here contains no such limit. Plaintiffs argue that Uber breached a duty because it "decid[ed] not to share information about…Wilson with Lyft." That duty has no limit. Sure, Uber and Lyft both operate in the rideshare industry. But, under Plaintiffs' theory, why would Uber's duty stop there? If it's foreseeable that "rideshare users who commit violence on one app will commit violence on the other app," then why would it not be just as foreseeable that Wilson would carjack and murder a taxicab driver? Or a limousine driver? Or a bus driver? Or a generous soul who decides to pick up a hitchhiker?

Under Plaintiffs' theory, Uber would have had an obligation to share information about Wilson not just with Lyft, but essentially with anyone, anywhere who might come into contact with Wilson. In sum, "[t]he burden of imposing this ill-defined and undisputedly broad duty is simply too great in this context."

Angela L. Angotti, Clayton J. Callen, Paige Lauren Cheung, and Paul Augusto Alarcon (Bowman and Brooke LLP) represent defendants.

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[Jonathan H. Adler] What Do Progressives Want for the Courts?

[There's a tension between Progressives' efforts to delegitimize the courts and hopes the judiciary to constrain executive power. ]

Ramesh Ponnuru writing in the Washington Post:

the mood of bitter hostility toward the Supreme Court has been a general feature of Democratic politics for much of the past decade — and especially since its 2022 decision to allow states to prohibit abortion. That critique of the court is heartfelt for many progressives. But it has a flaw that is becoming more and more apparent in Trump's second term: The Democrats can't decide whether they want the institution to be stronger or weaker. . . .

Whatever merit progressive proposals to contract the power and prestige of the Supreme Court might have, they are not a plausible means of restoring it to its former role as the champion of liberal principles. A court with reduced jurisdiction, whose members fear removal by the political branches and whose decisions command little respect from the broader political culture: That's not an institution that can perform what Jackson recently called "the singular function of ensuring compliance with the Constitution" and "protecting people's rights."

A high regard for the court is particularly important now that progressives have (rightly) made it a priority to make Trump follow court orders. They can argue that the court is illegitimate or that Trump has a high duty to obey it. They seem unlikely to persuade the public that Trump has a solemn obligation to comply with an illegitimate court.

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