Eugene Volokh's Blog, page 67

[Josh Blackman] Justice Kagan Doth Protest Too Much About The Emergency Docket

[Justices Kagan, Sotomayor, and Jackson could have joined Justice Kavanaugh to grant cert in the CPSC case, but they didn't.]

In Trump v. Moyle, the Court granted a stay, and allowed President Trump to remove members of the Consumer Product Safety Commission. This order seems to follow from Trump v. Wilcox. The per curiam order states, "the case does not otherwise differ from Wilcox in any pertinent respect." There has been some debate over the years on whether emergency docket rulings are precedential. I think that debate has been settled.

The vote here was (likely) 6-3. Justice Kagan wrote a dissent, joined by Justices Sotomayor and Jackson. Kagan once again complains that the Court "[o]nce again . . . uses its emergency docket to destroy the independence of an independent agency." She writes that the "same majority" granted relief in both Moyle and Wilcox. With emergency docket rulings, it is not known that the same justices joined both majorities, but Kagan confirms the obvious. Kagan says that "majority has also all but overturned Humphrey's Executor v. United States" (she's right). Kagan also cites Justice Barrett's concurrence in Doe v. Mills abut deciding cases "on a short fuse," but I no longer think even Barrett agrees with that opinion. One could say that Moyle cut the fuse short. I'll show myself out.

Yet, there is a shortcoming with Justice Kagan's ruling. She is unhappy that the Court is deciding this case on the emergency docket. The obvious rejoinder would be to decide the issue on the regular docket by granting a petition for a writ of certiorari. If the case was granted now, it could be argued in the fall, and settled definitively.

Indeed, there was a fourth vote for cert waiting. Justice Kavanaugh wrote a brief concurrence, explaining why he would have granted certiorari before judgment. Why didn't Justice Kagan and her colleagues join Justice Kavanaugh, and put the case on the regular docket? If Humphrey's Executor is "all but overruled," why not decide the case in the normal order, and settle the issue nationwide? Methinks that Justice Kagan doth protest too much. Then again, does it take four votes or five votes to grant cert before judgment?

Justice Kavanaugh's brief concurrence reiterates his CASA concurrence:

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.

In short, given the importance of this case, percolation is not very useful, and the Supreme Court should settle the issue definitively sooner rather than later.

It seems that the Court's docket next term will have cases on birthright citizenship, overruling Humphrey's, the Voting Rights Act, transgender athletes, and much more. Things will heat up!

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[Jonathan H. Adler] Ninth Circuit Upholds Nationwide Injunction in State Suit Against Birthright Citizenship Order

[Judge Bumatay objects on standing grounds, arguing that courts should not seek to offset narrowing one form of relief by expanding another: "That would be like squeezing one end of a balloon—it just pushes all the air to the other end."]

A divided panel of the U.S. Court of Appeals for the Ninth Circuit has affirmed a district court's nationwide injunction against enforcement of President Trump's birthright citizenship Executive Order, concluding that the E.O. is likely unlawful and that a nationwide injunction is necessary to provide complete relief to the plaintiff states. [As I said in today's Civitas Outlook column: "universal injunctions are dead, long live nationwide relief."]

Judge Gould wrote for the panel in Washington v. Trump, joined by Judge Hawkins. Here is how he summarizes the opinion:

Washington, Arizona, Illinois, and Oregon ("States") and individual expectant mothers ("Individual Plaintiffs") challenge as unconstitutional Executive Order No. 14160 ("Executive Order"), which purports to deny citizenship to the children born in United States territory of parents temporarily or unlawfully present in the United States. See Protecting the Meaning and Value of American Citizenship, Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 20, 2025). The district court entered a universal preliminary injunction which bars implementation of the Executive Order. Defendants appeal, contending that the States lack standing to challenge the Executive Order, that it was error to issue a preliminary injunction, and that the scope of the injunction is overbroad.

We address whether the Executive Order is constitutional and valid. We conclude that the Executive Order is invalid because it contradicts the plain language of the Fourteenth Amendment's grant of citizenship to "all persons born in the United States and subject to the jurisdiction thereof." We have jurisdiction under 28 U.S.C. § 1292(a)(1).

Because the Individual Plaintiffs are covered by a certified class action in another federal court, we decline to exercise jurisdiction over their claims and dismiss them. But because State Plaintiffs have standing and are likely to succeed in demonstrating that the Executive Order is unconstitutional, we affirm the district court's grant of a preliminary injunction and its determination that a universal preliminary injunction is necessary to give the States complete relief on their claims.

Judge Bumatay dissented in part on standing grounds. He argues that the Court is, in effect, making up for the loss of universal injunctions by making it easier for states to establish standing and demand broad relief. His dissent begins:

For good reason, this case elicits strong reactions from all sides. Fewer questions could be more important than deciding who is entitled to American citizenship. And this is understandably so—citizenship in our country is worth fighting for. And it's also worth ensuring that it is only conferred on those legally eligible to receive it. Despite, or perhaps because of, this, courts must be vigilant in enforcing the limits of our jurisdiction and our power to order relief. Otherwise, we risk entangling ourselves in contentious issues not properly before us and overstepping our bounds. No matter how significant the question or how high the stakes of the case—at all times, we must adhere to the confines of "the judicial Power." U.S. Const. art. III, § 2, cl. 1. Exceeding those limits—even to settle a divisive issue—violates the Constitution.

Among the most profound innovations of our Constitution is our system of separated powers—one that grants each branch of our government only limited authority. The Founding generation understood this division was necessary to preserve liberty and prevent tyranny. With their personal experience at the hands of the British government—with its Star Chamber, arbitrary pronouncements, and other abuses—they knew that concentrating too much authority in only a few hands corrupts and threatens our freedoms. As a result, they established strict constitutional guardrails to keep each branch in its lane.

A vital separation-of-powers limit on the judiciary is that we may only grant party-specific relief. Under the constraints placed on lower courts by Congress, we may order only the "sorts of equitable remedies traditionally accorded by courts of equity at our country's inception." Trump v. CASA, Inc., 606 U.S. ___, 145 S. Ct. 2540, 2551 (2025) (simplified). For too long, this limit was ignored. All too often, district courts have issued universal injunctions—mandating relief to both injured plaintiffs and non-parties alike—as a matter of course. But, simply put, universal injunctions "lack a historical pedigree" and "fall outside the bounds of a federal court's equitable authority under the Judiciary Act." Id. at 2554. Indeed, runaway universal injunctions conflict with the judicial role—encouraging federal courts to "act more like a legislature by decreeing the rights and duties of people nationwide." United States v. Texas, 599 U.S. 670, 703 (2023) (Gorsuch, J., concurring). So the Supreme Court has put an end to that practice.

To adhere to the separation of powers, then, federal courts must not grant an injunction "broader than necessary to provide complete relief to each plaintiff with standing to sue." CASA, 145 S. Ct. at 2562–63. No longer can a single district court judge casually enjoin the actions of the political branches everywhere against everyone all at once. Now, plaintiffs must establish that a sweeping injunction is truly necessary for "complete relief." And that inquiry must be searching—requiring the closest scrutiny to the plaintiff's claimed injury. "[T]he broader and deeper the remedy the plaintiff wants, the stronger the plaintiff's story needs to be." Id. at 2558 (quoting S. Bray & P. Miller, Getting into Equity, 97 Notre Dame L. Rev. 1763, 1797 (2022)). True, sometimes complete relief may incidentally benefit non-parties, as in a public nuisance. See id. at 2557. But the key is that sweeping relief of that sort is "by far the exception," justified only when "it would be all but impossible to devise relief that reaches only the plaintiffs." Id. at 2565 (Thomas, J., concurring) (simplified). Thus, we should approach any request for universal relief with goodfaith skepticism, mindful that the invocation of "complete relief" isn't a backdoor to universal injunctions. Otherwise, CASA would be a mere drafting exercise rather than a binding precedent. And finally, it's worth remembering that "complete relief" functions not as a floor but as a ceiling—it's not a "guarantee" but the "maximum a court can provide." Id. at 2558 (majority opinion). Equity sometimes demands that courts grant less than complete relief.

Standing is another separation-of-powers mechanism to guard against judicial overreach. Standing keeps courts in their place: deciding only concrete disputes between an injured plaintiff and a defendant according to the law. Requiring an injury in fact before exercising jurisdiction "prevent[s] the judicial process from being used to usurp the powers of the political branches." Clapper v. Amnesty Int'l. USA, 568 U.S. 398, 408 (2013). Courts, then, can't be used to strike down disfavored laws on a whim. Instead, to invoke the judicial power, plaintiffs must establish actual harm traceable to the law. Otherwise, we risk transforming the judiciary into the "roving commission," United States v. Hansen, 599 U.S. 762, 786 (2023) (Thomas, J., concurring) (simplified), for the "free-floating review" of executive and congressional action expressly rejected by the Founders, Moody v. NetChoice, LLC, 603 U.S. 707, 761 (2024) (Thomas, J., dissenting). The Founders left nonparticularized challenges to disfavored policy to the ballot box—not the courts.

And these two guardrails—party-specific relief and standing—must work in tandem. We can't tighten one but loosen the other. That would be like squeezing one end of a balloon—it just pushes all the air to the other end. The net result is the same—inflated power for the judiciary. So with our authority to issue universal injunctions sharply curtailed, we must resist the temptation to expand our authority by reflexively granting third-party standing, indulging speculative harms, or allowing other jurisdictional end-runs. That concern is particularly acute in our dealings with States because they are often "not directly subject to the challenged policy" yet may seek wider-ranging redress than individual plaintiffs for "at most, collateral injuries." See CASA, 145 S. Ct. at 2566 (Alito, J., concurring). As Justice Alito warned, lower courts must remain "conscientious[]" in applying thirdparty standing doctrine, "including against state plaintiffs." Id. Otherwise, we grant States the power to "create a potentially significant loophole" evading the limits on universal injunctions by artful pleading. Id. That's why we must be "rigorous" in our state-standing analysis if reaching the merits of the dispute would "force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." Raines v. Byrd, 521 U.S. 811, 819–20 (1997). In these cases, courts should not intervene "unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it." Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474 (1982) (quoting Blair v. United States, 250 U.S. 273, 279 (1919)). The separation of powers demands no less.

With these principles in mind, I return to this case. On January 20, 2025, the President issued an Executive Order directing the federal government to no longer recognize the U.S. citizenship of children born in the United States to parents on a temporary visa or unlawfully present in the country. See Protecting the Meaning and Value of American Citizenship, Exec. Order No. 14,160, 90 Fed. Reg. 8449. (Jan. 20, 2025). The States of Washington, Arizona, Illinois, and Oregon ("State Plaintiffs") immediately challenged the Executive Order. Cherly Norales Castillo and Alicia Chavarria Lopez ("Individual Plaintiffs") also sued on behalf of their then-unborn children, who wouldn't receive U.S. citizenship under the Executive Order. On February 6, 2025, the district court enjoined the enforcement and implementation of the Executive Order on a universal basis. The United States appealed.

I join Section III.B of the majority opinion in declining to reach the Individual Plaintiffs' claims. As the majority observes, it appears that both Individual Plaintiffs have given birth, meaning their children are United States citizens—raising mootness concerns. It's also a good call to avoid potential conflict with the overlapping class action pending in the District of New Hampshire. See Church of Scientology of Cal. v. U.S. Dep't of Army, 611 F.2d 738, 750 (9th Cir. 1979). But in rigorously applying our standing doctrine, I conclude that State Plaintiffs have no standing at this time. Absent a party with Article III standing, it's premature to address the merits of the citizenship question or the scope of the injunction.

I respectfully dissent in part.

With this decision, it would seem the birthright citizenship Executive Order will return to the Supreme Court next term.

 

 

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[Eugene Volokh] Newsom v. Trump Trial (re: Federal Use of California National Guard in L.A.) in Front of Judge Breyer Will Be Zoomivised

Today's order:

The bench trial scheduled for August 11-13, 2025 will be accessible to members of the public via Zoom pursuant to Civil Local Rule 77-3. (This is a text-only entry generated by the court. There is no document associated with this entry.) (crblc2, COURT STAFF) (Filed on 7/23/2025) (Entered: 07/23/2025)

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[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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[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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[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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[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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[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 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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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[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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