Eugene Volokh's Blog, page 70

[Ilya Somin] Trump's Alien Enemies Act Deportees Sent Back to Venezuela in Shameful Hostage Deal [Updated]

[After being ilegally deported and imprisoned in El Salvador, they will now be sent back to the oppressive regime they fled in the first place, in exchange for ten Americans detained by the Venezuelan government.]

A prison guard transfers Alien Enemies Act deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025. (El Salvador Presidential Press Office)

 

Some 252 Venezuelans illegally deported by the Trump Administration to imprisonment in El Salvador have now been sent back to Venezuela, in exchange for the release of ten Americans detained by the Venezuelan government. Trump had invoked the Alien Enemies Act of 1798 to do the deportations.

This is a bad deal on many levels: It incentivizes further hostage-taking by Venezuela, it returns people who fled oppression back to the very same regime that oppressed them, and it certainly does not stop the administration's illegal and unjust invocation of the Alien Enemies Act.

I've said it before (e.g. - here and here), and I will say it again: hostage exchanges are a terrible idea, because they incentivize more hostage-taking. This deal is likely to incentivize Venezuela's socialist dictatorship to seize more Americans.

In one way, this deal is actually worse than the usual hostage exchange, where a democratic state sends captured terrorists or other operatives back to a terrorist group like Hamas or an authoritarian regime like Russia. Here, the men we are sending back are innocent people who fled an oppressive government, now being forcibly returned to it. Despite the administration's claims they were members of the Tren de Aragua drug gang, there is virtually no evidence this is so, and most have never been charged or convicted of any crime. Some are actually dissidents and regime opponents who face likely persecution upon their return. Even those not specifically targeted by the government will be consigned to what may well be lifelong and oppression and poverty under a brutal regime whose depredations have triggered the biggest refugee crisis in the history of the Western Hemisphere.

There was a time when conservative Republicans would have condemned efforts to return victims of socialism to their oppressors. No longer. But it remains unjust, nonetheless.

I suppose one can argue this is less bad than other hostage exchanges because, unlike, say, released Hamas terrorists or Russian covert operatives, it is highly unlikely the Venezuelans sent back under this deal will go on to harm the US. That is true precisely because the Trump Administration is lying about their supposed gang affiliations! It's a valid point. But not nearly enough to justify this sordid deal, or the illegal deportations leading up to it.

The deal also further reveals what has been clear for some time: the Trump administration lied in court when it claimed the Venezuelans deported to El Salvador were under Salvadoran control, and the US had no way to get them out. In reality, they were detained solely at US behest, and the Salvadorans released them as soon as the US asked. This has been clear for a long time, but is now even more so. Courts should take note, and reject similar administration assertions with respect to any other migrants deported to imprisonment in El Salvador, now or in the future.

The deal also will not put an end to Trump's illegal use of the AEA as a tool for peacetime deportation. Litigation over his further attempts to deport people under the Act is ongoing in multiple federal courts, and several have already ruled against them. For the reasons why these deportations illegal, see the Fifth Circuit amicus brief in W.M.M. v. Trump that I coauthored on behalf of the Brennan Center, the Cato Institute, legal scholar John Dehn, and myself. See also my earlier writings on the AEA  here, here, here, and here.

To briefly summarize, the key point is that AEA may be invoked only in the event of a declared war or "invasion" or "predatory incursion" by a foreign nation or government against U.S. territory, and no such thing has happened here. In addition, Trump's AEA deportations to imprisonment in El Salvador are also blatant violations of the Due Process Clause of the Fifth Amendment.

UPDATE: I suppose I should emphasize I am not suggesting these Venezuelans should have been kept in imprisonment in El Salvador. Rather, they should never have been deported in the first place, and once illegally deported and imprisoned, should have been returned to the US. They also deserve compensation for their illegal imprisonment and resulting pain and suffering.

UPDATE #2: In a court filing today, the Trump Administration claims that Venezuelan dictator Nicolas Maduro has agreed to allow the Venezuelan migrants returned to his control under this deal to go back to the US if 1) a court orders it, 2) the US government is willing to "facilitate" their return, and 3) the person in question agrees. We will see if this is actually true or not, and if so whether the admnistration actually does the necessary "facilitation." Given the awful track records of these parties, there is reason to suspect that the administration, the Maduro regime, or both, may be lying again.

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[Steven Calabresi] No Special Counsel for the Epstein Suicide Investigation

[It would be a terrible idea to appoint a special counsel to investigate the Jeffrey Epstein suicide and scandal.]

President Donald Trump has had an extraordinary first six months in office. To mention just a few of the great things he has done: (1) President Trump bombed Iran to prevent the most terrorist-friendly nation in the world from getting a nuclear bomb; (2) he then ended the Israeli-Iranian war in 12 days, and stopped a war from starting between two nuclear-armed powers, Pakistan and India, which is a lot more than President Obama ever did to win a Nobel Peace Prize; (3) he has eliminated what had been a torrent of illegal aliens entering the U.S. by crossing the Mexican-American border, which President Biden had allowed; (4) he cut taxes by 4.5 trillion dollars from 2025 through 2034; (5) he is succeeding where even President Reagan failed in eliminating the unconstitutional Department of Education; (6) his Justice Department appears to have persuaded six Supreme Court Justices to recognize that there can't be "independent agencies" in the sense of agencies exercising executive power that are independent of control by the elected executive, agencies that have plagued us since 1935; (7) he has taken on the Deep State by firing more than 50,000 civil service employees as of today; (8) he is already, in his second term, beginning to nominate excellent new federal judges, such as Jennifer Mascott, whom he intends to nominate to the Third Circuit; (9) his Justice Department has persuaded the Supreme Court to end nationwide injunctions; and (10) he has gotten rid of thousands of regulations hampering the oil and gas industries and most other private sector businesses as well.

Given these genuinely important policy decisions—even his opponents will agree that they are important—and others that are currently being considered, the flare-up over the Jeffrey Epstein files is a pointless distraction. Epstein committed suicide in prison six years ago. Jeffrey Epstein is dead and deservedly so. His principal partner in crime, Ghislane Maxwell, was sentenced to twenty years in federal prison, which means she will be in jail until she is 81 years old. President Trump's Attorney General Pam Bondi, who I think is an excellent and experienced prosecutor, has investigated the Epstein matter and found (1) no client list of powerful people that Epstein and Maxwell had worked with; and (2) no evidence that Epstein was murdered six years ago rather than having committed suicide.

There is no reason to doubt Attorney General Bondi's findings. If there had been any evidence that Donald Trump was an Epstein client, would President Biden's Justice Department and FBI have kept it quiet, with no disclosure or leak?

Nor would appointing a Special Counsel help matters. First, as a legal matter the Justice Department's regulation providing for the appointment of Special Counsels is unconstitutional, as Gary Lawson and I explained in Why the Appointment of Robert Mueller Was Unlawful, 95 Notre Dame Law Review 87 (2019).

Second, as Justice Scalia observed in Morrison v. Olson (1988), appointment of Special Counsels is awful policy. With a Special Counsel, an extraordinary amount of money and lawyerly attention gets focused on one matter to the exclusion of other legal criminal claims that might be brought that are much more meritorious. As Justice Scalia noted,

Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected, and can be removed, by a President whom the people have trusted enough to elect…. That result, of course, was precisely what the Founders had in mind when they provided that all executive powers would be exercised by a single Chief Executive. As Hamilton put it, "[t]he ingredients which constitute safety in the republican sense are a due dependence on the people, and a due responsibility." Federalist No. 70, p. 424. The President is directly dependent on the people, and, since there is only one President, he is responsible. The people know whom to blame, whereas "one of the weightiest objections to a plurality in the executive … is that it tends to conceal faults and destroy responsibility." Id. at 427.

That is the system of justice the rest of us are entitled to, but what of that select class consisting of present or former high-level Executive-Branch officials? If an allegation is made against them of any violation of any federal criminal law …, the Attorney General must give it [her] attention. That in itself is not objectionable. But if, after a 90-day investigation without the benefit of normal investigatory tools [or, I might add, after a political and politicized outcry from opponents and the media -SC], the Attorney General is unable to say that there are "no reasonable grounds to believe" that further investigation is warranted,  a process is set in motion that is not in the full control of persons "dependent on the people," and whose flaws cannot be blamed on the President….

The [Special Counsel] thus selected proceeds to assemble a staff. As I observed earlier, in the nature of things, this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual.

Can one imagine a less equitable manner of fulfilling the Executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as "picking the man and then searching the law books, or putting investigators to work, to pin some offense on him"?

To be sure, the investigation must relate to the area of criminal offense specified by the [Attorney General]. But that has often been (and nothing prevents it from being) very broad—and should the [Special Counsel] or his or her staff come up with something beyond that scope, nothing prevents him or her from asking the [Attorney General] to expand his or her authority …. It seems to me not conducive to fairness. But even if it were entirely evident that unfairness was in fact the result—the judges hostile to the administration, the [Special Counsel] an old foe of the President, the staff refugees from the recently defeated administration—there would be no one accountable to the public to whom the blame could be assigned.

Nor would the problem be much ameliorated by framing the Special Counsel investigation as an inquiry into an incident, not a search for possible crimes by a particular person (given that the key person, Jeffrey Epstein, is dead). Many of the unfair and destructive Special Counsel investigations of the 1980's and 1990's were investigations into incidents that then turned into (or turned out to have been) be witch hunts to get whoever was the President at the time.

The Iran-Contra Independent Counsel, Lawrence Walsh, was appointed on Dec. 19, 1986 to investigate the Iran-Contra Affair in general with Oliver North and John Poindexter as the prime suspects. He got convictions of both of them, which were overturned on appeal.

He then indicted former Reagan Secretary of Defense, Caspar Weinberger, on two counts of perjury and one count of obstruction of justice six years later, in June 1992. And on the eve of the 1992 presidential election, October 30, he reindicted Weinberger on one count of false statements, along with indicting five other top Reagan Administration officials—all in violation of Department of Justice policy about not indicting people close to an election. One sentence in the October 30th indictment suggested that Walsh was trying to convict Weinberger to "flip him" into being a prosecution witness against then-President Bush who "might" have known about Iran-Contra when as Vice President he had been a member of the National Security Council. This may have contributed to Bush's loss to Bill Clinton. Two months later, a judge threw out the re-indictment of Weinberger for having been outside the statute of limitations.

Sure, the Iran-Contra investigation was framed as an investigation into a broader incident, but the Democrats' goal from the start was to get Reagan or Vice President Bush. I graduated from Yale Law School in 1983, and all my most left-wing friends from YLS ended up serving on Walsh's staff, in a way that fit Justice Scalia's observation in his Morrison v. Olson dissent.

Same thing with Ken Starr, and the investigation of the alleged improper financial dealings Bill Clinton had with the Whitewater Development Corporation. Starr was appointed on August 5, 1994 to investigate the Whitewater matter, but he served for more than four years. His investigation turned into an investigation of Travelgate, then turned into an investigation of Deputy White House Counsel Vince Foster's death by suicide, and then ended with Starr accusing Bill Clinton of perjuring himself and obstructing justice when he denied having sex with then-White House intern Monica Lewinsky.

Here too a special counsel investigation into one incident metastasized into an indictment for perjury in a totally unrelated matter and led to only the second impeachment ever of a sitting President by the House of Representatives. The goal became to get Bill and Hillary Clinton, and it likely helped succeed in preventing Hillary Clinton from being elected President. By 1994, I was Chairman of the Board of Directors of the Federalist Society, and all my most right-wing Federalist Society friends were serving on Ken Starr's staff, just as Justice Scalia predicted.

Same thing with the Jeffrey Epstein incident. Yes, people rightly hate Epstein, but this thing would not be the lead story in every newspaper in the country if it were not yet another attempt to get something on, eventually, Donald Trump. But you might say, the statute of limitations has run out on this matter since Epstein died six years ago. Forget that idea! A special counsel will get anyone who knew Epstein, which includes Donald Trump, to testify under oath about every conversation they ever had with Epstein, and then indict them all for allegedly perjuring themselves, making false statements, and obstructing justice, i.e., the Special Counsel's investigation.

And Justice Scalia's policy argument against court-appointed Special Counsels applies with equal vigor to Attorney-General-appointed Special Counsels. It's always worth returning to the April 1, 1940 speech to all the U.S. Attorneys given by then Attorney General, and future Supreme Court Justice, Robert Jackson:

It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice' or other base motives, he is one of the worst.

These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere. This authority has been granted by people: who really wanted the right thing done—wanted crime eliminated—but also wanted the best in our American traditions preserved.

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the Senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.

The bottom line is that it is a bad idea, as a matter of policy, as well as of constitutionality, for the Attorney General to ever appoint a Special Counsel to investigate anything. Attorney General Bondi should not appoint a Special Counsel to investigate Jeffrey Epstein's suicide six years ago. She should, instead, repeal the unconstitutional 1999 Department of Justice Regulation, enacted by former Attorney General Janet Reno, under which Special Counsels like Robert Mueller and Jack Smith were appointed.

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

[Longboat Key condos, protective sweeps, and wrong-door raids.]

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

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

New on the Short Circuit podcast: What's the difference between legit multi-level marketing and illegit pyramid schemes? Sometimes it's hard to tell.

Accused 9/11 co-conspirators have been in pretrial proceedings before a military commission in Guantanamo Bay for more than two decades. Gov't offers them a plea deal that will spare them the death penalty. The co-conspirators take the deal. Sec'y of Defense: Takesies backsies! Military Judge: No takesies backsies! D.C. Circuit (over a vehement 75-page dissent): Mandamused!Citizen journalist films open garage at a Secret Service building. Two agents order him to stop and, when he refuses to identify himself, slap cuffs on him. A third agent shows up and tells the others the man is allowed to film. The man sues for violations of his First and Fourth Amendment rights. D.C. Circuit: But he brought Bivens claims so you know how that goes.Maine voters, upset with the construction of an energy-transmission line through the state that would connect Canadian electricity to Massachusetts, try to stop the project. When that fails, they propose a ballot initiative to use eminent domain to seize the assets of the two Maine corporations building the line. When that fails, they propose a ballot initiative to prohibit American corporations from contributing to ballot initiatives if they have more than 5% foreign ownership. That passes and the two corporations sue. First Circuit: And the law should be preliminarily enjoined. Silencing corporations with 95% American ownership isn't narrowly tailored to preventing foreign influence in Maine elections.Albany, N.Y. police execute search warrant at apartment and allegedly conduct a body-cavity inspection of a visitor there in front of a crowd of officers and other arrestees. Second Circuit (unpublished): Officers can conduct such searches if they have reasonable suspicion, but only in a reasonable manner, and the trial court's failure to instruct the jury on that second point was plain error. New trial.If a plaintiff alleges a deliberate gov't plot to retaliate against protected free speech and then goes all the way to the Supreme Court, which rules that the complaint states a viable First Amendment claim, what happens next? Cynics among you may think you already know. For the rest, we won't spoil this Second Circuit opinion except to say that the right answer rhymes with schmalified schmimmunity.Palestinian imam settles in New Jersey on a three-year work visa in 1996. In 1999, he applies for a green card. Over the next 20 years, an immigration judge twice grants adjustment of status. Following the final grant in April 2020, DHS did not appeal the immigration judge's order, which became final 30 days later. Eleven months later, the Board of Immigration Appeals "self-certifies" an appeal and revokes the man's green card. Third Circuit: Congress put the 30-day limit in there for a reason. Reversed. Dissent: Samuel Pufendorf, Raoul Berger, and Adrian Vermeule would be outraged by this decision.You know who was not a fan of Dr. Benjamin Rush, a signer of the Declaration of Independence? Libertarian psychiatrist Thomas Szasz, who said Rush over-medicalized human behavior and "was oblivious to the deprivation of personal liberty inherent in medical or psychiatric incarceration." You know who is cool with repeatedly citing Rush (and other sources) in justifying the federal law making it illegal to buy guns if you're a pothead? The Third Circuit (over a dissent). That said, the court did remand to see exactly how much of a pothead the defendant was.Over 25 years after Philly man's 1986 conviction for murder, three of the four eyewitnesses recant. In an attempt to bypass certain procedural hurdles, and with a Philly DA who wanted to help set things right, defendant and the DA "settle" to allow his federal habeas petition. The state AG objects. And so does the Third Circuit, which says those hurdles can't just be waived away by prosecutors. They're prosecutors, after all. Dissent: The what now?Virginia staffing agency paired nurses with available nursing work. After a DOL investigation, though, the agency is prosecuted for failing to pay a mega-amount of overtime. After a trial, it's found liable for millions in backpay and almost as much in penalties. Agency: But they're independent contractors. Fourth Circuit: Seems to us they're not. Dissent: The majority cherry-picked facts out of a voluminous record and bent a multifactored and squishy test to its will.West Virginia prohibits abortion in most circumstances. Is this preempted by federal law that regulates access to mifepristone, the first drug in a two-drug medication abortion regimen? Fourth Circuit (over a dissent): No. "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."There's sometimes a fine line between "retaliating against someone for asserting his rights under the Fair Housing Act" versus "retaliating against someone because you just think they're kind of a jerk," but the Fourth Circuit politely reminds us that drawing lines like this are exactly what juries are for.Marilyn Mosby, former State's Attorney of Baltimore who gained national attention following the killing of Freddie Gray, catches a break: Following her conviction for mortgage fraud, two-thirds of a Fourth Circuit panel agree that the district court improperly instructed the jury on the what it must find to establish that venue was proper in Maryland. Bonus: She gets to keep the condo in Longboat Key!Following the Supreme Court's 2023 ruling ending consideration of race in college admissions, many schools erected firewalls that prevented admissions officers from learning applicants' race and even barred their officers from receiving aggregate racial data during the admissions process. The University of Texas at Austin took a different tack: Admissions officers can access all that stuff at any time, they're just not allowed to consider it in making decisions. Students for Fair Admission challenges the policy. District court: But UT said it doesn't consider race anymore, so your claims are moot. Fifth Circuit: That is not how mootness works.The families of three Black innocent bystanders killed in Houston police chases (two by fleeing suspects and one by an officer) sue the city, alleging there's a policy of racial profiling that led to those chases. Fifth Circuit: The bystanders were certainly injured, but they weren't treated differently because of their race—and so didn't suffer an injury that the equal-protection clause protects against.Applying First Amendment intermediate scrutiny, do you think federal courts in Texas will require that the state allow strip clubs to hire 18-to-20-year-olds? Fifth Circuit: The answer is exactly what you'd expect.For some of us the delight in our child's eyes when we return home from a long day is what makes us smile. For others the phrase "HOLD IN ABEYANCE" set amongst other decretal language punches the same ticket. And thus the latter may enjoy the latest chapter in the drama between Media Matters and a corporation that for unconvincing reasons labels itself "X." This time from the Fifth Circuit.Harris County, Tex. deputies approach house with guns drawn after woman reports an intruder in her home. An unarmed man opens the front door, and an officer immediately shoots him without warning or command. (He lives.) Yikes! He's the woman's dad, who'd also raced over to check on things. (There was no intruder.) Fifth Circuit: If the shooting was accidental, then QI. If it was intentional, then no QI. To a jury this must go.Allegation: Louisville, Ky. officers raid house in May 2020 and force innocent family, including two kids, out into the street in pajamas and underwear at gunpoint. Oops! The officers were meant to raid the house next door. Sixth Circuit: Kentucky's one-year statute of limitations to file 1983 claims is not impermissibly short, even in cases like this where plaintiffs must also figure out the identities of the officers and the city won't tell them without a court order.During protective sweep of residence—for officer safety and not to search for evidence—Great Lakes Regional Fugitive Task Force officers (who'd already nabbed their man outside the home) lift up the corner of a mattress and find contraband. District court: Someone hiding between the box spring and mattress could have launched an unexpected attack. Seventh Circuit: Suppress the evidence. (And we note for standing purposes that a probationer who's meant to be staying at one place but discards his ankle monitor and sleeps at another still has Fourth Amendment rights in the second place.)During the George Floyd protests, an undocumented man in Chicago fires his gun at cars he says were driven by looters. He's charged under 18 U.S.C. § 922(g)(5)(A), which bars illegal aliens from possessing firearms. District court: The law is facially valid but unconstitutional as applied—he has a job and no felony convictions. Seventh Circuit: What do Catholics, British Loyalists, Native Americans, and slaves have in common? Each has historically been disarmed en masse on the ground that they lacked allegiance to the sovereign. Same goes for illegal aliens. The law is facially constitutional; no individual assessments required. Reversed and remanded.After hernia surgery, pre-trial detainee in Chicago federal jail suffers complications that go untreated for six weeks: his testicles swell to the size of a grapefruit and are so intensely painful he can't sit or sleep. (After that, he's transferred to prison and ultimately has additional surgery.) He sues over his undertreatment in jail. Seventh Circuit: But he brought Bivens claims, so … case undismissed! Federal officials don't have many constitutional duties you can sue over, but the duty to respond reasonably to detainees' serious medical needs is one of them. Dissent: Of course corrections officials have that duty. But you can only sue about it if you're a convicted prisoner, not a pre-trial detainee.Arkansas law prohibits K-12 teachers from "indoctrinating" students with ideologies that encourage them to discriminate based on protected characteristics (race, ethnicity, sex, etc.). High school students claim that the law has made their teachers self-censor and stop teaching critical race theory (which the students wish to learn) in violation of the Free Speech Clause. Eighth Circuit: The gov't gets to control what it says, and the Free Speech Clause doesn't give the students the right to compel the gov't to say something it doesn't want to.Because of how federal land was allocated to finance the Transcontinental Railroad, southern Wyoming has a checkerboard of one-square-mile sections that alternate between public and private ownership. This created a substantial problem when the private landowners rescinded permission for wild horses on the federal land to move across the private land. Because wild horses are incorrigibly disrespectful of property boundaries, the Bureau of Land Management adopted a plan that would effectively stop maintaining wild horse herds in the checkerboard areas. Tenth Circuit: Which violated the Wild Free-Roaming Horses and Burros Act by failing to consider the statutory requirement to maintain a thriving ecological balance. (But neigh to the plaintiff horse enthusiasts' NEPA claim.)After the feds investigate Walmart for paperwork violations related to its employment of non-citizens, its fate is foisted into the hands of an ALJ. Undeterred, Wally World goes on the offense and obtains an injunction in district court on the grounds that the AlJ had unconstitutional "good cause" protection from the presidential axe. Eleventh Circuit: Furthering a circuit split, we conclude the protection is actually OK.And in en banc news, the Second Circuit will not reconsider its opinion upholding man's conviction—by an 11-member jury—for sending death threats to congresspersons and Fox News hosts. The panel said the error wasn't structural b/c there's no constitutional right to 12 jurors, so the conviction is only reviewed for harmless error. The en banc court denied rehearing but fractured over why: Did the panel hold that only constitutional errors can be structural (automatically reversible) or was that dicta? The conviction stands—but according to a majority of the court, whether a non-constitutional error can demand more than harmless error review is an open question.

What the Flock! Officials in Greers Ferry, Ark. have installed a "Flock Safety Falcon" camera directly in front of the home of Charlie and Angie Wolf, a retired couple who do not think the city should surveil their every coming and going—and the comings and goings of everyone who drives by their house. At IJ, we can think of a couple ways warrantless, suspicionless, constant, and enduring surveillance might pose some constitutional concerns, so this week we urged the city not to renew its contract with Flock. Click here to learn more.

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[Eugene Volokh] Court Blocks Washington Requirement that Clergy Report Child Abuse, Even Learned from Confessions

From today's opinion by Judge David G. Estudillo (W.D. Wash.) in Etienne v. Ferguson:

At present, Washington clergy who learn of child abuse or neglect while acting within their official supervisory capacity are required to report such abuse to public authorities. Only information obtained "as a result of a privileged communication" is exempted from this mandatory reporting requirement. Effective July 27, 2025, however, Washington law [SB 5375] will require clergy to report child abuse or neglect regardless of how they learn about such information…. The Court concludes Plaintiffs are likely to succeed on the merits of their Free Exercise Clause challenge ….

There is no question that SB 5375 burdens Plaintiffs' free exercise of religion. In situations where Plaintiffs hear confessions related to child abuse or neglect, SB 5375 places them in the position of either complying with the requirements of their faith or violating the law. In this way, the statute "affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs."

[The law must therefore be judged under the "strict scrutiny" test unless it is neutral and generally applicable.-EV] [A] law is "not neutral and generally applicable, and therefore trigger[s] strict scrutiny … [if it] treat[s] any comparable secular activity more favorably than religious exercise." Tandon v. Newsom (2021)….

SB 5375 modifies existing law solely to make members of the clergy mandatory reporters with respect to child abuse or neglect. However, other groups of adults who may learn about child abuse are not required to report. Parents and caregivers, for example, are not mandatory reporters.

Moreover, the Washington legislature passed Substitute House Bill 1171 ("SHB 1171")—"AN ACT Relating to exempting attorney higher education employees from mandated reporting of child abuse and neglect as it relates to information gained in the course of providing legal representation to a client"—around the same time as it passed SB 5375….The twin passage of SHB 1171 and SB 5375 appears to be a textbook example of "permitting secular conduct that undermines the government's asserted interests in a similar way" to religious conduct that is regulated. The government interest at issue in both statutes—protecting children from abuse and neglect—is the same. Nevertheless, one law eliminates the privilege for clergy while the other expands the privileges available to secular professionals. "The underinclusion is substantial, not inconsequential" here.

Thus, SB 5375 is neither neutral nor generally applicable because it treats religious activity less favorably than comparable secular activity. The State has not presented compelling evidence that the exemption for law professors and those they supervise is not comparable in terms of the "risk" posed to children by a communications privilege exception to the mandatory reporting requirement. As Plaintiffs point out, multiple law schools in Washington have clinics and programs that directly serve children. Moreover, the exemption for university attorneys applies to all attorneys employed by higher education institutions—not just clinical professors….

The court also noted that the law may also not be neutral and generally applicable if it "targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation," and that this appeared to be so here (though it ultimately chose to rely instead on the treats-secular-activity-more-favorably analysis quoted above):

Here, clergy were explicitly singled out. The law itself is titled "AN ACT Relating to the duty of clergy to report child abuse and neglect[.]" … [Defendants have not been able] to explain why the language in § 1(b) of the bill doubled down on singling out clergy when § 1(a) had already added clergy to the list of mandatory reporters who could not invoke a communication privilege.

The targeted exception for clergy raises concerns, as the text of the bill and its legislative history arguably evince the intentional abrogation of a practice that the legislature understood to be religiously sacrosanct. For example, one of SB 5375's co-sponsors stated that: "We as a state do not have to be complicit when religious communities choose to cover up abuse and neglect of children. We can establish our laws, they can have the rules. And if they are in conflict, I believe they can change their rules."  As the Ninth Circuit recently noted, "government actions coupled with 'official expressions of hostility to religion … [are] inconsistent with what the Free Exercise Clause requires … [and] must be set aside.'"

The fact pattern at hand is readily distinguishable from cases where courts have found that a law's lack of religious exception does not necessarily give rise to a free exercise claim. In this case, clergy were the only professionals whose pre-existing exception was eliminated by the legislature….

And the court concluded that the law likely failed strict scrutiny:

When a plaintiff's religious exercise is burdened by a law that is either not neutral or not generally applicable, the burden shifts to the defendants to demonstrate that the challenged action survives strict scrutiny. "A government policy can survive strict scrutiny only if it advances 'interests of the highest order' and is narrowly tailored to achieve those interests.'"

Here, Plaintiffs have raised a serious question as to whether SB 5375 would survive strict scrutiny. Plaintiffs do not dispute that the State has a significant interest in preventing child abuse and neglect and in implementing measures to further that interest. Nor do Plaintiffs dispute that members of the clergy can be designated mandatory reporters in most contexts in a manner consistent with the First Amendment.  However, strict scrutiny requires "that a law inhibiting religious belief or practice go only as far as necessary to further the government interest." States cannot "justify an inroad on religious liberty" without first "showing that it is the least restrictive means of achieving some compelling state interest."

The State arguably could have chosen a less restrictive means of advancing its interest in protecting children from abuse and neglect by adding members of the clergy to the list of mandated reporters while also permitting a narrow exception for the confessional, as approximately 25 other states have done. There is also the possibility that the State could have worked alongside clergy to determine where state intervention is needed to further this interest within the context of the different religious communities in Washington and worked backwards from gaps identified to formulate a narrowly tailored remedy. As Etienne states, "the Archdiocese of Seattle has adopted and implemented policies that go further in the protection of children than the current requirements of Washington law on reporting child abuse and neglect," which include "reporting to proper law enforcement agencies or the department of children, youth, and families whenever church personnel—defined to include clergy and lay faithful working for the diocese, its parishes, schools, or agencies—have reasonable cause to believe child abuse or neglect has occurred."  Etienne further suggests that:

[B]ecause absolution given by a priest requires true contrition for all confessed sins, I, and the priests within the Archdiocese of Seattle to whom are confessed sins of child abuse or neglect by the penitent, could help counsel the penitent to self-report and obtain the necessary temporal intervention and held. I, and the priests within the Archdiocese of Seattle who suspect based on what is disclosed during confession that the penitent is suffering from abuse or neglect, the penitent has engaged in abuse or neglect, or some third party has engaged in abuse or neglect, could invite the penitent for counseling outside of the Sacrament of Confession. If the penitent were to agree to such counseling and I or a priest within the Archdiocese of Seattle were to learn information in that non- sacramental counseling providing reasonable cause to believe abuse or neglect has been committed, I or the priest is obligated to report that suspected abuse or neglect to proper law enforcement agencies or the department of children, youth, and families.

Ultimately, Washington's failure to demonstrate why it has an interest of the highest order in denying an exemption to clergy while making such exemptions available to other professionals who work with underserved children—as discussed supra—is likely fatal to SB 5375. As in Lukumi, the law is "underinclusive to a substantial extent with respect to … the interest[] that [the state] has asserted." The state, in removing the privileged communication exception for clergy but expanding it for other professionals, cannot demonstrate the narrow tailoring strict scrutiny requires.

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[Josh Blackman] What To Make Of The Leak From The Judicial Conference?

Margot Cleveland at The Federalist obtained a copy of a memorandum prepared by the Judicial Conference of the United States. This group includes the Chief Justice of the United States, the Chief Judges of the Federal Courts of Appeals, as well as certain district court judges. Margot did not reveal who authored the memorandum.

To be clear, I have no love for the Judicial Conference. I think they completely botched the judicial reassignment policy. And these august judges haven't said a peep about Judge Pauline Newman's stealth impeachment. Still, I am profoundly troubled by leaks. I don't like leaks from the Supreme Court. And I don't like leaks from other judicial bodies. The deliberations of the judicial conference should more transparent. Trying to figure out what is going on resembles Kremlinology. But as things stand now, they aren't transparent. Cleveland does not say how she got the document. I imagine it would have had to come from a judge, or perhaps someone on a judge's staff. No matter how you slice it, this leak is bad.

I suppose if I am being consistent, I should call on the presiding officer of the entity that had the leak to resign. But I repeat myself.

Now, onto the substance. Here is how Cleveland describes the memorandum:

During the week of March 11, 2025, members of the Judicial Conference met in Washington, D.C., for the first of its two regular meetings. . . .

In a memorandum obtained exclusively by The Federalist, a member of the Judicial Conference summarized the March meeting, including a "working breakfast" at which Justice Roberts spoke. According to the memorandum, "District of the District of Columbia Chief Judge James Boasberg next raised his colleagues' concerns that the Administration would disregard rulings of federal courts leading to a constitutional crisis."

"Chief Justice Roberts expressed hope that would not happen and in turn no constitutional crisis would materialize," according to the memorandum. The summary of the working breakfast added that Chief Justice Roberts noted that "his interactions with the President have been civil and respectful, such as the President thanking him at the state of the union address for administering the oath."

I have a few tentative observations.

First, I find it fascinating that Chief Justice Roberts relayed his conversation from the State of the Union. If I had to guess, Trump exchanged these kind words during the pleasantries as he entered the Chamber. But, as readers recall, Chief Justice Roberts bolted out of the chamber after Trump finished speaking. And Justice Barrett gave Trump a sideways glance after shaking his hand.

Second, I find it even more fascinating that Roberts is serving as a voice of reason, pushing back at the notion that he doesn't think Trump will ignore court orders. Roberts did flag this issue in his end-of-year message, but he is at least giving Trump some space.

Third, it seems clear that Judges like Boasberg lost trust in Trump, before any cases were assigned to him. And that lack of trust pervaded his Saturday emergency TRO hearing, where he ordered planes to turn around. If Boasberg followed a presumption of regularity, he would not have issued such an order.

Margot suggests this memorandum reveals bias on the part of Judge Boasberg and others. I suspect this report will give rise to a motion to recuse. I would like to see the full memorandum. And perhaps in the interest of full disclosure, Judge Boasberg should reveal his position here.

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[Eugene Volokh] "At Times, Filings by Pro Se Litigants and Attorneys Alike Are Wholly Nonsensical, but Pointing That Out" Doesn't Justify Recusal

Words of wisdom from Judge Jennifer Dorsey (D. Nev.) last week in Naessens v. Breslin:

[The self-represented plaintiff] takes issue with an order of mine in an unrelated case calling a pro se plaintiff's filings "wholly nonsensical" and argues that such language "suggests an undue predisposition against unrepresented parties."

Naessens … fails to show that I treated him or his allegations unfairly because of his pro se status. At times, filings by pro se litigants and attorneys alike are wholly nonsensical, but pointing that out does not supply a legal basis for recusal….

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[Eugene Volokh] Self-Represented Ligitant Says He Was Mentally Incompetent to Represent Himself, Seeks to Void Results of Past Case

From Judge Jennifer Dorsey (D. Nev.) last week in Naessens v. Breslin:

Pro se plaintiff … contends … that he has an undisclosed mental-health condition that made him incompetent to represent himself during this lawsuit….

Naessens … argues that he was "diagnosed with a serious mental-health condition and lacked the capacity to proceed pro se without a judicial determination of competence or court-appointed representation." He asserts that the court should have sua sponte inquired into his competency and appointed a guardian ad litem to represent his interests. He contends that the failure to do so violated his constitutional rights.

Naessens cites no authority for the notion that this court should have, unprompted, questioned his competency to litigate a case that he brought before this court. The court's obligation to conduct a competency hearing under FRCP 17(c) arises only when a "substantial question exists regarding the mental competence of a party proceeding pro se …." No such question arose in this case; Naessens actively participated in motion practice, coherently articulated his arguments and allegations, and never informed the court of any condition that affected his competency.

The only issue he raised concerning his health was in a motion to extend deadlines, stating that he was suffering from seizures that made it "difficult to communicate in a timely manner with the court." That statement did not raise a substantial question concerning Naessens's competency, so the court was under no obligation to determine competency under FRCP 17, and I conclude that his arguments do not justify relief [from the prior judgment].

Naessens separately but relatedly argues that because he was incompetent to participate in the prosecution of this case, "all court actions taken while [he] proceeded pro se are constitutionally invalid and must be vacated." He cites United States v. Gonzalez-Lopez (2006) and Dusky v. United States (1960) to support his argument. The United States Supreme Court's opinion in Gonzalez-Lopez addresses criminal defendants' right to constitutionally effective counsel. And the High Court's opinion in Dusky concerns the requirement that a criminal defendant be competent to stand trial. Neither case provides any applicable principles for this civil context, so they are not persuasive here….

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[Natalie Alkiviadou] Hate Speech and the European Court of Human Rights: Towards a Principled Approach

This book demonstrates that, with few exceptions, the ECtHR's general approach to hate speech has been overly expansive, often undervaluing both the significance of free speech and the harms resulting from the suppression of relatively low-threshold expressions. While this book does not advocate for an entire revision of the European approach to hate speech as that would anyhow be unrealistic, it does argue for a more rigorously substantiated balancing exercise and a renewed adherence to the Handyside principle. In Handyside v The United Kingdom (1976), the ECtHR found that the right to freedom of expression as provided by Article 10 of the European Convention on Human Rights (ECHR) extends to ideas that may 'offend, shock or disturb.' The hate speech jurisprudence of the ECtHR, although ostensibly committed to the protection of the right to freedom of expression continues to suffer from a lack of conceptual clarity, inconsistencies in application and a limited engagement with relevant scholarly literature. Some key examples are put forth hereinafter.

Féret v Belgium (2009) is emblematic of the departure from Handyside principles as it embedded a paradigm which I refer to as the low threshold hatred paradigm. Féret involved an application by a far-right politician who distributed leaflets during an electoral campaign with statements such as "Stop the Islamization of Belgium" and allegations that a refugee centre "poisons the lives of residents." In upholding domestic restrictions on such speech, the ECtHR equated insult, defamation and ridicule with hate speech that falls outside the protection of Article 10 of the European Convention on Human Rights (ECHR), denoting that incitement to violence is not a necessary pre-requisite for hate speech. Féret set a threshold precedent that would influence subsequent jurisprudence in which the ECtHR has systematically held that insults and/or defamation and/or prejudice and/or ridicule are enough to result in an Article 10 violation, even if they do not incite violence or other criminal acts.

Furthermore, rooted in the post-war consensus to combat anti-Semitism and Nazi propaganda, is the categorical exclusion of Holocaust denial from Convention protection through Article 17 of the ECHR, namely the prohibition of abuse of rights clause. This stems from the ECtHR's recognition of the enduring harm caused by the Holocaust and its denial not only to survivors, their descendants and groups but also to European democratic values.

Indicatively, the ECtHR's strict stance in relation to the Holocaust and its denial was put forth in Lehideux and Isorni v France (1998), in which the ECtHR ruled that there exists a "category of clearly established historical facts—such as the Holocaust —whose negation or revision would be removed from the protection of Article 10 by Article 17." The ECtHR's approach to genocides and genocide denial becomes less consistent when addressing denial of genocides other than the Holocaust. In Perinçek v Switzerland (2015), the ECtHR faced the question of whether denial of the Armenian genocide warranted criminal sanctions akin to Holocaust denial. Perinçek, a Turkish politician, publicly denied the Armenian genocide during events in Switzerland, describing it as an "international lie." The ECtHR found that Perinçek had not committed an abuse of his rights within the meaning of Article 17 of the Convention, as is seen in Holocaust denial cases. As a result, the applicant was assessed under Article 10.

While the case resulted in a finding of no violation, the fact remains that the case in question did not meet the severity required under Article 17, while Holocaust denial is systematically categorised as inherently harmful and abusive under Article 17, regardless of whether Article 10 is integrated in its analysis. Its use of historical consensus as a criterion for addressing cases of genocide denial risks reinforcing state-endorsed narratives while silencing alternative viewpoints. This approach raises concerns about the ECtHR's capacity to function as an impartial guardian of human rights. Furthermore, its divergent treatment of the Holocaust and the Armenian genocide points to an emergence of a hierarchy in the recognition of genocides and historical memory, thereby challenging the universal application of Convention safeguards in the Council of Europe region.

The ECtHR has taken varied approaches to speech related to totalitarian ideologies, applying a strict, exclusionary stance to Nazi glorification while adopting a more contextual, harm-based analysis for other symbols, particularly those tied to Communism or country-specific fascism. This is seen through the comparative spectrum of Vajnai v Hungary (2008) (red star), Fáber v Hungary (2012) (flag linked to the Arrow Cross Party) and Nix v Germany (2018) (Nazi symbols used on a public interest blog discussing racism in German government offices. This lack of uniform, principle-based reasoning across cases weakens legal predictability and the equitable application of free speech protections.

To complicate matters further, the rapidly evolving digital climate complicates the hate speech discussion predominantly due to the rise of private content moderation and regulatory outsourcing. The ECtHR's tolerance of vague restrictions has influenced and been influenced by digital regulation across Europe. Platforms now act as de facto speech regulators, often erring on the side of over-removal to avoid liability. The ECtHR has reinforced this model. In Delfi AS v Estonia (2015), it upheld the liability of a news portal for user-generated hate comments. In Sanchez v France (2023), it approved the criminal conviction of a politician for failing to delete hateful third-party comments on his Facebook page. As I argue "with these two cases, 'hate speech by proxy' is born, with liability imposed even on those not uttering the hate speech." Nevertheless, the ECtHR has yet to grapple with the full implications of this shift for free expression, particularly given the enormous power of online platforms in shaping public discourse.

In light of the above, the book argues that the ECtHR must recalibrate its approach to hate speech jurisprudence. This, in turn, must be grounded in a principled framework that reconciles the right to freedom of expression with the legitimate aim of combatting hate speech, which necessarily entails establishing a high threshold of harm. It must also take into account the implications of the rising digital agora of ideas, with its decisions, to date, being problematic. At present, the ECtHR often relies on expansive interpretations that categorise certain forms of expression as hate speech simply because they are offensive or insulting, without adequately demonstrating concrete societal harm.

Turning to International Human Rights Law and particularly Article 20(2) of the International Covenant on Civil and Political Rights as elaborated upon in the Rabat Plan of Action could be a starting point through which the ECtHR could reduce legal ambiguity and prevent the risk of excessive restriction. A solid extrapolation of what hate speech is and what harm the ECtHR attaches to it would ensure that only the most harmful forms of speech fall outside the protection of Article 10.

Accordingly, the ECtHR must be able to identify thresholds for prohibited speech, grounded in a sound and consistent definition. This must go beyond the binary 'grave' and 'less grave' distinction seen in Lilliendahl v Iceland (2020) and instead support a more nuanced model that protects expression while regulating genuinely harmful content. Such an approach would bring clarity and consistency to the ECtHR's jurisprudence, a critical requirement for both individuals seeking protection under the Convention and for Contracting States.

Furthermore, to justify restrictions, the ECtHR must employ a consistent and evidence-based definition, while also drawing from scholarly research to inform its analyses. As the book demonstrates, the ECtHR frequently invokes vague assertions regarding the societal harm of impugned speech without sufficiently substantiating its claims. For example, in Vejdeland and Others v Sweden (2012), the ECtHR upheld restrictions on the distribution of homophobic pamphlets on the grounds of their prejudicial content yet offered little in the way of empirical evidence to support its reasoning. A more rigorous engagement with academic literature on the nature and effects of hate speech, as well as its regulation, would enhance the ECtHR's ability to evaluate the necessity and proportionality of such limitations, tests which are required to be met under the limitation grounds of Article 10. Such evidence-based reasoning would strengthen the coherence of the ECtHR's jurisprudence by establishing clearer thresholds for the classification of hate speech, ensuring that its decisions are aligned with both the actual harms posed by particular expressions and the needs of democratic societies.

At its next opportunity, the ECtHR should begin engaging with the extensive body of scholarship on hate speech, which can provide crucial insights into how harm is conceptualised and how speech regulation may be effectively and proportionately applied. As a starting point, revisiting Fáber and Vajnai could serve as a foundation for rebuilding a more coherent and principled jurisprudence. Most importantly, if the ECtHR fails to reconsider its current stance, the continued endorsement of vague, viewpoint-selective national prohibitions, without a clear harm threshold grounded in empirical research, will increasingly undermine the integrity of European democracy and risk silencing dissenting and marginalised voices.

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Jonathan H. Adler] Eleventh Circuit Upholds For-Cause Removal for Administrative Law Judges

[Will the en banc court agree? Will the Supreme Court?]

Yesterday, in Walmart v. Chief Administrative Law Judge, a unanimous panel of the U.S. Court of Appeals rejected Walmart's challenge to constitutionality protecting Administrative Law Judges in executive branch agencies from removal without cause.

In an extensive and quite thorough opinion by Judge Hull, joined by Judges Jordan and Jill Pryor, the court concluded that the duties and authority exercised by ALJs are sufficiently constrained that limiting ALJ removal does not entrench upon executive power under Article II or otherwise prevent the President from fulfilling his obligation to "take care" that the laws are faithfully executed."

Here is the key portion of the opinion summarizing the court's analysis:

No doubt, the "general rule" is that under Article II the President has the "unrestricted" power to remove executive officers. See Seila Law, 591 U.S. at 215. To date, the Supreme Court has enumerated only two narrow exceptions to this Article II rule: (1) "one for multimember expert agencies that do not wield substantial executive power," id. at 218; see also Humphrey's Ex'r, 295 U.S. at 631-32, and (2) "one for inferior officers with limited duties and no policymaking or administrative authority," Seila Law, 591 U.S. at 218; see also Morrison, 487 U.S. at 691.

We are not concerned with the first exception. In the district court and on appeal, neither party previously asserted that ALJs are members of multimember expert agencies under Humphrey's Executor or single directors of independent agencies. See Seila Law, 591 U.S. at 213 (single Director of CFPB); Collins, 594 U.S. at 251 (single Director of FHFA).

As to the second exception, the parties still agree that the Department's ALJs are inferior officers properly appointed by the Attorney General. So the constitutional question becomes whether they have "limited duties and no policymaking or administrative authority" as required by the second exception. Seila Law, 591 U.S. at 218; Morrison, 487 U.S. at 691; see also Wilcox, 145 S. Ct. at 1415 (acknowledging "narrow exceptions" to the President's Article II removal power).

Under the second exception, the pivotal Article II inquiry remains whether the APA's § 7521(a) removal restriction unconstitutionally interferes with the President's necessary power to take care that the laws are faithfully executed. See Myers, 272 U.S. at 164; Morrison, 487 U.S. at 689-90. In other words, does the ultimate exercise of executive power remain within the purview of the President or those directly accountable to the President? See Morrison, 487 U.S. at 689-90.

After thorough consideration, and applying the Supreme Court's governing analysis and largely the same factors considered by other circuits, we conclude the APA's § 7521(a) removal restriction is constitutional . . .

The court adds:

In holding § 7521(a) constitutional, we respect the Constitution's carefully calibrated separation of powers. Even though the Constitution is silent about removal of executive branch officers, the Supreme Court has instructed that Article II's Take Care Clause and Appointments Clause grant the President the broad power to remove executive branch officers. But importantly here, the Constitution in Article II also explicitly grants Congress a say in how inferior officers, including the Department's ALJs, are appointed. The constitutional authority of Congress to vest the appointment of inferior officers implies authority to limit and regulate the removal of those inferior officers so appointed. Striking down § 7521(a)'s straightforward "good cause" removal restriction on inferior officers with such limited duties as ALJs would upset the Constitution's balance of governmental power.

I would expect that Walmart will seek review of this ruling, perhaps initially with a  petition for rehearing en banc, then followed by a petition for certiorari. This is a particularly liberal panel for the Eleventh Circuit, so an en banc petition would make some sense. On the other hand, Judge Hull's opinion is quite thorough, and other judges on the circuit might think that if any court is going to take the next step with regard to limitations on removal, it should be the Court at One First Street.

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