Eugene Volokh's Blog, page 76

[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Jonathan H. Adler] Does the Senate Reconciliation Bill Contain a Threat to Judicial Independence? Or Is It a Welcome Limit on Universal Injunctions?

[The Senate has adopted its own version of a provision designed to limit preliminary injunctions against the federal government when no bond is posted.]

Last month I noted a provision in the "Big, Beautiful Bill" (sic) that would place limits on the issuance of preliminary injunctive relief against the federal government. The provision was apparenly inspired (at least in part) by this Wall Street Journal op-ed.

Though largely a means to ensure compliance with FRCP 65(c), the provision may have also been overbroad and had a retroactive effect.

The Senate has adopted a similar measure, albeit one that is different in multiple respects. My co-blogger Ilya Somin notes Justice Clint Bolick's deep concerns about the provision here. Over at the Divided Argument substack, Samuel Bray offers a more sanguine take, calling the Senate provision a "vast improvement."

Here is the text of the Senate version:

No court of the United States may issue a preliminary injunction or temporary restraining order against the Federal Government (other than a preliminary injunction or temporary restraining order issued in a case proceeding under title 11, United States Code) if no security is given, in an amount proper to pay the costs and damages sustained by the Federal Government, when the injunction or order is issued pursuant to rule 65(c) of the Federal Rules of Civil Procedure after the date of enactment of this Act. No court may consider any factor other than the value of the costs and damages sustained when making its determination of the proper value of such security, and that determination shall be appealable upon issuance of the preliminary injunction or temporary restraining order under an abuse of discretion standard.

In Bray's view,

the Senate version is a dramatic improvement over the House version—it avoids the serious constitutional problems that were likely to doom the House bill, and it is more effective and harder to evade in requiring meaningful injunction bonds in suits against the federal government. The effect of that change will be to give more weight in the preliminary injunction calculus to the regulatory cost of preliminary injunctions to the federal government—not just in the current administration, but in future administrations, both Republican and Democratic.

That does not mean the provision is perfect. Bray also notes the effect of this provision (should it be adopted) will also depend on how it is interpreted and applied. It also remains to be seen whether this provision will be successfully included in the reconciliation bill. In any event, if this issue is of interest, Bray's analysis is definitely worth a read.

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[Jonathan H. Adler] Is the Business of the Roberts Court (Still) Business?

[My contribution to an interdisciplinary symposium on "Donald J. Trump, the Supreme Court, and American Constitutionalism"]

My article, "Is the Business of the Roberts Court (Still) Business?" has just been published in The Annals of the American Academy of Political and Social Science. Here is the abstract:

The Roberts court has long been characterized as a "probusiness" court, given the ostensible orientation of the court's Republican-appointed majority and assumptions that President Trump's appointments have magnified that orientation. But there are reasons to question this characterization. Quantitative analyses often fail to account for the relative importance of individual decisions, the broader legal context in which the court's decisions are made, or the ways in which decisions can alter or depart from preexisting legal baselines. I show that President Trump's appointments to the court have fairly consistently voted to restrain the power of administrative agencies, but they have not consistently supported outcomes that are beneficial to business. In cases involving state laws that may fragment or burden national markets, the Roberts court may actually be less sympathetic to business interests than it was prior to Trump's appointments.

The article is part of an interdisciplinary symposium edited by Lee Epstein and Rogers M. Smith on "Donald J. Trump, the Supreme Court, and American Constitutionalism." Other contributors to the symposium include Amanda Hollis-Brusky, Charles M. Cameron, Jonathan P. Kastellec, Adam Liptak, Rogers M. Smith, Gillian E. Metzger, Cristina M. Rodríguez, Olatunde Johnson, Terri Peretti, Linda Greenhouse, Vincent Phillip Muñoz, Rebecca L. Brown, Mitu Gulati, Keren Weinshall, and James L. Gibson.

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[Ilya Somin] How Trump's Imposition of Massive Tariffs is Repeating the "Ship Money" Abuses of King Charles I

[Like King Charles, he is abusing emergency powers to impose taxes without legislative authorization.]

King Charles I (NA)

 

Yesterday, there were massive nationwide "No Kings" protests against Donald Trump and his authoritarian tendencies. Like most political slogans, "No Kings" is an oversimplification. But it is in fact true that Trump is repeating many of the abuses of the British monarchs, which precipitated the English Civil War, and eventually the American Revolution.

The most obvious parallel is his use of detention, deportation, and imprisonment without due process, including targeting many legal immigrants who were never convicted of any crime. Similar practices by the British were among the major grievances that led to the American Revolution. They were also among the abuses of the Stuart monarchs of the 17th century that eventually led the British to curb royal authority.

A less widely recognized parallel between the Stuarts and Trump is that Trump is imitating King Charles in imposing taxes without legislative authorization, and in the process trying to convert an emergency power into a  tool that the executive can deploy anytime he wants. As I have explained previously, Trump is trying to use the the International Emergency Economic Powers Act of 1977 (IEEPA) - a relatively narrow delegation of emergency powers - to wage a massive trade war over issues that are in no way an emergency, and impose up to $2.2 trillion in new taxes on Americans. Two federal courts have ruled  (including one in a case brought by the Liberty Justice Center and myself) that IEEPA grants no such authority and it would be unconstitutional if it did, though the litigation continues on appeal.

This situation is eerily similar to King Charles I's abuse imposition of "Ship Money"  taxes, which helped precipitate the English Civil War. The Britannica website summarizes the relevant history:

Ship money… [was] a nonparliamentary tax first levied in medieval times by the English crown on coastal cities and counties for naval defense in time of war. It required those being taxed to furnish a certain number of warships or to pay the ships' equivalent in money. Its revival and its enforcement as a general tax by Charles I aroused widespread opposition and added to the discontent leading to the English Civil Wars.

After bitter constitutional disputes, Charles dismissed Parliament in 1629 and began 11 years of personal rule; during this time, deprived of parliamentary sources of revenue, he was forced to employ ship money as a financial expedient. The first of six annual writs appeared in October 1634 and differed from traditional levies in that it was based on the possibility of war rather than immediate national emergency. The writ of the following year increased the imposition and extended it to inland towns. The issue of a third writ in 1636 made it evident that Charles intended ship money as a permanent and general form of taxation. Each succeeding writ aroused greater popular discontent and opposition, and upon the issue of the third writ John Hampden, a prominent parliamentarian, refused payment.

His case, brought before the Court of Exchequer in 1637, lasted six months. The judges, headed by Sir John Finch (later Baron Finch), decided 7 to 5 in favour of the crown; but the highhanded opinions of Finch provoked widespread distrust of Charles's courts, whereas the narrowness of the decision encouraged further resistance…. In 1641, by an act of the Long Parliament, ship money was declared illegal.

Note the many parallels to our present situation: Like Trump, Charles I imposed massive taxes without congressional authorization, attempted to convert a narrow emergency power into "a permanent and general form of taxation," and provoked widespread resistance. And, like Trump, Charles I claimed he had an absolute, unreviewable prerogative to determine whether an emergency justifying the use of extraordinary authority existed. Trump claims he alone gets to decide whether there is an "emergency" and an "unusual and extraordinary threat" of the kind needed to invoke IEEPA. Similarly, King Charles I claimed he alone was entitled to determine whether there was  threat of invasion or naval attack of the kind that could justify imposition of ship money.

Reading Henry Parker's 1640 Leveller Tract against Ship Money, "The Case of Shipmoney Briefly Discoursed," gives me a strong sense of de ja vu. Parker was a leading contemporary critic of royal absolutism and defender of civil liberties and parliamentary rights.

Parker notes that "[t]he Quaere then is, whether the King bee sole Judge of the danger, and of the remedy, or rather whether he be so sole Judge, that his meere affirmation and notification of a danger foreseene by him at a distance, or pretended only to be foreseene, shall be so unquestionable, that he may charge the Kingdome thereupon at his discretion, though they assent not, nor apprehend the danger as it is forewarned."  Trump, too, is claiming to be the "sole Judge of the danger"  and asserting that his "mere affirmation" is enough to impose massive taxes any time he wants.

Parker also emphasized  "that in nature there is more favour due to the liberty of the subject, than to the Prerogative of the King, since the one is ordained only for the preservation of the other; and then to solve these knots, our dispute must be, what prerogative the people's good and profit will beare, not what liberty the King's absolutenes or prerogative may admit."  He also notes that "in this dispute it is more just that wee appeale to written lawes, than to the breasts of Kings themselves." In our situation, too, the liberty of the people must take precedence over the asserted prerogatives of the executive, and the latter must be bound by written law. The people must be free to trade with foreign nations, and free of arbitrary detention, unless, at the very least, the executive can prove by overwhelming evidence there is a genuine emergency in which written law authorizes him to use extraordinary power.

Parker further emphasizes that "questionlesse sole judgement in matters of State, does no otherwise belong to the King, than in matters of Law, or points of Theology. Besides, as sole judgement is here ascribed to the King, hee may affirme dangers to be foreseene when he will, and of what nature he will." The same is true for us. If the president can "affirme dangers to be foreseene when he will, and of what nature he will," and use them as pretexts to wield vast emergency powers, there is no end to the abuses of power that are likely to occur.

Parker also warns against simply relying on the King's word about there being a genuine emergency:

It is ridiculous also to alledge… that it is contrary to presumption of Law to suspect falsity in the King…. Nay there is nothing more knowne, or universally assented to than this, that Kings may be bad; and it is more probable and naturall that evill may bee expected from good Princes, than good from bad. Wherefore since it is all one to the State, whether evill proceed from the King mediately or immediately, out of malice, or ignorance. And since wee know that of all kindes of government Monarchicall is the worst, when the Scepter is weilded by an unjust or unskilfull Prince, though it bee the best, when such Princes as are not seduceable (a thing most rare) reigne, it will bee great discretion in us not to desert our right in those Lawes which regulate and confine Monarchy, meerly out of Law-presumption, if wee must presume well of our Princes, to what purpose are Lawes made?

The parallel to our own situation is obvious. Presidents too may be "bad," and they too often try to exploit real and imagined emergencies to make dangerous power grabs. Politicians, like princes, are rarely immune to temptation and "seduction," and therefore - for us, too 'it will bee great discretion in us not to desert our right in those Lawes which regulate and confine" the executive power.

The American Founding Fathers, of course, were greatly influenced by the British experience, and shared many of the concerns of Parker and other English opponents of royal absolutism. For that reason, they made sure the power to impose taxes (including tariffs) was given to the legislature, and confined emergency powers to narrow circumstances (e.g. - the writ of habeas corpus can only be suspended "when in Cases of Rebellion or Invasion the public Safety may require it" and "invasion" was understood narrowly as a military attack, not cross-border smuggling or illegal migration). Nor did they trust to the good will and discernment of the executive to decide for himself when extraordinary powers should be wielded. As James Madison (as if echoing Henry Parker) famously warned, "Enlightened statesmen will not always be at the helm." At least for originalist judges, this history - and its influence on the Founders - should also bolster the legal case against Trump's tariffs.

The British eventually defeated Charles I and curbed their monarchs' absolutist pretensions, albeit only after much oppression and bloodshed. The Founding Fathers learned from that awful experience. We would do well to learn from it, as well, and act accordingly.

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[Eugene Volokh] N.Y. Court Holds Mayor Adams Likely Improperly "Negotiated Away Sanctuary City Protections for a Dismissal of His Ongoing Criminal Prosecution"

From New York trial court judge Mary Rosado's opinion Thursday in Council of City of N.Y. v. Adams (see also N.Y. Times [Luis Ferré-Sadurní], Judge Blocks ICE Plan to Open Rikers Office Indefinitely):

This case, at its essence, seeks to maintain the rule of law. Plaintiff-Petitioner seeks to nullify an Executive Order issued allegedly because Mayor Adams negotiated away sanctuary city protections for a dismissal of his ongoing criminal prosecution. On January 31, 2025, Mayor Adams met with President Donald J. Trump's Deputy Attorney General, Emil Bove ("Mr. Bove"), to discuss Mayor Adams' ongoing criminal prosecution's impact on his ability to "work[] with the federal government on important issues of immigration enforcement" Danielle R. Sassoon, Esq., Acting United States Attorney for the Southern District of New York, attended the January 31, 2025 meeting, and said "Adams'[] attorneys repeatedly urged what amounted to a quid pro quo, indicating that Adams would be in a position to assist with [immigration] enforcement priorities only if the indictment were dismissed."

On February 3, 2025, Mayor Adams' criminal defense attorney, Alex Spiro, wrote to Mr. Bove that Mayor Adams' criminal prosecution will "become increasingly problematic as the Trump administration seeks to aggressively enforce immigration laws and remove undocumented immigrants …. [T]he federal government cannot possibly rely on Mayor Adams to be a fully effective partner in all situations in ongoing public-safety missions while he is under federal indictment …." Mr. Spiro further wrote that Mayor Adams' "abilities to exercise his powers have also been complicated by his indictment" including his powers to "prevent[] the Office of the Corporation Counsel from litigating challenges to immigration enforcement, prevent[] appointed city employees from taking public stances against enforcement efforts, [and to] re-open[] the ICE office on Rikers Island …." On February 10, 2025, Mr. Bove directed federal prosecutors to dismiss without prejudice the pending criminal charges against Mayor Adams.

On February 13, 2025, just after meeting President Donald J. Trump's "Border Czar," Thomas Homan ("Mr. Homan"), Mayor Adams announced he would issue an executive order allowing federal immigration authorities on Rikers Island. One day later, on February 14, 2025, Mr. Homan appeared alongside Mayor Adams on Fox & Friends, where he stated if Mayor Adams did not deliver "I'll be back in New York City, and we won't be sitting on the couch. I'll be in his office, up his b ___, saying, 'Where the hell is the agreement we came to?'" That same day, the Department of Justice filed a motion to dismiss all pending criminal charges against Mayor Adams.

While the motion to dismiss was pending, numerous deputy mayors resigned from Mayor Adams' administration. On March 20, 2025, First Deputy Mayor Mastro was appointed by Mayor Adams. On March 24, 2025, Mayor Adams issued Executive Order No. 49. This order provides First Deputy Mayor Mastro shall "[r]eport directly to the Mayor." It also delegated to First Deputy Mayor Mastro the authority to "[p]erform any function, power or duty of the Mayor in negotiating, executing and delivering any and all agreements, instruments and any other documents necessary or desirable to effectuate any of the matters" related to public safety.

On April 2, 2025, United District Judge Dale Ho dismissed the criminal charges with prejudice, writing "[e]verything here smacks of a bargain: dismissal of the [i]ndictment in exchange for immigration policy concessions." Judge Ho further wrote the suggestion "that public officials may receive special dispensation if they are compliant with the incumbent administration's policy priorities … is fundamentally incompatible with the basic promise of equal justice under law." Ultimately, Judge Ho found that he "cannot force the Department of Justice to prosecute a defendant" and did not have the authority "to appoint an independent prosecutor" which precluded him from denying the Department of Justice's motion to dismiss. Six days later, on April 8, 2025, First Deputy Mayor Mastro issued Executive Order No. 50, which authorized the Department of Correction to enter a Memorandum of Understanding with federal law enforcement agencies allowing them to maintain office space on Department of Correction property, specifically Rikers Island.

The court concluded that Mayor Adams' actions likely violated N.Y. conflict of interest law:

The Court finds there has been a requisite showing of a likelihood of success on the merits. New York City Charter § 2604(b)(3) provides that "[n]o public servant shall use or attempt to use his or her position as a public servant to obtain any … privilege or other private or personal advantage, direct or indirect, for the public servant or any person or firm associated with the public servant." Pursuant to the Court of Appeals, "[pjublic policy forbids the sustaining of a municipal action [by] a member of the municipal governing body … which directly or immediately affects him individually" and in such a case the government action must be declared null and void. The test is "not whether there is a conflict, but whether there might be." …

Plaintiff-Petitioner has shown a likelihood of success in demonstrating, at a minimum, the appearance of a quid pro quo whereby Mayor Adams publicly agreed to bring Immigration and Customs Enforcement ("ICE") back to Rikers Island in exchange for dismissal of his criminal charges. This showing is grounded in (1) Mayor Adams' public statements; (2) Mayor Adams' criminal defense attorney's written overtures to the Department of Justice; (3) the temporal proximity between these overtures and Mr. Bove's directive to dismiss the criminal charges against Mayor Adams; (4) statements from former Acting United States Attorney Danielle R. Sassoon and Assistant United States Attorney Hagan Scotten; (5) Mr. Homan's statement that he will "be in [Mayor Adams'] office, up his b ___, saying, 'Where the hell is the agreement we came to?'" and (6) the written findings by United States District Judge Dale Ho.

Although Defendants-Respondents deny any quid pro quo in conclusory fashion, this is insufficient, and almost expected. As wisely stated by Justice Anthony Kennedy, the quid pro quo need not be stated in express terms "for otherwise the law's effect could be frustrated by knowing winks and nods. The inducement from the official is [violative] if it is express or if it is implied from his words and actions …." Based on the record, Plaintiff-Petitioner has made a sufficient showing of an implied, if not an express quid pro quo based on Mayor Adams, Mr. Spiro, Mr. Bove, and Mr. Homan's words and actions.

The issue, then, is whether Mayor Adams successfully recused himself from the execution of Executive Order No. 50, and whether the delegation to First Deputy Mayor Mastro cleansed the conflict and/or appearance of any conflict…. [Under New York precedents,] simply delegating oversight and management of a process to the conflicted official's underling is not enough to cleanse a conflict under New York City Charter § 2604(b)(3). This is especially the case where First Deputy Mayor Mastro is not independent, but was personally appointed by Mayor Adams, and pursuant to Executive Order No. 49, directly reports to Mayor Adams.

To be clear, it is undisputed that Mayor Adams admitted he did not recuse himself. Juliet Papa, a reporter with 1010 WINS asked Mayor Adams "why he recused himself" to which Mayor Adams responded "I did not recuse myself. People play around with terminologies. I delegated. I'm the mayor." However, assuming, arguendo, that Mayor Adams did recuse himself, [New York law] instructs that his limited and belated recusal is insufficient. On February 10, 2025, Mr. Bove directed the criminal charges against Mayor Adams be dropped, and just three days later, on February 13, 2025, Mayor Adams, in a joint statement with Mr. Homan, stated on national television his intention to bring ICE back to Rikers. A public official with the appearance of a conflict of interest cannot cleanse the conflict by recusing himself after making it publicly known his desired outcome and delegating to his deputy. Nor have Defendants-Respondents stated that they sought an advisory opinion from the Conflicts of Interest Board prior to engaging in their delegation-execution spree, nor have they produced any advisory opinion in opposition to the application.

The Defendants-Respondents' hyperbolic argument that if Mayor Adams cannot delegate to First Deputy Mayor Mastro, then there is nobody he can delegate to, is without merit. First Deputy Mayor Mastro, although an accomplished and highly educated attorney, is not independent of Mayor Adams and therefore cannot be considered impartial and free from Mayor Adams' conflicts. First Deputy Mayor Mastro reports directly to Mayor Adams, is appointed by Mayor Adams, and can be fired by Mayor Adams. He is Mayor Adams' agent. Based on the foregoing, the Court finds that Plaintiff-Petitioner has shown a likelihood of success in obtaining a declaration that Executive Order No. 50 is null and void.

The Court finds that Plaintiff-Petitioner has demonstrated imminent and irreparable harm for purposes of obtaining a preliminary injunction. The harm to intangible assets such as damage to reputation, loss of goodwill, and brand tarnishment are routinely found sufficient to grant injunctive relief. New York City, which thrives as a global hub due in large part to its reputation as being a welcoming home for immigrant communities from around the world, risks having this goodwill and invaluable reputation irreparably damaged as a result of an Executive Order borne out of Mayor Adams' alleged conflict of interest. New York City, through legislation and decades of policy, has established a reputation as a "Sanctuary City." This reputation, and the goodwill built from decades of policy decisions, and which have provided New Yorkers with numerous intangible cultural and economic benefits, risks being irrevocably tarnished. The harm to New York City's reputation as a Sanctuary City, and the goodwill with numerous communities that flows from that reputation, is best preserved through a preliminary injunction prohibiting Defendants-Respondents from acting on Executive Order No. 50.

Moreover, the imminent threat of the loss of public trust in government institutions serves as a basis for injunctive relief. The Court of Appeals has held that "the public's trust in government" is integral to "our constitutional design." "Retaining public trust is essential for our government to function effectively and secure the freedom of its citizens, and thus is a paramount State interest." "[D]emocracy cannot thrive and institutions cannot function where the public perceives that government actors use their power to serve their personal interests rather than those of their constituents." …

Plaintiff Petitioner and the amici curiae have presented evidence of the loss of trust and ongoing harms being faced by immigrant New Yorkers and New York government organs. For example, victims of domestic violence are afraid to call the police for fear of incarceration and deportation. Undocumented New Yorkers fear cooperation with local law enforcement, as any interaction could lead to being taken into ICE custody. Children who have undocumented parents miss school. Undocumented individuals who are sick forego medical treatment. But individuals who wish to live here legally and appear for Court dates are apparently being taken into custody. The loss of trust from communities at large in government institutions and local law enforcement, demonstrated by Plaintiff-Petitioner and the amici curiae, has and will continue to have grave and irreparable consequences for New York City.

The Court is also cognizant of threat of irreparable harm in a more concrete sense—that is the threat to detained New York State and City residents and their dignity. There is ample evidence that there is already a serious, imminent and ongoing risk that immigrant New Yorkers, and even foreign tourists to New York City, are being wrongfully detained. There are documented reports of individuals being deported to stranger third-countries, and New York City residents are taken into custody for expressing political views contrary to the federal government's agenda. Residents who are here seeking asylum are being deported to countries they claim to have previously faced persecution for their sexuality, politics, or religion. And this concrete harm flows to the Plaintiff-Petitioner….

This injunction does not prohibit New York City from cooperating with the federal government in deportation proceedings for undocumented individuals who are covered by judicial warrants and orders signed by federal or immigration judges….

ORDERED that Defendants-Respondents, their agents, and all other New York City government officials, officers, personnel and agencies are prohibited from taking any steps towards negotiating, signing, or implementing any Memoranda of Understanding with the federal government regarding federal law enforcement presence on Department of Correction property until the final resolution of this proceeding ….

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[Jonathan H. Adler] Did Justice Barrett Flip in PennEast Pipeline?

[An interesting tidbit from today's NYT profile of Justice Amy Coney Barrett]

Today's New York Times features an extensive profile of Justice Amy Coney Barrett by Jodi Kantor. The article opens with a tidbit that I had not seen reported previously.

As President Trump was leaning toward appointing Amy Coney Barrett to the Supreme Court five years ago, some advisers shared doubts about whether she was conservative enough. But he waved them away, according to someone familiar with the discussions. He wanted a nominee religious conservatives would applaud, and with an election approaching, he was up against the clock.

Soon after Justice Barrett arrived at the court she began surprising her colleagues. Chief Justice John G. Roberts Jr. assigned her to write a majority opinion — among her first — allowing the seizure of state property in a pipeline case, according to several people aware of the process. But she then changed her mind and took the opposite stance, a bold move that risked irritating the chief justice.

The case in question was PennEast Pipeline Co. v. New Jersey. At the time I speculated that Justice Barrett may have lost the majority in that case. What the NYT reports, however, is that she did not lose the majority so much as she abandoned it by changing her position (and, in the process, getting it right).

PennEast was an interesting case in many ways. Among other things, it produced an interesting lineup. The Chief wrote for the Court, joined by Justices Breyer, Alito, Sotomayor, and Kavanaugh. The dissenters were Justices Barrett, Thomas, Kagan, and Gorsuch, and in my view they had the better of the argument, doctrinally and prudentially. (Indeed, if all you told me about a case was this lineup, I'd be inclined to assume the dissenters got it right.)

For those who forget, Justice Barrett's dissent began:

A straightforward application of our precedent resolves this case. Congress passed the Natural Gas Act in reliance on its power to regulate interstate commerce, and we have repeatedly held that the Commerce Clause does not permit Congress to strip the States of their sovereign immunity. Recognizing that barrier, the Court insists that eminent domain is a special case. New Jersey has no sovereign immunity to assert, it says, because the States surrendered to private condemnation suits in the plan of the Convention. This argument has no textual, structural, or historical support. Because there is no reason to treat private condemnation suits differently from any other cause of action created pursuant to the Commerce Clause, I respectfully dissent.

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[Josh Blackman] Today in Supreme Court History: June 15, 1804

6/15/1804: The 12th Amendment is ratified.

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[Ilya Somin] GOP Senate Version of the Big Beautiful Bill Includes an Ugly Attack on Courts' Ability to Protect Constitutional Rights

[It requires litigants seeking preliminary injunctions against illegal government actions to post potentially enormous bonds.]

[image error]

(AI-generated image.)

A provision inserted into the Senate GOP version of Trump's "Big Beautiful Bill" would, if enacted, pose a serious threat to federal courts' ability to protect your constitutional rights. It does so by requiring litigants seeking a preliminary injunction against a federal government policy to post potentially enormous bonds.

Arizona Supreme Court Justice Clint Bolick - who is also an experienced public interest litigator, having served as Director of Litigation at the libertarian Institute for Justice  and VP for Litigation at the Goldwater Institute - has an excellent article outlining the danger this provision poses:

[The Senate bill] targets temporary restraining orders and preliminary injunctions. These are rulings that demand that the government halt the enforcement or implementation of a policy immediately, pending the final outcome of the case, if the judge concludes that it is likely the plaintiffs will prevail against the government in the end.

Just imagine, for instance, that during Covid, courts could not stop executive orders closing down houses of worship unless millions of dollars were posted in bonds. Or an executive order confiscating guns. The basic idea of a temporary restraining order or preliminary injunction is to prevent the damage to the rights and well-being of citizens from the government carrying out an action or policy that is likely to be found illegal or unconstitutional.

The new Senate version turns that logic on its head, instead seeking to protect the government from any costs that might be incurred from citizens asserting their rights.

This new version no longer tries to take away the power to enforce rulings through contempt. Nor does it apply retroactively, which could have caused chaos and brought settlements in many old cases into doubt. But it imposes a requirement that plaintiffs suing the federal government post a bond "in an amount proper to pay the costs and damages sustained by the Federal Government." Crucially, "No court may consider any factor other than the value of the costs and damages sustained." That could mean that they can't consider the potential damage to the plaintiffs from the government's actions, nor can they consider the plaintiffs' ability to pay.

Requiring potentially massive bonds to enjoin government action could prevent many or even most such lawsuits from being filed in the first place, because few would have the means to pay upfront. That is especially true in cases involving sweeping policies where the government could claim "costs" in the billions. Only state governments could conceivably post bonds in that amount, though they would also balk at the potential hit to their budgets.

This means that many parties would have no choice but accept violations of their rights rather than seek legal redress, severely undermining the Constitution.

As Justice Bolick explains, this Senate provision is actually worse than the previous House version of this idea, which targeted judges' contempt powers, though the latter was also bad, and likely unconstitutional. My Cato Institute colleague Walter Olson makes additional points along the same lines.  As he notes, if this provision passes, the government could impose even blatantly illegal and unconstitutional policies for long periods of time, unless and until litigation reaches a final conclusion. That could inflict grave harm on the victims of illegality. Consider media subject to illegal censorship during a crucial news cycle, illegally deported immigrants, people imprisoned without due process, and more.

Right now, Republicans are seeking to enact these restrictions in order to block injunctions constraining a GOP administration's policies. But, as Bolick notes, under a more left-wing  administration the same tool can easily be turned against rights conservatives value. Consider a left-wing president who targets gun rights or religious liberty rights, or tries to censor speech DEI activists consider offensive.

Ultimately, it is more important to ensure the vast powers of the federal government cannot be used to undermine the Constitution and take away our rights than to ensure an administration can swiftly implement all its preferred policies. And if a rogue district court does impose an injunction improperly, higher courts can quickly stay or overturn it, as has happened a number of times in recent months.

If this Senate provision gets enacted, there is a chance courts might invalidate as an unconstitutional assault on the power of judicial review - which it is. But it would be better if Congress does not go down this dangerous road in the first place.

NOTE: Clint Bolick was one of my superiors at the Institute for Justice, when I worked there as a law student clerk in the summer of 1998.

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[Josh Blackman] Today in Supreme Court History: June 14, 1810

6/14/1810: Justice Ward Hunt's birthday.

Justice Ward Hunt

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[Eugene Volokh] First Amendment Challenge to Suspension from University of Texas for Pro-Palestinian Protest Can Go Forward

From today's opinion by Judge Robert Pitman (W.D. Tex.) in Qaddumi v. Hartzell:

Qaddumi challenges his suspension from the University of Texas at Austin ("UT"), where Defendants currently work or previously worked as administrators, as a violation of his constitutional rights. Qaddumi was involved in planning a protest, to include a "walk out of class," "guest speaker," and two "teach-in[s]", about ongoing violence in Gaza in April 2024 as a member of the Palestine Solidarity Committee ("PSC").

He alleges these planned protest activities were peaceful in nature, but university officials claimed that protests held by aligned groups at "Columbia, Rutgers, and Yale" were "creating campus encampments" (apparently referencing the Students for Justice in Palestine ("SJP") student group, a separate entity with groups on those campuses) and have disrupted university operations to such a degree that they foresaw this, too, would disrupt university activities. UT issued a directive to students ordering them not to hold the event, or to face discipline under the university rules. Qaddumi alleges the PSC responded to UT's directive and explained that the planned protest was peaceful and educational in nature, and that they had no plans for setting up an overnight "encampment."

Separately, in March 2024, the Governor of Texas issued an executive order defining PSC as a "radical" organization and defining as "antisemitic" phrases that PSC uses at protests, such as "from the river to the sea, Palestine will be free," and stating views many of its members hold, such as saying that Israel's current policies compare to those of Germany during World War II, are also antisemitic. The executive order instructed UT to "ensure that [its] policies are being enforced and that groups such as the [PSC] and [SJP] are disciplined for violating [UT] policies."

Qaddumi, along with other students, proceeded with the April 2024 protest despite the directive to cancel it. Members of the UT Police Department arrived at the protest and called for students to disperse their protest, and Qaddumi alleges he relayed their instructions to the crowd. On accusations of criminal trespass, UT police officers subsequently arrested Qaddumi among other students. After his arrest, Qaddumi alleges he and his fellow protesters were released and charged with no crimes.

At the protest, Qaddumi alleges that counter-protesters were present holding Israeli flags and signs criticizing Palestine, who were not arrested. Qaddumi also alleges that students have held similar protests in the past who were not arrested or subject to a police response, such as an August 2020 demonstration in response to the murder of George Floyd; an April 2023 demonstration about compensation for graduate student work; and an April 2024 protest about the university firing staff members focused on advancing diversity and inclusion.

In July 2024, UT initiated disciplinary proceedings against Qaddumi, alleging that his participation in the April protests violated UT's institutional rules. In the proceedings, Qaddumi defended his actions and explained that the allegations by UT against him relied on statements made by students and groups with which he had no affiliation. UT sought his suspension for three semesters. A September decision by UT's Student Conduct Panel found Qaddumi had failed to comply with a university directive but found that Qaddumi should be subject to a deferred suspension, meaning he could remain at UT.

But subsequently, UT's Student Conduct and Academic Integrity ("SCAI") office appealed the decision not to suspend Qaddumi to a University Appellate Officer. The University Appellate Officer issued a decision in October 2024 finding that because Qaddumi both engaged in inciting conduct and failed to comply with a directive, he would be suspended from UT for one year, until August 2025. This decision is final and not administratively appealable. Until then, Qaddumi cannot attend class, visit campus, or earn credits toward his degree….

The court allowed Qaddumi's First Amendment claim to go forward as to his request for an injunction (though it found the defendants had qualified immunity as to Qaddumi's damages claim). The court concluded that it wasn't clear to what extent Tinker v. Des Moines Indep. School Dist. (1969), which held that K-12 schools have power to restrict substantially disruptive student speech, applies to public universities. But it reasoned:

Even should Tinker be assumed to apply to universities, (and as described above, the Fifth Circuit and the Supreme Court have not held as much), its application must be consistent with the characteristics of the university environment. Healy v. James (1972) (First Amendment analysis at the university level must be done "in light of the special characteristics of the environment in the particular case" as the Supreme Court "made clear in Tinker"). The Supreme Court has long recognized that universities are "vital centers for the Nation's intellectual life," to the extent that "danger … from the chilling of individual thought and expression" "is especially real in the University setting, where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition." In other words, what may be a substantial disruption in a secondary school environment may not be a substantial disruption in a university environment; what may disrupt a secondary school could even be fundamental to universities.

The characteristic of universities as an environment for vigorous debate may be "outcome determinative" when deciding whether a restriction on student speech is viewpoint discrimination versus a valid restriction of foreseeable disruption to campus activities. Also, the Supreme Court has held that a state university cannot expel a student in retaliation for engaging in an activity protected by the First Amendment. See Papish v. Bd. of Curators of the Univ. of Mo. (1973)….

Qaddumi has plausibly pled a claim challenging his suspension as retaliatory and as viewpoint discrimination. Among other facts, Qaddumi alleges that (1) the Governor instructed Defendants to target protests that supported Palestine with restrictions and discipline, and Defendants sought to do so by forbidding Qaddumi's protest and subsequently suspending Qaddumi; (2) Qaddumi was suspended not because of his actions alone, but because of actions of other students who share similar political sentiments but no other affiliation; and (3) other students on the scene of the protest, who did not have the same views as Qaddumi, were not similarly disciplined, nor have other similar protests on different topics historically resulted in UT forbidding protests and subsequently suspending students…. Qaddumi has offered … evidence [of retaliatory motive] by identifying counter-protestors on the scene who were not disciplined. Also, Qaddumi alleges that UT has permitted students to similarly protest about other topics, like UT workers' conditions and racial justice, without later suspending them for protesting….

Qaddumi's allegations show a heightened environment amongst UT officials surrounding disciplining students for protesting in support of Palestinian rights. Qaddumi alleges that UT officials were motivated to restrict the speech of pro- Palestine student groups in particular, because Governor Abbott ordered that universities adopt policies that limit pro-Palestine protests and student groups, such as disciplining pro-Palestine student groups and banning students from making certain statements about Israel's policies toward Palestine. This Court has already recognized that the Governor's order to universities likely violated the First Amendment as a form of viewpoint discrimination, see Students for Just. in Palestine v. Abbott(W.D. Tex. 2024) ("GA-44-compliant university policies [likely] impose impermissible viewpoint discrimination."), and Qaddumi has pled that university officials derived their motive to suspend him from that order….

Also, Qaddumi pleads that he was not a member of the SJP, but rather a distinct organization, the PSC. Qaddumi alleges the PSC and SJP share political views but no other affiliation, and that they do not employ the same tactics, nor do they typically collaborate. Qaddumi alleges that UT officials cited past protests by the SJP as motivation for their decision to suspend Qaddumi. In other words, Qaddumi alleges he was suspended at least in part because of the prior actions of a student group of which he is a not a member but only shares similar views. Overall, Qaddumi's allegations suffice to create a plausible inference that retaliation for his protected speech and viewpoint discrimination caused his suspension in violation of the First Amendment.

Joseph Y. Ahmad (Ahmad Zavitsanos & Mensing, PLLC) and Brian Rolland McGiverin represent plaintiff.

 

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