Eugene Volokh's Blog, page 78

[Eugene Volokh] Judge Grants TRO Against President Trump's Federalizing California National Guard [UPDATE: Stay Application Filed]

[The order is stayed until noon tomorrow (June 13), and I expect the federal government will ask the Ninth Circuit and, if necessary, the Supreme Court for a further emergency stay.]

[Originally posted at 8:58 pm, bumped up to note stay materials.]

From Judge Charles Breyer (N.D. Cal.) just now in Newsom v. Trump; I expect the:

On June 6, 2025, the federal government initiated immigration raids across the City of Los Angeles. Protests swiftly followed, and some individuals involved in those protests were unruly and even violent. State and local law enforcement responded. The following day, President Trump ordered that members of the California National Guard be federalized, and thereupon assumed control of those forces.

At this early stage of the proceedings, the Court must determine whether the President followed the congressionally mandated procedure for his actions. He did not. His actions were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution. He must therefore return control of the California National Guard to the Governor of the State of California forthwith.

The judge's order:

Defendants are temporarily ENJOINED from deploying members of the California National Guard in Los Angeles. Defendants are DIRECTED to return control of the California National Guard to Governor Newsom. The Court further STAYS this order until noon on June 13, 2025.

UPDATE 6/12/2025 9:08 pm: A notice of appeal to the Ninth Circuit has already been filed, though I also expect an emergency stay motion to come as well.

UPDATE 6/12/2025 10:04 pm: The emergency motion for a stay has been filed in the Ninth Circuit; the Introduction:

The district court has entered an unprecedented order enjoining the President
from deploying National Guardsmen to protect federal officers from ongoing violent
protests and attacks, and to protect federal property from further damage. That order
is an extraordinary intrusion on the President's constitutional authority as
Commander in Chief to call forth the National Guard as necessary to protect federal
officials, as well as his statutory authority under 10 U.S.C. § 12406 to mobilize state
National Guards into federal service. This Court should immediately stay the order
pending appeal.

The President is specifically authorized by statute to deploy the National Guard
when "there is a rebellion or danger of a rebellion against the authority of the
Government of the United States" or "the President is unable with the regular forces
to execute the laws of the United States." 10 U.S.C. § 12406(2)-(3). Both prongs
apply here: the violent actions taken by large numbers of protestors, whom local lawenforcement officials have been unable effectively to control, constitute a rebellion
against federal authority, and have impeded the ability of Immigration Customs and
Enforcement (ICE) and other federal officials to enforce federal law. The President
accordingly mobilized the National Guard "to temporarily protect ICE and other
United States Government personnel who are performing Federal functions,
including the enforcement of Federal law, and to protect Federal property, at locations where protests against these functions are occurring or are likely to occur
based on current threat assessments and planned operations."

The district court concluded that the statutory conditions were not satisfied.
But that sort of second-guessing of the Commander in Chief's military judgments is a
gross violation of the separation of powers. Nearly 200 years ago, the Supreme Court
made clear that these judgment calls are for the President to make—not a Governor,
and certainly not a federal court. See Martin v. Mott, 25 U.S. 19 (12 Wheat.) 19 (1827).
In any case, even if reviewable, the President had more than ample grounds to
determine that the riots rose to the level of a "danger" of rebellion, and that state and
local law enforcement were "unable" to sufficiently protect federal personnel and
property.

The district court also found that the President's memorandum was not issued
"through" the Governor of California within the meaning of 10 U.S.C. § 12406, but
that too was mistaken. The President's memorandum directed the Secretary of
Defense to effectuate the federalization of National Guard troops, and the Secretary
issued memoranda to the Adjutant General of the California National Guard, who
acts for the Governor for these purposes, to transfer authority over the Guard from
the state to the federal government. Nothing in the statute requires the Governor's
consent to mobilization―a legal theory that would have empowered the Governor of
Arkansas to block President Eisenhower from deploying the National Guard to
desegregate Arkansas' public school. In any event, any failure to issue an order "through" the Governor—who indisputably had contemporaneous notice of the
order, and no legal authority to block it—would not support this extraordinary
injunction entered by the district court.

The district court's order improperly impinges on the Commander in Chief's
supervision of military operations, countermands a military directive to officers in the
field, and puts federal officers (and others) in harm's way. The balancing of harms
thus weighs strongly in favor of interim relief pending appeal and/or mandamus, and
this Court should also grant an immediate administrative stay pending consideration
of this motion. Defendants-appellants respectfully request that this Court act on the
motion no later than 9:00 pm PST today, June 12, 2025, to permit the Solicitor
General to seek immediate relief in the Supreme Court, if necessary, before the
expiration of the temporary stay issued by the district court at noon tomorrow, June
13.

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[Stephen Halbrook] Second Amendment Roundup: Removing Silencers from the NFA

[The NFA is a revenue measure and deleting silencers would not violate the Byrd Rule.]

As passed by the House, the FY25 reconciliation bill, H.R. 1, § 112029, would amend the National Firearms Act (NFA), by striking "any silencer" from the definition of "firearm." It also provides that "there shall be levied, collected, and paid on firearms" transferred or made a tax of certain amounts on various firearms, including "$0 for each firearm … in the case of a silencer."  The effect would remove silencers from taxation and registration under the NFA, which is chapter 53 of the Internal Revenue Code.  The bill is now pending in the Senate.

Opponents wrote a letter on June 5 to Mike Crapo, Chairman, Senate Committee on Finance, and Chuck Grassley, Chairman, Senate Committee on Judiciary, seeking to strike the amendment, which would "eliminate excise taxes on firearm silencers and remove their regulatory structure under the National Firearms Act (NFA)…."  It asserts that the amendment violates the Congressional Budget Act – know as the "Byrd Rule" – under which "non-budgetary provisions cannot be included in reconciliation legislation."  It also makes policy arguments not relevant to that issue.

The pertinent provision of the Byrd Rule provides that a reconciliation bill "shall be considered extraneous if such provision does not produce a change in outlays or revenues…."  2 U.S.C. § 644(b)(1)(A).  Yet the only effect of the amendment would be to produce a change in revenues, by lowering revenues.  The current NFA tax on transfer or making of a silencer of $200 would be stricken.

As noted, the June 5 letter opposing the amendment also makes policy arguments.  It suggests that silencers were include in the NFA as passed in 1934 because Congress determined they did not have "a legitimate lawful use."  It identifies three instances in which silencers have been used "in crimes across the country."  And it claims that in 2023 numerous silencers were "recovered and traced from violent crime scenes."  According to Axios, Senate Minority Leader Chuck Schumer is leading opposition in the Senate.

As a factual matter, silencers were barely mentioned in the 1934 Hearings of the House Ways and Means Committee which reported the bill that was enacted as the NFA.  Moreover, studies show that silencers are rarely used in violent crimes.  This is documented in my article The Power to Tax, The Second Amendment, and the Search for Which "'Gangster' Weapons" To Tax, 25 Wyoming Law Review 149 (2025).

Moreover, removing silencers from the NFA in no way deregulates them.  In the Gun Control Act (GCA), the term "firearm" is defined to include a silencer or muffler, rendering them subject to all of the GCA restrictions, including checks under the National Instant Criminal Background Check System (NICS) and a prohibition on possession by felons.

But the only issue here is whether the amendment would violate the Byrd Rule.  That it does not is verified by Supreme Court precedent on the NFA itself.  In Sonzinsky v. United States, 300 U.S. 506 (1937), the Court found the NFA on its face to be a revenue measure and nothing more, explaining that it contained no "regulatory provisions related to a purported tax" constituting a "penalty resorted to as a means of enforcing the regulations," "nor is the subject of the tax described or treated as criminal by the taxing statute…."  It "contains no regulations other than the mere registration provisions, which are obviously supportable as in aid of a revenue purpose. On its face it is only a taxing measure."

Moreover, Sonzinsky refused to speculate on any reasons why Congress might have taxed certain firearms: "Inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of the courts…. They will not undertake, by collateral inquiry as to the measure of the regulatory effect of a tax, to ascribe to Congress an attempt, under the guise of taxation, to exercise another power denied by the Federal Constitution."

Sonzinsky was reaffirmed as a valid precedent as late as National Federation of Independent Business v. Sebelius, 567 U.S. 519, 573 (2012).  Quoting Sonzinsky, Chief Justice Roberts added that the fact that Obamacare "seeks to shape decisions about whether to buy health insurance does not mean that it cannot be a valid exercise of the taxing power."

The bottom line: the NFA is a pure taxing measure, currently a silencer is taxed as a "firearm" in the NFA, the amendment would remove a silencer from the definition of a firearm, and that would remove it from being taxed under the NFA.  Nothing more.  The amendment would thus not be "extraneous" under the Byrd Rule because it would "produce a change in … revenues."

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[Eugene Volokh] Federal Court in Colorado Explains TRO Against Immediate Deportation of Mohamed Soliman's Family, Transfers Case to Western District of Texas

[Soliman is the man "charged with a horrific June 1, 2025 antisemitic fire-bombing attack 'against a peaceful gathering of individuals commemorating Israeli hostages.'"]

From today's decision by Judge Gordon Gallagher (D. Colo.) in Dvortsin v. Noem:

Ms. El Gamal is the spouse of Mohamed Soliman, a man accused of and charged with a horrific June 1, 2025 antisemitic fire-bombing attack "against a peaceful gathering of individuals commemorating Israeli hostages." This Court is aware that Mr. Soliman was taken into custody on June 1, 2025, at the scene of the attack. At some point on June 3, 2025, immigration authorities detained Ms. El Gamal and her children….

On June 3, 2025, at 2:12 p.m. MDT, the official Twitter/X account for the White House posted an update on the family's detention:

Then, at 2:42 p.m. MDT, the official Twitter/X account for the White House posted a further update:

The Petition alleges that "Ms. El Gamal and her five children—E.S., A.S., H.S., O.S., H.S.—entered the United States with B-1 visitor visas in 2022, have resided continuously in the United States for more than two years, and are therefore not subject to expedited removal.

And the Petition, which attaches a copy of the relevant visa application (D. 2-3 at 2), goes on to state that "Ms. El Gamal is a network engineer with a pending EB-2 visa, available to professionals with advanced degrees. Mr. Soliman filed an asylum application, and Ms. El Gamal and all five children are dependents on that application. The application is still pending." …

[The Due Process Clause] requires the Government to follow fair procedures before depriving any person of life, liberty, or property. See Trump v. J.G.G. (2025) ("'It is well established that the Fifth Amendment entitles aliens to due process of law' in the context of removal proceedings."). At bottom, those procedures include some sort of notice, an opportunity to be heard, and a decision by a neutral party. Much like the carpentry metaphor of measuring twice and cutting once, the purpose of procedural due process is to ensure that courts and other decisionmakers, in a deliberative fashion, reach the correct answers without making unnecessary mistakes….

[W]hile the Government may make rules in the immigration-detention context that it could not constitutionally apply to United States citizens, and while the Government need not treat all noncitizens alike, due process nevertheless requires the Government to comply with its own laws….

Petitioner presented evidence that Ms. El Gamal and her children have resided in the United States for over two years. For that reason alone, it would seem that Respondents could not legally place them in expedited removal proceedings. See 8 U.S.C. § 1225(b)(1)(A)(iii)(II) (conditioning the Attorney General's ability to apply expedited removal procedures to non-arriving noncitizens on those noncitizens' having been present in the United States for under two years); see also 8 C.F.R. § 235.3(b)(1)(2) (providing that expedited removal proceedings may only be applied to "arriving aliens" and "as specifically designated by the Commissioner, aliens who have not established to the satisfaction of the immigration officer that they have been physically present in the United States continuously for the two-year period immediately prior to the date of determination of inadmissibility"). Yet the Government expressly stated that this was what it was doing—per the White House, ICE "captured" Ms. El Gamal and her children and was detaining them "for expedited removal" as early as the night of June 3, 2025.

To protect the status quo (and to afford Ms. El Gamal and her children an opportunity to challenge the apparent illegality of the Government's stated efforts to remove them on an expedited basis, as opposed through conventional removal proceedings before an immigration judge, at which they could presumably assert defenses to removal), the Court entered a TRO enjoining Respondents from removing Ms. El Gamal and her children from the United States or transferring them out of Colorado. That was all the TRO did—the Court did not rule on the other relief Petitioner asked the Court for, including "preliminary relief permitting counsel access to Ms. El Gamal and ordering release of Ms. El Gamal." Ms. El Gamal and her children—so far as the Court is aware—remain secure in ICE custody.

{The Government now concedes that "[b]ased on the information currently available to ICE, Ms. El Gamal and her children are not eligible for 'expedited' removal proceedings under 8 U.S.C. § 1225(b)." The Government further states that Ms. El Gamal and her family have been placed in conventional—as opposed to expedited—removal proceedings and suggests that this was the plan all along. But the Government's brief entirely ignores the White House's pronouncements to the contrary, and it was these pronouncements that justified issuing the TRO in the first instance. The Government brief does not disavow the White House's earlier pronouncements that it intends to attempt expedited removal or remove Ms. El Gamal and her children immediately despite apparently recognizing that such processes would not comport with due process. While, as discussed infra, the propriety of continued injunctive relief is ultimately an issue for another court, the lack of clarity (and seeming conflict in position among Government actors as to the plan for removing Ms. El Gamal and her family) militates in favor of keeping the existing TRO in place for now.} …

If Respondents had resorted to expedited removal and summarily deported Ms. El Gamal and her children to Egypt (as the Government expressly threatened to do), Respondents likely would have violated Ms. El Gamal's and her children's due process rights….

The court, however, transfers the habeas corpus petition to the U.S. District Court for the Western District of Texas, because that's where they seem to be in ICE custody, and the place of custody drives the proper venue for habeas. (The court notes that "this Court has been presented with no evidence to indicate that some sort of shell-game is occurring with the current place of confinement. Ms. El Gamal and children were moved once, to Texas, and, as far this Court knows, there they remain.") And the court adds,

While the Court's original TRO required that Ms. El Gamal and her children remain in Colorado, that portion of the Order was unknowingly moot before it was even entered as they were already in Texas. The Government can and should read the Order to require maintenance of the family in Texas until this issue is further addressed by the transferee court.

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[Eugene Volokh] Prof. Michael McConnell on the Constitution and the President's Calling out the National Guard

Prof. Michael McConnell at the Stanford Law School, a leading constitutional law scholar (and former Tenth Circuit judge), passed this along, and I'm delighted to be able to post it; note that this is about the constitutional objection to the President's actions, not about the particular statutory scheme that's involved or about the wisdom of the actions:

Critics claim that President Trump's use of National Guard troops to quell the violence in Los Angeles over the opposition of the governor is contrary to the Constitution's principles of federalism. This particular line of criticism is mistaken.

This issue was debated at the Constitutional Convention in 1787. The National Guard is the modern form of what the Constitution calls the "militia." The delegates voted to empower Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections, and repel invasions," in which case the President would be their Commander in Chief. (Article I, Section 8, Clause 15; Article II, Section 2, Clause 1.) Consent of the state governor is not required. To be sure, Article IV, Section 4 imposes a duty on the United States to protect the States against "domestic Violence" only on application of the state legislature or governor, but the power, as opposed to the duty, of the federal government to use the militia to enforce federal law was not made subject to the will of state authorities.

Some delegates—led by Elbridge Gerry and Luther Martin, both of whom later opposed ratification of the Constitution—took the opposite position, the one now espoused by some critics of President Trump. Luther Martin urged that states be left "to suppress Rebellions themselves." II Farrand 48. Elbridge Gerry, sounding much like Governor Newsom, stated that he was "against letting loose the myrmidons of the U. States on a State without its own consent." Referring to Shay's Rebellion, which was suppressed without federal help, he averred that "[m]ore blood would have been spilt in Massts in the late insurrection, if the Genl. authority had intermeddled." II Farrand 317.

That position was rejected by the majority of the Convention, who adopted instead the provisions quoted above allowing deployment of the militia to enforce federal law and suppress rebellion. Nathaniel Gorham of Massachusetts (who may be little known today but was Chairman of the Convention's Committee of the Whole), best expressed the majority view: "With regard to different parties in a State; as long as they confine their disputes to words they will be harmless to the Genl. Govt. & to each other. If they appeal to the sword it will then be necessary for the Genl. Govt., however difficult it may be to decide on the merits of their contest, to interpose & put an end to it." In other words, peaceful protest is permitted, but when protest spills over into violence, the national government is entitled to intervene. That is the rule today.

Whether President Trump's actions are justified as a matter of prudence may well be debated, but the notion that the Constitution's rules of "federalism" are offended by federal intervention absent gubernatorial request is contradicted by the words and history of the Constitution.

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[Eugene Volokh] Divorcing Real Housewife's Posting About Impotence Can Be Seen as Implying Her Husband Is Impotent

So concludes Guobadia v. Williams, decided Mar. 31 by Judge Mark Cohen (N.D. Ga.):

Plaintiff is an entrepreneur and philanthropist who currently resides in the United Arab Emirates, and is the founder and CEO of SIMCOL Group, an investment company involved in various industries, including energy and hospitality…. Defendant is known for her role on the Real Housewives of Atlanta and large social media presence, which includes 7.7 million followers on Instagram.

Plaintiff and Defendant were married on November 26, 2022, in a widely publicized ceremony. In February 2024, "news broke" that Plaintiff and Defendant "were splitting," an announcement that came after news that Defendant would return to RHOA. On or about July 9, 2024, Defendant published a series of statements about erectile dysfunction ("ED") on her Instagram account.

The first statement was a black background with "ED" written in bold white letters. Defendant's posts continued and provided definitions of ED and details about its symptoms and treatments, including statements such as, "ED can cause stress, affect self-confidence, and contribute to relationship problems," and "it is common for men with ED to feel anger, frustration, sadness, or lack confidence." These statements included the hashtag #MensHealthAwareness.

Defendant's statements were disseminated to a large audience via her Instagram account. They were also disseminated via multiple media outlets:

All About the Tea: On July 10, 2024, this celebrity gossip website posted an article titled "Porsha Williams Claims Simon Guobadia Suffers from Erectile Dysfunction!" and referencing Defendant's social media posts. Plaintiff alleges that the article "highlighted that members of the public clearly recognized the Defendant's comments as referring to the Plaintiff," including citing to numerous social media user posts reflecting this interpretation. [Other examples omitted. -EV]

Plaintiff alleges that he does not have ED and has never suffered from or been diagnosed with this condition. Plaintiff alleges that the inclusion of "#MensHealthAwareness appeared to give the posts the tone of health awareness, though the timing and context made it clear they were directed at Plaintiff." Plaintiff further alleges the following:

The nature, timing, and context of these posts, amidst the couple's public separation, led reasonable viewers to infer that Defendant's statements were referring to Plaintiff—because they were.  Importantly, Defendant's statements were not made as expressions of opinion but instead presented as factual assertions regarding Plaintiffs health, stating or strongly implying that Plaintiff suffers from ED.

Additionally, Plaintiff alleges that, as his former spouse, Defendant's statements were perceived by the public as having legitimacy and insider knowledge such that the public would be more likely to believe they were true.

As a result of Defendant's statements, Plaintiff alleges that his "credibility and image within his community and professional networks" has been affected. Plaintiff also "endured significant emotional distress and personal anguish" and has suffered reputational harm, including the loss of business relationships. Plaintiff's personal and professional relationships have pulled away from associating with Plaintiff. Plaintiff alleges that, because Defendant's statements were disseminated widely across the internet, her statements associating Plaintiff with the symptoms of ED remain publicly available indefinitely, making it "nearly impossible" for Plaintiff or his business to maintain a positive reputation online. Further, whenever Plaintiff posts on his own social media page or is referenced in a publication, commenters frequently reference Defendant's statements; Plaintiff alleges that Defendant "clearly intended" this online ridicule of Plaintiff.

The court allowed plaintiff's defamation claims to go forward. First, it concluded that reasonable viewers could interpret the statements as implicitly referring to him, even though the statements don't mention him expressly:

Plaintiff alleges that Defendant's statements could be interpreted as concerning Plaintiff because they were made after Plaintiff and Defendant announced their separation, and because Defendant's status as his ex-wife gave the statements an air of legitimacy and insider knowledge. Further, Plaintiff alleges that multiple media outlets interpreted Defendant's statements as referring to Plaintiff. "[T]he language under consideration here was at the very least reasonably susceptible of a construction by the average reader which would render it libelous … it cannot be said as a matter of law that the alleged libel was not of and concerning [P]laintiff."

Second, the court concluded that, though the statements weren't "defamation per se" that is actionable without proof of special damages—"defamation per se" is generally limited to accusations of crime, professional incompetence, certain kinds of communicable disease, or serious sexual misconduct—plaintiff had sufficiently alleged special damages:

Here, Plaintiff adequately pleads special damages because he alleges that Defendant's statements caused business and reputational harm, damaged his credibility, resulted in permanent association of himself and his businesses with ED, and caused online ridicule. These are not vague allegations but identify specifically how Plaintiff experienced the loss of business due to Defendant's statements…. "The requirement of special damages is also satisfied where the plaintiff can, under the circumstances, only know that the flow of his business as a whole is diminished, and it would be impossible to point to any specific customers, or orders which have been lost." …

The court also allowed plaintiff's false light invasion of privacy claim to go forward:

Generally, [under Georgia law,] to survive as a separate cause of action from defamation, "a false light claim must allege a nondefamatory statement. If the statements alleged are defamatory, the claim would be for defamation only, not false light invasion of privacy." However, at the motion to dismiss stage, a plaintiff may plead inconsistent claims and is not precluded from pleading both a claim for defamation and for false light.

But the court rejected plaintiff's intentional infliction of emotional distress claim, concluding that "Defendant's statements do not rise to the level of extreme and outrageous conduct required to support an intentional infliction of emotional distress claim."

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[Josh Blackman] Today in Supreme Court History: June 12, 1967

6/12/1967: Loving v. Virginia decided.

 

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Eugene Volokh] Court Rejects Challenge to Trump's Executive Orders on Anti-Semitism

[One of the Orders calls on federal agencies to use the International Holocaust Remembrance Alliance definition, which would label certain criticisms of Israel as anti-Semitic.]

From Monday's decision by Judge Douglas Harpool (W.D. Mo.) in McClanahan v. Trump, which I think reaches the correct result:

On December 11, 2019, President Donald Trump issued Executive Order 13899, directing federal agencies to use the International Holocaust Remembrance Alliance ("IHRA") definition of antisemitism in enforcing Title VI of the Civil Rights Act. On January 29, 2025, President Trump issued Executive Order 14188 titled Additional Measures to Combat Anti-Semitism. It states that it shall be the policy of the United States to combat anti-Semitism vigorously, using all available and appropriate legal tools, to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Sematic harassment and violence.

Plaintiff alleges Executive Order 14188 orders the Department of Education and Department of Justice to investigate individuals and institutions critical of Israel and to withhold federal funding from universities that allow such criticisms. Plaintiff alleges that Executive Order 13899 and its expanded enforcement constitute a direct violation of his civil[] rights….

Plaintiff expresses concern that the executive order he challenges calls for the Government to retaliate against those who hold beliefs or express opinions critical of the State of Israel or the Jewish community or religion. If that is how the Government interprets the measure or enforces the measure as so applied is certainly problematic under the First Amendment of our Constitution. [For more on how certain ways of enforcing the IHRA definition can violate the First Amendment, see here and here. -EV]

However, the Court interprets the measure as prioritizing efforts to curtail acts of violence, harassment or discrimination directed toward the Jewish faith and those supportive of the Jewish state rather than to punish those who merely hold opinions critical of these groups. The First Amendment does not protect acts of violence, harassment, or discrimination. In fact, laws long ago enacted prevent acts of violence, harassment and discrimination based on religious beliefs or political opinion. To that extent the Court views the executive orders as a statement of priority or emphasis rather than a change in substantive law.

{Executive Order 13899 states "It shall be the policy of the executive branch to enforce Title VI against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI." Executive Order 14188 states "It shall be the policy of the United States to combat anti-Semitism vigorously, using all available and appropriate legal tools, to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence." Both Executive Order 13899 and 14188 provide a directive to the executive agencies to combat anti-Semitism utilizing the various procedures that have been outlined by law. These executive orders do not "create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person."}

This Court need and should not decide whether a specific act of governmental retaliation against those who fail to crack down on antisemitic violence, harassment or discrimination is constitutional unless and until that specific issue is presented in a case over which this Court has jurisdiction in which the nature, source and extent of the duty and actions of the target can be specifically established.

If Plaintiff is specifically threatened with governmental action based on the executive order either based on his political or religious beliefs his First Amendment rights may well be found to be infringed. If the governmental action toward him is in response to his acts of violence, harassment or discrimination based on another's religious or political beliefs his acts are without First Amendment protection….

Plaintiff [also] argues that the vagueness and overbreadth of Executive Order 13899 creates a chilling effect on his speech by causing him to fear potential government action or reprisal and thus forces him to self-censor his political and religious views…. Here, Plaintiff has failed to show that his self-censorship was objectively reasonable. Plaintiff cites numerous examples that he argues "amplify this chilling effect." Plaintiff cites federal retaliation against universities such as Harvard University for their alleged failure to adequately address campus antisemitism. Plaintiff also cites federal monitoring of political and religious speech by Immigration and Customs Enforcement ("I.C.E.") and U.S. Citizenship and Immigration Services ("U.S.C.I.S.") and Missouri House Legislation Mirroring Executive Order 13899. Plaintiff further cites to Department of Education enforcement actions, advocacy for zero-tolerance policies by private groups, exclusion from the political process by the Missouri Republican Party in 2024, alleged imminent threat to his federal benefits and Executive Order 13899's language and intent.

However, Plaintiff fails to show any retaliation or harm suffered by an individual in Plaintiff's position. Plaintiff fails to show how the Missouri State Government, who is not a party to this action, has any bearing on his speech through legislation that hasn't taken effect. Likewise, Plaintiff has failed to show how actions by private parties, not members of this lawsuit, have shown any ability to enforce Executive Orders 13899 or 14188 that are not connected with the current parties to this litigation. Further, Plaintiff claims the imminent loss of federal benefits, but does not point to any other individuals who have lost federal benefits such as rural development loans and Medicaid, based on protected speech and shows no actual harm to date. In sum, Plaintiff's examples shown no credible threat of prosecution to Plaintiff if he engages in a course of conduct, he feels would be affected by Executive Orders 13899 or 14188. For the reasons stated, Plaintiff's likelihood of success based on chilled speech is low….

The court likewise rejected plaintiff's Establishment Clause claim, which is that "[b]y adopting the IHRA definition of antisemitism, which can encompass criticism of religious and political aspects of [Israel], the government effectively endorses a particular religious and ideological perspective":

The IHRA defines antisemitism as "a certain perception of Jews, which may be expressed as hatred towards Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities[.]" The purpose of the Executive Order 13899 is to "combat the rise of antisemitism and antisemitic incidents in the Untied States and around the world." Executive Order 13899 outlines that "Anti-Semitic incidents have increased since 2013 and students, in particular, continue to face anti-Semitic harassment in schools and on university and college campuses."

While the executive order does seek to foster protections against a certain religion the purpose of the executive order has a secular purpose as it goes to enforcing the mandate of Title VI. Further, Plaintiff has not shown how Executive Order 13899 either advances or inhibits the practice of religion in its principal or primary effect. Lastly, Plaintiff has not shown how Executive Order 13899 has fostered an excessive government entanglement with religion in promulgating a directive combatting antisemitism. For the reasons stated, Plaintiff's likelihood of success on the merits on his establishment claim argument is low.

The court also rejected plaintiff's due process and vagueness arguments, among other (even less plausible) arguments.

Wyatt Nelson of the U.S. Attorney's Office in the Western District of Missouri represents the government.

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[Eugene Volokh] Alabama Defendants in Youth Gender Medicine Case May Disclose Discovery Documents from World Professional Association for Transgender Health

Monday's decision by Judge Liles Burke (M.D. Ala.) in Boe v. Marshall dealt with whether the defendants should be able to publicly disclose documents that they had obtained in discovery. (The underlying case involves a challenge to Alabama's restrictions on youth gender medicine.) First, the factual background:

The World Professional Association for Transgender Health ("WPATH") touts its guidelines and standards of care for treating transgender children as the product of rigorous science and broad consensus. Given this wide acceptance of what WPATH claims to be reliable evidence, one would think it would be willing and eager to demonstrate as much. It is not….

This case began in 2022 when the Plaintiffs filed their complaint and moved for a preliminary injunction to block enforcement of an Alabama law restricting the use of certain medications in children diagnosed with gender dysphoria. Over the course of three days, the Court heard testimony from multiple expert witnesses who touted WPATH as the leading authority responsible for developing the prevailing guidelines and standards of care for physicians treating children with gender dysphoria. In an affidavit, one of the Plaintiffs' medical experts stated that WPATH "has been recognized as the standard-setting organization for the treatment of gender dysphoria for more than forty years." [Further details omitted. -EV] … In other words, the Plaintiffs and many of the amici believe that WPATH is the preeminent leader in the field of transgender medicine for children.

Unsurprisingly, the Defendants sought discovery from WPATH regarding, among other things, the evidence it used to develop its guidelines and standards of care. But surprisingly, the organization allegedly responsible for creating the benchmark for gender dysphoria treatment was not so keen on turning over the evidence it used to develop that standard. WPATH resisted the Defendants' subpoena at every turn. Given its own characterization of its guidelines and standards, one would expect WPATH to welcome the opportunity to put the supporting evidence on display.

WPATH initially filed a motion to quash the subpoena arguing, among other things, that the information the Defendants sought was somehow not relevant to the case. Given that "WPATH's guidelines are part and parcel of Plaintiffs' proposed constitutional standard in this case" this Court found that argument preposterous and denied the motion. WPATH then moved to certify that order for an interlocutory appeal and to stay its obligation to produce any discovery until that appeal was resolved. When those motions were denied, WPATH unsuccessfully petitioned the United States Court of Appeals for the Eleventh Circuit for mandamus relief. In denying the petition for a writ of mandamus, the Eleventh Circuit found that the Defendants "demonstrated a compelling need for the information" WPATH sought to suppress.

Although this Court denied WPATH's motion to stay, WPATH nevertheless delayed production, prompting the Court to remind its counsel of that fact at a hearing three months after the motion to quash was denied.  ("I also hear you say, hey, Judge, you know, the minute you tell us to start producing, we will. I really have already said to start producing.").

So, it comes as no surprise that the Court is again resolving a discovery dispute involving WPATH. Before the Court is the Defendants' motion to remove the "Confidential—Attorney's Eyes Only" designation from hundreds of video recordings produced by WPATH during discovery pursuant to a stipulated protective order. Under that protective order, these videos, which depict various symposia on transgender healthcare held in recent years, are required to be destroyed within 60 days of the case's termination. Because the parties dismissed the case on May 1, 2025, the deadline for destruction is June 30, 2025.

In their motion, the Defendants argue that the recordings should not be considered confidential under the protective order because they were made available to the public by WPATH and its affiliate, USPATH. The recordings are from presentations and panel discussions from WPATH and USPATH symposia in 2021, 2022, and 2023, and a 2023 medical training course. The Defendants emphasize that access to these events was not limited to WPATH members but was open to anyone who registered and paid a fee. Moreover, the videos were made available to attendees after the event.

The Defendants further argue that the recordings do not meet any of the criteria for confidentiality under the protective order. Accordingly, they request that the Court find the videos at issue do not qualify as confidential under the protective order and were improperly designated as such during discovery.

The court noted that the materials were discovery materials that weren't filed in court, so there was no public right of access to them. But there was still the question whether defendants, who had gotten the documents through discovery, should continue to be legally barred from disclosing them. And the court said no:

Federal Rule of Civil Procedure 26(c) allows a court to issue a protective order upon a finding of good cause…. WPATH has the burden of demonstrating Rule 26(c)'s applicability…. Rule 26(c) provides in pertinent part, that "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense…." …

WPATH argues that "[w]idespread dissemination of these videos to the public could subject WPATH, USPATH, their members, and unaffiliated individuals who happened to attend these conferences to harassment, particularly given the highly charged atmosphere surrounding issues related to gender-affirming care."

The Defendants point out that a party seeking the court's protection under Rule 26(c) must make a "particular and specific demonstration of fact" and cannot rely on "stereotyped or conclusory statements." "[G]eneralized, subjective assertions of fear … without a distinct concrete harm justifying good cause" are insufficient. Aside from the conclusory statement quoted above, WPATH gives no detail about why the release of these videos could cause such harassment.

WPATH also claims that, because it charges a registration fee for its symposia, making the videos publicly available would harm their economic interests. It also claims that public release of the videos could chill the exercise of protected First Amendment rights by making people less likely to present or contribute at a conference.

But beyond these vague suppositions, WPATH offers nothing to substantiate its position. Even WPATH's declarations fail to provide more than a few conclusory statements about any of these issues. The only support for these last two assertions is a single sentence in an affidavit from WPATH's Associate Executive Director stating that "[s]peakers and presenters would be less willing to contribute to symposia and training events if their presentations would be made public, and WPATH and USPATH would be less likely to incur the costs of organizing symposia and training events if the public could obtain access to presentations without paying the costs of attendance or paying to access recordings." Without more, the Court finds that WPATH has failed to meet its burden of demonstrating that the videos in question were properly designated as confidential under Rule 26(c).

The court also rejected WPATH's argument that "it has a legal duty to protect the confidentiality and use of the videos," because the "[p]resenters granted WPATH and USPATH a limited license to use the recordings for educational purposes only, [and] [a]ttendance at the events was limited to paying participants who agreed not to record or reproduce the material without the explicit consent of the presenters." The relevant agreements between WPATH and the conferences, the court concluded, didn't impose any duty of confidentiality.

The post Alabama Defendants in Youth Gender Medicine Case May Disclose Discovery Documents from World Professional Association for Transgender Health appeared first on Reason.com.

[Eugene Volokh] A Lawyer Who Litigated Grutter v. Bollinger Comments on the Court's Recent Case on Discrimination Against Majority Groups

I've known Michael Rosman at the Center for Individual Rights for 30 years; he has litigated many important cases, including with regard to racial preferences, and was one of the lawyers in Grutter v. Bollinger. I'm therefore delighted to pass along his short reaction to Ames v. Ohio Dep't of Youth Services; all the remaining text of the post is Michael's:

In Ames v. Ohio Dept. of Youth Services, the Supreme Court unanimously rejected the "background circumstances" rule that some circuits had applied in Title VII cases when the plaintiff claiming employment discrimination was a member of a "majority" group (like whites). The "background circumstances" rule required such "majority" plaintiffs to present some evidence showing that their employer was the "unusual" employer that discriminated against the majority.

Title VII, the Court held, had one text, that text applied to everyone and, accordingly, the same requirements for proving discrimination applied to everyone. Pretty straightforward, and, in my view, undoubtedly correct. So correct that Ohio did not really bother to defend the "background circumstances" rule.

What I have not read in the aftermath of the opinion, though, is the Court's own role in inspiring this bizarre interpretation, and allowing it to fester as a blot on statutory interpretation and Title VII. Not to mention the Court's less-than-candid discussion of its own responsibility.

The appeal in Ames was from the Sixth Circuit. In its first footnote, the Court noted the other circuits that had adopted the rule: the Seventh, Eighth, Tenth, and D.C. Circuits. It cited cases decided between 1992 and 2004 from those circuits. But, as Justice Thomas's concurrence pointed out, the "background circumstances" requirement was first adopted by the D.C. Circuit in 1981 in a case called Parker v. Baltimore and Ohio Railroad Co. So, for over forty years, majority plaintiffs in at least some jurisdictions had to meet an additional requirement that the Supreme Court unanimously rejected in 2025 in a quick eight-plus page opinion. And the "circuit split" has existed since at least 1999, when the Third Circuit explicitly rejected the "background circumstances" requirement.

In its decision, the Court in Ames held that the "background circumstances" rule was an improper addition to the evidentiary framework that the Court had adopted in McDonnell Douglas v. Corp v. Green. It described that framework in broad terms: the Court described the first step of the McDonnell Douglas framework as requiring the plaintiff to produce enough evidence to support "an inference of discriminatory motive." But McDonnell Douglas actually had quite a bit more to say about how to do that (all of which is omitted in Ames).

Specifically, the McDonnell Douglas framework said that plaintiffs could create an inference of discrimination by demonstrating that (1) they were a racial minority, (2) that they applied for and were qualified for a job, (3) they were rejected and (4) the job remained open. In Parker, the 1981 D.C. Circuit case, the court took that first step—being a racial minority—and decided that it had to be modified in "light of common experience" (a phrase that the Supreme Court had used in a later case) if the plaintiff was not a racial minority. Judge Mikva wrote for the court: "Whites are also a protected group under Title VII, but it defies common sense to suggest that the promotion of a black employee justifies an inference of prejudice against white co-workers in our present society."

Thus was born the "background circumstances" test. But its roots in McDonnell Douglas were ignored by both the Court in Ames and even Justice Thomas's concurrence (which was highly critical of the McDonnell Douglas framework).

One last thought. Conspirator Ilya Somin tells us that Ames reaffirms the principle that "discrimination based on sexual orientation is sex discrimination," the principle that was first articulated in Bostock v. Clayton County. But Ames is actually a bit confusing on this point.

Bostock held that discrimination based on sexual orientation is invariably sex discrimination:

[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.

But the broad proposition is at best questionable. For example, one can have sexual orientation discrimination even where sex discrimination is permissible under Title VII. Consider a male sports team that limits its locker room attendants to heterosexual males. If being male is a BFOQ—bona fide occupational qualification—for the job, then there is nothing illegal about the (admitted) sex discrimination. But there's still sexual orientation discrimination going on, and (in the absence of a rather idiosyncratic understanding of sex discrimination) the sexual orientation discrimination does not appear to constitute sex discrimination, at least as Bostock described it. (After all, the employer is treating men who are attracted to men precisely the same way that it is treating women who are attracted to men.)

In any event, Ames may have said something else. In describing the fact that Ames lost out on a promotion to a lesbian, the Court said that such evidence "would ordinarily satisfy her prima facie burden" in the absence of the "background circumstances" rule. Would it? "Ordinarily," to show sex discrimination, one would need to show that someone of the opposite sex obtained the position in order to satisfy the prima facie burden. (Ames was, in fact, replaced by a male after a second and distinct adverse employment determination.)

The Court's suggestion that a woman showing that she was rejected in favor of a lesbian would satisfy her prima facie burden under Title VII doesn't obviously reinforce that "discrimination based on sexual orientation is sex discrimination," but rather suggests that sexual orientation discrimination independently violates Title VII. If so, this would be a rather startling development given the absence of the phrase "sexual orientation" in Title VII and the text-focused analysis in Bostock.

In any event, the court chose not to reach any of the respondents' alternative arguments, and sent the case back down to the Sixth Circuit for further proceedings. So, I don't think anything in the opinion precludes the employer from arguing that Ames losing out to a lesbian is not sex discrimination in violation of Title VII. Or, for that matter, for Ames to argue that she would have received the promotion had she been a gay male, which certainly would be sex discrimination under Bostock.

The post A Lawyer Who Litigated Grutter v. Bollinger Comments on the Court's Recent Case on Discrimination Against Majority Groups appeared first on Reason.com.