Eugene Volokh's Blog, page 83

[Eugene Volokh] Does the Smoot-Hawley Act Justify the Trump Tariffs? More, from Jed Rubenfeld and Philip Zelikow

I'm delighted that Jed Rubenfeld and Philip Zelikow decided to engage further on this matter. (For the original post laying out Prof. Rubenfeld's position, see here; for Prof. Zelikow's position, see here.) First, from Prof. Rubenfeld:

Let me first thank Hoover Senior Fellow Philip Zelikow for this. It's important for everyone to see forceful arguments on both sides of such an important matter. That said, I think Prof. Zelikow overplays his hand—considerably.

To make the issue clear: I've written that most of Trump's tariffs seem to fall squarely within the language of Section 338 of the Tariff Act of 1930 and that they can be upheld under that Section 338 even though the tariff executive orders don't cite it. (It's well established that executive orders can be upheld under statutes they don't cite.) Prof. Zelikow doesn't take issue with any of that.

Rather, Prof. Zelikow claims that Section 338, which remains on the books today at 19 U.S.C. § 1338, was implicitly repealed by subsequent tariff statutes. Or at least that Section 338(d)—a provision I quoted—has been so repealed.

But "repeals by implication," as Justice Scalia once wrote, "are disfavored—'very much disfavored.'" Here's the Supreme Court's 2020 pronouncement on implicit repeals:

"[R]epeals by implication are not favored" and are a "rarity." Presented with two statutes, the Court will "regard each as effective" unless Congress' intention to repeal is "clear and manifest," or the two laws are "irreconcilable." "[W]hen two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective."

Maine Community Health Options v. United States, 590 U.S. 296, 315 (2020) (citations omitted).

None of the statutes Prof. Zelikow cites expressly repeals Section 338 or any part of Section 338 of the Tariff Act of 1930. None is in conflict with Section 338, much less "irreconcilable" with it. And Prof. Zelikow cites no language from those statutes' legislative history expressing a "clear and manifest" intent to repeal Section 338. The latter is fully "capable of co-existence" with the later statutes and hence, under Maine Community, "it is the duty of the courts … to regard [it] as effective."

Mr. Zelikow's claim will come as a surprise to many. If Section 338(d) of the Tariff Act of 1930 has been implicitly repealed, someone should have told D.C. District Judge Contreras, one of the judges who just slapped an injunction on Trump's tariffs, and who specifically referred to Section 338(d) as an example of a statute that expressly "grants the President the authority" to impose tariffs in specified conditions. Judge Contreras did not say that Section 338 "granted" the President that authority; he said it "grants" that authority.

If Section 338 has been repealed, someone should have told the non-partisan governmental Congressional Research Service, which describes "Section 338 of the Tariff Act of 1930" as "currently in effect" and as giving the President authority to impose tariffs under the conditions set forth in subsection (d) of that provision.

If Section 338 has been repealed, someone should tell the House of Representatives, where nine Democratic Congressmen have sponsored a bill to repeal it. If Section 338(d) in particular has been repealed, someone should tell the Senate, which in 2017 considered a bill to amend it. In fact, from 2017 until now, both Houses of Congress have been looking at bills to condition the President's Section 338(d) tariff-setting authority on congressional approval. Prof. Zelikow is in effect trying to pass legislation through argumentation.

I get Prof. Zelikow's Posadas argument, under which, he says, implicit repeal may be found if a later statute "covers the whole subject" of a previous statute. It's the right argument for him to make. But Prof. Zelikow neglects to mention that even under the Posadas test, "the intention of the legislature to repeal must be clear and manifest." Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976).

Bottom line: it seems a little hard to argue that a statute has been clearly and manifestly repealed when courts, commentators, and Congressmen alike believe it is still in effect.

And from Prof. Zelikow:

The issue is not whether there was an implied repeal of all of section 338 of Smoot-Hawley by the Trade Acts of 1962 and 1974. The issue is whether there was an implied repeal of section 338(d).

The other portions of section 338 address a finding that a foreign country had discriminated against American products, treating them differently than the products imported from other foreign countries, or actually blocking importation. Those portions of section 338 may still stand. A particular fact finding of discriminatory treatment is a different facet of trade law. As section 338 points out, those findings under other portions of section 338 were meant to interact with investigations by the U.S. International Trade Commission—an adjudicatory body that still exists. The House bill which Professor Rubenfeld mentions in his reply was meant to repeal all of section 338. The mention of the section by Judge Contreras refers, explicitly, to the other subsections, the ones that require a finding of discriminatory treatment.

Section 338(d) was different. It was a general power to respond to commercial disadvantage, foreign acts which somehow "burden" U.S. commerce. That is the precise subject area, even using that same language, that was addressed by section 252 of the Trade Act of 1962 and then again by section 301 of the Trade Act of 1974. It is also the character of Trump's tariff reasoning in both the universal and reciprocal tariffs.

Yes, implied repeal faces a burden of proof. But examination of the relevant statutory sections meets that burden, under the standard I mentioned that was set out in Posadas. It might also meet a standard of "irreconcilable conflict," since if section 338(d) authority was available, why would anyone have bothered with section 252 of the 1962 Act or bother with the requirements of section 301 of the 1974 Act. Those well established trade laws could become nullities.

Empirical evidence reinforces my argument, since for at least 63 years—and in fact since the Roosevelt administration took office in 1933 and adopted a different trade law approach the next year—no administration has ever proclaimed a tariff based on section 338(d) of the 1930 Act. This was true even in periods of high protectionist pressure, which was present throughout the 1970s and 1980s.

Profs. Rubenfeld and Zelikow have each reviewed each other's replies, and modified their posts accordingly.

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[Eugene Volokh] Three High-Profile Unanimous S. Ct. Opinions Today, Reaching Conservative(ish) Results, Written by Liberal Justices

Just a mildly interesting result, I thought, which helps show that even on questions related to religion, guns, and discrimination against majority group members, both conservative and liberal Justices can agree. In close cases, Justices' ideological positions certainly may affect their view of the law; but in many cases, the legal analysis isn't really affected by such ideological divides.

I use the "ish" advisedly, precisely because the results don't necessarily have to be viewed as conservative: Equal treatment of religious groups, for instance, is a broadly accepted view among the Justices, and the gun case can equally be seen as a matter of Congress deciding to shift questions to the legislative process from the judicial. Still, I think that those cases may have at first appeared to some as likely to yield a potential conservative/liberal divide—yet the Court's opinions in them were all unanimous.

The other two opinions, on foreign sovereign immunity and civil procedure, were also unanimous (except that in the latter case, Justice Jackson joined the Court's opinion only in part and concurred separately in part), but they struck me as both lower-profile and less likely to be seen as ideologically inflected.

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[Eugene Volokh] S. Ct. Rejects Wisconsin Unemployment Tax Exemption's Different Treatment of Proselytizing and Non-Proselytizing Religions

[The government generally may not "distinguish[] among religions based on theological differences in their provision of services."]

From Justice Sotomayor's unanimous (and, I think, correct) opinion today in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Indus. Rev. Comm'n:

Wisconsin, like many other States, exempts certain religious organizations from paying taxes into the State's unemployment compensation system. One such exemption covers nonprofits "operated primarily for religious purposes" and controlled, supervised, or principally supported by a church. Wis. Stat. §108.02(15)(h)(2) (2023–2024). Petitioners, Catholic Charities Bureau, Inc., and four of the entities that it operates, claimed that they qualify for the exemption as religious organizations controlled by the Roman Catholic Diocese of Superior, Wisconsin. The Wisconsin Supreme Court disagreed, holding that petitioners are not "operated primarily for religious purposes" because they neither engage in proselytization nor serve only Catholics in their charitable work….

The First Amendment mandates government neutrality between religions and subjects any state-sponsored denominational preference to strict scrutiny. The Wisconsin Supreme Court's application of §108.02(15)(h)(2) imposed a denominational preference by differentiating between religions based on theological lines….

"The clearest command of the Establishment Clause" is that the government may not "officially prefe[r]" one religious denomination over another. This principle of denominational neutrality bars States from passing laws that "'aid or oppose'" particular religions, or interfere in the "competition between sects." The Establishment Clause's "prohibition of denominational preferences is inextricably connected with the continuing vitality of the Free Exercise Clause," too.

A law that differentiates between religions along theological lines is textbook denominational discrimination. Take, for instance, a law that treats "a religious service of Jehovah's Witnesses … differently than a religious service of other sects" because the former is "less ritualistic, more unorthodox, [and] less formal." Or consider an exemption that applies only to religious organizations that perform baptisms, engage in monotheistic worship, or hold services on Sunday. Such laws establish a preference for certain religions based on the content of their religious doctrine, namely, how they worship, hold services, or initiate members and whether they engage in those practices at all. Such official differentiation on theological lines is fundamentally foreign to our constitutional order, for "[t]he law knows no heresy, and is committed to the support of no dogma."

This case involves that paradigmatic form of denominational discrimination. In determining whether petitioners qualified for the tax exemption under §108.02(15)(h)(2), the Wisconsin Supreme Court acknowledged that petitioners are controlled by a church, … thereby satisfying one of the exemption's two criteria. The court's inquiry instead turned on whether petitioners are "operated primarily for religious purposes." On that criterion, the court recognized that petitioners' charitable works are religiously motivated. The court nevertheless deemed petitioners ineligible for the exemption under §108.02(15)(h)(2) because they do not "attempt to imbue program participants with the Catholic faith," "supply any religious materials to program participants or employees," or limit their charitable services to members of the Catholic Church. Put simply, petitioners could qualify for the exemption while providing their current charitable services if they engaged in proselytization or limited their services to fellow Catholics.

Petitioners' Catholic faith, however, bars them from satisfying those criteria. Catholic teaching, petitioners say, forbids "'misus[ing] works of charity for purposes of proselytism.'" It also requires provision of charitable services "without making distinctions 'by race, sex, or religion.'" Many religions apparently impose similar rules prohibiting proselytization or religious differentiation in the provision of charitable services. Others seemingly have adopted a contrary approach.

Wisconsin's exemption, as interpreted by its Supreme Court, thus grants a denominational preference by explicitly differentiating between religions based on theological practices. Indeed, petitioners' eligibility for the exemption ultimately turns on inherently religious choices (namely, whether to proselytize or serve only co-religionists), not "'secular criteria'" that "happen to have a 'disparate impact' upon different religious organizations." Much like a law exempting only those religious organizations that perform baptisms or worship on Sundays, an exemption that requires proselytization or exclusive service of co-religionists establishes a preference for certain religions based on the commands of their religious doctrine. {Decisions about whether to "express and inculcate religious doctrine" through worship, proselytization, or religious education when performing charitable work are, again, fundamentally theological choices driven by the content of different religious doctrines. A statute that excludes religious organizations from an accommodation on such grounds facially favors some denominations over others.}

The Court thus held the law was unconstitutional unless it passed "strict scrutiny," which is to say was "closely fitted to further" "a compelling governmental interest." And the law failed that test:

Wisconsin … argues that the law serves a compelling state interest in "ensuring unemployment coverage for its citizens." Yet the State fails to explain how the theological lines drawn by §108.02(15)(h)(2) are narrowly tailored to advance that asserted interest, particularly as applied to petitioners. Indeed, petitioners operate their own unemployment compensation system for employees, which provides benefits largely "'equivalent'" to the state system. Furthermore, Wisconsin does not suggest that organizations like Catholic Charities, which decline to proselytize and choose to serve all-comers, are more likely to leave their employees without unemployment benefits. Nor could it: The record is devoid of such evidence.

The distinctions drawn by Wisconsin's regime, moreover, are vastly underinclusive when it comes to ensuring unemployment coverage for its citizens. Wisconsin exempts over 40 forms of "employment" from its unemployment compensation program. Notably, those exemptions cover religious entities that provide charitable services in a similar manner to petitioners (that is, without proselytizing or denominational differentiation), but are exempt because the work is done directly by the church itself or its ministers, rather than by a separate nonprofit organization controlled by the church. That underinclusiveness leaves "'appreciable damage to [the State's] supposedly vital interest unprohibited'" and therefore belies the State's claim of narrow tailoring.

Second, the State argues that the Wisconsin Supreme Court's interpretation of §108.02(15)(h)(2) is "narrowly tailored to avoid entangling the state with employment decisions touching on religious faith and doctrine." When an organization's employees "express an[d] inculcate religious doctrine through worship, proselytization, and religious education," the State explains, "misconduct disputes could often force the state to decide whether employees complied with religious doctrine."

Yet the State again fails to demonstrate that §108.02(15)(h)(2) is "closely fitted to further" that anti-entanglement interest. To the extent the State seeks to avoid opining on employee compliance with religious teachings, it does not explain why it declined to craft an exemption limited to employees who are in fact tasked with inculcating religious doctrine. Instead, the exemption here functions at an organizational level, covering both the janitor and the priest in equal measure.

That overinclusiveness pervades Wisconsin's exemption regime more broadly, too. Recall that Wisconsin exempts from its unemployment compensation system all "church[es] or convention[s] or association[s] of churches" without differentiating between employees actually involved in religious works, for whom the anti-entanglement concern is relevant, and other staff. The State itself concedes, as it must, that this regime contains "an element of over-inclusivity." At bottom, then, the poor fit between the State's asserted anti-entanglement concern and the line it has drawn among religious organizations cannot be described as narrow tailoring….

Justice Thomas wrote a concurrence that focused on a different feature of the Wisconsin Supreme Court's decision.

Justice Jackson wrote a concurrence that focused on the Federal Unemployment Tax Act, which authorizes the Wisconsin law involved in this case; she reasoned that FUTA's religious organization exemption is constitutional, and that the problem wasn't with the text of the exemption but with the Wisconsin Supreme Court's interpretation of the exemption. As I read her analysis, FUTA and statutes based on it should be read to provide only a narrow exemption for "church-run nonprofits that have service to the church itself as their main objective" (such as organizations that train clergy or members of a religious order) and not to cover "general charitable organizations affiliated with a church," such as "[a] church-related 'orphanage' or 'home for the aged'":

Congress sought to extend to most nonprofit workers the stability that unemployment insurance offers, while exempting a narrow category of church-affiliated entities most likely to cause significant entanglement problems for the unemployment system—precisely because their work involves preparing individuals for religious life.

Eric Rassbach argued on behalf of Catholic Charities Bureau.

 

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[Eugene Volokh] S. Ct. Unanimously Rejects Mexico's Lawsuit Against Smith & Wesson

["A manufacturer of goods is not an accomplice to every unaffiliated retailer whom it fails to make follow the law."]

From Justice Kagan's unanimous (and, I think, correct) opinion today in Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos:

The Government of Mexico brought this lawsuit against seven American gun manufacturers. As required by a federal statute, Mexico seeks to show (among other things) that the defendant companies participated in the unlawful sale or marketing of firearms. See [Protection of Lawful Commerce in Arms Act,] 15 U.S.C. §7903(5)(A)(iii). More specifically, Mexico alleges that the companies aided and abetted unlawful sales routing guns to Mexican drug cartels. The question presented is whether Mexico's complaint plausibly pleads that conduct. We conclude it does not….

[T]his Court has developed several … principles [defining aiding and abetting law]. First, aiding and abetting is most commonly "a rule of secondary liability for specific wrongful acts." It is possible for someone to aid and abet a broad category of misconduct, but then his participation must be correspondingly "pervasive, systemic, and culpable."

Second, aiding and abetting usually requires misfeasance rather than nonfeasance. Absent an "independent duty to act," a person's "failure[s]," "omissions," or "inactions"—even if in some sense blameworthy—will rarely support aiding-and-abetting liability.

And third, routine and general activity that happens on occasion to assist in a crime—in essence, "incidentally"—is unlikely to count as aiding and abetting. So, for example, an "ordinary merchant[]" does not "become liable" for all criminal "misuse[s] of [his] goods," even if he knows that in some fraction of cases misuse will occur. The merchant becomes liable only if, beyond providing the good on the open market, he takes steps to "promote" the resulting crime and "make it his own."

Two of our cases—one approving liability for aiding another's crime, the other not—illustrate how all this doctrine plays out in practice. In Direct Sales Co. v. United States (1943), we held that a mail-order pharmacy could be convicted for assisting a small-town doctor's illegal distribution of narcotics. The pharmacy, Direct Sales, sold huge amounts of morphine to Dr. John Tate: Whereas the average physician required no more than 400 quarter-grain tablets annually, Direct Sales sold Tate some 5,000 to 6,000 half-grain tablets every month. Still more, Direct Sales "actively stimulated" Tate's purchases, by giving him special discounts for his most massive orders and using "high-pressure sales methods." And it did all that against the backdrop of law enforcement warnings: The Bureau of Narcotics had informed Direct Sales that "it was being used as a source of supply" by lawbreaking doctors. All that evidence, this Court found, … showed that Direct Sales "not only kn[ew of] and acquiesce[d]" in Tate's "illicit enterprise," but "join[ed] both mind and hand with him to make its accomplishment possible."

By contrast, this Court recently ordered the dismissal of a suit against several social-media companies for aiding and abetting a terrorist attack carried out by ISIS. See Twitter v. Taamneh (2023). The plaintiffs, victims of the attack, alleged that adherents of ISIS used the companies' platforms for recruiting and fundraising. The complaint further asserted that the companies knew that was so, yet failed to identify and remove the ISIS-related accounts and content. But we held that was not enough to make the companies liable for ISIS's terrorist acts. The companies' relationship with ISIS and its supporters, we reasoned, was "the same as their relationship with their billion-plus other users: arm's length, passive, and largely indifferent." There were no allegations that the companies had given ISIS "any special treatment," or "encourag[ed], solicit[ed], or advis[ed]" the group. Instead, after providing their platforms for general use, the companies "at most allegedly stood back and watched." More was needed, we stated, for a provider of generally available goods or services to be liable for a customer's misuse of them—for example, conduct of the kind in Direct Sales. When a company merely knows that "some bad actors" are taking "advantage" of its products for criminal purposes, it does not aid and abet. And that is so even if the company could adopt measures to reduce their users' downstream crimes….

Viewed against the backdrop of that law, Mexico's complaint does not plausibly allege that the defendant manufacturers aided and abetted gun dealers' unlawful sales of firearms to Mexican traffickers. We have little doubt that, as the complaint asserts, some such sales take place—and that the manufacturers know they do. But still, Mexico has not adequately pleaded what it needs to: that the manufacturers "participate in" those sales "as in something that [they] wish[] to bring about," and "seek by [their] action to make" succeed.

To begin with, … [t]he complaint does not pinpoint, as most aiding-and-abetting claims do, any specific criminal transactions that the defendants (allegedly) assisted. It does not say, for example, that a given manufacturer aided a given firearms dealer, at a particular time and place, in selling guns to a given Mexican trafficker not legally permitted to buy them under a specified statute. Instead, the complaint levels a more general accusation: that all the manufacturers assist some number of unidentified rogue gun dealers in making a host of firearms sales in violation of various legal bars. The systemic nature of that charge is not necessarily fatal. But as noted earlier, it cannot help but heighten Mexico's burden. To survive, the charge must be backed by plausible allegations of "pervasive, systemic, and culpable assistance."

Mexico's lead claim—that the manufacturers elect to sell guns to, among others, known rogue dealers—fails to clear that bar, for a package of reasons. For one thing, it is far from clear that such behavior, without more, could ever count as aiding and abetting under our precedents…. Mexico's complaint asserts nothing similar [to what happened in Direct Sales]. To the contrary, the complaint repeatedly states that the manufacturers treat rogue dealers just the same as they do law-abiding ones—selling to everyone, and on equivalent terms. So the complaint, even if taken at face value, would stretch the bounds of our caselaw.

And in any event, we cannot take the allegation here at face value, because Mexico has not said enough to make it plausible. In asserting that the manufacturers intentionally supply guns to bad-apple dealers, Mexico never confronts that the manufacturers do not directly supply any dealers, bad-apple or otherwise. They instead sell firearms to middlemen distributors, whom Mexico has never claimed lack independence. Given that industry structure, Mexico's complaint must offer some reason to believe that the manufacturers attend to the conduct of individual gun dealers, two levels down. But it does not so much as address that issue.

And even assuming the manufacturers know everything the distributors know, the complaint still would not adequately support the charge that they have identified the bad-apple dealers. Mexico does not itself name those dealers, though they are the ostensible principals in the illegal transactions claimed. Nor does Mexico provide grounds for thinking that anyone up the supply chain—whether manufacturer or distributor—often acquires that information. Indeed, the complaint points out that government agencies only sporadically provide upstream companies with information tracing Mexican crime guns to certain dealers. So Mexico's allegation on this score is all speculation; even on a motion to dismiss, it is not enough….

Mexico's complaint alleges that some, though unidentified, dealers often engage in illegal transactions with Mexican traffickers. So too, the complaint alleges that the manufacturers know that much to be true—that among the whole class of dealers, there are some who routinely violate the law. And finally the complaint alleges, with sufficient plausibility, that the manufacturers could do more than they do to figure out who those rogue dealers are, and then to cut off their supply of guns. But that is to say little more than the plaintiffs said in Twitter….

[Likewise,] a failure [of] {manufacturers [to] impose constraints on their distribution chains to reduce the possibility of unlawful conduct} is, again, what Twitter called "passive nonfeasance"—a "failure to stop" independent retailers downstream from making unlawful sales. Such "omissions" and "inactions," especially in an already highly regulated industry, are rarely the stuff of aidingand-abetting liability…. A manufacturer of goods is not an accomplice to every unaffiliated retailer whom it fails to make follow the law.

Finally, Mexico's allegations about the manufacturers' "design and marketing decisions" add nothing of consequence. As noted above, Mexico here focuses on the manufacturers' production of "military style" assault weapons, among which it includes AR–15 rifles, AK–47 rifles, and .50 caliber sniper rifles. But those products are both widely legal and bought by many ordinary consumers. (The AR–15 is the most popular rifle in the country.) The manufacturers cannot be charged with assisting in criminal acts just because Mexican cartel members like those guns too.

The same is true of firearms with Spanish-language names or graphics alluding to Mexican history. Those guns may be "coveted by the cartels," as Mexico alleges; but they also may appeal, as the manufacturers rejoin, to "millions of law-abiding Hispanic Americans."

That leaves only the allegation that the manufacturers have not attempted to make guns with nondefaceable serial numbers. But the failure to improve gun design in that way (which federal law does not require) cannot in the end show that the manufacturers have "join[ed] both mind and hand" with lawbreakers in the way needed to aid and abet.

And [our] conclusion … well accords with PLCAA's core purpose. Recall that Congress enacted the statute to halt a flurry of lawsuits attempting to make gun manufacturers pay for the downstream harms resulting from misuse of their products. In a "findings" and "purposes" section, Congress explained that PLCAA was meant to stop those suits—to prevent manufacturers (and sellers) from being held "liable for the harm caused by those who criminally or unlawfully misuse firearm[s]."

Mexico's suit closely resembles the ones Congress had in mind: It seeks to recover from American firearms manufacturers for the downstream damage Mexican cartel members wreak with their guns. Of course, the law Congress wrote includes the predicate exception, which allows some suits falling within PLCAA's general ban to proceed. But that exception, if Mexico's suit fell within it, would swallow most of the rule. We doubt Congress intended to draft such a capacious way out of PLCAA, and in fact it did not. The predicate exception allows for accomplice liability only when a plaintiff makes a plausible allegation that a gun manufacturer "participate[d] in" a firearms violation "as in  something that [it] wishe[d] to bring about" and sought to make succeed. Because Mexico's complaint fails to do so, the defendant manufacturers retain their PLCAA-granted immunity.

The case focused on an aiding-and-abetting theory because under the PLCAA plaintiffs can't prevail merely on a showing of negligence on manufacturers' part (not that the Court had occasion to consider whether there was such negligence).

Justice Thomas concurred, adding a different (though tentative) theory:

[PLCAA's predicate] exception allows otherwise-prohibited suits against gun manufacturers to go forward if, among other requirements, the manufacturer has "knowingly violated a State or Federal statute applicable to the sale or marketing of the product." … It seems to me that the PLCAA at least arguably requires not only a plausible allegation that a defendant has committed a predicate violation, but also an earlier finding of guilt or liability in an adjudication regarding the "violation." Allowing plaintiffs to proffer mere allegations of a predicate violation would force many defendants in PLCAA litigation to litigate their criminal guilt in a civil proceeding, without the full panoply of protections that we otherwise afford to criminal defendants. And, these defendants might even include ones who were cleared in an earlier proceeding, such as through a noncharging decision or a not-guilty or not-liable verdict. Such collateral adjudication would be at best highly unusual, and would likely raise serious constitutional questions that would counsel in favor of a narrower interpretation. Particularly given the PLCAA's aim of protecting gun manufacturers from litigation, this issue warrants careful consideration.

Justice Jackson concurred, reasoning:

PLCAA was Congress's response to a flood of civil lawsuits that sought to hold the firearms industry responsible for downstream lawbreaking by third parties. Activists had deployed litigation in an effort to compel firearms manufacturers and associated entities to adopt safety measures and practices that exceeded what state or federal statutes required. Congress expressed concern that these lawsuits "attempt[ed] to use the judicial branch to circumvent the Legislative branch." PLCAA embodies Congress's express rejection of such efforts—stymying those who, as Congress put it, sought "to accomplish through litigation that which they have been unable to achieve by legislation." Put differently, PLCAA reflects Congress's view that the democratic process, not litigation, should set the terms of gun control.

Viewed in light of this objective, Congress's inclusion of the predicate exception makes perfect sense. The exception allows lawsuits to proceed—despite PLCAA's general grant of immunity—if the complaint alleges that a gun manufacturer or seller "knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought." …

All that Mexico alleges here is that firearms-industry-wide practices—though lawful on their own—facilitated dealers' unspecified downstream violations…. Mexico merely faults the industry writ large for engaging in practices that legislatures and voters have declined to prohibit.

It is for these reasons that I view Mexico's allegations as insufficient to satisfy PLCAA's predicate exception, regardless of whether the business practices described might suffice to establish aiding-and-abetting or other forms of vicarious liability in distinct statutory or common-law contexts. Devoid of nonconclusory allegations about particular statutory violations, Mexico's lawsuit seeks to turn the courts into common-law regulators.

But Congress passed PLCAA to preserve the primacy of the political branches—both state and federal—in deciding which duties to impose on the firearms industry. Construing PLCAA's predicate exception to authorize lawsuits like the one Mexico filed here would distort that basic design.

Noel Francisco argued on behalf of Smith & Wesson.

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[Eugene Volokh] Standard for Proving Title VII Violation Same for Majority Plaintiffs as for Minority Plaintiffs

[The Court rejected some federal circuits' rules that a majority-group plaintiff must "present[] evidence of 'background circumstances' suggesting that the [defendant] was the rare employer who discriminates against members of a majority group."]

From today's unanimous (and, I think, correct) opinion in Ames v. Ohio Dep't of Youth Services (2024), written by Justice Jackson:

The Ohio Department of Youth Services operates the State's juvenile correctional system. In 2004, the agency hired petitioner Marlean Ames, a heterosexual woman, to serve as an executive secretary. Ames was eventually promoted to program administrator and, in 2019, applied for a newly created management position in the agency's Office of Quality and Improvement. Although the agency interviewed her for the position, it ultimately hired a different candidate—a lesbian woman—to fill the role.

A few days after Ames interviewed for the management position, her supervisors removed her from her role as program administrator. She accepted a demotion to the secretarial role she had held when she first joined the agency—a move that resulted in a significant pay cut. The agency then hired a gay man to fill the vacant program-administrator position. Ames subsequently filed this lawsuit against the agency under Title VII, alleging that she was denied the management promotion and demoted because of her sexual orientation….

The [trial] court analyzed Ames's claims under McDonnell Douglas Corp. v. Green (1973), which establishes the traditional framework for evaluating disparate-treatment claims that rest on circumstantial evidence. At the first step of that framework, the plaintiff must make a prima facie showing that the defendant acted with a discriminatory motive. Relying on Circuit precedent, the District Court concluded that Ames had failed to make that showing because she had not presented evidence of "'background circumstances'" suggesting that the agency was the rare employer who discriminates against members of a majority group. Without that evidence, the court held, plaintiffs who are members of majority groups—including heterosexual plaintiffs, like Ames—could not discharge their evidentiary burden at the first step of the McDonnell Douglas inquiry. The Sixth Circuit affirmed….

As a textual matter, Title VII's disparate-treatment provision draws no distinctions between majority-group plaintiffs and minority-group plaintiffs. Rather, the provision
makes it unlawful "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." The "law's focus on individuals rather than groups [is] anything but academic." Bostock v. Clayton County (2020). By establishing the same protections for every "individual"—without regard to that individual's membership in a minority or majority group—Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.

Justice Thomas, joined by Justice Gorsuch, joined the opinion, but added some further analysis criticizing the McDonell Douglas framework itself, and more broadly condemning "judges creating atextual legal rules and frameworks"; I may blog separately about that later.

Xiao Wang (U. Va. School of Law Supreme Court Litigation Clinic) represents plaintiff.

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[Eugene Volokh] Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": A Possible Dark Side

[This is an excerpt from my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong. Here is the final section.]

[S]ome of the other [First Amendment] assumptions that the new technologies will upset may lead to more trouble. Missouri Knights of the KKK v. Kansas City  tells a cautionary tale. In exchange for giving a franchise to a cable company, Kansas City demanded that the company provide a public-access channel. Everything went well until the Ku Klux Klan decided to put on its own show, which offended the city government so much that it authorized the cable system to shut the entire channel down.

A court ultimately overturned the city's action on First Amendment grounds, but the story shows what can happen when the assumptions underlying certain rules are changed. The city's willingness to provide a forum for the little guy, it turned out, was based (perhaps unconsciously) on the supposition that the little guys would either provide a public service or at worst be harmless eccentrics. When the assumption proved false, the consensus behind the rule evaporated.

As the new media arrive, they may likewise cause some popular sentiment for changes in the doctrine. Today, for instance, the First Amendment rules that give broad protection to extremist speakers—Klansmen, Communists, and the like—are relatively low-cost, because these groups are politically rather insignificant. Even without government regulation, they are in large measure silenced by lack of funds and by the disapproval of the media establishment. What will happen when the KKK becomes able to conveniently send its views to hundreds of thousands of supporters throughout the country, or create its own TV show that can be ordered from any infobahn-connected household?

Likewise, the broad protection for false speech  evolved in a time when the main suppliers of news and opinion were large, ostensibly nonpartisan, media organizations. Obviously these broadcasters and publishers weren't entirely reliable—they still lost some libel lawsuits even after New York Times v. Sullivan—but they were the sort of speakers that people could feel relatively comfortable with.

But with the emergence of talk radio as a powerful force, some have begun to grouse. Consider, for instance, a recent speech to the National Association of Broadcasters by FCC Chairman Reed Hundt, whose Commission decides whether to renew the broadcasters' licenses. Chairman Hundt, focusing specifically on talk radio, "urged station owners and management to … emphasiz[e] accuracy and truth over a quest for ratings and advertising dollars."  "As a society," the chairman said, "we need solutions to public disinformation and misinformation, but solutions that don't involve governmental intrusion and yet don't leave us callously indifferent to truth or falsity."  While this isn't yet a call for greater regulation-the chairman specifically "stressed that the FCC should not be the judge of content or quality in radio's public discourses" -it shows the sort of concern that may be a harbinger of future regulatory proposals.

Finally, current First Amendment law developed in a time when the public got its news and opinion from sources that provided a relatively broad mix of topics and viewpoints. Someone buying a newspaper or watching the nightly news would see a variety of stories, stories that professional editors thought fairly covered the most important issues facing the nation. And these stories would be a common base that people would be able to talk about with their acquaintances. The media, of course, were often criticized for falling down on the job, by covering fluff instead of the really important issues.  But these criticisms only help show that people do think it's the media's job to give the public a trustworthy mix of the truly important news of the day.

As listeners get more control over the topics and viewpoints they see, they may choose to focus on a much narrower mix of information. They may subscribe only to articles on topics in which they're interested, or to commentators with whose opinions they already agree. They may consciously choose fluff—more easily than they can today—over serious news.

Listeners will no longer be a captive audience to the selection that the intermediaries—publishers and broadcasters—want to feed them. Will listeners do a better job of informing themselves than the intermediaries have been doing? When the media aren't there to help set a national agenda, or to give people a common base of information to argue from, will people be able to deliberate together? I think the answer to both questions is yes, but others, including many in the audience when I presented this paper at the Symposium, disagree.

In my view, none of these changes, significant as they may be, should cause us to reconsider the basics of First Amendment law. The dangers of extremists with access to the media, of falsehoods with an audience in the millions, and of an ill-informed electorate are quite real; but the dangers of content regulation, it seems to me, are greater. And the dangers of regulation are exacerbated by the difficulty of doing anything about the most significant problems (here, the possibility that people will choose to watch or read infotainment instead of the important news of the day seems particularly intractable). Finally, the criticisms by Dean Thomas G. Krattenmaker and Professor L.A. Powe of the FCC's attempts at content regulation seem to me hard to answer.

Still, the media will change, and change dramatically. As people find themselves in a new media environment there'll be new calls for regulation, and new calls for changes to First Amendment doctrines that some people may think are no longer apt.

I may be wrong in my predictions about what the new media order will look like. But the one thing that seems certain is that the new order will, in many ways, be vastly different from the old.

The post Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": A Possible Dark Side appeared first on Reason.com.

[Eugene Volokh] Texas Harassment Conviction for Sending 34 Messages Over 15 Weeks to Ex-Therapist Violates First Amendment

[So Texas's high court for criminal matters held yesterday.]

In yesterday's decision by the Texas Court of Criminal Appeals (written by Judge Mary Lou Keel) in Owens v. State, Owens had been found guilty of criminal harassment and sentenced "to 180 days in jail and a $500 fine"; the law outlaws "send[ing] repeated electronic communications in a manner reasonably likely to [and intended to] harass, annoy, alarm, abuse, torment, embarrass, or offend another." His conduct consisted of "sending about three dozen electronic messages to his former therapist [at her professional accounts] during a 15-week period," mostly via email but some via text and Facebook.

The court held this unconstitutionally punished Owens for his speech:

Sending messages is an act, but the messages themselves are speech, and the prosecution in this case was based on Appellant's speech, not his action. It was the content of the messages, not the manner of their sending, that drove the prosecution. Bira called the police on receipt of the first message—not after the receipt of repeated messages. She was disturbed by the content of the first and subsequent messages, not merely the manner in which they were sent. She admitted that both the "repeated forced contact" and the content of the communications were harassing.

Appellant would not have been prosecuted if his messages had expressed a different tone or message; he would have avoided prosecution if he had said "good morning" instead of accusing Bira of raping him. Bira and the judge both said so; if Appellant's first email had been worded differently, if he had reached out politely asking to speak with her, she would have obliged, and he would not have been prosecuted and punished. Instead, she contacted SAPD because of the content of the first message. She "felt abused from that very first email. Highly harassed."

As the trial judge pointed out when assessing Appellant's punishment, "Of course it's punishment for speech … if you're saying good morning in an e-mail, it's not the same thing as calling someone a name like a whore in an e-mail." The manner of the communications was immaterial; it was their content that drove the prosecution.

We acknowledge Bira's right to be free from unwelcome ideas invading her substantial privacy rights in an essentially intolerable manner…. But here section 42.07(a)(7) was used to regulate Appellant's speech, not his conduct. Appellant's First Amendment right to communicate must be delicately balanced with Bira's privacy rights, and the scale is tipped in Appellant's favor in this case for three reasons.

First, there was no invasion into the home. The messages were not sent to Bira's home or her personal accounts, they were sent to her professional email and office phone that she used for communicating with patients and to her professional social media account that was public.

Second, Bira was not a captive audience in this situation; she was not powerless to avoid the messages. She could have deleted the messages without reading them or blocked Appellant's email address, phone number, and social media accounts, but she chose not to.

Third, the government's ability to regulate speech depends on more than a simple invasion of privacy; it requires an invasion of substantial privacy rights in an essentially intolerable manner. Thirty-four messages sent in a span of more than three months to publicly accessible, commercial accounts controlled by a willing listener is no such invasion.

Because Appellant was prosecuted for the content of his messages, the statute's application is presumptively unconstitutional and may be justified only if the government proves its application was narrowly tailored to serve compelling state interests. The State makes no such showing here….

Here are the details on the messages:

In 2016, Dr. Lindsay Bira was a newly licensed psychologist, and Appellant became one of her clients, meeting her weekly for therapy. He was soon dissatisfied with the sessions, and Bira was uncomfortable with him. Bira tried to refer him to another psychologist, but Appellant refused the referral, and after eleven sessions, he stopped seeing Bira, cancelled his remaining sessions, and emailed Bira telling her to never contact him again. She had no contact with him until about two years later.

On May 13, 2018, Appellant sent Bira an email that said "some very concerning, upsetting things." It said:

My life is just as hopeless as ever

Maybe if I had the genes that would allow me to consider a modeling career then my life would be better, but I didn't.

You exploited, abused, and then abandoned me. I will never give you any more money, but if you wanted to talk to me then that would be possible. I'm sure you have better things to do though.

Bira testified, "This was sickening. It was highly concerning, especially what I already knew about him. And I was scared." She did not reply to the email but forwarded it to the San Antonio Police Department (SAPD). They told her not to block Appellant's email address so officers could document the messages and see if they escalated.

In Appellant's second email, sent June 14, 2018, he rambled on about various aspects of Bira's personal and professional life that he found on the internet and social media. He commented about her family, childhood, friends, boyfriends, and career. He researched a traumatic event she experienced in college. He indicated that he knew her personal phone number and home address. He mentioned photos of her that he found on social media; one from her "modeling days in a see-through top," and others related to her dating relationships. He referred to her as "eye candy" and said he would not be surprised if she were a prostitute.

Bira said the email was "horrific and concerning." She felt terrified that someone would make accusations about her, would want her to suffer, and would want her to know that he knew personal information about her and her friends and family. She did not respond to the email. Later that day, Appellant sent another email that said, "You have nothing to say? I'm surprised, I thought you were a powerful woman." Bira testified that even though her personal Facebook and Instagram accounts were private, police advised her to block anyone with Appellant's name on social media.

In the next email, sent July 1, 2018, Appellant purported to revoke his agreement with Bira's policies related to her practice, privacy, and consent for psychological services. Bira testified that these were standard legal intake forms that Appellant had signed when he began therapy, and there was nothing to revoke since treatment had already ended.

An email sent July 3, 2018, included a comment about one of her previous relationships along with a photo of Bira that had been posted on her boyfriend's Instagram page. She did not know how Appellant found out who she was dating, and she found it "extremely concerning and terrifying." Thirty minutes later, Appellant sent another email calling Bira "a shitty therapist and an even worse psychologist" and said she would "always be a terrible person." He indicated that he was monitoring her social media and her client website and surmised that she was more active on social media when she could not fill her client schedule. Bira testified that her professional social media was public, but she became uncomfortable, uneasy, and anxious about posting anything to social media knowing that Appellant was monitoring her posts. Appellant sent two more emails that day saying Bira had abused him, raped him, and exploited him. Bira submitted these to SAPD as escalated contact and harassment and was again advised not to respond.

On July 4, 2018, Appellant sent an email asking Bira for a refund of the money he paid for the therapy sessions, saying that she did not help him, she tricked him, she cheated him, and she owed him $1,785.

Five days later, Appellant sent an email with the subject line "You are encouraging me to kill myself." Bira testified that she knew Appellant was trying to get her to respond, and she was not concerned on a clinical level, but she had to respond to cover her bases and to make sure she was doing the right thing. She replied to Appellant's email from an office manager administrative account that was used for dealing with patients who might pose a risk. The "office manager" response to Appellant's email advised him to call 911, go to the emergency room, or call a suicide hotline; it said his contact had been reported to SAPD and future contact from him would be forwarded to police and legal personnel. Appellant replied that he was not considering suicide and asked for the office manager's name. Appellant sent Bira another email saying that she abused him, she wanted him to be a slave, and he was "raped every day." Another message was sent to the "office manager" email address again asking for her full legal name.

Appellant began text messaging Bira on July 10, 2018, asking for his money back and saying she was abusive, trying to get revenge, was a terrible person, and had lied to him and cheated him.

On July 12, 2018, Appellant emailed Bira asking when she was going to return his money. He said, "You lied to me and you didn't do your job. I want my money back. You owe me. You didn't earn it and you never deserved it." He also used an alias to send a Facebook message calling Bira "a terrible therapist and a shitty person" and saying, "I want the money you owe me, and then we will be done."

Appellant sent eight emails from July 17th to 18th in which he requested a refund, referred to himself as a victim, and claimed Bira had abused and raped him. He referenced talking about Bira to one of her colleagues and quoted information that had been posted on her professional Instagram page. He included a quote about life being stolen by fear and said, "You are the one who told me to not be afraid. How's that working out for you?" He also referenced one of her favorite quotes that she often used in public speaking, "People are disturbed not by a thing, but by their perception of a thing." Appellant said, "You're just making yourself upset, so I'm not doing anything wrong."

From July 25, 2018, through August 25, 2018, Appellant sent seven emails accusing Bira of being a con artist and of abusing him, tricking him, exploiting him, sexually assaulting him, and touching him "in a sexual and inappropriate way during therapy." He said she violated confidentiality, and he requested his records and referrals. He also asked Bira to find a girlfriend for him.

Bira testified that she forwarded all the messages to SAPD and that Appellant was sent cease and desist letters from both SAPD and her attorney. She testified that the messages made her feel scared, horrified, abused, harassed, and embarrassed, and she was concerned for her safety. She said she had difficulty seeing patients during this time frame because she was worried that Appellant was going to show up at her office and harm her. She eventually stopped seeing patients in person, switched her practice to video therapy sessions only, and moved out of state.

Defense counsel asked Bira if she felt harassed because Appellant sent her messages or because of what the messages said. She replied, "It was repeated forced contact from Kevin Owens, along with what he chose to say to me …The action of him repeatedly e-mailing me even after two cease and desists, and me saying do not. That act felt harassing, and also what he chose to say to me felt harassing."

She said that if Appellant had sent her an email initially that said, "hey, I really want to chat with you. It's been a while, but I have something that I want to discuss that's lingering with me" she would have said, "absolutely, let's set up a call." Instead, Appellant "chose an illegal harassing way to approach" her to discuss his concern, so she did not reply to him. The defense asked Bira again whether it was the fact of getting the emails that harassed her or their content that made her feel harassed, and she replied that it was both. Bira testified that she "felt abused from that very first email. Highly harassed." …

Judge Gina Parker concurred in part and dissented in part; the opinion is long and hard to summarize, but it largely argued that it would have been permissible for the jury to convict defendant if found that he intended to "harass, … abuse, [or] torment" defendant, but not merely if he intended to "annoy, alarm, … embarrass, or offend" her:

To some degree, the repetition inherent in the terms "harass," "torment," and "abuse," make content less important to the offense. To the extent content still matters, these terms ensure that it is considered onlywhen needed to show an intolerable violation of privacy. It is one thing to say that people should not be required to "walk on eggshells" when they speak and quite another to say that a person can systematically target another in a way that significantly disrupts the target's life or causes the target to feel like she has to constantly look over her shoulder. There is a point at which unwanted communication is pervasive enough to be an intolerable violation of privacy, and that point is captured by the words "harass," "torment," and "abuse."

Judge Kevin Yeary dissented, focusing mostly on interpretation of an earlier Texas Court of Criminal Appeals precedent. He also added,

The First Amendment protects a lot. But I do not believe it protects a person's right to bombard another private person with a barrage of repeated electronic communications of a kind designed, and reasonably likely, to {harass, annoy, alarm, abuse, torment, embarrass, or offend}.

The post Texas Harassment Conviction for Sending 34 Messages Over 15 Weeks to Ex-Therapist Violates First Amendment appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: June 5, 1916

6/5/1916: Justice Louis Brandeis takes the oath.

Justice Louis Brandeis

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[Ilya Somin] Trump's Massively Cruel New Travel Ban

[He has banned nearly all new immigration and other entry by citizens of twelve countries, and imposed severe restrictions on seven more.]

(NA)

In a major expansion of his assault on legal immigration, Donald Trump today announced a massive new travel ban. It goes beyond those instituted in his first term. My Cato Institute colleague Alex Nowrasteh - a leading immigration policy expert - has a helpful summary of the travel ban, and why it's utterly unjustified:

President Trump announced that he's banning almost all travel and immigration from Afghanistan, Burma, Chad, the Republic of Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen for "terrorism-related and public-safety risks." There are some exceptions for adoptions, immediate family members of US citizens, and a handful of other visas. A single terrorist from those countries murdered one person in an attack on US soil: Emanuel Kidega Samson from Sudan, who committed an attack motivated by anti-white animus in 2017. The annual chance of being murdered by a terrorist from one of the banned countries from 1975 to the end of 2024 was about 1 in 13.9 billion per year….

Trump also restricted travel from Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela, albeit less severely than from the dozen countries above. Terrorists from those countries murdered five people in attacks on US soil since 1975, the last one in 1980. Cuban terrorists were the only perpetrators of attackers during that period who murdered people in their attacks.

The threat of foreign-born terrorism on US soil is above zero but also small and manageable without further government interventions. The government spends much more on anti-terrorism activities than would pass a cost-benefit test. The last person murdered in an attack committed by a foreign-born terrorist was in 2019 when Saudi-born Mohammed Saeed Alshamrani murdered three in a shooting at the Pensacola Naval Air Station. He was here on a visa training with the US military. Zero Americans were murdered in attacks on US soil committed when President Biden was in office, the first administration in my data set not to have a single American die in such an attack.

As Alex explains, immigrants from the affected countries also have lower crime rates than native-born Americans. Barring them will not improve public safety:

Trump also justified the country-level travel and immigration restrictions to prevent immigrant criminality on the assumption that travelers and immigrants from those countries are serious sources of crime. According to the US Census and American Community Survey Data, travelers and immigrants from the dozen banned countries have a nationwide incarceration rate of 370 per 100,000 in 2023 for the 18-54 aged population – 70 percent below that of native-born Americans. Their incarceration rate is about 16 percent higher than for all legal immigrants and 40 percent below all illegal immigrants. The incarceration rate for the visa-restricted countries of Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela was almost identical at 369 per 100,000.

As the American Immigration Council explains, barring nearly all migrants from these countries will significantly damage the US economy, and have negative humanitarian effects, as well. I would add that migrants from many of these countries - including Afghanistan, Cuba, Iran, and Venezuela - are fleeing horrific poverty and oppression by communist, radical Islamist, and other authoritarian regimes. If Republicans truly cared about combating communism and radical Islamism, they wouldn't shut America's doors to their victims.

Thanks in large part to the Supreme Court's badly flawed 2018 ruling upholding an earlier Trump travel ban in Trump v. Hawaii, it will be nearly impossible to challenge this new travel ban on the grounds that it is motivated by ethnic or other bigotry. But it may be possible to challenge on other grounds.

Back in 2020, I outlined how an earlier Trump travel ban could potentially be challenged under the nondelegation doctrine, which constrains the transfer of legislative power to the executive. As interpreted by the Supreme Court in Trump v. Hawaii, 8 U.S.C. Section 1182(f) - the statute underlying both the first term travel bans and this new one - seems to give the president nearly unlimited discretion to restrict any and all immigration. Today's gargantuan travel ban, based on little or no justification, reflects that understanding. That sure seems like the very sort of "unlimited" grant of authority two courts just struck down as unconstitutional in last week's rulings against Trump's tariffs (including in a case brought by the Liberty Justice Center and myself).

The immigration situation is more complicated than that of tariffs. Among other things, Article I of the Constitution specifically gives Congress power over tariffs, while the Constitution does not clearly indicate which branch of government has the power to restrict immigration (most likely because the federal government wasn't supposed to have that power at all). But in the 1889 Chinese Exclusion Case  - the awful decision establishing that the federal government does have power over immigration - the Supreme Court states that the authority belongs to "the legislative department."

I will likely have more to say about possible legal challenges in future posts.

The post Trump's Massively Cruel New Travel Ban appeared first on Reason.com.

[Ilya Somin] Morning Consult Poll Indicates Judicial Invalidation of Trump's Tariffs is Popular

[The poll finds 55% approve and only 30% disapprove of the recent ruling against his IEEPA tariffs.]

(NA)

A new Morning Consult poll indicates that the recent Court of International Trade decision striking down Donald Trump's "Liberation Day" and other IEEPA tariffs in a case brought by the Liberty Justice Center and myself, enjoys broad public support. According to the poll, 55% approve of the ruling, while only 30% disapprove.

(Morning Consult)

Large majorities of both Democrats and independents support the CIT decision, while Republicans are almost equally divided. This result is consistent with other survey data showing that the tariffs themselves are highly unpopular.

The People are with us! Yay!

The popularity of the CIT decision says little about its correctness. I've long been skeptical of "popular constitutionalism" and have written extensively about the dangers of political ignorance.  I advocate many unpopular views, and am not one to argue that vox populi is vox dei. Far from it!

Obviously, I believe the CIT decision was right, and appellate courts should affirm it. But it isn't right merely because most of the public agrees with it.

Still, popularity can be helpful. At the margin, wavering judges may be more willing to strike down a major presidential policy initiative if they think doing so will be popular, and their ruling will enjoy strong political support. And if, as many fear, the Trump Administration is considering systematically defying court orders (as it has already to an extent done in some immigration cases), it will be less likely to do so in the case of popular rulings, and less likely to get away with it if they try.

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