Eugene Volokh's Blog, page 89

[Eugene Volokh] Court Unsurprisingly Rejects 25th Amendment Claim

From Derewal v. Vance, decided today by Judge Jia Cobb (D.D.C.):

Turning to the complaint itself, Derewal alleges that the "25th Amendment must be invoked due to this constitutional crisis of our lifetime from senior's SSA improperly withheld to our eco-damage and not honoring the role of POTUS," and that "J.D. Vance, in his official-capacity, must call for 25th Amendment vote of Cabinet and enforcement." She requests that this Court enjoin the constitutional crisis "by calling for 25th Amendment vote and enforcement," and provide "any additional relief that th[e] Court deems just and proper." …

[T]o the extent that Derewal's sought-after relief is an injunction removing the President from office under the Twenty-Fifth Amendment, the Court has no power to issue such an order. See Ballard v. Ohio Elections (S.D. Ohio 2025) (dismissing pro se complaint requesting that the court "invoke the Twenty-Fifth Amendment of the United States Constitution to forcibly remove the current President from office" because "neither the Twenty-Fifth Amendment nor any federal statute gives the Court such a broad power"). The Twenty-Fifth Amendment vests the Vice President and "a majority of … the principal officers of the executive departments"—not this Court—with the discretion to initiate any attempt to remove a sitting President….

[Furthermore,] {"[t]o establish standing, a plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief." Derewal's complaint contains no factual allegations explaining how she has been concretely injured by Defendants' actions. Derewal states that "senior's SSA [has been] improperly withheld" and that there has been "eco-damage," but does not allege that she has herself been affected by either of these actions. Absent any allegations to suggest Derewal has some "particularized stake in the litigation," this suit presents "precisely the kind of undifferentiated, generalized grievance about the conduct of government" that courts may not hear.}

The court also denies plaintiff's renewed motion to proceed pseudonymously.

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[Ilya Somin] Federal District Court Issues Another Ruling Against Trump's IEEPA Tariffs

[The decision by Judge Rudolph Contreras of the US District Court for the District Columbia holds IEEPA doesn't authorize the president to impose tariffs at all.]

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Yesterday, the US Court of International Trade (CIT) issued a unanimous ruling in the case against Trump's "Liberation Day" tariffs filed by Liberty Justice Center and myself on behalf of five small businesses. The ruling also covers the related case filed by twelve states led by Oregon (those plaintiffs also won). See my summary and discussion of the CIT decision here. Today, we have another federal court decision against the Trump's attempts to use the International Emergency Economic Powers Act of 1977 (IEEPA) tariffs: Learning Resources, Inc. v. Trump.

It was issued on  by Judge Rudolph Contreras of the federal District Court for the District of Columbia (DDC), in Unlike the CIT ruling, it applies only to tariffs imposed against the two toy manufacturers that brought the case. But it is notable that Judge Contreras concluded IEEPA doesn't grant the president the power to impose tariffs at all, thereby going further than the CIT decision does. If it did grant the sweeping authority claimed by Trump, Judge Contreras, like the CIT panel, noted that would be an unconstitutional delegation of legislative power, and "render IEEPA unconstitutional." While the impact of the DDC ruling is very limited, it further bolsters the case against Trump's abusive tariff power grab.

In our case, we too argued that IEEPA doesn't grant any power to impose tariffs at all. The CIT decision equivocates on that issue, limiting itself to holding that IEEPA at least doesn't grant the sweeping virtually unlimited power claimed by Trump, and necessary to justify the "Liberation Day" tariffs. By contrast, Judge Contreras concludes that IEEPA doesn't grant any tariff authority of any kind. Here is an excerpt from his ruling:

Since the Founding, the Constitution has vested the "Power to lay and collect Taxes,
Duties, Imposts and Excises" with Congress. U.S. Const. art. I, § 8, cl. 1. The President has no independent discretion to impose or alter tariffs. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). Any Presidential tariffing authority must be delegated by Congress….

IEEPA does not use the words "tariffs" or "duties," their synonyms, or any other similar terms like "customs," "taxes," or "imposts." It provides, as relevant here, that the President may, in times of declared national emergency, "investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit" the "importation or exportation" of "property in which any foreign country or a national thereof has any interest." 50 U.S.C. § 1702(a)(1)(B). There is no residual clause granting the President powers beyond those expressly listed. The only activity in Section 1702(a)(1)(B) that could plausibly encompass the power to levy tariffs is that to "regulate . . . importation…."

The Court agrees with Plaintiffs that the power to regulate is not the power to tax… The Constitution recognizes and perpetuates this distinction. Clause 1 of Article I, Section 8 provides Congress with the "Power To lay and collect Taxes, Duties, Imposts
and Excises." Clause 3 of Article I, Section 8 empowers Congress "To regulate Commerce with foreign Nations." If imposing tariffs and duties were part of the power "[t]o regulate [c]ommerce with foreign [n]ations," then Clause 1 would have no independent effect. As Chief Justice Marshall put it in an early leading case, "the power to regulate commerce is . . . entirely distinct from the right to levy taxes and imposts." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 201 (1824)….

"Tariff" and "regulate" also take different plain meanings. To regulate something is to
"[c]ontrol by rule" or "subject to restrictions." Regulate, The Concise Oxford Dictionary of Current English 943 (6th ed. 1976); see also Regulate, New Webster's Dictionary of the English Language 1264 (1975) ("to govern by or subject to certain rules or restrictions")…  Tariffs are, by contrast, schedules of "duties or customs imposed by a government on imports or exports." Tariff, Random House Dictionary of the English Language 1454 (1973). To regulate is to establish rules governing conduct; to tariff is to raise revenue through taxes on imports or exports… Those are not the same….

Judge Contreras has several additional justifications for his ruling on this point that are too long to excerpt here. But they are good points, as well.

Like the CIT decision, Judge Contreras argues that interpreting IEEPA to grant the sweeping authority claimed by Trump would render it unconstitutional, which is an additional reason to rule against the administration:

Defendants' interpretation could render IEEPA unconstitutional. IEEPA provides that the President may "regulate . . . importation or exportation." 50 U.S.C. § 1702(a)(1)(B). The Constitution prohibits export taxes. See U.S. Const. art. I, § 9, cl. 5 ("No Tax or Duty shall be laid on Articles exported from any State."). If the term "regulate" were construed to encompass the power to impose tariffs, it would necessarily empower the President to tariff exports, too. The Court cannot interpret a statute as unconstitutional when any other reasonable construction is available. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 563 (2012).

I think Judge Contreras' analysis here is compelling, and other judges should follow it.

Judge Contreras' decision is in large part a jurisdictional ruling on whether cases challenging the IEEPA tariffs must be filed in CIT (he concludes they need not be, because IEEPA doesn't authorize tariffs). I will not try to assess this jurisdictional issue here. I will only note I believe CIT does have jurisdiction over such cases (which is why we filed our case there), but I have no strong view on whether CIT's jurisdiction is exclusive, as the Trump Administration has argued. As Judge Contreras notes, two other district courts have ruled that it is indeed exclusive, and ordered the relevant cases to be transferred to CIT.

It's possible that an appellate court will ultimately overturn this decision on the jurisdictional issue. But his substantive reasoning is still strong, and deserves to be adopted by other courts, even if it is not a binding precedent.

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[Ilya Somin] Federal Circuit Issues Brief Administrative Stay in Our Tariff Case

[This is a standard order imposing a brief stay of the trial court ruling, while the parties litigate the issue of whether a longer stay should be imposed.]

Last night, the US Court of International Trade (CIT) issued a unanimous ruling in the case against Trump's "Liberation Day" tariffs filed by Liberty Justice Center and myself on behalf of five US businesses harmed by the tariffs. The ruling also covers the related case filed by twelve states led by Oregon. See my summary and discussion of the ruling here.

As expected, the Trump Administration is appealing the decision to the US Court of Appeals for the Federal Circuit, the appellate court with jurisdiction over appeals from the CIT. Today, the Federal Circuit issued an "administrative stay" temporarily blocking the CIT ruling. This is not an indefinite stay blocking the CIT injunction for as long as it takes to complete the appellate process. Rather, an administrative stay is just a brief temporary block imposed while the issue of whether a more permanent stay pending appeal should be implemented gets litigated. I anticipate that process will take no more than two or three weeks. To put it  different way, this is a brief temporary stay intended to give the court time to consider whether a longer stay should be imposed.

We and the plaintiffs in the Oregon case intend to oppose the government's motion to impose an indefinite stay, and we think we have strong arguments against it.

The difference between administrative stays and regular stays pending appeal is one of those confusing technicalities that makes ordinary people hate lawyers. I'm a law professor, and I find it annoying myself. I have tried to explain it as best I can. If you want a more detailed explanation, see this article by University of Virginia law Prof. Rachel Bayefsky.

I will have more to say about the case soon!

 

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[David Post] Buddy, Can You Spare A Million Bucks?

[The appalling consequences of presidential immunity.]

Here, just for historical purposes, is the federal bribery statute (18 U.S.C. §201(b)), a heart-warming relic of the days when accepting a cash payment in exchange for committing an official act was considered disqualifying for public officials - even/especially for Presidents:

"Whoever, being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:

(A) being influenced in the performance of any official act;

(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C) being induced to do or omit to do any act in violation of the official duty of such official or person; . . .

shall be fined under this title not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.

Notoriously difficult to prove beyond a reasonable doubt (though don't remind former Senator Bob Menendez of that!). I suppose that there are some readers who actually believe that Dear Leader's pardon of Paul Walczak was not "influenced" or "induced" by the $1,000,000 that his mother paid to Trump's PAC (MAGA, Inc.) a few weeks before the pardon was issued - that it simply reflects the soft spot in Dear Leader's heart for tax cheats who steal money from doctors and nurses (AKA "suckers") in order to buy yachts and other luxury goods.

I guess we'll never know for sure.  To the best of my knowledge, the White House has not issued any statement regarding the pardon.  And, of course, we'll never see Trump indicted for bribery, not just because the DOJ is not interested in pursuing charges against our D.L. or those who shower money upon him, but also because he is almost certainly acting within the presidential immunity announced last year in the [aptly-named] Trump v. United States case.

The opinion makes for interesting reading in light of this new grift Trump has concocted. As you no doubt recall, the Court found that there was a "presumptive immunity" from criminal prosecution for a President's "official acts" - acts within "the outer perimeter of his official responsibility." Such an immunity is "required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution."

"An official act is one taken by the President pursuant to constitutional and statutory authority to perform the functions of his office. Determining whether an action is covered by immunity thus begins with assessing the President's authority to take that action. . . .  In dividing official from unofficial conduct, courts may not inquire into the President's motives."

"[C]ourts cannot examine the President's actions on subjects within his 'conclusive and preclusive' constitutional authority. It follows that an Act of  Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President's actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority."

And the pardon power, of course, is within the President's exclusive sphere of constitutional authority, given the express language in Article II of the Constitution that the President "shall have Power to grant Reprieves and Pardons for Offences against the United States."

To the executive alone is intrusted the power of pardon, and the legislature cannot change the effect of such a pardon any more than the executive can change a law." The President's authority to pardon, in other words, is "conclusive and preclusive," "disabling the Congress from acting upon the subject."

I assume this means that our D.L. could set up a little pop-up stand near the White House, out in the open, and dispense pardons to anyone willing to pay the price he sets, and the only remedy available is impeachment.

It's a nice gig if you can get it, no?

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[Jonathan H. Adler] "The Central Principle of Judicial Review in NEPA Cases Is Deference"

[Some additional thoughts on today's Supreme Court decision in Seven County Infrastructure Coalition.]

Today's Supreme court decision in Seven County Infrastructure Coalition v. Eagle County (which I discussed here) augurs a substantial change in how courts review agency compliance with the National Environmental Policy Act (NEPA). It is, as Justice Kavanaugh's opinion for the Court explains, a "course correction" intended to "bring judicial review under NEPA back in line with the statutory text and common sense." In this regard, the decision is  a substantial rebuke to lower courts that have expanded and inflated NEPA's requirements.

Fitting for this moment in time, Seven County Infrastructure Coalition is something of a requel to Vermont Yankee. In that 1978 opinion, the Court had explained that "courts are to play only a limited role" in reviewing agency compliance with NEPA, an admonition many lower courts (including the D.C. Circuit) had seemed to forget.

This rebuke of lower courts is not confined to the Kavanaugh opinion. The court was unanimous in concluding that the D.C. Circuit had adopted an unduly expansive interpretation of agency obligations under NEPA--an interpretation contrary to the statutory text and the Supreme Court's own prior decisions. As Justice Sotomayor's opinion concurring-in-the-judgement makes clear, the D.C. Circuit opinion below was hard to square with the Court's prior decisions in Department of Transportation v. Public Citizen and Metropolitan Edison v. PANE, particularly insofar as the D.C. Circuit sought to require the Surface Transportation board to consider environmental impacts from other projects over which the STB has no control and could not address.

Even more significant is the Court's declaration that "the central principle of judicial review in NEPA cases is deference." So there is no confusion, Justice Kavanaugh makes the point again a few pages later: "The bedrock principle of judicial review in NEPA cases can be stated in a word: Deference."

As Justice Kavanaugh explains, this is a consequence of recognizing that judicial review of an EIS is to be conducted under the arbitrary and capricious standard, and represents only one element in reviewing an agency action:

When a party argues that an agency action was arbitrary and capricious due to a deficiency in an EIS, the reviewing court must account for the fact that NEPA is a purely procedural statute. Under NEPA, an agency's only obligation is to prepare an adequate report. "NEPA requires no more." Strycker's Bay Neighborhood Council, 444 U. S., at 228. . . . when reviewing an agency's EIS, "the only role for a court" is to confirm that the agency has addressed environmental consequences and feasible alternatives as to the relevant project. Id., at 227; see Vermont Yankee, 435 U. S., at 551, 555. Because an EIS is only one input into an agency's decision and does not itself require any particular substantive outcome, the adequacy of an EIS is relevant only to the question of whether an agency's final decision (here, to approve the railroad) was reasonably explained.

In short, when determining whether an agency's EIS complied with NEPA, a court should afford substantial deference to the agency. . . .

The agency is better equipped to assess what facts are relevant to the agency's own decision than a court is. As a result, "agencies determine whether and to what extent to prepare an EIS based on the usefulness of any new potential information to the decisionmaking process." Public Citizen, 541 U. S., at 767 (emphasis added). So the question of whether a particular report is detailed enough in a particular case itself requires the exercise of agency discretion—which should not be excessively second-guessed by a court. Brevity should not be mistaken for lack of detail. . . .

To tie all of this together: When assessing significant environmental effects and feasible alternatives for purposes of NEPA, an agency will invariably make a series of fact-dependent, context-specific, and policy-laden choices about the depth and breadth of its inquiry—and also about the length, content, and level of detail of the resulting EIS. Courts should afford substantial deference and should not micromanage those agency choices so long as they fall within a broad zone of reasonableness. As the Court has emphasized on several occasions, and we doubly underscore again today, "inherent in NEPA . . . is a 'rule of reason,' which ensures that agencies determine whether and to what extent to prepare an EIS based on the usefulness of any new potential information to the decisionmaking process." Public Citizen, 541 U. S., at 767. A reviewing court may not "substitute its judgment for that of the agency as to the environmental consequences of its actions." Kleppe, 427 U. S., at 410, n. 21. . . .

Indeed, Justice Kavanaugh makes clear that minor deficiencies in an agency's EIA are not necessarily grounds for vacating an agency decision.

courts not only must defer to the agency's reasonable choices regarding the scope and contents of the EIS, but also must keep in mind that review of an agency's EIS is not the same thing as review of the agency's final decision concerning the project. . . . 70–71. That, too, follows from NEPA's status as a purely procedural statute. The ultimate question is not whether an EIS in and of itself is inadequate, but whether the agency's final decision was reasonable and reasonably explained. Review of an EIS is only one component of that analysis. Even if an EIS falls short in some respects, that deficiency may not necessarily require a court to vacate the agency's ultimate approval of a project, at least absent reason to believe that the agency might disapprove the project if it added more to the EIS

Although Justice Kavanaugh's opinion makes no mention of the recent D.C. Circuit opinion concluding that the Council on Environmental Quality lacks the statutory authority to adopt regulations under NEPA imposing obligations on other agencies, his opinion is entirely consonant with Judge Randolph's opinion. As Justice Kavanaugh explains, under NEPA each agency is to make its own determination as to the scope of environmental review necessary in the execution of that agency's statutory responsibilities, and courts are to defer to such judgments so long as they are reasonable. That was Congress's plan. So if an individual agency wants to adopt its own regulations detailing how it will fulfill its NEPA obligations (as some have), so be it. But agencies will not be required to adopt such rules by CEQ or the courts (and insofar as CEQ purports to adopt NEPA regulations binding on other agencies, I would no longer bet on the success of suits to enforce such rules prevailing in court).

One final point. I could not help but be struck by this sentence in Justice Kavanaugh's opinion:

As a general matter, when an agency interprets a statute, judicial review of the agency's interpretation is de novo. See Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 391–392 (2024).

Queue the debates on the difference between de novo review and "due respect." On the other hand, as Justice Kavanaugh has warned us not to over-read Loper Bright Enterprises, perhaps we should not over-read Seven County Infrastructure Coalition either.

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[Eugene Volokh] Women-Only Naked Spa Lacks First Amendment Right to Exclude Transgender Patrons with Penises

[So the Ninth Circuit held today, by a 2-1 vote. I tentatively think the majority got it right as a matter of First Amendment law and statutory interpretation, though I think such statutes ought to be written to include some privacy exceptions as to gender identity and not just sex.]

From Olympus Spa v. Armstrong, decided today by Ninth Circuit Judge Margaret McKeown, joined by Judge Ronald M. Gould:

In 2020, the HRC [Human Rights Commission], the agency tasked with enforcing WLAD [Washington Law Against Discrimination], received a complaint from a transgender woman. The complaint alleged that Olympus Spa "denied [her] services and stated that transgender women without surgery are not welcome because it could make other customers and staff uncomfortable." Specifically, the Spa excluded preoperative transgender women who have not yet received gender confirmation surgery affecting their genitalia….

WLAD is a wide-reaching law that prohibits discrimination in a variety of areas, including employment, real estate, public accommodations, credit, and insurance. The public accommodations section covers discrimination in the "right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement." WLAD proscribes discrimination based not only on race but also categories including "age, sex, sexual orientation, and disability." … WLAD … [defines] "sexual orientation" … to mean:

heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, "gender expression or identity" means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.

WLAD's governing regulations permit the maintenance of certain "gender-segregated facilities," such as "restrooms, locker rooms, dressing rooms," and similar spaces, so long as the facility does not remove or otherwise take action against a person for reasons "[]related to their gender expression or gender identity." … The Spa does not dispute that WLAD's proscription of discrimination on the basis of sexual orientation applies to its conduct here. Nor could it…. The statutory language is undoubtedly expansive, and its definition of sexual orientation is bespoke. But it is also unambiguous, and it applies to the Spa's entrance policy….

The court rejected the SPA's free speech claim:

[T]he HRC required the Spa to adopt new language "affirm[ing] equal access, service, and treatment for all customers 'without regard to … sexual orientation or gender identity.'" … [But t]he mandated alterations were "plainly incidental to the [challenged law's] regulation of conduct, and 'it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.'" Rumsfeld v. FAIR (2006) (quoting Giboney v. Empire Storage & Ice Co. (1949)).

{The Spa alleged that the HRC "required that Olympus Spa remove language from its website that has a viewpoint that 'biological women' are females and distinct from males." But the Spa has not pointed to any specific statements that were on the website before the enforcement action and removed during its pendency, beyond the statement that "[b]iological women are welcome" to enter the Spa. As alleged, the HRC's action went no further than requiring that the Spa's entrance policy comply with WLAD and that the Spa's website accurately convey that policy. The action did not otherwise infringe on the Spa's freedom to publish its views on the nature of gender.}

The court rejected the Spa's Free Exercise Clause claim, applying Employment Division v. Smith (1990), under which religious objectors aren't generally constitutionally entitled to exemptions from religion-neutral, generally applicable laws. And the court rejected the Spa's freedom of association claim:

The Constitution protects the freedom of association as "a fundamental element of personal liberty" and "an indispensable means of preserving other individual liberties." That right protects both "intimate association," that is, the "choices to enter into and maintain certain intimate human relationships," and "expressive association," which is "a right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion." These are fundamental and important rights but none of them are implicated here.

To begin, the Spa is not an intimate association. The bottom line is that payment of the entrance fee is the price of admission. And any woman, except a transgender woman who has not yet received gender confirmation surgery affecting her genitalia, who can pay the fee can be admitted. Intimate associations are "distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship." Business enterprises serving the general public typically lack these qualities.

The Spa's customers and employees do not share "deep attachments and commitments." Although the Spa might not be a "large business enterprise," it is nevertheless a business, open to all women except preoperative transgender women. Other than its exclusion of preoperative transgender women, the Spa exhibits no selectivity, let alone a "high degree of selectivity," in admission. Patrons "are not members of any organized association; they are patrons of the same business establishment." Like the dance hall in City of Dallas v. Stanglin (1989), the Spa admits "all [women] who are willing to pay." …

[T]he Spa notes that women might feel physically vulnerable while at the Spa. Without a doubt, nude spas raise unique privacy concerns absent in most other public spaces, but nudity alone does not transform a public place of business into an intimate association. The Spa analogizes the relationship between spa patrons to the intimate roommate relationship, pointing to language in Roommate.com observing that "a girl may not want to walk around in her towel in front of a boy." Fair Hous. Council of San Fernando Valley v. Roommate.com (9th Cir. 2012). Although "modesty or security concerns," which could drive the selection of one's roommate, may also influence a patron's decision to visit the Spa, the similarities stop there. The roommate relationship is "selective" and "implicates significant privacy and safety considerations" because the choice of roommate necessarily "intrudes into the home." In contrast, patrons purchase commercial services at the Spa without regard to the identities of other patrons and do not themselves control admission to the Spa. Because "much of the activity central to the formation and maintenance of [the Spa] involves the participation of strangers," Roommate.com is inapposite. And to the extent the Spa seeks to invoke the privacy rights of its patrons, it has not made such a claim under the First Amendment or otherwise.

The Spa is also not an expressive association because the Spa and its patrons do not engage in expressive activity…. While expressive association does not protect only "advocacy groups," "a group must engage in some form of expression, whether it be public or private."

The Spa's effort to transform the act of visiting a spa into the sharing of "ideals and beliefs" within an expressive association would stretch the freedom of association beyond all existing bounds. The Spa alleges its "mission is to restore and rejuvenate women's physical health as well as spiritual health," and that its services are more expressive than traditional commercial activities because the services "are very interactive and hands on as well as lengthy." That broad description would turn virtually every commercial gym or massage establishment into an expressive association….

In contrast, in Boy Scouts of America v. Dale (2000), the Court concluded that the Boy Scouts engaged in expressive activity because it is "an association that seeks to transmit … a system of values." …

The panel noted, without elaboration, that "the Spa may have other avenues to challenge the enforcement action," but concluded that, "whatever recourse it may have, that relief cannot come from the First Amendment."

Judge Kenneth Lee dissented:

Korean spas are not like spas at the Four Seasons or Ritz Carlton with their soothing ambient music and lavender aroma in private lounges. Steeped in centuries-old tradition, Korean spas require their patrons to be fully naked, as they sit in communal saunas and undergo deep-tissue scrubbing of their entire bodies in an open area filled with other unclothed patrons. Given this intimate environment, Korean spas separate patrons as well as employees by their sex.

The State of Washington, however, threatened prosecution against Olympus Spa, a female-only Korean spa, because it denied entry to a pre-operative transgender female—i.e., a biological male who identifies as female but has not undergone sex-reassignment surgery. Now, under edict from the state, women—and even girls as young as 13 years old—must be nude alongside patrons with exposed male genitalia as they receive treatment. And female spa employees must provide full-body massages to naked pre- operative transgender women with intact male sexual organs….

Olympus Spa—an immigrant-founded business run by a Korean family—also deserves better. The Spa's owners pleaded with the Washington Human Rights Commission that they wanted to provide privacy to women and girls, some of whom had complained years ago about seeing a naked person with male genitalia there. They also begged the government not to force them to violate their Christian belief in modesty between men and women. Those pleas fell on deaf ears.

One would think that the Washington Human Rights Commission would be sympathetic to the Spa's owners—members of a racial minority group who want to share their cultural heritage and provide a safe space for women and girls. Instead, it threatened prosecution for defying the state's contorted reading of its anti- discrimination law.

Judge Lee concluded that, properly interpreted, the WLAD doesn't prohibit Olympus's policy; his main argument was that "gender identity is protected [by WLAD] only if it serves as a proxy for sexual orientation:

We … must read "gender expression or identity" in context as part of the definition of "sexual orientation." In 2006, the Washington legislature added "sexual orientation" to WLAD as a protected class. From then on, Washington forbade discrimination on the basis of "race, creed, color, national origin, citizenship or immigration status, sex, honorably discharged veteran or military status, sexual orientation,  or  … disability."   The legislature, however, did not include "gender expression or identity" as an independently protected class. The legislature also chose not to include "gender expression or identity" within the definition of "sex."   "Sex"  remained  defined  as  "gender." Rather, the legislature included "gender expression or identity" only in the definition of "sexual orientation."

So why include "gender expression or identity" in the definition of "sexual orientation"? It guards against discrimination where gender identity serves as a proxy for sexual orientation. For instance, suppose a transgender woman (i.e., a biological male who identifies as a female) is in a relationship with a biological male. An employer who harbors anti-gay views fires the transgender woman but claims that he did not discriminate based on sexual orientation because the transgender woman is in a relationship with a man. By including "gender expression and identity" in the definition of sexual orientation, the law tells businesses that such gamesmanship will not fly. It, however, does not create a separate and standalone protected class for gender identity or transgender status.

The majority disagreed with the dissent's interpretation, concluding that the definition of "sexual orientation" does indeed mean that the WLAD bans discrimination based on gender identity.

Judge Lee also concluded that Bostock v. Clayton County (2020), which "held that discrimination on the basis of sexual orientation or transgender status must logically be discrimination based on 'sex' under Title VII," didn't apply:

Unlike WLAD, Title VII does not define "sex." … Because Congress did not include any definitions, the Court interpreted sex discrimination broadly to include transgender status based on a logical syllogism that the undefined term "sex" must implicate sexual orientation and gender identity.

Here, on the other hand, we are not left in the dark on how to interpret the term "sex" or to guess if the statute  covers sexual orientation or gender identity. The state legislature has already given us the answers. WLAD explicitly prohibits discrimination based on "sexual orientation" and defines "sex" and "sexual orientation" differently. WLAD also expressly includes "gender expression or identity" under the definition of "sexual orientation" (but not under "sex"), confirming that "gender identity" is distinct from "sex."

Finally, Judge Lee argued:

Washington is not just legally wrong in misconstruing its anti-discrimination law. It is also wrong in how it overzealously pursued its case against the interests of protected class members—the women and girls of the state, and the Korean owners of Olympus Spa, an immigrant-founded small business.

In 1973, the state amended WLAD to include "sex" as a forbidden basis for discriminatory treatment. Over the years, the Washington Supreme Court construed the statute broadly to protect women and girls. See, e.g., MacLean v. First Northwest Indus. (Wash. 1981) (holding that "ladies' night" with half-price tickets for women at an NBA game was a lawful way to increase attendance of female fans). Our court, too, has recognized that our laws provide privacy for females: For example, we noted that in shared "bathrooms and common areas, a girl may not want to walk around in her towel in front of a boy." Roommate.com.

But Washington has now rolled back the clock in protecting women and girls by bizarrely citing the very law that safeguarded their rights for decades. Now, women and girls as young as 13 years old must lay naked alongside individuals with exposed male genitalia as they receive treatment at Korean spas. And for the female employees at the Spa, they must provide full-body deep-tissue massage to naked persons with intact male sexual organs—or else lose their livelihood.

The state also unjustly hounded Olympus Spa's Korean owners. The Washington Human Rights Commission threatened them with prosecution on questionable legal grounds. As the owners explained, they wanted to share their ethnic heritage to the larger community, but they also felt obligated to ensure privacy for their female patrons and employees. That did not matter to the Commission. Nor did the Commission care about the owners' fear of losing clients and ultimately their small business that they had worked so hard to build.

The Washington Human Rights Commission threatened prosecution against a protected class—racial minority members who want to share their cultural traditions—to favor a group that is not even a protected class under the statute. To be clear, transgender persons, like all people, deserve to be treated with respect and dignity. But showing respect does not mean the government can distort the law and impose its will on the people the law was intended to protect.

Ultimately, this case is not just about the fate of a family-owned business. It is about power—which groups have it and which do not. And Asian Americans in Washington have historically lacked political clout. Washington barred Chinese people from voting as soon as it became a territory in 1853. Other restrictions (such as preventing them from testifying against whites) followed. Even in the post-civil rights era, the University of Washington has faced repeated allegations of discrimination against Asian Americans. {See, e.g., Hannah Fry, Rejected by 16 colleges, hired by Google. Now he's suing some of the schools for anti-Asian discrimination, L.A. Times, Apr. 4, 2025 (detailing how Stanley Zhong—who "had a 4.42 grade- point average, a nearly perfect SAT score, had bested adults in competitive coding competitions and started his own electronic signing service all while still in high school"—was rejected by, among others, University of Washington); Heath Foster and Ruth Schubert, Two UW law school applicants, two paths: one got in, one didn't, Seattle Post-Intelligencer, Oct. 15, 1998 (noting disparity in LSAT scores).} And the Washington Human Rights Commission's bullheaded investigation of Olympus Spa makes plain who has political power (and who does not) today.

Make no mistake about it: the Washington Human Rights Commission has wielded its power to advance its own political agenda. The homepage of its website includes statements about national politics that have little to do with the Commission's duties under state law: It declares that "President Trump is misleading the American people on diversity, equity, and inclusion and accessibility initiatives." The agency then links to a press release from a group of politicians attacking "President Trump's executive orders" as "unnecessary and disingenuous" and condemning him for "baseless and offensive claims." All this political palaver—from an agency tasked with impartially investigating and neutrally enforcing the state's anti-discrimination laws on behalf of all Washington citizens. It is no wonder then that the Washington Human Rights Commission exerted the full force of state power to bully members of a politically weak minority group….

Neal H. Luna and David Ward of the Washington AG's office represent defendants.

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[Eugene Volokh] No Stay in Trump's Personal Defamation Lawsuit Against Pulitzer Prize Board Members

First, the backstory of the lawsuit itself, from an earlier decision in Alexander v. Trump, decided today by Florida Court of Appeal Justices Jeffrey Kuntz, Burton Conner, and Ed Artau:

President Donald J. Trump, a Florida resident, sued nineteen individual members of the Pulitzer Prize Board, an unincorporated association, for defamation and conspiracy. Trump alleged that he sent letters on his personal letterhead to members of the Pulitzer Prize Board. The letters demanded the Pulitzer Prize Board take action to strip The Washington Post and The New York Times of the Pulitzer Prize awarded in 2018 for articles on purported Russian interference in the 2016 presidential election and alleged connections to Trump.

After Trump sent the letters, the Pulitzer Prize Board met remotely and concluded "no passage or headlines, contentions or assertions in any of the winning submissions were discredited by facts that emerged subsequent to the conferral of the prizes." The Board then issued the following statement on its website, with links to the original articles:

A Statement from the Pulitzer Prize Board

The Pulitzer Prize Board has an established, formal process by which complaints against winning entries are carefully reviewed. In the last three years, the Pulitzer Board has received inquiries, including from former President Donald Trump, about submissions from The New York Times and The Washington Post on Russian interference in the U.S. election and its connections to the Trump campaign--submissions that jointly won the 2018 National Reporting prize.

These inquiries prompted the Pulitzer Board to commission two independent reviews of the work submitted by those organizations to our National Reporting competition. Both reviews were conducted by individuals with no connection to the institutions whose work was under examination, nor any connection to each other. The separate reviews converged in their conclusions: that no passages or headlines, contentions or assertions in any of the winning submissions were discredited by facts that emerged subsequent to the conferral of the prizes.

The 2018 Pulitzer Prizes in National Reporting stand.

Now, from yesterday's Florida Court of Appeal opinion in Alexander v. Trump, written by Chief Judge Mark Klingensmith and joined by Judges Martha Warner and Melanie May:

Petitioners assert they are entitled to a stay of the underlying proceedings, including discovery, because the Plaintiff-Respondent is the current President of the United States. They argue a stay of the case will avoid the constitutional conflicts arising from allowing Respondent to proceed as a plaintiff in a state court civil action on claims that may involve his official conduct as the President….

Petitioners argue the trial court's order denying their request to stay the proceedings invites an unavoidable constitutional collision between the trial court's exercise of "[t]he judicial power" under Article V of the Florida Constitution and Respondent's exercise of "[t]he executive Power" under Article II, as well as the Supremacy Clause. Petitioners further argue allowing this matter to proceed while Respondent is in office will interfere with his official duties and responsibilities under the Constitution.

Petitioners effectively ask that the court invoke a temporary immunity under the Supremacy Clause on Respondent's behalf to stay this civil proceeding, even though Respondent has not sought such relief. They further allege that it would violate due process to allow Respondent to claim constitutional entitlement to stay cases because of his office but not allow them the same ability. Article II, section 1, clause 1 of the United States Constitution, also known as the Vesting Clause, provides that "[t]he executive Power shall be vested in a President of the United States of America." The United States Supreme Court has held that the powers and immunities granted under Article II, in addition to other privileges, belong to the President and can be asserted by him. That privilege, like others, "relates to the effective discharge of a President's powers," and is "fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution." But such privileges are afforded to the President alone, not to his litigation adversaries.

Such privileges are not unique to the presidency. Other public officials enjoy similar protections as well. See § 11.111, Fla. Stat. (2024) (providing for the continuance of court proceedings during any session of the Legislature when a member of the Legislature is a party, witness, or attorney representing one of the litigants in the case)…. Likewise, a narrow immunity is given to Members of Congress found in the Speech or Debate Clause, Article I, Section 6, Clause 1, of the United States Constitution, but by its express terms, such immunity does not apply to non-officeholders…. [But w]hile government officials may claim the immunities and protections provided to them in court proceedings, the law is clear that such privileges are not available to third parties to claim, nor may such privileges be asserted by others on the officials' behalf. The principle of standing says that, generally, one cannot assert someone else's constitutional rights. Immunities and privileges, by their very nature, inure solely to the benefit of the individual for whom they are intended. Thus, application of a governmental immunity cannot be asserted by the Petitioners as private citizens….

For their claim of entitlement to a stay of the underlying proceedings, Petitioners rely primarily on Clinton v. Jones, 520 U.S. 681 (1997), and Zervos v. Trump, 94 N.Y.S.3d 75 (N.Y. App. Div. 2019). Petitioners also reference the President's arguments in another case pending against him in a Delaware state court, where he has requested a stay of the proceedings based on his status as a sitting President. See Defendant's Motion to Dismiss, or Alternatively, to Stay on the Basis of Temporary Presidential Immunity, United Atlantic Ventures, LLC v. TMTG Sub Inc., No. 2024-0184- MTZ (Del. Ch. Jan. 24, 2025). However, reliance on those cases is misplaced.

Both Jones and Zervos involved requests by President Clinton and President Trump, respectively, for stays in litigation when each was a party defendant. But in both cases, the courts found that although the President was certainly entitled to ask for a pause in the underlying legal proceedings, he was not necessarily entitled to one as a matter of law….

Petitioners also rely on Zervos and United Atlantic to assert that Respondent is estopped from objecting to their request to pause this case because of legal arguments made on his behalf seeking stays in other courts. These cases are not substantially similar to the one at bar to estop Respondent from objecting to a stay. By trying to draw parallels to those cases, Petitioners conflate situations where the President is a defendant in an action, in contrast to this case, where the President is the plaintiff. Because those cases involve situations where a President was the defendant on claims brought against him, and not a plaintiff pursuing claims initiated by him, those cases are inapposite.

Petitioners correctly point out that whenever a President is sued in state court in his individual capacity, and attempts are made to institute compulsory process over him, the risk of distractions to his public duties in dealing with such lawsuits creates an inherent risk to the effective functioning of government. Such lawsuits subject a President not only to potential harassment, but also risk diverting him from his official duties which are of "unrivaled gravity and breadth." That is not in dispute.

However, this is not a case where the state court is asserting jurisdiction over Respondent without his consent. Quite the contrary. Here, Respondent is a willing participant in the underlying proceedings and has thus far declined to assert a privilege to cease this action. Even though litigants may be entitled to claim a privilege, they may also voluntarily elect not to….

When the President is a willing participant, courts do not risk improperly interfering with the essential functioning of government. The President—by virtue of his exceptional position—is uniquely equipped to determine how to use his time, to assess the attention a lawsuit will require, and to decide whether the lawsuit will divert him from his official business. When an officeholder chooses to initiate litigation, courts must assume the officeholder already has weighed the burdens on their official duties. Although Petitioners raise several claims about how this case will negatively impact Respondent's ability to perform his duties as President, the trial court correctly observed that the filing of any request for a stay or other relief from court orders in the underlying proceedings because of his role as the nation's Chief Executive would be solely in his prerogative:

Should the duties of the President interfere with his ability to perform his obligations in this action, he is certainly entitled to seek the appropriate relief. Should he not do so, yet not comply with the rules of this court, defendants may apply for the appropriate sanctions as they would against any other plaintiff. These could be the usual sanctions of fines, costs, attorney's fees, and the ultimate sanction of dismissal of the action should that be appropriate. Defendants would not be precluded from seeking another stay of the proceeding if plaintiff fails to perform his obligations under Florida law and the [R]ules of [C]ivil [P]rocedure….

Timothy W. Weber, Jeremy D. Bailie, and R. Quincy Bird (Weber, Crabb & Wein, P.A.) represent Trump.

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[Eugene Volokh] Setting the Wayback Machine to 1995: "Cheap Speech and What It Will Do": Books, Magazines, and Newspapers: How the New Media Will Change What Is Available

[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.]

[a.] More Diversity

Even more than with music, the lower distribution costs will change what is available, as well as how it's available. High distribution costs have meant that media organs-newspapers, magazines, radio stations, TV stations-control which commentators are available and which aren't. Media organs may control based on their own political opinions, and they also control based on what their readers are likely to want. Even if a million people nationwide want to hear the Libertarian—or Socialist—view of things, there may be too few such people in each major market to make it worthwhile for newspapers to carry columns that appeal to these readers.

Lower distribution costs mean columnists and organizations can thrive if they appeal to even as few as several thousand people. Say columns cost one-half cent for transmission, one cent for paper, and one-half cent for royalties to the author. If even 30,000 people nationwide are willing to subscribe to a daily column—for about $7.50 a year—the columnist will make $150 a day, enough to keep body and soul together.

An organization like the ACLU, which might get one million subscribers, can make $3.5 million yearly on these terms, enough to hire editors, writers, and news gatherers, and perhaps even fund the organization's other public interest activities. Poor speakers will get a soapbox; listeners with unusual tastes will find more material that will please them; and the mix of available commentary will be much less bland than it is today.

The same will happen for books. Besides making books cheaper and largely eliminating the problem of books being out-of-print, the new technologies will also allow more books to be published. Publication, in fact, will consist simply of the writer sending the book to some electronic databases. There'll be no publisher, no veto power on the publisher's part, and no need for the book to have mass appeal before someone will invest in it.

The story for newspapers and magazines will be somewhat different. Though their distribution costs will fall, their production costs will still be substantial. The news will still have to be gathered, written up, and edited. But the total costs will be lower than they would otherwise be, so publications will be easier to start and easier to keep profitable.

Some Examples: Electronically distributed short newsletters already exist today, though-for technological reasons-not yet in the form I describe. Fax newsletters are already used for timely, relatively low-cost distribution. (Though faxing may cost money for phone calls, it saves labor costs-stuffing envelopes, printing labels, and the like-because faxes can be automatically sent by computer.) Bankruptcy Creditors' Service sends specialized newsletters to creditors of debtors-in-possession. The Thoroughbred Daily News circulates a daily delivered-by-6-a.m. newsletter summarizing the previous day's racing. These services are expensive, but that seems to be just a function of what the market will bear. They can be cheaper if the author and the customers prefer: Some religious organizations, for instance, have started free religious fax newsletters for their congregants.

Westlaw is another example. Westlaw has several databases-WLB (Westlaw Bulletin), WTH-CJ (Westlaw Topical Highlights on Criminal Justice), WTH-LB (Westlaw Topical Highlights on Employment Law), and others-that West updates daily with one-paragraph squibs on potentially important recent cases. The cases range from a few days to a few weeks old.

Using Westlaw's Westclip service, I've asked that new additions to those databases be printed daily to my local printer. I've also configured special queries of my own-for instance, to print every day all new cases on free exercise of religion. Each morning, I go to the printer and get new information that I might otherwise have never seen. It's like a daily newspaper chock full of articles for legal junkies like me.

Of course, this would cost me a fortune if West Publishing didn't give us teachers free access. But West lets me access this service for free only because the marginal costs of my use are very low. If West had to print and mail the results of my queries every day-which would cost them a lot in labor and postage-they'd almost certainly not make the service available free, even to law schools.

Likewise, Minnesota gubernatorial and senatorial candidates recently debated one another online, using an Internet mailing list. A moderator asked a question; the candidates gave their answers, in a few paragraphs each; and they then responded to one another. Each candidate entered a message or two each day. I suspect most of the "viewers" read the messages online, but many could easily have configured their mail systems to print the messages automatically, if that's what they preferred. The debate didn't change the course of the election—there were only 500 people watching—but it did show the power of electronic communications. Once the candidates agreed to participate, no one needed to persuade the media that carrying the debate would attract enough viewers or readers.

Similarly, Patrick Crispen, a public-spirited student at the University of Alabama, recently ran a series of online Internet tutorials. Crispen's announcement of his tutorials generated 62,000 subscribers. Obviously, the number would have been lower had the tutorials not been free, and because of current Internet etiquette, he would have had a harder time advertising a pay-for service. Still, Crispen has, with no expenditure other than his time-and his university's computer resources-drawn an audience many newspapers would envy.

Finally, when reporters at The San Francisco Chronicle and The San Francisco Examiner went on strike in November 1994, the striking employees-unfazed by lack of the newspapers' printing plant and distribution network-produced their own paper, The San Francisco Free Press, and delivered it over the Internet. The electronic newspaper was the first to break a story, which got a lot of play during the November 1994 senatorial campaign, about Senator Dianne Feinstein's alleged employment of an illegal alien.

[b.] Custom-Tailored Magazines and Newspapers

But beyond increasing the number of publications, cbooks will also change the very concept of reading a magazine or a newspaper. No one wants to read, say, the whole Los Angeles Times, with all its stories about news, sports, entertainment, food, travel, cars, and so on. No one reads the newspaper cover to cover. People read most parts of some sections and some parts of others, and throw out the rest.

What people want are newspapers and magazines with stories about the things that interest them (just as they want radio with the songs they like). They may want a newspaper that has, for example, the top twenty international stories of the day (with a special focus on news from Africa), the top five national stories, the top five science stories, the top ten law stories, news about football and about the Los Angeles Dodgers, and, say, ten random stories just for the unexpected surprise.

Readers do want the stories to be professionally investigated, written, and selected, perhaps by the same staff that brings them the newspaper or the magazine today. But they want them in the mix they prefer. And newspapers already realize people want this-witness the local editions of various papers, such as the San Fernando Valley edition of The Los Angeles Times.

Today's newspapers and magazines are creatures of a particular economic fact of the print age: To print cheaply and distribute cheaply, you have to print many copies of exactly the same thing. If most readers in Los Angeles don't care about science or about Angola, the paper puts in few stories about these subjects, and the oddball readers lose out. On the other hand, O.J. Simpson stories fill the front page, and the handful of non-O.J.-trial-buffs must wade through them to find what they like.

Yet electronic distribution doesn't require uniformity. Letting a user configure his own mix of materials is a trivial software problem. Readers will set up this mix at subscription time; people who don't want to bother with this will get a default mix that they can change whenever they like. Moreover, the subscribers could mix stories from different sources-local news from The Los Angeles Times, international news from The New York Times, and national and business news from both The New York Times and The Wall Street Journal, to get two different perspectives.

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[Jonathan H. Adler] Supreme Court Narrows Scope of NEPA Review

[Environmental Impact Statements do not have to consider upstream and downstream effects.]

Today the Supreme Court decided Seven County Infrastructure Coalition v. Eagle County, which challenged the U.S. Court of Appeals for the D.C. Circuit's capacious understanding of agency obligations under the National Environmental Policy Act. The justices unanimously rejected the D.C. Circuit's approach, but split 5-3 over what the D.C. Circuit did wrong. Justice Kavanaugh wrote for the Court, joined by the Chief Justice and the Court's conservative justices (other than Justice Gorsuch, who was recused). Justice Sotomayor wrote an opinion concurring in the judgment, joined by Justices Kagan and Jackson.

At first read, the biggest significance of this opinion is that it clarifies that NEPA does not require Environmental Impact Statements to consider upstream and downstream effects of projects that are caused by third-parties. This is particularly significant for infrastructure projects, such as pipelines or transmission lines, and should help reduce NEPA's burdens (at least at the margins). The opinion will also likely hamper any future efforts, perhaps by Democratic administrations, to expand or restore more fulsome (and burdensome) NEPA requirements.

Justice Kavanaugh's introduction does a nice job of laying out the issues and the Court's conclusions. Here it is:

Some 55 years ago, Congress passed and President Nixon signed the National Environmental Policy Act, known as NEPA. For certain infrastructure projects that are built, funded, or approved by the Federal Government, NEPA requires federal agencies to prepare an environmental impact statement, or EIS. The EIS must address the significant environmental effects of a proposed project and identify feasible alternatives that could mitigate those effects.

NEPA was the first of several landmark environmental laws enacted by Congress in the 1970s. Subsequent statutes included the Clean Air Amendments of 1970, the Clean Water Act of 1972, and the Endangered Species Act of 1973, among others.

Unlike those later-enacted laws, however, NEPA imposes no substantive environmental obligations or restrictions. NEPA is a purely procedural statute that, as relevant here, simply requires an agency to prepare an EIS—in essence, a report. Importantly, NEPA does not require the agency to weigh environmental consequences in any particular way. Rather, an agency may weigh environmental consequences as the agency reasonably sees fit under its governing statute and any relevant substantive environmental laws.

Simply stated, NEPA is a procedural cross-check, not a substantive roadblock. The goal of the law is to inform agency decisionmaking, not to paralyze it.

In this case, the U. S. Surface Transportation Board considered a proposal by a group of seven Utah counties for the construction and operation of an approximately 88-mile railroad line in northeastern Utah. Under federal law, the Board determines whether to approve construction of new railroad lines. The railroad line here would connect Utah's oil-rich Uinta Basin—a rural territory roughly the size of the State of Maryland—to the national rail network. By doing so, the new railroad line would facilitate the transportation of crude oil from Utah to refineries in Louisiana, Texas, and elsewhere. And the project would bring significant economic development and jobs to the isolated Uinta Basin by better connecting the Basin to the national economy.

For that proposed 88-mile Utah railroad line, the Board prepared an extraordinarily lengthy EIS, spanning more than 3,600 pages of environmental analysis. The Board's EIS addressed the environmental effects of the railroad line. But the U. S. Court of Appeals for the D. C. Circuit nonetheless faulted the EIS for not sufficiently considering the environmental effects of projects separate from the railroad line itself—primarily, the environmental effects that could ensue from (i) increased oil drilling upstream in the Uinta Basin and (ii) increased oil refining downstream along the Gulf Coast of Louisiana and Texas.

On that basis, the D. C. Circuit vacated the Board's EIS and the Board's approval of the 88-mile railroad line. As a result, construction still has not begun even though the Board approved the project back in December 2021.

We reverse. First, the D. C. Circuit did not afford the Board the substantial judicial deference required in NEPA cases. Second, the D. C. Circuit ordered the Board to address the environmental effects of projects separate intime or place from the construction and operation of the railroad line. But NEPA requires agencies to focus on the environmental effects of the project at issue. Under NEPA, the Board's EIS did not need to address the environmental effects of upstream oil drilling or downstream oil refining. Rather, it needed to address only the effects of the 88-milerailroad line. And the Board's EIS did so.

Justice Sotomayor's opinion concurring in the judgment reaches the same conclusion -- the Surface Transportation Board was not obligated to consider environmental effects caused by third parties that could not influence its decision -- but reached that conclusion by a different route. Her opinion begins:

The National Environmental Policy Act improves agency decisionmaking by requiring agencies to consider environmental impacts for which their decisions would be responsible. I agree with the Court that the Surface Transportation Board would not be responsible for the harms caused by the oil industry, even though the railway it approved would deliver oil to refineries and spur drilling in the Uinta Basin. I reach that conclusion because, under its organic statute, the Board had no authority to reject petitioners' application on account of the harms third parties would cause with products transported on the proposed railway. The majority takes a different path, unnecessarily grounding its analysis largely in matters of policy. Accordingly, I write separately to explain why the result in this case follows inexorably from our precedent.

Note that with the issuance of this decision, the only opinion left from the December sitting (indeed, the only opinion left from a case argued in 2024) is Skrmetti, and the only justices who have not written an opinion from the December sitting are Justice Thomas and the Chief Justice (and they are also the only two conservative justices to have only written two majority opinions thus far this term).  This makes me thing that the Chief Justice has that opinion, but we'll see.

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[Josh Blackman] Will Trump Ignore Geographic Connections When Making Circuit Nominations?

[With the death of the blue slip, can the President just fill vacancies with the best available candidate?]

At present there are two vacant seats on the Third Circuit: first, Judge Joseph A. Greenaway Jr. sat in New Jersey; and second, Judge Kent A. Jordan sat in Delaware. Yesterday, President Trump nominated Emil Bove to one of those seats, though it is not yet clear which one. I am not aware that Bove has connections to New Jersey or Delaware, though I understand he has ties to Pennsylvania, which is the other state in the Third Circuit. Contrary to common belief, a circuit seat does not belong by statute to a state. Only custom or tradition keeps a seat for a particular state. But once confirmed, the judge must live in that circuit, and that statute makes no reference to a particular state. (This requirement is observed inconsistently.)

So here is my question: in the wake of the Blue Slip's demise, can the President ignore any geographic connection with a circuit vacancy, and just nominate the best available candidate? In a state with two Republican Senators, there may be political pushback. But Trump will suffer no additional political harm if he alienates the Democratic senators from New Jersey or Delaware. Those Senators would convict and remove Trump the first chance they get.

If so, the process of picking circuit judges becomes a national search. The pool for potential candidates becomes much deeper.

With regard to this particular nomination, I worked with Emile Bove on the special counsel litigation. I found him to be a very smart, careful, and collegial attorney. In the leadup to oral argument, Bove was very responsive to my communications, and carefully considered our positions. Even where the defense disagreed with me and Tillman on particular points, Bove explained our position fairly to Judge Cannon. He had an encyclopedic knowledge of the very complex case. After I argued as amicus, Bove sent me a very gracious thank you note. He didn't have to do that, but he expressed his appreciation for our contributions to the case. It was a kind gesture.

It is true Bove lacks many of the elite credentials that some people value; I see that resume as a plus, and not a negative. Moreover, Bove took a case that few other lawyers would have taken: representing Donald Trump in a slew of criminal lawfare prosecutions. And he prevailed in the face of persistent criticism! This is the very sort of courage that I think will serve a federal judge well, far more than seeking access to yet another "inner ring."

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