Eugene Volokh's Blog, page 92

[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Eugene Volokh] Judge Strikes Part of Anthropic (Claude.AI) Expert's Declaration, Because of Uncaught AI Hallucination in Part of Citation

From Friday's order by Magistrate Judge Susan van Keulen in Concord Music Group, Inc. v. Anthropic PBC (N.D. Cal.)

At the outset, the Court notes that during the hearing, Publishers asked this Court to examine Anthropic's expert, Ms. Chen and strike her declaration because at least one of the citations therein appeared to have been an "AI hallucination": a citation to an article that did not exist and whose purported authors had never worked together. The Court gave Anthropic time to investigate the circumstances surrounding the challenged citation. Having considered the declaration of Anthropic's counsel and Publishers' response, the Court finds this issue is a serious one—if not quite so grave as it at first appeared.

Anthropic's counsel protests that this was "an honest citation mistake" but admits that Claude.ai was used to "properly format" at least three citations and, in doing so, generated a fictitious article name with inaccurate authors (who have never worked together) for the citation at issue. That is a plain and simple AI hallucination. Yet the underlying article exists, was properly linked to and was located by a human being using Google search; so, this is not a case where "attorneys and experts [have] abdicate[d] their independent judgment and critical thinking skills in favor of ready-made, AI-generated answers…."

A remaining serious concern, however, is Anthropic's attestation that a "manual citation check" was performed but "did not catch th[e] error." It is not clear how such an error—including a complete change in article title—could have escaped correction during manual cite-check by a human being. Furthermore, although the undersigned's  [i.e., the Magistrate Judge's] standing order does not expressly address the use of AI by parties or counsel, Section VIII.G of [District] Judge Lee's Civil Standing Order requires a certification "that lead trial counsel has personally verified the content's accuracy." Neither the certification nor  verification has occurred here. In sum, the Court STRIKES-IN-PART Ms. Chen's declaration, striking paragraph 9 [which contains the footnote that contains the citation with the hallucination], and notes for the record that this issue undermines the overall credibility of Ms. Chen's written declaration, a factor in the Court's conclusion.

Thanks to ChatGPT Is Eating the World for the pointer; it also discusses more about the substantive role of paragraph 9 in the declaration. Here's more backstory (from an earlier post):

The Declaration filed by a "Data Scientist at Anthropic" in Concord Music Group, Inc. v. Anthropic PBC includes this citation:

But the cited article doesn't seem to exist at that citation or at that URL, and Google found no other references to any article by that title….

Here's the explanation, from one of Anthropic's lawyers (emphasis added):

Our investigation of the matter confirms that this was an honest citation mistake and not a fabrication of authority. The first citation in footnote 3 of Dkts. 340-3 (sealed) and 341-2 (public) includes an erroneous author and title, while providing a correct link to, and correctly identifying the publication, volume, page numbers, and year of publication of, the article referenced by Ms. Chen as part of the basis for her statement in paragraph 9. We apologize for the inaccuracy and any confusion this error caused.

The American Statistician article reviewed and relied upon by Ms. Chen [the Anthropic expert], and accessible at the first link provided in footnote 3 of Dkts. 340-3 and 341-2, is titled Binomial Confidence Intervals for Rare Events: Importance of Defining Margin of Error Relative to Magnitude of Proportion, by Owen McGrath and Kevin Burke. A Latham & Watkins associate located that article as potential additional support for Ms. Chen's testimony using a Google search. The article exists and supports Ms. Chen's testimony in her declaration and at the May 13, 2025 hearing, which she proffered based on her pre-existing knowledge regarding the appropriate relative margin of error for rare events. A copy of the complete article is attached as Exhibit A.

Specifically, "in the context of small or rare-event success probabilities," the authors "suggest restricting the range of values to εR ∈ [0.1, 0.5]"—meaning, a relative margin of error between 10% to 50%—"as higher values lead to imprecision and poor interval coverage, whereas lower values lead to sample sizes that are likely to be impractically large for many studies." See Exhibit A, at 446. This recommendation is entirely consistent with Ms. Chen's testimony, which proposes using a 25% relative margin of error based on her expertise.

After the Latham & Watkins team identified the source as potential additional support for Ms. Chen's testimony, I asked Claude.ai to provide a properly formatted legal citation for that source using the link to the correct article. Unfortunately, although providing the correct publication title, publication year, and link to the provided source, the returned citation included an inaccurate title and incorrect authors. Our manual citation check did not catch that error. Our citation check also missed additional wording errors introduced in the citations during the formatting process using Claude.ai. These wording errors are: (1) that the correct title of the source in footnote 2 of Ms. Chen's declaration is Computing Necessary Sample Size, not, as listed in footnote 2, Sample Size Estimation, and (2) the author/preparer of the third source cited in footnote 3 is "Windward Environmental LLC", not "Lower Windward Environmental LLC." Again, we apologize for these citation errors.

Ms. Chen, as well as counsel, reviewed the complete text of Ms. Chen's testimony and also reviewed each of the cited references prior to submitting Ms. Chen's declaration to the Court. In reviewing her declaration both prior to submission and in preparation for the hearing on May 13, 2025, Ms. Chen reviewed the actual article available at the first link in footnote 3 of her declaration and attached hereto as Exhibit A, and the article supports the proposition expressed in her declaration with respect to the appropriate margin of error.

During the production and cite-checking process for Ms. Chen's declaration, the Latham & Watkins team reviewing and editing the declaration checked that the substance of the cited document supported the proposition in the declaration, and also corrected the volume and page numbers in the citation, but did not notice the incorrect title and authors, despite clicking on the link provided in the footnote and reviewing the article. The Latham & Watkins team also did not notice the additional wording errors in footnotes 2 and 3 of Ms. Chen's declaration, as described above in paragraph 6.

This was an embarrassing and unintentional mistake. The article in question genuinely exists, was reviewed by Ms. Chen and supports her opinion on the proper margin of error to use for sampling. The insinuation that Ms. Chen's opinion was influenced by false or fabricated information is thus incorrect. As is the insinuation that Ms. Chen lacks support for her opinion. Moreover, the link provided both to this Court and to Plaintiffs was accurate and, when pasted into a browser, calls up the correct article upon which Ms. Chen had relied. Had Plaintiffs' counsel raised the citation issue when they first discovered it, we could and would have confirmed that the article cited was the one upon which Ms. Chen relied and corrected the citation mistake.

We have implemented procedures, including multiple levels of additional review, to work to ensure that this does not occur again and have preserved, at the Court's direction, all information related to Ms. Chen's declaration. I understand that Anthropic has also preserved all information related to Ms. Chen's declaration as well….

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[Eugene Volokh] Divorcing Husband (a Lawyer) May Have Dissipated $300K of Family Assets on TikTok Gifts (Which He Says Was a Business Strategy)

From M.B. v. C.B., decided May 15 by Westchester County (N.Y.) trial court judge James Hyer:

During the conference Plaintiff's counsel indicated that his client was concerned about Defendant's continued erratic behavior including his use of the social media platform TikTok (hereinafter "TikTok"), including representations made during recordings of Defendant on TikTok that he had gifted significant sums of funds believed to be in excess of twenty or thirty thousand dollars:

"TikTok has the ability for individuals to give gifts to other people on TikTok, so you go live on TikTok and then it's showing what you're doing live. [Defendant], from what we can tell, has given away well in excess of twenty or thirty thousand dollars in the last two months to just third parties, individuals, and bragged about it very openly. We have recorded video of all of this. He talks about giving Pegasuses, giving universes. A universe costs $532 to the individual who gives it and it has a cash value that's redeemable by the person who receives it of around $500."

Plaintiff's counsel marked as Court Exhibit 1 a summary of certain TikTok recordings wherein he noted the following including asserted quotes of Defendant:

… "I'm gonna pegasus" with a woman as the background. Pegasus is a virtual gift you get after reaching the highest "gifter level." … To reach level 50 gifter, you need to spent a significant amount of real money on gifts (estimated around $845,000.00). You can then send Pegasus during a tick tok live….

"That's the Lord Marcellus one. I don't even know how many of these I sent but I send a lot of these. I sent a lot of Lord Marcellus'. That's a vault gift. It's the best gift you can send other than the Pegasus" … Lord Macellus is a Tik Tok gift worth $10 ….

"You wanna be like me. You wanna drop the uni's. You wanna drop the vaults." … Tick tok Universe $500 ….

Plaintiff's counsel also played several TikTok recordings of Defendant, one of which was asserted to have been made the day before the conference referring to this action, two of which were asserted to have been recorded just prior to the last conference in this courthouse with one being filmed in the hallway outside the courtroom and the other being filmed in the courthouse bathroom:

"I would note, your Honor, this is all while my client is not receiving child support, spousal support, has received no temporary counsel fees.

"We have no idea what the scope of the money that he has dissipated is except these very specific statements that he has made that are all recorded and that are all publicly accessible, talking about all the gifts that he has given, all of this money that he's giving away and, respectfully, and, again, I'm not trying to inflame things, but [Defendant], aside from TikTok streaming live here in the courthouse in direct contradiction to the rules, last night was on TikTok live and made the following statements which, again, we have recorded. "CJB got Court tomorrow. Ain't no mother fucking judge check me. CJB is vibing right now. Don't worry about the consequences." Respectfully, Judge, aside from ignoring an array of Court Orders, as an attorney and officer of the Court, [Defendant] going live on TikTok the night before Court and saying that your Honor is not going to check him and that he has Court tomorrow and then live streaming from the hallway of the courthouse, this demonstrates the level of sort of recklessness and total lack of regard for the rules and the orders of your Honor."

{Notably, signage has been posted prominently in several locations in the hallway leading to the courtroom where the last conference was held wherein these recordings were made including the following directive, "Court Rules prohibit the use of cameras or audio/visual recording devices in this courthouse without permission from the Court administrator or, in a courtroom the presiding judge."}

While these recordings were being played by the Court, this Court visually observed Defendant bobbing his head to the music playing in the background and mouthing the words to what appeared to be song lyrics he was signing in the videos. When asked by the Court if these videos were of the Defendant, he responded that they were of his "persona" for which he referred to himself in the third-person providing the following responses:

THE COURT: [Defendant], you have been handed what's been marked as Court Exhibit Number 1 and you have had the opportunity in here in Court to listen to recordings of TikTok, what appear to be TikTok recordings that you have made. Were you on those TikTok videos that were seen by the Court earlier today?

[Defendant]: My parody persona was on the videos, but yes, my physical being and my likeness was on those, yes, Judge.

THE COURT: Thank you very much. There was an allegation that you made two TikTok videos in this courthouse today before this Court appearance in the hallway and also in the bathroom of the courthouse; is that correct?

[Defendant]: Yes. My parody self made those, CJB made those, Judge.

THE COURT: Is CJB not you?

[Defendant]: Well, the whole TikTok thing is a public act, so yes, I mean, sitting here as an attorney before your Honor, this is [Defendant]. What you see on there is CJB times three because I have three accounts, so he's not even referencing — there's XXXX, XXXX and XXXX and I get banned usually on two of them. I got banned from XXXX and XXXX, so that was on XXXX —

THE COURT: Why did you get banned?

[Defendant]: Because TikTok has — it's interesting, so I smoke tobacco. Actually, last night, I got banned and if you guys were watching, I held up a cigarette and I got banned within thirty seconds, so you can't smoke tobacco on there. Also, too, some of it is construed as, let's say, aggressive tendencies. They have very, let's say, tight community guidelines, so if I set my live streams to open which is eighteen or — sorry, anybody can come to those, they are much more — they are stricter. If you set your own restriction as to 18 plus, you could basically do whatever you want, but lately, I have been trying to get more traction. This is, essentially, to address the gifting, they're not just gifts. These are business expenses.

We're trying to get a media company off the ground, that's what we're doing; CJB Media, across the world, United States, Germany, Philippines, VietNam, Brazil, a lot of different countries, Judge. And the one that we made before, in the courtroom that we were referencing, some of the ladies that are going to be coming to the United States to see CJB, to do this whole thing in Central Park and do some stuff, people are already getting visas, they're already making it happen. This is an actual real business expense. This is not just looking at me, I'm a thirsty dad, broken hearted, hopeless romantic, giving gifts, so we're trying to get something off the ground and the Plaintiff is quite aware of that because we even went live the first couple of lives and we got a few gifts.

THE COURT: So is your position that CJB is your alter ego?

[Defendant]: In terms of public persona and what we do, yes, I mean, I'm a humble dad. I had — before April 9th which was my second daughter's birthday, I was giving baths and chilling with my daughters and hanging out with my son who I would love to see, of course, but after April 9th, you know, we basically, you know, we stepped it up a little bit because, you know, at this point, my back is against the wall a little bit when it comes to how I feel about how my public persona should be. For the last thirteen years, I've kind of sheltered myself. I also freestyle rap. I give inspiration, hope and expression.

While characterizing his TikTok expenditures as investment rather than gifts, Defendant confirmed that he has spent at least $300,000.00 on TikTok since February of this year, approximately $275,000.00 of which was spent following the commencement of this litigation, while advising that it is nearly impossible to track when TikTok gifts are made ….

When asked if he had read the Automatic Orders and the provisions of the Preliminary Conference Order pertaining to the Automatic Orders Defendant confirmed that he had, and when asked if he felt that he had complied with the Automatic Orders by spending nearly $300,000.00 on TikTok expenditures he responded, "Yes, because I want to do well for myself and my family. If this actually works, we'll be millionaires." …

Plaintiff (wife) had also claimed:

As will be set forth in detail herein, the Defendant's mental health has deteriorated over the last several weeks to the point where, at the risk of hyperbole, it is beyond dispute that he is most likely an extreme danger to me, our three (3) young children and the community-at-large. I would note, at the outset, that although the allegations I make in this document may seem extreme and hyperbolic — every allegation I make regarding the Defendant's statements and behaviors is supported by audio recordings, video recordings or screenshots of text messages from the Defendant. The Court need not "take my word" for anything alleged herein. I am unclear what is happening to the Defendant right now — and whether his erratic and aggressive behavior is the result of a severe mental health issue, a substance abuse issue or some combination of the two.…

As will be set forth in detail herein, the Defendant has engaged in repeated acts of domestic violence / intimate partner abuse against me with increasing frequency and severity over the last several months including abuse in the direct presence of our young children and while the children were in the residence. The Defendant has also exponentially increased his abuse of cannabis and possibly other drugs — attempting as recently as this past weekend to interact with our children immediately after having smoked a significant amount of cannabis…

The Defendant has routinely called me vile and profane names including, but not limited to: "cunt", "bitch", "retard", "fucking dirty bitch", "lazy fucking bitch", "ungrateful cunt", "fucking piece of fucking shit", "stupid fucking bitch", "retarded" and other similar term….

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[Josh Blackman] Today in Supreme Court History: May 26, 1868

5/26/1868: Senate acquitted President Andrew Johnson and adjourned as court of impeachment. Chief Justice Chase presided over that trial. Johnson is one of four presidents that did not appoint any Supreme Court Justices. The others are William Henry Harrison, Zachary Taylor, and Jimmy Carter.

President Andrew Johnson

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[Ilya Somin] The Case Against Judicial Deference to Executive Branch "Factual" Determinations in Alien Enemies Act Cases

[Legal scholar Rebecca Ingber offers some strong arguments against deference in this context.]

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

 

President Trump has been trying use the Alien Enemies Act of 1798 as a tool for mass deportation. The AEA allows detention and deportation of foreign citizens of relevant states (including legal immigrants, as well as illegal ones) "[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." Multiple federal courts have ruled against Trump on the grounds that his invocation of the AEA is illegal because there is no declared war, and the activities of the Venezuelan drug gang Tren de Aragua (which Trump cites as justification for using AEA) are not an "invasion" or a "predatory incursion."

One federal judge has issued a badly flawed ruling holding that TdA's actions qualify as a "predatory incursion." But with that exception, courts have rejected the Administration's interpretation of the AEA, and there has been unanimous agreement that the meaning of terms like "invasion" is subject to judicial review and interpretation.

But some judges have held that the Administration does deserve deference on its factual determinations about whether a war, "invasion," or "predatory incursion" have occurred, and if so whether they were perpetrated by a "foreign nation or government." I previously critiqued such deference here. Legal scholar Rebecca Ingber has now published a more detailed critique in an insightful article for Just Security:

The question of who gets to make the predicate determination of whether the United States is at war or facing invasion or predatory incursion is as or more important as the assessment itself. That who should involve Congress, first and foremost, as the branch constitutionally assigned decisions to go to war. But in the case at hand, I mean, do judges get to review the president's factual assertions that the United States is at war or facing invasion or predatory incursion, or is that left entirely to the executive's discretion? This question, so framed, has implications far beyond the AEA cases. Given just how much extraordinary power the courts have recognized for the president during times of war, this power would be all-encompassing if it is left to turn on or off by the president alone – especially if the president can declare a situation is one of war or the like with no judicial check on whether that claim is completely unfounded….

Judge Haines' favoring "substantial deference" to the President's factual analysis is of a piece with years of judicial reticence to look too closely at what the President is doing when he claims war powers. Judges quite regularly question the competence of courts to "second guess" national security judgments the executive branch puts forward. As Judge Rodriguez states, they worry that the President's decisions might be based on some secret intelligence or "sensitive and confidential information" they do not have, and which they should not push the President to divulge….

This supposed expertise or information gap is one basis on which courts often defer to the executive…"

Yet while courts are often invested in the idea that there is some special process happening behind the closed doors of the executive, they are typically loath to delve behind it. As a result they defer aimlessly, often to what is simply the litigation position the executive branch puts forward in court. They may seem willfully blind to clear unconstitutional animus by the president because they are comforted that an internal, and secret, "review process undertaken by multiple Cabinet officials and their agencies" sufficed to remove its taint.

In the AEA cases, deferring to the President's expertise and secret intelligence is an especially transparent legal fiction. We have seen the publicly released work of those experts and intelligence sources, and they fundamentally undermine the President's assertions….

Moreover, not all courts have been so blindly deferential on questions of national security. Indeed, federal judges regularly adjudicate highly sensitive foreign intelligence and surveillance matters in cases before the Foreign Intelligence Surveillance Court (FISC); they review classified information using the Classified Information Procedures Act (CIPA) in a range of criminal cases; they adjudicate whether the military detention of alleged "enemy combatants" is lawful in Guantanamo Bay habeas cases relying on the government's classified information about an ostensibly ongoing armed conflict… In the Guantanamo habeas cases in particular I have seen firsthand how much of the government's initial assertions dissolve like sand through one's fingers in the face of adversarial process and judicial review. Our nation's history is also replete with examples of federal courts making much weightier determinations, stretching from policing the executive's use of the limited war powers granted to it by Congress in the quasi-war with France to determining the legality of Lincoln's blockade of southern ports at the outset of the Civil War….

When the President exploits the concept of war, or emergency, or national security, to claim extreme power over all aspects of our lives, we should scrutinize that power with a rigorous lens. And when we are talking about basic civil liberties – and a President's attempt to turn off constitutional due process with the flick of a pen – these questions are well within the province of the courts.

The war powers that Congress and the courts have over time granted the President are extraordinary. When the courts cede to the President absolute discretion to turn them on, this makes them virtually limitless. Today, the President claims authority to snatch people off the streets by masked federal agents and ship them to a foreign gulag, in the name of an invasion he alone has the power to name. It is almost too on the nose. This cannot possibly be a plausible exercise of the exceptional war power that the courts and Congress have long ceded to the President. But it is certainly an opportunity to rein those powers in.

I agree completely! The key point here is that an unreviewable power to make a "factual" determination that a war or an "invasion" has occurred turns into an unreviewable power to wield vast authorities intended to be limited to wartime emergency situations anytime the president wants. For example, in the event of a real "invasion" the federal government the power to suspend the writ of habeas corpus, thereby authorizing detention without due process for migrants and US citizens, alike.

And, as Prof. Ingber emphasizes, claims to deference based on superior expertise should be viewed with great skepticism, especially in a situation like this one where the appeal to expertise is a transparent pretext. The Administration has in fact ignored the expert conclusions of its own intelligence agencies, and fired those experts who dared to tell the Boss things he didn't want to hear.

I would add that specialized expertise isn't much needed to ascertain the existence of a genuine "invasion" or "predatory incursion," when these concepts are properly defined as military attacks, rather than mere illegal migration or drug smuggling. Such assaults are anything but subtle or hard to detect! Perhaps deference is still appropriate in close, ambiguous cases. But it is not justified in situations where the presence or absence of a military attack is pretty obvious. That is, in fact, our situation right now.

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[Ilya Somin] An "Ugly Tax" in Trump's "Big Beautiful Bill"

[Boston Globe columnist Jeff Jacoby rightly decries the GOP's inclusion of a tax on remittances immigrant workers send to their families, in the "Big Beautiful Bill."]

(NA)

Conservative Boston Globe columnist Jeff Jacoby rightly decries a pernicious provision in Trump's "Big Beautiful Bill":

Buried near the end of the ludicrously named "One Big Beautiful Bill Act" approved by the House Budget Committee over the weekend is a new 5 percent tax on remittances [now reduced to 3.5%], the gifts of money that tens of millions of foreign-born US workers regularly send to family members abroad.

As a rule, Republicans promote themselves as the party of lower taxes. Indeed, a key goal of the "big, beautiful" legislative package is to permanently extend the tax cuts passed by Congress in 2017 and signed by President Trump during his first term….

But it's a different story for immigrants sending some of their hard-earned wages to loved ones in their homelands.

Tax cuts may be important to the GOP brand, but these days so is ill will toward migrants. A new tax on remittances would generate some revenue for the federal government, but as with so many of the administration's actions, its primary purpose is to make life more difficult for immigrants….

I would add that the GOP is also supposed to be the party of "family values." Yet this tax targets people sending funds to their families, many of whom suffer from severe poverty in their countries of origin. Remittances are a valuable lifeline for millions of poor people, and targeting them for discriminatory taxation is cruel and unjust. Immigrant workers should pay the same taxes as everyone else, and should not be subject to additional taxation when they use some of their hard-earned pay to send remittances to their families.

Jacoby rightly points out that the remittance tax may well incentivize rather than deter illegal migration. I would add that the vast majority of remittances are actually sent by legal migrants. Even if you think it's just to punish illegal migrants in this way (I generally do not because the moral import of the legal-illegal distinction is vastly overblown), that's no reason to harm legal ones.

Jacoby also highlights the flaws in the argument that remittances somehow drain money from the US economy:

Nativists also argue that remittances drain money from the United States — that dollars earned here should stay here. "Remittance-Senders (Mostly Illegals) Ship $25 Billion a Year Out of the U.S.," the Center for Immigration Studies argued in 2010…

As most economists will confirm, dollars sent abroad — as remittances, to pay for imports, or to buy foreign currency — are not "lost" to the US economy. In almost every case, they make their way back. Foreign entities generally cannot use dollars domestically within their own countries. So when businesses or banks abroad accumulate US currency, they can only use it to buy American goods and services or to invest in American assets. The bottom line: No matter how many billions of dollars Americans send abroad, virtually all those dollars must ultimately return to the United States.

This is just basic Economics 101 of dollar-denominated remittances. Assume, however, that some family members receiving remittances just stuff the money in their mattresses or wallow in it, like Scrooge McDuck. Americans still benefit! By taking this money out of circulation in the US, the family members would cause a small amount of deflation at the margin, thereby marginally increasing the value of dollars held by everyone else - and most such dollars are held by Americans. This point also largely applies to the use of remittance dollars in countries like El Salvador, which has adopted the US dollar as its own currency.

 

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[Eugene Volokh] "It's Not Called the Net of a Million Lies for Nothing"

Rereading a 1995 article of mine reminded me of the late Vernor Vinge's then-recent A Fire Upon the Deep (1992) (one of my favorite science fiction books). Referring to an interstellar communications network seemingly modeled on the 1992 Internet, the characters say, like it's a proverb: "It's not called the Net of a Million Lies for nothing."

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[Ilya Somin] Mitchell Berman on Conditional Federal Grants and the Constitution

[While there is no constitutional right to receive grants, the Constitution does bar grant conditions that undermine constitutional rights.]

(Photo 181642336 © Zimmytws | Dreamstime.com)

The Trump Administration has been trying to leverage federal grants in ways that force various people and organizations to give up their constitutional rights or submit to constraints that go beyond the constitutional authority of the federal government. A standard response to criticisms of such policies that people have no right to these grants in the first place. Receiving federal grants and other government benefits, it is said, is a "privilege, not a right." Thus, the federal government can impose whatever conditions it wants on recipients. In an excellent recent Washington Post article, University of Pennsylvania law Prof. Mitchell Berman has a great explanation of why such reasoning is badly wrong:

Universities refuse to fully dismantle their DEI programs? The Trump administration withdraws billions of dollars in federal funding, and cancels visas for their foreign students. Law firms won't donate their services to causes that President Donald Trump favors? Trump cancels their lawyers' security clearances and refuses to deal with their clients. Journalists still call the Gulf of Mexico "the Gulf of Mexico"? Trump pulls their credentials for press briefings. The state of Maine allows some transgender athletes to compete on some girls' and women's sports teams? Trump threatens to cut off federal funding for its public schools.

Different targets, but one common tool: leverage. Trump uses federal funds and other government benefits to pressure individuals and institutions into exercising their constitutional rights as he prefers. This is extortionate. And therefore unconstitutional….

If Trump can use threats over tariffs to pressure nations into opening their markets or strengthening their currencies or ordering more U.S. arms, why can't he do the same with American institutions?

Because foreign nations have no constitutional rights, but American universities, lawyers, journalists and states do — rights protected by the First, Fifth, Sixth and Tenth Amendments. Trump's efforts to leverage government benefits against them violate those rights by penalizing their exercise.

When [Trump Council of Economic Advisers Chair Stephen] Miran defended high tariffs to gain concessions from trading partners, he noted that "access to the U.S. consumer market is a privilege that must be earned, not a right." The same applies to federal funding for education, research and other governmental benefits. They, too, are privileges, not rights. But it's impermissible to withhold benefits for the purpose of shaping or punishing American institutions for exercising the rights they do have — including free speech.

This is a well-established legal principle. More than 50 years ago, in Perry v. Sindermann, the Supreme Court thought it already well-established that "even though a person has no 'right' to a valuable governmental benefit … there are some reasons upon which the government may not rely" in denying that benefit. In particular, government may not deny a benefit to punish someone for exercising their constitutional rights or to pressure them into exercising their rights in the way the government dictates.

The reason is simple: "if the government could deny a benefit to a person because of his constitutionally protected speech or associations," his rights would thus be "penalized and inhibited." Because the Constitution doesn't "allow the government to 'produce a result which [it] could not command directly,'" the government cannot make the exercise of a right costly to force compliance with its agenda….

Yet that's precisely what Trump is doing. He threatens to withdraw funding from research to cure Parkinson's or Alzheimer's to punish universities for exercising their First Amendment rights to express views on American history and racial justice. He would pull school lunch funding for underprivileged kindergartners to pressure states into accepting his edicts on gender. But the Constitution prohibits this.

This is exactly right, and I have made similar points myself (albeit less eloquently), in the context of speech-based deportations of foreign students, sanctuary cities, and other issues.

I would add that Trump's use of tariffs as leverage is also unconstitutional, because he is usurping a power the Constitution granted to Congress, not the president. American businesses and consumers have a right to be free of unconstitutional taxation imposed by executive.

Berman goes on to point out that conservative judges, no less than liberal, have sought to prevent this kind of unconstitutional coercion:

Conservatives have historically been at least as vigilant as liberals in guarding against the selective granting and withholding of government benefits as a tool to pressure right-holders into exercising their rights the government's preferred way. Take the Affordable Care Act decision from more than a decade ago. The Supreme Court invalidated a portion of the act that conditioned all Medicaid funding on states' agreement to partner with the feds to provide health care to a new beneficiary class. Chief Justice John G. Roberts Jr. rightly reasoned that it was unconstitutional for Congress "to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding" — even though, unquestionably, Medicaid funding is a privilege, not a right.

A quarter-century earlier, the court held that a state zoning authority could not leverage its control over land-use variances (also a privilege, not a right) to pressure a family into conveying a public easement across its private beach. To threaten to withhold permits because of how landowners exercise their property rights, Justice Antonin Scalia reasoned, was "an out-and-out plan of extortion."

He's right on this point, too! And it's great to see a prominent left-liberal legal scholar praise the much-vilified Medicaid ruling in NFIB v. Sebelius and Justice Scalia's takings jurisprudence (also oft-maligned by left-of-center academics). Neither of these precedents is a model of clarity, and I have some reservations about both myself (see here and here). But both are much better than simply letting the government do whatever it wants, thereby severely compromising constitutional rights and structural limits on federal power. More generally, people across the political spectrum have a strong interest in maintaining constitutional constraints on the use of federal benefits and grants as leverage. Even if you trust Trump to use such leverage responsibly, I bet you wouldn't trust a Democratic president to do so (and vice versa).

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[Josh Blackman] Today in Supreme Court History: May 25, 1861

5/25/1861: John Merryman arrested. Chief Justice Taney ruled that his detention was unconstitutional in Ex Parte Merryman.

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[Josh Blackman] Circuit Justice Kagan Never Bothered Calling For A Reply In Trump v. AFGE

[The District Court succeeded its TRO with a PI, rendering the government's application moot. ]

The Circuit Justices do not apply uniform rules when it comes to emergency applications. Justice Jackson, for example, refused to promptly call for a response in Libby v. Fectau, a case where the majority ultimately granted emergency docket relief.

I have also been keeping my eye on . On May 9, A federal district court issued a TRO against the Trump Administration to block the removal of certain employees. On May 16, the Solicitor General applied for an emergency stay with Circuit Justice Kagan. And Kagan did absolutely nothing. She didn't even call for a reply.

On May 22, the District Court entered a preliminary injunction, which the government promptly appealed. On May 23, the Solicitor General filed a letter with the Supreme Court, withdrawing the stay application. The short letter states:

On May 16, 2025, we filed in the above-captioned case an application for a stay of an order issued on May 9, 2025, by the United States District Court for the Northern District of California. Labeled as a temporary restraining order, that order barred numerous executive-branch agencies from taking various actions related to an executive order and guidance memorandum concerning federal agencies' reductions in force. The order also directed the disclosure of certain deliberative executive-branch planning documents. Yesterday, May 22, the district court issued a preliminary injunction succeeding its temporary restraining order. Today, the United States filed a motion in the United States Court of Appeals for the Ninth Circuit to stay that new order pending appeal. In light of those developments, the United States withdraws its May 16 stay application in this Court.

I think I figured out what happened here. Justice Kagan realized that the District Court would almost certainly replace the unappealable TRO with an appealable PI. So she didn't lift a finger. She would rather wait for the normal appellate process to play out in the Ninth Circuit. Apparently, Justice Kagan did not think much of the government's urgent desire for a ruling.

As a practical matter, Kagan's delay extends by at least a month how long the government would be subject to an injunction. There isn't even the chance for an administrative stay. This case illustrates how much power and discretion the Circuit Justice has.

One of my proposals for bilateral judicial reform is to rotate the circuit justices annually. How is it fair that Justice Kagan always has authority over the Ninth Circuit while Justice Alito always has authority over the Fifth Circuit? Neither Justice has any geographic ties to the area. These should shift every year. And while I'm on the topic, the Court should consider a standard timeline for responses with emergency applications. It seems unfair that individual Circuit Justices can game the system.

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