Some short excerpts from yesterday’s long opinion in State v. Darraji (Wash. App.), written by Judge Tracy Staab and joined by Chief Judge Robert Lawrence-Berrey:

Prosecutors are prohibited from injecting improper bias into a trial by playing into religious or cultural prejudices. But not all references to religion or culture play into improper bias. When relevant and grounded in the evidence, it is not improper for a prosecutor to present testimony or argument related to religion and culture. Indeed, such evidence may be necessary to prove a fact at issue, such as motive. That is what happened in this case.

The State charged Yasir Darraji with second degree felony murder …. The State’s evidence was that Yasir, an Iraqi immigrant, was upset that his former wife, Ibtihal Darraji, had changed her behavior and beliefs in ways that did not conform to Iraqi culture. Yasir himself framed his concerns about Ibtihal in terms of his Iraqi culture and Islamic beliefs.

After police found Ibtihal’s murdered body inside a burning vehicle, the investigation focused on Yasir, largely due to evidence of his admitted disapproval of Ibtihal’s behavior, which he described as culturally and religiously motivated. Given this specific factual circumstance, Yasir’s religious beliefs and cultural affiliation were relevant to the State’s case. It therefore was not improper for the State to present evidence and arguments pertaining to religion and culture to the jury….

In February 2020, the State charged Yasir with second degree murder against an intimate partner, committed during the course of a second degree assault by strangulation….

At trial, the State’s theory was that Ibtihal’s rejection of traditional Iraqi culture and Islamic beliefs, and her embrace of American culture and Christianity, was the source of conflict between the former spouses. Their fighting and insults escalated until Yasir strangled Ibtihal to death in her car, drove the vehicle to a different location, and lit the car on fire with Ibtihal’s body inside.

On appeal, Yasir argues that the State committed prosecutorial misconduct by introducing irrelevant and inflammatory evidence of Islamic beliefs to invoke antiMuslim bias with jurors. He asserts that the State’s theory of conflict between the couple was manufactured when the couple simply disrespected each other. Yasir maintains that the State’s evidence of Iraqi culture, Islamic beliefs, and Ibtihal’s non-conforming behavior was irrelevant. He points to specific evidence and comments as particularly inflammatory, including evidence of Ibtihal’s decision to convert to Christianity and stop wearing a hijab, and evidence of their daughter wearing traditional Islamic attire and praying. Along with the prosecutor’s use of the term “Americanized,” he contends these comments and evidence amounted to prosecutorial misconduct. While acknowledging that he failed to raise this issue at trial, Yasir argues that we should apply the standard for race-based misconduct to his arguments based on culture and religious bias….

“[T]o prevail on a claim of race-based prosecutorial misconduct, the defendant must demonstrate that the prosecutor’s conduct was both improper and prejudicial by showing that [the prosecutor] flagrantly or apparently intentionally appealed to racial bias in a manner that undermined the defendant’s credibility or the presumption of innocence.” … We analyze race-based misconduct using an objective observer standard and do not consider the prosecutor’s subjective intent. “[W]e ask whether an objective observer could view the prosecutor’s questions and comments as an appeal to jurors’ potential prejudice, bias, or stereotypes in a manner that undermined the defendant’s credibility or the presumption of innocence.” … When applying this objective observer standard to the prosecutor’s remarks, “we consider (1) the content and subject of the questions and comments, (2) the frequency of the remarks, (3) the apparent purpose of the statements, and (4) whether the comments were based on evidence or reasonable inferences in the record.” …

With respect to the first two Bagby factors, there is no question that Iraqi culture and religion, both Islamic and Christianity, were frequently discussed during trial. If these comments were not based on evidence that Yasir adhered to these customs and beliefs, then the comments would be improper and prejudicial. Similarly, if the comments and evidence were introduced to discredit Yasir then they would likewise be inadmissible….

[But t]he comments and questions by the prosecutor were based on evidence and introduced to show motive. The State maintained that Yasir believed Ibtihal’s changing behaviors failed to conform to Iraqi culture and Islamic beliefs and were disrespectful, insulting, and reflected poorly on him. The prosecutor’s comments and questions throughout the trial about Iraqi culture were based on evidence that Ibtihal’s behaviors were viewed by Yasir and others close to him as failing to conform to Iraqi culture. These behaviors became the topic of rumors and gossip.

The non-conforming behavior included drinking, smoking, going to bars, dating, driving, working, not covering her hair, and attending a Christian church. While Yasir’s appeal focuses primarily on evidence of the couples’ religious differences, the State maintained that Ibtihal’s conversion to Christianity and decision to wear her hair uncovered was part of the larger picture.

Yasir himself made it clear that his beliefs and actions were influenced by his culture and religion. The day after Ibtihal’s murder, Yasir explained to police that Ibtihal’s outburst and name calling was unacceptable because “our culture is different.” He further explained both in his interview and while testifying at trial that Ibtihal’s perception of freedom following divorce was incorrect and childlike, testifying rhetorically “Why would she need freedom if I didn’t even put boundaries around her?”

Yasir was aware of and disapproved of Ibtihal’s changing behavior, including her conversion to Christianity. He told Ibtihal’s friend, Shaker, that Ibtihal’s changes did not “fit with his rituals and culture.” He exclaimed to his friend, Suwaed, that Ibtihal had become an “unbeliever of God.” Jameel testified that Ibtihal was attending church with her in 2017 but stopped attending in 2018. She explained that Yasir knew Ibtihal was attending a Christian church. Yasir testified that he told Ibtihal to stop taking their children to church….

Next, Yasir contends that the prosecutor’s use of the term “Americanized” was improper. Throughout the course of the trial, the prosecutor used the term three times. Once during opening argument when describing the evidence of motive and twice during questioning of witnesses. When the witnesses were asked if they would characterize Ibtihal as becoming more “Americanized,” both witnesses disagreed, although one witness suggested that Ibtihal was “becoming more aware.” On both occasions, the prosecutor moved on with questioning. The term was not used in closing argument.

We agree that under different circumstances, the term “Americanized” could be used improperly to interject an “‘us’ versus ‘them'” bias. In this case, however, the term was used to summarize relevant evidence of motive, and particularly whether the couple disagreed on the freedoms available to Ibtihal in the United States. An objective observer could not view the use of this term as an appeal to bias or prejudice against Muslims or persons from Iraq….

And a short excerpt from Judge George Fearing’s long dissent:

During trial, the State employed three converging dynamics to bias the jury: ethnicity, religion, and Americanism. I agree with the majority that evidence concerning Iraqi culture and Islam, Yasir Darraji’s upbringing in Iraq, Ibtihal Darraji’s change in lifestyle, and Ibtihal’s conversion to Christianity held relevance to the prosecution. For example, a prosecutor may question a witness about religious belief to establish a possible motive for a crime.

But because of the divisive subject of Islam and stereotypes of Middle Eastern men, the State needed to selectively, thoughtfully, and carefully present its evidence rather than turn the trial into a contest between American culture and Christianity, on the one hand, and Iraqi culture and Islam, on the other hand. The State also should have avoided any patriotic appeals to Islam and Iraqi culture being antagonistic to Americanism.

The State gratuitously painted victim Ibtihal Darraji as Christian and American and defendant Yasir Darraji as Muslim and un-American. The State even went as far as suggesting Ibtihal was a martyr to Christianity. With its testimony and arguments to the jury, the State employed the ancient, but common, practice of portraying the victim as “us” and the accused as “them” in order to assure a conviction. I would reverse and remand for a new trial because Yasir Darraji did not receive a fair trial.

I list the State’s disproportionate references during trial to Americanism, Christianity, and Islam. During its opening statement, the State promoted the United States as a refuge for the world. The State mentioned that Yasir and Ibtihal Darraji fled Iraq because of violence directed at the couple after Yasir worked in security for the United States. The State intoned: “[the Darrajis] … came here to seek the American dream.” Later comments by the State’s attorney, during opening, suggested Yasir interfered in Ibtihal’s pursuit of the American dream.

Also, during its opening statement, the State blamed hostility between Yasir and Ibtihal Darraji, accruing after the move to the United States, to Ibtihal’s becoming more “Americanized.”

Fights started happening again and rumors were being spread about Ibtihal Darraji that this good life she’d come here to live suddenly wasn’t looking right anymore. There were a lot of disputes about how she was becoming more Americanized. She’d spend time with friends and go dancing. She’d go drinking sometimes. These are things that were seen as unacceptable in her culture.

Other than perhaps suggesting spending time with friends, dancing, and drinking alcohol, the State never defined for the jury, during the opening, what it meant by “becoming more Americanized.” Nevertheless, one who sat through the trial or reads the transcript recognizes that the State deemed “becoming Americanized,” which I refer to as “Americanization,” to encompass wearing western clothes, discarding the hijab, and converting to Christianity. More importantly, the term “Americanized” would lead Spokane jurors to identify with Ibtihal Darraji and distance themselves from Yasir, who wished to preserve his Iraqi culture and Islamic religion despite moving to the United States. Thus, the opening statement began the “us” versus “them” dichotomy that did not end until the jury deliberated….

The State repeatedly, repeatedly, and repeatedly mentioned Ibtihal Darraji’s Christianity and Yasir Darraji’s Islamism. The State often and frequently elicited testimony of Ibtihal’s change in dress and shedding of the hijab. The incessant reference to Christianity and Americanization served no purpose other than to arouse the jurors. The State told the jury that Ibtihal’s devotional exercises at the Union Gospel Mission began her journey to death despite no evidence supporting this assertion. The State falsely told the jury that Hamid Nahi averred that Christianity could be a death sentence to a Muslim female residing in the United States….

Yasir Darraji’s prosecutor intentionally inserted a theme that undermined the credibility of Darraji because he, unlike his wife, refused to be Americanized and held to Islam. The prosecutor portrayed Darraji as the stereotypical Middle Eastern man seeking revenge against an ex-wife. The State did not need to insert ethnic and religious bias to convict Darraji, but it insisted in doing so….

There’s a lot more in both opinions.

The post Washington Court Holds (2-1) Prosecutors Didn't Improperly "Play[] into Religious or Cultural Prejudices" in Trial of Iraqi Immigrant Husband for Murdering Wife appeared first on Reason.com.

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If you want to, say, make juice from an orange, the typical way is to mash the orange on a simple squeezer. But the early-to-mid 20th-century cartoonist, Rube Goldberg, had an even better way. His “simple” juice-making contraption involved pulling a string, which releases a guillotine blade, which cuts a cord that engages a battering ram that then enrages a sleeping octopus, which attacks the dangling orange and squeezes out its juice.

Goldberg’s bizarre cartoon machines were hilarious and have for decades inspired students to create their own real-world variety. One website notes that dictionaries in 1931 turned his name into an adjective that means “accomplishing by complex means what seemingly could be done simply.” I’ve always enjoyed perusing them because they remind me of the world’s unnecessarily complicated systems—and see them as analogous to how our governments operate.

Let’s take the issue of farming. The simplest way to provide food for the population is to, you know, let farmers grow what they want to grow, sell their products to whomever they choose, export them in response to demand, and so forth. The more important the product—and food certainly ranks high on any list—the better it is to allow markets to work. Instead, our government micromanages the situation with complex regulations and subsidies that distort the market, raise prices, and pick winners and losers.

Farm policy has been a mess for decades, with both parties to blame. Every politician (and voter) loves farmers, who are perfect fodder for gauzy backdrops of real Americans nurturing the land, flying the flag, and epitomizing everything good and wholesome about the nation. The early Iowa caucuses reinforce this dynamic. Farming is a tough and risky business, but it is, in fact, mostly a business. Creating a mythology about it only makes it harder for lawmakers to address farm policy in a sensible manner that benefits everyone.

Farming has been in the news lately, as the Trump administration talks incessantly about imposing massive new tariffs on agricultural products. It’s also intent on deporting a large portion of those farms’ labor pool. Last month, Trump assured farmers that he would protect them from any negative effects of his on-again, off-again trade war with China—not a surprise given federal taxpayers typically provide massive subsidies to farmers.

“The Trump administration provided more taxpayer dollars to farmers financially damaged by the administration’s trade policies than the federal government spends each year building ships for the Navy or maintaining America’s nuclear arsenal,” according to a 2020 study from the National Foundation for American Policy. “The amount of money raises questions about the strategy of imposing tariffs and permitting the use of taxpayer money to shield policymakers from the consequences of their actions.”

What a crazy policy contraption. Basically, the feds impose damaging new taxes and trade restrictions on farmers for reasons mostly related to ideology and rent-seeking, then undo their effects by making farmers more dependent on government largesse. Often lost in the discussion, but one reason that U.S. farmers are so dependent on selling commodity crops to China and elsewhere is that past policies essentially subsidized them to do so.

Like with all things political, various federal farm policies have created a series of odd bedfellows. Many environmental groups have lauded past farm bills because they provide incentives for farmers to set aside land as open space, but overall the federal meddling has harmed the environment. For instance, federal sugar subsidies have greatly diminished the Florida Everglades by encouraging the conversion of wetlands into sugar fields.

As is typical, federal subsidies end up benefiting the biggest players. Overall farm incomes remain above average, but politically savvy agriculture lobbies cry poormouth to boost their handouts. In 2023, market-oriented groups opposed congressional efforts to boost those subsidies by noting: “Increasing price guarantees for covered commodities would only boost federal payments to the largest and most successful farmers, who already received almost 66 percent of all commodity subsidies in 2021.”

All these policies drive up food prices for non-farmers and reduce our choices in meats and produce. As Chris Edwards of the Cato Institute explained in 2022, if the feds deregulated, “Different crops would be planted, land usage would change, and some farm businesses would contract while others would expand. But a stronger and more innovative industry would emerge that had greater resilience to market fluctuations. Private insurance, other financial tools, and diversification would help cover risks, as they do in other industries.”

Instead of creating this convoluted, counterproductive policy that mimics a Rube Goldberg farce, the government should do the basics to help farmers. It should scuttle tariffs, halt subsidies, eliminate costly shipping levies, create a guest-worker program so farmers can have a consistent labor source, lower taxes, bolster water infrastructure and let markets do the rest. There’s no reason to use an octopus to make orange juice.

This column was first published in The Orange County Register.

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I don’t have a REAL ID–compliant driver’s license and don’t plan to get one. I figure if the federal government wants to implement internal passports in the U.S., which after 20 years of political and legal battles is now happening, we might as well be honest about it and use actual passports. So, from now on, I’ll enter the secure areas of airports and federal buildings with my actual passport, which is good for travel both external and internal to the U.S. Or we could call REAL ID–compliant licenses, which must adhere to federal standards, “national ID cards.” A little honesty is a good thing.

It Was Always a National ID Card

“The United States is getting a national ID card,” security expert Bruce Schneier wrote in 2005 when the REAL ID Act was passed. “The REAL ID Act … establishes uniform standards for state driver’s licenses, effectively creating a national ID card. It’s a bad idea, and is going to make us all less safe.”

The federal government denies that REAL ID means we all now have to carry national identification cards. Sort of. In 2007, after the REAL ID Act had been enacted but in the midst of state refusal to implement the law and popular opposition, then-Sen. Lamar Alexander (R–Tenn.) conceded the nature of the beast. “It may be that we need a national identification card,” he commented on the floor of the Senate. “I’ve always been opposed to that. We live in a different era now.”

The Department of Homeland Security (DHS) still denies that standardized identification documents required by the U.S. government for domestic air travel and entrance to federal facilities are national ID.

“REAL ID is a national set of standards, not a national identification card,” DHS insists in a FAQ. “REAL ID does not create a federal database of driver license information. Each jurisdiction continues to issue its own unique license, maintains its own records, and controls who gets access to those records and under what circumstances.”

That’s true-ish, but beside the point. The REAL ID Act set minimum standards for the information contained in an identification card, the conditions (such as citizenship or legal residency) qualifying a person to receive a card, and for the documentation that must be presented for an application. The law also prescribes that information be presented on identification cards in “a common machine-readable technology, with defined minimum data elements.” That common technology is helpful since the law also requires that ID issuers “provide electronic access to all other States to information.” Data is mostly shared through the State-to-State Verification Service, which links those different databases.

Everything besides that is just cosmetic. That includes the names of issuing states, color schemes, and background imagery. They may make ID cards look different from issuing state to issuing state, but they’re all interchangeable, with shareable data.

And none of this is going to make us safer—which was the justification for the law.

REAL ID Can’t Fix Corrupt Officials

“All but one of the Sept. 11 hijackers carried government IDs that helped them board planes and remain in the country illegally,” DHS then-Secretary Michael Chertoff complained in 2008 amidst debates over REAL ID and refusals by some states to comply.

But most people with fake driver’s licenses don’t acquire them by walking up to a Department of Motor Vehicles clerk with a pleasant smile and a note from mom. Instead, they buy them from corrupt officials.

“The manager of the Virginia Department of Motor Vehicles office at Springfield Mall was charged yesterday with selling driver’s licenses to illegal immigrants and others for up to $3,500 apiece,” The Washington Post‘s Jerry Markon reported in 2005. That was “the second time in two years that a Northern Virginia DMV employee was accused of fraudulently selling licenses for cash.”

If corrupt officials are bypassing normal bureaucratic procedures to issue fraudulent identification documents, standardizing those documents across the nation won’t fix the problem. But it could create the illusion of enhanced security. And it will create that illusion even as all that standardized data is placed in linked databases that actually enable identity fraud.

One-Stop Shopping for Identity Thieves

“The massive amounts of personal information that would be stored in State databases that are to be shared electronically with other States, as well as unencrypted data on the card, could provide one-stop shopping for identity thieves,” then-Sen. Daniel Akaka (D–Hawaii) warned during committee hearings on the REAL ID Act. “REAL ID may make us less secure by giving us a false sense of security.”

Yes, government officials argue that their agencies’ database security is super-secure. They would never let hackers go browsing through their records for interesting information or for the makings of new identities. But these are the same officials who regularly hand vast quantities of sensitive records to foreign hackers (think of the Office of Personnel Management data breaches) or to aggrieved workers (as with some IRS records leaks). There may, in fact, be nothing less secure than a secure government database.

Feeding the Expectation of Producing Your Papers

Perhaps the worst part, though, is that national IDs and internal passports as embodied in REAL ID add to the expectation that we must prove our identities on demand to the satisfaction of government officials. REAL ID makes it ever easier to insist that we produce papers containing standardized information to engage in everyday activities.

“A national identity system works against the interests of free people and a free society in several ways,” Jim Harper wrote in 2018 for the Cato Institute. “A national ID system undercuts the important background privacy protection of practical obscurity: the difficulty of learning about people when records are not created or when data are difficult to access or interpret.”

The Electronic Frontier Foundation’s Alexis Hancock emphasizes that 20 years of delays in implementing REAL ID have done the U.S. no harm, while the arrival of standardized national ID has real risks. Hancock helpfully points to a number of physical and electronic documents that can be used in the place of REAL ID–compliant identification to fly and to enter federal facilities.

Passports are on that list, and that’s what I’m sticking with. That it’s now used as a standardized internal passport and national ID card is exactly the point I’m making every time I’m required to present it so I can go about my business.

The post With REAL ID, America Now Has National ID Cards and Internal Passports appeared first on Reason.com.

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More than 10 years since the world-building game’s initial release, Electronic Arts has finally brought the free market to The Sims 4—or the closest it’s likely to get, anyway. The Businesses and Hobbies pack expands on the free-to-play Sims 4 base game, allowing players within the game world to finally earn a living through their creative pursuits and interests.

The expansion gives players the freedom to combine an impressive array of business ideas across in-game craftables and skill-building options. And if a player buys even more expansion packs, that player will have more opportunities to create the business of their dreams.

In the 25 years since the first Sims debuted, the franchise has evolved significantly. It was once a virtual dollhouse-style game with adult themes that simulated the real-world challenges of growing wealth through darkly humorous obstacles such as destructive kitchen fires, burglars, and continuously breaking cheap appliances. Now it focuses on players’ creative storytelling and downplays surprising interferences (perhaps reflecting a desire for a world where no scarcity interferes with personal fulfillment at all).

In a not-so-subtle nod to the franchise’s generally progressive political feel, the Sims world “Nordhaven” puts a heavy emphasis on community contribution and includes notably un–free market features, such as business registration fees. But players’ entrepreneurial spirit still has room to grow in the vast Sims universe.

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One of America’s more famous documentarians, Errol Morris, was intrigued by Tom O’Neill’s Chaos, a 2019 book delving into the mysteries around the murders committed in 1969 by people associated with the hippie cult leader Charles Manson.

In a new Netflix feature documentary exploring O’Neill’s theories and findings, Morris shows his work, and we hear him telling O’Neill on camera he isn’t quite buying the story O’Neill is selling.

Partly because of his connections to the Haight Ashbury Free Medical Clinic, which was haunted by CIA-associated mind control researcher Louis Jolyon West, and partly because of the mysterious leniency in how the legal system treated Manson before he was eventually arrested for the murders, O’Neill thinks it likely Manson was either a confidential informant and thus under the law’s protection to some extent, or carrying out a CIA-planned experiment using something like West’s techniques to turn his “Family” into mind-controlled murderers.

O’Neill certainly provides fodder for both theses, the first seeming more likely if only because it’s less baroquely sinister. But alternate explanations require a differently cynical view about government than O’Neill’s evil one: that perhaps California law enforcement was lazy and incompetent, or that West’s claims about his experimental brainwashing powers were exaggerated to keep the CIA money flowing.

The facts that Manson did eventually face justice and life in prison and never hinted at any of this, and that the world does not seem crawling with people with this brainwash-to-murder power, indicates that some skepticism about O’Neill’s thesis is warranted. But he presents it with dogged research powers—and a fair assessment of what he has and has not proven.

The post Review: Was Charles Manson Carrying Out a CIA Experiment? appeared first on Reason.com.

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A Connecticut judge has dismissed three breach-of-peace charges against Lauren Noble, founder and executive director of Yale University’s conservative Buckley Institute, after parking attendant Gerno Allen falsely accused her of using racial slurs against him on three occasions in July 2023 at a New Haven parking lot. Noble endured nearly a year of legal battles, spending tens of thousands of dollars in legal fees. Prosecutors dropped the charges on March 27, 2025, when video evidence contradicted Allen’s claims and revealed inconsistencies in his story. That video was available to police since July 2023 but not reviewed for months. “Video evidence that existed from day one fully exonerated me, just as I said from the very beginning,” Noble said in a statement. “The fact that it took nearly a year and exorbitant legal fees to get to this outcome is inexcusable.”

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I am happy to share this guest post from Seth Chandler, the Foundation Professor of Law at the University of Houston Law Center. I think the AI gets some things quite right and some things quite wrong. Then again, my own track record of predictions is not great, so perhaps GPT will soon beat me!

Trump v. CASA in an AI Crucible: An Experiment in Simulating Supreme Court Opinions

Last week, the Supreme Court heard arguments in Trump v. CASA, Inc., a case scrutinizing “universal injunctions” in the context of President Trump’s controversial executive order on birthright citizenship.  This prompted me to conduct a novel experiment: could a large language model, given only the argument transcript and its background knowledge, realistically simulate the forthcoming Supreme Court opinions?  I tasked an AI with predicting each justice’s vote, drafting abridged versions of the various opinions, and even considering the strategic interplay between justices—and the output was surprisingly coherent.

Here’s the outcome as reported by a simulated Linda Greenhouse (leading American legal journalist).

In a sharply divided 6-3 decision, the Supreme Court significantly curtailed the power of federal courts to issue “universal” or “nationwide” injunctions, a ruling with immediate and far-reaching consequences for a controversial executive order seeking to limit birthright citizenship. While stopping short, for now, of deciding the ultimate constitutionality of President Trump’s order, the majority opinion, authored by Justice Amy Coney Barrett, effectively allows the administration to implement its policy for many, even as it keeps protections in place for the specific plaintiffs involved in the lawsuits.

The ruling, handed down in Trump v. CASA, Inc., represents a major victory for the executive branch in its efforts to rein in what it has long decried as judicial overreach by individual district judges halting federal policies across the entire country. Justice Barrett, joined by Chief Justice John Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh, grounded the decision in Article III’s “case-or-controversy” requirement, asserting that judicial relief must generally be confined to redressing the specific injuries of the plaintiffs before the court, not every person potentially affected by a policy.

The Court vacated the nationwide injunctions previously entered by three lower courts, which had barred enforcement of the executive order that aims to deny U.S. citizenship to children born in the U.S. if either parent is in the country unlawfully or on a temporary visa. The majority found that such broad relief was “legally and historically dubious” and an abuse of discretion, arguing that traditional equitable remedies authorized by the Judiciary Act of 1789 did not encompass injunctions benefiting non-parties in ordinary cases. However, the Court left a sliver of possibility for universal relief in “rare cases” where it is “necessary to fully redress a plaintiff’s own injury,” a standard it found was not met in this instance.

While the majority opinion recognized “serious questions about the executive order’s constitutionality under the Fourteenth Amendment’s Citizenship Clause,” it deliberately sidestepped a definitive ruling on that “momentous question” at this preliminary stage. Instead, the focus remained narrowly on the scope of injunctive power. Justice Barrett emphasized that the decision was not a final adjudication of the merits and that the Court was prepared to address the underlying constitutional issue “expeditiously”.

The decision effectively means the executive order can be implemented against newborns whose families are not part of the current lawsuits or residents of the plaintiff states (like New Jersey and Washington), for whom protections remain. This outcome, the majority acknowledged, means “some number of U.S.-born children will be denied recognition as citizens in the short term”.

Justice Clarence Thomas, joined in large part by Justice Neil Gorsuch, penned a forceful concurrence going further than the majority. Justice Thomas argued that universal injunctions are outright unconstitutional in virtually all circumstances, not merely disfavored. He also dedicated a significant portion of his opinion to an originalist reinterpretation of the Fourteenth Amendment’s Citizenship Clause, contending that “subject to the jurisdiction thereof” was historically meant as a “political jurisdiction” test, excluding children of aliens owing allegiance to a foreign sovereign. In his view, the executive order does not violate the Citizenship Clause as originally understood, and he urged the Court to re-examine the long-standing precedent of United States v. Wong Kim Ark (1898). Justice Gorsuch joined Justice Thomas’s denunciation of nationwide injunctions but pointedly did not endorse his colleague’s reinterpretation of birthright citizenship.

Justice Elena Kagan, in a vigorous dissent joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, accused the majority of abdicating its “duty to fully check an unconstitutional act” and weakening the judiciary’s ability to remedy widespread constitutional violations. The dissenters argued that the executive order is a “flagrant violation of the Fourteenth Amendment” under Wong Kim Ark, which they assert plainly guarantees citizenship to nearly all persons born on U.S. soil. Justice Kagan contended that the lower courts were justified in issuing broad injunctions given the fundamental nature of the right to citizenship and the impracticality of confining relief. She warned that the majority’s restriction on remedial power is “a cure worse than the disease,” predicting a “flood of duplicative lawsuits or chaos as citizenship rights vary by state”. The dissent painted a stark picture of “innocent newborns and their families in legal limbo,” potentially rendered stateless.

The decision, while procedural, throws the contentious issue of birthright citizenship into a period of heightened uncertainty. While the specific plaintiffs and residents of plaintiff states remain shielded, children born elsewhere to parents covered by the executive order now face the prospect of being denied U.S. citizenship, at least until the courts reach a final decision on the merits – a battle the Supreme Court has now signaled it is willing to join, sooner rather than later. The ruling also sets a new, more restrictive landscape for litigants seeking to block federal policies on a national scale, likely leading to more geographically fractured legal battles and a race to the courthouse in multiple jurisdictions.

So why is this interesting? First, it possibly exposed my own biases. While not a fan of universal injunctions, after listening to the arguments, I felt precisely as Justice Kagan had: the cure might be worse than the disease. Relegating plaintiffs to cumbersome class action proceedings left the executive branch free to take away constitutional rights from large swaths of the public while either the class action lumbered on (perhaps without a possibility of preliminary injunctions) or hundreds of expensive individual actions burdened the federal courts. Moreover, the idea mentioned during oral argument of a person being a US citizen in New Jersey (because perhaps the Third Circuit struck down the Trump order) but de-citizening when they moved to New York (because perhaps the Second Circuit upheld the Trump order) struck me as bizarre. Perhaps the problems with universal injunctions was something Congress could legislate about rather than having the judiciary forever restrict effective judicial review through a ruling based on Article III. Maybe I will yet be proven right, but, at the moment, AI did not agree with my predisposed ear. The simulated opinion’s divergence from my predisposition vividly forces confrontation with the phenomenon of confirmation bias.

Second, was the quality of the opinions. Particularly the ones penned by imaginary Justices Kagan and Thomas sounded very much like their real world counterparts. Justice Thomas was eager to address an issue not (yet) before the court: the merits of the birthright citizenship issue. Justice Kagan issued the sort of pithy statements she had cultivated during her stint as a journalist on The Daily Princetonian. And the arguments were basically sound. Justice Thomas’ sounds authentic when he tries to distinguish Wong Kim Ark. Justice Barrett sounds real when she uses Grupo Mexicano to argue that injunctive relief must comport with historic practice in equity. Yes, there weren’t enough citations and the opinions were blissfully short compared to their real world counterparts, but they captured the essential arguments that might well expect to see in a few months, including the strategic decisions made by the justices on whether to address the merits of the underlying constitutional issues. Moreover, the brevity might have been the consequence of my own lack of faith in the ability of current AI to draft full-length opinions. It complied with my instruction to keep things under 15,000 words.

Third was the replicability and simplicity of the experiment. Other than the fact that I was interested in it — perhaps because a ruling strongly against universal injunctions vastly changes judicial review — there was nothing special about Trump v. CASA.  Nor did I work very hard.  My prompt, frankly, was not as detailed as perhaps it could be. I let “Deep Research” do almost all the work. A few minutes of work resulted in something that sure looked real. This experiment can be done on any case for which there is an argument transcript.

Fourth, there’s plenty of work to be done. Large language models are non-deterministic. What if I fed the identical prompt into the model multiple times? Or fed the identical prompt to multiple models? What would the distribution of opinions look like? What if I gave it further information such as the briefs in the case or the opinion the court was just about to release in A.A.R.P. v. Trump, which addresses preliminary injunctive relief to putative classes? Would that affect the distribution of opinions?

Regardless of how the real version of Trump v. CASA is ultimately decided, this experiment with AI offers compelling food for thought. The process revealed the unsettling ease with which an algorithm could produce plausible judicial reasoning, echoing the distinct styles of individual justices and grappling with the strategic considerations inherent in opinion-writing. It forces us to consider the extent to which legal interpretation and judicial decision-making can be deconstructed into replicable patterns. As AI continues its rapid advance, its utility may extend far beyond exposing our biases or predicting case outcomes; it may fundamentally reshape our engagement with, and understanding of, the legal process itself, revealing the law’s intricate patterns and its occasional, stark non-determinism.

 

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So the Department of Homeland Security announced today. A few tentative thoughts; if it turns out that I have erred in my understanding of the facts or of the program, I’ll update them as necessary:

[1.] Unsurprisingly, student and exchange visitor visas are issued only to people who can show that they really are students and exchange visitors, and at recognized institutions that fulfill the visa program’s goals. There are therefore procedures both for certifying and decertifying educational institutions as eligible for the Student and Exchange Visitor Program.

[2.] Equally unsurprisingly, institutions have to provide various information about students and the students’ conduct. The DHS letter claims that:

On April 16, 2025, Secretary Noem demanded Harvard provide information about the criminality and misconduct of foreign students on its campus. Secretary Noem warned refusal to comply with this lawful order would result in SEVP termination….

Harvard University brazenly refused to provide the required information requested and ignored a follow up request from the Department’s Office of General Council. Secretary Noem is following through on her promise to protect students and prohibit terrorist sympathizers from receiving benefits from the U.S. government.

I can’t speak to what Harvard’s alleged failures were, or whether they are sufficient under the statute to justify decertifying it.

[3.] At the same time, as with other broadly available benefits, the government generally can’t deny them based on the viewpoints that Harvard expresses, declines to express, or tolerates and indirectly supports. And the letter suggests that the government’s actions stem at least in part from such viewpoints. Consider, for instance, the list of “Facts about Harvard’s toxic campus climate”:

• A joint-government task force found that Harvard has failed to confront pervasive race discrimination and anti-Semitic harassment plaguing its campus.
• Jewish students on campus were subject to pervasive insults, physical assault, and intimidation, with no meaningful response from Harvard’s leadership.
• A protester charged for his role in the assault of a Jewish student on campus was chosen by the Harvard Divinity School to be the Class Marshal for commencement.
• Harvard’s own 2025 internal study on anti-Semitism revealed that almost 60% of Jewish students reported experiencing “discrimination, stereotyping, or negative bias on campus due to [their] views on current events.”
• In one instance, a Jewish student speaker at a conference had planned to tell the story of his Holocaust survivor grandfather finding refuge in Israel. Organizers told the student the story was not “tasteful” and laughed at him when he expressed his confusion. They said the story would have justified oppression.
• Meanwhile, Pro-Hamas student groups that promoted antisemitism after the October 7 attacks remained recognized and funded.

Some of these behaviors are of course not protected by the First Amendment (e.g., “physical assault”). On the other hand, “promoting antisemitism” and being “pro-Hamas” is protected by the First Amendment. The same is true of laughing at people who want to tell stories about their Holocaust survivor family members is protected by the First Amendment, as is excluding them from a a program (whether run by a student group or by the private university) unless they change their message.

Choosing someone to honor as Class Marshal is also expression, even when the person chosen is being charged for assault—just as, for instance, an anti-abortion institution would be exercising its First Amendment rights by honoring someone who was accused of punching an abortion clinic employee. People may well condemn such expression, but I don’t think the government can strip a university of participation in the program based on such expression.

[4.] More broadly, even if the DHS hadn’t mentioned the university’s or student groups’ constitutionally protected speech, and instead focused just on nonspeech conduct, the government may not selectively enforce even speech-neutral rules in ways that deliberately target people or institutions based on their constitutionally protected speech. (See, e.g., Hoye v. City of Oakland (9th Cir. 2011), which held that the City’s viewpoint-discriminatory enforcement of an ordinance in a way that targeted anti-abortion speakers violated the First Amendment.) Perhaps I’m mistaken, but it seems to me that the targeting of Harvard here has more to do with Harvard’s ideological stances, including its opposition to past Administration demands, than with an evenhanded, content-neutral enforcement of reporting requirements, antidiscrimination rules, and the like.

In any event, I hope Harvard fights this, quite likely with a request for a preliminary injunction. The court will at that point presumably have more facts on what exactly Harvard allegedly did wrong, and why the Administration actually targeted Harvard; I look forward to seeing what is disclosed in that process.

The post "Harvard University Loses Student and Exchange Visitor Program Certification for Pro-Terrorist Conduct" appeared first on Reason.com.

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From today’s majority opinion in Trump v. Wilcox (see also Josh’s post below):

The Government has applied for a stay of orders from the District Court for the District of Columbia enjoining the President’s removal of a member of the National Labor Relations Board (NLRB) and a member of the Merit Systems Protection Board (MSPB), respectively. The President is prohibited by statute from removing these officers except for cause, and no qualifying cause was given.

The application for stay presented to The Chief Justice and by him referred to the Court is granted. Because the Constitution vests the executive power in the President, see Art. II, §1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents, see Seila Law LLC v. Consumer Financial Protection Bureau (2020). The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power. But we do not ultimately decide in this posture whether the NLRB or MSPB falls within such a recognized exception; that question is better left for resolution after full briefing and argument. The stay also reflects our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty. A stay is appropriate to avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation.

Finally, respondents Gwynne Wilcox and Cathy Harris contend that arguments in this case necessarily implicate the constitutionality of for-cause removal protections for members of the Federal Reserve’s Board of Governors or other members of the Federal Open Market Committee. We disagree. The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States. See Seila Law footnote 8.

And an excerpt from the considerably longer dissent by Justice Kagan, joined by Justices Sotomayo and Jackson:

For 90 years, Humphrey’s Executor v. United States (1935), has stood as a precedent of this Court. And not just any precedent. Humphrey’s undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.

The two such agencies involved in this application are the National Labor Relations Board (NLRB) and Merit Systems Protection Board (MSPB). But there are many others—among them, the Federal Communications Commission (FCC), Federal Trade Commission (FTC), and Federal Reserve Board. Congress created them all, though at different times, out of one basic vision. It thought that in certain spheres of government, a group of knowledgeable people from both parties—none of whom a President could remove without cause—would make decisions likely to advance the long-term public good. And that congressional judgment, Humphrey’s makes clear, creates no conflict with the Constitution. Rejecting a claim that the removal restriction enacted for the FTC interferes with “the executive power,” the Humphrey’s Court held that Congress has authority, in creating such “quasi-legislative or quasi-judicial” bodies, to “forbid their [members’] removal except for cause.” Indeed, that conclusion “cannot well be doubted.”

The current President believes that Humphrey’s should be either overruled or confined. And he has chosen to act on that belief—really, to take the law into his own hands. Not since the 1950s (or even before) has a President, without a legitimate reason, tried to remove an officer from a classic independent agency—a multi-member, bipartisan commission exercising regulatory power whose governing statute contains a for-cause provision. Yet now the President has discharged, concededly without cause, several such officers, including a member of the NLRB (Gwynne Wilcox) and a member of the MSPB (Cathy Harris). Today, this Court effectively blesses those deeds. I would not. Our Humphrey’s decision remains good law, and it forecloses both the President’s firings and the Court’s decision to award emergency relief.

Our emergency docket, while fit for some things, should not be used to overrule or revise existing law. We consider emergency applications “on a short fuse without benefit of full briefing and oral argument”; and we resolve them without fully (or at all) stating our reasons. It is one thing to grant relief in that way when doing so vindicates established legal rights, which somehow the courts below have disregarded. It is a wholly different thing to skip the usual appellate process when issuing an order that itself changes the law. And nowhere is short-circuiting our deliberative process less appropriate than when the ruling requested would disrespect—by either overturning or narrowing—one of this Court’s longstanding precedents, like our nearly century-old Humphrey’s decision.

Under that decision, this case is easy, as the courts below found: The President has no legal right to relief. Congress, by statute, has protected members of the NLRB and MSPB (like Wilcox and Harris) from Presidential removal except for good cause. And, again, Humphrey’s instructs that Congress can do so without offending the Constitution. Just like the agency at issue there (the FTC), the NLRB and MSPB are multi-member bodies of experts, balanced along partisan lines, with “quasi-legislative or quasi-judicial” (not “purely executive”) functions. So both fit securely within the ambit of Humphrey’s—as no one in the history of either agency has ever doubted. That means to fire their members, the President—under existing law—needs good cause, which he admits he does not have. The only way out of that box is to upend Humphrey’s….

Our normal (invariable?) practice is to grant a stay pending appeal only when we decide the applicant is likely to succeed on the merits. But the majority’s order purports not to reach that conclusion. According to the majority, the President may remove without cause officers exercising executive power, “subject to narrow exceptions recognized by our precedents.” The majority will not say the name of the relevant precedent, but one of those “exceptions” of course comes from Humphrey’s.

The question thus becomes: Does Humphrey’s protect the NLRB and MSPB Commissioners? Well, the majority says, those officers likely exercise “considerable executive power”; but whether they fall within “a recognized exception”—i.e., Humphrey’s—is better left for the future. So the majority’s order just restates the question this case raises—despite the need to give a preliminary answer before ordering relief. Unless … unless the majority thinks it has provided a hint. Maybe by saying that the Commissioners exercise “considerable” executive power, the majority is suggesting that they cannot fall within the Humphrey’s “exception.” But if that is what the majority means, then it has foretold a massive change in the law— reducing Humphrey’s to nothing and depriving members of the NLRB, MSPB, and many other independent agencies of tenure protections. And it has done so on the emergency docket, with little time, scant briefing, and no argument…

[T]he majority [also] reasons that a stay is justified because the interests at stake are lopsided. “[T]he Government,” it declares, “faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.” But that statement misapprehends, on both sides, what this case involves.

On the latter side, the relevant interest is not the “wrongfully removed officer[s’],” but rather Congress’s and, more broadly, the public’s. What matters, in other words, is not that Wilcox and Harris would love to keep serving in their nifty jobs. What matters instead is that Congress provided for them to serve their full terms, protected from a President’s desire to substitute his political allies. Or differently put, the interest at stake is in maintaining Congress’s idea of independent agencies: bodies of specialists balanced along partisan lines, which will make sound judgments precisely because not fully controlled by the White House….

And on the former side of the balance, the majority distorts and overstates the interest in preventing Wilcox and Harris from continuing in office. That interest, to begin with, is not “the Government[‘s],” but only the President’s. Congress, after all, is also part of the Government, and (as just noted) its equities lie in preserving the legislation it has enacted to limit removals. And as to the President’s interest in firing Wilcox and Harris, the majority gives it more weight than it has borne in almost a century. Between Humphrey’s and now, 14 different Presidents have lived with Congress’s restrictions on firing members of independent agencies. No doubt many would have preferred it otherwise. But can it really be said, after all this time, that the President has a crying need to discharge independent agency members right away—before this Court (surely next Term) decides the fate of Humphrey’s on the merits?

The impatience to get on with things— to now hand the President the most unitary, meaning also the most subservient, administration since Herbert Hoover (and maybe ever)—must reveal how that eventual decision will go. In valuing so highly—in an emergency posture—the President’s ability to fire without cause Wilcox and Harris and everyone like them, the majority all but declares Humphrey’s itself the emergency.

Except apparently for the Federal Reserve…. The Federal Reserve, [the majority] submits, is a “uniquely structured” entity with a “distinct historical tradition”—and it cites for that proposition footnote 8 of this Court’s opinion in Seila Law. But—sorry—footnote 8 provides no support. Its only relevant sentence rejects an argument made in the dissenting opinion “even assuming [that] financial institutions like the Second Bank and Federal Reserve can claim a special historical status.” And so an assumption made to humor a dissent gets turned into some kind of holding. Because one way of making new law on the emergency docket (the deprecation of Humphrey’s) turns out to require yet another (the creation of a bespoke Federal Reserve exception). If the idea is to reassure the markets, a simpler—and more judicial—approach would have been to deny the President’s application for a stay on the continued authority of Humphrey’s.

{The majority also justifies its stay on the ground that it will “avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation.” But that reason, too, gives the ultimate game away. As this case came to us, Wilcox and Harris had been reinstated to their positions, by the combined rulings of the district and appellate courts. So by re-removing them, the majority’s order itself causes disruption—except, of course, if that order presumes or implies that they will be re-removed next Term anyway.}

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