Tag: in-the-news

Hunter v. United States was not on my radar screen. But this may be one of the most unexpectedly fascinating cases of the year. The question presented is simple enough. In what cases can a defendant escape a knowing and intelligent waiver of appellate rights.

The top-line vote was 8-1, though as I noted yesterday, the majority splits 2-3-3. Justice Kagan and Chief Justice Roberts were squarely in the majority. Justice Gorsuch, joined by Justices Sotomayor and Jackson, tried to expand the majority opinion. Justice Kavanaugh, joined by Justices Alito and Barrett, felt compelled to say the majority opinion was actually more narrow. This was hardly a usual 8-1 decision.

The dissent by Justice Thomas raised many important points that were completely ignored by the majority. Justice Barrett wrote a partial rejoinder that was very unsatisfying.

Justice Thomas points out how the majority creates an exception to the appeal waiver doctrine out of thin air. Justice Kagan does not rely on any law, contract-law principle, or common law rule. Rather, the Court could only rely on the so-called “supervisory power.” But as Professor Barrett persuasively explained in a law review article two decades ago, this sort of power is a fiction without any grounding in law. Justice Frankfurter explained in McNabb v. United States (1943) that the supervisory power was based on general “considerations of justice not limited to the strict canons” of law. In other words, no law.

What then is the basis to create the exception? In short, virtue signaling. The Court is afraid how people will see the judiciary. This sort of institutionalism is at the cornerstone of Chief Justice Roberts’s approach to judging, but it has no basis in law. Justice Thomas, as usual, is the only member of the Court willing to say the uncomfortable part out loud.

The Court, however, fails to identify any basis in law for its exception. It identifies no constitutional text, statute, or Federal Rule of Criminal Procedure that even suggests its miscarriage-of-justice exception. And, it identifies no established common-law or equitable doctrine that resembles it.The Court instead grounds its exception in the need to avoid “bring[ing] the judicial system into disrepute.” Ante, at 1, 11. Because federal courts have a “role . . . in approving and implementing appeal waivers,” the Court argues, this Court must create appropriate rules for enforcing them, which should advance the court system’s own “‘institutional interest.'” Ante, at 8–9. 9

Of course, the Court’s desire for a particular legal rule does not give it the right to create it. “Our duty is to apply the law, not to make it.” Pine Grove v. Talcott, 19 Wall. 666, 677 (1874). Thus, concerns about public perception of the judiciary provide no justification for the Court’s decision. The power to change the law to avoid outcomes that the people do not like “lies with the people, and not with the judiciary.” Ibid.

Justice Kagan was petrified of how people would see the court if some judge imposed a sentence based on race, sex, or some other prohibited characteristic. I think the response to such misbehavior would be through the judicial misconduct process or even impeachment. Moreover, if there was an actual miscarriage of justice, I would think political pressure could be brought on the executive branch to modify the terms of sentence or perhaps even provide a presidential commutation. The political branches are capable of dealing with bad situations. The answer does not lie in the courts making stuff up.

As for the supervisory power, Justice Thomas responds directly to Justice Barrett:

JUSTICE BARRETT, for her part, adopts a sounder methodology. See ante, at 1 (concurring opinion). But, in my view, the common-law-of waiver principles she invokes cannot justify this decision either for several reasons. First, if today’s decision could be justified as an act of common-law finding rather than policymaking, one would expect to find a more robust tradition of decisions applying a similar rule in similar situations. Yet, neither JUSTICE BARRETT nor the Court can point to any. See infra, at 22–23. Second, JUSTICE BARRETT cites authorities explaining that certain rights may never be waived. Ante, at 2; see infra, at 22. That general principle is true as far as it goes. But, common-law doctrines require rules with identifiable content for judges to apply, not only general principles. It is not entirely clear how the general principle that some rights cannot be waived leads to the Court’s granular rule under which appeals can be waived, but those waivers become void if any of four specific factual scenarios later occur at sentencing. Third, this body of law precluded waivers of certain procedures that implicated the “substantial” features “of the legal tribunal” or the “fundamental mode of its proceeding.” R. Bowers, Law of Waiver §397, p. 394 (1914). It is not clear to me that appeals of sentencing errors—appeals that did not even exist until 100 years after the founding and that must be asserted by the defendant—are sufficiently fundamental to criminal procedure for these doctrines to have any purchase. In any event, Hunter never developed an argument along these lines, which may explain why the Court, on my reading, declined to adopt it.

I’ve read and re-read Justice Barrett’s short concurrence. I almost get the sense that she blinks. She knows Justice Thomas is right, and agrees with him, but finds some way to distinguish this case to avoid a “miscarriage of justice.” In other words, Justice Barrett wouldn’t want the judiciary to be viewed in such a negative light. But again, this approach to judging amounts to little more than virtue signaling.

Justice Kagan’s opinion to avoid a “miscarriage of justice” is a throwback to the Warren Court where the Justices actively made policy. But as Justice Thomas explains, “policy concerns are not rules of decision in courts of law.”

Justice Alito’s vote in this case is baffling. He might think the exception is so narrow as to have no real effect.

Finally, it appears that the Court lacks Article III standing. Justice Thomas observes:

3Because Hunter cannot say whether he will ever be prescribed ob-jected-to medication, he has conceded that his claim is not ripe under binding Fifth Circuit precedent. Hunter may well lack Article III standing under our precedents. The Court nonetheless proceeds to the merits without addressing its jurisdiction.

Yes Justice Kagan and her colleagues leap over these procedural problems to engage in policy-making. Where is Justice Barrett on this jurisdictional point?

Kudos to Lisa Blatt. She won two cases on Friday, Hunter and the Rooker-Feldman case. Very different analyses, both victories.

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The United States has gotten used to specific ways of ending wars. Sometimes the U.S. military decisively forces the enemy state to surrender, imposes a new political order, and gets it to stick, as in Germany and Japan in the 1940s or Panama in the 1990s. Other times, rebels wear down U.S. resources and willpower before decisively kicking out U.S. forces, as in Vietnam in 1975 or Afghanistan in 2021.

But the Iran war is ending with something quite unfamiliar to Washington: compromise. The United States and Iran were unable to defeat each other in the first round, and, staring at an unacceptably costly escalation, they came to the table. While a final deal hasn’t been agreed to, the ceasefire memorandum commits both sides to giving things up, with the U.S. promising to lift all economic sanctions if Iran negotiates away its nuclear program.

Big parts of Washington are not taking it well, with Republicans and Democrats alike calling the peace a “blunder” or even a “surrender.” It’s one thing to object to specific terms of the truce. The U.S. may be promising too much and demanding too little at the outset. But some criticisms would apply to any kind of two-sided deal with a former enemy. For hawks, failure to secure the enemy’s surrender is itself a form of U.S. “surrender.” Simply put, hawks have forgotten how to make peace.

Conservative journalist and presidential confidante Mark Levin claims that the memorandum makes the mistake of “trying to incentivize the behavior of 7th century barbaric Islamists with promises of money” and that “the West is being conquered” by agreeing to stop the war short of Iranian surrender. Others have argued that a deal shouldn’t have any benefits for Iran, regardless of what Iran is offering in return. Sen. Josh Hawley (R–Mo.) said that a deal shouldn’t “give Iran any money,” because “they’re not great actors.”

To borrow a Russian turn of phrase, this mentality is недоговороспособность, or “agreement incapability.” An agreement-incapable actor approaches diplomacy as nothing but a weapon “to delay, deceive, and destabilise its opponents.” (Levin, for example, suggested using the current negotiations to buy time for restarting the war after the U.S. midterm elections.) The agreement-incapable mind cannot imagine talks leading to “a mutually beneficial settlement.”

In fact, this mindset is baked into U.S. law. Mark Dubowitz, CEO of the neoconservative Foundation for Defense of Democracies, has repeatedly bragged about his role in creating a “sanctions wall” to prevent a deal. He pushed the first Trump administration to impose layers of economic sanctions on Iran under different pretexts, from the nuclear issue to human rights, so that a future administration could not resume trade with Iran without resolving all of those issues.

To be clear, sanctions relief costs American taxpayers nothing, and some of it will benefit American business interests. For example, the U.S. government will immediately license Iran to spend $6 billion in its own oil revenues on American agricultural products, according to the Financial Times.

But hawks are alarmed at giving away U.S. leverage. Former Rep. Tom Malinowski (D–N.J.) complained that Iran would get relief from sanctions “on human rights abusers and sponsors of terror, with zero Iranian concessions on those issues.” Dubowitz’s sanctions wall worked. In order to offer Iran normal economic relations, President Donald Trump will have to pick a domestic political fight over inflammatory issues like human rights and terrorism.

There are serious criticisms to be made about the memorandum. It is vague about the nuclear concessions Iran has to make to unlock full sanctions relief. Vice President J.D. Vance has implied that there are unwritten “gentleman’s agreements,” which is not exactly reassuring. While the memorandum forces Iran to stop extorting shipping in the Strait of Hormuz in the immediate term, it leaves the “future administration” of the strait up for negotiations.

Any conversation over the costs and benefits of the deal also has to take into account the costs and benefits of the alternatives. In fact, it was trying those alternatives that gave Iran leverage in the first place. Trump started down the road hawks wanted by bombing Iran, calling for regime change, and promising “no deal with Iran except UNCONDITIONAL SURRENDER.” The war didn’t collapse the Iranian government, but it did give Iran the opportunity to harass shipping in the Strait of Hormuz, holding the world’s oil economy hostage.

Trump searched in vain for a cost-free escalation, only to discover that none existed. A ground raid to take away Iran’s sources of leverage, its enriched uranium and its oil export terminal, would expose U.S. troops to serious casualties. Escalating the air war by bombing critical Iranian infrastructure would provoke Iran to do the same to its oil-rich neighbors. Trying to sneak ships through the strait during the ceasefire was provoking near-nightly naval combat.

Even maintaining the status quo was rapidly depleting oil inventories around the world, which would have forced either rapid price hikes or outright shortages by the beginning of July, as oil executives were warning. Trump ultimately concluded that the deal was the least bad option. That conclusion, of course, is up for debate. But much of the hawkish rhetoric is meant to shut out debate with emotional cries about surrendering to evil and losing honor.

The withdrawal from Afghanistan—which, unlike the stalemate with Iran, involved an unambiguous U.S. surrender—is a cautionary tale. After the U.S. military overthrew the Taliban government in 2001, the Bush administration declared that it was “not inclined to negotiate surrenders” and turned down the chance to integrate Taliban supporters into the new government.

Nearly two decades of civil war later, the Taliban underground had gained so much strength that both Trump and Joe Biden decided that Afghanistan was a lost cause. Trump cut a deal for an orderly withdrawal, which Biden upheld, only for it to become violent chaos anyway when the Taliban stormed Kabul while U.S. troops were still there in August 2021.

The Bush administration similarly turned down a deal with Iran itself, which offered up a “grand bargain” including everything from its nuclear program to its support for Hamas and Hezbollah in 2002. In return, Iranian leaders wanted an end to U.S. sanctions and a guarantee of noninterference in U.S. politics. A quarter-century and two wars later, the Trump administration is getting less than Iran was offering in 2002 for the same price. Unlike in Afghanistan, the administration is at least getting something from Iran.

Again, the rhetoric about surrender and humiliation is not about weighing the relative merits of that deal or whether a better one is possible. It is about ensuring that there will be no deal at all. And, ironically, that strategy has already led to an actual U.S. surrender at least once.

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Major League Baseball (MLB) found itself mired in controversy this past week after three San Francisco Giants players—Landen Roupp, J.T. Brubaker, and Ryan Walker—inscribed Bible verses on their hats that had been designed for the team’s Pride night. Another, Sam Hentges, declined to wear the hat altogether. Whether people were mad at the players for their lack of pride or at the team and league for their alleged abundance of pride depends on vantage point. But people were mad.

Put differently, we are living in Groundhog Day, but make it gay. We’ve had this fight before. Around and around we have gone. A lot of people are wrong. So why are we still doing this?

The MLB may be wondering the same thing. “We have told teams, in terms of actual uniforms, hats, bases that we don’t think putting logos on them is a good idea just because of the desire to protect players,” said MLB commissioner Rob Manfred in 2023, “not putting them in a position of doing something that may make them uncomfortable because of their personal views.” The Giants and the Los Angeles Dodgers, however, have continued incorporating the Pride uniforms because of a standing agreement.

This fight is not constrained to the outfield or the infield or the minefield-ridden culture war battlefield. “I write with grave concern over your reported decision to issue a formal warning to three Major League Baseball (MLB) players for publicly expressing their Christian faith,” Sen. Josh Hawley (R–Mo.) said in a letter to Manfred. “You must answer for what appears to be a pattern of discrimination within MLB against baseball players who profess their Christian faith.” The senator was joined by other government actors promising to intervene, including the U.S. Department of Justice’s Harmeet Dhillon, who referred the league to the Equal Employment Opportunity Commission for an investigation.

“This routine verbal warning not to wear the hat in future games is not disciplinary and had absolutely nothing to do with the content of the message,” the league said in a statement. “We respect players’ right to free expression. However, writing of any kind, with any message, is prohibited per Major League Baseball’s uniform regulations….We have given the same warning numerous times in the past to players for messages such as ‘Dad,’ ‘Happy Mother’s Day, I Love Mom’ and names of family members.”

Dear reader, you are entitled to the view that such a policy is silly. You are also entitled to the view that teams could and should avoid this carousel ride of controversy altogether by not politicizing uniforms. But the MLB’s rule is unequivocally, uncontroversially protected by the First Amendment. Yes, the league receives subsidies (too many, in fact!). So do many private organizations and companies: Amazon, Intel, Boeing, Ford, tech companies and agricultural companies and energy companies and on. That does not mean they forfeit their constitutional rights. Baseball is a symbol of Americana, after all. Appropriately, it is not an arm of the U.S. government.

One person who provides a good reminder that this is constitutionally protected is, ironically, Dhillon. “The Civil Rights Act prohibits MLB and its franchises from unreasonably burdening the rights of players with religious objections to serving as the League’s vehicle for pro-Pride messages,” she writes in her letter. “Federal law is clear: employers must modify their uniform requirements to reasonably accommodate their employees’ exercise of religion.”

They did. The Pride hats were not mandatory; Hentges opted out, which players are permitted to do, and he thus received no verbal warning. That is “reasonably accommodat[ing]” by every measure. A team offered its employees clothing that aligned with its values and the league enforced rules it has about writing messages on uniforms—two things that are indisputably within the purview of private actors. If a franchise gave players hats inscribed with the Ichthys (a.k.a. the Jesus fish), it would be similarly vindicated in admonishing employees who added anti-religious screeds.

The difference, of course, is that an MLB team offering such a hat would be nearly beyond belief, including (maybe even more so?) to the devoutly religious. Which does tell you something.

Teams are working toward a collective. But they are made up of individuals. Some players are religious, some are not. Some support gay rights, some do not. Some believe ranch dressing is the best condiment, some have no taste. This is, fortunately, their right. “I’m thankful we live in a country where, you know, we have the freedom to believe what we want…and express what we want,” Roupp said after the game last week. Pressuring players under a national microscope to take sides on any given political issue mostly just breeds conflict for the sake of virtue signaling. And for what? Expressions of support—for gay rights, or for anything—mean much more when they are done voluntarily, by your own initiative, on your own time.

“By resorting to ‘us’ and ‘them’ instead of truly understanding the humanity of the people asking for help, those who chose to make a statement on or with their hats completely missed the point,” wrote Grant Brisbee in a viral column for The Athletic, a subsidiary of The New York Times. “If anyone is looking to make the world better, they might try listening and understanding.” The author, respectfully, could stand to take his own advice.

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When Sen. Bernie Sanders (I–Vt.) teased his new AI bill in The New York Times, he undersold the socialist vision he had for the tech industry. Now that the bill text has been released, we know just how much government ownership of AI he wants.

On Thursday, Sanders unveiled the American A.I. Sovereign Wealth Fund Act, which would impose a 50 percent tax, paid through stock, on any AI company with annual “gross receipts” of at least $200 million. Taxing gross receipts rather than revenue is a savvy move by Sanders, since most businesses traditionally considered AI companies aren’t yet profitable, and gross receipts allow him to include total money earned from all sources, widening the pool of companies subject to the tax.

Under the bill, the Treasury Department would also get a 50 percent stake in all applicable AI companies through newly issued shares, and the federal government would be allowed to tax any shares issued after the initial seizure, so the government’s half stays at half over time.

Each fiscal year, every “man, woman and child” in the U.S. will receive direct payments from the fund, paid for by a 5 percent draw of the average value of the total stock held by the government. According to Sanders, that could mean as much as “$1,000 to everyone in America.” 

Sanders claims that the fund could raise $7 trillion based on “current valuations” of the companies he hopes to tax. But a company’s gross receipts are tied to its economic worth, which this bill would likely depress.

While the bill’s name might make one think that companies like Anthropic and OpenAI would be subject to the tax, Sanders doesn’t spare any sector of the tech industry. Instead, his bill would apply to any “corporation or partnership” engaged in a “trade or business” tangentially related to data centers, computing infrastructure, AI services, or the research, production, or manufacturing of advanced robotics. Companies like Tesla, Waymo, Nvidia, and Dell would all be subject to the 50 percent tax, even though their business models predate those of companies like OpenAI and Anthropic, the types of AI companies Sanders has railed against.

Adam Thierer, resident senior fellow of technology and innovation at R Street Institute, says Sanders’ bill is “the most hideous form of crony capitalism.” He tells Reason the bill contains a “lot of counterintuitive reasoning.” 

Indeed, the bill makes no distinction between private and public ownership and overrides any corporate charter limits, forcing companies to create and surrender stock to meet the 50 percent mark, regardless of their shareholders’ wishes. 

It also requires AI companies to spin off their AI businesses as stand-alone entities. It bars them from conducting non-AI business, entering into joint ventures with non-AI companies, or sharing personnel or financing with non-AI companies.

As if seizing property weren’t enough, the bill also creates an entirely new regulatory regime for the AI industry and the tech sector in general. It establishes an Independent Commission for Democratic AI within the Treasury, consisting of seven presidentially appointed commissioners nominated by congressional leadership for a term of five years. Five of the commissioners must have specific expertise, including an expert in “labor interests,” the AI industry, national security, privacy, and management of a comparable fund. 

No more than four commissioners can be from the same political party, and they can “exercise all voting and governance rights” inherent in the government’s ownership stake through appointed representatives on each company’s board of directors. The number of representatives must be commensurate with the government’s stake in the company, and representatives may cast their votes only in ways that advance the interests of “worker welfare, public safety, fair competition among applicable AI companies, environmental sustainability, and financial solvency.” 

In a warped recasting of fiduciary duty, the bill requires commissioners and their representatives to vote for these interests even when doing so “conflicts with the financial interests of the company or its other equity holders.” Here, Sanders contradicts the very purpose of his bill. A business acting against its financial interests can hardly expect to remain profitable, which would ensure that its wealth fund would fail. 

Sanders isn’t the only one pushing the idea of a sovereign wealth fund. The leaders of OpenAI, Anthropic, and xAI, as well as President Donald Trump, have all naively called for a system of formalized direct payments funded by the AI industry. 

The president has also made a habit of taking “golden shares” in companies he deems vital to the country’s economic or security interests. Now, Sanders has taken the next logical step in the socialist ladder, from voluntary disbursement to outright seizure of property.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: Lawyers and bond hearings in the wrong order, plus, in #12Months12Circuits, we hit the Sixth.

1. Puerto Rico went through a special sort of bankruptcy to sort out its debt problems via a court-approved restructuring plan. Now, it asserts that claims against individual police officers for violations of constitutional rights are barred by the plan because the gov’t has to defend those suits and can choose to indemnify the officers. First Circuit: The plan does not purport to extinguish these civil-rights claims, and it’s dubious it could discharge them even if it tried.
2. Buffalo: We had to demolish this building on an emergency basis because it was an abandoned drug den on the verge of collapse. Property owner: Was not. Second Circuit: And this, children, is what we call a fact dispute. To the jury it goes!
3. Second Circuit: FTX CEO SBF SOL.
4. The Secretary of Interior orders the removal of certain exhibits from the President’s House in Independence National Historical Park that are inconsistent with the administration’s “focus on the greatness of the achievements and progress of the American people.” (They were about slavery.) Philadelphia sues. Third Circuit: But the APA bars the city’s claims.
5. The Castro-led gov’t stole the trademark for Havana Club rum from its rightful owner, first registering it with the U.S. in 1976. It dutifully renewed the trademark every ten years, as required, until the Dept. of Treasury refused to issue a license for the 2006 renewal (which the D.C. Circuit upheld as constitutional in 2011). Treasury takes an about face in 2016 and retroactively authorizes the decade-old renewal. Bacardi (which bought the rightful owner’s interest in the trademark): Wait just a minute, that registration lapsed, there’s no time travel! Fourth Circuit: Ah, but there is.
6. Fairmount Heights, Md. officer arrests teen, impounds her car, coerces her into having sex at police facility where he’s not supposed to take arrestees, gives car back. He’s convicted in state court (of having sex with a person in custody) and sentenced to time served. He’s also convicted in federal court (of filing a false report) and sentenced to three years of probation. Fourth Circuit (unpublished): And by god, he’s going to serve that probation.
7. Would-be short-term rental owners: Our properties are near high-traffic, commercial areas in a vacation town that has hundreds of other short-term rentals. We wouldn’t be a nuisance, and indeed the city itself found we wouldn’t harm the public. We should be allowed to operate. Fifth Circuit: Ah, but the record shows some neighbors didn’t want that. [IJ filed an amicus brief urging a different course.]
8. Sixth Circuit: If there is one consistent American truth, it is that we are as a people deeply skeptical of unaccountable bureaucrats wielding unchecked power against helpless citizens. That is what happened to this scrappy entrepreneurial plaintiff, who nonetheless totally loses.
9. While serving 35-year sentence, Kalamazoo, Mich. drug dealer develops meningitis that leaves him partially blind and paralyzed from the waist down. Compassionate release? District court: Nope, might not be safe for the public to let him out. Sixth Circuit: Yeah, you gotta be nicer to prison nurses. Affirmed.
10. For decades, elected Illinois county coroner keeps several skulls as trophies, including from a murdered high-school student. Student’s family sues the county, alleging that violated the Constitution. Seventh Circuit: What the coroner did was so wrong it also violated state law—and that means you can’t sue the county because it couldn’t have been the county’s policy to violate state law. Dissent: That is crazy. He was the elected official with ultimate authority over handling bodies; his actions were the county’s policies. [For the story of Justice Frankfurter’s color-of-law shenanigans being smuggled into municipal liability, we heartily recommend this episode and this episode of this podcast we made.]
11. Though they are not in its path, Jacksonville, Ark. officers shoot, kill would-be thief driving truck away from them at low speed. Eighth Circuit: No QI. Nothing in the video blatantly contradicts the district court’s finding that there are factual disputes that can only be resolved by a jury.
12. The thing to know about water law in the western half of this country is that most of the rights were doled out ages ago. So it goes with the Klamath River basin, some 12,000 square miles of interconnected waters and wilderness areas in California and Oregon. The feds blessed an initiative in 1905 to appropriate the water for irrigation purposes, subject to several tribes that held senior rights to certain waters. The feds’ efforts, which have recently devastated endangered fish the tribes rely on, must comply with the Endangered Species Act, says the Ninth Circuit (over a dissent). And also this isn’t a judicial taking because the court isn’t actually adjudicating any water rights (that happened long ago).
13. Georgia law lets certain incumbent elected officials run “leadership committees” that are exempt from campaign finance limits. Sounds fishy. But is the appropriate remedy to enjoin the leadership committees? Eleventh Circuit: It is. Dissent: Plaintiff should sue the state to prevent it applying limits to him, not try to impose limits on campaigns.
14. “Keying” is a “long-standing practice” in the football program at Piedmont High in Alabama. Players “key” “younger male players by forcing a car or truck key into a player’s anus and twisting it.” Eleventh Circuit (over a partial dissent): Case undismissed!
15. Two brothers leave gym dressed in gym clothes around 3 a.m. and walk through empty parking lot to their cars in the next lot. They are not inclined to stop and explain themselves to a Miami-Dade, Fla. officer, leading to body slams and tasings. Eleventh Circuit (2024, unpublished): Some claims proceed. Eleventh Circuit (2026, unpublished): We’re not going to recant what we said earlier.
16. And in en banc news, the Ninth Circuit will reconsider its decision that it likely violates the First Amendment for Washington state to (arguably) prohibit a Christian ministry from exclusively hiring coreligionists who share its beliefs about marriage and sexuality for non-ministerial roles.

And in white whale news, we are pleased to announce that Hawai’i has repealed its requirement that natural hair braiders obtain a full-blown cosmetology license just to braid hair. Way back in 1991, IJ’s first ever lawsuit was a challenge to the very same requirement in the District of Columbia. Indeed, back then all 50 states (plus D.C.) required something along the lines of 1,500 hours of cosmetology training, almost none of it even tangentially relevant to braiding. Today, 14 lawsuits—and a whole lot of grassroots activism—later, no jurisdiction requires a full-service license. Hawai’i was the last. Maika’i loa!

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For many years, Ruth Bader Ginsburg was a professor and an advocate. She had written and litigated extensively on many constitutional law issues, including sex discrimination and abortion. When Ginsburg became a circuit court judge, and then a Supreme Court justice, no one would have expected her to abandon all of her views on constitutional law. Of course she insisted during her confirmation hearing that she would approach issues with an open mind. But to no one’s surprise, Ginsburg’s constitutional jurisprudence largely reflected her scholarly agenda. I think much the same can be said of Professors Scalia, Breyer, Kagan, and other academics who became Justices. Indeed, these professors were nominated based in part on their scholarly writing.

Yet, I cannot recall any Justice so clearly stating that her judicial opinion was equivalent with her scholarly opinion–that was until I read Justice Barrett’s concurrence in Hunter v. United States.

Barrett cites two of her own law review articles as support for her judicial opinion:

Like JUSTICE THOMAS, I am skeptical that the SupremeCourt possesses an inherent, supervisory authority over inferior federal courts. See A. Barrett, The SupervisoryPower of the Supreme Court, 106 Colum. L. Rev. 324 (2006). At the same time, I have distinguished exercises of such authority from the development of procedural common law. See A. Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 883–884 (2008). The former concerns narrow, discretionary rules; the latter involves doctrines, like preclusion and abstention, which are “settled by tradition or emergent consensus.” Id., at 884.

The use of the word “I” here is fascinating. Justice Barrett is “skeptical” of the supervisory power, citing Professor Barrett. Justice Barrett has drawn a distinction, citing Professor Barrett. This is a weird syncretism between Amy Coney Barrett’s scholarship and her jurisprudence. Is there any daylight between what Professor Barrett wrote about two decades ago and what Justice Barrett thinks now? I doubt it.

Supreme Court nominees are often asked about their past writings. The stock answer is that those writings represented their role as an advocate or professor, but they will approach each case with a fresh perspective. Of course this response is not accurate, as Justices do not forget everything they once knew. And Justice Barrett’s self-citation proves the point.

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When people plead guilty to crimes, they typically give up the right to appeal any aspect of the outcome, including the sentence they ultimately receive. On Thursday in Hunter v. United States, the Supreme Court imposed limits on such appeal waivers, which are improbably described as “knowing and voluntary” even when the defendant is acting under intense pressure and does not yet know what penalties and release conditions he will face.

“An agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice,” Justice Elena Kagan writes in the majority opinion, which was joined by seven of her colleagues. The decision defines “miscarriage of justice” as “the kind of egregious error that would bring the judicial system into disrepute.” It offers some examples, including a sentence that exceeds the statutory maximum, a sentence “infected with a blatant constitutional error” such as racial bias, release conditions that violate basic rights, and a prison term imposed by a judge who “let an orangutan pick a sentence out of a hat.”

As Justice Neil Gorsuch explains in a concurring opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, the need for such intervention stems from a criminal justice system that resolves nearly all cases through plea deals. “In our times, the jury trial has given way to a conveyor belt of plea bargains,” Gorsuch writes. “At least some responsibility for that development lies with this Court. When confronted with coercive prosecutorial tactics designed to induce defendants to take plea deals, the Court has often condoned those practices or let them pass in silence.”

The case involves Munson P. Hunter III, who was charged with participating in “a years-long scheme costing various financial institutions about half a million dollars” in unauthorized wire transfers. In February 2024, Hunter pleaded guilty to one count of aiding and abetting wire fraud. It is not hard to see why: He was also facing nine other felony charges, which federal prosecutors dropped in exchange for his guilty plea. Had he been convicted of all 10 charges, Gorsuch notes, Hunter would have faced “up to 300 years in prison and a $10 million fine.”

As part of the plea agreement, Hunter gave up the right to appeal his sentence. He later had cause to regret that decision.

The crime that Hunter admitted involved the theft of $38,649 in a single transaction. But at sentencing in the Southern District of Texas three months later, Judge Sim Lake took into account the dropped charges—a variation on a disturbing practice that imposes punishment for conduct that was never admitted by the defendant or proven beyond a reasonable doubt. For purposes of sentencing, Lake assumed that Hunter had helped steal $488,352 in 26 transactions.

“This made a significant difference for Mr. Hunter,” Gorsuch notes. “Had the district court sentenced him based on the amount he had pleaded guilty to stealing, he would have faced an advisory sentencing guidelines range of 15 to 21 months in prison. Now, though, he faced a recommended prison term of 41 to 51 months. And based on that calculation, the district court chose a prison sentence of 51 months.” In other words, “a guilty plea to a single charge enabled prosecutors to secure a punishment based on other charges they had agreed to drop or had not even brought.”

That was not Hunter’s only unpleasant surprise. As a condition of his supervised release after his prison term, Lake ordered him to “participate in a mental-health treatment program” and “take all mental health medications that are prescribed by [his] treating physician.” Hunter objected to the latter condition, which he argued violated his “constitutionally protected liberty interest in avoiding the unwanted administration of antipsychotic drugs.”

Confronted by that claim, the U.S. Court of Appeals for the 5th Circuit said Hunter could not raise it because he had waived his right to appeal his sentence. The Supreme Court disagreed, saying Hunter should have an opportunity to argue that his forced medication qualified as a “miscarriage of justice” because it was unconstitutional.

Gorsuch agreed with that result, as did all of the justices except for Clarence Thomas. Under Hunter, Gorsuch notes, “prosecutors may not always leverage their plea-bargaining power to induce a defendant to forego the right to contest his sentence on appeal.” But that issue, he emphasizes, is just one facet of the problems stemming from coercive plea deals.

“The most remarkable thing about Mr. Hunter’s plea-bargaining journey may be how unremarkable it is,” Gorsuch writes. “Our criminal justice system is no longer dominated by trials and sentences based on them, but plea bargains that work out in ways not unlike his own.”

At the Founding, “the right to trial by jury was considered part of every American’s ‘birth-right and inheritance,'” Gorsuch notes. “Outraged by British efforts to deny that right in the colonies, those who fought the Revolution cited its suppression as one of their reasons for declaring independence. After the Revolution, too, the founding generation took care to secure the right to trial by jury in criminal cases not just once, but twice, in the Constitution and Bill of Rights they adopted.”

Plea bargains “didn’t begin to emerge as an alternative to trial in serious criminal cases until the mid-nineteenth century,” Gorsuch writes. But today, around 95 percent of convictions are based on guilty pleas, making the right to trial more imaginary than real.

The Supreme Court was initially skeptical of that development, expressing concern about the power of prosecutors to coerce guilty pleas by threatening defendants with additional charges and penalties if they insisted on making the government prove its case. But by 1971, the Court was describing plea bargaining as “highly desirable,” something “to be encouraged,” and “an essential component of the administration of justice.”

Why was it essential? “If every criminal charge were subjected to a full-scale trial,” the Court worried in Santobello v. New York, “the States and the Federal Government would need to multiply by many times the number of judges and court facilities.”

The Court reiterated that view six years later in Blackledge v. Allison. “Whatever might be the situation in an ideal world,” it said, “the fact is that the guilty plea and the often concomitant plea bargain are important components of this country’s criminal justice system. Properly administered, they can benefit all concerned.”

What does a “properly administered” plea bargaining system look like? The Court provided a clue in the 1978 case Bordenkircher v. Hayes, which considered what happened after a Kentucky man was charged with forging a check for $88.30.

Based on that charge, Paul Hayes faced a sentence of two to 10 years in prison. If Hayes pleaded guilty, the prosecutor said, he would recommend a five-year sentence. But if Hayes insisted on going to trial, the prosecutor warned, he would be charged under Kentucky’s “three strikes” law, which authorized a life sentence. Uncowed, Hayes said he wanted a trial. The prosecutor delivered on his threat, and Hayes was sentenced to life in prison. The Supreme Court saw no problem with the prosecutor’s tactics.

Appeal waivers add another dimension to this situation, and now the Court has recognized that justice may require overriding them. In addition to the examples offered in the majority opinion, Gorsuch says the “miscarriage of justice” rule should also apply to “sentences imposing penalties the law reserves for offenses different [from] those of which the defendant stands convicted.” Hunter’s 51-month sentence fits that description, and there are many other examples.

Under the Court’s decision in Hunter, “a defendant may be able to appeal a sentence imposing a condition of release that violates his right to be free from forced medication, or a condition that violates his right to speak or worship freely, or any other condition that violates one of his recognized constitutional rights,” Gorsuch says. “I would think
a miscarriage of justice all but certain to arise whenever a sentence infringes a constitutional right that was ‘firmly established at the time of sentencing.'”

The majority also said sentences “marred by serious procedural errors” should be appealable notwithstanding waivers, Gorsuch notes. In his view, that would include “not only a sentence chosen by an orangutan” but also penalties “reflecting a marked departure from mandatory sentencing procedures.”

Even “aspects of sentencing that can require a degree of judicial discretion,” such as “the application of the advisory sentencing guidelines,” “the imposition of supervised release conditions within statutory and constitutional bounds,” and the weighing of sentencing factors, could trigger the exception recognized by the Court, Gorsuch says. “A miscarriage of justice would seem to arise, as well, when a district court metes out punishment that is so substantively unreasonable that it would fail under the ‘deferential abuse-of-discretion standard’ that appellate courts already apply in sentencing challenges.”

Gorsuch sees “deeper problems” with appeal waivers. “The Due Process Clause of the Fifth Amendment, this Court has held, tolerates only ‘voluntary and knowing’ guilty pleas,” he notes. A guilty plea “must be made both ‘voluntarily’ and ‘with full understanding of the consequences.'” But “how can a defendant ‘know’ and ‘fully understand’ at the time he signs a plea agreement that a court might later order punishment that defies the Constitution, a federal statute, or this Court’s precedents?”

Gorsuch also notes that the Supreme Court “has found prospective waivers of
many other statutory rights invalid and unenforceable.” He says the Trump administration, which urged the justices to uphold the 5th Circuit’s decision in Hunter’s case, “has offered no colorable explanation why a defendant’s prospective waiver of his statutory right to appeal his sentence should be treated differently.”

If a defendant “may prospectively waive the right to appeal his sentence,” Gorsuch writes, “one might wonder what’s to stop prosecutors from pushing their luck further yet. Might we eventually face plea agreements that include prospective waivers of the defendant’s right to complain about future unreasonable searches and seizures of his home? Or prospective waivers of a defendant’s right to seek a jury (rather than bench) trial in future proceedings if he ever is charged with another crime?”

Two centuries ago, “it was likely unimaginable that almost every federal criminal case would be resolved by plea bargain,” Gorsuch says. “Forty years ago, it may have been no easier to foresee that plea bargaining defendants would be pressed to waive their statutory right to appeal sentences yet to be imposed. Let alone that the federal government would argue these waivers prevent defendants from appealing even
blatantly unlawful or unconstitutional sentences chosen by an orangutan.”

Although the Supreme Court “is not responsible for all these developments,” Gorsuch writes, “it has encouraged some of them and stood silent while others took hold. Today, the Court finally begins to correct course, taking an important step toward reining in appeal waivers. It is not a solution to all of plea bargaining’s excesses, and perhaps not even those associated with appeal waivers. But it is a start.”

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From Patrick v. Pasco County Fla. Tax Collector, decided Tuesday by Judges Kevin Newsom, Andrew Brasher, and Frank Hull:

Plaintiff Lana Patrick is a self-described “Journalist/Activist.” This case arises from Patrick’s attempt to record a video inside the Pasco County Tax Collector’s (“Tax Collector”) office near Dade City, Florida….

“The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” Smith v. City of Cumming (11th Cir. 2000). But the right to record is not absolute, because “the Constitution does not require the government to ‘grant access to all who wish to exercise their right to free speech,’ no matter the setting, ‘without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.'”

Instead, the validity of a regulation depends on the forum in which it applies: a traditional public forum, a designated public forum, a limited public forum, or a nonpublic forum. {Although the public may have an interest in the proper functioning of a county tax office, the First Amendment “does not guarantee access to property simply because it is owned or controlled by the government.”} Patrick does not challenge the district court’s characterization of the Tax Collector office’s lobby as either a limited public forum or a nonpublic forum.

In either forum, the recording policy is constitutional if it is reasonable in light of the purposes of the forum and viewpoint neutral…. The recording policy here reasonably served to (1) protect sensitive documents or conversations from disclosure; (2) prevent distractions; and (3) allow county employees to service a high volume of customers free from more burdensome confidentiality measures.

The recording policy is also viewpoint neutral. The recording policy prevents all video recording within the interior of a Tax Collector facility without the Tax Collector’s prior approval, regardless of the speaker or videographer’s purpose, goal, or viewpoint…. Even if that restriction is a content-based restriction, content-based restrictions are constitutionally permissible in limited public forums or nonpublic forums so long as they are reasonable and viewpoint neutral.

{The district court also dismissed Patrick’s prior restraint claim, reasoning that the recording policy did not function as a prior restraint. In her opening brief, Patrick never uses the term “prior restraint” and never explains the basis for any prior restraint claim. In her reply brief, Patrick does discuss her prior restraint claim, but her failure to address the district court’s dismissal of that claim in her initial brief means she forfeited those arguments.}

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In United States v. Hemani, the U.S. Supreme Court yesterday held that the federal government could not prosecute Ali Hemani under 18 U.S.C. § 922(g)(3)‘s “unlawful user” provision solely because he used marijuana a few times a week while owning a firearm at home. Ilya Somin and Stephen Halbrook wrote about the decision yesterday. In this post, coauthored with Wyoming law professor George Mocsary, I’d like to provide some additional perspective.

The Hemani decision is personally important to the many millions of Americans who use marijuana and who also possess firearms, while being careful never to mix the two. The Court has removed from these peaceable and responsible citizens the threat of a 15-year sentence in federal prison.

The decision is also important to the growing jurisprudential doctrine of the Second Amendment. Under the Court’s precedents in Bruen and Rahimi, new types of gun control laws can be justified by analogy to older, historic laws. Hemani  teaches that courts should be rigorous when the government attempts to make far-fetched analogies to disarm huge categories of Americans who are not dangerous. We argued in an amicus brief in the case, along with NRA’s Joe Greenlee (the brief’s lead author) and Professor F. Lee Francis of Widener Law School, that someone who uses marijuana is not comparable to a nineteenth century “vagrant” who might be sent to a workhouse, nor to a “habitual drunkard” who had to be institutionalized after losing his mental capacity. The Court agreed.

The Issue

Section 922(g)(3) of the federal Gun Control Act makes it unlawful for anyone who is an “unlawful user of” or “addicted to” a controlled substance to possess a firearm. Because the Section incorporates the Controlled Substances Act (CSA) by reference, § 922(g)(3) reaches unlawful users of any drug on any federal schedule. This includes everything from heroin, on Schedule I, down to Robitussin AC, on Schedule V.

As the Court pointed out, any illegal use triggers the 15-year federal felony, plus a lifetime ban on firearms possession. The use can be as minor as taking one of your wife’s prescription Ambien pills when you have a headache, or using a friend’s Adderall when cramming for an exam.

Hemani was prosecuted after a search of his family home for suspected terrorism-related activity. The search did not find evidence to charge him with terrorism, drug possession, or violent conduct. Rather, Hemani’s indictment was based on his admission that he used marijuana about every other day. He was charged with possessing a firearm while being an unlawful user of a controlled substance. The government did not assert that Hemani was addicted, that he handled the gun while intoxicated, that he had misused a firearm, or that his marijuana use made him dangerous. Hemani challenged his prosecution on the ground that it was not consistent with the Second Amendment. The district court granted his motion to dismiss; the Fifth Circuit upheld the dismissal; the Court upheld the Fifth Circuit.

The Majority

The result was unanimous. Justice Gorsuch’s opinion for the Court had seven votes, while Justices Alito and Kagan joined in a separate concurrence. The majority applied the familiar Bruen framework.

The government conceded that § 922(g)(3), as applied to Hemani, burdened conduct presumptively protected by the Second Amendment because it barred him from possessing any firearm for any purpose. Pursuant to Bruen, the government therefore carried the burden to show that its prosecution was consistent with our nation’s historical tradition of firearm regulation.

The government’s principal historical analogues were laws concerning “habitual drunkards.” No Justice agreed with the government’s analogy. The Court grouped habitual drunkard laws into three categories: vagrancy laws, civil-commitment laws, and surety laws. According to Bruen, a court should look at the “why” and “how” of a proposed analogy. The habitual drunkard laws failed both tests, the Court said.

The current federal statute, 18 U.S.C. § 922(g)(3), targets every “user,” no matter how innocuous and peaceable. In contrast, the “habitual drunkard” laws were only for people whose drinking rendered them unable to manage their affairs or unable to exercise self-control.

The Court also held that there was a purpose mismatch. Gun control laws are usually aimed at reducing gun misuse, such as in violent crime. The government’s proffered historic laws about drunkards or vagrants were aimed at different problems, such as idleness or dependency. Protecting social order, the historic laws also tried to protect the drinker and his family from incapacity and financial ruin.

The manifest social ills of intoxicant abuse were well-known, and the government was actively responding. But the “how” was different. Although some people drank too much, the government did not disarm every intoxicant “user.”

In analogies about the “how” of traditional laws, due process is central. The historical laws cited by the government typically required some due process—a conviction, judicial proceeding, guardianship adjudication, or surety hearing—before a defendant’s liberty was restricted. By contrast, as the Court wrote “the statute automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user and until he ends his drug use—all without any pre-deprivation process.”

The American tradition of arms regulation allows for truly dangerous persons to be disarmed. The federal Gun Control Act forbids nine categories of persons from possessing firearms or ammunition. Most of these categories, such as being a convicted felon, involve at least a plausibly elevated risk of danger.

In contrast, § 922(g)(3) is the unusual gun prohibitor that outsources its rationale. Subsection (3) includes anything listed in a separate law, the CSA. That law declares itself to be about all sorts of issues that have nothing to do with gun misuse or violence. The CSA’s purposes include prevention of substance abuse, even when nonviolent.

Arguing to uphold the ban, the government had to argue that marijuana users were more dangerous than the general population. Yet as the Court pointed out, marijuana is legal in most States. And Congress has constricted Department of Justice funding for enforcement of federal marijuana laws. Moreover, the Executive branch has moved some marijuana from Schedule I (outlawed) to Schedule III (regulated).

In short, Hemani rests on foundations that both originalists and a non-originalists can find compelling. For the originalist, it is disarming the dangerous and respecting the rights of others. For the modernist, it is respecting the messages recently sent by the States, Congress, and the Executive. Marijuana is legal at least sometimes in most States; Congress has constricted funding for marijuana enforcement; and the President has moved marijuana into the lawful, regulated category of controlled substances.

In practical application, Hemani is broad. How many Americans use guns and marijuana, but never together? At least millions and probably tens of millions. Hemani liberates the millions from the threat of 15 years in federal prison.

Although the Court decided a marijuana case presenting no evidence of the user’s dangerousness, the Court expressly did not decide for against future cases that might involve:

• addicts,
• persons intoxicated while using guns,
• whether the government could prove that use of a given drug always renders its users dangerous, or
• individualized determinations that a specific defendant’s drug use made him dangerous.

The opinion expressly did not disturb § 922(g)(1)’s felon prohibition or § 922(g)(4)’s mental-health-based prohibition.

The Concurrences

Justice Thomas joined the majority, but he wrote separately to question whether § 922(g) exceeds Congress’s Commerce Clause power when applied to purely intrastate firearm possession based only on the fact that the firearm previously traveled in interstate commerce. That issue was not presented, but Justice Thomas urged courts to revisit it in an appropriate case. (A similar argument about section 922(g) was made in David Kopel & Glenn Reynolds, Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban, 30 Connecticut Law Review 59 (1997).)

Justice Jackson, joined by Justice Sotomayor, also joined the majority in full but used the case to renew her Bruen protest. In her view, the case illustrated how much of the analysis resembles means-end scrutiny: the Court and the government were both asking, in different language, whether the law’s means fit its asserted public-safety end. She urged reconsideration of Bruen in a future case. We question the assertion that Bruen is unworkable.

Justice Alito, joined by Justice Kagan, concurred in the judgment. Their opinion would have resolved the case with simpler historical focus: habitual-drunkard laws concerned persons incapacitated in a persistent and pervasive way, whereas the government knew only that Hemani used marijuana about every other day. The concurrence emphasized that the decision should not cast doubt on other § 922(g) provisions, especially the felon and mental-illness prohibitions.

Takeaways

First, Hemani is an as-applied decision about the unlawful-user theory the government chose to defend. It is not a facial invalidation of every possible application of § 922(g)(3), and it does not protect firearm possession while intoxicated. Some lower-court opinions have argued that as-applied challenges should not be allowed in Second Amendment cases. Hemani makes clear that they are perfectly legitimate.

Second, Hemani gives teeth to Bruen and Rahimi‘s admonition that courts should reason by analogy without demanding a historical twin. The government does not need an identical Founding-era statute, but it does need a historically-grounded regulatory principle that is comparable in whom it burdens, why it burdens them, and how it does so.

Third, the Court treats dangerousness as a claim that must be historically and analytically grounded. The government cannot simply invoke public safety at a high level and then disarm a broad class whose defining trait does not reliably map onto the asserted danger.

Fourth, the “how” inquiry includes a due process component. Justice Thomas had first expressed the point in his Rahimi dissent and here the Court agreed.

Our Brief and Hemani‘s Historical Analysis

At the oral argument last March, the Solicitor General for the U.S. government argued that historic laws against habitual drunkards justified the current law against marijuana users. As the senior Justice, Justice Thomas asked the first question:

Ms. Harris, the drunkards weren’t the only one included in these sorts of statutes. What was the public safety concern about those who—using subtle crafts, juggling, unlawful games or plays, feigning themselves to have knowledge of physiognomy, palmistry, or pretending that they could tell fortunes?

Our brief raised the same point.

The government argued that laws against “vagrants” justified gun bans for drug users. Our brief argued the opposite, and the Court agreed:

Vagrancy laws usually targeted those who ‘did not meet the societal expectation of work,’ W. Quigley, Reluctant Charity: Poor Laws in the Original Thirteen States, 31 U. Rich. L. Rev. 111, 169 (1997), and sought to promote productivity and suppress various vices, not to protect the public from a category of unusually dangerous persons.

Our brief was the only one that cited Quigley. Additionally, Hemani‘s summary of historic laws agrees with ours:

Around the time of the founding and for decades following it, a habitual drunkard was generally someone who ‘for any considerable part of his time [was] intoxicated to such a degree as to deprive him of his ordinary reasoning faculties,’ In re Tracy, 1 Paige Ch. 580, 582–583 (N.Y. Ch. 1829); a regular or even frequent drinker did not usually fit the bill. Many statutes defined the term to require that someone drink to such excess that he was ‘incapable of conducting [his] own affairs,’ Ark. Rev. Stat., ch. 78, §1 (1838) (W. Ball & S. Roane eds.); ‘mentally incompetent,’ Minn. Terr. Rev. Stat., ch. 67, §12 (1851); or had ‘lost the power of self-control,’ Act of July 25, 1874, §1, in 1874 Conn. Pub. Acts 256.

We had not expected to write a brief discussing jugglers, fiddlers, bagpipers, palm readers, people who neglected their callings, loafers, and others treated as idle or disorderly. But that’s what the laws were about.

The Court emphasized that vagrancy laws covered not just habitual drunkards, but also “‘Vagabonds, Common Beggars,’ ‘pipers, fidlers . . . stubborn servants or children, [and] ‘common nightwalkers.'” (citing some of our sources). The government’s analogy, in other words, proved too much. If vagrancy laws justified disarmament of habitual drunkards, they might also justify disarmament of fiddlers, stubborn servants, or persons who have not yet settled on a career. The Court rightly resisted an analogy with such implausible implications.

Our brief also argued that historical firearms-and-intoxicants laws were conduct-based and situational. They regulated shooting, carrying, purchasing, or militia activity while intoxicated. They did not disarm sober persons who sometimes used intoxicants. Disarmament should be based on loss of self-control, dangerousness, or misuse.

Looking ahead

Hemani leaves substantial room for narrower laws and prosecutions. The government can defend applications involving addiction, present intoxication, individualized dangerousness, or drugs proven to carry distinctive risks of violence or impaired judgment. Legislatures and regulators may draft targeted rules focused on intoxicated possession, impaired firearm use, or carefully supported drug-specific risks.

More broadly, Hemani underscores the importance of historical precision in Second Amendment cases. As the first unanimous Supreme Court decision in a Second Amendment case since 2016 (Caetano v. Massachusetts, remanding the Massachusetts Supreme Judicial Court’s upholding a conviction for stun gun possession), Hemani affirms Bruen: “analogical reasoning under the Second Amendment is neither a regulatory straitjacket nor a regulatory blank check.”

[This post also appears on the University of Wyoming Firearm Research Center’s Forum, where I am a Senior Fellow.]

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As part of President Donald Trump’s plan to deport every single undocumented immigrant—and perhaps tens of millions of citizens and legal residents—the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) planned to spend billions of dollars buying up industrial warehouses across the country.

The stated purpose was to convert them into detention centers to house migrants targeted for deportation, with the ultimate goal of expanding total detention capacity to 100,000.

Reportedly, and in a welcome development, the DHS is largely scrapping the plan, and most of the warehouses it has already purchased will be sold or used for another purpose.

“In a major turnabout, [ICE] is planning to offload seven warehouses purchased for more than $700 million by either giving them to other federal agencies or selling them outright,” Hamed Aleaziz reported this week at The New York Times. In particular, that includes two in Georgia, two in Pennsylvania, and one each in Michigan, New Jersey, and Utah.

The shift seems to have been in the works for a while. “DHS and ICE officials have identified several of the eleven previously purchased warehouses, some of which were expected to be repurposed to hold as many as 8,000 immigrants, for potential sale,” Julia Ainsley and Laura Strickler reported last month for NBC News.

The warehouse plan seems to have been a vestige of former DHS Secretary Kristi Noem’s tenure: Aleaziz called it a “signature initiative” of Noem’s, while her successor, Markwayne Mullin, “privately expressed skepticism about the plan [and] has said publicly that he wants the agency to be quieter about how it carries out immigration enforcement.”

“These heinous criminals, once arrested, should be removed at lightning speed, not housed on American soil at the taxpayer’s expense,” Mullin told the Times in a statement. “D.H.S. is moving swiftly to utilize EXISTING detention space with our state and county partners.”

The plan is apparently not completely dead: Aleaziz notes that ICE “appears to still be moving forward with four of the warehouses purchased for detention purposes”—two in Texas, and one each in Arizona and Maryland—and “also plans to buy immigrant detention facilities from private prison companies that it already contracts with.”

That’s too bad. The warehouse gambit was wasteful, inhumane, and short-sighted, and ending it would be a net positive.

When Trump fired Noem in March, her profligate spending was reportedly a factor, and the warehouses were part of it. As NBC News noted last month, “The DHS inspector general is examining ICE’s purchases of warehouses around the country as part of an audit examining whether DHS met the need for new detention space in a ‘cost-effective manner.'”

The warehouses were a boondoggle from the start. Each was expected to cost hundreds of millions of dollars to purchase and retrofit, not to mention operation costs.

The government also significantly overpaid: According to Project Salt Box, a Substack that tracks government procurement and infrastructure spending, ICE has so far spent $1.07 billion for the 11 facilities—134 percent above their total estimated market value.

That will now affect how much money can be recouped. “The markups that the government paid in rushing to buy the warehouses set the floor for any loss, and a private buyer has little reason to pay what the government did for warehouses that had sat empty for years before ICE acquired them,” wrote Michael Wriston of Project Salt Box.

That rush was also apparent when the government was called to explain how massive detention facilities—that in some cases would hold 8,500 people or more, plus an entire staff—could be built in rural or suburban areas without straining local resources.

As Reason reported earlier this year, many in targeted areas—even Trump-friendly towns and states—opposed the plan. Officials in small towns warned that their infrastructure was already at or near capacity and could not support such a sudden, large increase in the local population.

The government’s explanations were often unsatisfying, and in many cases, officials simply abandoned plans in the face of opposition from both citizens and elected officials. (Project Salt Box notes that in addition to the 11 facilities purchased, the government also canceled sales of 13 sites.)

Social Circle, Georgia, is one of the towns where the government bought a warehouse that it now plans to offload.

“I’m glad that DHS has concluded that Social Circle is not the right place for this type of facility,” city manager Eric Taylor tells Reason. “That is what we have been trying to say from the beginning. If they had bothered to speak to us before purchasing the building, maybe they would have realized that the $129 million they spent could have been put to better use elsewhere. We look forward to seeing what the ultimate fate of the property is. If it is retained for government use, hopefully they reach out to us to discuss plans from the very beginning.”

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