Tag: in-the-news

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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.

 

The post What Does AI Think Will Happen In The Birthright Citizenship Cases? appeared first on Reason.com.

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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.}

The post Supreme Court Stays Reinstatement of Fired NLRB and MSPB Members appeared first on Reason.com.

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The briefing in Trump v. Wilcox concluded on April 16. The case has been pending for nearly a month. Who knows what sorts of negotiations took place to get to this faux-Solomonic ruling. Justice Kagan’s eight-page dissent, however, did not take a month to write. She could have probably cranked this out in an afternoon.

In this dissent, Kagan tell us what she really thinks about President Trump. A few excerpts stand out.

First, she issues a not-so-subtle rebuke that Trump must “follow existing precedent.”

It should go without saying that the President must likewise follow existing precedent, however strong he thinks the arguments against it—unless and until he convinces us to reject what we previously held. Yet here the President fired the NLRB and MSPB Commissioners in the teeth of Humphrey’s, betting that this Court would acquiesce. And the majority today obliges—without so much as mentioning Humphrey’s.

So much for departmentalism. Indeed, Trump’s own Solicitor General acceded to the myth of judicial supremacy. Then again, Humphrey’s Executor concerned the FTC. As far as I can recall, there is no Supreme Court precedent on point concerning the NLRB and MSPB. Indeed, there is an argument that the FTC as it existed in the 1930s is quite different than the FTC of today. So Trump didn’t violate any existing Supreme Court precedent. And really, the only way for the President to challenge a precedent is to take some action inconsistent with the precedent.

Second, Kagan asks “Why is this President different from all other Presidents?”

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.

Kagan would probably think that Trump is the wicked son.

Third, Kagan engages in some word play. She says the Court’s decision to uphold the removal makes Trump’s administration more “subservient.”

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.

But the import here is greater. Kagan is calling out Trump’s administration as a bunch of toadies and lackeys. Indeed, I’ve written that Roberts cannot stomach overruling Humphrey’s Executor if it would mean giving Trump more power.

We will have to just sit and wait until June 2026 to figure out the fate of Humphrey’s Executor. Yawn.

On the plus-side, my workload for the next few weeks got a tad lighter. I was planing to edit St. Isidore’s and Wilcox for our casebook supplement, and maybe even for inclusion in the Fifth Edition of our casebook (forthcoming in November 2025). Now, neither case warrants inclusion. I’ve checked my records, and usually by Memorial Day, there is at least one case already decided that warrants placement in the supplement. But as of today, I have nothing. This term will remain unsatisfying, at least till the end.

The post Justice Kagan Tells Us What She Really Thinks About President Trump appeared first on Reason.com.

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At One First Street, life comes at you fast. On May 22 at 10:00 a.m., the Court 4-4’d in St. Isidore v. Drummond, letting the Oklahoma Supreme Court’s decision stand. I wrote:

Before the case was even argued, I made a crude prediction to several reporters that the Chief would take the easy-out, and just vote to 4-4 affirm. There would be no opinion, and the Court could focus on more important issues. The children of Oklahoma really didn’t matter.

What was that “more important issue.” Trump v. Wilcox. After 5:00 p.m. on May 22, after the markets closed, right before a holiday weekend, the Court issued a two-page per curiam opinion in the removal power case. (I’m sure Roberts was humming the Jimmy Buffet song when planning the release time.) The Court, by an (ostensible) 6-3 vote, stayed the lower court rulings that reinstated a member of the NLRB and a member of the MSPB. The actual legal analysis can be compressed in a single sentence:

The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.

Nowhere does the Court mention Humphrey’s Executor. It’s like Voldemort! I’m not at all convinced Roberts actually overrules Humphrey’s Executor when push comes to shove. But he at least signals Wilcox will lose.

Then, the Court includes a bizarre throwaway line about the Federal Reserve, which is in no way even relevant to the parties in this case.

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.

Why is this argument even in here? Roberts is doing damage control. I agree with Justice Kagan’s dissent:

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 morejudicial—approach would have been to deny the President’sapplication for a stay on the continued authority of Humphrey’s.

John Roberts is not a judge. He is a mediator. He issues a conservative ruling against the MSPB and the NLRB (which frankly no one cares about) but issues a liberal advisory opinion in favor of the Fed (which everyone cares about).

At some point, the five conservatives should stop joining these missives. Just rule on the case as you think best, and let Roberts spin his wheels. These sorts of rulings do nothing to instill confidence in the Court as an actual legal body. No one actually believes that Roberts is behaving as a judge when he issues rulings like this. And I say this as someone who thinks Humphrey’s Executor should have been overruled decades ago.

Now, the issue will linger in the D.C. courts for some time, and come to the Supreme Court in a cert petition next term.

My essay about the Chief Justice keeps writing itself.

The post Roberts Swings To The Left In <I>St. Isidore</I>, To The Right In <i>Wilcox</i> appeared first on Reason.com.

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If COVID-19 leaked from a Chinese lab as a result of U.S.-funded gain-of-function research, is Donald Trump to blame?

The New York Times opinion writer David Wallace-Wells seems to imply the answer is yes in his latest column.

Wallace writes:

It was under the Trump administration in 2017 when the National Institutes of Health lifted an Obama-era pause on gain-of-function funding in what may have looked at the time like an inside-baseball argument among scientists but now looks more like a strike against liberal safetyism, which reopened the door to the kinds of research the American right now reflexively blames for the pandemic.

Writer Richard Hanania made a similar point in a recent essay on the right’s stolen valor on gain-of-function skepticism, saying that, “In fact, it was the Obama administration that paused funding for high-risk [gain-of-function] studies in 2014. The ban was lifted by none other than Donald Trump in 2017.”

Both writers are trivially correct that the Obama administration implemented a pause on gain-of-function research and the first Trump administration lifted it.

Yet both writers’ implied point—that Trump’s newfound hawkishness on gain-of-function research is belated and hypocritical—misses a few key facts.

Firstly, the Trump administration’s lifting of the Obama administration’s pause was a continuation, not a break, of its predecessor’s policies. Secondly, and more importantly, federally funded gain-of-function research continued unhampered under both the Obama and Trump administrations’ policies.

Understanding both points is important for grasping why past efforts to more closely vet gain-of-function research failed in a possibly catastrophic way.

To start, the Obama administration’s pause on gain-of-function research funding was, as the name would suggest, always intended as a temporary measure. Its explicit purpose was to give policymakers time to develop a more permanent regulatory framework.

The White House’s 2014 announcement of the pause explicitly says that the U.S. government “will undertake a deliberative process to assess the risks and benefits of certain gain-of-function (GOF) experiments.”

“The funding pause will end when the U.S. government has adopted a Federal policy regarding gain-of-function studies on the basis of the deliberative process described above, which is expected to occur 2015,” it continues. 

So, again, the pause was always intended to be temporary. It was also scheduled to end during the Obama administration.

As it turned out, the “deliberative process” for creating a regulatory framework for gain-of-function research took longer than expected.

It wasn’t until December 2017 that the pause was replaced with the so-called P3CO framework—a policy requiring funding proposals for research with the potential to create pandemic pathogens to be reviewed by a department-level panel in the Department of Health and Human Services (HHS).

So, while the Trump administration did lift the pause in favor of a seemingly more permissive policy, that was always the plan. The Trump White House was not departing from its predecessor’s policy but rather faithfully completing it.

It had nothing to do with the first Trump administration’s assault on “liberal safetyism,” as Wallace-Wells describes it.

The more substantive issue that Wallace-Wells’ and Hanania’s summaries elide is that gain-of-function research on pandemic pathogens continued unabated under both the Obama administration’s pause and the Trump administration’s P3CO framework.

Under both policies, the National Institutes of Health (NIH), through its subsidiary the National Institute for Allergy and Infectious Diseases (NIAID), continued to release funding for such research.

Critics argue that both policies were practically nullified by Francis Collins and Anthony Fauci, the longtime heads of NIH and NIAID respectively, who were fierce advocates for gain-of-function research and sharply critical of restrictions on it.

Since the Obama administration’s pause and the Trump-implemented P3CO framework left NIH and NIAID with a lot of effective discretion to decide what research was subject to these policies’ restrictions, both were able to continue funding research that should have rightly been stopped.

Lab leak proponents argue that this continued funding, specifically of gain-of-function research performed by the nonprofit EcoHealth Alliance at the Wuhan Institute of Virology, contributed to the creation of the pandemic virus there.

One can then argue that Trump was the president, the buck stopped with him, and therefore, he’s ultimately responsible for NIH research funding decisions made on his watch.

But it’s not true that the first Trump administration’s lifting of the gain-of-function research funding pause enabled the NIH to do anything it wasn’t already doing. It was funding gain-of-funding research under the pause, and it continued to do so after it was lifted.

White House–level policy decisions had little bearing on the agency’s behavior.

Wallace-Wells and Hanania go on to criticize the right’s bluster about the lab leak as opportunistic and partisan. Yet the politicization of heretofore wonky debates about gain-of-function research appears to actually be resulting in substantive change.

It’s that politicization that’s prompted President Donald Trump to implement a new, aggressive pause on gain-of-function research funding.

He’s also appointed as NIH Director Jay Bhattacharya, a veteran critic of COVID-era policy orthodoxy and a firm lab leak believer, to implement that pause.

He’s likely to do a more faithful job of it than his predecessor.

The post Is Donald Trump To Blame for a COVID Lab Leak? appeared first on Reason.com.

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The Federal Trade Commission’s (FTC) Mark Meador recently insinuated that his agency may investigate nonprofits and academic institutions that object to antitrust enforcement actions without disclosing their donors for deceptive practices. While Meador may think it’s OK to probe parties for disagreeing with him, the FTC’s consumer protection remit does not sanction prosecuting those who reject the commissioner’s antitrust ideology.

Meador recently reposted a video of him discussing the “academic whitewashing” of antitrust during an event hosted by American Compass and the Conservative Partnership Institute on May 1. (While no full recording of the event exists at press time, an employee of American Compass tells Reason that the clip is from the aforementioned event.)

Meador complains about academics “renting out their Ph.D. [and] their reputation to advocate for the interests of giant corporations.” He rightly acknowledged that people are free to do whatever they want but then said that the FTC brings “enforcement actions against influencers and reviewers who advocate for products without disclosing that they’re being paid for it.”

Meador wondered aloud whether nonprofit employees and academics who advocate “for the interests of certain corporations or mergers in their white papers and their op-eds without ever disclosing that they’re being paid to do so” may also be guilty of deceptive practices. He did not state that the FTC would bring enforcement actions against academics but said it’s “worth investigating.”

While Meador may think “it’s an interesting question” whether he may prosecute his ideological opponents, the Supreme Court has already provided an answer. Eugene Volokh, professor emeritus at the University of California, Los Angeles School of Law, understands the ruling in NAACP v. Alabama (1958) as holding that, “when it comes to speech that is neither commercial advertising for a product…nor specifically election-related, broader First Amendment precedents would indeed preclude such disclosure requirements.”

Nadine Strossen, former president of the American Civil Liberties Union and senior fellow at the Foundation for Individual Rights and Expression, tells Reason that “the Supreme Court has expressly distinguished between commercial and other communications.” Citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985), Strossen says “compulsory disclosure regarding non-commercial expression is presumptively unconstitutional.”

John Vecchione, senior litigation counsel for the New Civil Liberties Alliance, says that what Meador proposes the FTC do runs afoul of the Supreme Court’s decision in National Rifle Association of American v. Vullo (2024). In this case, the Court unanimously ruled that “the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech.” Vecchione says that, were the FTC to investigate nonprofits for their speech, it “would be stopped so fast your head would spin.”

Meador is wrong to suggest that the FTC, which regulates commercial speech, can police the kind engaged in by academics and nonprofits.

Ethan Yang, adjunct research fellow at the American Institute of Economic Research, explains that “there is a vast difference between a [firm] paying a celebrity to endorse their product and an academic who is employed by a university or non-profit that takes diverse donations from a variety of different entities.” Jessica Melugin, director of the Center for Technology and Innovation at the Competitive Enterprise Institute, tells Reason that “Meador is conflating commercial speech…with academic speech” and that government intervention in the latter is obviously inappropriate.

It is unclear how serious Meador is about prosecuting those whose opinions he deems ill-motivated. Regardless of Meador’s intentions, he’s “cast[ing] those who disagree with him as only motivated by material interests and not intellectually sincere,” says Yang.

Instead of speculating about the motives of his ideological opponents, Meador should compete in the open marketplace of ideas—after all, his job is to preserve competition.

The post A Top Antitrust Enforcer Is Open To Prosecuting People Who Disagree With Him appeared first on Reason.com.

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The federal government is on track to borrow nearly $2 trillion this year. And while that budget deficit is a major concern for many Americans, the specifics of how and why the government borrows so much money can often seem confusing.

That’s why Reason asked Romina Boccia, director of budget and entitlement policy at the Cato Institute, to break it down into more manageable morsels.

So why does the federal government borrow so much? Because “it’s much easier for Congress to promise benefits to certain constituencies than to ask U.S. taxpayers to actually pay” for those benefits, explains Boccia, who also writes a Substack newsletter about federal fiscal issues.

The most expensive of those benefits are the so-called entitlement programs—Social Security, Medicaid, and Medicare—which run on autopilot and are not subject to the regular appropriations process. “Most of the spending growth now, and most of the growth in the budget deficit in the United States, doesn’t come about as a result of Congress voting for spending bills but rather is automatically baked into the budget,” she says.

Higher debt and bigger deficits could create the circumstances for a “severe fiscal crisis,” warns Boccia. Even if that doesn’t happen, the growing budget deficit can have serious consequences for Americans.

“Because debt is so high, it is actually reducing economic growth,” says Boccia. That means lower wages and fewer opportunities. The higher debt is also driving interest rates higher, which means “you have to pay more in interest if you want to borrow money” for a mortgage, to start a business, or to pursue higher education.

So what can be done about this mess? Boccia says that’s the “trillion-dollar question.”

Channeling Milton Friedman, Boccia says the key is to give politicians the right set of incentives so that even the wrong people can make the right decisions. She favors the creation of a fiscal commission within Congress that could give lawmakers political cover to make necessary changes to Social Security and Medicare, the two old-age entitlement programs.

Those programs should be reconfigured to focus on keeping older Americans out of poverty, says Boccia, “rather than just transferring income from working Americans to retirees, regardless of need.”

• Video Editor: Danielle Thompson
• Video Editor: Regan Taylor
• Camera: Cody Huff
• Camera: César Báez

The post How Does the National Debt Affect You? A Budget Expert Explains. appeared first on Reason.com.

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As the House of Representatives has been debating its one big, beautiful bill this week, the Senate has been considering a contentious vote of its own.

On Tuesday, Senate Majority Leader John Thune (R–S.D.) said that the Senate would move forward with a vote over three Congressional Review Act (CRA) resolutions—a law that allows Congress to overturn federal rules with a simple majority—to rescind air pollution regulations in California. 

Under the Clean Air Act, states are not allowed to set their own vehicle air pollution standards, except California, which must request a waiver from the Environmental Protection Agency (EPA) before implementing new rules. While states can’t set their own rules, they are allowed to adopt California’s and, as of 2025, 17 states and the District of Columbia have done so. 

In the final days of the Biden administration, the EPA granted California exemptions for a rule that requires 100 percent of car sales in the state to come from zero-emission vehicles by 2035 and two others that set strict emissions standards for heavy-duty vehicles. 

On Thursday, the Senate voted 51–44 to overturn these EPA waivers. Sen. Elissa Slotkin (D–Mich.) was the only Democrat to vote with Republicans, but identical measures recently passed the House of Representatives with broader bipartisan support. 

While Republican opposition to the waivers is not surprising, the use of the CRA has stoked a debate about Senate rules which could have implications for future policymaking.

In March, the Government Accountability Office (GAO) said these waivers were not rules “for purposes of CRA” and thus the CRA could not be used to overturn California’s regulations. Senate parliamentarian Elizabeth MacDonough, the nonpartisan official in charge of interpreting Senate rules, deferred to the GAO and ruled that these resolutions would need to pass with 60 votes. 

Senate Republicans still moved forward and were able to pass the CRA resolutions with a simple majority by “effectively kicking the question about what qualifies under the Congressional Review Act back to the Senate to determine,” reports Politico. 

The Senate has overruled the parliamentarian only a handful of times. Sen. Sheldon Whitehouse (D–R.I.) said that with this vote, Republicans “violated the plain text of the Congressional Review Act, changed the Clean Air Act, and broke the filibuster.”

Darren Baskt, director of the Center for Energy and Environment at the Competitive Enterprise Institute (CEI), disagrees, telling Reason, “This whole issue is about some Senators wanting to ban gas-powered cars. The procedural argument has been a desperate ploy to ensure California and its blue state allies can reshape the nation’s car and truck industry.” 

CEI recently sent a letter co-authored by Baskt to the Senate, which argued that the CRA is exempt from the filibuster and the parliamentarian was never authorized to interpret these resolutions in the first place. 

“The Congressional Review Act establishes a process around the filibuster, and the Senate is merely using the CRA as it was designed,” says Baskt. “To stress, the entire issue is narrow in scope and limited to CRA resolutions, which are distinct from regular legislative business. It is not an attack on the filibuster, and if it were, I’d be objecting to the action.”

Philip Rossetti, a senior fellow at the R Street Institute, tells Reason that “if the CRA can’t be used on a waiver then Congress’ role in overseeing regulations would be substantially lessened.” For instance, the executive branch could begin to issue waivers instead of federal rules to skirt CRA oversight. 

While Senate Republicans might be within their legal rights to move forward with the CRA, it could start a dangerous precedent. In 2021, MacDonough nixed the Democrat’s plan to include a federal minimum wage increase in the American Rescue Plan. If the parliamentarian’s word doesn’t matter (or matters less), what’s to stop Democrats from attaching unrelated policies to large spending bills in the future? 

There are also other ways to overturn California’s waivers without using the CRA. The president could use the Administrative Procedures Act to claw back the waivers, which would take about a year to complete. But “that’s a big concern because affected industries need to know sooner rather than later if they need to make investments today to comply with future regulatory requirements,” according to Rossetti. 

Ultimately, the issue stems “from the fact that the president has a lot of regulatory power, and Congress has very little oversight,” says Rossetti. For instance, former President Joe Biden was able to “implement almost two trillion dollars of regulatory costs without needing any buy-in from the public.” 

While E.V. mandates are harmful and expensive, it’s worth wondering if Republicans made the right decision overturning these waivers through the CRA and if the decision will hurt them in the future. 

Whitehouse seems to think so. “Make no mistake, Democrats will not forget this, and Republicans will rue this day,” he warned.

The post Republicans Just Killed California's E.V. Mandate. Will They Regret It? appeared first on Reason.com.

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