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I blogged earlier about what I thought was the highlight of Chief Justice Roberts’s exchange with Judge Rosenthal at the Baker Institute. Here, I will flag a few of Roberts’s comments of interest.

First, Roberts spoke about the difficult summer of 2005. In the span of a short span, he was nominated for Justice O’Connor’s seat, Chief Justice Rehnquist died, and Roberts was then nominated for the Chief Justice seat.

Well, the beginning it was very emotionally draining, you’re right. It was a level of tension. I mean, if I get nervous before arguing, you can imagine what it was like to get nervous before those hearings. And Chief Justice Rehnquist had been very much a mentor to me, and it was Saturday night, and I gone to bed. I was trying to get rested up. My wife called to tell me that the chief had passed away. And then the next morning, I got a call from the White House, and they wanted me to come in and had another interview with President Bush that afternoon, and then the next morning, they announced my nomination to be chief the day after that, I’m helping carry Chief Justice Rehnquist casket up to the lie in repose at the court, and the new hearings are starting the next week. There’s just an awful lot going on, and I had to start learning a little bit more about Chief Justice’s and their role, because that obviously hadn’t been a been a focus. And I do remember thinking, you know, everything was looking pretty good with the first nomination.

Second, Roberts said he stumps law professors by asking them to name the portraits of Chief Justices in the East Conference Room.

And, you know, we have two conference rooms in the East one, they have on the walls the first eight Chief Justices, and the next one, they have the next eight chief justices. Just inside. I don’t see where the room is for the, you know, 17. And I just sort of like, of like, you know, walk around, and you look up and there’s, you know, John Jay, and I knew about him. And the next one, there’s a picture of somebody I had no idea who it was. And this is the second Chief Justice. Turned out to be a fellow named John Rutledge who had a pretty he was there for five months. So I felt, well, that’s not bad. And then the next one, and not, not really, you know, Oliver Ellsworth just rings a bell vaguely. And then John Marshall, you know, I could talk for hours about that. He’s the most significant person in our political history who wasn’t a president, and a lot more significant than many of the presidents. And then Chris Roger Taney, the unfortunate counterpart to Marshall. Okay, I know them. The next one I knew had worked with Lincoln, but I couldn’t quite place the name Salman Chase there for a while. And then one, when I have professors in the conference room, and we’re talking about something I will always ask, like, Who is that? And sometimes nobody knows.

Humblebrag. When I recently moved for the admission of South Texas alum to the Supreme Court bar, we had a breakfast reception in the East Conference room. I told our alums who all the Chiefs were. Who hasn’t memorized all of the Chiefs? Jay, Rutledge, Ellsworth, Marshall, Taney, Chase, Waite, Fuller, White, Taft, Hughes, Stone, Vinson, Warren, Burger, Rehnquist, and Roberts. (I still would like to know where Roberts’s bust will go, but that is a question for another time.)

Third, Roberts spoke at several juncture about judicial “courage.” He said that Chief Justice Jay demonstrated an “incredible act of courage” by not answering questions posed in the “Correspondences of the Justices.” Roberts also said that in this 250th year of independence, we should focus and celebrate “courage.” He referenced the “extraordinary” bravery of those who signed the Declaration of Independence. They would not have been “given the privilege of being shot. They would be be hung, and all their families possessions would be gone.” Roberts suggested that judges will need to exhibit a “great deal of courage,” an “overlooked virtue of a judge,” to disagree with what AI says. Judge Rosenthal also gave Chief Justice Roberts a biography of Chief Justice Chase, written by her father, Harold M. Hyman, who had been a longtime professor at Rice. Rosenthal said, and I agree, that Chase exemplified “courage.” (I had the good occasion to cite one of Professor’s Hyman’s articles in a draft paper I wrote with Seth Barrett Tillman.) When I write about judicial “courage,” people lose their collective minds. But this is a real concept. And, I’ve praised Roberts for having courage, to a limited extent.

Fourth, Judge Rosenthal asked how the Chief deals with criticism. The Chief responded, “I actually try not to read outside criticism too much. And it’s, you know, just because you’re you’re on to something else, and you don’t want to worry too much about you’ve done, you’ve done your best.” I will not check how often Supreme Court IP addresses access the Volokh Conspiracy.

Fifth, Roberts quotes Justice Louis Brandeis who argued that the Court should not sit year round. One of my proposals for Court reform is for the Supreme Court to operate like all other courts, and not take a summer break. The Chief disagrees.

one big answer is that our schedule is set up. I resist the idea that it’s time off, but we’re not with each other in Washington in July and August. That makes it easy easier. Louis Brandeis, Louis, good friend of mine, Louis Brandeis, said he could do the 12 months worth of work on the court in 10 months, but he couldn’t do it in 12 months. And I think there was a lot of wisdom in that. And, you know, sometimes people get together in the summer, do this and that whatnot. I am, I think I got the group right, a four seasons fan. And my approach is, see you in September, one of the best songs. But so that helps sort of recharge the batteries.

Sixth, Justice Rosenthal asked about Roberts’s service as Chancellor of the Smithsonian Institution. The Chief said that “It is the best thing about being the Chief Justice, and it is an extraordinary thing.” Roberts explains that he enjoys working with these experts, even though he lacks expertise:

And it is just it’s an opportunity, as the chancellor, for me to participate in all of these amazing things, whether it’s the oceanographic facility or the planetarium or the African American History Museum or the Air and Space Museum or the Portrait Gallery, all these things. And to be the sort of one person in the room that really doesn’t know you know what’s involved. And it’s amazing how much respect these other people who are the top, top, top people in their fields, in philanthropy and all that they kind of like having sounding boards, not right, but somebody that they feel let me explain it to you, and I find it incredibly rewarding. The National Zoo was part of it, that’s probably the most impressive thing, it’s as the chancellor, you get to see the pandas before anybody else. And particularly when the kids were young, that was that was pretty.

In a draft paper, I propose that the Chief Justice should drop this role. Pandas are fun, but it is not really part of the Chief’s job. Here is a preview of what I wrote:

As usual, the change should start from the top. The Chief Justice serves as Chancellor of the Smithsonian Institution. This role never made sense to me. The Chief Justice lacks a PhD or any formal training in research or museum management. Why would he hold this position? In fact, the first Chief Justice to serve as Chancellor was Roger B. Taney, who took over the position after Vice President Millard Fillmore became President. Moreover, in recent times, the Smithsonian is enmeshed in controversies with President Trump. There have been press leaks about Roberts’s leadership of that entity. It would make sense for the Chief Justice to step out of this field and any related controversies. Indeed, Congress should modify the law that requires the Chief Justice to serve on the Board of Regents altogether.

Seventh, Judge Rosenthal turns to the Chief Justice’s service as chairman of the judicial conference.

ROSENTHAL: Your role as head of the judicial United States, and this is the policy making and rule making body for the federal courts and the courts of appeals all over the country. I was privileged to serve on the conference, and I’ve seen you at work, and it’s it was a pleasure to watch you made it look easy, but I know it’s not. How do you do that?

ROBERTS: Well, that’s another example of sort of me staying in my lane. The people involved in that are experts, trial judges like you know more about evidence and admission than I ever did or ever will. And so when you come up with particular provisions and rules, I understand that that reflects all your expertise. And throughout the budget, I mean, it’s it’s like everything else, we have to get a certain amount of money from Congress to support our actions, and Congress has been very good, and they are also responding to the particular serious threats that judges, particularly at the trial level, are facing now, and they’re being very helpful and responsive in funding, but that’s not something where I’m going to do much good. But the other judges are they serve on the wide variety of committees covering a wide variety of questions. It’s a big commitment of their time, and I’m just very grateful for all

I previously offered these comments about the Chief’s role as presiding officer:

If Chief Justice Roberts has adequately addressed the concerns of lower-court judges, I doubt those judges would feel compelled to talk to the press. I doubt the Chief is doing enough privately to assuage concerns. I have also heard from many judges over the years that the Chief runs the Judicial Conference with an iron fist. There is a discussion list, and any item not on the list cannot be discussed. There is no open-ended discussion. Indeed, the ill-fated judicial reassignment policy was not subject to any debate. We saw a glimpse of this parliamentary stranglehold in a piece about Roberts as chancellor of the Smithsonian. Perhaps in normal times, these Roberts Rules of Order make for an efficient process. But in times of crisis, the Judicial Conference must be a deliberative body that reflects the views of the entire judiciary, and not the agenda of the Chief Justice.

Eighth, Rosenthal asks about the biggest misconceptions about the Court. Roberts leads off by comparing the rate at which precedent was overruled on the Warren, Burger, Rehnquist, and “what they call the Roberts Court.” The Chief knows these statistics to the decimal point:

For example, the idea that the court, since I’ve been there, has overruled a lot of cases. You look at the statistics, the Warren Court overruled something like 3.2% of the cases. The Burger Court, surprisingly, perhaps even more 3.4%. The Rehnquist Court, two point something percent, and what they call the Roberts Court fewer 1.19% or something like that.

It seems that Roberts has been reading co-blogger Jon Adler’s posts from the Volokh Conspiracy.

Roberts also offers, unprompted, a reflection that he does not carry though George W. Bush’s agenda. I think he is speaking directly to the charge that Justices appointed by President Trump should rule for President Trump’s agenda.

And the other thing the notion that we carry forward the views of the people that appointed us is, is absurd. President George W Bush appointed me 20 years ago. The idea that I’m carrying out his agenda somehow is absurd. The issues here, now today, nobody would have thought those were going to be a big deal 20 years ago. And history is full of examples of presidents appointing people and being really surprised how they turned out, going both ways. Felix Frankfurter turned out to be to be a lot more conservative than his appointing judge Justice Brennan, a lot more liberal than his.

The Chief digressed to talking about the SUpreme Court police, and then returned to the theme of the appointing President:

Certainly, I’ll always be grateful for President Bush for appointing me, and I’m sure all my colleagues are grateful there. But the idea that I’m carrying out, and they are carrying out some different agendas, I think really fallacious.

This exchange, and not the banal point about criticism, was the point the media should have focused on. For rightward drift, I’ll spot you Frankfurter and maybe Jackson. For leftward drift, the list is far longer and deeper: Warren, Brennan, Blackmun, Stevens, O’Connor, Kennedy, Souter, Roberts…

Finally, anyone who has ever been to the federal courthouse in Houston, would agree with Judge Rosenthal’s observation: “And I’m very fortunate to have my job. I’m every day grateful, but that building in downtown Houston, which is the ugliest courthouse in the federal system.” The Chief replied, “truly I’ll get right on it.” The Bob Casey Courthouse is a brutal cube of concrete. It looks like a cheese grater. Fortunately, the building is filled with some of the finest jurists in the judiciary.

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On Saturday morning, President Donald Trump criticized a Wall Street Journal article about an Iranian attack on U.S. refueling planes in Saudi Arabia. Three hours later, Brendan Carr, the Trump-appointed chairman of the Federal Communications Commission (FCC), responded to the president’s complaint by warning broadcasters that they “will lose their licenses” if they fail to “operate in the public interest.”

Why did an allegedly misleading newspaper article prompt a regulatory threat against TV stations? Because Carr is eager to advertise his crusade to restore “faith and confidence in the media”—a megalomaniacal mission that is neither part of his job description nor consistent with the First Amendment.

The gravamen of Trump’s objection to the Journal story remains hazy. Under the headline “Five Air Force Refueling Planes Hit in Iranian Strike on Saudi Arabia,” the newspaper reported that the planes “were struck and damaged on the ground at Prince Sultan air base in Saudi Arabia.”

Trump said the headline was “intentionally misleading,” adding that the Journal‘s “terrible reporting” was “the exact opposite of the actual facts!” Yet he conceded that all five planes had in fact been damaged, although “none were destroyed”—a claim the newspaper had not made.

If the basis for Trump’s complaint was hard to discern, the logic of Carr’s response was even more puzzling. The FCC does not license or regulate newspapers, which would be clearly inconsistent with freedom of the press.

Carr’s threat underlines the anomalous legal status of broadcast journalism, which allows government interference that would be obviously unconstitutional in any other medium. That baffling distinction hinges on “the scarcity of radio frequencies”—a rationale that never made much sense, since allocation of broadcasting rights does not require empowering federal bureaucrats to police the content of TV programming.

Given the plethora of news options available to Americans, the distinction between broadcast speech and speech in every other medium makes even less sense today. But even if you take the FCC’s authority in this area for granted, Carr’s blatantly partisan meddling cannot be justified by the rules he claims to be enforcing.

Without citing any specific examples, Carr averred that broadcasters “are running hoaxes and news distortions.” Yet even if the Journal were a TV station, its reporting plainly would not fit the FCC’s definitions of those offenses.

The FCC’s “hoax” rule prohibits “false information concerning a crime or a catastrophe,” but only if “the licensee knows this information is false,” “it is foreseeable that broadcast of the information will cause substantial public harm,” and “broadcast of the information does in fact directly cause substantial public harm.” The rule against “broadcast news distortion” likewise applies only when there is “evidence showing that [a] broadcast news report was deliberately intended to mislead viewers or listeners.”

As should be clear from Carr’s manifestly inapt use of those labels, his agenda goes far beyond enforcing any particular FCC rule. He aims to reshape TV programming by requiring that broadcasters serve “the public interest” as he defines it, which evidently precludes news coverage that annoys the president.

As Carr sees it, “the public interest” also precludes ill-informed anti-Trump commentary by late-night comedians, politically biased selection of talk show guests, and left-leaning reporting by network news shows. Trump thinks broadcast licenses should be contingent on his own judgment of whether TV programming is fair and balanced, and Carr clearly agrees.

“It is very important to bring trust back into media, which has earned itself the label of fake news,” Carr said on Saturday. “When a political candidate is able to win a landslide election victory…in the face of hoaxes and distortions, there is something very wrong.”

Whether or not you agree with that analysis, Carr does not have the authority to correct the problem he perceives. The FCC “does not have a roving mandate to police speech in the name of the ‘public interest,'” he warned in 2019. He should listen to his own advice.

© Copyright 2026 by Creators Syndicate Inc.

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Today Chief Justice Roberts spoke at the Baker Institute at Rice University in Houston. No, I did not attend. In candor, members of the Baker Institute Roundtable (a $500 fee) had early access to public tickets, and once those were gone, the event was at capacity. That was too rich for me. I considered protesting outside the building with a “#RESIGN” sign, but decided against it.

The conversation was moderated by Judge Lee Rosenthal of the Southern District of Texas. She did an expert job moderating the conversation. Most of the press focused on Roberts’s comments concerning attacks on judges:

ROSENTHAL: In your 2024, year end report on the judiciary, you wrote that criticism comes with the territory for judges and justices and that it can be healthy. You’ve talked about the criticisms that your predecessors encountered. How do you handle criticism of your court or your opinions today?

ROBERTS: Well, it does. It does come with the territory. Often when any of us issue an opinion, there’s often a dissent, usually not but I mean, people, their most opinions are more opinions than anything else, are unanimous, and that’s pretty to get used to the criticism right away, and it can very much be healthy. We don’t believe that we’re, you know, flawless in any way, and it’s important that our decisions are subjected to scrutiny, and they are. The problem sometimes is that the criticism can move from a focus on legal analysis to personalities. And you see from all over, I mean, not just any one political perspective on it, that it’s more directed in a personal way, and that, frankly, can be actually quite dangerous. Judges around the country work very hard to get it right, and if they don’t, their opinions are subject to criticism, but
personally directed hostility is is dangerous, and it’s got to stop.

ROSENTHAL: It’s very much part of our lives these days. And on behalf of trial judges
everywhere, I want to personally thank you, because while we know that you may not always agree with us, we always know that you have our backs, and that means a great deal. So thank you, and I hope it continues. I know it will.

I found one of the most fascinating exchanges to concern what might be seen as the Roberts’s biggest disappointments. In 1992, President George H.W. Bush nominated Roberts to the D.C. Circuit at the age of 37. Of course, Senator Joe Biden blocked the nomination, and Roberts never even received a vote. Elena Kagan likewise was nominated for the D.C. Circuit in 1999. She too never received a vote.

I’ve long suspected that if Roberts and Kagan had been confirmed, they never would have made it to the Supreme Court. One of the downsides of being a judge who aspires to higher office is that you have to actually decide cases. And those cases will invariably upset some people. When Roberts was nominated for the Supreme Court in 2005, he had only been an appellate judge for about two years, with very few cases to show. Before there was the frozen trucker, there was the greasy snacker. Roberts’s most controversial decision concerned a girl who was arrested for eating french fries on the Metro. Of course, Roberts also decided what would become Hamdan v. Rumsfeld on July 15, 2005–at the same time he was interviewing before the Supreme Court. Talk about a well-timed audition!

Judge Rosenthal asked Roberts to reflect on his experience of not getting the D.C. Circuit at the age of 37:

Well I was disappointed. I wasn’t naïve about the prospect that things might not work out. It was a disappointment. You look ahead and plan what your life will be like. I think it was a great honor. It was a great calling to be a federal judge. In retrospect, 100%, it was one of the best things that ever happened to me. That is a young age to take on a life-tenure job. You give up a lot of opportunity for other experiences. I’m pretty sure if I had done that, I wouldn’t have ended up where I am now. You do develop something of a track record and it is not always something that appeals to people. And I went on and was able to do private practice but also another government opportunity. It was a disappointment but turned out alright.

I’ve listened to many speeches the Chief has given over the years, but I don’t recall him ever being so honest and vulnerable. It was truly refreshing. I firmly believe that people only learn from defeats. Someone who has never faced adversity likely has not been taking enough risks.

On the substance, Roberts is 100% correct. Had Roberts spent a decade on the D.C. Circuit during the 1990s, his record would have looked very different. He likely would have infuriated Democratic Senators by ruling against the Clinton Administration. And Roberts likely would have disappointed Republican Senators by not being conservative enough (because he isn’t that conservative). To play out the counterfactual, it’s possible that Roberts still would have made the short list. Indeed, he likely would have still been a finalist alongside Judges Luttig and Wilkinson. Maybe Roberts still would have been picked. Who knows? But Roberts doesn’t think so.

Likewise, had Elena Kagan spent much of the Bush Administration ruling in favor of Guantanamo Bay detainees, she would never have been considered. Senator Lindsey Graham would have never voted for her. And what would have happened to Harvard Law School? It might have gone the way of Yale Law School! By way of comparison, Justice Kavanaugh spent a decade on the D.C. Circuit and made lots of enemies. He was only confirmed by a bare majority. Had the filibuster still been in place, Kavanaugh would have never been considered.

Kudos to Judge Rosenthal for getting the Chief Justice to open up. This was a very well done interview. I’ll write up a few other points in another post.

 

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Paul Ehrlich has died at the old age of 93. I am grateful he lived long enough to witness how many of his doomsday predictions were wrong. But he does not seem to have recognized his faults. As late as 2018, Ehrlich predicted (once again) that the collapse of civilization would happen in decades. How could a person who is consistently wrong about everything maintain his status as a public intellectual? I think the short answer is that Ehrlich told progressives what they wanted to hear and reaffirmed their world view. When a progressive uses the phrase “trust the science” or “evidence based,” especially about the climate, think of Paul Ehrlich.

There is much to say on Ehrlich’s death, but it may be most useful to connect his writings on population control with Roe v. Wade. The Population Bomb was published in 1968. The book opens, “The battle to feed all of humanity is over. In the 1970s hundreds of millions of people will starve to death.” Ehrlich endorsed mandatory sterilization to remedy overpopulation. But he also favored abortion as a way to promote, shall we say, swinging tricks, without the consequences of reproducing.

Roe v. Wade was decided in 1973. There is a sentence in Justice Blackmun’s majority opinion that is edited out of most ConLaw casebooks, but that Randy and I include:

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.

In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

What do “population growth, pollution, [and] poverty” have to do with abortion? Well, as more children are born, there will be more pollution, less food, more poverty, more death, and the end of the world as we know it. Or so Ehrlich would explain.

Justice Blackmun was almost certainly alluding to Ehrlich’s work, which was in the ether. An amicus brief submitted by National Organization for Women, among other groups, expressly cited Ehrlich‘s book:

A state cannot seriously contend today that restrictions on abortion are justified by an overriding state interest in increasing population. See Ehrlich, The Population Bomb, 1968. On the contrary, it is accepted government policy to limit family size and to encourage family planning.

Jane ROE, John Doe, and Mary Doe, Appellants, James Hubert HALLFORD, M.D., Appellant-Intervenor, v. Henry WADE, Appellee. Mary DOE, et al., etc., Appellants,, 1972 WL 126045, at *27

Justice Ginsburg spoke to those concerns in a 2009 interview:

Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

Justice Ginsburg was quite right about how Ehrlich and others viewed abortion. I scanned through the Population Bomb. Here are some of the things Ehrlich wrote about abortion.

Page 138: Two other functions of the DPE would be to aid Congress in developing legislation relating to population and environment, and to inform the public of the needs for such legislation. Some of these needs are already apparent. We need a federal law guaranteeing the right of any woman to have an abortion if it is approved by a physician. We need federal legislation guaranteeing the right to voluntary sterilization for both sexes and protecting physicians who perform such operations from legal harassment. We need a federal law requiring sex education in schools — sex education that includes discussion of the need for regulating the birth rate and of the techniques of birth control.

Page 141: If we take the proper steps in education, legislation, and research, we should be able in a generation to have a population thoroughly enjoying its sexual activity, while raising smaller numbers of physically and mentally healthier children. The population should be relatively free of the horrors created today by divorce, illegal abortion, venereal disease, and the psychological pressures of a sexually repressive and repressed society.

Page 148: Biologists must point out that contraception is for many reasons more desirable than abortion. But they must also point out that in many cases abortion is much more desirable than childbirth. Above all, biologists must take the side of the hungry billions of living human beings today and tomorrow, not the side of potential human beings. Remember, unless numbers are limited, if those potential human beings are born, they will at best lead miserable lives and die young. We cannot permit the destruction of humanity to be abetted by a doctrine conceived in total ignorance of the biological facts of life.

In Ecoscience, published in 1977, Ehrlich invoked Roe to argue that the federal government could impose “compulsory abortion” to reduce the population:

Page 837: To date, there has been no serious attempt in Western countries to use laws to control excessive population growth, although there exists ample authority under which population growth could be regulated. For example, under the United States Constitution, effective population-control programs could be enacted under the clauses that empower Congress to appropriate funds to provide for the general welfare and to regulate commerce, or under the equal-protection clause of the Fourteenth Amendment. Such laws constitutionally could be very broad. Indeed, it has been concluded that compulsory population-control laws, even including laws requiring compulsory abortion, could be sustained under the existing Constitution if the population crisis became sufficiently severe to endanger the society.

Never forget that Roe v. Wade favorably cited Buck v. Bell, alongside Jacobson v. Massachusetts:

The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U. S. 11 (1905) (vaccination); Buck v. Bell, 274 U. S. 200 (1927) (sterilization).

Perhaps Justice Blackmun would have also supported the constitutionality of mandatory abortion if the state had a sufficiently compelling interest.

Roe v. Wade was an illegitimate decision on every conceivable ground. At some level, the Justices were motivated by the worst quack science in modern history, which led to oppressive family policies around the world. Indeed, at least part of the underpopulation problem we are facing can be traced directly to Ehrlich, Roe, and the five decade culture it spawned. Dobbs was right, just, and inevitable.

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Cassandra Burke Robertson and I have a new piece entitled “Denaturalization’s Missing Limit” forthcoming in the Northwestern University Law Review Online. Here is the abstract:

Civil denaturalization has become a bipartisan tool of punishment and deterrence. The government has used the civil justice system to strip citizenship from naturalized citizens convicted of serious crimes—including sex offenders—to “send a loud message” and “hold accountable” those it considers undesirable, circumventing the ten-year statute of limitations Congress imposed on criminal naturalization fraud. The Trump administration has gone further, elevating denaturalization to one of the Department of Justice’s top five enforcement priorities and directing attorneys to “maximally pursue” every viable case. One of the features that makes denaturalization such a potent tool is the widely accepted proposition that no statute of limitations applies. This Essay argues that proposition is wrong. Drawing on the Supreme Court’s decision in Kokesh v. SEC, the text and structure of 28 U.S.C. § 2462, and the policy rationales underlying statutes of limitations, we argue that Congress’s existing default five-year limitations period should be understood to apply to civil denaturalization. A five-year time bar would preserve the government’s ability to pursue clear fraud while preventing the indefinite vulnerability that chills the political participation of over twenty-three million naturalized Americans.

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A federal jury in Fort Worth, Texas, convicted eight protestors on charges ranging from rioting to attempted murder after a noise demonstration turned violent outside Immigration and Customs Enforcement’s (ICE) Prairieland Detention Center last summer. Federal prosecutors claim the group was part of an “Antifa Cell” and provided “material support to terrorists.” First Amendment legal scholars have raised serious concerns about the chilling effect these prosecutions and convictions will have on future political dissent.

One man’s conviction emphasized just how far that chilling effect could go. Daniel Rolando Sanchez-Estrada, the husband of one of the convicted protestors, wasn’t present at the time of the July 4 demonstration. After receiving a call from his wife, Maricela Rueda, from the Johnston County Jail, in which she told him to do “whatever you need to do” and “move whatever you need to move at the house,” officers began watching Sanchez-Estrada, according to the criminal complaint filed against him.

Shortly after, officers observed Sanchez-Estrada load and move a box from his home to another residence. Sanchez-Estrada was then arrested on state traffic offenses, and officers obtained a search warrant to locate and search the box. Inside, they found “numerous Antifa materials, such as insurrection planning, anti-law enforcement, anti-government, and anti-immigration enforcement documents,” according to a November indictment. Sanchez-Estrada was subsequently charged federally with corruptly concealing a document and conspiracy to conceal documents.

Sanchez-Estrada was convicted on both counts on March 13 and now faces up to 40 years in federal prison. But despite ICE proclaiming in a post on X that the contents of Sanchez-Estrada’s box contained “literal insurrectionist propaganda,” these controversial materials fall squarely under constitutionally protected speech.

“I feel like the U.S. lost here with this verdict and what it means for future defendants,” Christopher Weinbel, Sanchez-Estrada’s federal public defender and a U.S. Army veteran, told The Washington Post. “I feel like it turned its back on justice with this.”

The other eight protestors were charged and convicted of rioting, providing material support to terrorists, conspiracy to use and carry an explosive, and using explosives after they set off fireworks outside the Prairieland ICE facility. Rueda was also convicted of conspiracy to conceal documents along with Sanchez-Estrada. Additionally, Benjamin Song was convicted of attempted murder of a U.S. officer and discharging a firearm in furtherance of a crime of violence after he allegedly shot and wounded a police officer during the demonstration.

In response to the convictions, Attorney General Pam Bondi said the guilty “verdict on terrorism charges will not be the last as the Trump administration systematically dismantles Antifa and finally halts their violence on America’s streets.” But First Amendment lawyers are wary of conflating constitutionally protected speech after President Donald Trump signed an executive order in September categorizing the loosely defined “antifa” as a “domestic terrorist organization.”

Suzanne Adely, president of the National Lawyers Guild, a progressive legal group, told the Associated Press that the government wants to “squash” opposition, and a case like this one creates fear, “hoping that folks in other cities then will think twice over protesting.” The U.S. district judge presiding over the case, a Trump nominee, Mark Pittman, also signaled First Amendment concerns, according to The Guardian, when he asked prosecutors about the relevance of including antifa in the jury instructions. “Whether it’s antifa or the Methodist Women’s Auxiliary of Weatherford, why does it matter?” Pittman asked during the trial, reported The Guardian.

Although free speech advocates sometimes fail to clearly acknowledge that some expressive activities—such as destruction of property, trespassing, or shooting someone, as allegedly happened in this case—are crimes not protected under the First Amendment, they are right to point out the danger inherent in broadly criminalizing protected political dissent—like owning anti-government zines. The more zealously the Trump administration prosecutes dissenting political beliefs as crimes such as domestic terrorism, the more content Americans will deem worthy of concealing, destroying, or shunning for its potential to be used as evidence of criminality—just like in Sanchez-Estrada’s case—creating a mass chilling effect.

The Trump administration isn’t wrong to point out that crimes, including property and violent crimes, have been committed during protests. But by broadly defining domestic terrorism to include constitutionally protected speech, the Trump administration will be successful in dismantling a lot more than the “antifa” movement, and will dismantle Americans’ First Amendment rights instead.

The post Prairieland Verdict: Texas Man Found Guilty of Transporting Constitutionally Protected Pamphlets appeared first on Reason.com.

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I do a lot of legal history research in my academic work, often studying late 18th Century legal understandings and trying to trace back their origins. Studying the origins is particularly difficult because, when you start to look at materials from the early 18th century and before, legal reports and books are typically in Latin or Law French (the latter being a sort of weird mix of Latin, French, and Anglo-Saxon used by lawyers). The switch to English was pushed along by laws in 1650 and then 1730, and after 1730 everything seems to be in English.  But if you want to look back at the sources the late 18th Century lawyers relied on—to know not just what Blackstone said, but what Blackstone was relying on, and what what the sources Blackstone was relying on were themselves relying on, etc.—you quickly run up against the language barrier.  And of course you also run up against the broader problems of deciphering the text, and trying to understand the context of the terms and legal concepts they used.

I’ve been fascinated by how the latest generation of AI tools can help to solve these problems.  A year ago, you could ask (say) Claude for help with a legal history question, and it could fo only the basics.  It could look up what Blackstone said and summarize Blackstone.  That’s a start, but not so helpful for a researcher who is already familiar with the basics.  These days, Claude can not just read Blackstone, but identify what Blackstone cited, and try to look that up, too—and if it has access to a database that has those sources on the public web, it can read that and summarize that, too.

And of particular interest to me, you can also upload legal materials in Latin or Law French and ask the AI tool to read it, translate it, and explain it.  For example, I picked this random passage in a 16th Century legal treatise in Law French.

I recognize the word Assize, which I know from the courts of assize.  But I really have no idea what this randomly-selected text means. So I uploaded the screenshot to Claude (Opus 4.6, extended), and I asked Claude to read it, state it in the original, translate it, and explain what is going on.

Here’s what I received back:

Pretty cool, I think!

Of course, there’s a problem that I don’t know if what Claude reported back is actually accurate. AI hallucinates, and AI tools are trained to seem super helpful and confident, even if the basis for offered conclusions are weak or nonexistent.  If you need to actually rely on what AI tells you about a Law French passage, you need to come up with ways of making reasonably sure what it’s telling you is right.  At the very least you could push back, asking the tool if it sure and if there are other translations and explanations.  You could refresh Claude and try again, or try a different AI tool. If the stakes are really high, you could try to find a legal history expert on the topic who might be able to tell you if this is right. But as a first cut, just to get a basic idea of what is going on in the passage, it seems pretty useful.

I don’t know how many people will be rushing to use AI to understand passages in Law French. But I would think these sorts of tools make it easier for lawyers and law clerks to do research into 18th Century legal understandings that are relevant to originalist approaches to constitutional interpretation. To the extent that the constitutional text adopts pre-existing legal concepts, as it does with much of the Bill of Rights, you need to understand that pre-existing legal concept.   As I mentioned above—and it’s worth repeating—AI tools can hallucinate, and they say all sorts of things with supreme confidence that may be just completely wrong.  So you need to be really super careful in using AI to help.  But as a way to get a sense of sources, and to make a first cut at what a particular ancient text means, AI should probably be at least one of the tools in the toolkit.

The post How AI Tools Can Help With Legal History Research appeared first on Reason.com.

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Happy Tuesday, and welcome to another edition of Rent Free. This week’s newsletter includes stories on:

• The Trump administration’s new executive order aimed at driving down housing construction costs.
• The latest on the effective ban on build-to-rent housing moving through Congress.
• Florida expanding one of the country’s most successful zoning reforms.

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Trump Issues Housing Affordability Executive Order

This past Friday, President Donald Trump issued an executive order aimed at reducing barriers to affordable housing construction.

“Layers of unnecessary regulatory barriers, slow permitting processes, and onerous mandates at all levels of government have delayed construction, restricted development, and driven up the costs of new housing….It is the policy of my Administration to reduce regulatory barriers to building homes and to steward taxpayer dollars in a manner that promotes housing affordability,” reads the president’s order.

The order calls on federal agencies to pare back federal energy efficiency mandates and environmental regulations, streamline environmental and historic preservation processes where they intersect with housing and housing-serving infrastructure, and publish local and state best regulatory practices.

In contrast to some of the housing supply orders and white papers issued by the Biden administration, there’s little to no mention of enabling more infill development in “high-opportunity” areas.

The general thrust of the order is to pare back federal rules that drive up the cost and delivery time of new single-family, greenfield (or, if you prefer, sprawl) development, particularly environmental rules and permitting requirements.

“These are areas that the federal government actually controls and which rolling back can actually have a material impact on housing costs,” says the Manhattan Institute’s Judge Glock, highlighting the administration’s proposed streamlining of stormwater regulations as a potential major source of construction cost savings.

Through the Environmental Protection Agency (EPA), the federal government requires developments that disturb an acre or more of land to obtain construction permits that come with a long list of regulations intended to reduce pollution from stormwater runoff.

The regulations themselves, which can include requirements for detention ponds and silt fences, raise construction costs.

The EPA’s stormwater requirements have also encouraged local governments to impose limits on “impervious cover,” which can raise development costs more by requiring builders to consume more land.

Trump’s executive order directs the EPA to streamline its stormwater rules. It also calls for paring back Clean Water Act rules about discharges into alleged “wetlands,” over which there’s already been endless litigation and multiple Supreme Court decisions.

The order also directs the administration to reform or remove energy-efficiency and water-use requirements for federally financed manufactured housing projects that were adopted by the Biden administration.

A U.S. district court in Texas already stayed enforcement of those rules earlier this month, in a lawsuit brought by several Republican states and housing associations.

The Trump administration’s executive order also calls for executive agencies to create more categorical exemptions to the National Environmental Policy Act (NEPA) for both housing projects and infrastructure such as roads and sewer systems that service new housing.

NEPA can require lengthy yearslong studies of federally funded projects or federal approvals of private projects. Critics have long charged that NEPA studies do little to protect the environment but do add enormous time and expense to projects that fall under the scope of the law.

Similarly, Trump’s executive order calls for streamlining historical preservation reviews, which likewise can add considerable time to federally approved or funded projects.

How much the executive branch can pare back NEPA and historic preservation unilaterally remains to be seen. Presidential administrations are fond of issuing NEPA review page and time limits, only to be sued and have their streamlining thrown out by the courts.

The executive order also includes a directive to federal housing officials to publish best practices to promote housing affordability. It gives examples of by-right approval of single-family housing, allowing private inspections, and the elimination of green building practices and urban growth boundaries.

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Senate Overwhelmingly Approves Housing Bill With Ban on Large Investor Home Purchases

This past Thursday, the U.S. Senate, in an overwhelming 89–10 vote, approved a housing bill that includes a number of pro-supply reforms and, most controversially, a ban on large investor purchases of single-family homes that will cost new housing supply.

As written, the bill prohibits large investors, defined as owning 350 or more single-family homes, from purchasing new single-family properties, save for a few narrow exceptions.

Those exceptions include build-to-rent housing: single-family communities purpose-built as rental housing. Nevertheless, the Senate bill would require large investors to sell any build-to-rent properties after seven years to individual owners.

Build-to-rent single-family housing has gone from a negligible part of the market to comprising anywhere from 3–10 percent of new single-family homes built each year in the country.

Industry advocates argue that any requirement that large investors offload their build-to-rent properties to individual owners amounts to an effective ban.

Build-to-rent developments are typically built on a single legal parcel of land and feature shared amenities, all of which make them more similar to an apartment building than a typical for-sale subdivision and thus very difficult, if not impossible, to divide into single-family properties.

A recent research brief from the American Enterprise Institute (AEI) found that 170,191 build-to-rent units were located on just 1,258 properties.

Because local lot division processes are often lengthy, expensive, and discretionary, many investors will likely just skip building build-to-rent housing altogether.

It’s not immediately clear how many new homes will be lost to the Senate’s forced divestiture requirements.

There are currently 160,000 build-to-rent homes in the development pipeline. Some percentage of those units will plausibly be reconceived as build-to-sell housing.

But the aforementioned AEI research brief argues it will not be a one-to-one conversion of build-to-rent to build-to-sell units, as build-to-rent developments appear better able to receive approvals from local land-use authorities.

The Senate bill exempts manufactured housing built to federal building standards from the forced divestiture requirements, while also easing federal regulations on manufactured housing.

That could enable some build-to-rent projects to go forward using newly deregulated manufactured housing construction methods. (That is to say, the homes would be built in factories as opposed to on-site.)

How many depends on how valuable the changes to federal manufactured housing regulations are, how able these units are to replace traditional site-built construction, and how much capacity the manufactured housing sector—which is responsible for 9 percent of new single-family home starts—has to meet the demands of the build-to-rent sector.

Certainly, less housing will be built under the Senate’s current bill than under a different piece of legislation that deregulates manufactured housing and does not impose additional restrictions on build-to-rent communities or large investors.

The 10 “no” votes on the bill in the Senate were all Republicans, save for Sen. Brian Schatz (D–Hawaii), who has long been an advocate for federal policies to increase housing supply. He said on the Senate floor that his “no” vote was motivated by the threat the bill posed to build-to-rent housing.

What happens to the Senate’s bill now that it returns to the House is an open question.

Rep. French Hill (R–Ark.), who wrote the original bill that the Senate amended to include the effective build-to-rent ban, said that the House will want to make its own changes to the Senate legislation.

“It is critical we get the details right and mitigate some of the concerns raised by House members with the Senate bill,” Hill said in an emailed press release.

Indeed, some House members have expressed opposition to the large investor restrictions, as well as the Senate’s removal of community banking regulatory changes prized by the House. The Senate bill also includes new federal grant programs that some Republican House members do not like.

All of that could hold up the bill, particularly in an election year, or lead to major amendments to it.

On the flip side, the White House has consistently said that it supports the Senate bill as is and is reportedly urging the House to give its approval to the legislation.

Trump has repeatedly called on Congress to ban large investor purchases of homes. He issued an executive order to that effect back in January.

That order did include an explicit carve-out for build-to-rent housing. But housing advocates say the White House is happy with the Senate bill and not interested in pushing for greater protections for build-to-rent housing.

Time will tell if the administration’s stance is enough to convince House Republicans to pass a housing supply bill that includes a major anti-supply component.

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Florida Lives Even More Local

Florida’s Live Local Act, a law passed in 2023 to enable multifamily development in commercial and industrial areas, has proved a surprise success.

Since its passage, the Florida Housing Coalition estimates that projects totaling some 55,000 units have made use of the law’s zoning relief and tax breaks. That makes it one of the most productive zoning reforms ever passed.

While surprisingly successful zoning reforms can often lead legislatures to backtrack, Florida lawmakers are instead expanding the Live Local Act’s regulatory streamlining.

A bill passed by the Legislature last week would allow religious institutions to build Live Local projects on their land, provided the land has hosted a public house of worship for the past 10 years, and that the house of worship continues to operate following the new development.

The bill also places more restrictions on the ability of counties to apply height limits and setback requirements to Live Local projects.

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Quick Links

• The New Hampshire House has approved a bill that allows home day care businesses to operate by-right in residential zones. Child care facilities are also allowed to operate by-right in commercial areas under the newly passed bill.
• The New York Legislature is considering a long list of property tax increases and “mansion tax” surcharges to help cover New York City’s budget gap.
• An economic analysis of Massachusetts’ rent control ballot initiative finds that the proposed law could wipe out $300 billion in property values.
• Democratic attorneys general sue the U.S. Department of Housing and Urban Development over its rollback of some anti-discrimination enforcement.

The post Trump Cuts Red Tape appeared first on Reason.com.

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When President Donald Trump implemented his Liberation Day tariffs last spring, the president’s senior adviser, Peter Navarro, suggested that these tariffs could generate an additional $700 billion a year.

At the time, I estimated that a more realistic estimate of the maximum additional revenue these tariffs could reap was likely less than $300 billion, which would barely fund two weeks of federal government spending.

Almost a year later, customs duties revenue data suggest that prediction was far closer to reality than what the administration was promising. 

Tariff revenues did tick up during this 11-month period, averaging just under $27 billion a month from April 2025 through February 2026, or roughly $296 billion in cumulative tariff revenues since Liberation Day. 

Using the average monthly revenue figure to estimate the revenue of the 12th (forthcoming) month, we can estimate that about $323 billion would have been raised over the entire year. 

However, this figure isn’t all “additional” tariff revenue raised by the Liberation Day tariffs. In the year leading up to April 2025, the treasury already collected about $83 billion in customs duties. 

So Trump’s tariffs led to about $240 billion in additional revenue within 12 months. This equates to enough revenue to fund an additional 12 days of federal government spending. 

If we were to use a slightly more generous measure of monthly tariff revenue by annualizing only the monthly collections when the effective tariff rate was 10 percent or more, then we get about $264 billion, or enough to fund about 13 additional days of government spending. 

What’s more, the negative economic impact of tariffs and broader trade uncertainty means that economic output was lower over the last year than it would have been absent tariffs. The Yale Budget Lab estimated that this dynamic effect reduces tariff revenues by at least $41 billion this year. 

Adjusted for these feedback effects, additional tariff revenue covers only 10 or 11 days of government spending, rather than 12 or 13.

Compounding this, the Supreme Court has since ruled that the administration lacked legal authority to impose these tariffs under the International Emergency Economic Powers Act, raising the possibility that some portion of the revenue collected could ultimately be subject to refund claims.

The past year provides a useful reality check on claims that tariffs can meaningfully improve the federal government’s fiscal position. The lesson is straightforward: Tariffs cannot solve the federal government’s fiscal imbalance. If policymakers are serious about addressing the deficit, they will have to look beyond protectionist taxes and confront what’s really driving our deficits, namely out of control growth in entitlement spending.

The post Peter Navarro Promised $700 Billion in Tariff Revenue. The Actual Amount Was About $240 Billion. appeared first on Reason.com.

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