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4/28/2015: Obergefell v. Hodges argued.

The post Today in Supreme Court History: April 28, 2015 appeared first on Reason.com.

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Vice President J.D. Vance and outgoing Department of Homeland Security (DHS) Secretary Kristi Noem both said Renée Good, an activist shot three times in her car by a federal immigration officer, was engaged in “domestic terrorism.” Two weeks later, after officers shot Alex Pretti at least 10 times, White House deputy chief of staff Stephen Miller called Pretti “a domestic terrorist [who] tried to assassinate federal law enforcement.”

And in October 2025, a Border Patrol officer shot Marimar Martinez five times in her car; unlike Good and Pretti, Martinez survived. DHS deemed her a “domestic terrorist” who had “rammed” the officers’ vehicle while it was “boxed in.” Even after Martinez demonstrated in court that officers had sideswiped her before opening fire, DHS refused to retract its characterization of her as a terrorist.

Despite officials’ proclivity for the phrase, there is no federal statute to charge someone with domestic terrorism. Federal law does define domestic terrorism—criminal acts “dangerous to human life,” intended to intimidate civilians or influence government policy. But as the FBI noted in a November 2020 memo, “This is a definitional statute, not a charging statute.” The bureau prefers the term domestic violent extremism “because the underlying ideology itself and the advocacy of such beliefs is not prohibited by US law.”

Federal sentencing guidelines already allow for an “enhanced penalty….if the offense involves international or domestic terrorism,” and it’s easy to see its potential for abuse. When leaders of the far-right Proud Boys were convicted for organizing the U.S. Capitol riot on January 6, 2021, prosecutors alleged the mob violence that day was “no different” than blowing up a building.

U.S. District Judge Timothy J. Kelly disagreed but still felt “the constitutional moment we were in that day is something that is so sensitive that it deserves a significant sentence.” Kelly applied terrorism enhancements and sentenced them each to over a decade in prison. (All participants received a presidential pardon in 2025.)

Over the past 25 years, we’ve learned the government won’t waste an opportunity to increase its power in the name of fighting “terror,” whether at home or abroad. The Trump administration already claims the authority to label people “domestic terrorists” based on such perceived offenses as “anti-Americanism, anti-capitalism, and anti-Christianity.” The FBI cited January 6 as justification to dramatically increase surveillance of American citizens who opposed then-President Joe Biden. We should look skeptically at any further expansion of power that will supposedly fight “terror.”

The post Why the Federal Government Can't Charge Anyone With 'Domestic Terrorism' appeared first on Reason.com.

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A Miami–Dade County sheriff’s deputy threatened to arrest a local TV reporter for asking Mayor Daniella Levine Cava a question at a beach and bay cleanup event in a public park. Jeff Weinsier of WPLG Local 10 News wanted to ask the mayor about a series of electric buses that cost taxpayers more than $60 million were taken out of service because they kept breaking down. But as Weinsier approached the mayor, Deputy Lester Aguilar stepped in and pushed him, saying if he didn’t back off, “You will go to jail.” Weinsier said he approached the mayor at the event because her office had refused to respond to interview requests about the buses.

The post Brickbat: Miami Vice appeared first on Reason.com.

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The post Open Thread appeared first on Reason.com.

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Yesterday, the Supreme Court heard oral argument in Monsanto Co. v. Durnell. The facts of this case are likely not of concern to most constitutional law scholars, but the dispute is of serious concern to the business community. The plaintiff sued Monsanto (which is owned by Bayer) for harms caused by the Roundup herbicide. (Don’t call it a pesticide, as Justice Thomas–a former Monsanto employee–reminded us.) The jury awarded $1.25 million in compensatory damages based on a failure to warn about possible harms. Bayer counters that the EPA did not require those additional warnings, so the state tort claims is preempted.

Going into the argument, I struggled to count to five votes for the plaintiff.  Preemption is an area where the Court’s conservatives do not line up neatly. Justice Thomas, the Court’s most committed federalist, has often been skeptical of federal preemption. See his opinion in Hencely just last week. I though Justice Gorsuch would be in a similar spot. I was fairly certain Justice Kavanaugh would be troubled by the possible economic effects on companies like Monsanto, and would favor broad federal preemption. I suspected that Chief Justice Roberts would fall in a similar camp. Same for Justice Alito. I wasn’t sure where Justice Barrett would be. It It was conceivable that Justice Kagan would favor broad federal preemption to promote uniformity, but I was doubtful.

Having now listened to the oral arguments, I will stand by my prediction. Everyone lined up about where I expected. Despite Paul Clement’s best efforts, I’m not sure where Monsanto finds five votes. Indeed, the Justices seemed to have very few questions for Ashley Keller, counsel for the Durnell. Perhaps they were a bit tired, as the argument in Chartrie stretched nearly two hours, but Keller was able to talk uninterrupted for several minutes. And with about ten minutes remaining, and no further questions coming, Keller sat down. As a general rule, the side that gets the most questions is more likely to lose. Then again, the Justices may have been spent after the Fourth Amendment case.

Justice Alito was entirely silent during the argument except when he perked up during an exchange about Loper Bright. I flagged this issue in a prior post. Everyone agrees that Congress can preempt state law through a statute. But what about when an agency purports to preempt a state law through regulations? Under the Chevron regime, the agency would likely get deference when its regulation interprets a complex (ambiguous) statutory regime. But after Loper Bright, does that agency still receive deference? And if the agency does not receive deference, can a state court, in a tort suit, interpret the federal statute to determine if there is federal preemption? In other words, who gets to interpret the statute: the agency or the court. Who decides? Loper Bright would seem to suggest that courts decide legal questions, rather than agencies. Or does Loper Bright not envision a role for state courts to decide the preemptive effect of federal regulations?

Consider this colloquy:

JUSTICE KAVANAUGH: So the Solicitor General was wrong about that?

MR. KELLER: Yeah. Very respectfully, yes, he is. And you don’t give deference to the Solicitor General in interpreting FIFRA. You look at the words for yourself. So, yes, the United States is wrong about that. Then they go to the regulations. They quickly jump to the regulations. What’s the source of authority for those regulations? If you ask the EPA the source of authority for those regulations, I kid you not, it’s 136 to 136y. They cite the entire statute. That’s their source of authority. If you cite the entire statute as your source of authority, that’s a pretty good indication that you don’t really have a good textual source of authority. Again, maybe in the Chevron regime, we might have looked past that, but we’re in the Loper Bright regime. I think you need affirmative text for what they can regulate.

JUSTICE ALITO: Well, Mr. Keller did Loper Bright say one word about preemption?

MR. KELLER: No, it doesn’t, but I –

JUSTICE ALITO: Loper Bright is about the relationship between two branches of the federal government, right?

MR. KELLER: Well, I –I agree with that. I think it is always a separation of powers issue if you’re going to ask whether the executive branch gets to pronounce what the law is instead of the judiciary. And then, of course, that’s relevant in the preemption context.

JUSTICE ALITO: Why is it relevant? Preemption involves the relationship between the federal government and the states.

What follows is a fascinating exchange about precedent. Do the members that joined Loper Bright have a special insight about how that precedent should be extended in some other context? Or can a new majority of the Court then decide to extend Loper Bright, even if some of the members of the majority (including Justice Alito) disagree.

MR. KELLER: It –it does, and under the Supremacy Clause, federal law is the supreme law of the land, so what counts as federal law is relevant to every preemption inquiry. I –I would be surprised if Loper Bright were somehow cabined and not applied in preemption cases where a regulation is doing the work to create preemption. You have the separation of powers problem plus a federalism problem because you’re letting the executive, not Congress, preempt valid state law. That should only be done pursuant to a valid delegation.

JUSTICE ALITO: Well, your –your prescience about where the law might go is -is interesting, but it’s not there now, is it?

MR. KELLER: Well, I –I think that that’s what you meant in Loper Bright. You all know better than I do what you really meant in Loper Bright, but I think a rule that says the Loper Bright regime is cabined to separation of powers cases and doesn’t apply in preemption cases I don’t think makes analytical sense. You could draw that line. You’ve drawn lines before that maybe previously didn’t occur to me that subsequently emerged. So I’m not going to tell you you couldn’t do it.

In other words, the Court could not logically exclude preemption cases from the Loper Bright framework.

JUSTICE ALITO: You think that would be an irrational line to draw?

MR. KELLER: I do, yes, because Loper Bright is asking the same sort of question, who decides what the law is? Is it the judiciary or is it the executive branch? That is obviously relevant to preemption questions when we’re trying to figure out what the law of the United States says.

Who decides, as Judge Sutton would ask. This argument is tailor made for Justice Gorsuch. Again, if Thomas and Gorsuch rule for the plaintiffs, it will be tough to count to five. Then again, Justice Kagan might be an unlikely vote for Monsanto. She continued this exchange after Justice Alito finished:

JUSTICE KAGAN: Well, Loper Bright didn’t suggest that Congress couldn’t delegate power to agencies.

MR. KELLER: I agree.

JUSTICE KAGAN: And it seems here as though there’s a pretty big delegation of power to EPA to figure all these matters out.

MR. KELLER: I agree there is an important set of delegated powers to EPA. And there are many that we haven’t discussed that I do think would create labeling requirements. But the registration provision of 136a, which is where he and the government hang their hats, I do not think is this broad delegation to ultimately decide whether a pesticide is misbranded or not. I agree with you, though, there are express delegations of authority that I do think could create labeling requirements. I can give you 136w(c)(2).

JUSTICE KAGAN: Well, I mean, if we just sort of think about this scheme, right, it says to EPA you have to do this big study, you have to weigh costs and benefits, you have to figure out on the basis of that whether to register a pesticide, you have to do that again every 15 years, you have to keep track of things in the interim, you have to, you know, take seriously further information that industry gives you after registration.There just seems like a lot of stuff that the EPA does and is told by Congress to do to ensure the –the appropriateness of a particular pesticide.

MR. KELLER: I completely agree with you. FIFRA is structured in a way to maximally protect the consumer. So selling an unregistered pesticide is the first offense in 136j. But you also can’t sell a misbranded pesticide.

Justice Barrett had very few questions. I don’t know where she falls on this Loper Bright issue.

There would be some irony if the business community succeeded in Chevron, only to have that doctrine push back against federal preemption. I am not at all convinced Loper Bright has made an actual difference to the outcome of business cases, but narrowing the scope of federal preemption would make a huge difference.

The post <i>Loper Bright</i> and Preemption appeared first on Reason.com.

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In response to my two-part series (1, 2) on what to do with AI-generated scholarship, my good friend and former colleague Daniel Solove writes in with a question/comment:

What’s the difference between you here and a judge?  A judge directs legal opinions and puts their name on them, so aren’t they doing the same thing, just with a human writer vs. AI?

Claude is just a law clerk.

Fair questions.  I disagree, because I think the norms of authorship for legal opinions and scholarship are different.

Judicial opinions are exercises of formal government power, and the fact that one judge signs it is just a convention.  Say there’s a federal court of appeals case heard by a three-judge panel of Judge Ay, Judge Bee, and Judge Cee.  If the panel hands down a published ruling, what makes the document important is that the formalities are met.  It’s a ruling in the case issued by a three-judge panel authorized to issue it that is binding authority in the circuit. It really does’t matter who formally signed the ruling. It’s equally important as precedent whether it is signed by Judge Ay, Bee, or Cee, or whether it is unsigned and issued per curiam.

Plus, we don’t think it’s really just the judge who signed the opinion whose view is reflected within it. We understand that an opinion signed by Judge Cee was really the collective view of all three judges. Perhaps it’s more that of Judge Cee than the other judges, but it’s something that Judges Ay and Bee could go along with, too.

In that setting, where individual authorship really doesn’t matter and the document is important because of the formalities, it makes sense that we wouldn’t have a law clerk’s signature on an opinion they helped draft (or, in some cases, drafted entirely).  The opinion is an institutional message, and it’s the institution that matters. The names on the document don’t matter much, but they understandably reflect those in the institutions who have the power over the message.

I see scholarly norms as different, at least when it comes to traditional law review articles.  With scholarship, the scholar is saying, this is my view. I see the norms of scholarship as more like that of a soloist at a jazz concert.  At a jazz concert, the solo is the musician’s time to make a statement.  If a tenor saxophonist gets up on the bandstand to begin their solo and instead pulls out a phone and hits “play,” playing back a recorded solo performed by John Coltrane, we wouldn’t say that the soloist is just as fantastic as John Coltrane. We wouldn’t celebrate the soloist for expertly finding that Coltrane solo and skillfully hitting “play” at the right time.  Instead, we would feel cheated.  The soloist was supposed to make a statement, and instead he made no statement of his own at all.

I get that such norms can be contingent.  What kinds of expression are valuable for their individuality, and which kinds are not, is something to debate rather than to logically resolve.  And at some point, the selection of others’ works can become a kind of statement of its own.  But when it comes to AI, or at least my own AI-generated scholarship, I see AI as doing more than just executing my formal directives.  So I see the scholarly norms as different, and I don’t see AI as “just a law clerk.”

Or so it seems to me. Curious what others think on this.

The post Why AI Isn't Like a Law Clerk appeared first on Reason.com.

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This week, editors Peter Suderman, Katherine Mangu-Ward, Nick Gillespie, and Matt Welch discuss the attempted shooting at the White House Correspondents’ Dinner and the media coverage that followed. They examine the shooter’s manifesto, why it struck some observers as uncomfortably normal, and what that says about the mainstreaming of extreme political rhetoric. The panel also considers President Donald Trump’s renewed push to build his new White House ballroom in the aftermath of the attack.

Next, the editors turn to New York Mayor Zohran Mamdani’s plan for city-run grocery stores, whether government-backed supermarkets can fairly compete with private businesses, and why critics may have helped turn a campaign talking point into actual policy. Then, the panel discusses reports that the Trump administration is considering a bailout that could leave the federal government owning most of Spirit Airlines. The panel then turns to Iran, where uncertain diplomacy and mixed signals over the Strait of Hormuz suggest the conflict remains far from resolved. Finally, a listener asks what the libertarian view of redistricting should be and whether fair maps are ever truly possible.

0:00—The White House Correspondents’ Dinner shooting

18:49—Mamdani’s city-run grocery store plan

27:42—Spirit Airlines bailout

37:06—Listener question on redistricting

43:23—What is the endgame in Iran?

48:58—Weekly cultural recommendations

Mentioned in the podcast:

“Shots Fired,” by Eric Boehm

“What If We Acted Like Political Violence Was a Problem?” by Matt Welch

“Prediction: 2024 Will See Deadly Political Violence in the Streets,” by Matt Welch

“Charlie Kirk and America’s History With Political Violence,” by Nick Gillespie and Matt Welch

“Politically Motivated Violence Is a Small Threat,” by Alex Nowrasteh

“Hasan Piker and Jia Tolentino: The Leftists Who Think Stealing Is Great,” by Robby Soave

“With His Grandiose White House Ballroom Plan, Trump Again Asserts the Power To Do As He Pleases,” by Jacob Sullum

“Mamdani’s Fix for Food Deserts: Opening a $30 Million City-Owned Grocery Store Near Other Grocery Stores,” by Megan O’Rourke

“Zohran Mamdani’s $70 Million Grocery Gamble,” by C. Jarrett Dieterle

“Biden Killed the Spirit Airlines Merger. Now Trump Wants Taxpayers To Save the Company,” by Joe Lancaster

“Spirit Airlines Didn’t Die Because Biden Blocked the JetBlue Merger,” by Gary Leff

“The Spirit Airline Is a Bad Idea Built on a Worse Precedent,” by Veronique de Rugy and Gary Leff

“Why Redistricting Reform Goes Off the Rails,” by Walter Olson

“A Pointless War,” by Matthew Petti

“Neither War nor Peace With Iran,” by Matthew Petti

“My Books, Essay #5,” by Arnold Kling

“Michael Is a Brutally Dull Biopic With Nothing to Say About Michael Jackson,” by Peter Suderman

The post The Shooter's Manifesto Was Uncomfortably Normal appeared first on Reason.com.

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