Tag: hit&run

Earlier today I wrote about the New York Times expose concerning the grading of a student seminar paper at the University of Florida. I’ve now had a chance to read the paper.

First, from a technical perspective, the paper is very well done. The writing is easy to understand. The footnotes are expertly bluebooked. The sentences are bit too long for my taste, but many law professors like long sentences with many clauses. I don’t have the rubric, but I would imagine the student would receive full credit, or near-full-credit for these technical elements.

Second, the author also presents a fairly detailed analysis of modern originalist scholarship. He accurately describes the views of McGinnis and Rappaport, Randy Barnett, and Adrien Vermeule. The author brings in discussion of the Federalist Papers, records from the Constitutional Convention, and early congressional debates over slavery. Again, I don’t have the rubric, but I would imagine the student would receive full credit, or near-full-credit for the literature/background information section.

Third, I’ll turn to the substance. The basic argument is that under what the author describes as National Constitutionalism, the Constitution should be understood to protect the sovereignty of “the People.” And, following Verdugo-Urquidez and Heller, “the People” are Americans, and not aliens. But the author doesn’t stop there. Citing records from the early republic, he concludes that the founding generation sought to discourage immigration from non-White countries. He quotes Professors Gabriel Chin and Paul Finkelman who wrote, “whether or not they supported slavery, a majority of [the Founders] unambiguously conceived of the United States as a White country.” (I’m not sure anyone would disagree with this point.)

This analysis leads the author to three conclusions. First, the author would read Article IV, Section 4 to permit the states to play a role to prevent the “invasion” of migrants. (This section more-or-less tracks Judge Ho’s concurrence, and arguments advanced by the Trump DOJ.) Second, the author would allow the courts to strictly scrutinize immigration policies that would “dissolve the people and elect another.” Third, the author would subject discrimination against aliens to mere rational basis review. He would also overrule Plyler v. Doe and Wong Kim Ark. The author recognizes that his positions are in tension with the Fourteenth and Fifteenth Amendments. But he cites the longstanding debates about whether these amendments were properly ratified, and whether they are substantive unconstitutional. If these amendments were not ratified, then we are left with the Constitution without the Reconstruction Amendments.

Here is my assessment. The article is laid out backwards. At the very end, the author contends that the Fourteenth and Fifteenth Amendments may have never been properly ratified. And his conception of National Constitutionalism is premised on those two amendments never changing the constitutional order. Or alternatively, he contends that the Fourteenth and Fifteenth Amendment should have no bearing on how immigration policy is understood. But if these points are wrong, then many of his points would not follow.

Were I to have advised the student on the paper, I would have had him reverse the entire theme. At the outset, the author would have the reader assume–at least for purposes of a thought experiment–that the Reconstruction Amendments were never ratified. Then, the reader would imagine that Congress adopted twentieth-century style open immigration laws. Would those laws violate the original Constitution? If the federal government failed to stop the flow of migrants, would the states then have the power under Article IV to repel the invasion? Could courts declare those laws as unconstitutional?

The author does repeatedly refer to a preference for White people, and blocking non-White immigrants. At least in this paper, the Author frames this preference in terms of how the Framers would have understood immigration–I think he accurately describes that history. Now, with the benefit of hindsight, we know that the author was in fact also articulating his own policy preferences. But based on the paper, the author was presenting this thesis as a matter of scholarship.

Where does this leave us? Is this the student note I’ve ever read? No. Was it executed well from a technical perspective? Yes. Was it thoroughly researched? Yes. Did it present a coherent thesis based on history? Yes. Was it well organized? Not really. The article under-developed the core obstacle–the ratification of the Reconstruction Amendments–and doesn’t explain how the Supreme Court would overrule certain landmark precedents. But these sorts of shortcomings are typical of law student papers. What would I give the paper, having never met the student or heard his presentation? Probably a B+ or maybe an A- if I was feeling generous. Then again, I didn’t read any of the other papers in the class, so it is tough to compare. And remember, under the syllabus, the final paper is worth only 65% of the final score, so we do not know what other elements the student contributed. A final grade of A or A+ is well within the bounds of reasonable grading.

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Yesterday, US warplanes struck three Iranian nuclear sites. President Trump did not make any effort to get advance congressional authorization for this action, or even to consult with Congress. It is, therefore, a violation of both the Constitution and the 1973 War Powers Act. But it is possible this will turn out to be a rare instance where one of Trump’s illegal actions has beneficial consequences.

Michael Ramsey, prominent conservative legal scholar and war powers expert has an excellent explanation of why Trump’s air strikes violate the Constitution:

My longstanding view, developed in a series of articles, is that the Constitution’s original meaning requires Congress to approve any material initiation of military hostilities by the United States.  As explained at length in Textualism and War Powers, that conclusion rests principally on two points:

(1) the original meaning of “declare” war includes both formal announcements of the initiation of a state of war and the use of military force in a way that creates a state of war.  In the eighteenth-century sense, war could be “declared” by words or by actions (and indeed, wars in the eighteenth century and earlier were often not begun with formal announcements but simply by launching military action — a point noted by Hamilton in The Federalist).

As a result, the Constitution’s assignment to Congress of the power to “declare” war gave Congress power over the decision to go to war, whether through formal announcement or by the use of force.  A wide range of leading members of the founding generation — including Washington, Hamilton, Madison, and James Wilson — described Congress’ power to declare war as exclusive (that is, that it was a power of Congress and therefore not a power of the President).

(2) the original meaning of “war” broadly included most uses of sovereign military force, including ones with limited scope and objectives.  An early Supreme Court case, Bas v. Tingy, recognized that there could be general war or limited war — both of which came within Congress’ war power.  The Bas case involved the so-called “Quasi-War” between the U.S. and France in the late 1790s, which consisted only of naval engagements.  Notably, essentially everyone at the time — including advocates of presidential power such as Hamilton and President John Adams — thought the U.S. actions in the Quasi-War needed to be authorized by Congress (which they were).

Applied to the U.S. airstrikes on Iran, this reading seems to require congressional approval.  The U.S. strikes constitute war in the original constitutional sense of the term: they are a use of force against a foreign sovereign adversary to compel an outcome.  Although their objectives may be limited to forcing Iran to end its nuclear program, such a limited military objective still constitutes a war (albeit a limited war).  And initiation of war, whether general or limited, and whether done by formal announcement or simply by the use of force, requires Congress’ approval under the Constitution’s declare war clause.

As Ramsey notes, there is an argument that relatively small-scale military actions don’t qualify as wars and therefore are exempt from the requirement of congressional authorization. Even if that argument is correct in some situations, it doesn’t apply here. The objective of these strikes – dismantling Iran’s nuclear program, and the potential scale of the fighting (Iran is a major regional power and has substantial retaliatory capabilities) differentiates this situation from very narrow one-off strikes, such as Ronald Reagan’s 1986 air strike against Libya.

Ramsey also has a compelling response to the argument that this action is legally justified by Iran’s earlier support of terrorist attacks.

Unlike many of Trump’s egregious abuses of emergency powers, this action is far from unprecedented. Previous presidents have also violated the Constitution in this way. Most notably, as Ramsey points out, Barack Obama, in 2011, waged a lengthy air campaign against Libya, intended to help overthrow that country’s dictator, Moammar Gaddafi. For those keeping score, I condemned Obama’s action and repeatedly criticized him for violating the Constitution and the War Powers Act (see also here). But Obama’s illegal actions don’t justify Trump’s (and vice versa).

Ramsey’s analysis is based on originalism. He suggests there might be a “living constitution” case for justifying such actions, based on “the speed of modern warfare and the exigencies of terrorism and potential nuclear attack.” I disagree. Modern warfare is indeed faster than that of the eighteenth century. But Congress can move faster, too. Under modern conditions, Congress can be swiftly convened even if it is not in session (which, today, it almost always is). In this instance, Trump had ample opportunity to seek congressional authorization. He just chose not to.

In addition to violating the Constitution, the air strikes also violate the War Powers Act. Section 3 of that legislation requires that “[t]he President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” There was no such advance consultation here, even though it was obviously “possible” to do it (US strikes against Iran have been under consideration since Israel began its air campaign on June 13, if not before).

The War Powers Act also requires withdrawal of US forces from “hostilities” after 90 days, unless Congress has authorized further involvement. Obama ultimately violated this requirement in the Libya conflict; we’ll see if Trump ends up doing so here.

Legal scholars and commentators have to be open to the possibility that an illegal action might nonetheless have beneficial results. Like Michael Ramsey, I acknowledge that could be the case here.

If the US air strikes (combined with earlier and ongoing Israeli actions) really do severely damage Iran’s nuclear program, that would be a good thing. If they succeed in overthrowing Iran’s brutal regime, that would be better still. Since coming to power in 1979, Iran’s theocratic dictatorship has sponsored numerous terrorist attacks (including some against the US), supported brutal terrorist groups around the Middle East (including Hamas, Hezbollah, and the Houthis), and brutally oppressed its own people, including by repressing women and minority ethnic and religious groups. Almost any plausible alternative government would be better. There is no contradiction between recognizing all of that, while also condemning Trump’s many abuses of power and authoritarian tendencies.

I left the field of security studies many years ago, and therefore must be cognizant of the limits of my expertise. Thus, I will not try to give any definitive assessment of the policy merits of this campaign. I will limit myself to just a few tentative points.

First, war is inherently dynamic. What the great German military theorist Carl von Clausewitz called “friction” is ubiquitous, making prediction difficult. As he also put it, in On War, “everything in war is very simple, but the simplest thing is difficult.” Much depends on how Iran reacts to these strikes, and how the US and Israel respond in turn.

Second, I have little faith in this administration’s ability to conduct any prolonged conflict competently. Among other things, Pete Hegseth is not a competent secretary of defense, and Tulsi Gabbard is not a competent head of the intelligence community. Trump himself is notorious for his ignorance and poor judgment. That doesn’t guarantee a bad outcome. But it certainly reduces the odds of success.

Finally, even if the military action here turns out to be successful, waging another war without proper congressional authorization is still a dangerous precedent. There is good reason for that constitutional requirement, and we eroded it at our peril. See my 2021 Washington Post article on this subject, for some of the reasons why:

If such a consensus is absent, it is usually best to avoid the conflict entirely. The failure of Obama’s 2011 military intervention in Libya, — he called the lack of planning for the aftermath of that conflict his “worst mistake” as president — was partly caused by his decision to forgo building the necessary political consensus for congressional authorization.

Although U.S. airstrikes against Libya lasted for some seven months, and helped bring about the overthrow of the regime of Libyan dictator Moammar Gaddafi, the Obama administration claimed there was no need for congressional authorization for its actions, on the dubious ground that it did not involve a genuine war, or even “armed hostilities” under the War Powers Act. Subsequently, the country descended into chaos and ISIS-aligned groups and other dangerous organizations took over substantial parts of its territory; the United States largely walked away.

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6/22/1992: R.A.V. v. City of St. Paul is decided.

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Yesterday, Richard Fausset of the New York Times published an article “A White Nationalist Wrote a Law School Paper Promoting Racist Views. It Won Him an Award.” This article represents the worst of modern-day advocacy journalism. Fausset obviously has no idea how law school seminars are graded, and made no effort to learn. Moreover, it is pretty clear here that there is an ongoing disciplinary proceeding against the student, so no one at the law school is able to comment. Fausset uses that silence to further sully the reputation of everyone involved.

I’ll start with a personal disclosure. The course in question was co-taught by Judge John Badalamenti. You may not know Judge Badalamenti, but you are probably familiar with a case he argued: Yates v. United States (2014). Yes, Badalamenti, as a federal public defender, successfully argued the fish case before the Supreme Court. I’ve known Badalamenti since then, and have chatted with him over the years. Last fall, I spoke at the originalism conference he organized, which hosted the entire Florida Supreme Court, several members of the Eleventh Circuit, and scholars from across the ideological spectrum. I include these facts to show the high regard that Badalamenti is held in by his community.

In the Fall of 2024, Judge Badalamenti taught a seminar at the University of Florida, titled ADVANCED CONSTITUTIONAL INTERPRETATION: ORIGINALISM AND ITS FOES. The syllabus is available online. (It is not clear if Fausset ever bothered checking it.) The syllabus explains how grades are assigned:

Grades will be based 25% on class participation, 10% on reflection papers, and 65% on final papers.

The paper in question was certainly a large chunk of the final grade, but was not the only factor. As I understand the policy at the University of Florida, the awarding of a “book prize” is not discretionary. It is automatically given to the student with the highest score. And in a small seminar with roughly a dozen students, this book prize is not particularly significant. It is not like a law school wide prize. Howard Wasserman, who teaches at nearby Florida International University, explained:

To people unfamiliar with law school, the phrase “book award” sounds more prestigious than it is. Yes, Judge Badalamenti recognized merit in the paper and Damsky can put the honor on his c.v. (assuming he graduates law school). But this is not akin to a college- or university-wide honor in a paper competition.

The fact that a student received a high grade in a small seminar is not worthy of a New York Times expose. Aren’t there actual problems to write about?

On the merits, the argument that the Constitution, as originally written, favors white people stretches back to the founding, and was articulated by William Lloyd Garrison and others. I, for one, favor the Frederick Douglas and Lysander Spooner approach, but there is a scholarly debate in this area.

The entire premise of the NY Times article is that Judge Badalamenti gave a distinguished prize to an avowed white supremacist. But the timeline undermines the narrative. Again, the class concluded in December 2024. But the student’s relevant social media posts did not arise until February 2025, and the most egregious statements were made in March 2025. Does Fausset bother explaining whether Badalementi was even aware of the student’s comments during the class? No, it is all left to insinuation.

Faussett writes that Badalementi “has earned praise from both liberals and conservatives over the course of his career.” The linked article includes this passage:

The federal judge in Florida overseeing a conservative group’s lawsuit against Target’s LGBTQ+ Pride marketing is a Trump appointee and a member of the Federalist Society, which champions individual liberty and traditional values.

These facts describing US District Judge John Badalamenti, presented against a highly politicized backdrop, suggest a particular political leaning that could influence the way he will rule in the case. What people may not know is that the 49-year-old jurist has liberal supporters, came from a humble upbringing and considers political motivations incompatible with his role as a judge. But defying expectations and challenging assumptions is nothing new for him.

. . . .

The diagnosis shortly after becoming a federal judge was devastating to hear, Badalamenti said. But he found a friend and mentor in another former public defender and US district judge at the time, who later joined the Supreme Court: Justice Ketanji Brown Jackson.

“She mentored me through these difficult times and continues to be a tremendous friend and source of positivity,” Badalamenti said in a follow-up email.

Jackson, whom President Joe Biden appointed to the Supreme Court in 2022, declined to comment through a spokesperson, but the representative confirmed the justice’s friendship with Badalamenti.

Yes, Judge Badalementi is friends with KBJ. And as a federal defender, he spent his career defending people of color. A quick google search shows that he is on the board of Gentlemen’s Quest. This group helps high risk high school students gain entry to college. A quick review suggests that Judge Badalamenti is the only white person on the board. Moreover, the Senate Judiciary Committee questionnaire states that he “served as a volunteer mentor for inner city middle school students in the Tampa community.”  This is not a white supremacist. Did Fausset even ask Chat GPT about Badalamenti?

These hits on conservatives are so predictable and unfortunate. They slander a good judge who spent his career fighting for the rights of all people, all in service of an attack on originalism. Look at Fausett’s biography:

I write about conservative culture and gun issues, as well as the ongoing election interference case against former President Trump and some of his allies in Fulton County, Ga.

Faussett was asked to investigate only one side of the spectrum. This is not journalism. As Rush would say, these are activists with bylines.

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Hours after the U.S. bombed several sites in Iran, President Donald Trump called the operation a “spectacular military success.”

Whether or not that turns out to be true, the attack looks rather different as a legal matter. Trump appears to have significantly overstepped his authority, as the attack was not authorized by Congress and was not in response to an attack on American soil or American troops. The best the White House has been able to come up with so far is that Trump acted under the legal authority “afforded to him as Commander in Chief,” as a White House official told Real Clear Politics on Saturday night.

Sorry, but that simply isn’t good enough.

Under the War Powers Act of 1973, the law that governs presidential authority to order military strikes, there are three lawful ways for a commander-in-chief to order the bombing of another country. None of them appears to cover the strikes carried out on Saturday.

Here is the relevant section of the law (emphasis added): “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

The first two options provided by the law are clearly not involved here, as Congress did not declare war against Iran and did not pass an authorization for the use of military force (as was done to allow the invasion of Iraq in 2002).

The third circumstance also does not apply to Trump’s attack on Iran, which was not carried out in response to an attack on American troops and did not respond to a crisis threatening American soil. As Reason‘s Matthew Petti wrote in the wake of the attack last night: “This campaign is a war of choice. And the administration did not try to sell it to Congress—let alone the American people—before embarking on it. Instead, Trump watched Israel launch a first strike on Iran, then threatened to get involved, talking himself into a corner. Now he seems to be hoping that Iran simply won’t respond to being attacked.”

The War Powers Act does not include a clause allowing presidents to bomb other countries just because. It also—despite the fact that the law is frequently discussed in political media in these terms—does not allow a window of 48 hours for the president to do whatever he pleases before alerting Congress and seeking further authorization.

That 48-hour window (as outlined in a subsequent section of the War Powers Act) applies only if the president is engaged in a lawful use of military force—that is, if he is acting in accordance with one of the three mechanisms built into the first section of the law.

“If there’s an attack in progress on the United States (i.e., currently happening), we expect the president to respond swiftly to neutralize the attack and protect Americans—and then we will hold the president to account,” explained former Rep. Justin Amash (L–Mich.) in a post on X. “The Framers of the Constitution agreed at the debates in the federal convention of 1787 that the president should have the ‘power to repel sudden attacks’ but not the power to otherwise introduce forces into hostilities without congressional approval.”

Some current members of Congress seem to be greeting the news of Saturday’s attack with appropriate skepticism about Trump’s authority.

“This is not constitutional,” Rep. Thomas Massie (R–Ky.) wrote on X after Trump announced the attack. Massie introduced a bipartisan resolution last week to block the use of military force against Iran without congressional authorization, but the measure has not received a vote.

“While President Trump’s decision may prove just, it’s hard to conceive a rationale that’s Constitutional,” Rep. Warren Davidson (R–Ohio) wrote on X.

Some Democrats, including Reps. Alexandria Ocasio-Cortez (D–N.Y.) and Rep. Sean Casten (D–Ill.), said Trump’s decision to strike Iran without congressional authorization should be grounds for impeachment. That is one option that should be on the table as Congress considers how to respond to Trump’s ordering of this attack.

But there are unlikely to be any direct political consequences for Trump as long as House Speaker Mike Johnson (R–La.) is willing to look the other way. In a statement released on Saturday night, Johnson said the strikes were “necessary, limited, and targeted.”

Even if that is true, it would just underline the importance of getting approval from Congress. The White House could have made the case to lawmakers (and their constituents) that a strike against Iran’s nuclear facilities was necessary and in the best interest of the United States.

The War Powers Act should not be treated as a series of suggestions that can be discarded when they seem inconvenient. Indeed, limits on executive power are most essential at the moments when they are inconvenient—otherwise, they are meaningless. Trump’s attack on Iran was not just an assault on a suspected nuclear weapons program; it was yet another blow against the separation of powers and the fundamental structure of the American constitutional system.

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Diamond Alternative Energy v. EPA presented the question of whether fuel manufacturers had standing to challenge regulations of fossil-fuel vehicles. Justice Kavanaugh, writing for seven members, found that the fuel company had standing. Justice Jackson, in dissent, found that the plaintiffs lacked standing.

Jackson’s dissent repeats the familiar refrain that the Supreme Court is pro-business, and is more likely to find standing for businesses backed by the Chamber of Commerce than for civil rights plaintiffs. Jackson writes:

Standing is a constitutional doctrine meant to promote judicial restraint. By design, it “‘prevent[s] the judicial process from being used to usurp the powers of the political branches'” and “helps safeguard the Judiciary’s proper—and properly limited—role in our constitutional system.” United States v. Texas, 599 U. S. 670, 675–676 (2023). But standing doctrine cannot serve that important purpose if the Judiciary fails to apply it evenhandedly. When courts adjust standing requirements to let certain litigants challenge the actions of the political branches but preclude suits by others with similar injuries, standing doctrine cannot perform its constraining function. Over time, such selectivity begets judicial overreach and erodes public trust in the impartiality of judicial decisionmaking. . . . 

Jackson continues that the Court “rests its decision on a theory of standing that the Court has refused to apply in cases brought by less powerful plaintiffs.” She concludes that “[t]his case gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens.”

Justice Kavanaugh responds to Justice Jackson in a paragraph with a long string cite:

JUSTICE JACKSON separately argues that the Court does not apply standing doctrine “evenhandedly.” Post, at 1 (dissenting opinion). A review of standing cases over the last few years disproves that suggestion. See, e.g., Alliance for Hippocratic Medicine, 602 U. S., at 374; United States v. Texas, 599 U. S., at 674; Haaland v. Brackeen, 599 U. S. 255, 291–292 (2023); Reed v. Goertz, 598 U. S. 230, 234 (2023); TransUnion LLC v. Ramirez, 594 U. S. 413, 417– 418 (2021); California v. Texas, 593 U. S. 659, 666 (2021); Uzuegbunam, 592 U. S., at 282–283; Thole v. U. S. Bank N. A., 590 U. S. 538, 541–542 (2020); Department of Commerce, 588 U. S., at 766–768.

Kavanaugh offers no actual analysis on this point. He simply lists a series of standing cases from the past five years that “disprove” Jackson’s point that the Court is likely to find standing for “moneyed interests.” Kavanaugh acts as if this point is self-evident. But there is a problem. The string cite doesn’t actually make his case–or at least not without some substantial explanation.

Of the nine cases cited, only two are business cases. TransUnion found that only certain plaintiffs had standing to sue TransUnion. And Thole found that participants in a benefit plan lacked standing to sue the bank. These cases, which generally favor big business, do not rebut Justice Jackson’s point.

Two of the case involve civil rights cases. Uzuegbunam found that a student had standing to challenge a University’s censorship of his speech. And Reed found that a prisoner had standing to challenge a DNA testing statute. These cases sort of address Justice Jackson’s point, but not directly.

The other cases concern ideological strategic litigation brought by states or public interest groups. First, Alliance for Hippocratic Medicine (2024) found that a non-profit lacked standing to challenge the FDA’s approval of mifepristone. Second, United States v. Texas (2023) found that Texas lacked standing to challenge a Biden-era immigration policy. Third, Haaland v. Brackeen (2023) found that Texas (and private plaintiffs) lacked standing to challenge the enforcement of the Indian Child Welfare Act. Fourth, California v. Texas (2021) found that Texas (and private plaintiffs) lacked standing to challenge the constitutionality of the Affordable Care Act after the penalty was reduced to $0. Fifth, in Department of Commerce (2019), New York had standing to challenge the inclusion of the citizenship question on the census. There is a sixth case that Justice Kavanaugh inexplicably did not cite: Murthy v. Missouri (2024) held that Missouri lacked standing to challenge the Biden Administration’s “jawboning” of social media companies.

What do these six cases have in common? Red states lack standing, but blue states do have standing. It’s really that simple–or at least that is the perception here in Texas. To show the Court is being “evenhanded,” Kavanaugh lists how often conservative litigants lose on an otherwise conservative court.

Early in Kavanaugh’s tenure, I objected when he made a point about how President Clinton signed a “strict” immigration bill. I wrote:

I have no doubt that Kavanaugh’s intent here was as innocuous as in Rimini. But the implication was very different: The Court was not being “strict” toward immigrants; a bipartisan Congress and Clinton were being “strict” toward immigrants. In other words, don’t blame us for interpreting the law in a tough fashion—even a Democrat was fine with it.

As several Kavanaugh clerks promptly told me, it has long been Kavanaugh’s practice to reference the name of the President who signed the bill. There is definitely a Schoolhouse Rock virtue here. But I also think it conveys a substantive point. Indeed, I often stress that President Clinton signed both DOMA and RFRA to stress the bipartisan nature of those laws.

In Diamond Alternative Energy, Justice Kavanaugh lists all the times that the Court ruled against conservatives to show how it is being “even-handed.” I recently wrote that “If [Chief Justice] Roberts views himself as an umpire, his strike zone will ensure that the red team and the blue team usually play a close game, and neither side wins by a large margin.” Kavanaugh, regrettably, suggests he is keeping score as well. Kavanaugh has similarly praised the Nixon appointees for ruling against the President who appointed them in United States v. Nixon. Why is that fact relevant unless the standard presumption is that a Nixon appointee should rule in favor of President Nixon? Is this how Kavanaugh thinks of things? I suggested as much after reading Gorsuch and Kavanaugh’s perplexing decisions in the tax return cases.

In any event, when Justice Kavanaugh says these cases “disprove” Justice Jackson’s argument, he is tacitly acknowledging how the Court refuses to grant standing to red cases, even as it finds standing for moneyed interests. Both Jackson and Kavanaugh miss the obvious distinction. Here, we have another manifestation of Originalism, Inc.

By the way, I did not know this factoid, which I learned in Justice Jackson’s dissent: “Cass Gilbert, who designed the Supreme Court building, also designed the Chamber of Commerce’s headquarters in Washington, D. C., and the New York Life building in Manhattan, among other major commercial offices.” 

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On Wednesday, the Court decided United States v. Skrmetti. This petition, brought by the Biden DOJ, only presented the question whether Tennessee’s law violated the Equal Protection Clause. DOJ did not petition on the substantive due process issue. Indeed, under 42 U.S.C. § 2000h-2, the Attorney General only has the authority to intervene in an equal protection case.

Whenever an action has been commenced in any court of the United States seeking relief from the denial of equal protection of the laws under the fourteenth amendment to the Constitution on account of race, color, religion, sex or national origin, the Attorney General for or in the name of the United States may intervene in such action upon timely application if the Attorney General certifies that the case is of general public importance. In such action the United States shall be entitled to the same relief as if it had instituted the action.

The ACLU, which represented the plaintiffs, petitioned on both due process and equal protection in the case known as L.W. v. Skrmetti. The ACLU’s petition remains pending, even though counsel for the ACLU was permitted to argue.

What happens next? Mahmoud v. Taylor is awaiting a decision. If Mahmoud addresses the due process clause with regard to parental rights, the Court might GVR the ACLU’s Skrmetti petition.

In other words, Skrmetti may be far from over.

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Does using alcohol, nicotine, or cannabis engender addiction by changing the structure of brains, or does the structure of brains incline some people toward using those substances? In standard brain disease models of addiction, the neurotoxic effects of abused psychoactive substances are thought to cause brain changes that spur compulsive cravings for drink, smokes, or dope.

A recent study in JAMA Network Open, an open-access, peer-reviewed, international medical journal published by the American Medical Association, challenges that model and suggests that brain differences associated with addiction precede rather than result from substance abuse. A team of neuroscientists examined associations between brain structure and substance use initiation in nearly 10,000 children enrolled in the ongoing Adolescent Brain Cognitive Development (ABCD) Study.

Children aged 9 to 11 years were enrolled in the study. MRIs of each child’s brain were taken at that time. None of the kids in the initial cohort reported using alcohol, nicotine, cannabis, or other psychoactive substances. During the next three years, the researchers periodically asked the kids, all still below age 15, if they had used any of those substances. Roughly a third of the kids (3,460), with some overlap, owned up to using either alcohol (3,123), nicotine products (431), cannabis (212), and other substances (213), such as inhalants, prescription sedatives, and hallucinogens.

The researchers then compared the brain MRIs of the kids who consumed psychoactive substances with those who did not. Remember, these MRIs were taken before any of the now adolescents had used any psychoactive substances. The researchers identified eight “neuroanatomical features associated with substance use initiation that were present before substance exposure.”

Prior studies of adult addicts have found that they generally have lower overall brain  volumes than nonabusers do. In their study of the ABCD cohort, the researchers were surprised to find the contrary to be the case. Bigger adolescent brains with more gray matter were significantly associated with early substance-use initiation. Interestingly, neurological research suggests that bigger brains somewhat correlate with higher intelligence.

Another difference in brain structures coincident with early substance use is a thinner prefrontal cortex, which is associated with impaired emotional regulation and working memory. Early users also have larger globus pallidus volumes, which lessens impulse control. The researchers
suggest their study may be capturing brain variability related to exploration and risk-taking that motivates precocious psychoactive substance use.

An earlier study using data from the ABCD cohort asked if cannabis use contributes to psychosis in adolescents or if adolescents use cannabis to self-medicate their emerging psychotic symptoms. The researchers did not find evidence that early cannabis use contributed to the risk of experiencing psychotic symptoms.

Instead, they suggest there may be a shared vulnerability in which genetic, gestational, or environmental factors may confer vulnerability for both cannabis use and psychosis. They further found, consistent with the self-medication hypothesis, that worsening symptoms motivated the initiation of cannabis use and that the users experienced reduced symptom distress.

In their commentary on the adolescent substance use initiation study, two University of Minnesota cognitive neuroscientists observed that the brain differences found in the new study “reflect predispositional risk for substance use initiation—and that we may need to reevaluate the causal assumptions that underlie brain disease models of addiction.”

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When the Spanish colonized Peru in the 16th century, they tore down the Incan temples and palaces, leaving the base level of original stone masonry in place. On top of those they built European-style white stucco walls, ornate baroque stonework, and intricately carved wooden balconies. This fusion of Incan and colonial architecture, particularly in Cusco, helped earn the city the designations of Historical Capital and Tourism Capital of Peru.

On May 21, 1950, an earthquake rocked Cusco, damaging approximately half of the city’s buildings. The worst destruction affected old adobe houses and colonial-era churches, including the Church of Santo Domingo, which was built atop the Coricancha (“Temple of the Sun,” dedicated to the Incan sun god). Spanish chronicler Pedro Cieza de León once marveled at the temple’s “excellent masonry,” noting that “the stones themselves are so well worked that no joining or cement can be seen.” He was referring to the Incan technique of ashlar masonry, in which large, hand-cut stones are shaped to fit perfectly together—so well, in fact, that their structures survived the quake while newer additions crumbled.

Cusco’s history stretches back even further, and more treasures are still being found. In 2008, archaeologists uncovered ruins of an ancient temple, roads, and irrigation systems credited to the pre-Inca Killke culture, likely dating back to the 12th century. Killke ceramics have also been found throughout the city. Due to its proximity to Machu Picchu, Cusco is sometimes thought of as merely a gateway to one of the New Seven Wonders of the World, but its own rich history has been attraction enough. In 1983, the United Nations Educational, Scientific, and Cultural Organization (UNESCO) designated Cusco a World Heritage Site, recognizing its extraordinary cultural significance.

That global recognition hasn’t always benefited Cusco’s residents. When a community development program began constructing a pool near the historic Sapantiana Colonial Aqueduct, it carefully followed guidelines to preserve the surrounding area. Late in the project, however, a final review uncovered Killke artifacts in the nearby San Blas neighborhood. This marked the whole area as a protected site, and the project was abruptly halted.

Today, visitors can see children running through the empty concrete rectangle that was meant to hold water, or down the slope intended for a waterslide. But they won’t be swimming—because the pool was never completed.

Believed to be the oldest continuously inhabited city in South America, Cusco has always balanced reverence for the past with adaptation to the present. It’s what the Incas did when they absorbed the Killke culture, what Peruvians did after Spanish colonization, and what they do today to welcome millions of visitors each year. Cusco shouldn’t fear losing its World Heritage designation. The Peruvian people are clearly proud of their history, and they deserve credit for preserving the past. They also deserve a working pool.

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The world found out about another American war through social media. “We have completed our very successful attack on the three Nuclear sites in Iran, including Fordow, Natanz, and Esfahan,” President Donald Trump wrote on Truth Social at 7:50 PM on Saturday night. “NOW IS THE TIME FOR PEACE!” he added.

Trump told Fox News’ Sean Hannity that he had B-2 stealth bombers drop bunker-buster bombs on the underground Fordo nuclear facility, and submarines launch Tomahawk missiles at additional nuclear facilities in Natanz and Esfahan. He gave Iranian leaders a heads-up before the attack, reassuring them that the U.S. was aiming for a one-off strike rather than a regime change war, according to CNN and CBS. Iranian media downplayed the results, claiming that at Fordo only two entrances were damaged.

This campaign is a war of choice. And the administration did not try to sell it to Congress—let alone the American people—before embarking on it. Instead, Trump watched Israel launch a first strike on Iran, then threatened to get involved, talking himself into a corner. Now he seems to be hoping that Iran simply won’t respond to being attacked.

“Iran, the bully of the Middle East, now must make peace. If not, future attacks will be far greater, and a lot easier,” Trump said at the White House. “Remember, there are many targets left,” he added, threatening to “go after those targets with precision, speed, and skill.”

There was peace eight days ago. Iran had been negotiating with the United States over the future of its nuclear program, with another round of talks scheduled for last Sunday. But on June 13, the Israeli military began bombing Iran. (One of its first targets was chief Iranian negotiator Ali Shamkhani.) Trump was reportedly impressed by the triumphant coverage on Fox News and rushed to take credit.

In the race to war, he did not bother to ask Congress for permission, and he limited the administration’s briefings of congressional leaders to just one party. No wonder: Polling at the beginning of the Israel-Iran war showed that only 16 percent of Americans and 23 percent of Republicans wanted to be involved. Instead, Trump bet that he could make the war a fait accompli. Once the crisis starts, after all, it will be much harder to stop.

While House Majority Leader Mike Johnson (R–La.) praised Trump for his “clear reminder to our adversaries and allies that President Trump means what he says,” House Minority Leader Hakeem Jeffries (D–N.Y.) said that “President Trump misled the country about his intentions, failed to seek congressional authorization for the use of military force and risks American entanglement in a potentially disastrous war in the Middle East.”

Asked what legal authorization Trump had to start the war, the White House told RealClearPolitics that he simply “used the legal authority afforded to him as Commander in Chief.” Rep. Thomas Massie (R–Ky.) concurred that the war “is not Constitutional.”

Jeffries added that Trump “shoulders complete and total responsibility for any adverse consequences that flow from his unilateral military action.” What those consequences will be is a huge open question. The immediate danger is that Iran will attack American troops or oil shipping in the Persian Gulf, both of which Iranian officials had previously threatened to do in response to a U.S. attack.

Iran can also rebuild its nuclear program. Iranian authorities have claimed that they already scattered equipment and material from Fordo before the U.S. attack—a prudent thing to do when expecting air raids. Unlike the facilities at Fordo, Natanz, and Esfahan, which were well-known to international inspectors, any new Iranian nuclear work would likely be secretive. The U.S. could find itself in a long-term game of whack-a-mole to stop a dispersed Iranian nuclear program.

And Israel has a say in whether the current war ends. Iranian officials have said that there are no grounds for negotiation while their country is being bombed. Israeli leaders have been constantly shifting the goalposts of their war effort: denuclearization of Iran, dismantlement of its conventional missile forces, or even full regime change. Trump has tied the fate of American troops to another country’s forever war.

This outcome was something the Constitution was designed to prevent. “The Framers of the Constitution were clear that only Congress is empowered to commence offensive military hostilities,” former Rep. Justin Amash (L–Mich.) wrote on X. “But there are people on the left and right who reject divided powers and fundamentally hate America. They’re working deliberately and methodically to destroy it.”

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