4/9/1923: Adkins v. Children's Hospital decided.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Wednesday Open Thread
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Seventh Circuit Judicial Council Dismisses Misconduct Complaint Against Judge Vaden
Oh, and by the way, the complainant is a prisoner who had a "role in firebombing and vandalizing Jewish houses of worship."
In December, I wrote about a misconduct complaint filed against Judge Stephen Vaden of the Court of International Trade. The complaint charged that the Columbia boycott violated the code of judicial ethics.
Today, the Seventh Circuit Judicial Council dismissed that complaint. Here is the crux of the analysis concerning the boycott:
Except to the extent prohibited by these regulations and guidelines, judges have wide discretion to establish their own screening and selection criteria in appointing law clerks. This latitude permits judges to make distinctions among applicants based on their own determinations of the relevant criteria or qualifications, including where the applicants were educated. Some judges only hire graduates of certain law schools. Some tailor their preferences to the specific needs of their court or chambers—for example, by looking for candidates from law schools with excellent writing or trial advocacy programs or strong core curricula in relevant subject areas. Relatedly, some judges only consider candidates with a GPA in the top 10 or 20 percent of their law-school class (or some other academic cutoff). Some require membership in the law review or moot court team. Others prioritize candidates from law schools in their state or circuit.
In the same way, a judge may refuse to hire law clerks from a law school or university that has, in the judge's view, failed to foster important aspects of higher education like civility in discourse, respect for freedom of speech, and viewpoint nondiscrimination. Accordingly, the law-clerk hiring boycott is neither inconsistent with the integrity of the judicial office nor likely to diminish public confidence in the judiciary.
That should have been obvious from the outset.
At long last, this saga draws to a close. I am grateful to my friends at First Liberty, as well as Lisa Blatt and her colleagues at Williams & Connolly, for representing Judge Vaden.
Then again, it is wroth noting how the complaint was filed. The Seventh Circuit also includes this tidbit that has, until now, not been publicized:
The complainant is serving a sentence in a state prison after a jury found him guilty of arson, terrorism, and other crimes stemming from his role in firebombing and vandalizing Jewish houses of worship.
I remain troubled how the judicial ethics process can be weaponized. This case was another episode of lawfare against the judiciary.
AP Gets Preliminary Injunction Reversing Exclusion from Oval Office Press Pool
I'm on the road and can't discuss this in detail, but I thought I'd pass along a few excerpts from today's decision by Judge Trevor McFadden (D.D.C.) in AP v. Budowich:
About two months ago, President Donald Trump renamed the Gulf of Mexico the Gulf of America. The Associated Press did not follow suit. For that editorial choice, the White House sharply curtailed the AP's access to coveted, tightly controlled media events with the President. The AP now sues the White House chief of staff, her communications deputy, and the press secretary (collectively, "the Government"), seeking a preliminary injunction enjoining the Government from excluding it because of its viewpoint.
Today, the Court grants that relief. But this injunction does not limit the various permissible reasons the Government may have for excluding journalists from limited-access events.
It does not mandate that all eligible journalists, or indeed any journalists at all, be given access to the President or nonpublic government spaces. It does not prohibit government officials from freely choosing which journalists to sit down with for interviews or which ones' questions they answer. And it certainly does not prevent senior officials from publicly expressing their own views.
No, the Court simply holds that under the First Amendment, if the Government opens its doors to some journalists—be it to the Oval Office, the East Room, or elsewhere—it cannot then shut those doors to other journalists because of their viewpoints. The Constitution requires no less….
Standing in the Shadow Docket
Should the Court not consider jurisdiction unless there is irreparable harm?
Today the Supreme Court issued another order on the emergency docket. In Office of Personnel Management v. American Federation of Government Employees, a federal district court ordered the reinstatement of 16,000 probationary employees. The district court found that the unions and other organizations had standing based on a "diversion of resources" theory of standing under Havens Realty. This theory, which survived Acheson, has been under seige for some time, and should be extirpated soon enough. The Solicitor General's application explains why that argument does not work:
In granting the preliminary injunction, the district court relied exclusively on the standing of organizational respondents whose members are end-users of government services. See App., infra, 39a, 47a. Significantly, in entering relief against two of the enjoined agencies, the court appeared to rely solely on the theory that the organizations themselves suffered an injury by having to "divert" organizational resources to "counteract[]" the effects of the agencies' actions. See App., infra, 20a (citation omitted); see id. at 20a-21a; see also D. Ct. Doc. 18-7, ¶ 11; D. Ct. Doc. 18-3, ¶ 6. That standing theory is squarely foreclosed by this Court's decision in Alliance for Hippocratic Medicine, which held that "divert[ing] [organizational] resources in response to a defendant's actions" is not an Article III injury-in-fact. 602 U.S. at 395.
The Court's per curiam order granted the application on the grounds that the organizational plaintiffs lack standing. But the Court's brief order does not cite AHM, but instead cites Clapper.
The District Court's injunction was based solely on the allegations of the nine non-profit-organization plaintiffs in this case. But under established law, those allegations are presently insufficient to support the organizations' standing. See, e.g., Clapper v. Amnesty Int'l USA, 568 U. S. 398 (2013). This order does not address the claims of the other plaintiffs, which did not form the basis of the District Court's preliminary injunction.
The government's application does not even mention Clapper so it is unclear the exact grounds on which the Plaintiffs lacked standing. Where is the self-inflicted injury?
In theory at least, the other plaintiffs may be able to establish standing, but that matter will have to wait for another day. More likely than not, their cases are over. Here, the Court is sending yet another clear signal: challenges to the removal of federal employees should be brought through the usual channels at the MSPB and not through a nationwide injunction.
Justices Sotomayor and Jackson would have denied the application. I've seen this case reported as a 7-2 split but that is not quite right. On the shadow docket, just because a Justice does not note their dissent does not mean they agree with the majority. At a minimum, there were five votes. I think it safe to say that Justice Kagan did not join the Clapper analysis. Chief Justice Roberts and/or Justice Barrett joined the majority. My money is on Barrett. She is a standing stickler, so this would have been an easier case than some of the others. Roberts probably did as well. So the vote is most likely 6-3.
The most intriguing opinion is that of Justice Jackson. She says that the Court should not have even considered the jurisdictional argument because the government failed to show "irreparable harm."
Justice Jackson would have declined to reach the standing question in the context of an application for emergency relief where the issue is pending in the lower courts and the applicants have not demonstrated urgency in the form of interim irreparable harm. See Department of Education v. California, 604 U. S. ___, ___ (2025) (Jackson, J., dissenting) (slip op., at 1–2). Thus, she would have denied the application.
This statement is consistent with her opinion in Department of Education v. California. There, she referred to jurisdiction, venue, and sovereign immunity as "shiny" distractions. This is definitely a new argument: the Court should not even consider "standing" in the shadow docket. But that argument can't possibly be right. Jurisdiction is the basis of the judicial power. If a lower court issued an order in the absence of jurisdiction, the act was an usurpation of the judicial power. If ever there is a need for the Supreme Court to intervene, it is where the lower court lacked jurisdiction. I think it is telling that no one else joined Justice Jackson here.
Jurisdiction is not just some "shiny" object.
Today in Supreme Court History: April 8, 1952
4/8/1952: President Truman signs executive order 10340. The Supreme Court declared this executive order unconstitutional in Youngstown Sheet & Tube Co v. Sawyer (1952).
Rights and Wrongs of the Supreme Court's Ruling in the Alien Enemies Act Case
The Supreme Court oveturns lower court decisions temporarily barring AEA deportations, but also emphasizes that detainees are entitled to due process, and that AEA deportations are subject to judicial review.
Tonight's Supreme Court ruling in Trump v. JGG is a mixed bag. On the one hand, it overturns lower court rulings temporarily barring deportations under the Alien Enemies Act. But it also makes clear that migrant detained for deportation under the AEA are entitled to due process, and that the president's invocation of the Act is subject to judicial review. I go over the crucial issues at stake in the AEA litigation here, here, and here.
A closely divided 5-4 majority (with Justice Amy Coney Barrett joining the three liberal justices in dissent), ruled that the case should have been tried in Texas (where the detained Venezuelan migrants are now held), rather than in Washington DC, because habeas corpus cases must be heard at the location of detention.
I am not expert on these kinds of venue issues, and therefore cannot say much about them. But it does seem to me the majority got this wrong, for reasons outlined in Justice Sotomayor's dissent. See also this analysis by Lee Kovarsky, a leading academic expert on habeas.
In a detailed discussion of tonight's ruling, Prof. Steve Vladeck argues that limiting the detainees' options to habeas corpus challenges will make it much harder for them to litigate their cases, in part by preventing systematic remedies, as opposed to ones limited to individual habeas petitioners. Justice Sotomayor eloquently expresses similar concerns in her forceful dissent. They may be right. But much depends on whether AEA detainees can file habeas class actions. If the answer is yes, systematic remedies will be available, and individual migrants won't have to all litigate their cases separately. The ACLU and other public interest groups are likely to help the detainees file such a class action. Habeas class actions are permitted in at least some immigration contexts. I lack the expertise to assess whether they can or will be used here. But I flag this issue as a crucial one to consider.
While the Trump Administration succeeded in getting the lower-court rulings vacated, it suffered a potentially important setback by virtue of the Court's ruling that migrants targeted for deportation under the AEA are entitled to due process:
"It is well established that the Fifth Amendment entitles aliens to due process of law" in the context of removal proceedings. Reno v. Flores, 507 U. S. 292, 306 (1993). So, the detainees are entitled to notice and opportunity to be heard "appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). More specifically, in this context, AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.
While I differ with much of what Josh Blackman says in his post about the case, he is right to describe this part of the ruling as "a very quiet defeat for the Trump Administration, which sought to spirit the aliens away without any hearing." How big a defeat it is may in part depend on exactly what qualifies as "a reasonable time" and "a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."
The majority also holds that judicial review is available with respect to the applicability of the AEA, which only allows detention and deportation in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government":
Although judicial review under the AEA is limited, we have held that an individual subject to detention and removal under that statute is entitled to "'judicial
review'" as to "questions of interpretation and constitutionality" of the Act as well as whether he or she "is in fact an alien enemy fourteen years of age or older." Ludecke, 335 U. S., at 163−164, 172, n. 17.
It seems obvious that "questions of interpretation and constitutionality" include the issues of whether there is an "invasion" or "predatory incursion" going on, and whether the Tren de Aragua drug gang qualifies as a "foreign nation or government" (Trump's invocation of the AEA is limited to Venezuelans who are members of that organization). This undercuts the administration's claims that all these issues are "political questions not subject to judicial review. In earlier writings about these issues, I have emphasized that the meaning of "invasion" in the AEA tracks the meaning of the same term in the Constitution, which is limited to acts of war, not mere illegal migration or drug smuggling.
Steve Vladeck suggests that the transfer of the litigation to Texas will benefit the Trump Administration, because the federal judges in the Fifth Circuit are generally more conservative than elsewhere. He is likely right about that. But it's worth noting that the Fifth Circuit has twice ruled that illegal migration and drug smuggling do not qualify as "invasion" under the Constitution (see my discussion here and here), which suggests a similar interpretation applies to the use of invasion in the AEA (enacted just a few years later). One of these cases, was later overturned on other grounds by the en banc Fifth Circuit.
In that en banc case, prominent conservative Fifth Circuit Judge James Ho wrote a badly flawed concurring opinion arguing that illegal migration does qualify as "invasion" (see my critique here). But, significantly, none of the other 17 Fifth Circuit judges joined him. That suggests the argument has little, if any, support from his colleagues.
In sum, tonight's Supreme Court ruling is very much a mixed bag. The legal battle over the Alien Enemies Act will continue.
What Exactly Did Justice Barrett Disagree With The Majority About In Trump v. JGG?
Justice Barrett tells us to read the opinion, but there is nothing to read.
The vote in Trump v. JGG was 5-4. Here, Chief Justice Roberts joined Justices Thomas, Alito, Gorsuch, and Kavanaugh. This case was largely a victory for President Trump, in that the case can be heard in the Fifth Circuit, rather than the D.C. Circuit. Still, the Court went beyond its ambit. The only requested relief was to vacate the lower court's ruling. But the Court held that the government must also afford the aliens a hearing before they can be removed. Here, there was a subtle merits ruling on the shadow docket.
Justice Sotomayor wrote a dissent which Justices Kagan and Jackson joined in full. Justice Barrett joined only Parts II and III-B. Last week I wrote that Justice Barrett's vote in the Department of Education case did not signal a sea change. I also wrote that Justices Sotomayor and Jackson were not looking to alienate Barrett by calling out any hypocrisy with the USAID case. JGG makes me more confident in my speculation.
In JGG, Justice Barrett did not write separately to explain which parts of the majority opinion she in fact disagreed with. As I'll explain, it isn't clear to me exactly what Justice Barrett thinks.
Part I-A of the dissent lays out the the history of the Alien Enemies Act. Parts I-B and I-C provide the facts and procedural posture of the case. Justice Barrett apparently does not agree with these parts of the dissent, though it is not clear why.
Part I-D charges that the government flouted Judge Boasberg's orders. I think it significant that Justice Barrett did not join this part. I doubt she agrees with the thrust of the ongoing contempt proceedings. And Part I-E repeats the refrain that the Supreme Court should let this issue "percolate" in the lower courts. Here, I think Justice Barrett agrees with the majority: further proceedings in a lower court that lacks jurisdiction would result in "wasteful delay."
Part II of the dissent, which Justice Barrett joins, is only two paragraphs long. This part agrees with the majority that the aliens are entitled to due process before removal. Again, all nine Justices agree on this basic point. It is true--federal judges in Texas and in the Fifth Circuit are bound by the Due Process Clause.
Then we get to Part III of the dissent. Justice Barrett only joins Part III-B. She does not join Part III-A and Part III-C.
Twice, SCOTUS Finds Coastal Courts Improperly Exercised Venue
In two consecutive orders, the Court signals that progressive litigants forum shopped to the wrong courts.
On March 30, I wrote a post titled "Coastal Judges Play Keep-Away From The Fifth Circuit." One week later, the Supreme Court has turned the tides.
Last Friday, in Department of Education v. California, the Court ruled that a federal court in Boston improperly exercised jurisdiction and venue. The challenge to the funding cut belonged in the Court of Federal Claims. And today, in Trump v. J.G.G., the Court ruled that a federal court in the District of Columbia improperly exercised jurisdiction and venue over an alien detained in Texas.
For "core habeas petitions," "jurisdiction lies in only one district: the district of confinement." Rumsfeld v. Padilla, 542 U. S. 426, 443 (2004). The detainees are confined in Texas, so venue is improper in the District of Columbia. As a result, the Government is likely to
I draw several conclusions from this ruling.
First, this was a case of clear forum shopping by the ACLU and other groups. The aliens were known to be detained in Texas. The obvious venue to file suit was in Texas. The ACLU determined (rationally) that the Fifth Circuit would not be a favorable forum. Therefore, they took a risk and sought emergency relief in the D.C. Circuit on a Saturday. Their decision backfired. Now, venue will lie in Texas. I think most criticisms about forum shopping expired on January 20, 2025.
Second, Judge Boasberg committed a clear legal error. The Supreme Court ruled that he exercised jurisdiction when he should not have. Is there any greater error than improperly exercising jurisdiction? As best as I can recall, the Court has never faulted Judges Reed O'Connor or Matthew Kacsmaryk with such an error. Chalk one up for Texas federal judges. Moreover, the gushing coverage of Judge Boasberg has been nauseating. I don't recall any District Court judge who has received more favorable press by the mainstream media in such a short period of time. Perhaps the most egregious such piece stressed how Judge Boasberg has friends in high places--namely, Justice Kavanaugh. As if a Supreme Court Justice will favorably review a decision from his friend? Well you know what? Justice Kavanaugh reversed his fellow "cubbie." The suggestion that there is some sort of club where elite judges rule for their buddies is beyond obnoxious, and demeaning to Justice Kavanaugh. Finally, it is not clear if the District Court has power to hold the executive branch in contempt where it lacks jurisdiction over the case.
Third, there are several other cases pending where aliens are detained in Louisiana, but coastal judges have asserted jurisdiction. I think this ruling should send a clear signal to federal courts in Boston and New Jersey: you do not have the power to supervise cases where the alien is detained on the Gulf of America.
Fourth, the aliens in Texas cannot be removed right away. They must be afforded a hearing before their removal:
More specifically, in this context, AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.
This is a very quiet defeat for the Trump Administration, which sought to spirit the aliens away without any hearing.
Fifth, I'm still not sure what JGG means for Chief Justice Roberts in the Garcia case. I think JGG is a fairly straightforward application of habeas and venue law. Rumsfeld v. Padilla has been on the books for two decades But the Garcia matter concerns the power of the judiciary. And John Roberts is still at heart a judicial supremacist. Perhaps in that case Justice Barrett swings the other way?
I will have more to say about this case, and Justice Barrett's dissent* in another post.
District Court and Fourth Circuit Order Trump Administration to Return Wrongfully Deported Immigrant
Salvadoran immigrant Kilmar Abrego Garcia was illegally deported and incarcerated in a Salvadoran prison. The Trump administration admits the deportation was illegal, but claims they can't be required to return him.
Yesterday, a federal district court ordered the Trump Administration to secure the return of Kilmar Abrego Garcia, a Salvadoran immigrant the government admits was illegally deported to El Salvador and then incarcerated in the horrendous CECOT prison, as part of a deal under which the Salvadoran government imprisons migrants deported by the US in exchange for a payment. Today, a unanimous appellate panel of the Fourth Circuit refused to stay the ruling. These decisions are obviously correct, and the Trump administration's argument to the contrary has extremely dangerous implications. It suggests that the government can deport and imprison anyone it wants - including US citizens - and then be immune from judicial review, so long as the incarceration is done by a foreign state, even one that is obviously doing it at the behest of the US government.
As the district court summarized its reasoning:
As Defendants acknowledge, they had no legal authority to arrest him, no justification to detain him, and no grounds to send him to El Salvador —let alone deliver him into one of the most dangerous prisons in the Western Hemisphere. Having confessed grievous error, the Defendants now argue that this Court lacks the power to hear this case, and they lack the power to order Abrego Garcia's return…. For the following reasons, their jurisdictional arguments fail as a matter of law. Further, to avoid clear irreparable harm, and because equity and justice compels it, the Court grants the narrowest, daresay only, relief warranted: to order that Defendants return Abrego Garcia to the United States.
Judge Paula Xinis goes on to point out the obvious flaw in the administration's position that Abrego Garcia is outside the control of the US government:
The Defendants' redressability argument, simply put, is that their placement of Abrego Garcia in an El Salvadoran prison deprives them of any power to return him. Thus, they say, even if Abrego Garcia succeeds on the merits, Defendants are powerless to get him back. The facts demonstrate otherwise….
First, Defendants can and do return wrongfully removed migrants as a matter of course….
Second, Defendants unilaterally placed hundreds of detainees behind the walls of CECOT without ceding control over the detainees' fates, as the detainees are in CECOT "pending the United States' decision on their long-term disposition…." Unlike Abrego Garcia, for whom no reason exists to detain him, Defendants transported many individuals who had been detained in the United States while awaiting immigration proceedings. Yet, despite Defendants' power to transfer those awaiting hearings to CECOT for a "good price," Defendants disclaim any ability to secure their return, including Abrego Garcia….
[T]he record reflects that Defendants have "outsource[d] part of the [United States'] prison system….."See also U.S. Dep't of Homeland Sec., How It's Going, DHS,
https://www.dhs.gov/medialibrary/assets/video/59108 (last visited Apr. 4, 2025) (quoting Defendant Noem: "This facility is one of the tools in our toolkit that we will use")." Thus, just as in any other contract facility, Defendants can and do maintain the power to secure and transport their detainees, Abrego Garcia included.In the end, Defendants' redressability argument rings hollow. As their counsel suggested at the hearing, this is not about Defendants' inability to return Abrego Garcia, but their lack of desire.
Ultimately, this is not a case of the Salvadoran government imprisoning Abrego Garcia for its own reasons, but of them doing so at the behest of the US. For that reason, there is no real doubt that the Trump administration could get Abrego Garcia back, if it wanted to. El Salvador has no reason to hold him, except to carry out its agreement with Trump and win favor with him.
The Fourth Circuit's reasoning is similar. A concurring opinion by Judges Thacker and King notes that Salvador President Nayib Bukele admits that the US has "outsourced" its prison system to his regime. Similarly, Trump Homeland Security Secretary Kristi Noem says that "This facility [CECOT] is one of the tools in our toolkit that we will use" [emphasis added].
The federal government cannot be allowed to circumvent its legal obligations by "outsourcing" imprisonment to foreign governments. Otherwise, it could use this "tool in our toolkit" to imprison whoever it wants - including US citizens - without due process, and without any judicial review. Big-name conservative Fourth Circuit Judge J. Harvie Wilkinson highlights this danger in his concurring opinion:
The facts of this case thus present the potential for a disturbing loophole: namely that the government could whisk individuals to foreign prisons in violation of court orders and then contend, invoking its Article II powers, that it is no longer their custodian, and there is nothing that can be done. It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone.
Despite this threat, Judge Wilkinson would prefer that the courts merely order the administration to do what it can to "facilitate" Abrego Garcia's return, rather than order that the return actually be accomplished. To my mind, this distinction does not make any sense in a case where the foreign government in question is essentially a bought and paid for agent of the US. Outsourcing imprisonment cannot be get-out-of-jail-free card for the executive - or in this case, a put-in-jail-free card.
For these reasons, I am not impressed by co-blogger Josh Blackman's concerns that the courts are ordering the president to "negotiate with a foreign leader." When the president contracts with a foreign leader to imprison people at the behest of the United States, the US government retains full legal responsibility for that imprisonment. And if the imprisonment turns out to be illegal, it has a duty to put an end to it by, no less than if the person was incarcerated by the US directly. "Outsourcing" cannot be used to circumvent constitutional constraints on government power - especially not when liberty is so gravely threatened. Neither can it be used to circumvent legal restrictions on deportation - itself a severe constraint on liberty.
Sadly, this is not the only case where the Trump Administration has used imprisonment in El Salvador to try to circumvent the Constitution. It has done the same thing on a larger scale with its deportation of Venezuelans under the Alien Enemies Act. This action violates the Due Process Clause of the Fifth Amendment, and courts should order the government to reverse its illegal actions, and not accept the El Salvador ploy as an excuse.
The Trump administration has appealed Fourth Circuit ruling to the Supreme Court. Hopefully, the justices will affirm the lower courts, and reject the administration's attempt to set a dangerous precedent for shielding lawlessness with the help of compliant foreign states.
Can A Federal Court Issue Mandamus Against The President?
Judge Rao: "It is extremely doubtful that mandamus could issue against the President."
Today, the En Banc D.C. Circuit vacated the panel ruling finding that President Trump's removal of NLRB members was lawful. Judges Henderson, Katsas, Rao, and Walker dissented from the en banc order.
Judge Rao's dissent, which was joined by the three other dissenters, argues forcefully that the federal courts lack an equitable cause of action to order the reinstatement of the NLRB members. Judge Katsas made these points in his Bessent dissent.
Judge Rao further responds to Judge Millett's panel opinion, which argued that the court could grant a writ of mandamus against the President. Judge Rao concludes that mandamus wold not be proper against the President:
Judge Millett argued in dissent that mandamus could issue against the President because he "violated a non-discretionary statutory duty by firing Harris and Wilcox without relevant justification." See Harris, 2025 WL 980278, at *45 (Millett, J., dissenting). It is extremely doubtful that mandamus could issue against the President. While this court has at times claimed authority to issue writs of mandamus against the President, I am aware of no case in which we have taken this extraordinary step. To the contrary, we have repeatedly declined to issue the writ "in order to show the utmost respect to the office of the Presidency and to avoid … any clash between the judicial and executive branches of the Government." Nat'l Treasury Emps. Union v. Nixon, 492 F.2d 587, 616 (D.C. Cir. 1974); see also Nat'l Wildlife Fed'n v. United States, 626 F.2d 917, 928 (D.C. Cir. 1980) (declining to issue mandamus against the President). . . .
Furthermore, it is difficult to see how mandamus to reinstate officers removed by the President could ever be appropriate. "Although the remedy by mandamus is at law, its allowance is controlled by equitable principles, and it may be refused for reasons comparable to those" governing a court of equity. United States ex rel. Greathouse v. Dern, 289 U.S. 352, 359 (1933) (cleaned up). For this court to order the performance of executive acts vested exclusively in the President would "at best create[] an unseemly appearance of constitutional tension and at worst risk[] a violation of the constitutional separation of powers." Swan, 100 F.3d at 978; see also Johnson, 71 U.S. at 499 (rebuffing the idea of ordering the President to perform executive acts as "an absurd and excessive extravagance") (cleaned up). These constitutional concerns render mandamus—an extraordinary writ—wholly inappropriate in these removal cases.
If only William Marbury had asked the federal trial court in the District Court for mandamus against President Jefferson! I'm sure that would have gone over well.
Judge Rao has to be correct on this point. Moreover, under Mississippi v. Johnson, I don't think the Court could issue any type of injunction against the President concerning reinstatement. The D.C. Circuit seems to rely on the "fiction" that an injunction could run against other officers in the executive branch. But this fiction simply doesn't work.
I remain concerned that the Supreme Court will punt on the merits question and simply hold that the district court's remedy was improper. That would leave open the legal question about whether the removals were valid. That may seem like a way to duck the question, but it would create even more chaos down the road. Stop kicking the can down the road.
Judge Henderson's pithy dissent argues that the Supreme Court should decide this issue sooner rather than later:
We do the parties (especially a functioning executive branch) no favors by unnecessarily delaying Supreme Court review of this significant and surprisingly controversial aspect of Article II authority. Only the Supreme Court can decide the dispute and, in my opinion, the sooner, the better.
I agree. The Court has a rendezvous with Humphrey.
Monday Open Thread
What's on your mind?
Can A Federal Court Force The President To Negotiate With A Foreign Leader To Obtain Return of Alien?
Noem v. Garcia comes to the Supreme Court.
Earlier today, Solicitor General Sauer filed his first emergency application with the Supreme Court. This case concerns the District Court's order to return an alien who was deported to a prison in El Salvador. The statement lays out the stakes:
On Friday afternoon, a federal district judge in Maryland ordered unprecedented relief: dictating to the United States that it must not only negotiate with a foreign country to return an enemy alien on foreign soil, but also succeed by 11:59 p.m. tonight. Complicating the negotiations further, the alien is no ordinary individual, but rather a member of a designated foreign terrorist organization, MS-13, that the government has determined engages in "terrorist activity" or "terrorism"—or "retains the capability and intent to engage in terrorist activity or terrorism"—that "threatens the security of United States nationals or the national security of the United States." The order compels the government to allow Kilmar Armando Abrego Garcia to enter the United States on demand, or suffer the judicial consequences.
At a superficial level, I understand the district court's order. The judge found that Garcia was unlawfully deported, and therefore sought the return of the alien. Isn't this simply the sort of injunction that courts issue to the executive branch all the time? Not quite. Here, obtaining the return of the alien would require the President to successfully negotiate the release of the alien from a foreign leader. Even if the President makes this request, the foreign leader is under no obligation to comply. I am seriously doubtful this is the sort of power that the judiciary has.
The SG makes this argument quite forcefully:
Even amidst a deluge of unlawful injunctions, this order is remarkable. Even respondents did not ask the district court to force the United States to persuade El Salvador to release Abrego Garcia—a native of El Salvador detained in El Salvador— on a judicially mandated clock. For good reason: the Constitution charges the President, not federal district courts, with the conduct of foreign diplomacy and protecting the Nation against foreign terrorists, including by effectuating their removal. And this order sets the United States up for failure. The United States cannot guarantee success in sensitive international negotiations in advance, least of all when a court imposes an absurdly compressed, mandatory deadline that vastly complicates the give-and-take of foreign-relations negotiations. The United States does not control the sovereign nation of El Salvador, nor can it compel El Salvador to follow a federal judge's bidding. The Constitution vests the President with control over foreign negotiations so that the United States speaks with one voice, not so that the President's central Article II prerogatives can give way to district-court diplomacy. If this precedent stands, other district courts could order the United States to successfully negotiate the return of other removed aliens anywhere in the world by close of business. Under that logic, district courts would effectively have extraterritorial jurisdiction over the United States' diplomatic relations with the whole world.
The government concedes that Garcia's removal was in error, but maintains that the Supreme Court should recognize the sovereignty of a co-equal branch of government.
But, while the United States concedes that removal to El Salvador was an administrative error, see App., infra, 60a, that does not license district courts to seize control over foreign relations, treat the Executive Branch as a subordinate diplomat, and demand that the United States let a member of a foreign terrorist organization into America tonight.
Judges have ordered planes to be turned around and negotiations to be had with foreign leaders. I realize that Trump is breaking many norms, but judges are streamrolling through norms as well.
What does Chief Justice Roberts do here? The John Roberts of 2005, who vigorously ruled in favor of the Bush Administration with regard to Guantanamo Bay, would grant this application in a heartbeat. But the John Roberts of 2025 has been changed by decades of compromise.
I think the most likely outcome is that Roberts follows the lead of Judge J. Harvie Wilkinson on the Fourth Circuit: deny the application, but "clarify" that the District Court can only require the President to "facilitate" the return of the alien. Here is what Wilkinson wrote:
I would deny the request for a stay of the district court's order pending appeal. We deal here with what I hope is the extraordinary circumstance of the government conceding that it made an error in deporting the plaintiff to a foreign country for which he was not eligible for removal. In this situation, I think it legitimate for the district court to require that the government "facilitate" the plaintiff's return to the United States so that he may assert the rights that all apparently agree are due him under law. It is fair to read the district court's order as one requiring that the government facilitate Abrego Garcia's release, rather than demand it. The former seems within the trial court's lawful powers in this circumstance; the latter would be an intrusion on core executive powers that goes too far.
Like in the USAID case, the Court would ostensibly deny relief, but still offer instructions to the lower court--yet another advisory opinion.
I still remain confounded that the best the Bush Administration had to replace Rehnquist was Roberts, Wilkinson, or Luttig. Our bench is so much deeper today.
Update: Chief Justice Roberts granted a temporary administrative stay, and called on the Respondent to file a brief tomorrow (Tuesday):
Order entered by The Chief Justice: Upon consideration of the application of counsel for the applicants, it is ordered that the April 4, 2025 order of the United States District Court for the District of Maryland, case No. 8:25-cv-951, is hereby stayed pending further order of The Chief Justice or of the Court. It is further ordered that a response to the application be filed on or before Tuesday, April 8th, 2025, by 5 p.m. (EDT).
Almost immediately, Respondents filed their response. They were ready to go.
A Computational Error May Be Driving the Size of the Tariffs
Tariffs #2: AEI says that the Administration Seems to Have Used the Wrong Number in its Formula
In an American Enterprise Institute article, Kevin Corinth and Stan Veuger claim that the Administration made a mistake when figuring the "reciprocal" tariffs that are the basis for its the schedule of tariffs released last week:
The formula for the tariffs, originally credited to the Council of Economic Advisers and published by the Office of the United States Trade Representative, does not make economic sense. The trade deficit with a given country is not determined only by tariffs and non-tariff trade barriers, but also by international capital flows, supply chains, comparative advantage, geography, etc.
But even if one were to take the Trump Administration's tariff formula seriously, it makes an error that inflates the tariffs assumed to be levied by foreign countries four-fold. As a result, the "reciprocal" tariffs imposed by President Trump are highly inflated as well.
The alleged error is a technical one:
The Trump Administration assumes an elasticity of import demand with respect to import prices of four, and an elasticity of import prices with respect to tariffs of 0.25, the product of which is one and is the reason they cancel out in the Administration's formula.
However, the elasticity of import prices with respect to tariffs should be about one (actually 0.945), not 0.25 as the Trump Administration states. Their mistake is that they base the elasticity on the response of retail prices to tariffs, as opposed to import prices as they should have done. The article they cite by Alberto Cavallo and his coauthors makes this distinction clear. The authors state that "tariffs [are] passed through almost fully to US import prices," while finding "more mixed evidence regarding retail price increases." It is inconsistent to multiply the elasticity of import demand with respect to import prices by the elasticity of retail prices with respect to tariffs.
Correcting the Trump Administration's error would reduce the tariffs assumed to be applied by each country to the United States to about a fourth of their stated level, and as a result, cut the tariffs announced by President Trump on Wednesday by the same fraction, subject to the 10 percent tariff floor. As shown in Table 1 [in the AEI post], the tariff rate would not exceed 14 percent for any country. For all but a few countries, the tariff would be exactly 10 percent, the floor imposed by the Trump Administration.
Today in Supreme Court History: April 7, 1969
4/7/1969: Stanley v. Georgia decided.
"The Trump Administration's Unconstitutional Hate Mail to Harvard," by Prof. Genevieve Lakier (Chicago)
I've worked with Prof. Lakier on various projects recently, and have been much impressed with her analyses (as well as by her scholarship more generally). I'm therefore delighted to pass along her thoughts on the Administration's letter to Harvard University, with which I generally very much agree:
On April 3, officials in the Trump administration sent a letter to Harvard University, apparently in response to efforts by university administrators to open a "dialogue" with them about the funding cuts the administration had several days earlier announced it was considering making. The letter responded to the university's attempt to talk by outlining some, but possibly not all, of the changes the university would have to make in order to preserve the university's "continued financial relationship with the United States government."
The changes the letter asks for are sweeping, if also very much lacking in specifics. The letter demands, among other things that Harvard "review[]" and make "necessary changes" to academic programs and departments that "fuel antisemitic harassment" to "improve [their] viewpoint diversity and end ideological capture." Harvard also has to "consistently and proactively enforce its existing disciplinary policies, ensuring that senior administrative leaders are responsible for final decisions." It must impose a "comprehensive mask ban" on campus, and hold student protestors and student groups more strictly accountable for violation of the institutional time, place and manner rules.
It must cease all DEI programming on campus, as well as adopt a "merit-based" system of admissions and hiring (as opposed to what Harvard has now?). Harvard also has to "make meaningful governance reforms … to foster clear lines of authority and accountability, and … empower faculty and administrative leaders who are committed to implementing the changes indicated in this letter." It must in other words, reallocate power within the institution to those who agree with the administration's ideological agenda.
These demands are breathtaking in their ambition. The administration appears to be asking Harvard to change not only how it regulates speech and conduct on campus but how it performs its core educational and research functions, how it determines who constitutes the university community in the first place, and how it self-governs—although, again, without giving Harvard clear direction in any of these respects.
Today in Supreme Court History: April 6, 1938
4/6/1938: United States v. Carolene Products argued.
Justice Jackson's Dissent in Department of Education v. California Treats The Federal Government Like Just Another "Party"
The dissenters no longer treat the federal government with solicitude as a coordinate branch of government.
When I was a 2L, I saw Justice Scalia give a speech to the Baltimore Federalist Society Chapter. Someone asked him whether the Solicitor General should be considered the "Tenth Justice." Scalia scoffed at the question, and said that there were only nine Justices. Still, as I recall, Scalia acknowledged that the federal government was a special litigant before the Supreme Court. Indeed, the Solicitor General is the representative of a coordinate branch of government.
Historically at least, the Solicitor General, received some special treatment. The SG had the highest number of cert petitions granted. Moreover, the Solicitor General is uniquely skilled at opposing certiorari by finding, and in some cases inventing, vehicle problems. The SG routinely obtains leave to participate in oral argument. These requests are rarely granted for any other party. The Court often invites the SG to offer views on a particular case. Critically, however, when the SG files an emergency motion with the Court, the Justices have treated the case with urgency.
Yesterday, the Supreme Court split 5-4 in Department of Education v. California. The majority seems to have treated the Solicitor General's application with the sort of comity that was due to a coordinate branch of government. Indeed, it remains unclear to me why this deference was not granted to the even-more-pressing USAID case.
Justices Jackson and Sotomayor, however, would not have afforded the federal government such treatment. Rather, the dissenters would have apparently treated the incumbent administration as just another "party." To be sure, the dissenters identified several legal errors in the majority opinion, but at bottom, the disagreement concerned whether the executive should get any relief on the emergency docket, or instead wait for a regular appeal like any other party.
Consider how Justice Jackson described the United States as just another "party" seeking emergency relief:
I, for one, think it would be a grave mistake to permit parties seeking equitable emergency relief not only to make an inadequate showing of interim harm but also to seek relief on the basis of their concerns about issues that can be addressed later, in the ordinary course.
Yet, here we are. Instead of leaving the lower court judges alone to do the important work of efficiently adjudicating all of the parties' legal claims, the Supreme Courthas decided to enter the fray.
The Government has now gotten this Court to nullify clearly warranted interim injunctive relief, deflecting attention away from the Government's own highly questionable behavior, all without any showing of urgency or need. I worry that permitting the emergency docket to be hijacked in this way, by parties with tangential legal questions unrelated to imminent harm, damages our institutional credibility.
Department of Education v. California, as the name suggests, is a conflict between the federal government and the states. The lower courts issued emergency rulings against the federal government, even as the United States argues these cases belong in a different court. The only court that can set aside these rulings is the United States Supreme Court. Justice Jackson would have the case percolate in the normal course, and perhaps return to the Supreme Court through the certiorari process. That may be fitting for the leisurely pace of Justices who sit for about about thirty weeks per year, with a healthy summer break, but it disregards an urgent plea from the federal government.
I am still struck how Justice Jackson refers to subject matter jurisdiction, sovereign immunity, and venue as "tangential legal questions." She later refers to these bedrock principles as "shiny objects."
It is thus small wonder that the Government has chosen not to press its merits arguments in this emergency application. See n. 2, supra. What better way to avoid prompt consideration of the Plaintiff States' serious claims about the unlawful arbitrariness of the Government's conduct than to demand that jurists turn away from those core questions and entertain a host of side issues about the power of the District Court on an "emergency" basis? Courts that are properly mulling interim injunctive relief (to prevent imminent harms and thereby facilitate fair adjudication of potentially meritorious claims) should be wary of allowing defendants with weak underlying arguments to divert all attention to ancillary threshold and remedial questions. Children, pets, and magicians might find pleasure in the clever use of such shiny-object tactics. But a court of law should not be so easily distracted.
The Solicitor General has made an art form out of raising arguments based on sovereign immunity, jurisdiction, and venue. But Justice Jackson sees these arguments as a diversion. I wrote an entire book about how the Obama Administration consistently rewrote the Affordable Care Act, and the only conceivable defense was that no one was injured by these acts, so there was no standing. At the time, I heard only crickets. What we are seeing here is not new.
It seems pretty clear to me that the dissenters still refuse to "normalize" the Trump Administration. Perhaps Justice Jackson cannot embed talismans in her opinion to ward off evil, but she can still deny the government the traditional presumption of regularity. And, she concludes, it harms the Court's "institutional credibility" to grant the government such comity. I disagree. Quite the opposite, the Court weakens itself in immeasurable ways by refusing to treat this administration as the duly-elected coordinate branch that it is. Let law professors argue whether this President is entitled to the presumption. Judges should stay in their own lane.
