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Brickbat: Flag Football

2026-05-05T00:34:35Z

A new bill in Minnesota, proposed by eight Democratic lawmakers, would cut state funding by 10 percent to any city or county that flies the old state flag instead of the new one adopted in 2024. The idea comes from state Rep. Mike Freiberg (D–Golden Valley), who is upset that some cities are still using the old design and turning the flag change into a "culture war." He says the old flag, which depicted a farmer and an Indian on a horse, was "not only kind of boring but also kind of racist." Several cities, including Inver Grove Heights, Elk River, and Champlin, have voted to keep flying the old flag. House Speaker Lisa Demuth (R–Cold Spring) calls the bill ridiculous and says it is "dead on arrival," arguing it would unfairly punish local services like police and fire departments while ignoring real problems facing Minnesotans.

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Open Thread

2026-05-05T07:00:00Z

The post Open Thread appeared first on Reason.com.

The Partisan Asymmetry In Callais

2026-05-05T05:41:38Z

In most political disputes, there will usually be an argument that helps the left and an argument that helps the right. A common rhetorical tactic is to insist that one side or other is in fact being neutral, while the other side is being partisan. In the abstract, these arguments should not work because neither side is being neutral. But in various areas of the law, there are liberal institutional asymmetries--legal principles that ensure the liberal position is seen as the neutral baseline.

One of the largest asymmetries was (past tense) the Voting Rights Act. I wrote in October:

Because African American and Hispanic voters tend to vote for Democratic politicians, Democrats will benefit from VRA claims. By contrast, because White voters tend to vote for Republican politicians, Republicans will less likely benefit from VRA claims. What is the upshot? Gerrymandered maps in the South drawn by Republican legislatures are routinely blocked under the VRA, while gerrymandered maps in the North drawn by Democratic legislatures are far more likely to survive.

Callais eliminated this asymmetry. Going forward, absent evidence of intentional discrimination, racial minorities will no longer receive an electoral boost through the VRA. The upshot of Callais, as well as Students for Fair Admissions, is that the government can no longer adopt "benign" classifications to "help" racial minorities. I use scare quotes because I doubt that any of these classifications actually helped the people they purproted to help. Moreover, all classifications are zero-sum games, and to help one race is to hurt another race. The post-Callais world may see a realignment of political power in the South that is difficult to predict. Gingles froze the politics of the 1980s in place. Indeed, many aging members of opportunity districts have served that long. Going forward, black people will no longer be moved around like pawns to maximize Democratic districts.

Now, as Justice Thomas wrote in Allen v. Milligan, we will have a system where "the minority simply cannot elect its preferred candidates; it is, after all, a minority." The neutral rule is not that federal courts draw bizarrely-shaped districts that cobble black voters together for no reason other than they are black. Decades of VRA litigation have conditioned us to thinking that Gingles is neutral. It's not. Instead, the neutral rule is that the demographics with fewer voters have a harder time electing their preferred candidate. Callais reimposed the neutral rule.

The aftermath of Callais further demonstrates this warped conception of neutrality. The private plaintiffs asked the Supreme Court to issue the judgment right away. Last week, I observed that the issuance of the judgment is irrelevant. There is no injunction blocking the implementation of new maps. Still, the plaintiffs asked for the judgment to be issued forthwith.

The per curiam order granted the motion to issue the judgment forthwith:

To permit the losing party time to file a petition for rehearing, the Clerk of Court ordinarily waits 32 days after the entry of the Court's judgment to send the opinion and a certified copy of the judgment to the clerk of the lower court.Sup. Ct. Rule 45.3. This period is subject to adjustment; the default applies "unless the Court or a Justice shortens or extends the time." Ibid. The Callais appellees have asked for the Clerk to issue the judgment forthwith so that "in the event of a judicial remedy," the District Court may "oversee an orderly process." App. 3. Appellant Louisiana does not oppose this application. And while the Robinson appellants oppose it, they have not expressed any intent to ask this Court to reconsider its judgment. Thus, the application toissue the judgment forthwith presented to JUSTICE ALITO and by him referred to the Court is granted.

The judgment is issued after 32 days to allow the losing party time to seek reconsideration, but that rule can be waived if there is good cause. In Callais, those seeking expedition provided good cause. Those opposing expedition made a strategic miscue. When the non-African American plaintiffs sought to issue the mandate forthwith, the African American plaintiffs should have concurrently filed a motion for reconsideration. On what grounds, I don't know, but they could have filed something. That would at least have triggered another ground of (pointless) briefing, and given the Court a rationale to not issue the judgment forthwith. But the African American plaintiffs did not take that course. Instead, they simply opposed the issuance of the judgment. The Supreme Court called their bluff.

Justice Jackson, however, wrote a harsh dissent. She all-but charged the majority with partisanship.

These post-Callais developments have a strong political undercurrent. Louisiana's hurried response to the Callais decision unfolds in the midst of an ongoing statewide election, against the backdrop of a pitched redistricting battle among state governments that appear to be acting as proxies for their favored political parties.2 And as always, the Court has a choice. By my count, we have granted an application to issue the judgment forthwith over a party's objection only twice in the last 25 years. See Whole Woman's Health v. Jackson, No. 21A220, 2021 WL 5931622 (Dec. 16, 2021); Order in Adoptive Couple v. Baby Girl, No. 13A7, etc. (June 28, 2013). To avoid the appearance of partiality here, we could, as per usual, opt to stay on the sidelines and take no position by applying our default procedures. But, today, the Court chooses the opposite.

Jackson concludes:

The Court unshackles itself from both constraints today and dives into the fray. And just like that, those principles give way to power. Because this abandon is unwarranted and unwise, respectfully, I dissent.

Justice Alito responds in a concurrence, joined by Justices Thomas and Gorsuch. Alito writes that Jackson's charge is "baseless and insulting." Why? Jackson is so quick to charge the conservatives with partisanship that she never countenances that her own view might be motivated by partisanship.

The second reason offered by the dissent is that we should allow the 32-day period to run out in order to "avoid theappearance of partiality." Post, at 3 (opinion of JACKSON, J.). But the dissent does not explain why its insistence on unthinking compliance with Rule 45.3's default rule doesnot create the appearance of partiality (by running out the clock) on behalf of those who may find it politically advantageous to have the election occur under the unconstitutional map.

The Republicans want to issue the judgment right away, and the Democrats do not. The Democrats want to use the unconstitutional maps, and the Republicans want new maps. Why is it that only the Democrats are behaving neutrally while the Republicans are behaving in a partisan fashion? I think both sides are serving their own self interest. Therefore, it cannot be that a decision favoring the left is "neutral" while a decision favoring the right is "partial."

Again, Jackson does not explain why refusing to issue the judgment is the partisan rule. The rules permit the issuance of the judgment where there is good cause, and when the non-prevailing party have given no indication they will seek reconsideration, there is no good cause to stand by.

Alito writes further that failing to act to avoid the appearance of partisanship is in fact partisan.

The dissent goes on to claim that our decision represents an unprincipled use of power. See post, at 4 ("And just likethat, those principles give way to power"). That is a groundless and utterly irresponsible charge. What principle has the Court violated? The principle that Rule 45.3's 32-day default period should never be shortened even when thereis good reason to do so? The principle that we should never take any action that might unjustifiably be criticized as partisan?

We should sandblast "Equal Justice Under Law" off the Supreme Court's portico and chisel into marble this passage. The Supreme Court decisions that I am most critical of stem not from a failure of jurisprudence but from a failure of courage. Judges who are unwilling to be criticized for partisanship simply acquiesce to liberal conceptions of "neutrality." Perhaps Callais will steel the Court to stop falling in this progressive trap. The left is simply gaslighting conservatives as to what neutrality is. Neutrality is applying the law without fear or favor for either side.

The post The Partisan Asymmetry In Callais appeared first on Reason.com.

Why Do Big City Democrats Keep Electing Socialists?

2026-05-04T23:33:54Z

This week, editors Peter Suderman, Katherine Mangu-Ward, and Nick Gillespie are joined by special guest Kate Andrews, opinion journalist for The Washington Post, to discuss how big city governance is playing out in Democratic cities. They examine why candidates with strong ties to organized labor and socialist policy agendas, such as New York Mayor Zohran Mamdani and Seattle Mayor Katie Wilson, keep winning in major cities, even as affordability worsens and residents leave. The panel also considers whether these outcomes reflect voter preferences, weak alternatives, or a broader failure of reform-oriented factions on the left.

Next, the panel turns to Iran, where President Donald Trump has announced "Project Freedom," a plan for the U.S. Navy to escort ships through the Strait of Hormuz amid ongoing tensions and uncertainty over the conflict's trajectory. They discuss the economic stakes, the political fallout, and what the lack of a clear resolution suggests about the long-term direction of U.S. foreign policy. The conversation then shifts to King Charles' visit to the United States and what it reveals about political culture, symbolism, and leadership on both sides of the Atlantic. Finally, a listener asks why voters continue to reward pandering politicians and whether meaningful change is possible within the current electoral system.

0:00—Why big city Democrats keep electing socialists
23:01—The Strait of Hormuz and "Project Freedom"
36:35—Listener question on voter behavior
45:34—King Charles visits the U.S.
53:03—Gillespie's interview with Justice Neil Gorsuch
57:08—Weekly cultural recommendations

Mentioned in the podcast:

"Seattle's Socialist Mayor Laughs at Wealthy Residents Leaving To Escape High Taxes," by J.D. Tuccille
"Project Freedom," by Liz Wolfe
"Justice Neil Gorsuch: 'Aspirations for Power Need To Be Checked'," by Nick Gillespie
"Prison Doesn't Work the Way You Think," by Billy Binion
"Is The Devil Wears Prada 2 the Great Millennial Journalism Movie?" by Peter Suderman

The post Why Do Big City Democrats Keep Electing Socialists? appeared first on Reason.com.

California Says It Detected a Disease-Carrying Bug. So it Destroyed 32,000 Trees, 5 Miles Away.

2026-05-04T20:20:42Z

Mark Collins has run Evergreen Wholesale, a 230-acre plant nursery in San Diego, for over 40 years. But this year, he almost had to shut it down after employees from the state agriculture department destroyed more than 32,000 of his citrus plants because of an anti-pest regulation.

Collins is now suing California's Department of Food and Agriculture (CDFA) in federal court, claiming the state cost him up to $3 million in damages.

Collins' battle with the state stems from an invasive insect called the Asian citrus psyllid (ACP). The ACP is a tiny speckled brown insect, just one-eighth of an inch long, that has wreaked havoc on the U.S. citrus industry. The bugs carry an incurable malady called huanglongbing, or "citrus greening" disease, which causes infected trees to produce bitter, green fruits. The disease poses no threat to humans or animals, but it causes infected trees to die within a few years and has devastated Florida's citrus farms.

ACPs were first spotted in California in 2008 and have spread throughout the southern part of the state. Fearing the insects would destroy California's citrus farms, state regulators issued an emergency order in 2018, which imposed a 5-mile radius quarantine zone around any plant that tested positive for huanglongbing.

Collins, who has lived in both Florida and California, says that ACPs prefer humid climates, but are less of a threat in Escondido, where his farm is located. Still, he anticipated the bug could be a problem, so he built an ACP house, a protective structure for his plants. He says he also took other preventive measures to keep the bugs away, including spraying his plants regularly and treating his soil, but none of that seemed to matter to the state.

In November 2023, the CDFA declared a quarantine zone based on an "undisclosed" finding of huanglongbing disease about five miles away, according to Collins' lawsuit. That quarantine zone touched one corner of his farm, where Collins says there were no citrus trees.

The lawsuit says the state then gave Collins three "impractical and impossible" choices: He could move all the trees on his land into insect-resistant structures and agree to only sell the plants within the quarantine area after two years; plant all the trees in the ground, which Collins says would take years—and he could not fit them all on his property; or, face the destruction of his stock. To save his business, he opted to put new plants in the ACP houses.

Collins says he responded to the agency's demands in time, attempting to find a better solution, but he claims the agency "refused" to collaborate with him. Then, in May of 2025, Collins said the CDFA could not produce evidence of ACP on Evergreen's property during an administrative hearing, and he maintained that his trees were healthy.

A few months later, a judge ordered the CDFA to destroy and remove Collins' trees, and in January of this year, state agriculture employees arrived at his farm to destroy the plants.

"The abatement action taken on Evergreen Nursery was conducted pursuant to an administrative decision and order after a multiday formal hearing at which Evergreen Nursery was represented by counsel," a CDFA spokesperson told NBC San Diego. "The abatement was necessary because the nursery opted not to comply with the requirements in the California Code of Regulations applicable to all citrus nursery stock in the quarantine zone. The quarantine zone was imposed based on the detection of [huanglongbing], and additional infected trees have subsequently been found in the area."

In addition to leaving boxes and buckets scattered throughout his farm, Collins says the state left tree roots, rendering their treatment of the perceived ACP threat moot. After a rainfall, Collins says the trees grew over a foot tall within a few months, so state employees came back to his farm for a second time, leaving another mess.

While state regulators might argue that these measures were necessary to contain the spread of the disease and protect other farms, Collins argues that California's "heavy-handed regulatory scheme" and "sweeping quarantine zones" have "prevent[ed] small businesses like Evergreen from continuing its operations providing healthy, pest free, affordable citrus plants for public planting."

In the absence of selling citrus trees, Collins has been able to keep his business afloat because he had previously sold a majority of Evergreen's business to another farm. Otherwise, he says he would have had to lay off his 24 employees. Despite everything he has lost, he is determined to continue his lawsuit.

"I'm so much of a fan of individual rights, I'm willing to slug it out with them," he told Reason's Bess Byers.

Collins says he asked state officials why they could not just have tested his trees before destroying them, but the state told him they did not have enough funding to do so. But clearly, California did have enough money to chop them down, instead of trusting Collins to take care of his property as he saw fit.

The post California Says It Detected a Disease-Carrying Bug. So it Destroyed 32,000 Trees, 5 Miles Away. appeared first on Reason.com.

Trump's New European Car Tariffs Demonstrate Why His 'Deals' Are Worthless

2026-05-04T18:50:11Z

When President Donald Trump struck a trade deal with the European Union in July, officials on both sides stressed how it would ensure long-term stability to trans-Atlantic trade.

The Trump administration called the deal a "generational modernization of the transatlantic alliance." European Commission President Ursula von der Leyen said it "restores stability and predictability" by locking in 15 percent tariffs on most European goods exported to the U.S., while most American imports to Europe would be exempt from tariffs.

In other words, Trump got what he wanted out of that deal: A reduction in tariffs on American exports and the establishment of a new, permanent baseline tariff on European goods. European leaders also felt like they'd won something: the 15 percent tariff was lower than the 25 percent tariff Trump had threatened, and the deal would stop Trump from hiking tariffs the next time he was in a bad mood.

So much for that.

On Friday, Trump announced that he would raise tariffs on European-made cars to 25 percent. (Those tariffs are authorized by Section 232 of the Trade Expansion Act of 1962, so they are not affected by the Supreme Court's ruling in February that limited some of the president's power to impose tariffs unilaterally.)

Those higher tariffs could cost automakers $4 billion this year.

In a post on Truth Social, Trump said the tariff hike was in response to the E.U. "not complying with our fully agreed to Trade Deal."

The trade deal, however, is not fully agreed to, so it is hard to understand how the Europeans could be breaking it. The E.U. is still in the process of ratifying it—even though it cleared the main legislative hurdle in March—and the Trump administration has not even asked Congress to approve it. Adding to the confusion is the fact that European trade officials visited the White House just weeks ago, and everyone seemed to be getting along. After that meeting, the U.S. and E.U. announced a new joint partnership for some strategically important minerals.

Trump's sudden decision to hike tariffs has now put the entire deal at risk—and once again escalated tensions with Europe.

Bernd Lange, chair of the European Parliament's International Trade Committee, wrote on Twitter that Trump's sudden tariff hike was "unacceptable."

"Trust is good, but against arbitrariness, only clear rules help," he added.

He's right. Friday's announcement reveals, once again, how little any trading partner can trust Trump. The president's word is effectively worthless, and his "deals" are subject to change at any time, for any reason. Who would enter into serious negotiations with someone like that?

Convincing other countries to negotiate better trading terms with the U.S. had been a central promise of Trump's tariff regime. But this new spat over imported cars shows that Trump still doesn't understand why trade deals matter in the first place.

The whole point of a trade deal is to provide stability for individuals and businesses as they plan transactions and capital investments. A 15 percent tariff is costly, but a 15 percent tariff that can be hiked to 25 percent (or higher) at the drop of a hat will have consequences that go well beyond the higher taxes.

That means Trump's threat to blow up the E.U. trade deal also undermines the ability of private citizens and businesses in other parts of the world to invest in the United States.

A tariff increase would "threaten the progress that has already been made to open EU markets and grow the U.S. auto industry," Jennifer Safavian, CEO of Autos Drive America, an industry group, told the Associated Press.

Those tariffs would be another blow to an auto industry that's already suffering from America's tariffs on steel and aluminum, and from the ongoing costs of Trump's illegal war with Iran. Thanks to the tariffs and the closure of the Strait of Hormuz, aluminum prices are 90 percent higher than they were one year ago, The Wall Street Journal reports.

It's not clear what Trump hopes to accomplish by slapping higher tariffs on European cars. Indeed, it's not even clear why he made this decision.

Regardless, a trade "deal" that can be torn up by one person at the drop of a hat is not really a trade deal at all. That's why Congress must take away presidential power over tariffs.

The post Trump's New European Car Tariffs Demonstrate Why His 'Deals' Are Worthless appeared first on Reason.com.

Michael Auslin Guest-Blogging This Week About "National Treasure: How the Declaration of Independence Made America"

2026-04-12T23:54:17Z

I'm delighted to report that Michael Auslin, a Distinguished Research Fellow here at Hoover, will be guest-blogging this week about his new book. From the publisher's description:

The inspiring story of the Declaration of Independence—the first to take us from its drafting by Thomas Jefferson to today—charting the many lives of a document that captures the soul of America and has united generations around its defiant ideals, published for the 250th anniversary of America's founding.

Quiet and politically untested, Thomas Jefferson was not the obvious choice to draft a statement of principles explaining why the American colonies were breaking ties with the King of England. His soaring rhetoric would inspire generations of Americans to live up to the founders' dreams. National Treasure is the gripping story of our most revered founding relic, as a physical object and a set of ideals that have made America what it is today.

An award-winning historian, Michael Auslin take us from the boarding house in Philadelphia where Jefferson put quill to paper to the Declaration's covert signing, dissemination in the doldrums of the revolutionary war, and long, harrowing, and ultimately hallowed afterlife. We follow the parchment as it is hauled out of a soon-to-be-burning Washington in 1814 and see it hidden in a dank cellar, posted in classrooms, recited on village greens, printed on handkerchiefs, and used to sell insurance and bundle coal. An inspiration to both Abraham Lincoln and Jefferson Davis in the Civil War, it has grown more important for each new generation. While FDR and Churchill celebrated its commitment to freedom from tyranny, the document itself was lowered into a bunker at Fort Knox. After the war, its precious ink fading, it was painstakingly preserved and enshrined.

Through it all, Jefferson's words have inspired implausibly varied causes, from suffragists and civil rights leaders to groups waging war on the US government. As Jefferson had hoped, the principles enshrined in the Declaration became a beacon to the world. But what lessons should we take from it today? Can this statement of ideals in whose name the signers pledged their lives and sacred honor bring a disparate nation together? As we gather to celebrate the 250th anniversary of the founders' bold experiment in democracy, Auslin reminds us that this enduring document was not just a call for freedom and equality but an eloquent statement of the principles that bind us together.

Michael Auslin is the Payson J. Treat Distinguished Research Fellow at Stanford University's Hoover Institution. Prior to that, he was an associate professor of history at Yale. He wrote National Treasure as a Distinguished Visiting Scholar at the Library of Congress's John W. Kluge Center and an American Heritage Partners Fellow at the Society of the Cincinnati's American Revolution Institute. He writes a Substack, The Patowmack Packet, on Washington, DC, past and present, and lives in Virginia.

And from the blurbs:

"Even 250 candles on the nation's birthday cake cannot be as illuminating as Michael Auslin's fascinating story of the making, and still undiminished resonance, of the world's most consequential political document. His mind-opening book closes a question that is currently hotly contested. Is ours a creedal nation? Yes! Auslin supplies the exclamation mark."
—George F. Will, author of American Happiness and Discontents

"The Declaration—both the parchment and its principles—have had an eventful history. Michael Auslin deftly walks us through each chapter, as we have forgotten the document, mangled it, mythologized it, hijacked it, and every once in a while even lived up to it. A nimble, captivating view of the defiant 1,320 words that have knit themselves into every chapter of the last 250 years, only gaining in importance along the way."
—Stacy Schiff, author of The Revolutionary

"Deeply researched and propulsively written, National Treasure follows the Declaration of Independence from its birth in 1776 to today. Michael Auslin has given us much to debate and much to celebrate. Treating our shared American scripture as a set of ideas, a national covenant, and a material artifact that continues to evolve, he has uncovered a history that will inspire, provoke, and delight even readers deeply familiar with our founding vision."
—Jane Kamensky, President & CEO of Thomas Jefferson's Monticello

"For the most powerful nation in the world to be founded on a piece of paper is remarkable enough, but for it to continue to inspire the spread of liberty and democracy a quarter of a millennium later—in ways the original signers could never have imagined—is truly extraordinary. Scrupulously researched and beautifully written, this book reads like an adventure story. Michael Auslin's intimate history of the document that changed the world is scholarship at its best: witty, fascinating, and never more relevant."
—Andrew Roberts, author of The Last King of America

"As we commemorate our nation's 250th at a time of political division, we can strengthen our shared bonds by appreciating the profound story of our Declaration of Independence. In this fascinating and well-researched book, Michael Auslin weaves the glorious narrative of this document—as a piece of parchment, as a symbol of enduring principles, and as a cultural object—from its inception to our day. It's a marvelous way to celebrate who we are, and who we should be."
—Walter Isaacson, author of Benjamin Franklin

"An engaging account of the fortunes of the document . . . Auslin does good historical footwork . . . Welcome reading in this bisesquicentennial year."
—Kirkus Reviews

The post Michael Auslin Guest-Blogging This Week About "National Treasure: How the Declaration of Independence Made America" appeared first on Reason.com.

Condemning Nicotine Pouches, Trump's Surgeon General Nominee Reveals Her Hostility to Harm Reduction

2026-05-04T18:18:52Z

During his Senate confirmation hearing in January 2025, Secretary of Health and Human Services Robert F. Kennedy Jr. slipped what seemed to be a nicotine pouch into his mouth, replacing a spent one that had been lodged between his lower lip and gums. Nicole Saphier, the radiologist and Fox News contributor whose nomination as surgeon general President Donald Trump announced last Thursday, was appalled. Her reaction, which she expressed in a New York Post op-ed piece published after Kennedy's hearing, does not bode well for her attitude toward tobacco harm reduction or her ability to accurately discuss health topics as surgeon general.

"After decades of relentless public health campaigns and advocacy against cigarette smoking, we are witnessing the tangible benefits, with [declines in] smoking rates and the illnesses associated with [smoking]," Saphier wrote. "But as we relish this good news, the rise of nicotine pouches could upend this great advancement in public health."

By preposterously suggesting that rising use of nicotine pouches might cancel out the health gains from reduced cigarette smoking, Saphier misled her readers in two important ways. First, she glided over the huge difference in the health risks posed by these two forms of nicotine consumption. Second, she ignored the role that nicotine pouches can play in "this great advancement" by offering smokers a much less hazardous alternative to cigarettes.

The Food and Drug Administration (FDA) recognized the harm-reducing potential of nicotine pouches in the waning days of the Biden administration, when it authorized the marketing of Zyn nicotine pouches in two doses and 10 flavors. That decision was based on the FDA's determination that "the new products offer greater benefits to population health than risks." The data, said Matthew Farrelly, director of the Office of Science at the FDA's Center for Tobacco Products, "show that these nicotine pouch products meet that bar by benefiting adults who use cigarettes and/or smokeless tobacco products and completely switch to these products."

Nicotine pouches contain "substantially lower amounts of harmful constituents than cigarettes," the FDA noted. They therefore offer "a lower-risk alternative for adults who smoke cigarettes."

Saphier not only ignored the scientific evidence underlying that analysis. She cast doubt on the health advantages of nicotine pouches, saying they are sold "under the pretext that they are a safer alternative to traditional cigarettes." Social media influencers "promote these products as tobacco-free, smoke-free and odorless, undoubtedly more appealing than the carcinogen-laden smoke of cigarettes and tobacco," she complained. "These marketing strategies seem cleverly designed to appeal to younger Americans."

The thing is, nicotine pouches are "a safer alternative to traditional cigarettes," as the FDA recognized. They are also indisputably "tobacco-free" and "smoke-free," meaning their use does not entail exposure to the myriad toxins and carcinogens generated by tobacco combustion. But Saphier made it sound as if these advantages are illusory, a mere "pretext" or marketing gimmick.

"The FDA has authorized Zyn and other pouches as a smoking reduction aid, giving them a reputation as a less harmful alternative," Saphier wrote. "Yet this authorization does not equate to a declaration of safety."

By saying that nicotine pouches have "a reputation as a less harmful alternative," Saphier again implied that the basis for that reputation is dubious. And by noting that the FDA's decision does not amount to "a declaration of safety," she obscured the whole point of harm reduction, which is not and never has been aimed at eliminating all risk.

Like pretty much everything that humans do, drug use carries some level of risk. But when one form of drug use is much less likely than another to make you sick or kill you, it is obviously preferable if the aim is reducing morbidity and mortality, the avowed goal of public health officials such as the surgeon general.

Saphier seems determined to obfuscate that point. Without ever conceding that nicotine pouches are safer than cigarettes, she warned that they "still deliver nicotine" (duh), which is "an addictive chemical known for its impact on cardiovascular health and brain development and its high potential to foster dependency." As a physician and "a mom of three impressionable kids," she said, "I'm deeply concerned about how the media are targeting nicotine pouches directly at teens and young adults, helping to normalize nicotine use at an age when the brain is still developing—and most vulnerable."

Nicotine pouches are "particularly dangerous to adolescents and young adults," Saphier wrote. "Given their still-developing brains, nicotine can impair cognitive function, alter brain development, affect concentration and self-control and potentially derail educational and social development. Regular use of nicotine can also lead to appetite suppression [and] weight loss and possibly fuel body-image disorders that run rampant among youth."

Whatever you make of those warnings, they have nothing to do with the question of whether adults should be allowed to purchase these products. Saphier takes it for granted that concerns about underage consumption should trump the rights of adult smokers who might be interested in switching to nicotine pouches—a change that could literally save their lives by enabling them to avoid smoking-related diseases.

That assumption is morally dubious on its face, and it is especially questionable in light of data on adolescent use of nicotine pouches. According to the National Youth Tobacco Survey, just 1.6 percent of middle and high school students reported past-month use of nicotine pouches last year, down from 1.8 percent in 2024.

Saphier nevertheless castigated Kennedy, who will be her boss if she is confirmed as surgeon general, for "platforming this product on Capitol Hill." Kennedy "was positioning himself as a warrior against chronic illness and discussing how he plans to combat diseases including food and drug addiction," she said. "Here is a figure publicly advocating for health, yet engaging in the use of a highly addictive product while doing so."

Leaving aside the question of whether it makes sense to view habits as diseases, Saphier's reference to food "addiction" raises some interesting questions. Is overeating or a nutritionally deficient diet the sort of problem that can be addressed only by complete abstinence, which is the solution that Saphier favors for nicotine? Obviously not: When it comes to the food we eat, abstinence is not an option, and even incremental improvements can make a difference. The same goes for nicotine consumption. And when we are talking about a change that entails a dramatic reduction in disease risks, the public health calculation should be a no-brainer.

A November 2025 profile of Kennedy in The Atlantic noted that "he regularly pulls Zyn nicotine pouches from his shirt pocket or desk drawers to tuck between his lower lip and gum." Although the author of that piece, Michael Scherer, thought Kennedy's nicotine habit was inconsistent with "federal health advisories," Kennedy was unapologetic. "I'm not telling people that they should do anything that I do," he said. "I just say 'get in shape.'"

Whatever you think of that explanation, Kennedy's take on nicotine pouches as a harm-reduction tool is much more empirically grounded than Saphier's. "Nicotine itself does not cause cancer," he noted in a 2025 interview with Brazilian journalists. "Nicotine is of course clearly addictive, but it is not carcinogenic." He added that "nicotine pouches are probably the safest way to consume nicotine, with vapes being second," but "the thing we really want to get away from [is] cigarettes."

Although Kennedy's views on subjects such as vaccines and food dyes might make you question his scientific expertise, his assessment in this case was accurate and sensible. By contrast, Saphier can't even bring herself to acknowledge the harm-reducing promise of nicotine pouches. Her highly misleading treatment of the subject would be medical malpractice if she were offering advice to a patient who smoked and was thinking about switching to the product that Kennedy uses. But soon, if the Senate is willing, she will be charged with advising Americans about such matters.

"When [Saphier] attacked RFK Jr. last year, she casually conflated nicotine pouches, one of the safest ways to use nicotine, with cigarettes and promoted panic over youth nicotine use, which is at a 25-year low," notes Guy Bentley, director of consumer freedom at Reason Foundation (which publishes this website). "How can she be trusted to promote accurate information on safer nicotine alternatives to America's smokers?"

The post Condemning Nicotine Pouches, Trump's Surgeon General Nominee Reveals Her Hostility to Harm Reduction appeared first on Reason.com.

Justice Alito Enters Administrative Stay of Mifepristone Order

2026-05-04T17:43:25Z

This morning Justice Alito entered an administrative stay (two actually) of the order of the U.S. Court of Appeals for the Fifth Circuit halting the Food and Drug Administration regulation allowing for the prescription of mifepristone via telemedicine. Mifepristone (aka RU-486) is used in combination with misoprostol as an abortifacient. The stays are in response to applications filed by mifepristone's manufacturers, which I discussed here.

Both orders--one in response to the application from Danco Laboratories, the other in response to GenBioPro--are identical. They are fairly pro forma, and indicate little about what the Court may ultimately do. They each stay the Fifth Circuit's order until 5pm on May 11 and request a response to the applications by May 7. Note that the ordered response will come from the plaintiffs (Louisiana, et al.). The stays do not explicitly request a response from the Trump Administration.

As I noted yesterday, the Trump Administration's position on the significance of the stay of the 2023 FDA regulation would likely influence the Court's consideration of the manufacturers' petitions. Even if a majority of justices agree with me that the bases upon which the Fifth Circuit entered the stay are questionable, both in regard to Article III standing and the merits, the Court is less likely to block the Fifth Circuit's order if the federal government does not ask it to.

The Trump Administration cannot be happy it is in this position. As the Wall Street Journal reported this morning, pro-life organizations are very upset with Trump's apparent softening on abortion questions in his second term. A filing with the Supreme Court seeking to preserve access to mifepristone via telemedicine will only add fuel to this fire.

Louisiana's primary complaint in the current litigation is that the availability of mifepristone via telemedicine makes it too easy for individuals to circumvent Louisiana's abortion laws, particularly when telemedicine is combined with mail-order prescriptions. It seems to me, though, that there are things that the federal government could do to address this concern other than modify the 2023 rule. For instance, the Department of Justice could use the Comstock Act to prosecute the mailing of mifepristone where doing so would violate applicable state laws, and thereby help reinforce state policy choices with regard to abortion without imposing a national policy. We will see whether the Administration considers any moves in this direction.

The post Justice Alito Enters Administrative Stay of Mifepristone Order appeared first on Reason.com.

How a Bill Banning AI Companions for Kids Could Usher in Widespread ID Checks Online

2026-05-04T15:51:10Z

Sen. Josh Hawley's Guidelines for User Age-verification and Responsible Dialogue (GUARD) Act advanced out of the Senate Judiciary committee last week. "A Trojan horse for universal online ID checks," is how Jibran Ludwig of Fight for the Future described it.

The bill would require anyone using an AI chatbot to provide proof of identity and ban minors from interacting with many sorts of AI chatbots entirely.

Unlike some social media age verification bills, it would give parents no right to opt out of the rules the federal government sets on their kids' technology use.

The GUARD Act is co-sponsored by Sen. Richard Blumenthal (D–Conn.), who—like Hawley—has long been a champ at moral panic around technology. (Cue: Bipartisan is just another word for really bad idea…)

And while some on the Senate Judiciary Committee expressed concerns about privacy or how this could actually backfire and harm minors, those senators still voted to advance the bill. It "easily passed in committee," notes The Hill, despite some senators' reservations:

Sen. Alex Padilla (D-Calif.), who voted yes, said there are concerns about "potential privacy and security risks" with the age-verification component, suggesting it may need to be "fine-tuned."

Sen. Ted Cruz (R-Texas), who supported various kids online safety bills, said he would vote yes but noted the bill needs "some revisions."

Cruz was concerned the bill would completely ban all AI chatbots for minors, noting their potential benefits. Hawley clarified the bill does not ban all AI chatbots for minors, but rather it "prevents AI chatbots that engage with minors from pushing sexually explicit material to the minor," or encouraging self-harm or suicide.

That seems like some incredibly disingenuous framing from Hawley. While the bill does ban what he says it does, it would also do a whole lot more. Such as:

1) Ban Kids From Using Friendly AI

The GUARD Act defines AI companion as any AI system that "provides adaptive, human-like responses to user inputs; and is designed to encourage or facilitate the simulation of interpersonal or emotional interaction, friendship, companionship, or therapeutic communication." AI companies would be required to prohibit anyone under age 18 "from accessing or using any AI companion," the GUARD Act says.

That obviously goes way beyond stopping teens from chatting with robots about sex or violence. It takes away their right to talk to AI companions about any topic. And it defines AI companion so broadly that it would encompass any AI chatbot that affects a friendly or familiar tone.

Even at its least broad, such a ban would be a bad idea. Some teens might benefit from AI therapy tools. And there are all sorts of not-bad reasons why a teenager might want to engage with an AI chatbot capable of providing supportive or friendly communication.

In the broad form in which it's written, the bill could stop young people from engaging chatbots in all sorts of neutral or even positive interactions, including using "online tutors, practicing a foreign language, or developing an array of skills," as Jennifer Huddleston and Juan Londoño point out at the Cato Institute's blog:

AI tools have also become ubiquitous in many products, doing everything from providing tech support to helping customize a burrito (and perhaps being able to write code in the process). A February 2026 survey by the Pew Research Center found that over half of US teens use chatbots for help with schoolwork. The GUARD Act would prevent those under 18 from accessing any of these products.

2) Take Away Parental Rights

Parents would have no ability to opt their kids out of this ban. The GUARD Act takes the choice about when and how to introduce young people to certain AI technologies out of families' hands and into the hands of the state.

"Restricting parental choice in this manner is indicative of a failure to consider both the unique values of every family and the potential for AI chatbots to improve the lives of many young people, including those with disabilities like autism," note Huddleston and Londoño. "Different families may have different views on when a child should or shouldn't access any technology. This decision appropriately belongs with parents, not policymakers."

3) Invade Everyone's Privacy

Besides its negative implications for minors, the GUARD Act would be a big blow to privacy, since implementing it would require some sort of identity verification from all AI chatbot users.

The GUARD Act says that any provider of an AI chatbot must require all users to create an account, and that creating an account requires age verification.

"By mandating government ID or equivalent age verification for any American who wishes to interact with an AI chatbot, the bill burdens the speech and associational rights of every adult, not just minors," Ashkhen Kazaryan of The Future for Free Speech told The Hill.

Because AI tools and chatbots are becoming ubiquitous across all types of digital platforms, the GUARD Act's age verification scheme could wind up much broader than it might initially appear.

It could wrap up "every social media platform and the website of any company operating AI customer service chatbots," the digital rights group Fight for the Future points out:

But it doesn't end there: any person who "makes available an artificial intelligence chatbot" is covered by the law. This would require everyone from internet service providers to anyone who runs a blog with a comment section to administer online ID checks. While apparently narrow, this bill is in fact an online ID check mandate unmatched in scope and highly invasive in methods.

For better and for worse, AI chatbots are threatening to overtake search engines as the primary way people find information online. This means that the millions of people who use these tools for everyday tasks will now be providing sensitive and private information to a sketchy, insecure age verification service, which have already resulted in thousands of people's private information being leaked. Government censorship is not confined to outright prohibition of speech: burdens like this are a legally dubious limit on free expression.

4) Chill (and Compel) Speech

The way this measure is written, it could seriously restrict what AI chatbots are allowed to say while simultaneously compelling them to speak the government's messages.

At the start of every conversation and at 30-minute intervals thereafter, AI chatbots would have to tell users that they are not human. At the start of every conservation, they would also have to "clearly and conspicuously disclose to the user that the chatbot does not provide medical, legal, financial, or psychological services; and users of the chatbot should consult a licensed professional for such advice."

Meanwhile, chatbots would be banned from "represent[ing], directly or indirectly, that the chatbot is a licensed professional, including a therapist, physician, lawyer, financial advisor, or other professional."

The "indirectly" bit there raises alarms. Authorities might argue simply providing authoritative advice counts as an indirect representation of professional authority.

Then there's the ban on AI chatbots engaging minors in discussions about sexuality. It's written broadly—this isn't just about stopping minors from viewing pornography. The GUARD Act would make it "unlawful to design, develop, or make available an artificial intelligence chatbot, knowing or with reckless disregard for the fact that the artificial intelligence chatbot poses a risk of soliciting, encouraging, or inducing minors to engage in, describe, or simulate sexually explicit conduct."

This could ban AI chatbots—even those that are strictly non-companion-like—from talking with minors about safe sex practices, contraception, sexual orientation, and more, since doing so might "pose a risk" of getting the minors to talk about intercourse, oral sex, masturbation, or anything related.

It could also chill AI and user speech around topics related to sex and sexuality generally, not just when minors are concerned.

Notice that an AI chatbot provider need not intentionally or affirmatively engage a minor in sex talk; it must only act in "disregard" of the "risk" that it could do so. The penalty is $100,000 per offense. For tech companies looking to avoid liability, that makes a strong case for limiting such discussions more generally, training their bots to shut down any conversations related to sex.

"Like age-verification proposals for online services, this bill is unlikely to survive constitutional scrutiny," write Huddleston and Londoño. "But beyond its likely unconstitutionality, Sen. Hawley's approach endangers users' privacy, limits parental rights, and locks minors out of beneficial uses of AI."

IN THE NEWS

Supreme Court pauses ban on mail-order abortion pills. On Friday, the 5th U.S. Circuit Court of Appeals said it's illegal to mail abortion pills. Today, the Supreme Court put a one-week pause on that decision.

In a unanimous ruling last week, 5th Circuit judges said the abortion-inducing drug mifepristone can be handed out only in person, contrary to the U.S. Food and Drug Administration's current prescribing rules. "Friday's ruling…affects all states, even those without abortion restrictions," noted PBS. "There is little precedent for a federal court overruling the scientific regulations of the FDA, and it remains to be seen how the decision could impact how the drug is dispensed long-term."

On Saturday, two mifepristone manufacturers asking the Supreme Court to stay the 5th Circuit's ruling. From SCOTUSblog:

The companies, Danco Laboratories and GenBioPro, both told the justices that the 5th Circuit's order was "unprecedented." Danco argued that the order "injects immediate confusion and upheaval into highly time-sensitive medical decisions," while GenBioPro said that the order "has unleashed regulatory chaos."…

Today, the Supreme Court did indeed pause the 5th Circuit's ruling. So mail-order mifepristone is still legal, for now.

"The order signed by Justice Samuel Alito temporarily allows women seeking abortions to obtain the pill at pharmacies or through the mail, without an in-person visit to a doctor," reports the Associated Press. "Alito's order will remain in effect for another week while both sides respond and the court more fully considers the issue."

ON SUBSTACK

Gen Z marriage myths: Halina Bennet at Slow Boring pushes back against the idea that marriage is dead among the college-educated ranks of Gen Z:

The data tells us that college-educated women are still marrying—they are just marrying later. It's actually the numbers among non-college-educated women that are falling. Many of the people who will eventually marry simply haven't reached the average age of marriage among college-educated women.

Bennet conducted her own survey of people ages 18 to 35, and "the portrait that emerged was of a generation that has decided that marriage is worth having, and that value makes it worth waiting for."

But Bennet does see a tendency to place too much stock in doubt. "This is a generation trained to wait for complete information—for the best option, the right moment, the optimal conditions," she writes. "Marriage resists this habit because the data is never complete and the conditions never fully stabilize."

READ THIS THREAD

Point:

Frankly, they're not just replacing reading with vertical video slop. They're replacing EVERYTHING with vertical video. Streaming, gaming, IRL interactions, all of it is being swallowed by vertical shortform video. https://t.co/synEcWAw4q pic.twitter.com/XrUQXQNcDh

— Jeremiah Johnson (@JeremiahDJohns) April 27, 2026

And counterpoint?

"There are about 70% more bookstores now than there were six years ago in the United States. After 20 years of declining numbers, they're coming roaring back."

"Since 2020,… American Booksellers Association membership has grown from 1,900 to 3,200."https://t.co/XTUijwVQQn

— 𝙲𝚑𝚊𝚛𝚕𝚎𝚜 𝙲. 𝙼𝚊𝚗𝚗 (@CharlesCMann) April 30, 2026

Relatedly: "Is TikTok art?" asks The Argument.

"Kids don't just spend time on social media because they are screen junkies who can't read. That would be too easy," Maibritt Henkel writes.

They spend time on social media, in large part, because social media has become brilliantly, absurdly, unprecedentedly, entertaining.

Even if you wish it weren't, vertical 30-second video is the creative medium of our time. Taking seriously the merits of any new formal paradigm is in the spirit of how we have met every technological rupture in art history.

More Sex & Tech

• Magdalene J. Taylor defends the pickup artist. "While some might argue that pickup artistry faded due to its misogynistic attitudes, the reality is that the manosphere it grew from is more misogynistic than ever," she writes. "Trying to get laid has been traded for a culture of hustle and grift that views women as a waste of time. At the very least, the pickup artist didn't think so."

• "The Trump administration's intrusive social media rules are a gift to tyrants," writes Julian Sanchez. Pointing to the U.S. Embassy in Thailand posting that all visa applicants must set their social media profiles to public, he notes that "demanding prospective visitors and immigrants set their social media profiles public isn't just an intrusive policy in service of a constitutionally dubious scheme to exclude people with disfavored political opinions: It is likely to put applicants, their friends, and their families in very real, physical danger" in countries like Thailand, where it's still criminal to insult the royal family.

• Oklahoma lawmakers passed a bill to criminalize providing a woman with abortion pills. "Supporters argued it was necessary to save the unborn and reduce abortions forced on women by sex traffickers," reports the Oklahoma Voice. (That last bit is a stellar example of how supporters of abortion bans try to negate women's agency in the abortion debate so that their bans can be framed as for women's own good.)

The post How a Bill Banning AI Companions for Kids Could Usher in Widespread ID Checks Online appeared first on Reason.com.

Justice Neil Gorsuch: 'Aspirations for Power Need To Be Checked'

2026-05-04T14:23:06Z

This week, Nick Gillespie sits down at the U.S. Supreme Court with Justice Neil Gorsuch to discuss his new children's book, Heroes of 1776: The Story of the Declaration of Independence, co-authored with Janie Nitze.

Gorsuch and Gillespie examine why the United States is a creedal nation built on shared ideas rather than ethnicity or religion, and why those ideas require constant effort and courage to sustain. They discuss originalism, equal justice under law, the risks of government overreach, and the growing complexity of federal and state regulation.

Finally, Gorsuch considers what it will take for the American experiment to endure another 250 years, from learning history to cultivating the courage needed to defend freedom.

0:00—America's 250th anniversary

3:24—Unsung heroes of 1776

4:43—Why America is not an ethnostate

8:00—Originalism and equal justice under the law

11:29—Is America a libertarian project?

13:33—What constitutes government overreach?

14:31—Does America have too many laws?

21:41—Federal bureaucracies and state legislatures

24:03—Political polarization and the judiciary

30:54—What will allow America to have another 250 years?

34:06—How can younger people cultivate courage?

Producers: Paul Alexander & Natalie Dowzicky

Director of Photography: Kevin Alexander

Audio Mixer: Ian Keyser

Transcript

This transcript has been edited for style and clarity.

Nick Gillespie: This is The Reason Interview with Nick Gillespie. My guest today is Neil Gorsuch, Associate Justice of the United States Supreme Court and co-author with Janie Nitze of the new children's book, Heroes of 1776: The Story of the Declaration of Independence.

Justice Gorsuch, thanks for talking to Reason

Justice Neil Gorsuch: Oh, delighted to be here. Thank you.

Let's start with Heroes of 1776, which is in time for the upcoming 250 anniversary of the signing of the Declaration of Independence. The book is about ordinary men, women, and children doing something totally extraordinary, which is overthrowing a repressive and distant government in the name of freedom and liberty. What's the main lesson that you think America needs to be thinking about as we celebrate our 250th birthday?

Well, I know we're going to have a lot of fireworks, and there are going to be some good barbecues and parades, but I hope maybe we take a moment too to reflect on the gift we've been given and the challenge we face. And what I mean by that is the Declaration of Independence had three great ideas in it. That all of us are equal, that each of us has inalienable rights given to us by God, not government, and that we have the right to rule ourselves.

Our nation is not founded on a religion. It's not based on a common culture even, or heritage. It's based on those ideas. We're a creedal nation. And I hope we take a moment to reflect on that and to recommit ourselves to that. One more thing, one more thing. The courage it takes to defend those ideas. They were not inevitable. And the stories of the men, women, and children in the book, I hope will inspire children to realize the courage it takes to carry those ideas forward in their own time.

Talk a little bit about that lack of inevitability, because the way American history gets done, especially to kids, it's like, "Well, this happened, then this happened, and, of course, here we are." How do you focus on the idea that this wasn't inevitable?

Well, there are a bunch of things in the book we point to. A couple I'll start with. One, those three ideas, we point out what was Europe like at the time. It was monarchies. The notion that all people are created equal? No, there are kings and serfs. The notion that you have rights from God, from your creator? No, everything came from government. And self-rule certainly was a very dangerous proposition in the world of the declaration, right?

You're right. We take it as the air we breathe. Fish in the water don't even realize. But those things were dangerous and inevitable, and they were traitors for declaring them. The British said that Americans had declared for themselves an alienable right to talk nonsense. And we walked through how the vote originally wasn't going to go through unanimously-

So this is at the Continental Congress—

At the Continental Congress—-

—and they're deciding we can be brave, we can kind of fudge it or whatever.

So there was huge debate over it. And you have to remember, only about 40% of colonists actually supported the Patriot cause. Another 20, 30% were Loyalists. And a whole bunch of people were undecided, right? Much as our own age. They were divided, right?

Right.

People were divided. So there was nothing inevitable about it. Absolutely nothing.

And you talk about a couple of people, and maybe you can tell a story or two who actually either changed their vote or were like, "Okay, I'm going to change because this cause makes sense."

There are two fun stories in the book about that. One is Caesar Rodney. So the Delaware delegation was tied. They couldn't vote definitively. So Caesar Rodney was called back from… He was on military service in Delaware. He rode 80 miles through the night in a thunderstorm, suffering cancer of his face. John Adams called him the oddest man he'd ever seen. He could have gone to Britain for a cure, but he was too much of a patriot. He wanted to stick around, and he broke Delaware's tied vote.

Another man, Edward Rutledge, South Carolina. He had voted against independence on July 1st, the first time they voted. When the resolution was first introduced in June, they couldn't agree on whether to even proceed on it. So they tabled it for weeks. They brought it to a vote on July 1st and Rutledge voted against it. And, again, the delegates were divided. He though that night said, "I'd like to take the vote again the next day." And he realized that it was more important that we stand united in whatever decision we made than for his own personal views to prevail. He changed his vote.

When you say we are a creedal nation, it's not the product of a particular religion. A lot of people in contemporary America today say, "No, that's wrong." And, in fact, there's a lot of politicians and a lot of people, influencers or people in the press who say, "No, actually all of the people who signed the declaration were of a very specific kind of ethnic stock." With one exception, we'll get into him in a second, Charles Carroll of Carrollton, who's the only Catholic signer, they're all Protestants. How do you respond to people who say, "You're full of it." It's like they were all Scots, Irish and English, basically. So this is an ethno-state of some meaning.

Well, I would say I'd push back on that. There's no doubt that the Revolution, the Constitution and our country have always had challenges living up to the declaration. I think of the declaration as sort of our mission statement. The Constitution, our how-to manual. But look at the mission statement. The mission statement is all of us are equal, that we all have an inalienable rights, and that we have the right to self-rule. Those ideas are perfect ideas. They exclude no one.

Now, have we had to work on realizing them? We talk about this in the book, of course, but we could point to that mission statement. Lincoln in the Civil War was able to say, "How can you possibly justify slavery when you say all men are created equal?" The women in Seneca Falls during the suffrage movement said, "You're absolutely right. All men are created equal, women as well." Martin Luther King before Lincoln's memorial in 1963 called the declaration a promissory note that had come due. And those ideas—

How do you live with how long it takes? I mean, because Seneca Falls is what, 1848, I think. Arguably, the civil rights movement doesn't end until 1965. How do you live in that moment where it's like it's beautiful language, but the reality just isn't there?

I don't think the civil rights movement ended in 1965. I think we've been in a civil rights movement since 1776. And I think one way for me to think about it is we call this the semiquincentennial. What does that actually mean?

I have no idea.

Exactly, right? It means halfway to 500.

Right.

It's a journey, right?

Yeah.

And those ideas are not self-perpetuating. They're not inevitable. The torch passes to each new generation. You got to grab the baton. It can be dropped.

What is the next big expansion of rights that currently we're like, "Well, rights for Blacks and women, yeah, but not for what?" And I mean, you've even ruled on certain things, right?

I've ruled on lots of things.

So what is the next frontier?

I think that's part of the challenge of the book is to the kids at the end. I've got a little message to them saying, "That's for you. You decide. You have this mission statement, right? Make it real in your time."

This may seem like an odd follow-up, but let's talk a little bit about originalism, which is the judicial philosophy that you kind of follow. And the Declaration of Independence, it's not a law per se in the way that some of the things that come before you on the Supreme Court are, but how do you stay true to the text or the meaning of the declaration without them just saying, "Okay, you know what? Everybody, I can just assert rights and say, 'Well, it's in the declaration, and if I have the right number of guns or the right number of votes, I can just make that happen.'" How do you anchor an understanding of the American project in a text and a particular time?

So if you think again of the declaration as kind of our mission statement or ideals, and the Constitution is the how to manual, right? Well, the Constitution is all about dividing power, isn't it? Madison realized men are not angels and that their aspirations for power need to be checked and checked and checked again. And so, how do we set up our system of government? Three branches, and that's just at the federal level. That's horizontally, separated vertically too. States have powers, and the people have powers that are reserved to them as well.

So what's my role in it? My role is as a judge, right? Judge is an important role, but a modest station at the end of the day. My role's not to make war. I'm not the commander-in-chief. My role is not to make the laws. They do that across the street in Congress. My job is to make sure that anybody who comes to court in a dispute has equal justice under law. That is to say the rich and the poor, as our judicial oath says, come to us equally. So you may be very unpopular, but if you have a good winning legal argument, that's my job to vindicate it.

And that legal argument is bounded by what's actually on the page, and then like an understanding of you try….Is it getting into the heads of the people who pass the legislation, or how do you know you're not just projecting your fantasy onto a particular law?

So I forgot the first part of your question about originalism. I'm sorry, but I'm kind of getting to it oddly enough which is, okay, once you realize what your goal is, not to make law and certainly not to change the Constitution, we, the people, do that through the amendment process. You've got an important job, but it's a modest job. How do you go about doing that? And for me, not for everybody, but the way I see it is my job is to apply the law as a reasonable person would have understood it at the time it was enacted. And that way I'm making sure I'm not projecting my hopes and dreams onto the legal text. The text was passed with bicameralism and presentment across the street or through the amendment process and the Constitution itself. And if I start changing with that and tinkering with that or evolving it, if you will, based on what I like, who elected me to do that?

Right.

That's not my job.

Well, you're appointed, right? And you get a life appointment to-

But to do a job, and the job is not to be a philosopher king. It's not to assert Congress's role. It's certainly not to assert the amendment process of the Constitution. It's to ensure that the people who come before me get the promises of the Constitution and the laws. That's it. That's my job.

Are there limits to, you say, okay, there's the federal government, there's state governments, and then there's the rights of the people. How do you decide, okay, well, the federal government doesn't have jurisdiction here, but then maybe the states do or when do the people? How do you make that distinction?

I guess I'm particularly interested in unenumerated rights that reside with the people, because it's not so good, right? If like the federal government says, "Okay, we can't do this." But then a state government says, "We can ban this, or we can force you to worship the way that you want." How do you know what, at the end of the day, is America a libertarian project more than a conservative or liberal project?

I think it is a very tolerant project, right? I mean, look at the First Amendment. You have a right to speak and worship freely. Those ideas were not, again, inevitable. They were not popular in a lot of Europe. They're popular much today.

Yeah, less and lesser, if you ask me.

That worries me. But it's a tolerant idea. It's an idea that you have a right to make your way and your life and pursue happiness and so do I. And we can do that together. And so when I'm asking, "Hey, what rights can government not touch?" The Bill of Rights is your starting place. That's absolutely your starting place. And most of the things we care about are there. I mean, look at what the First Amendment covers. The press, the right to petition your government for grievances, the right to assemble.

Right.

And that's a very important right if you think about it. What's the point of a right to speak if you can't…

But it also, it took about a hundred years for those, for the states to be bound by that, right?

Yeah. The 14th Amendment effectively did that. Yeah.

Yeah.

Yeah. And one can argue about whether it did it through the Due Process Clause or the Privileges and Immunities Clause, but we'd all agree it did that.

Yeah. So then with something like, do states have a right to ban alcohol? And so as an individual, I don't get to consume alcohol if I live in a state that has voted not to. In the end, how do we know when a government at any level has gone too far?

Well, I'm not going to get into things that might come before me, but I will tell you on alcohol, if you told the framers that they couldn't drink, they would have had something to say about it.

They would have really revolted.

They might very well… I mean, they threw all the tea into Boston Harbor. I don't know what they would have done if you told them… At the end of the Constitutional Convention as George Washington is being sent off, there's a party held and 56 men gathered in a tavern, and the list of alcohol, their consumption… I mean, it was 50 bottles of Madeira and port.

It's like Led Zeppelin times a thousand.

It was epic.

Yeah. With Janie Nitze, you previously authored a couple of books, but including one called Over Ruled, which was explicitly about how there are just too many laws in America, like governing people's behavior. How do we know when… Follow through with that a little bit.

Sure.

When is a law… It just shouldn't be there.

Can I start with an ode to Janie and Chris Ellison as well, if I might indulge them?

Yeah.

Thank you. Janie is one of the most wonderful human beings I know. She's not only an incredibly talented lawyer, she clerked for both me and for Justice Sotomayor. She's also started a preschool, okay? I mean, this is just a remarkable, remarkable human being. And Chris Ellison, he should win a prize for this artwork. He managed to bring people to life with a historical sensitivity, but yet very vivid and real, and it's just been a joy to work with them. All right, to answer your question, why did Janie and I write Over Ruled?

Yeah.

We can't live without law. You and I, our rights would be endangered without law. It would be in the state of nature. We couldn't live with any assurance of our security, but there's also such thing as too much law. There really is a golden mean, right? When we speak of the rule of law, what do we mean? We certainly don't mean just rule by law, right? Nazi Germany had a whole lot of laws. Okay, so it can't be that. There's got to be a golden mean to this operation.

Madison talked about it at the beginning of the country, and he said, "The thing I fear most is a proliferation of law." That's why they made the lawmaking process so hard. We complain about it today. "Congress doesn't do anything," right? That was by design because every law is a restriction on your liberty. Now why do I say we have too much law? I've been a judge for over 20 years now, and I've just seen too many cases in which ordinary people who intending no harm to anyone just get swallowed up.

Can you give a specific example?

The book is a book of examples. It's a book of stories and people we knew, we interviewed, talked to. Let me give you one. This will take a minute. All right? John and Sandra Yates, he's a fisherman, okay? Commercial fisherman down in Florida. And one day he's out for red grouper and alongside comes a state wildlife official who's cross deputized with NOAA, the National Oceanic blah blah blah, the administration. And he says, "I see some of the red grouper hanging there look a little too small. Can I measure them?"

And John says, "Well, I've been out for weeks. I've got thousands of them." He says, "I have all day." And he spends all day measuring each of John's red grouper. And the limit at the time is 20 inches, 20 inches. And he says, "You have 72 red groupers that are slightly below 20 inches." And now John disputes the measurements because he says, "This guy doesn't know red grouper from…" He says, "You're missing the jaw." But any rate, fine. He says, "See me when you come back to the dock."

Comes back to the dock. The guy does it again, and this time he finds 69 red grouper and he's suspicious, suspicious. "Why are there 69 rather than 72?" John hears nothing for years, nothing. Then one day federal agents surround his home with weapons, the whole body, the whole thing, and arrest him. Okay, what do they arrest him for? You ever heard of the Sarbanes Oxley Act?

Yeah, sure.

Okay. It was drafted after the Enron and Arthur Anderson…

Yeah, the tech bubble burst, and it expiated all the sins of a hot stock market in the '90s.

And among other things, this is don't shred documents, don't destroy documents and other tangible objects when you know you're subject to a federal investigation because that was what Arthur Anderson allegedly did. He gets charged with violating the Sarbanes-Oxley Act and faces 20 years in prison. Now, what does that have to do with red grouper? You might be asking that. You just might be asking that right now.

Well, the answer is, the theory is that John threw the 72 red grouper overboard and replaced them, was still undersized 69. So he destroyed a tangible object is the government's theory. This case, I won't belabor all the details. It goes on for years. By the time they bring the prosecution, the size limit for a red grouper is 18 inches. John winds up spending Christmas in prison. He loses his commercial fisherman's license. His livelihood is destroyed. Okay. For what? For what? All right. Now, maybe he deserved a ticket, something, but his entire livelihood and years through the legal system.

Do you feel like that—

Oh, wait, I got one more for you. I'm sorry.

No, please.

Okay. Afterward, the Department of Commerce did a little internal investigation thinking maybe they were being a little hard on commercial fishermen like John. But they found that they were thwarted in their investigation because the folks that they were suspicious about for misbehaving, cases like John, destroyed their documents. No Sarbanes Oxley charges brought there.

No, no.

So those kinds of cases, when they come to you—

Do you feel like that's accelerating throughout American society at every level?

Yes.

And if so, what's the cause of that proliferation? Because people aren't evil, right?

No.

I mean, nobody's like, "Oh, I can really screw over the important red grouper or fishermen lawyer or anything."

No, of course not.

So what's going on?

It's all done with the very best of intentions. I don't question that, but it is going on at all levels. And when people say that Congress doesn't do enough, we add about two to three million words to the federal code every year. The federal register, which started off as 16 pages in the 1930s, it's like 70 or 80,000 added every year. Okay.

Why? That's a really interesting question. And I've thought a lot about it, and I don't pretend to have all the answers, but one thing that I can't help but wonder as part of it is a loss of trust in one another and trust in our ability to solve problems in our immediate community, right? If I trust you, and you trust me, we're going to work out our problems, and we won't need to appeal to some higher authority. What happens when you don't trust one another, and you want to command and control, and you want it from the highest possible level, and you want it as quickly as you can, and maybe you're willing even to forgo bicameralism and presentment just to get it done?

So this is what is often called the administrative state, or something happens where Congress passes some kind of legislation, and then a bunch of bureaucracies take over, and they start promulgating more and more rules. Does that follow a breakdown in trust and confidence among people, or is it the cause of it? Because if you look at the way that Richard Nixon kind of took the Great Society program, he kept those all going, and then he added regulatory functions. I mean, half of the worst alphabet agencies that are around, at least from a Reason, libertarian point of view, start with Nixon or get embellished by Nixon, that was before people were at each other's arm.

I don't know. The 1960s were pretty turbulent too.

Okay. Yeah.

But I guess I would say I'm not going to blame any one source because I actually think if you look at state legislatures and licensing laws, you're going to find a similar story.

Well, they all built up over the last hundred years, right? I mean, occupational licensing, the number of jobs.

Yeah, yeah, but that's not done through administrative, that's done through legislation. Your state legislators are voting for it, okay?

Yeah.

So we're all guilty of it, okay?

Right.

And I just think maybe we need to go back to actually some of the things in this kid's book that might be part of the solution.

Wait, you're not saying armed revolt against the distant, uncaring government?

No, I don't think that's what… But trust and realizing that you and I, though we disagree vehemently, both love this country. Like Adams and Jefferson, they couldn't have been more polar opposite, temperament, everything, right? Habits, parts of the country, belief in how they thought the government should look. I mean, Adams wanted a centralized and strong federal government. Jefferson wanted anything but that. But they could agree at the foundation on the declaration, those ideas. They fought tooth and nail. They didn't speak for years, but then at the end of their life, what do they realize? They start writing each other letters again. Some of them are recounted in this book, in which they really realize they share much more than what divides them. And there's some just beautiful letters…

Talk a bit about that. Because 250 years later, the country… You could do one tally where people are unbelievably polarized. I mean, we're talking a few days after the third attempt to assassinate the President of the United States. There is violence in the air and in the streets and things like that. On another level, we are 330, 350 million people, six and a half, if you count you as half a Catholic. Catholics were not even allowed to hold office around property in most colonies when the declaration was signed and now a majority of the Supreme Court are Catholics. We are a pretty good experiment in living with all sorts of people and doing pretty well. So are we up a creek without a paddle, or are we actually doing exactly what you're talking about in this book?

Can both things be true?

I think so. Yeah.

Yeah. I mean, the tragedy earlier this week is just horrifying, right? And we have to do better as a nation to talk with one another, right? And yes, we're going to have our disagreements, but again, if I know that the person I'm disagreeing with is in good faith, spotting them the grace that maybe their intentions are good.

Where does that come… Or how does the Supreme Court model that? You're not responsible for the executive branch or Congress. Which I think part of the problem I will editorialize is say, yeah, there's three branches of government, and only one of them still thinks it's COVID, and they're not showing up for work every day. But the Supreme Court has seen since 2021, according to Gallup, like a really stark decline in trust and confidence from people. How does the Supreme Court model the type of behavior that you talk about that might instill a belief that, "Okay, this is not a rigged system. Actually, this is good faith argument in how we go about creating a good country."

Yeah. Well, there's a lot in there. I'd start by saying that the judicial branch, it isn't a popularity contest, right? I mean, actually, as we talk about in the book, one of the major grievances that the colonists had was that they didn't have independent judges.

Right, right.

They had politicized judges, and they wanted no part of that. And you wouldn't hire a judge to write the laws for the country. That's not self-rule, but you would hire a life tenure judge who didn't care what anybody thought about his decisions, and he was just trying to do the law and insulate him.

How do we model it? I think we do pretty darn well. I mean, you give us the 70 hardest cases in the country, okay. Now, we only take the cases where the lower court judges have disagreed. That's our job, is to resolve their disagreements. By and large, that's our daily fare. There are nine of us from all over the country, appointed by five different presidents—

And from the same two schools.

Well, I think we got a couple more than that these days, but whatever. But there are nine of us from all over the country appointed by five different presidents over 30 years. I don't care. Take nine people you went to school with. Do you think you can agree on where to go to lunch?

Absolutely not.

I don't think you can. I don't think you can. All right. I'm an originalist. My friend Sonia Sotomayor is not an originalist. I'm never going to persuade her. She's never going to persuade me. We know that. That's part of our job. We accept that. Lawyers and judges acknowledge there's disagreement. That's the nature of our profession, but we can be friends. And I think we're doing a pretty good job. And let me just give you a couple of figures to highlight that. So out of those 70 cases, we're unanimous, the nine of us, about 40% of the time.

How does that stack up?

I'm going to get there. I promise. 40% of the time. Now that's where cases where everybody else is disagreeing. How does that happen? By listening to one another. By finding out where, "Okay, we come from very different schools of thought, but what can we agree on here? And let's start there." That's hard work that goes into that.

And then you say, "Well, what about our disagreements? The five-fours, the six-threes." That's about a third of our docket. Only about half of those are the five-fours or six-threes you're thinking about. The others are scrambled every which way. You don't hear about that, but that's the truth. And you want to know how that stacks up? Fine. I'll stack it up to 1945. Why 1945? 1945, Franklin Roosevelt had appointed eight of the nine justices of the Supreme Court and the figures, that 40% and that third, the same, about the same.

Yeah.

So the court I think is a pretty good—

Can you give an example of a case where you changed your mind dramatically because of the arguments that you encountered?

That's the job.

Yeah.

That's the job.

But a specific?

I'm not going to talk about specific cases. Sorry, you're not going to get that out of me. But the process for deciding a case is very rigorous. I mean, we start with, I don't know, a stack of briefs somewhere in that range. I spend a lot of time reading. And then I read the cases behind them, they're cited. Then I talk to my law clerks, then I listen to the arguments. The lawyers who've lived with the case for two years, we had a case today that's been going on since I think 2011. They know the case. I'm coming to it with a lot of information, but not the deep living experience.

So you get there, and then you sit around a table, and we sit around in a conference room and each of us has an opportunity to speak in turn. Nobody interrupts. I've never heard a voice raised in that conference room no matter how difficult the decision before us. And we reach a decision. And all the way along there, I can change my mind, and I have.

Do you take delight, and you have-

And so would all my colleagues say the same thing, I'm pretty sure.

Well, recently, you have taken quite delight in kind of arguing with your colleagues. Is that where the disagreements come out?

As I say, I can disagree with you about how to interpret law. I'm not going to convince [former Supreme Court Justice] Steve Breyer about originalism. He's written like three books telling me why originalism is wrong. I love Steve Breyer. And that's never going to change.

To go back to the Heroes of 1776: The Story of the Declaration of Independence, the book that you co-authored with Janie Nitze and Chris Ellison did the illustrations, which are indeed evocative if you know Philadelphia and if you know the Independence Mall. I mean, it's wonderful. What do younger people need to know about? What's the function of history in terms of not just keeping alive a kind of catechism that people, it just kind of goes in one ear and out the other. But what is it about the function of history that will allow us to have another 250 years that are worth a damn?

Well, I think part of it is seeing, if you open up the pages of history, they have so much to offer you. They give you a database of examples of how things have worked out in the past. So before you go do something, maybe you want to look at how other people… It's not a crazy idea. And if you look at the people in this book, we don't just talk about the founders you know about, but a lot of people you don't know about. I'm going to guess Mary Kay Goddard, Emily Geiger.

Yeah. Talk about Goddard real quick, because she's a publisher, a printer.

Yes, of course. A member of the press would like that. But just to answer the last question, the courage.

Yeah.

Okay? Maybe the courage it takes. Are you going to be one of those bystanders? Are you going to stand up and do something about it? And maybe you'll find some inspiration of one of these people. And Mary Kay Goddard is a great inspirational story. So Congress is in Baltimore at the time. Why Baltimore? Why not Philadelphia? Because the British are descending upon Philadelphia. I mean, that's how tenuous the whole thing was. And the war lasted eight years.

And so they're in Baltimore, and they just adopted this declaration. They need to get it disseminated because the country is divided, and they're trying to rally people to the cause. And so they turned to a printer, the local Patriot printer. MK Goddard. Always printed at the bottom of the Patriot newspaper, "Printed by MK Goddard." But when it came to the declaration, she did something different. You can understand why she used her initials in her business.

This is a J.K. Rowling situation.

I don't know about that. But this is a declaration situation. On the declaration she wrote, "Printed by Mary Kay Goddard." And in doing so, exposed herself, of course, as not just a Patriot, but someone who's committing treason and subjecting herself. As you read in the book, I mean, a third of them lost their homes. Many lost their fortunes to the cause. Some of them were imprisoned, their kids, their wives. She faced a grave threat to herself.

And that's also Charles Carroll of Carrollton, the legend. And you guys point out some of this, we're not exactly sure if it's legend or if it's totally factored, but Charles Carroll of Carrollton, he supposedly signed his name and somebody was like, "Oh, you know what's good is there's like thousands of Charles Carroll of Carrollton." And then he's like, "OK."

"Fine. Yes. And I don't want anyone to mistake who it is." And he wrote off Carrollton.

Do you think, is courage something people are born with or what are the ways to cultivate it, particularly among young people who are going to be making decisions, not just about their life, but ultimately about society?

Yeah. I think you need a database. You need to inculcate those things, those habits, right? Exposure, habit, become character. We all know that to be true. Washington had his 110 rules of civility and good behavior that he relied on. Franklin kept a list of 13 virtues and crossed off the days he managed to meet one or another of them, gave up eventually because he was so depressed by his scores. But they made deliberate efforts to improve themselves, and they knew that there was some truths about good behavior with other people that they needed to work on.

All right. We're going to leave it there. The book is Heroes of 1776. The co-author is Justice Neil Gorsuch. Thanks so much for talking to Reason.

It was a real pleasure. Thank you.

The post Justice Neil Gorsuch: 'Aspirations for Power Need To Be Checked' appeared first on Reason.com.

Project Freedom

2026-05-04T13:17:55Z

I am so sick of hearing about the Strait of Hormuz: But hear about it we must, since President Donald Trump has decided—in a fit of either prudence or provocation (why not both?)—that U.S. Navy ships will escort vessels through the strait to ensure safe passage. And if Iran interrupts this process, fresh terror will rain down.

"Countries from all over the World, almost all of which are not involved in the Middle Eastern dispute going on so visibly, and violently, for all to see, have asked the United States if we could help free up their Ships, which are locked up in the Strait of Hormuz, on something which they have absolutely nothing to do with," claims Trump via Truth Social, describing what he's termed "Project Freedom."

"They are merely neutral and innocent bystanders! For the good of Iran, the Middle East, and the United States, we have told these Countries that we will guide their Ships safely out of these restricted Waterways, so that they can freely and ably get on with their business….Many of these Ships are running low on food, and everything else necessary for largescale crews to stay on board in a healthy and sanitary manner," continues the president. "I think it would go a long way in showing Goodwill on behalf of all of those who have been fighting so strenuously over the last number of months. If, in any way, this Humanitarian process is interfered with, that interference will, unfortunately, have to be dealt with forcefully."

U.S. Central Command announced in a statement that "U.S. military support to Project Freedom will include guided-missile destroyers, over 100 land and sea-based aircraft, multi-domain unmanned platforms, and 15,000 service members."

"The president wants action," a senior U.S. official told Axios. "He doesn't want to sit still. He wants pressure. He wants a deal."

Trump claims American delegations "are having very positive discussions" with Iran. Iran's response this morning seems either to contradict that or to be some sort of very aggressive posturing.

"We have repeatedly said the security of the Strait of Hormuz is in our hands and that the safe passage of vessels needs to be coordinated with the armed forces," said Ali Abdollahi, head of the forces' unified command, per Reuters. "We warn that any foreign armed forces, especially the aggressive U.S. Army, will be attacked if they intend to approach and enter the Strait of ⁠Hormuz."

Iran's "mosquito fleet"—small, speedy boats that mostly try to stymie shipping—remains in the Strait, though Iran's naval power is looking a bit thinner than it was at the start of the war. Opening up the Strait of Hormuz is critical for stabilizing oil prices, which have been high for months.

Scenes from New York: Thank you all for understanding my long absence after my son, Solomon, died in early March. I kept it somewhat private when he was in utero, but him dying young was always a distinct possibility: He was diagnosed with clubfoot and muscle contractures in utero, with suspected trisomy 18 or neuromuscular issues. We chose to carry him to term regardless, to love him through whatever challenges he'd been made with. When he was born, he had several minor disabilities (including clubfoot and muscle contractures in his hands and knees) but he mostly struggled with breathing—a struggle that continued for 70 days, 61 in the NICU and 9 on the outside—and one that ultimately led to his death. It was a harrowing experience, serving as his caretaker, hunting for a diagnosis that never came, memorizing his chart to ensure continuity between doctors and hospitals. When he was discharged from the hospital, the thought was not that he would die at home but rather that our normal life would begin. But he stopped breathing one night, out of nowhere.

None of this has shaken my faith. I regret nothing. I loved him very well and still do. I mention the details because I believe in choosing life and I hope others do the same if forced to contend with something similar. Life has more color and texture, not less, having walked through sorrow. I'm not sure what else we're here to do other than to serve our children and spouses and parents, summoning supernatural love. If I seem a little "throw the phones in the forest, stop scrolling and watching Pornhub" ("Blow up your TV, throw away your paper" in the words of John Prine) it's because we really are called to a higher purpose and there seems at times to be society-wide mass psychosis that denies this. I want more for people. And I'm lucky to have glimpsed what more looks like, painful though it may be.

I don't feel ready to come back, but I'm also convinced ready never comes. Are we ever ready for the day after? Resuming normalcy often feels like an affront to the dead. But it's necessary, and time moves forward whether we like it or not. For the month of April, my husband and remaining son and I went to Europe: to Barcelona and Catalonia and Andorra, then through Marseille and Monaco and through the Italian riviera to Rome. I turned 30 and ran around the Colisseum. I went to daily Mass at St. Peter's Basilica and had about three dozen aperol spritzes. It was good, I guess, but the real goodness is to come, later on, when we get to enter God's kingdom and be reunited with our son. It's hard after loss: It's tempting to want to just bide your time, but it's better to try to enjoy life fully, recognizing that everything has been thrown into sharp contrast and will remain that way forever.

All of this is to say: Thanks for being here, for reading, for bearing with me. I don't feel OK, but it's time to start going through the motions.

QUICK HITS

Rudy Giuliani, former mayor of New York and personal lawyer to President Donald Trump, is hospitalized in Florida in critical condition.
"The progressive movement's largest donor network plans to invest 'tens of millions' of dollars in new media sources,," reports David Weigel in Semafor. "The fund would boost organizations that have been making content that breaks through to young people, like the Emmy-winning More Perfect Union. It would also compete in a space that conservatives have dominated, to liberals' dismay, like the non-political content of Make America Healthy Again influencers." I'm sure this will work.
A Department of Homeland Security travel ban had, since January, frozen government approvals for visa extensions for doctors from certain countries. New guidance reverses that, allowing physicians to work.
Cities without children:

"In Paris, primary school enrollment has fallen by a quarter in the past decade. First year elementary school enrollment in New York fell 18% in the decade to autumn 2024, while in Barcelona, preschool entry fell 16% between autumn 2016 and autumn 2024."https://t.co/TIMbzip6v5

— Alec MacGillis (@AlecMacGillis) April 20, 2026

I continue to be rather befuddled by Tyler Cowen's approach to digital spaces and kids. (Also, kids' ages matter quite a bit.) I am more team "safeguard attention spans and create major guardrails" and believe this should happen at the parental and school level (not via federal ban or anything like that).
Surprised to see from Sen. Rand Paul:

I am introducing a Constitutional Amendment to end Birthright Citizenship.

Under current interpretations of American law, anyone born on American soil automatically becomes a U.S. citizen, regardless of whether the parent was here legally or not. This is wrong and not at all… pic.twitter.com/6O5vWr0MYT

— Senator Rand Paul (@SenRandPaul) April 30, 2026

Obvious once you think about it, but looking at maps like these helps lay it out more clearly:

Many Americans think it's natural that the "inner city" is full of poor people, but it's actually the reverse. City centers are naturally wealthy, and ghettos naturally arise in the outskirts.

Inverting this was a massive project of social engineering by the American government https://t.co/lwM1mVPdId

— 𝖓𝖎𝖓𝖊 (@atlanticesque) April 28, 2026

The post Project Freedom appeared first on Reason.com.

How Bad Facts Make Good First Amendment Law

2026-05-01T16:38:32Z

The old legal saying, "bad facts make bad law," might be true in some cases. But that usually occurs when a court strays from its commitment to a neutral set of legal principles, often because a litigant or lawyer is particularly repulsive or persuasive. If a court sticks to those neutral principles, bad facts could make good law when the court demonstrates that the rule of law endures, even in the most difficult circumstances.

Jay Near is among the free speech anti-heroes profiled in our book. After arriving in Minneapolis from Iowa, in 1916 he started writing for Howard Guilford's Twin City Reporter, which boasted sensationalist and sometimes racist headlines, such as "White Slavery Trade: Well-Known Local Man Is Ruining Women and Living Off Their Earnings," and used terms like "yids" and "spades." The paper had a reputation for taking bribes from powerful local officials to write scandalous articles about their rivals. As journalist Fred Friendly would write in Minnesota Rag, a 1981 book about Near, Guilford and Near "practiced a brand of journalism that teetered on the edge of legality and often toppled over the limits of propriety."

Within a few years, Guilford and Near left the newspaper, and Near had moved first to California and then back to Minnesota. Their former newspaper was in the hands of a local crime syndicate that had worked out side deals with the city police, so Near convinced Guilford to start a rival newspaper, The Saturday Press, which would expose the corrupt crooks running The Twin City Reporter. Police Chief Frank Brunskill wanted to stop the distribution of this upstart paper even before the first edition came out.

Despite the threats, Guilford and Near published their first issue on September 24, 1927. The second page contained an editors' note that criticized the owner of their former newspaper:

"[He is] an unscrupulous newspaper man, a man so devoid of moral courage that he hasn't the nerve to publish the paper himself—he prefers to lease it out to others to assume the responsibility, while he engineers the numerous blackmail deals that are committed by the firm, and waxes fat from the profits of gambling houses he has been interested in for several years past, said gambling houses being permitted through the social prestige (?) of the Twin City Reporter about the City Hall."

On page 4, Near wrote that he and Guilford recently received word "that if we persisted in our expose of conditions AS THEY ARE in this city, we would be 'bumped off.' "

Their prediction proved true. Two days after publication of their paper's first edition, two men fired four shots at Guilford's car as he drove in downtown Minneapolis, critically injuring but not killing him. The next edition of the newspaper—published five days later—carried the front-page headline "Guilford's Assailants Indicted by Grand Jury" and reported that two "boys" in their early 20s had been indicted for first-degree assault. "What of the ones who HIRED THEM TO KILL?" the article asked. "Shall they escape and these boys be punished FOR THE CRIME THEIR SOULLESS EMPLOYERS ARE GUILTY OF?"

The Saturday Press continued its weekly publication, criticizing Brunskill and other local officials and focusing much of its ire on Mose Barnett, a Jewish gangster who, the paper alleged, was running much of the city's organized crime. The front page of its third edition featured the headline "A Few of the 'Unsolved' Minneapolis Mysteries " and carried the story of an assault on Sam Shapiro, a Russian dry cleaning shop owner whom Barnett had allegedly threatened. "Did the police department get busy and arrest Mose Barnett, THE GANGSTER WHO HAD THREATENED MR. SHAPIRO?" the paper asked. "It did nothing of the kind."

Until this point, the newspaper's crusade against Barnett might be seen as noble. But in the next few editions, Near then stepped up his attacks, not only on Barnett and the city officials whom he claimed Barnett controlled, but also on Jewish people in general. Near wrote that "JEW GANGSTERS" are "practically ruling Minneapolis." Near pushed back against people who warned him against criticizing Jewish people: "If the people of Jewish faith in Minneapolis wish to avoid criticism of these vermin whom I rightly call 'Jews' they can easily do so BY THEMSELVES CLEANING HOUSE." He claimed (without support) that 90 percent of crimes were perpetrated by Jews: "It was a Jew who employed JEWS to shoot down Mr. Guilford. It was a Jew who employed a JEW to intimidate Mr. Shapiro and a Jew who employed JEWS to assault that gentleman when he refused to yield to their threats."

This would be the newspaper's final edition, at least for a few years. It was clear from the paper that Brunskill had stepped up his efforts to bar the paper's distribution. Across the top of the front page were instructions to stores that sold this newspaper: "If you are molested in their sale by the police, refuse to remove them from your display stands and we will furnish the legal talent necessary for a 'show down' in the courts," the editors wrote.

That plan did not stop Brunskill and the state attorney, Floyd B. Olson, from blocking further publication of the newspaper. Two days after Near's anti-Semitic rant, Olson filed a complaint in state court, basing it on a state law that made it a criminal nuisance to publish "an obscene, lewd and lascivious newspaper, magazine, or other periodical" or "a malicious, scandalous and defamatory newspaper, magazine or other periodical." The statute allowed the county attorney to seek a court order to "perpetually enjoin the person or persons committing, conducting or maintaining any such nuisance, from further committing, conducting, or maintaining any such nuisance."

The state court ordered Near to show cause reflecting why it should not issue an order prohibiting the circulation of previous editions of The Saturday Press, "any future editions of said The Saturday Press," and "any publication, known by any other name whatsoever containing malicious, scandalous and defamatory matter of the kind alleged in plaintiff's complaint herein or otherwise." After Near moved to dismiss the complaint, the trial court asked the Minnesota Supreme Court to decide whether the state law violated the First Amendment and similar protections in the state constitution.

The Minnesota Supreme Court ruled the statute constitutional: "It was never the intention of the constitution to afford protection to a publication devoted to scandal and defamation." The state high court sent the case back to the trial court, which granted the injunction, finding that the newspaper "did engage in the business of regularly and customarily producing, publishing and circulating a malicious, scandalous and defamatory newspaper." Near again appealed to the Minnesota Supreme Court, challenging the constitutionality of the law. He focused on the impact of issuing a prior restraint that prohibits the publication of any future newspapers. In four paragraphs, the court rejected Near's argument, reasoning that the injunction would not prohibit Near and Guilford from "operating a newspaper in harmony with the public welfare to which all must yield." But the defendants, the court wrote, "have in no way indicated any desire to conduct their business in the usual and legitimate manner."

Near convinced the US Supreme Court to review the case. In his brief to the high court, Near focused on the long-standing rule that freedom of the press prevents the government from stopping publications in advance. He quoted Blackstone's famous Commentaries on the Law of England, which stated that freedom of the press "when rightly understood, consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published."

In a 5-4 opinion, the Supreme Court struck down the state law as unconstitutional. Writing for the majority, Chief Justice Charles Evans Hughes focused on the particularly harsh nature of prior restraints allowing government officials to stop publication of a newspaper that accuses them of wrongdoing. "This is of the essence of censorship," Hughes wrote. For the first 150 years of its history, Hughes noted, the United States followed Blackstone's model and eschewed prior restraints against publications that made accusations about government officials: "Public officers, whose character and conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals."

Conservative Justice Pierce Butler, joined by three colleagues, dissented. Butler focused much of his dissent on the odious nature of the newspaper, writing that its "regular business was the publication of malicious, scandalous and defamatory articles concerning the principal public officers, leading newspapers of the city, many private persons and the Jewish race."

Had one more justice shared Butler's view, the Supreme Court would have upheld the court order shutting down The Saturday Press and, more importantly, governments across the nation would have been free to shut down publications they determined were sufficiently "scandalous." But that is not what happened. In October 1932, The Saturday Press resumed publication under Near's editorship, with the front page bearing the following slogan: "The only paper in the United States with a US Supreme Court record of being right; the only paper that dared fight for freedom of the press—fought and won."

What would the United States look like had Butler's view prevailed? Most likely some hateful publications like Near's would have been suppressed over the past century. But it would also have suppressed newspapers and other periodicals that legitimately accused government officials of wrongdoing or otherwise published information that the government would prefer to never see the light of day. Indeed, in its 1971 per curiam opinion blocking a government injunction against The New York Times and The Washington Post from publishing the Pentagon Papers, the Supreme Court cited Near v. Minnesota for the proposition that prior restraints are presumptively unconstitutional. By protecting Near's hate speech against prior restraints, the Supreme Court enabled the publication of the Pentagon Papers and so much other controversial speech. But prior restraints are only one form of penalty for speech. Governments and courts also use the threat of criminal charges to scare people from ever speaking out in the first place. And the court has set a high bar for such prosecutions, even in the face of the most deplorable speech.

Excerpted from The Future of Free Speech: Reversing the Global Decline of Democracy's Most Essential Freedom by Jacob Mchangama and Jeff Kosseff. Copyright 2026. Published with permission of Johns Hopkins University Press.

The post How Bad Facts Make Good First Amendment Law appeared first on Reason.com.

Just "Felonious Peccadillos"; I'm "Overqualified for Oklahoma"; Bar Association, "Bring It on Bitch": Surprisingly Ineffective in Fighting Disbarment

2026-05-01T20:20:14Z

Some excerpts from the long opinion in State ex rel. Oklahoma Bar Ass'n v. Barlean, decided Tuesday by the Oklahoma Supreme Court (opinion by Justice Kuehn); Barlean appears to have been a former candidate for the Oklahoma state legislature:

On January 5, 2023, Respondent pled guilty to two misdemeanor charges of Domestic Assault and Battery …. Both charges stemmed from violent incidents involving Respondent and a woman with whom he had a romantic relationship. On August 16, 2021, during an argument, Respondent strangled or choked the woman until she gave him her car keys. He was arrested, charged with a felony and bound over for trial. While out on bond, on December 2, 2022, during another fight Respondent pushed the woman down a flight of stairs, injuring her arm. He was arrested again and charged with a misdemeanor.

Under Respondent's plea agreement, the felony charge was reduced to a misdemeanor and Respondent pled guilty to both charges. He agreed to supervised probation with requirements including restitution, community service, completion of an intervention program, anger management classes, an alcohol and drug assessment and any recommended treatment. Respondent failed to complete these requirements. The State moved to accelerate his deferred sentence on September 30, 2024; on November 22, 2024 Respondent pled no contest to the motion to accelerate. Both counts were reduced to convictions and he was fined….

This Court's May 20, 2024 order of interim suspension directed Respondent to show cause why a final order of discipline should not be imposed. In his Answer, Respondent claimed that a June 2021 arrest, search of his house, and incarceration—unrelated to the charges at issue here—was illegal and led him down a "dark, self-destructive path" which culminated in his arrest for domestic violence by strangulation, the basis for the charge in CF-2021-3557. He attached a copy of a civil rights complaint he had filed in federal court as a result of the allegedly illegal search and incarceration.

In that complaint, Respondent blamed the victim in both criminal cases for his troubles. Respondent also claimed in his Answer that he had barely practiced law in Oklahoma and retired from legal practice in the 2010s. He appeared to argue that there would be no point in imposing a suspension from practice, or any form of discipline, since he did not practice law or represent clients.

This Court has held that domestic violence is itself a "serious breach of a lawyer's ethical duty and will not be tolerated." Respondent pled guilty to two crimes of violence against a person with whom he had an intimate relationship. In each instance he resorted to violence while quarrelling with the victim. The crimes were separated by several months, and the second occurred while he was out on bond after having been charged with the first crime. Although his deferred sentence offered him the opportunity to avoid those convictions, he admitted that he failed to complete the requirements he himself had agreed to. These convictions and the circumstances surrounding them reflect, at best, extremely poor judgment and a propensity to violence….

The court also referred to other incidents involving Barlean, including this:

Respondent sent the OBA [Oklahoma Bar Association] more than twenty emails after the Rule 7 Notice of Judgment and Sentence [in the disciplinary action] was filed. He claimed the criminal charges would be dismissed (as discussed above, they were not). He called this Court incompetent, a joke, redneck and lazy, invited the OBA to "bring it on bitch", and stated he was overqualified for Oklahoma. Along with a certificate of completion of his required anger management program, he wrote, "I don't strangle. I crush or pull out voice boxes. Ask my Airborne instructors." He suggested the female OBA attorney was embarrassed to be "schooled by a Man", and threatened to drag the State through a federal Section 1983 civil rights claim. He invited an OBA paralegal trying to help him with subpoenas to "come after me so I can show you what the United States trained me to do to Communists." …

[As to another claim,] Respondent did admit that he is not "a choirboy", with a "colorful youth and felonious peccadillos." …

Respondent's conduct reveals a consistent pattern of violence and poor judgment compelling our conclusion that Respondent is unfit to practice law. He is disbarred….

Jana J. Harris, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant.

The post Just "Felonious Peccadillos"; I'm "Overqualified for Oklahoma"; Bar Association, "Bring It on Bitch": Surprisingly Ineffective in Fighting Disbarment appeared first on Reason.com.

Posting Video of 10-Year-Old Hockey Player's "Tantrum" Isn't Intentional Infliction of Emotional Distress

2026-05-01T23:26:17Z

In Mufarreh v. Google, Inc., decided Friday by the Illinois Appellate Court (Justice Raymond Mitchell, joined by Justices Sharon Oden-Johnson and Thaddeus Wilson), a 10-year-old hockey player and his parents sued an anonymous video poster, and sought to discover the poster's name:

[I]n a competitive youth hockey game[,] Mufarreh missed the final penalty shot, losing the game, and had a severe emotional response on the ice. Among other things, he screamed, threw his hockey stick, gloves, and helmet, and fell to the ground.

On November 2, 2023, YouTube user FunnyIllinoisHockey uploaded a compilation video of Mufarreh's emotional episode. The video, entitled "TI Tantrum," was set to the song "Tantrum" by Madeline The Person. The video was two minutes and forty-four seconds in length and tracked Mufarreh's movements around the ice, zooming in on him as he broke down.

According to the petition, between November 2023 and April 2024, every time petitioners sought to have the video taken down, it would reappear. The video spread widely throughout the small youth hockey community. Mufarreh alleged that he suffered from restless sleep and anxiety attacks and was humiliated, mocked, and socially ostracized. His parents also alleged that they endured sleepless nights, psychological distress, and a strain on their marriage.

Petitioners alleged that the video was repeatedly republished "purely to humiliate, isolate, and psychologically destroy" them. Petitioners also alleged that, based on information and belief, the anonymous account belonged to a 23-year-old coach from a rival hockey team who was using the video to recruit kids for his team and keep them away from Mufarreh's team.

Petitioners sought to compel respondents Google and YouTube to disclose the identity of the user who posted the video so they could sue the user for defamation, infringement on the right of publicity, and intentional infliction of emotional distress. Respondents informed the user of the litigation, and he appeared as John Doe, an interested party….

[T]he circuit court dismissed petitioners' claims for defamation and infringement on the right of publicity with prejudice. The circuit court also dismissed the [parents'] intentional infliction of emotional distress claims but allowed petitioners to proceed on the son's claim. Accordingly, the circuit court ordered respondents to turn over Doe's identity….

The court reversed, concluding that, as a matter of law, Doe's behavior as alleged by the plaintiffs didn't constitute intentional infliction of emotional distress:

"[T]o state a cause of action for intentional infliction of emotional distress, a plaintiff must adequately allege that: (1) the defendant's conduct was extreme and outrageous; (2) the defendant either intended to inflict severe emotional distress or knew that there was a high probability that its conduct would do so; and (3) the defendant's conduct actually caused severe emotional distress."

Whether conduct is extreme and outrageous is determined using an objective standard considering the facts and circumstances. "Extreme and outrageous behavior will not be found with mere insults, indignities, threats, annoyances, petty oppressions, or trivialities." "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." The conduct must "be regarded as intolerable in a civilized community." Conduct is extreme and outrageous if "recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" …

According to the petition, Doe posted a video to YouTube that depicted Mufarreh having a strong emotional reaction to missing a penalty shot. The video shows Mufarreh having a breakdown on the ice with incidents of screaming, throwing his gear, and falling to the ground. However, the petition also alleged that Mufarreh is a star youth hockey player who regularly competes in high-profile tournaments that "are streamed live with commentary." This suggests Mufarreh was accustomed to playing in games that were public, high stakes, scrutinized, and recorded for online viewers.

Additionally, "Illinois cases in which intentional infliction of emotional distress has been sufficiently alleged have in fact very frequently involved a defendant who stood in a position of power or authority relative to the plaintiff." This situation does not involve any abuse of power over Mufarreh. Petitioners did not allege that Doe abused any position of authority. Rather, Doe posted a video depicting public events. Further, petitioners do not contend that the video was altered or inaccurate.

In other complaints involving media, the extreme and outrageous conduct was far more egregious than the conduct at issue here. See, e.g., Green v. Chicago Tribune Co. (Ill. App. 1996) ("We hold plaintiff stated a cause of action for intentional infliction of emotional distress caused by the Tribune when it barred her from seeing her dead son on December 31 while it photographed him, and when it published the January 1 article featuring her statements to her son and the photograph of him lying dead."); Kolegas v. Heftel Broadcasting Corp. (Ill. 1992) (concluding radio announcers' conduct was sufficiently extreme and outrageous where they broadcast derogatory remarks about plaintiff's wife and child with neurofibromatosis throughout the larger Chicago area and implied they had deformed heads and were hideous). Additionally, the Illinois Supreme Court in Kolegas highlighted that the radio announcers who behaved outrageously "had access to channels of communication," whereas "the plaintiffs had no similar access to the public," so were deprived "of the opportunity to deny or rebut [the] false statements." Due to this communication imbalance, the radio announcers had power over the plaintiffs. The same is not true for petitioners here, who also had access to Doe's channels of communication, the internet, if they wished. There was no power imbalance.

Moreover, while the plaintiffs in Green and Kolegas were identified by name in the respective publications, Mufarreh is not recognizable from the video. The recording is filmed from a distance and is of poor quality, making Mufarreh's face blurry, pixelated, and not clearly depicted. Neither is his name or other identifying information on his jersey visible to the camera. Nothing distinguishes him from the other players on his team.

Ultimately, unless a viewer already knew it was Mufarreh, they would not be able to identify him from the video. Thus, considering the totality of the facts and circumstances, posting the video to YouTube does not go "beyond all possible bounds of decency, such that a reasonable person would hear the facts and be compelled to feelings of resentment and outrage." …

Petitioners also argue that because Mufarreh was a 10-year-old child, he was particularly susceptible to emotional distress. But "peculiar susceptibility unaccompanied by major outrage cannot of itself raise the defendants' conduct to the level of extreme and outrageous." …

Petitioners were also required to show that Doe "either intended that his [ ] conduct should inflict severe emotional distress or knew there was a high probability" that his conduct would do so. However, petitioners alleged that Doe "is using the video as a weapon to recruit kids to his program and keep kids away from Team Illinois." Thus, petitioners alleged Doe's intent was to benefit his team, not to cause Mufarreh severe emotional distress. Elsewhere, petitioners alleged the video was posted "purely to humiliate, isolate, and psychologically destroy the Mufarrehs," but these allegations are conclusory and insufficient on their own.

Likewise, petitioners needed to allege that "the defendant's conduct actually caused severe emotional distress." "To constitute severe distress, the distress inflicted must be so severe that no reasonable man could be expected to endure it; fright, horror, grief, shame, humiliation, worry, etc. alone are not actionable."

Petitioners alleged that Mufarreh "endured persistent psychological torment" and was "terrorized." They alleged that Mufarreh suffered "severe sleep deprivation" due to "repeated nights of restless sleep, haunted by the humiliation and social ostracization caused by the video's relentless circulation." Mufarreh was "emotionally paralyzed," enduring "anxiety attacks" and withdrawing from friends and hockey.

Although petitioners alleged Mufarreh suffered from humiliation and anxiety, "[m]erely characterizing emotional distress as severe is not sufficient." "[T]he plaintiffs generally allege that they suffered anxiety, humiliation, and extreme and severe emotional distress, but the complaint contains no factual allegations from which the level of severity of the emotional distress could be inferred." Without more specificity, petitioners' allegations that Mufarreh endured restless sleep and anxiety attacks are insufficient to meet the heightened pleading standard for intentional infliction of emotional distress….

Allen R. Perl, Bridgette M. Moran, and Christopher M. Goodsnyder (Perl & Goodsnyder, Ltd.) represent Doe.

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Today in Supreme Court History: May 4, 1942

2025-05-04T17:31:26Z

5/4/1942: Wickard v. Filburn argued.

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Seattle's Socialist Mayor Laughs at Wealthy Residents Leaving To Escape High Taxes

2026-05-03T20:41:07Z

Seattle's socialist Mayor Katie Wilson has a message for prosperous people leaving Washington over the state's soaring tax burden. "Bye!" she says with a laugh, to cheers from a largely progressive audience. Entrepreneurs and investors will certainly take that comment into account as they consider where to live and do business. We can be sure of that fact because recent research further supports the commonsense idea that people often leave high-tax states in search of lower tax bills.

Goodbye, Wealthy People!

Wilson's comments came during an April 16 discussion about "The New Progressives" as part of Seattle University's Conversations series. Wilson and King County Executive Girmay Zahilay fielded a series of questions by host Joni Balter and graduate student Ari Winter.

Asked about major companies leaving or threatening to leave over Seattle's and Washington's escalating tax burden, Zahilay acknowledged that "everything is a tradeoff" and "of course I think taxes can make companies make decisions about staying or leaving." You wouldn't necessarily want to live under his policies, but he sounds like he understands that his decisions may drive people out and impose costs on the community.

Wilson, a self-described "socialist," was presented with a follow-up question by Winter. She was asked, "do you still think progressive taxes are an easy and promising solution?"

Wilson responded that it was "very, very exciting to see the billionaire tax pass the legislature" and described her history of advocating for higher taxes. She then cut to the heart of her response.

"I think the claims that millionaires are going to leave our state are, like, super overblown. And if, you know, the ones that leave, like, bye!," she said with a wave and a snicker. The audience at the university event joined in with whoops and applause.

Wilson may want to practice her goodbyes. Fisher Investments moved from Washington to Texas to escape a new capital gains tax. Starbucks is building a corporate hub in Tennessee and moving jobs there, largely over tax concerns. Billionaire Jeff Bezos fled the state for Florida, also motivated by taxes.

"Jeff Bezos sold about $15 billion in stocks before the new law took effect, potentially saving over $1 billion in taxes," the Washington Policy Center's Chris Corry noted. "Moving his primary residency to Florida would ensure that any future stock sales would not be subject to the excise tax."

Tech giant Microsoft criticized Washington's tax environment and threatened to move jobs elsewhere.

A Growing Tax Burden

On top of an already high burden, including the recently adopted capital gains tax, Washington Gov. Bob Ferguson in March signed a "millionaire's tax" that imposes a 9.9 percent tax on income over $1 million. These stiff levies add up—especially when socialists make policy for a major city. Before the latest tax passed, the Tax Foundation warned that the "proposed 9.9 percent 'millionaire's tax' in Washington would yield a top rate of 18.037 percent on wage income and restricted stock units (RSUs) vesting in Seattle, the highest rate in the country." That's painful. And people don't have to stick around to be mugged. Historically, many leave when taxes get too burdensome.

A Long History of Tax-Fueled Migration

"Analysis of the latest state-level migration data reveals a continued and pronounced domestic shift: millions of Americans, along with significant amounts of income and economic activity, are moving from high-tax states to those with more competitive tax systems and lower overall costs of living," the Tax Foundation's Abir Mandal reported last month.

Crunching IRS data, Mandal found that "states with no income tax or lower overall tax burdens not only gained population but also attracted a disproportionate share of adjusted gross income. Florida led with a net AGI gain equivalent to roughly $184,771 per new resident. Texas, South Carolina, North Carolina, and Tennessee also recorded strong income inflows, with net AGI per new resident typically ranging from $49,000 to $70,000." He also found that "in contrast, high-tax states suffered substantial AGI losses per departing resident. California lost approximately $59,440 in AGI per person, New York lost $62,633, New Jersey lost $85,562, Illinois lost $110,618, and Massachusetts lost $141,672."

Interestingly, the county that gained the most tax filers between 2022 and 2023 was tax-hungry New York County (Manhattan). But it also lost $922 million in adjusted gross income, meaning that high-income people left and were replaced by those with less money to tax.

Overall, population and money moved from higher-tax states to those with lower tax burdens.

This isn't exactly a revelation. We always knew that taxes matter when people decide where to live or work. But it's important to see that research continues to support the point that "certain segments of the labor market, especially high-income workers and professions with little location-specific human capital, may be quite responsive to taxes in their location decisions," as the authors of a 2020 paper in the Journal of Economic Perspectives found.

While remote work and modern mobility encourage people to move to where they feel happy, this isn't a new phenomenon. A 2024 paper by Traviss Cassidy, Mark Dincecco, and Ugo Antonio Troiano found that across the U.S., from 1900 to 2010, "the introduction of the income tax induced significant outmigration to non-income-tax states by middle- and high-earning households."

High Taxes Are a Push Toward the Exits

The lesson, the Tax Foundation's Mandal summarizes, is that "states that maintain competitive, low-burden tax systems continue to attract population and income, while those with higher and more complex tax structures experience sustained outflows."

Seattle's Katie Wilson appears to be replicating the mistake of New York Gov. Kathy Hochul, who in 2022 invited Republicans to "just jump on a bus and head down to Florida where you belong."

In March, she was reduced to speculating that maybe New York officials should "go down to Palm Beach and see who we can bring back home because our tax base has been eroded….I have to look at the fact that we are in competition with other states who have less of a tax burden on their corporations and their individuals."

Hochul was motivated by politics, rather than by Wilson's disdain for success, but the lesson is the same: If people are made to feel unwelcome or abused, they can leave. Heavy taxation is one very effective way of pushing people toward the door.

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AI Companies Learn the Word No

2026-04-23T19:49:11Z

One of the more encouraging developments in artificial intelligence is that some of the people building it have started acting like it might be dangerous. Not in the Skynet sense or the HAL 9000 sense or even the "oops, it deleted all my emails" sense, though AI might be dangerous in all of those ways too. The question is whether the latest models are dangerous to infrastructure, dangerous to privacy, dangerous to security, and dangerous to the blurry line between public and private. For years, Big Tech has been heavy on the gas, light on the brakes—and we have all benefited tremendously, even as angry debates about the downsides have raged. But with AI, at least in a few notable cases, the companies themselves have begun doing something unusual. They have started saying no.

Anthropic has announced that it would not broadly release Claude Mythos Preview, a frontier model that it says has already found "thousands of high-severity vulnerabilities," including in every major operating system and web browser. Instead, it is confining access to a consortium that includes Amazon Web Services, Apple, Broadcom, Cisco, CrowdStrike, Google, JPMorganChase, the Linux Foundation, Microsoft, NVIDIA, Palo Alto Networks, and some other organizations that build or maintain critical software infrastructure. Anthropic says the point is defensive: to use the model to find and patch catastrophic flaws before less scrupulous actors get their hands on similar capabilities.

There is no shortage of self-interest in that decision to launch Project Glasswing. These companies would rather be seen as stewards than as Visigoths. Waiting for general release will slow the cycle of copycatting by rivals. But in an industry that spent years insisting that every new capability had to be shipped immediately because progress was inevitable, it is genuinely notable to see a major player conclude that a sufficiently powerful model should not simply be tossed into the public square.

***

The same instinct showed up, more dramatically, in Anthropic's recent fight with the Pentagon. The company publicly said it had only two "narrow exceptions" to military use of its models: mass domestic surveillance and fully autonomous weapons. On surveillance, Anthropic CEO Dario Amodei argued that AI makes it possible to turn commercially available data into "a comprehensive picture of any person's life—automatically and at massive scale." On autonomous weapons, he said today's frontier systems are "not reliable enough" to "take humans out of the loop entirely and automate selecting and engaging targets" on their own.

Like nearly every other major tech company, Anthropic remains perfectly happy to assist the government with most of its run-of-the-mill murder and destruction. But it's notable, and praiseworthy, that the company wanted to insist on some contractual limits to how its product is used.

The response reflected the Pentagon's chaotic, vengeful new normal. The military insisted it would contract only with AI companies willing to accept "any lawful use" and remove those safeguards. When Anthropic refused, Defense Secretary Pete Hegseth designated the company a risk to national security, a label that blocks Pentagon contracts and could potentially widen into a broader blacklist. Anthropic sued, arguing the move was retaliation. The status as of mid-April is messy: A California federal judge blocked one set of punitive actions and forced the government to remove stigmatizing labels, while on April 8 the D.C. Circuit declined, for now, to pause the Pentagon's separate supply-chain-risk designation as litigation continues.

The California judge, Rita Lin, had it right when she wrote: "Nothing in the governing statute supports the Orwellian notion that an American company may be branded a potential adversary and saboteur of the U.S. for expressing disagreement with the government."

***

A great many people, on both the right and the left, have spent the past two years demanding that somebody, somewhere, place meaningful limits on AI. Now a major company has done exactly that, and it turns out many of the same people are uncomfortable with what limits actually look like in practice.

Project Glasswing is, after all, a cartel. There are many ways such an arrangement might go wrong. There is every reason to worry that the major AI players could use "safety" language as a way to consolidate their own power and freeze out smaller competitors. Antitrust regulators must be salivating at the prospect. But one can also imagine a far worse alternative, in which we wait for some combination of Congress, the Federal Trade Commission, the Commerce Department, the European Union, and 17 blue-state attorneys general to act.

The informal coordination of the major players may, for a time, be the best bet. It is more flexible, more reversible, and more tightly connected to the people who actually understand the technology.

This new phase in the story of AI arrives at a strange moment. As this issue goes to press, the United States and Iran have agreed to a two-week ceasefire after a six-week war that killed thousands and disrupted global trade and energy markets. Everything is uncertain, and that's one reason the Pentagon AI fight matters so much: It is happening in the middle of an actual war, with actual stakes, as AI becomes ever more entangled with military planning, intelligence, cyber operations, and state power. A question hangs over all of it: Was this the first AI war, or the last war of a previous age?

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Brickbat: No File Sharing

2026-04-29T21:16:23Z

New York's proposed state budget includes provisions requiring all 3D printers sold in the state to use software that blocks users from printing gun parts or firearms. The proposed law would make it a felony to share or even possess certain digital files used to print guns to anyone not licensed as a gunsmith at the state and federal level. Supporters argue these rules are needed to stop the spread of untraceable "ghost guns" and improve public safety. But critics say the policy would do little to stop criminals while punishing people like researchers, journalists, and hobbyists who are not doing anything illegal.

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Open Thread

2026-05-04T07:00:00Z

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Mifepristone Returns to the Shadow Docket

2026-05-04T20:37:48Z

In 2023, the Supreme Court stayed a district court order undoing the Food and Drug Administration's approval of mifepristone (aka RU-486), a medication used (in combination with misoprostol) to terminate pregnancies. The U.S. Court of Appeals for the Fifth Circuit had partially stayed the district court's decision, but had left portions that would have restricted mifepristone's availability in place. One year later the case returned to the Supreme Court, only to be dismissed unanimously due to a lack of Article III standing in FDA v. Alliance for Hippocratic Medicine.

Litigation over the FDA's regulation of mifepristone has continued, and the drug's manufacturers are once again headed to One First Street seeking interim relief.

On Friday, in Louisiana v. FDA, a unanimous panel of the U.S. Court of Appeals for the Fifth Circuit stayed the FDA's 2023 regulation allowing mifepristone to be prescribed without an in-person medical visit (i.e. through telemedicine). Concluding that Louisiana was strongly likely to prevail in its arguments that it had standing (unlike AHM) and that the FDA's decision to formally allow prescribing mifepristone via telemedicine was arbitrary and capricious, the Fifth Circuit entered a stay of the rule under Section 705 of the APA.

There are quite a few notable aspects to the Fifth Circuit's order. One is that the panel embraces Louisiana's quite-aggressive arguments for standing. Louisiana claims to be injured by the FDA's order because the availability of prescription-via-telemedicine makes it easier for individuals to circumvent Louisiana's abortion laws (a sovereign injury) and (the state claims) results in medical complications in Louisiana that the state has to pay for (a financial injury). Both arguments seem superficially plausible, but are nonetheless problematic under current law.

States can undoubtedly suffer sovereign injuries, such as when federal law preempts an otherwise lawful state law. But nothing of the sort is occurring here. Rather, Louisiana is claiming that because the FDA allows individuals to get mifepristone prescriptions through telemedicine, and because such prescriptions can be fulfilled by mail, the FDA's regulatory change makes it too easy to circumvent Louisiana's law. I get the argument, but it seems implausible under United States v. Texas (an 8-1 decision). The argument would also seem to open the door even wider to aggressive state standing claims. Under this theory, California would have standing to sue Texas or the federal government for the inadequate regulation of guns or sudafed because other people might take advantage of less stringent regulation to commit bad acts in California.

The financial injury looks like a more traditional Article III injury, but as pled it looks awfully speculative. Louisiana points to two cases in which women were treated for complications caused by mifepristone obtained from out-of-state and the state had to foot the bill. The financial impact is a cognizable injury, to be sure, but it's not clear to me Louisiana has explained how this is attributable to the FDA's actions. For standing it is not enough to identify the harm. The harm must be traceable to the specific action challenged. Here that means that Louisiana has to plausibly allege that these sorts of complication would not have occurred but for the FDA's 2023 change to the regulations governing mifepristone--that these women (and others in their position) would not have obtained mifepristone and suffered the resulting complications without the access to telemedicine the FDA authorized in 2023, and it's not clear to me Louisiana has plausibly made that claim.

The standing analysis is not the only problem with Louisiana v. FDA. The Fifth Circuit's order also heavily relied upon some of the since-vacated opinions in the AHM litigation. This is unfortunate, as the analysis in those opinions was wanting--and not just on standing. As I explained at the tail end of this post, portions of the Fifth Circuit's analysis misapplied the relevant administrative law standards--and I am quite confident the Supreme Court would have found as much had it not kicked the case on standing. As the prior decision was vacated for lack of jurisdiction, its conclusions were not binding on the Louisiana panel here, so it is particularly unfortunate that they were adopted without any additional analysis.

By entering a Section 705 stay of the FDA's 2023 regulation, the Fifth Circuit's decision blocks the prescription of mifepristone via telemedicine nationwide. Although I do not like nationwide injunctions, and am one of the few who rejects universal vacatur under the APA, I believe this case is consistent with the Supreme Court's Trump v. CASA decision, in that it is the sort of case in which universal relief may be necessary to redress the injuries alleged. If, as Louisiana claims, it is injured because the FDA's regulation facilitates the violation of Louisiana law through actions taken in other states, there is no way to adequately redress Louisiana's injuries without providing nationwide relief. So while I do not think a stay was warranted here, there is a logic to the stay's nationwide scope.

On Saturday, mifepristone's manufacturers--Danco Laboratories (name brand) and GenBioPrio (generic)--each filed applications with the Court seeking interim relief from the Fifth Circuit's order. Although each of these filings was produced under tremendous time pressure, together they make a strong case.

Will the justices act on these petitions? I suspect they might, in one way or another (and that many critics of the Supreme Court's "shadow docket" are hoping they will). Not only is the Fifth Circuit's stay quite significant in that it blocks a federal regulation nationwide, the order creates a circuit split with the Ninth Circuit on the threshold issue of standing.

One wrinkle is that we do not yet know what the federal government's position will be. Although the FDA opposed and is subject to the Fifth Circuit's order, and has yet to rescind or disavow the 2023 rule change, it has not (as of this writing) filed anything with the Court. Given the importance of irreparable harm to the government tends to play in interim docket decisions, the Solicitor General's decision whether to support the drug makers, or perhaps to support certiorari before judgment on the standing question, could be influential.

Stay tuned.

* * *

Here are links to my posts on the prior mifepristone litigation:

"The Next Abortion Battlegrounds," June 22, 2022;
"Assessing the Legal Claims in Alliance for Hippocratic Medicine v. FDA," March 8, 2023;
"AHM v. FDA: A Contrary View and a Rejoinder," March 28, 2023;
"Blue-State AGs Have A Mifepristone Lawsuit of Their Own," March 29, 2023;
"Two (Wrong) Mifepristone Court Rulings in One Day," April 8, 2023;
"The Good and Bad of the Fifth Circuit's Abortion Pill Ruling," April 13, 2023.
"BREAKING: Supreme Court to Consider Fifth Circuit's Abortion Pill Decision," Dec. 13, 2023.
Supreme Court Denies Red State Effort to Intervene in Mifepristone Case, Feb. 20, 2024.
Can Emergency Room Doctors Sue the FDA for Failing to Regulate Mifepristone More Aggressively?, Mar. 26, 2024.
Mifepristone in the Supreme Court—Comments on Oral Argument (Updated), March 26, 2024.
Who Can Sue the FDA?, April 2, 2024.
Unanimous Supreme Court Finds No Standing to Challenge FDA Regulation of Mifepristone (UPDATED), June 13, 2024.
Struggling with Standing, July 30, 2024.
Alliance for Hippocratic Medicine on Remand - Still Struggling with Standing, Sept. 17, 2024.

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Our Coblogger Stewart Baker Has Died

2026-05-03T20:27:44Z

It grieves me to report that our coblogger, and my friend, Stewart Baker died suddenly a few days ago at age 78. Stewart always wrote and spoke modestly, but he (alongside former District Judge Paul Cassell and former U.S. Commission on Civil Rights member Gail Heriot) was the most accomplished of any of us: In addition to a long and successful career as a lawyer at Steptoe & Johnson, he also served as General Counsel of the National Security Agency (1992-94) and as Assistant Secretary for Policy in DHS (2005-09). At the start of his career, after graduating from UCLA School of Law in 1976, he clerked for First Circuit Judge Frank Coffin and then for Justice John Paul Stevens.

I invariably appreciated Stewart's incisive, knowledgeable, and thoughtful comments on many topics. His perspectives were usually quite conservative, at times more conservative than mine; but even when we disagreed, I always enjoyed reading his work and talking to him, and learned much from him. We also became good friends; I would often look him up when I visited D.C., and just had dinner with him two months ago.

It's shocking to know that he is gone. As the Russians say ("земля ему пухом"), and as the Romans said ("sit tibi terra levis")—may the Earth rest lightly on him.

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"Martial Home"

2026-05-01T23:38:43Z

I expect I've been in some, given the arsenals that I expect some of my friends maintain. Just ran across the term in a court opinion, as a typo for "marital home"—a quick Westlaw search finds over 600 opinions with the same typo.

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Jacob Mchangama & Jeff Kosseff Guest-Blogging About "The Future of Free Speech: Reversing the Global Decline of Democracy's Most Essential Freedom"

2026-05-01T23:39:12Z

I'm delighted to report that Profs. Jacob Mchangama (Vanderbilt) & Jeff Kosseff (Naval Academy, moving this year to Minnesota) will be guest-blogging Monday to Wednesday about their new book, The Future of Free Speech: Reversing the Global Decline of Democracy's Most Essential Freedom. Here's the publisher's summary:

An incisive examination of free speech's global decline and a framework for preserving expression in democratic societies.

The Future of Free Speech confronts a stark truth: the right to speak freely is under siege. Once celebrated as a cornerstone of democratic societies, free expression is now met with growing suspicion and retaliation across the globe. Jacob Mchangama and Jeff Kosseff present a panoramic view of how we arrived at this pivotal moment.

The authors examine a century in which speech rights expanded dramatically―including postwar democratic revolutions and the sweeping protections of the First Amendment―only to find those rights unraveling in the face of new political, technological, and cultural pressures. Today, liberal democracies are imposing speech controls, authoritarian regimes are cloaking censorship in democratic language, and digital platforms wield unprecedented power over global discourse. This book examines the backlash against free speech from all sides: governments criminalizing dissent in the name of national security; lawmakers and activists demanding tighter controls on misinformation, hate speech, and offensive content; and AI systems removing speech at a scale and speed that dwarfs historical forms of censorship. At the same time, faith in free speech itself is waning, even in the very societies that once championed it.

The Future of Free Speech argues for a reinvigorated, global commitment to open dialogue. Mchangama and Kosseff advocate nonpartisan, civic-minded solutions that resist both government overreach and corporate silencing. They offer a compelling case for how free speech can meet modern challenges without abandoning its foundational role in sustaining democracy, human rights, and shared understanding.

And the jacket blurbs:

Free speech is under increasing siege in today's world. In their new and important The Future of Free Speech, Jacob Mchangama and Jeff Kosseff, advocate for freedom of speech and make a compelling case for optimism.
―Tyler Cowen, George Mason University

A rigorous and inspiring defense of the freedom that safeguards all others. Mchangama and Kosseff powerfully refute alluring but misguided calls for censoring even the most controversial speech, such as disinformation and hate speech. They demonstrate that open debate is essential for protecting human rights and democracy, and resisting authoritarianism.
―Nadine Strossen, Former President, American Civil Liberties Union

In The Future of Free Speech, Mchangama and Kosseff take readers on a bracing global tour of the free-speech recession, documenting how governments are dusting off old tools to police expression in new ways. Clear, principled, and empirically grounded, this book offers realistic strategies for keeping open societies genuinely open.
―Greg Lukianoff, Foundation for Individual Rights and Expression (FIRE)

A broad-ranging and powerful analysis of the recent wave of speech restrictions all over the world, coupled with thoughtful and promising proposals for the future. Very much worth reading.
―Eugene Volokh, Stanford University

The Future of Free Speech is a brilliant defense of our most essential freedom. Mchangama and Kosseff prove that free expression isn't a threat to democracy―it is its foundation. A vital roadmap for anyone who recognizes that once we lose the right to speak, we also lose the power to defend every other right.
―Yascha Mounk, Johns Hopkins University

One of the very best books about the 'global free-speech recession' by two of the greatest analysts and champions for First Amendment values.
―Nick Gillespie, Reason

The post Jacob Mchangama & Jeff Kosseff Guest-Blogging About "The Future of Free Speech: Reversing the Global Decline of Democracy's Most Essential Freedom" appeared first on Reason.com.

Recent Books on the Constitution

2026-05-03T14:03:13Z

Each fall, I teach a seminar called Recent Books on the Constitution. I initially designed this course when I visited Georgetown in 2005. At that time, because I tend to read what relates directly to my current projects, I felt that I was not keeping up with the literature. By assigning recent books on the Constitution to read as part of my teaching, I would actually read them. This has really worked for me. I have now read a lot of books on the Constitution. The complete list of all the books I have assigned is below.

Since 2005, I have assigned 105 books by 96 authors, with James Fleming, Sandy Levinson, Gerard Magliocca, Eric Segall, Dan Farber, Jonathan Gienapp, Philip Hamburger, Kim Roosevelt, and David Bernstein each making more than one appearance. Over the years, I assigned four books in manuscript before publication. In addition to my manuscript of the book I am now writing on libertarianism, here are the five "recent books on the Constitution" I am assigning for fall of 2026:

Eric Claeys, Natural Property Rights (2025)
Paul DeHaret, Uncovering the Constitution's Moral Design (2017)
Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (2025)
Louis Michael Seidman, The Constitution Cannot Save Us: Why We Can No Longer Rely on Our Founding Document (2026)
Sarah Isgur, Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today's Supreme Court (2026)

I select books I think I ought to read–either because of the subject or the author. I then hold off reading them myself so I can read them at the same time as the students. This enables me to react to the books along with them, and for me to remember the nuances of the books for class discussion.

The seminar format is to read 6 books, taking 2 weeks on each book, with the author coming to the class during the second week to discuss the book. The first book is now always one of mine to use as a trial run and to give the students an idea of where I am coming from when we discuss the other books. When books are longer than 250 pages, I ask the author to tell me which 250 pages I should assign. If I assign much more than 125 pages per week, I fear the students won't read them, or won't read them carefully enough. To help assure that they do, students submit one-page summaries of each half of the book (graded pass-fail). On the day before the author's visit, they submit a 5500 character critique of the book, which I send to the author electronically the day before class. (They all read them.) When the class ends, there is no exam or paper for the students to write or for me to grade. We are done!

Students consistently tell me that the course is extremely enriching, and helps them develop their critical skills. They are never expected to read whole books and rarely asked to concisely formulate their own objections to scholarship. It is also empowering for them to see how well they are able to find the holes in a professor's book-length presentation. I find that, collectively, the students are able to nail the weaknesses of every book (except mine, of course).

[Note to law professors: I have a budget to pay for the authors' travel expenses. But now that we all have access to Zoom teaching, this seminar format can be replicated anywhere at zero cost. Wouldn't it be great if there were a dozen or more such book seminars around the country? Try it. I promise you will love it.]

If you click on READ MORE you will see why teaching this class has been enormously rewarding for me. Offer my heartfelt thanks to all these authors for trekking to DC to discuss their books with my students.

2025

Jonathan Gienapp, Against Constitutional Originalism: A Historical Critique (2024)
Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (2024)
Neil Siegel, The Collective Action Constitution (2024)
Yuval Levin, American Covenant: How the Constitution Unified Our Nation and Could Again (2024)
Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (2023)

2024

Jonathan Turley, The Indispensable Right: Free Speech in an Age of Rage (2024)
Jeffrey Rosen, The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America (2024)
Robert Cottrol & Brannon Denning, To Trust the People with Arms: The Supreme Court and the Second Amendment (2023)
Nathan Chapman & Michael McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience (2023)
Anthony Sanders, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters (2023)

2023

James Fleming, Constructing Basic Liberties: A Defense of Substantive Due Process (2022)
Paul Moreno, How the Court Became Supreme: The Origins of American Juristocracy (2022)
Vincent Philip Munoz, Religious Liberty and the American Founding (2022)
Justin Dyer & Kody Cooper, The Classical and Christian Origins of American Politics (2022)
Kermit Roosevelt, The Nation That Never Was: Reconstructing America's Story (2022)

2022:

Helen Norton, The Government's Speech and the Constitution (2020)
Aziz Huq, The Collapse of Constitutional Remedies (2021)
David Bernstein, Classified: The Untold Story of Racial Classification in America (2022)
Stuart Banner, The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why they Stopped (2021)
Philip Hamburger, Purchasing Submission: Conditions, Power, and Freedom (2021)

2021:

Ilan Wurman, The Second Founding: An Introduction to the 14th Amendment (2020)
Stephen Halbrook, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? (2021)
Donald Drakeman, The Hollow Core of Constitutional Theory: Why We Need the Framers (2021)
Jamal Greene, How Rights Went Wrong: Why Our Obsession With Rights is Tearing America Apart (2021)
David Schwartz, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (2019)

2020:

Paul Finkelman, Supreme Injustice: Slavery in the Nation's Highest Court (2017)
Eric Segall, Originalism as Faith (2018)
Greg Weiner, The Political Constitution: The Case Against Judicial Supremacy (2019)
Robert Ross, The Framers' Intentions: The Myth of the Nonpartisan Constitution (2019)
Jack Balkin, The Cycles of Constitutional Time (2020)

2019:

Neal Devins, The Company They Keep: How Partisan Divisions Came to the Supreme Court (2019)
Larry Lessig, Fidelity & Constraint: How the Supreme Court Has Read the American Constitution (2019)
Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (2018)
Rebecca Zietlow, The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction (2017)
Lee Strang, Originalism's Promise: A Natural Law Account of the American Constitution (2019)

2018:

Martha Jones, Birthright Citizens: A History of Race and Rights in Antebellum America (2018)
John Compton, The Evangelical Origins of the Living Constitution (2014)
Josh Chafetz, Congress's Constitution: Legislative Authority and the Separation of Powers (2017)
Adam Carrington, Justice Stephen Field's Cooperative Constitution of Liberty: Liberty in Full (2017)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (2018)

2017:

Barry Friedman, Unwarranted: Policing Without Permission (2017)
Bruce Frohnen & George Carey, Constitutional Morality and the Rise of Quasi-Law (2016)
Geoffrey R. Stone, Sex and the Constitution (2017)
Suja Thomas, The Missing American Jury (2016)
Thomas G. West, The Political Theory of the American Founding (2017)

2016:

Carson Holloway, Hamilton versus Jefferson in the Washington Administration: Completing the Founding or Destroying the Founding? (2015)
Michael Paulsen & Luke Paulsen, The Constitution: An Introduction (2015)
Thomas Leonard, Illiberal Reformers: Race, Eugenics, and American Economics in the Progressive Era (2016)
Tara Smith, Judicial Review in an Objective Legal System (2015)
Ilya Somin, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (2015)

2015:

Damon Root, Over Ruled: The Long War for the Control of the U.S. Supreme Court (Palgrave 2014)
F.H. Buckley, The Once and Future King: The Rise of Crown Government in America (Encounter 2014)
Brad Snyder, The House of Truth (Oxford 2017) (assigned ms)
Stephen Garbaum, The New Commonwealth Model of Constitutionalism (Cambridge 2013)
Laura Donohue, The Future of Foreign Intelligence (Chicago 2016) (assigned ms)

2014:

Clark Neily, Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government (Encounter 2013)
Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changes His Mind – and the History of Free Speech in America (Metropolitan Books, 2013)
John McGinnis & Michael Rappaport, Originalism and the Good Constitution (Harvard 2013)
Stephen Griffin, Long Wars and the Constitution (Harvard 2013)
Garrett Epps, American Epic: Reading the U.S. Constitution (Oxford 2013)
Louis Michael Seidman, On Constitutional Disobedience (Oxford 2012)

2012 (Fall):

Gerard Magliocca, John Bingham: America's Founding Son (NYU, 2013) (assigned ms)
Akhil Reed Amar, America's Unwritten Constitution (Basic Books, 2012)
John Inazu, Liberty's Refuge: The Forgotten Freedom of Assembly (Yale 2012)
Justice Antonin Scalia, Reading Law: The Interpretation of Legal Texts (West, 2012)
Abner Greene, Against Obligation (Harvard 2012)
Sandy Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford 2012)

2012 (Spring)

Michael J. Gerhardt, The Power of Precedent (Oxford 2008)
Robert Bennett & Lawrence Solum, Constitutional Originalism (Cornell 2011)
Gary L McDowell, The Language of Law & the Foundations of American Constitutionalism (Cambridge 2010)
Eric Segall, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges (Praeger 2012)
Michael Greve, The Upside-Down Constitution (Harvard 2012)
Alexander Tsesis, The Thirteenth Amendment and American Freedom (NYU 2004)

2011:

H. Jefferson Powell, Constitutional Conscience (Chicago, 2008)
Jeremy A Rabkin, Law Without Nations? (Princeton, 2005)
Christian G. Fritz, American Sovereigns (Cambridge, 2007)
Timothy Sandefur, The Right to Earn a Living (Cato Institute, 2010)
Sonu Bedi, Rejecting Rights (Cambridge, 2009)
Alison LaCroix, The Ideological Origins of American Federalism (Harvard, 2010)

2010:

David Bernstein, Rehabilitating Lochner (Chicago 2011) (assigned ms)
Brian Tamanaha, The Formalist-Realist Divide: The Role of Politics in Judging (Princeton, 2009)
Earl Maltz, Slavery and the Supreme Court, 1825-1861 (Kansas, 2009)
Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (Cambridge, 2004)
George Thomas,The Madisonian Constitution (Johns Hopkins, 2008)
David Strauss, The Living Constitution (Oxford, 2010)

2007:

Alex Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship (Harvard, 2002)
Dan Farber, Retained by the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have (Perseus, 2007)
Jim Fleming, Securing Constitutional Democracy: The Case of Autonomy (Chicago, 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge, 2006)
Keith Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton, 2007)

2006:

Philip Hamburger, Separation of Church and State (Harvard, 2002)
Kermit Roosevelt, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions (Yale, 2006)
Elizabeth Price Foley, Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality (Yale, 2006)
John Yoo, The Powers of War and Peace : The Constitution and Foreign Affairs after 9/11 (Chicago, 2005)
Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (Oxford, 2006)

2005 (Taught when I was a visitor at Georgetown. Only Mark Tushnet, who was then still on the Georgetown faculty, appeared. His class visit gave me the idea to invite all the authors in the future):

Mark Tushnet, Taking the Constitution Away from the Courts (Princeton, 2000)
Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Harvard, 2001)
Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford, 2004)
Daniel A. Farber, Suzanna Sherry, Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations (Chicago, 2004)
James R. Stoner, Common Law Liberty: Rethinking American Constitutionalism (Kansas, 2003)

The post Recent Books on the Constitution appeared first on Reason.com.

"Punctuation Matters. At the Heart of This Case Is the Placement of a Comma"

2026-05-01T20:42:15Z

Thanks to Wikipedia for the koala photo.

From Remus Enterprises 1, LLC v. Breece, decided Thursday by the D.C. Court of Appeals (Judge Shanker, joined by Judges Easterly and Ruiz):

Punctuation matters. At the heart of this case is the placement of a comma. Appellant Remus Enterprises 1, LLC ("Remus 2023") sued appellee Quinn Breece in Superior Court asserting tort claims arising out of Remus 2023's alleged ownership of, and desire to sell, a parcel of property located at 3308 16th Street, NE, in Washington, D.C. But a consent judgment in another case established that a different entity with a name containing all the same words and letters but a differently placed comma—Remus Enterprises, 1 LLC ("Remus 2018")—was the real owner of the property. Because Remus 2023 does not have standing to sue based on a different entity's property interest, we conclude that the trial court lacked subject-matter jurisdiction over the case, and we affirm the trial court's dismissal of Remus 2023's complaint, although on grounds different from those relied on by the trial court….

The consent judgment in this case intended to conclusively settle the issue of who purchased, owned, and contracted to sell the 16th Street property. First, the text of the consent judgment supports this conclusion. It makes specific "factual findings," related to that issue: that (1) Remus 2018 purchased the 16th Street property in February 2023; (2) the deed of transfer for that property contained a typographical error such that the name of the transferee mistakenly read "Remus Enterprises 1, LLC" rather than the correct name, "Remus Enterprises, 1 LLC"; (3) Remus 2023 did not purchase and does not own the 16th Street property; and (4) Remus 2018 entered into a contract to sell the 16th Street property. The presence of these findings in the stipulated consent judgment submitted by the parties and issued by the court supports the inference that the parties "specifically agreed" to be bound by the court's determination of those issues….

Our resolution of the standing issue follows ineluctably from our resolution of the collateral estoppel issue. The consent judgment in the Nasi case found that Remus 2018, and not Remus 2023, purchased, owned, and contracted to sell the 16th Street property. In the case before us, Remus 2023 was the sole plaintiff, and it sought to base its injury on its alleged purchase, ownership of, and contract to sell the 16th Street property. But because we afford the consent judgment in the Nasi case preclusive effect (and also in light of the allegation in the complaint itself that Remus 2018 owned the property), Remus 2023 cannot allege an injury based on its purchase, ownership, or sale of the 16th Street property. And because Remus 2023's claims derive entirely from an alleged injury to Remus 2018's property interest, we conclude that Remus 2023 has not suffered an "injury in fact" sufficient to give it standing. Therefore, the trial court lacked subject matter jurisdiction over the case, and dismissal of the complaint is appropriate ….

{We note that Remus 2023's counsel represented at argument that he was the sole member of both LLCs, and that ownership of the 16th Street property at one point transferred to him. But no allegations regarding these facts appear in the operative complaint, and Remus 2023 did not develop any argument addressing what implications, if any, this state of affairs could have on the resolution of the standing question in this case.}

Jude E. Wikramanayake represents Breece.

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Today in Supreme Court History: May 3, 1802

2025-05-03T05:04:52Z

5/3/1802: Washington D.C. incorporated as the capital of the United States. Article I, Section 8 empowers Congress to "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States."

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Civilians Across the Middle East React to the Iran War: 'A Fear That Settles in Your Heart'

2026-04-24T13:30:58Z

Amena found out about the war when air raid alarms woke her. Hossein first heard it when fighter jets blew up a radio station as he listened to it. Jad found out about it on the news, two hours before the bombs fell on his neighborhood. And the parents of several volleyball players found out when their daughters were pulled from the burning wreckage of a school gym.

Most Americans have fortunately never seen war firsthand, and most of those who have were troops sent to fight far away. War in your hometown is a strange experience, especially a modern air war without front lines. Things you take for granted, from electricity to the freedom to go outside, disappear. Life's soundtrack becomes sirens and explosions. The danger feels distant until it isn't. Death comes seemingly at random.

On February 28, during a U.S.-Israeli surprise attack, missiles hit an elementary school in Minab and a gym in Lamerd, two towns on the Iranian coast. Mir Dehdasht, whose daughter Robab's high school volleyball team was practicing at the gym, rushed over when a neighbor told him about the attack. "The injured were bleeding heavily, some had lost consciousness on the ground, others were screaming without stopping. Their voices were deafening," he told Drop Site News after learning Robab had died.

Since then, war has touched almost every corner of the Middle East. Reason spoke to civilians from all sides of the conflict in March and April about life under the bombs and the human cost of war. Most of their names have been changed to protect their safety.

Map: Matthew Petti

Hossein, a young Iranian man who lives with his parents in Isfahan, Iran, awoke on February 28 to hear his family talking about a foreign attack. They tried to leave the city but turned around when a warplane bombed the radio tower along the highway. Hossein heard the sound of the explosion and the radio cut out simultaneously.

"They are bombing really hard. Today at noon they hit a mosque at the end of our street, but thank God we are okay. Love and kisses," Sepideh, an Iranian woman in Tehran, texted her American relative, who showed Reason the screenshots. "Now they are hitting everything. Nowhere is safe. But don't worry, we are okay."

Amena, a Palestinian-American woman living in Jerusalem, was jolted awake on the first morning of the war by a phone alert for incoming Iranian missile fire. "How do I explain to my sister sitting in California what it sounds like when bombs go off and your windows shake? There's a fear that settles in your heart and never leaves. We live in a constant state of stress, it just doesn't go away," she says. "You can't really go anywhere because you don't know when you'll get an alert to find a protective area to go to, you don't know if there is one at the location you're going to."

War is lonely. New security checkpoints make it harder for Amena to visit her adult son in another part of Jerusalem. Her husband has been stuck in America for weeks because flights to the Middle East were canceled until the mid-April ceasefire.

Fuad, a Lebanese-American man, was planning to visit his aunt in Yaroun, his familial village in Lebanon near the Israeli border, on February 27. But his wife asked to stay an extra day in Beirut, the capital. The morning they were supposed to drive down to the village, Fuad turned on the news to see Israel and Iran were at war. A few days later, the war came to Lebanon, and Yaroun was evacuated.

"I'm not sure there's anything left now," Fuad says. "I miss my village."

Jad, a Lebanese man from the Dahiyeh suburb of Beirut, was holding out hope that Lebanon would be spared. At 1 a.m. on March 2, he saw the news that the Dahiyeh-based militia Hezbollah was joining the war on Iran's side. Two hours later, Israel began bombing the area. "After that, it was around two to three hours of chaos in Dahiyeh, people trying to evacuate while strikes were ongoing," Jad says.

Jad was lucky enough to reach a relative's house elsewhere in Beirut, but many others were left homeless or paying exorbitantly for temporary shelter. "The government's not doing much," says Fuad. "Mostly it's independent organizations helping the refugees."

In other countries, the disruption has not been quite as intense. Most of the air raids in Saudi Arabia and Kuwait have been aimed at military bases and industrial parks rather than cities. Salman, a Saudi man, describes the war as "a background noise you couldn't shut off," between new restrictions on daily life and constant rumors. "You mostly forget that you're at war, but then you remember in moments," says Jasim, a Kuwaiti man, who describes empty store shelves, intermittent sirens, and faraway booms.

Anas, another Kuwaiti man, says he actually slept through the opening attacks of the war. He woke up to his mother scolding him about sleeping in so late while sirens were blaring.

Even in places under heavy bombardment, some people have become desensitized to danger. Yahya, an Iranian-Canadian man who returned to Tehran after the war started, was startled by the sound of an explosion while walking to the Tehran subway early in the morning. "The crowd at the entrance of the underground station looked up nonchalantly and continued walking," Yahya wrote in a message forwarded to Reason by a friend.

"In Kurdistan we say, 'If you heard it, thank God, that means it wasn't for you,'" says Meghan Bodette, an American researcher in Iraqi Kurdistan with whom I have collaborated on projects for the Kurdish Peace Institute. Iraq has the dubious honor of being bombed by both sides of the conflict, with dozens killed.

A video that went viral early in the war shows Iraqis filming and laughing at a rooftop bar in Baghdad while an Iranian drone flies overhead toward the U.S. Embassy. Jad says some Lebanese have similarly started spectating Israeli airstrikes from their rooftops.

David, an Israeli man near Tel Aviv, had been expecting the war to come for a while. "Psychologically speaking it's intense, but nothing compared to the early Gaza War, especially immediately following October 7," he says. "I think this time everyone saw it coming on some level." He compares wartime life to the COVID-19 pandemic, when "everyone need[ed] to hunker down."

On March 1, an Iranian missile punctured a bunker in the Jerusalem suburbs, killing four people sheltering inside. David says it was "unsettling" to Israelis at first, but people "handwaved" the danger by chalking it up to "shoddy" bunker construction.

In what could have been a festive omen, several holidays lined up this year. For the first time in decades, the Eid al-Fitr holiday at the end of the Islamic lunar month Ramadan coincided with Nowruz (New Years) on the Iranian and Kurdish solar calendars. Passover for Jews and Easter for Christians came right after. This holiday season was another reminder of how abnormal things were.

Hossein's family Nowruz dinner was interrupted by the sounds of a "massive attack" that frightened the guests. On the last day of Nowruz break, typically a time for family picnics, the city held a war memorial service, which Hossein says was "packed" with relatives of the dead from wars "old and new."

Passover "was a pain since it was a constant stream of alarms. Quite scary especially when you're with your family or on the road," says David. "A lot of Israelis have big families too so wrangling the kids to the shelter or safe room is pretty complicated."

He adds that the situation near the Lebanese border was much more intense. David knows people in northern Israel who did their entire Seder, the traditional Passover service, inside a bunker due to rocket fire.

Citing a lack of protected areas and difficulty of access for rescue workers, Israeli police closed major holy sites in Jerusalem. The Jewish prayer for Passover at the Western Wall was restricted to a few dozen people at a time, Catholic Cardinal Pierbattista Pizzaballa celebrated Easter Mass in an empty Church of the Holy Sepulchre, and Muslims were unable to hold traditional Eid prayers at Al-Aqsa Mosque. "This is no comparison, but imagine Christmas without a tree, presents, or Santa," says Amena.

The situation in Kuwait also worsened around Eid, when "the Iranians started hitting critical infrastructure instead of military installations," according to Anas. "People are distressed because it's not whether you get hit by a drone or fragments, but whether electricity shuts down," he says.

That kind of economic damage is how most people in the world will feel this war. India is suffering severe cooking gas shortages, forcing families to cook with firewood. Slovenia, Indonesia, and Bangladesh are rationing fuel.

The longer the blockade of Hormuz drags on, the more likely these problems will cascade into America. U.S. gas prices jumped from around $3 per gallon before the war to over $4 per gallon after a month of war. CNN and USA Today have already found Americans skipping meals to pay for fuel.

There are typically 40,000 American troops in the Middle East, with another 10,000 deployed to fight this war, leaving hundreds of thousands of loved ones worried. "Who wants war?" Charles Simmons, father of fallen U.S. airman Tyler Simmons, told NBC. "Sometimes it's a necessity, and I just don't know what's going on." Other military families are suffering "a good amount of stress and anxiety…just around the unknowns right now," Shannon Razsadin, head of the Military Family Advisory Network, told the Associated Press.

That was a common feeling from ordinary people on all sides of the war—not knowing what risks they will be exposed to, for how long, or why. "It has mildly disrupted work life for many, travel plans, et cetera, but a sense of foreboding has definitely set in," Salman, the Saudi man, said before the ceasefire kicked in. "Fear and expectation that the situation will only escalate."

The post Civilians Across the Middle East React to the Iran War: 'A Fear That Settles in Your Heart' appeared first on Reason.com.

Open Thread

2026-05-03T07:00:00Z

The post Open Thread appeared first on Reason.com.

How European Libertarians Differ From American Ones [Updated]

2026-05-03T15:29:55Z

On April 24-26, I attended LibertyCon Europe 2026, the major annual gathering of European libertarian students and academics (held this year in Madrid). I was invited to give two talks, and therefore came to this event for the first time since 2014. I spoke to numerous students, academics, and activists who attended the conference and got a better sense of where European libertarians (or "classical liberals," as some prefer to call themselves) stand at this crucial moment in history. It was interesting to observe similarities and differences with their American counterparts.

Not surprisingly, there is a large overlap between the two groups' views and priorities. A high proportion of what I saw and heard at LibertyCon Europe differed little from what I would expect to see at a comparable US event. For example, libertarians on both sides of the Atlantic are deeply concerned about excessive government spending and regulation, growing efforts to impose restrictions on access to various websites (often under the pretext of protecting children), protectionist restrictions on international trade, and more. American libertarians have greatly influenced their European counterparts, and vice versa. As the great Austrian libertarian economist F.A. Hayek put it, "[t]he growth of ideas is an international process."

There are, however, several noteworthy differences. First and foremost, it is notable that European libertarians have an almost unanimously negative view of Donald Trump and his administration. Many, probably most, American libertarians are similarly negative. But there is a significant faction that is "anti-anti Trump" (holding that Trump is flawed, but still preferable to his opponents, or at least no worse than them), and a smaller but vocal group that is actively pro-Trump.

Among European libertarians these latter two camps are almost completely absent. At the conference, several European participants asked me whether I thought Trump was the worst-ever US president. I answered that he is working hard to achieve that "distinction," but has not so far surpassed Woodrow Wilson and Andrew Johnson, and perhaps 2-3 others. Regardless of the answer, the ubiquity of the question was notable.

Perhaps this is not entirely surprising. Trump promotes an American version of nationalist ideology. For obvious reasons, non-Americans are inherently less likely to be sympathetic to American nationalism. But the European libertarians I met also have very negative views of the right-wing nationalist parties in their own countries, such as the AfD in Germany, the National Rally in France (formerly the National Front), and others. Hungarians at the event were thrilled by the recent crushing electoral defeat of authoritarian nationalist Prime Minister Viktor Orban. Others there were happy to see Orban go, as well. Orban's regime exemplified many of the evils of nationalism, and was beloved by "national conservatives" and "postliberals" in the US, and around Europe.

On average, European libertarians seem much more attuned to the dangers of nationalism than American ones are. One of the talks I gave at the conference was on how nationalism is now the greatest threat to economic liberty in most of the world, taking the role previously held by socialism. Afterwards, almost everyone who spoke to me about it expressed substantial agreement (with the exception of one Scandinavian academic). The same presentation would have attracted considerably greater dissent among US libertarians.

I don't fully understand the reasons for this difference between US and European libertarians. But one cause may be Europe's awful history with nationalism, which makes libertarians there more sensitive to its perils. Those dangers are indeed very great, as Alex Nowrasteh and I explained in our 2024 article, "The Case Against Nationalism."

Another striking European-American difference I noted at the conference is that European libertarians overwhelmingly support Ukraine against Russia, and generally also support Western aid to Ukraine. By contrast, most (though by no means all) American libertarians oppose such assistance on quasi-isolationist grounds. Some also endorse foreign policy "realism," which holds there is little or no difference between the foreign policies of difference regime types (e.g. - that liberal democracies' foreign policies are little different from those of dictatorships). Such views are rare among European libertarians. One European participant at the conference argued to me that American libertarians' isolationist approach to security policy is not rooted in any general element of libertarian thought, but is rather a product of the America's unique geography - separated from other powerful nations by two oceans.

As in the case of Trump and nationalism, I largely agree with the Europeans on this one. In previous writings, I have made the case for Western support for Ukraine, and also argued against libertarian neo-isolationism generally.

Some of the European-American divergence over Ukraine is explicable by the particular history of individual nations. Many participants in the LibertyCon Europe conference come from Eastern European countries like Poland, Hungary, and the Czech Republic, which have a history of being occupied and oppressed by the Soviet Union, the Russian Empire, or both. That naturally contributes to their hostility to Russian aggression today. But it is notable that most Western Europeans at the conference held views on this issue that differed little from their eastern counterparts.

A third key difference is a divergence regarding constitutional questions. Many American libertarians (myself included) devote extensive time and effort to constitutional questions, and several American libertarian groups have done much to advance their causes through constitutional litigation; the Institute for Justice and the Pacific Legal Foundation are notable examples. Such possibilities seem largely absent from the radar screen of European libertarians.

Indeed, almost the only presentation at the conference that focused extensively on constitutional litigation was my own talk on the US Supreme Court's recent ruling striking down Trump's tariffs in a case I helped litigate. As I noted in the final portion of my talk, I think European libertarians are overlooking potentially valuable opportunities. Both the European Convention on Human Rights and the national constitutions of multiple individual countries contain potentially useful provisions protecting property rights and economic liberties, that libertarians could potentially make better use of. They could also potentially make use of federalism and separation of powers elements of some of the relevant constitutions. Various economic interest groups have sometimes made effective use of pro-market strategic litigation in Europe. But not so libertarians. Rasheed Griffith, A European-based Mercatus Center scholar, made similar points in his talk on a panel on economic regulation, also urging Europeans to make greater use of constitutional litigation.

Obviously, Europeans shouldn't necessarily use the same types of arguments as those deployed in US litigation. But they should not neglect opportunities to use constitutional litigation to promote liberty. Litigation usually cannot succeed entirely on its own. Successful reform movements generally combine it with political action. But it is often a valuable tool, nonetheless.While we would do well to learn from the Europeans on the first two points of contrast covered here, the reverse is true on this one.

The above is far from a complete account of what I saw and heard at the conference, nor is it a complete analysis of similarities and differences between American and European libertarians. But the three points of contrast I cover seemed particularly notable.

The last time I spoke at a LibertyCon Europe conference - back in 2014 - I saw a talk by the great Swedish libertarian Johan Norberg (now a colleague of mine at the Cato Institute). He said that Europe is both the greatest continent and the worst one. It's the greatest because it gave us Enlightenment liberalism, the set of ideas that brought unparalleled freedom and prosperity to so much of the world, including America. It's the worst because it also gave us socialism and fascism, the causes of unparalleled oppression, poverty, and mass murder. Fascism, of course, is just a particularly egregious variant of nationalism, an ideology that also originated in Europe.

Hopefully, the good that Europe gave the world can ultimately overcome the evil. Libertarians on both sides of the Atlantic should work to help make that happen.

NOTE: I use the word "libertarian" here. But, as noted above, some adherents of the relevant ideology on both sides of the Atlantic prefer "classical liberal." I think the two terms are largely equivalent and prefer "libertarian" for stylistic reasons. But there are many who disagree.

UPDATE: Johan Norberg wrote to me in response to this post, and authorized me to reprint this part of his insightful message. Here it is:

I share your assessment of the difference and I think you point to the two most likely explanations in your article:

1) we live close to Russia and know from experience that we have to band together to safeguard our freedom and independence.

2) we also know from recent history that nationalism has a tendency to unleash madness within ourselves and it repeatedly results in war and destruction, so it's not something to play games with. In a more nationalistic and aggressive era, we fear what others might become, but also what WE might become. "You don't want to make the Hulk angry."

Younger readers may not get the Hulk reference. See here.

UPDATE: #2 Rasheed Griffith also wrote me in response to this post, and also authorized me to reprint part of it:

I completely agree with your observations on the differences between the two groups.

On this point of yours: "Both the European Convention on Human Rights and the national constitutions of multiple individual countries contain potentially useful provisions protecting property rights and economic liberties, that libertarians could potentially make better use of." The combined Lisbon Treaty of the EU offers an even stronger legal basis for pro-freedom litigation. The core economic freedoms are explicitly enumerated: Articles 26 and 28–66 TFEU establish: Free movement of goods, of establishment, to provide services, and of capital. And there is extensive case law at the CJEU [Court of Justice of the European Union] that has affirmed these rights against national restrictions. Some I discussed here. Unlike the US, the EU does have an economic (pro-libertarian) constitution. There are even articles preventing certain kinds of government subsidies (State Aid). And all of these can be directly litigated in any Member State.

I should have referenced the Lisbon Treaty in my original post. It is, I think, far from clear whether European constitutional structures are, overall, more libertarian (in the sense of protecting economic liberty) than the US Constitution. But European libertarians and other free market advocates should make greater use of strategic litigation, regardless.

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Court Upholds Ban on Military Retirement Home Residents' Wearing Political Clothing in Public Spaces

2026-05-02T18:50:24Z

The Court has in the past upheld restrictions on political activity (such as candidate speeches) on military bases, see Greer v. Spock (1976), and lower courts have upheld restrictions on speech by outsiders on various kinds of government property, including military bases. But when may the government restrict speech by people who actually live on government property—military bases or otherwise—and who aren't active duty military or even other government employees?

The issue has come up fairly rarely, but at least some cases have recognized that residents of various kinds of public housing retain broad constitutional rights on that property. Resident Action Council v. Seattle Housing Authority (Wash. 2008) is one example; that case struck down a "[public] housing regulation prohibiting the posting of signs on the exterior of resident apartment doors" by the residents. See also, e.g., Walker v. Georgetown Housing Authority (Mass. 1997). But in Friday's Fuselier v. RisCassi, Chief Judge Halil Suleyman Ozerden (S.D. Miss.) upheld a limit on wearing political clothing in public spaces at a military retirement home. An excerpt:

Plaintiff … is a Vietnam War veteran and long-term resident of the Armed Forces Retirement Home—Gulfport, a gated, guarded, all-inclusive residential retirement home located on the shores of the Gulf of America …. [T]he "administration of the Retirement Home" is "under the control and administration of the Secretary of Defense" …

The AFRH-G … prescribes certain rules for its residents, such as requiring them to complete a "leave form" if they intend to leave campus for more than twenty-four hours, and it prohibits drinking alcohol (except in designated areas) and possessing a firearm on campus. It also prohibits conduct and dress—in common areas—that it deems "inappropriate." One class of apparel deemed "inappropriate" is "political" apparel:

Conduct: Residents are expected to conduct themselves in a manner that will promote harmony, safety, security and consideration of others. Negative behavior, such as using racial slurs, engaging in confrontations, swearing, and damaging the property of other Residents will not be tolerated … Signs and apparel of racial, sexual, political, or ethnic slogans are not permitted ….

Dress: In public spaces, Residents are expected to wear clothing that is clean, neat, serviceable, and conducive to adult living. Apparel with racial, sexual, political, or ethnic slogans is considered inappropriate dress at the AFRH-G ….

{[W]eekly bulletins issued in June and July 2023 limited the political apparel restriction to "current" political candidates.}

As a "passionate supporter of President [Donald] Trump and other Republican political candidates and officials," Fuselier wants to show his support by donning apparel and displaying signs with political slogans in campus common areas. For example, he wishes to wear apparel with the slogans "Trump 2024 Save America Again!" and "Let's Go Brandon," and adorn his orthopedic walker with slogans like "Vote Republican Vote MAGA" and "Tate Reeves for Governor." …

[After AFRH refused to let him wear and display political slogans, in] late June 2023, Fuselier "affixed two printed signs to his orthopedic walker while in the common areas" of the retirement home. One sign stated "2024 – Make Us Great Again" and the other stated "Let's Go To Brandon MS." According to Plaintiff, the Resident Officer "ordered him to remove the signs" and informed him that refusing to comply could result in an "administrative hearing," and possible eviction.

The court concluded that the government property was a "limited public forum" exists "where a government has reserved a forum for certain groups or for the discussion of certain topics." On such property, restrictions are constitutional if they're viewpoint-neutral and reasonable, and the court said these restrictions qualified. Some excerpts:

The [purpose of] AFRH-G … is to provide "residences and related services" to veterans, not to foster a rich educational environment. These services are primarily mental and physical health services to assist aging veterans. And the AFRH-G is a gated and guarded federal facility that employs active-duty military personnel.

These unique characteristics … make the AFRH-G incompatible with political speech. Permitting political expression, such as allowing Fuselier to don apparel with political slogans like "Lets Go Brandon," a well-known euphemism for the phrase "F*** Joe Biden," might disrupt the AFRH-G's unique environment which seeks to provide residences for veterans and foster resident physical and mental health, while preserving an environment suitable for active-duty military personnel. Such political speech disrupts that environment because it is adverse to the AFRH-G's mission and undermines the military's long-standing historical tradition of promoting the appearance of political neutrality among the active-duty personnel working at the Home. See, e.g., Parker v. Levy (1974); Greer ("[M]embers of the Armed Forces stationed at Fort Dix are wholly free as individuals to attend political rallies, out of uniform and off base. But the military as such is insulated from both the reality and the appearance of acting as a handmaiden for partisan political causes or candidates.")….

The Government has a legitimate and reasonable interest in promoting harmony among residents, visitors, and employees at the AFRH-G because of the unique nature of the forum. The AFRH-G's purpose is to provide residences and related services, primarily mental and physical health services, to veterans. It is also a gated, guarded, federal facility that employs active-duty military personnel and reports to the Department of Defense.

In Preminger v. Secretary (Fed. Cir. 2008), the Federal Circuit evaluated the Menlo Park Medical Center, which consisted of "buildings and outdoor, communal areas," "a teaching hospital," "three nursing homes," and "a domiciliary for homeless veterans." The court concluded that the campus was a nonpublic forum and that a restriction on "partisan activities" by "visitors" was reasonable because "[t]he VA must be able to maintain a place of healing and rehabilitation for the veterans for which it provides services. Demonstrations and other disruptions could interfere with the VA's ability to provide those services and could impede the VA's ability to carry out its mission of caring for veterans." And in Preminger v. Principi (9th Cir. 2005), the Ninth Circuit concluded that a restriction on "partisan activities" that prevented the plaintiff from soliciting voters at a VA nursing home was reasonable "in order to prevent the appearance of partisan affiliation."

Those same justifications apply equally to the AFRH-G. Maintaining a place of healing for residents reasonably may require certain limitations on kinds of speech and expression that might interfere with its congressional mandate.

This is especially true in this context because active-duty military personnel work on campus and might inadvertently be pictured or associated with residents engaging in political speech, undermining our Nation's history of a politically neutral military. In this unique context, the Government has a legitimate interest in promoting harmony on campus….

James E. Graves, III and Jessica Bourne Williams represent the government.

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"Multi-Figure Verdicts"

2026-05-02T15:20:40Z

Spotted on a lawyer's web site:

To be fair, the lawyer was apparently one of the lawyers on what would commonly be called a low eight-figure settlement ($11M), and the lawyer's site mentions a couple of similarly sized verdicts, one later on the same page and one or another page. It thus seems more like a funny glitch than a telling error. On the other hand, the lawyer has recently been sanctioned for AI hallucinations in a filing written by an associate but also signed by the lawyer.

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Court Finds AI Hallucinations in Filing by Former State Senate Candidate

2026-05-01T19:50:14Z

From Jimenez-Fogarty v. Fogarty, decided Wednesday by Magistrate Gabriel W. Gorenstein (S.D.N.Y.); Lindsay had run for the N.Y. State Senate in 2024:

Tricia S. Lindsay, attorney for plaintiff Sai Malena Jimenez-Fogarty, responded to two motions to dismiss by filing a pair of memoranda of law that cited to numerous nonexistent cases. In response, the Court ordered Lindsay to show cause why she should not be sanctioned for her misleading filings. Upon consideration of Lindsay's response to these orders, we find that she should be sanctioned in the amount of $2,500.00 ….

[T]wo briefs were signed by Lindsay, and each contained a number of fabricated citations. When we say "fabricated," we do not mean citations that arguably contain typographical errors—for example, Lindsay's citations to cases that exist and support the propositions for which they were cited but are not located in the volume or at the page of the reporter (or database identifier) given. Similarly, we exclude any otherwise correct citations that give the wrong case name. We also exclude those instances where the cited case covers the same topic as the proposition for which it is cited but where the case's holding is completely mischaracterized, although such a citation is itself grossly misleading and perhaps deserving of sanctions.

Instead, we consider only citations to cases that cannot be located at all by name—or that were not located where Lindsay said they were and have nothing to do with the propositions for which they were cited—thus showing that the citations were completely made up. The following are descriptions of some of the fabricated citations [listing seven items -EV] ….

Lindsay's response to being alerted to the fabricated citations did not follow the typical pattern in cases where courts have called upon attorneys to explain the presence of fabricated citations in their papers. The Court's first OSC [Order to Show Cause] specifically ordered Lindsay to provide "a complete and detailed description of the process of the drafting of the two memoranda of law." While most attorneys provide such an explanation, which often involves an admission of reliance on artificial intelligence ("AI") platforms, Lindsay's brief sworn statement in response offers only airy generalities and conclusory statements. Her response contains no coherent explanation for how the two memoranda of law came to contain the fabricated citations. The most basic questions—most obviously: what was the source of the fabricated citations?—are never answered.

Thus, Lindsay states merely that she "follow[s] a structured and diligent process designed to ensure accuracy, thoroughness, and compliance with all applicable legal and ethical standards." Bizarrely, she then discusses her "typical" process for drafting briefs without specifically attesting that this was the actual process she followed in drafting the memoranda of law at issue in this case. The clear implication of her statement, however, is that her "typical" process was followed in this case; otherwise, there would be no reason to mention it. Lindsay states that she "manually cross-check[s] case names, docket numbers, and reporter citations against the primary sources in legal databases" and verifies that "the authorities cited support the propositions for which they are referenced." Lindsay's contention that these actions occurred in this case are obviously false, however, because a "manual[ ]" check of any of the fabricated citations would have instantly shown that each citation was fake or inaccurate. Thus, while Lindsay's response acknowledges that eleven citations are inaccurate, she provides no explanation of how these citations came to be included in the memoranda of law.

At one point, Lindsay states that citations to "nonexistent cases" resulted from "typographical errors, misreading of secondary sources, or limitations in the search functionality of legal databases." In addition to being conclusory, this explanation makes no sense inasmuch as Lindsay never shows how "typographical errors, misreading of secondary sources, or limitations in the search functionality of legal databases" produced the "nonexistent cases" cited to in the memoranda of law. And, in any event, no explanation is made of how Lindsay's "manual[ ]" check did not reveal the nonexistent cases.

At another point, Lindsay emphasizes that she relied on "established legal research platforms." But that obviously did not occur here, as there is no evidence that any "established" legal research platform generates or contains fabricated citations, or that an "established" legal research platform somehow supplied the fabricated citations in the memoranda of law. Tellingly, in her initial response, Lindsay never even named what "legal research platforms" she used to draft the memoranda of law and thus never specified which one supplied her with the fabricated citations.

In light of the complete lack of evidence to support the claim that any "established" legal research platform could have supplied these citations, we reject this contention. As a result, there remain only two plausible explanations for the source of the fabricated citations in Lindsay's memoranda of law: a person who deliberately created them knowing they were fabricated or an AI system. Lindsay never claims that she had the assistance of any person in drafting the memoranda of law. To the contrary, her declaration states:

I am solely responsible for the research, drafting, and review of the memoranda at issue. While I utilize legal research databases and citation management tools to assist in my work, I do not delegate these core responsibilities to others. No other individual or computer system played a substantive role in the drafting process beyond the use of standard legal research and word processing software.

Denying she had any human help, Lindsay thus asks that Court to accept a proposition that is utterly devoid of evidence: that an "established" legal research platform created the fabricated citations.

In her response to Hirshowitz's filing, Lindsay for the first time states that she "routinely utilizes Lexis Nexis['s] … AI-driven features," and then states that the fabricated citations "may very well have been generated by the Lexis Nexis software during the research phase." The response, however, is devoid of any specifics as to what Lexis Nexis's "AI-driven features" she used, how they actually supplied any of the false citations, or any examples where Lexis Nexis's "AI-driven features" have supplied fabricated citations.

{In her response to the Court's second OSC addressing the applicability of Rule 11, Lindsay continued her failure to describe how the fabricated citations ended up in her brief. Instead, she stated that "the citation errors at issue were not the result of any intent to mislead the Court or opposing counsel" but rather "were isolated and inadvertent mistakes that occurred despite good faith efforts to ensure accuracy." She also states that she "reli[ed] on technology that is not immune to error" without specifying that technology.}

We thus find that Lindsay used an AI program that generated the fabricated citations in the memoranda of law and that Lindsay failed to check that these citations were genuine….

"[C]ourts in this [C]ircuit have repeatedly found that presenting AI-generated hallucinations as valid caselaw constitutes subjective bad faith."

Lindsay's bad faith is also reflected in the fact that she failed to provide the "complete and detailed description of the process of the drafting of the two memoranda of law" and "detailed and complete description of the role of any individual or computer system that was involved in the drafting process" required by the Court. Her obfuscation reflects a complete lack of acceptance of responsibility, notwithstanding her assertion that she "deeply regret[s] the errors that occurred" and her claim to have "taken all reasonable steps to address and correct them." Moreover, her other representations to the Court consistently minimize her actions. See Resp. at 9 ("Citation errors, while regrettable, are not uncommon in complex litigation."); Lindsay Aff. ¶ 6 ("These errors … reflect the inherent challenges of legal research and citation in complex litigation, particularly when working under time constraints and with voluminous records."); Supp. Resp. at 4 ("The citation errors acknowledged by Ms. Lindsay were the result of an innocent oversight in the review process, compounded by reliance on technology that is not immune to error."). Even if Lindsay had meaningfully apologized or accepted responsibility for her conduct, "regret and apologies are not necessarily enough to avoid the imposition of sanctions for the submission of non-existent legal authority." Here of course we have no real acceptance of responsibility….

Lindsay's bad faith is further reflected in the fact that she filed papers with false citations on two occasions after the Court issued the OSCs.

First, two months after the first OSC, she filed a brief in the United States Court of Appeals for the Second Circuit that contained two fabricated citations….

Second, in October 2025, Lindsay filed objections to a Report and Recommendation issued by the undersigned that addressed the motions to dismiss filed by defendants. In a brief filed in opposition to the objection, Hirshowitz's counsel pointed out that Lindsay's objection contained eight false, fake, or "hallucinated" citations. These suspect citations were described at length and in detail.

In response, Lindsay stated that she was withdrawing the "specific … citations contained within [the objection] that defense counsel has claimed violate Rule 11" while at the same time asserting that she was doing so "without admission of liability." In other words, Lindsay again failed to own up to her errors or give any explanation of how they occurred. We have examined the eight citations in Lindsay's original objection identified by Hirshowitz's counsel and concur that they are in some cases completely fabricated.

Lindsay's repetition of the same mistake makes it impossible to credit her contention that the erroneous citations do not "reflect a pattern of disregard for professional obligations" and "were isolated and inadvertent mistakes that occurred despite good faith efforts to ensure accuracy." Lindsay represented that she "has taken steps to further strengthen her review protocols to ensure accuracy going forward." These unspecified efforts have turned out to be completely inadequate….

Deterrence is paramount here, given Lindsay's obdurate refusal to explain how the citations came to be included in her briefs. We believe that a fine of $2,500 will serve as an appropriate deterrent, along with a requirement that she supply to her client a copy of this Opinion and Order. Additionally, it is important that other courts be aware of Linsday's repeated misconduct, which calls into question filings she has made. Thus, the Court directs that Lindsay supply a copy of this Opinion and Order to the presiding judge in each pending case where she appears as attorney of record by means of a letter filed on the docket and served on opposing counsel….

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Today in Supreme Court History: May 2, 1927

2025-05-03T05:00:59Z

5/2/1927: Buck v. Bell decided.

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Self-Checkout Is Under Fire Across the Country. Is Theft Really the Reason?

2026-05-01T19:31:11Z

Self-checkout machines are in the crosshairs. In recent months, numerous states and localities have considered legislation to curtail the use of automated checkout in grocery stores. These bills are often positioned as part of an effort to cut down on retail theft, but it appears the driving force behind them is to create more unionized jobs.

According to USA Today, at least six states have considered rules that would restrict self-checkout machines. The states range from blue Connecticut to red Ohio, but it doesn't stop there. Two cities in California already have self-checkout limits in place, while New York City is currently considering restrictions as well.

Self-checkout restrictions are often framed as a commonsense crime prevention measure that protects grocery store workers and cuts back against the recent uptick in retail theft nationwide. But when it comes to these bills, the fine print points toward a different motivation.

For instance, the Connecticut bill mandates that stores must have one employee for every two self-checkout machines, in addition to having one manual checkout station for every two automated lanes. Stores cannot go over eight self-checkout lanes total. And any employee designated with the task of supervising self-checkouts is barred from engaging in any other simultaneous duties that could interfere with such supervision.

The various bills percolating in other state capitals and city halls are all largely structured the same. A previous iteration of California's self-checkout bill specified that any store seeking to implement technology that "significantly affects the essential job functions of its employees" or "eliminates jobs or functions" must conduct an "impact assessment" before doing so, underscoring the real impetus there.

In other words, in the name of reducing theft, these rules would functionally operate to increase the number of clerks that each store must employ at any given time. Given that the grocery industry has historically had higher unionization rates than other retail sectors, this would translate into more unionized jobs.

If any doubt remains, one need only look at the biggest supporters of these bills. In Connecticut, all the legislative testimony submitted in favor of restricting self-checkout came from labor unions, including representatives affiliated with AFL-CIO, Service Employees International Union (SEIU), and the United Food and Commercial Workers (UFCW), which is the largest grocery worker union in the U.S. A CalMatters summary of sponsors and opponents for California's self-checkout bill likewise shows that the majority of the bill's boosters are labor unions.

News articles published about these bills also frequently quote UFCW reps touting their virtues. The effort to restrict self-checkout dates back to at least 2019, when unions in Oregon pushed a state ballot measure that would have limited groceries to two self-checkout lanes per store.

To be sure, there is evidence that self-checkout machines can result in higher shoplifting rates. One frequently-cited study found that so-called inventory shrink at grocery stores was 16 times more likely with self-checkout than with traditional cashiers. A LendingTree survey reported that 27 percent of self-checkout users admit to intentionally stealing items in self-checkout lanes, with another 36 percent saying they took items inadvertently.

But unsurprisingly, stores themselves—who have a direct bottom-line incentive to prevent shoplifting—have proven more than capable of responding. Walmart and Target have garnered headlines for dropping or limiting self-checkout at various stores around the country, while Five Below and Dollar General have also curtailed automated checkout in recent years. Technology also offers promise, with various groceries now onboarding smart video and AI to crack down on shoplifting in the self-checkout lane.

In the end, no one wants to clamp down on retail theft more than grocery stores themselves. If that means cutting back on self-checkout, they will do so. But they don't need the government, aided by unions, to decide for them—and to forcibly inflate their payrolls at the same time.

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A Pointless War: How Iran Hawks Finally Got Their Way

2026-04-24T13:26:18Z

The Strait of Hormuz is straight out of a storybook. Named for an ancient Persian god, the 24-mile-wide waterway flows between jagged cliffs, inlets that look like a desert version of Scandinavian fjords, and multicolored salt formations. Centuries-old Portuguese castles dot both sides of the straits, and traditional sailboats called dhows still ply the waters, carrying tourists and small wares.

Hormuz, the only connection between the oil-rich Persian Gulf and the wider ocean, is also the artery of the modern industrial economy that is most vulnerable to war. On February 28, 2026, shortly after Israel and the United States attacked Iran, the Iranian military broadcast on the radio that the strait was closed for shipping. Two days later, a (presumably Iranian) weapon smashed into an oil tanker, killing two crew members. Iran began charging multimillion-dollar ransoms for the few ships that continue to pass.

Global crude oil prices nearly doubled in the first few weeks of war—and oil isn't the whole story. Many critical manufacturing processes around the world rely on inputs from the gulf's petrochemical industry, which Iran has also bombed directly and which will take months to restart once the coast is clear. Electronics manufacturers in South Korea and Taiwan are suddenly short on helium, which they need to produce semiconductors. So ends the age of uninterrupted artificial intelligence growth. The plastic, metal, and pharmaceutical industries are running into similar shortages of raw materials. And the world is staring down a food crisis next year as farmers struggle to find fertilizer for the current planting season.

President Donald Trump has made reopening the strait a major goal of the war and the negotiations to end it during the mid-April 2026 ceasefire. In other words, Trump's struggle is now to reverse the consequences of choosing to start the war.

Starting this war was indeed a choice. The Trump administration spent months building up military forces in the Middle East while issuing constantly shifting demands. Iran had agreed to negotiate; the U.S. attacked on a weekend between two scheduled rounds of talks.

Although the war came out of the blue for most Americans, the Iran hawks spent decades working to put the United States in this position. They made it politically easier to go to war than not go to war. Politicians took it for granted that Israel and the Arab monarchies' problems with Iran were also America's problems. But hawkish factions from both parties also shot down any attempt to solve those problems through compromise or even containment of Iran. They pushed the U.S. to take greater and greater risks while avoiding a public debate on war.

"If Iran presents a quasi-existential menace, diplomacy is a political liability and sanctions don't work, what is left besides military force?" Robert Malley, the Biden administration's envoy to Iran, wrote in a recent New York Times essay criticizing his former boss for helping create the conditions for war. "If the United States wants to stop plunging into Middle East wars, it needs to value its own interests more than it hates its old enemies."

The hawkish coalition's shifting goalposts, designed to make avoiding war impossible, haunted the execution of the war itself. Since the conflict began, the Trump administration has thrown out many different, contradictory victory conditions: overthrowing the Iranian government, making a deal with the Iranian government, destroying Iran's nuclear program, sending Iran's entire industrial base "back to the Stone Age," unleashing a "prosperous and glorious future" for Iran, taking control of the Strait of Hormuz, or letting the strait "open itself."

For many hawks, the specific rationales for fighting Iran don't seem to matter. What they want is someone to pay for the past decades of U.S. failures in the Middle East. The Trump administration and its allies have tried to hold Iran responsible for attacks by Al Qaeda, Tehran's sworn enemy. More accurately, politicians from both parties have blamed Iran for stirring up violent resistance to U.S. troops during the Iraq War, the last big regime change war of choice. At the same time, hawks insist that this regime change war will be different.

"Iran is not Iraq. Anyone saying otherwise doesn't understand Middle East geopolitics, the Iranian people, their neighbors, or the diaspora. The Iranian people hate this regime," Rep. Nancy Mace (R–S.C.) argued in March 2026. But that's a lot like how the Bush administration sold the Iraq War in 2002: Deputy Defense Secretary Paul Wolfowitz claimed that Iraqis were "the most educated people in the Arab world, who are going to welcome us as liberators."

Of course, it takes two to tango. The Islamic Republic of Iran was founded in a 1979 revolution that intentionally antagonized America, including by taking U.S. diplomats hostage, and that announced its intention to spread that revolution by sending guns to rebels around the region, including to the Lebanese militia Hezbollah, which attacked U.S. troops sent to end Lebanon's civil war in 1983. Over the years, Iranian leaders have made threats (including the destruction of Israel) that were both aggressive enough to provoke a response and empty enough to make Iran look weak.

But a majority of Americans and Iranians weren't even born yet when most of these grievances happened—and the world has changed a lot since then. Iran, exhausted by the consequences of its revolution, has been looking for a way out.

The Grand Bargain

After Al Qaeda attacked America on September 11, 2001, the Iranian intelligence services actually participated in the U.S. retaliation campaign in Afghanistan. Two years later, Iran quietly shut down its nuclear weapons research, and a Swiss diplomat presented the U.S. government with a letter from Iran proposing a "grand bargain." Iran would open up its nuclear facilities for inspection, cooperate in stabilizing Iraq, support Israeli-Palestinian peace talks, and even pressure Hamas and Hezbollah to lay down their arms. In exchange, Iran asked for normalized relations and an end to U.S. regime change threats.

The Bush administration disagreed internally on whether the offer was serious and how to respond. Secretary of State Condoleezza Rice argued that the seriousness of the Iranian offer was actually proof of Iran's weakness, so the U.S. should turn it down and push for more. Her view carried the day.

That became the pattern of U.S.-Iranian diplomacy for the next two decades. Every time Iran offered compromise, American hawks used that offer to argue that more pressure would lead to more Iranian concessions. This circular logic—the U.S. demand should always be something more than Iran is offering—made diplomacy almost impossible. Yet there would never be another Iranian offer as good as the grand bargain.

The next big diplomatic moment came under President Barack Obama. Though Iran had stopped its secret nuclear weapons program, it was now openly enriching uranium, ostensibly as fuel for nuclear power plants. In response, Israel threatened war and assassinated Iranian scientists while the U.S. imposed economic sanctions to cut off Iran's access to foreign trade and carried out covert sabotage against Iranian enrichment plants. But then, in agreements signed in 2013 and 2015, Iran accepted a set of temporary and permanent restrictions on its nuclear industry in exchange for the U.S. and five other world powers lifting economic sanctions.

Hawks hated the deal, insisting that they could have secured a better bargain with just a little more pressure—or that any deal with Iran was cowardly "appeasement." The debate had a bizarre quality to it: Sens. Lindsey Graham (R–S.C.) and John McCain (R–Ariz.), both of whom had publicly called for bombing Iran, feigned outrage when Obama said that the alternative to a deal was war.

Iran's regional rivals also lobbied against the agreement. They were particularly alarmed by Obama's comments that Saudi Arabia would have to learn to "share the neighborhood" with Iran while the U.S. military made a "pivot to Asia." (East Asia, that is.) Israeli Prime Minister Benjamin Netanyahu gave a speech to the U.S. Congress in 2015 attacking Obama's "very bad deal" with what he described as a Nazi-like regime. Saudi Crown Prince Mohammed bin Salman denounced "the new Hitler in Iran" to The New York Times in 2017.

The United Arab Emirates, meanwhile, played the classic game of "bootleggers and Baptists," working with the pro-sanctions lobby in Washington while continuing to profit from Iranian sanctions busting in Dubai.

Opponents of the deal often said that it failed to address two nonnuclear issues: Iran's conventional missile arsenal and its proxy wars in the region. (In addition to arming Lebanese, Palestinian, and Iraqi paramilitaries, the Islamic Republic had by now intervened in the civil wars in Syria and Yemen.) Asking Iran to leave its neighbors alone was one thing. But demanding its conventional weapons was another. Even an ability to hit back against foreign attacks was now deemed an unacceptable threat.

The hawks got what they wanted from the first Trump administration, which tore up the nuclear agreements in 2018 and began a policy of "super maximum economic pressure." The regime-change maximalists took the initial results as a vindication. In November 2019, a fuel price hike in Iran led to the deadliest civil unrest there since the 1979 revolution. Two months later, Trump ordered the assassination of Iranian Gen. Qassem Soleimani, and Iran retaliated with a one-off military operation that did not kill any Americans (though it accidentally blew up an airliner full of Iranian civilians).

Although President Joe Biden promised to return to diplomacy on the 2020 campaign trail, his advisers were convinced that pressure was working better than expected. Ariane Tabatabai, who later worked on Biden's negotiating team, warned in an essay before Biden took office that the next U.S. president should not "rush" back to a deal, because continued pressure over time would only degrade Iran's position. Ilan Goldenberg, another future Biden official, wrote a paper suggesting "calculated risks" against Iran, modeled on Israeli raids into Syria that Israel dubbed the "campaign between wars."

And the hawkish Senate Foreign Relations Committee Chair Bob Menendez (D–N.J.)—later convicted of selling information to Egyptian spies—threatened to block any return to Obama's deal. Biden's negotiators thus spent fruitless years pressuring Iran to give the U.S. a "longer and stronger" deal than before. Meanwhile, Biden offered the Arab monarchies defense pacts that would guarantee permanent U.S. military protection, even as Saudi Arabia was quietly negotiating with Iran for a separate peace.

Iranian protests against hijab laws in September 2022 and the Hamas attacks against Israel on October 7, 2023, both made further negotiations with Iran politically toxic in America. The surprise violence of October 7 also seemed to vindicate Israeli factions who believed that enemies could not be deterred, only destroyed. In response to Hezbollah's cross-border shelling, Israel launched an all-out invasion of Lebanon in the autumn of 2024. Contrary to the Biden administration's worries—and my own—this campaign did not escalate into an international war. Immediately after the Israeli-Lebanese ceasefire in November 2024, a revolution in Syria ejected Iranian forces, another sign of Iran's weakness. By the end of his term, members of Biden's camp were publicly and privately endorsing an attack on Iran itself.

After returning to office, Trump embraced that feeling that taking risks against Iran pays off. He reopened and then reclosed conflicts in Gaza and Yemen, seemingly at his leisure. In June 2025, he took the greatest gamble so far, supporting an Israeli attack on Iran in the middle of U.S.-Iranian negotiations, joining in with an air raid on the 12th day of the war, and offering a ceasefire immediately after. Iran launched a token retaliation on U.S. forces and then accepted.

The Green and the Dry

The decisive moment for Trump was probably an incident halfway around the world from the Middle Eastern desert, on the lush Caribbean coast. On January 3, 2026, a detachment of U.S. special operators swooped into Caracas by night and arrested Venezuelan President Nicolás Maduro on drug trafficking charges. Vice President Delcy Rodríguez immediately began kowtowing to U.S. demands. Overthrowing foreign leaders had never looked so easy.

The same week as the raid on Caracas, inflation protests in Iran escalated to a nationwide uprising against the Islamic Republic. (U.S. Treasury Secretary Scott Bessent bragged that the unrest was the "grand culmination" of U.S. sanctions.) Much of the Iranian opposition was now explicitly asking for foreign military support. One Iranian told the Financial Times that Venezuela had given her hope for a "clean, bloodless regime change."

On January 8, the Iranian government shut down the internet and began clearing the streets with gunfire, killing thousands of people. Four days later, Trump posted on social media, "Iranian Patriots, KEEP PROTESTING—TAKE OVER YOUR INSTITUTIONS!!! Save the names of the killers and abusers. They will pay a big price. I have cancelled all meetings with Iranian Officials until the senseless killing of protesters STOPS. HELP IS ON ITS WAY."

The unrest died down as the government imposed martial law. Iranians within the country told me at the time that everyone, whether opposition or loyalists or bystanders, was waiting to see what the U.S. would do.

Then Trump uncanceled the meetings, sending Special Envoy Steve Witkoff to negotiate on the future of Iran's nuclear program, which had been badly damaged during the June 2025 war. Witkoff's team was openly contemptuous of spending time discussing or even understanding the details of the nuclear issue, refusing to bring technical experts to the final round of negotiations. What Trump really wanted, Witkoff told Fox News on February 22, was for Iranian leaders to explain "why they haven't capitulated" in the face of an ongoing U.S. military buildup.

Trump still expected a quick and unambiguous surrender when he and Netanyahu launched the war a few days later. Israel assassinated Iranian Supreme Leader Ali Khamenei in a first strike, and Trump said that he was anticipating a situation "like with Delcy in Venezuela."

A month into the war, Trump admitted at an Easter dinner that he had told the British prime minister the war would last only three days. He gave a similar timeline to "skeptical" Middle Eastern leaders before the war began, telling them it would "only take 100 hours," according to Trita Parsi, executive vice president of the Quincy Institute for Responsible Statecraft, a pro-diplomacy nonprofit, who also broke the news of Iran's 2003 offer.

At the same time that the Trump administration was looking for a Delcy figure, Israel's intelligence services were promising that they could spark another uprising in Iran. That didn't materialize, either. Even Kurdish rebels directly armed by the CIA were reluctant to rush into what they feared would end with "a massacre of our own people," as one Kurdish commander told New Lines Magazine.

Instead of falling, Iran fought back and escalated. The U.S. military is stuck playing Whac-A-Mole with Iranian missiles and drones, burning through valuable munitions that are also supposed to be on hand to defend Ukraine and Taiwan. Bessent even lifted sanctions on Iranian oil exports in hopes of relieving some of the shortages caused by the fighting in Hormuz. Iranian civilians have paid the highest price, with between 1,700 and 2,400 killed in the bombing by mid-April. And the war spread beyond Hormuz, reigniting fighting in Lebanon and Iraq.

In mid-April 2026, the United States and Iran agreed to a "fragile ceasefire," as U.S. Vice President J.D. Vance put it. Immediately, both sides tried to change the terms. Despite Pakistani mediators announcing that the ceasefire would cover "everywhere including Lebanon"—and Trump agreeing privately, according to CBS News—the Israeli government escalated its bombing in Lebanon, and the Trump administration rushed to justify it. Despite promising "safe passage through the Strait of Hormuz" during the ceasefire, Iranian authorities continued to limit shipping and demand ransoms.

Whether or not the truce holds past April, Trump has lost control over the conflict he has entangled the U.S. in. With its back to the wall, Iran discovered that it holds a lot of leverage over the world economy. Israel and the Arab states, meanwhile, found that they can push the U.S. to adopt maximalist goals.

The war has led to an outcome that neither Iranians nor Americans wanted. But it has fulfilled the vision of Netanyahu, who declared from the rooftop of the military headquarters in Tel Aviv that bringing the U.S. directly into the war "allows us to do what I have been hoping to do for 40 years."

Ironically, it has also fulfilled the vision of the late Hamas leader Yahya Sinwar, who foreshadowed his plans in a 2022 speech: "By God, I see it with my own eyes, a war that will change the face of the globe, a regional religious war that will burn both the green and the dry." The American political class helped pile a lot of the kindling, and it doesn't know how to put the fire out.

The post A Pointless War: How Iran Hawks Finally Got Their Way appeared first on Reason.com.

Open Thread

2026-05-02T07:00:00Z

The post Open Thread appeared first on Reason.com.

5th Circuit Panel Blocks 2023 Mifepristone Telemedicine Approval

2026-05-01T21:00:21Z

It has been a very busy 48 hours for Louisiana. On Wednesday, the Supreme Court decided Callais. The following day, the Governor announced he would suspend the upcoming primary elections to allow the legislature to redistrict. There is also litigation before the Supreme Court about the issuance of the judgment in Callais. Earlier today, the Governor was sued to enjoin the cancellation of the election.

And just a few moments ago, the Fifth Circuit panel granted a stay in Louisiana's challenge to the mifepristone telemedicine approval from 2023. What, you thought the case was over after Alliance for Hippocratic Medicine? You have not been following the Fifth Circuit closely enough.

For now, I will just paste the introduction of Judge Kyle Duncan's panel opinion.

In Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), the Supreme Court returned the regulation of abortion to the states. In response, the Biden Administration directed federal agencies to "expand access to . . . medication abortion." Exec. Order No. 14076, 87 Fed. Reg. 42053 (July 8, 2022). The next year, the Food and Drug Administration (FDA) formally altered its safety guidelines for the abortion drug mifepristone. Under the new regulation, the drug could now be prescribed online and dispensed through the mail, without any need for an in-person visit to a doctor. In 2025, Louisiana challenged the new regulation in federal court under the Administrative Procedure Act (APA). It argued that FDA's justifications for remotely dispensing mifepristone were based on flawed or nonexistent data. It also documented how the new regulation had resulted in numerous illegal abortions in Louisiana and in Louisiana paying thousands in Medicaid bills for women harmed by mifepristone. Louisiana sought a stay of the regulation while the litigation proceeded. In response, FDA conceded it had failed to adequately study whether remotely prescribing mifepristone is safe. But the agency resisted staying the regulation, arguing it was in the midst of a comprehensive review of mifepristone protocols. The agency, however, could not say when that review might be complete and admitted it was still collecting data. The district court agreed that Louisiana was likely to win its challenge to the mifepristone regulation and was suffering irreparable harm from it. Nonetheless, the court declined to stay the regulation based on its balancing of the equities and the public interest. Louisiana appealed to our court and sought a stay pending appeal under 5 U.S.C. § 705.

We grant the stay.

This case should get to the Supreme Court ver soon.

To be clear, this ruling would not take mifepristone off the market. But it would require people to have an in person evaluation before receiving a prescription for the abortion drug. Post-Dobbs, the number of abortions nationwide has likely increased, in large part, because of the telemedicine requirement. Doctors in blue states send these pills to Louisiana, Texas, and other red states, and are protected by state shield laws. But if there is an in-person requirement to prescribe the drug, those doctors would not be able to dispense across state lines.

The Trump Administration likely does not want this headache. The government has raised a host of standing and other procedural defenses, but has not defended the Biden decision on the merits. Let's see what SG Sauer does before the Supreme Court everyone.

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First Circuit Stays Court Order Commandeering New Hampshire (Though Doesn't Rely on Anti-Commandeering Arguments)

2026-05-01T20:58:26Z

Yesterday a panel of the U.S. Court of Appeals for the First Circuit stayed a district court injunction, pending appeal, that would have commandeered New Hampshire by requiring it to maintain a vehicle emissions inspection program to comply with the federal Clean Air Act. As I explained here and here, the court's order violated the anti-commandeering doctrine (though the state had not made much effort to make this argument).

The unsigned order (on behalf of Chief Judge Barron and Judges Aframe and Dunlap) concluded (correctly) that New Hampshire was likely to prevail on the merits, even if it did not conclude that the order violated the anti-commandeering doctrine. Rather, the court concluded that Gordon-Darby, which had sued New Hampshire in order to protect its lucrative vehicle emissions testing contract, was premature in alleging the state was "in violation of" the Clean Air Act when it sued under the law's citizen suit provision, as the state law terminating the vehicle emissions inspection program had not yet taken effect. While the relevant case law allows citizen suits for past or present violations, the district court, in effect, allowed a suit for (and entered an injunction against) wholly prospective violations.

Having concluded New Hampshire was likely to succeed on the merits, it was easy for court to further conclude that the injunction would cause irreparable injury by "forc[ing] a State to continue enforcing a program that the State's legislature has repealed." It further noted that any benefit to Gordon-Darby from the injunction was speculative, as forcing New Hampshire to continue the emission inspection program would not guarantee that Gordon-Darby would get the contract.

It is too bad the court saw no need to reach the state's commandeering or other federalism arguments, but entirely understandable. The Gordon-Darby suit was a transparent ploy to preserve a lucrative contract that the state had lawfully terminated, and like many such ploys, it was not well-grounded in the law.

Perhaps anticipating the First Circuit's order, on Wednesday the district court denied Gordon-Darby's quite audacious request to hold New Hampshire officials in contempt and award sanctions. The district court judge apparently thought better of holding state officials in contempt for failing to urge or enact laws the federal government has no authority to compel.

As a technical matter, New Hampshire's appeal remains pending, but there should be little question anymore about how this litigation will end.

The post First Circuit Stays Court Order Commandeering New Hampshire (Though Doesn't Rely on Anti-Commandeering Arguments) appeared first on Reason.com.

The Major Questions Doctrine Constrains Presidential Power Over Elections

2026-05-01T21:01:23Z

Donald Trump has been trying to "nationalize" (his term, not mine) control over elections, claiming sweeping presidential power to control voting processes in a variety of ways. In a compelling recent post at the Election Law Blog, Richard Bernstein explains why these moves run afoul of the major questions doctrine:

Briefing has begun in the cases challenging President Trump's latest attempt to arrogate power over federal elections to the federal executive branch—EO 14399's direction that the USPS provide lists states of voters eligible to vote by mail and to block the mail-in votes of those not on the USPS lists. The Society for the Rule of Law (with me as counsel) filed an amicus brief arguing, at pages 10-14, that the major questions doctrine applies to interpretations of federal agency authority on elections issues. That brief is linked here. The lack of authority for EO 14399 is so clear that a federal court does not need to rely on the major questions doctrine in order to invalidate EO 14399. But it should, as an alternative holding….

Before a federal agency has authority to regulate a major question, a statute must provide "clear congressional authorization." West Virginia v. EPA, 597 U.S. 697, 723-24 (2022). "[M]odest words, vague terms, or subtle devices" do not suffice. Id. at 723. Under the major questions doctrine, courts "presume that Congress intends to make major policy decisions itself, not leave these decisions to agencies." Id. at 723 (quotations omitted). This reflects "both separation of powers principles and a practical understanding of legislative intent." Id. at 723-24. "[A] reasonable interpreter would not expect Congress to pawn . . . a big-time policy call . . . off to another branch." Learning Resources, Inc. v. Trump, 146 S. Ct. 628, 641 (2026) (plurality opinion) ("Learning Resources Plurality") (cleaned up). Deciding what is a major question also reflects "constitutional structure and common sense." Id. at 639.

The major questions doctrine is especially suitable for federal agency regulations of federal election issues. That is because federal elections control who exercises federal legislative and federal executive power. To compare an election issue to Learning Resources, Congress has the power to impose tariffs, but federal elections decide who exercises that power and every other legislative and executive power, and therefore how all those powers are exercised. As James Madison explained in Federalist No. 51, "[a] dependence on the people" through elections "is, no doubt, the primary control on the government."

The Elections Clause unmistakably vests the power to decide the rules for federal elections in legislatures – first and foremost state legislatures, subject to alteration by Congress. Congress has not been shy about exercising this power…..

Allocating power to any President to make election rules would be a fundamental departure from our constitutional structure. Our federalist election structure, designed by the Elections and Electors Clauses and still upheld in federal election statutes, fosters both the reality and appearance of election integrity by decentralizing election rules and who executes them. In our nation's history, it is rare that control of either house of Congress or the Presidency is decided by a single disputed election in one state. Thus, stealing control would require a conspiracy involving officials in multiple states. Stealing such control would be easier if the unitary federal executive branch could make rules for, and exercise greater power over, federal elections in all 50 states.

I largely agree. The major questions doctrine (MQD) requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast 'economic and political significance.'" If the statute is ambiguous, courts must presume that Congress didn't give the executive branch the authority it claims.

Previous Supreme Court major questions decisions - most recently, the tariff case, which Bernstein cites and which I helped litigate - concerned assertions of power over substantive policy issues. These election cases concern power over procedures. Nonetheless, as Bernstein notes, control over elections is a way to leverage vast power over a range of issues (because election winners get to make a variety of policy decisions), and that control is crucial to America's system of federalism and separation of powers. Thus, when the president claims sweeping delegations of power over election procedures, the major questions doctrine applies.

And, as in the case of tariffs, the Constitution gives the president no inherent power over election procedures. Any authority he might have must be delegated by Congress exercising its Article I power to "make or alter" state regulations relating to the time, place, and manner of congressional elections.

To be sure, MQD would not apply in situations where the executive claims he has been delegated only some relatively minor power, such as authority over some minor aspect of election administration. But here, the White House is claiming far greater authority than that.

NOTE: The amicus brief Bernstein refers to was filed on behalf of the Society for the Rule of Law. the Society for the Rule of Law. I am a member of SRL's Advisory Council (an unpaid position).

The post The Major Questions Doctrine Constrains Presidential Power Over Elections appeared first on Reason.com.

Trump's Iran War Continues to Violate the Constitution - and Now Also the War Powers Act of 1973

2026-05-01T20:20:07Z

Secretary of Defense Pete Hegseth. (Kyodonews/Zuma Press/Newscom)

In my March 5 Dispatch article on the Iran War and the Constitution, I explained why Donald Trump's initiation of the war without congressional authorization is unconstitutional. As of today, it is also in violation of the War Powers Act of 1973. Enacted in the wake of the Vietnam War, the WPA requires the president to secure congressional approval within 60 days of entering U.S. troops into "hostilities" or situations "where imminent involvement in hostilities is clearly indicated by the circumstances." The president can seek a 30 day extension without additional congressional authorization, but Trump has not done so in this case.

The sixty day deadline expires today. Therefore, Trump is now in violation of the WPA, as well as the Constitution. Yesterday, Secretary of Defense Pete Hegseth claimed that the WPA clock "stops" because of the ongoing ceasefire with Iran, curently still (tenuously) in effect. But the WPA doesn't just apply to situations where US forces are in active combat. It also applies "where imminent involvement in hostilities is clearly indicated by the circumstances." Such "imminent involvement" is indeed "clearly indicated" now. Most informed observers know the ceasefire could break down at any time. Trump himself repeatedly threatens to restart the fighting. Thus, the WPA clock is still ticking, and Trump is now in violation of that law. This violation is not as grave an issue as his violation of the Constitution. But it is significant nonetheless.

Earlier in the conflict, some defenders of the administration claimed that the WPA authorized Trump to start the war without congressional approval. In my Dispatch article, I explained why this claim is false. The WPA is a limitation on executive power, not a grant:

Many, particularly on social media, argue that Trump's actions are authorized by the War Powers Act of 1973. But the WPA is a limitation on presidential power, not a grant of it…

The purpose of this requirement is to constrain even small-scale combat deployments that might otherwise not require congressional authorization, because they fall short of being a war. Section 2(C) of the WPA makes clear that the statute does not expand presidential war initiation authority, emphasizing that "[t]he 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." None of these three preconditions exist in the current situation.

Even if the WPA did, initially, grant Trump authority to wage this war, it now no longer does.

As also discussed in my Dispatch article, I am not completely averse to the idea of waging war against Iran. Replacing the brutally oppressive anti-American government with a better one would be a great gain. But, so far, there is little evidence that The US and Israel are likely to achieve any significant gains that justify the costs. And, as noted in my earlier article, that failure is connected with the failure to secure broad congressional and public support for the conflict, which leaves the administration with little political capital to continue fighting if the going gets tough:

This limitation on presidential power is more than just a technical legal point. The requirement of congressional authorization for the initiation of war is there to ensure that no one person can take the country to war on his own, and that any major military actions have broad public support, which can be essential to ensuring that we have the will and commitment needed to achieve victory against difficult opponents. Trump's failure to seek and secure that kind of broad public support has ensured that only about 27 percent of Americans approve of this military action, compared to 43 percent who disapprove, according to a Reuters poll. Other surveys show similar results. This is a historically low level of public support at the start of a major military action and bodes ill for U.S. staying power if we suffer reverses or a prolonged conflict results.

Sure enough, after Iran closed the Strait of Hormuz and energy prices greatly increased, Trump agreed to a ceasefire, despite getting few if any Iranian concessions relative to the prewar status quo.

War is dynamic, and it is certainly possible this one will take a different direction, or even reach a more desirable outcome. So far, however, it has achieved little of value. Certainly nothing substantial enough to justify undermining our constitutional system. Among other things, the radical Islamist regime remains in power, it retains the ability to close the Strait of Hormuz, and it can still continue its nuclear program.

In my earlier article, I explained why congressional authorization is required on originalist grounds, and addressed various pragmatic arguments against enforcing the requirement.

The post Trump's Iran War Continues to Violate the Constitution - and Now Also the War Powers Act of 1973 appeared first on Reason.com.

Trump Had 60 Days To End the Iran War. Instead, He's Just Pretending It's Over.

2026-05-01T20:17:56Z

On February 28, President Donald Trump authorized military strikes against Iran. It has now been over 60 days since the first bombs fell.

Legally, that means Trump must either cease operations or get permission from Congress to continue. Instead, he split the difference: continuing operations while simply saying they've ended.

In 1973, Congress passed the War Powers Resolution. Though the U.S. Constitution gives Congress the power "to declare war," the War Powers Resolution enshrined into law the president's ability to deploy troops "into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." In return, he must wrap things up within 60 days, unless Congress votes to continue the operation.

Trump notified the Senate in writing on March 2, and May 1 marks 60 days. That means Trump must either immediately withdraw or ask Congress for more time.

Lawmakers, even those in his own party, expressed hesitation at extending hostilities. "From the beginning, my position has been that the President's actions in Iran have been consistent with his legal authority under the War Powers Resolution of 1973. However, that same law is clear that after 60 days, military action must begin to wind down unless Congress provides formal authorization," Sen. John Curtis (R–Utah) said in a statement. "I will not support continued funding for the use of force without Congress weighing in."

"I do not believe we should engage in open-ended military action without clear accountability," added Sen. Lisa Murkowski (R–Alaska). "Congress has a role."

On Friday, the administration announced it did not have to seek Congress' approval because the fighting was over.

"The hostilities that began on February 28, 2026, have terminated," Trump said in a letter to House Speaker Mike Johnson (R–La.) and Senate President pro tempore Chuck Grassley (R–Iowa), according to the Associated Press.

But "despite the success of United States operations against the Iranian regime and continued efforts to secure a lasting peace," he added, "the threat posed by Iran to the United States and our Armed Forces remains significant."

The administration had previously used a version of this argument, saying ever since the April 7 ceasefire, "the hostilities that began on Saturday, February 28 have terminated."

On Thursday, just one day before the end of the War Powers Resolution window, Secretary of Defense Pete Hegseth told the Senate Armed Services Committee that "our understanding means the 60-day clock pauses or stops in a ceasefire."

But even if U.S. and Iranian forces are not currently exchanging gunfire, each side is enforcing a blockade of the Strait of Hormuz; Trump has said the U.S. will continue to do so until Iran abandons its nuclear weapons program.

Besides, in his letter to Congress, Trump left open the possibility of future conflict; would the clock start over at that time, giving Trump another 60 days to do what he wants, without Congress?

This would be a perfect time for Congress to act in its capacity as a coequal branch of government and conduct some basic oversight: If Trump says combat operations are "terminated," then they should vote to rescind all funding for any such operations without congressional approval.

But who's going to do that? On Friday, before Trump had even submitted the letter, the House and Senate started a weeklong recess.

It's clear Trump has no interest in actually drawing down operations. The War Powers Resolution allows him to request an additional 30 days if he "determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces."

Instead of taking the extra 30 days to finish whatever job he thinks he's carrying out and bring all U.S. forces home, he is simply pretending to have already done so.

The Framers gave the president and Congress separate war powers for a reason: "The sword is in the hands of the British King. The purse in the hands of the Parliament. It is so in America," wrote James Madison. "The purse is in the hands of the representatives of the people. They have the appropriation of all monies. They have the direction and regulation of land and naval forces. They are to provide for calling forth the militia—and the president is to have the command."

The post Trump Had 60 Days To End the Iran War. Instead, He's Just Pretending It's Over. appeared first on Reason.com.

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

2026-05-01T20:42:27Z

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

IJ is going to The Show for the 14th time! On Monday, the Supreme Court announced that it was granting review in the case of Sun Valley Orchards, which the Department of Labor started targeting for penalties in 2015. Represented by IJ, Sun Valley fought back, and last year the Third Circuit unanimously held that DOL's in-house courts violated the Constitution. Now the Supreme Court has a chance to extend that ruling nationwide.

New on the Short Circuit podcast: The government's power over home distilling and virtual school vaccinations.

Whistleblower goes to the media with information about misconduct by a large company. The SEC opens an investigation and asks the whistleblower for information, which he provides. The whistleblower then files an application for a monetary award, available to individuals who "voluntarily" provide "original information" to the SEC. SEC: Sorry, the disclosure wasn't made "voluntarily" because we asked you for the information after we saw the news stories. C. Circuit: Which is a fine interpretation of "voluntarily." But the SEC can also waive that requirement and needs to explain why it didn't, because it seems like a good idea here.
Mainer with lymphoma sues the power company, arguing it's disability discrimination to charge him a fee to use an old-fashioned meter rather than a smart meter. The smart meter emits radio waves, and radio waves, you see, worsen his cancer. First Circuit: So about causation …
Allegation: During an early COVID-era "lockdown," Columbia, S.C. cop sees a teenager strolling down a sidewalk. He takes off after the cop approaches. Cop repeatedly yells for the kid to stop and sees he has a firearm, although it's not pointed at anyone. Cop fires 9 times and it ends with a fatal forehead shot. Fourth Circuit: It's clearly established you can't use deadly force when a fleeing suspect poses no immediate threat. No qualified immunity.
What does Steph Curry's career free throw percentage (91.2%) as applied to ten shots (39.8% to hit them all) have to do with a preliminary injunction? It's explained in the dissent to this Fourth Circuit (unpublished) grant of a motion for a stay of removal. The dissent also suggests the math relies on "divine characteristics."
Allegation: Man suffering from a medical episode, and who relies on a prosthetic leg, breaks into a Chesterfield County, Va. used car dealership. Police arrive and he curls up in the fetal position. An officer with a dog named "Kona" allows Kona to savagely attack the man, causing severe damage to his prosthetic leg—and real body parts as well. Police: But we gave some warnings. District court: In that case, qualified immunity. Fourth Circuit: What does "fetal position" mean to you? Reversed. Dissent: The case the majority relies on concerns a baseball bat, not a dog.
Late at night in Raleigh, N.C., a man on a bike repeatedly weaves in and out of a crime scene full of cops. After telling the cyclist to get lost for 10-20 minutes, the cops lose their patience, grab, and subdue him. During the extended struggle they take two cross-body bags he was carrying. Cops search the bags, finding a mega amount of criminal things. Cyclist: Unreasonable search, as by the time you looked in my bags I wasn't a threat. Fourth Circuit: They would have found the bad stuff anyway.
Want to be a part of a congressionally sanctioned monopoly that doles out extremely prestigious benefits while simultaneously being impervious to the Constitution? Fourth Circuit: Then you should work for the United States Olympic Committee and its subsidiary "SafeSport."
It's heartwarming to learn from the Seventh Circuit that in addition to a long line of Illinois governors spending time in federal prison, the occasional Speaker of the Illinois House of Representatives does too.
In which a Mexican applicant is denied a visa. The applicant: This was just because of my many tattoos. The government: There were other reasons that we can be completely vague about. Ninth Circuit: Good enough for us! (Judge Lee, concurring, argues that courts aren't supposed to be reviewing these consular decisions in the first place.)
Plaintiffs: Facebook's algorithm deliberately amplified controversial posts, which resulted in amplifying posts advocating for the genocide of the Rohingya, which resulted in, well, the genocide of the Rohingya. Ninth Circuit: Our circuit's interpretation of Section 230 bars these claims. Two-judge concurrence: Our circuit precedent reads Section 230 far too broadly. One-judge concurrence: Oh, boy, does it ever.
The Supreme Court's interim orders get all the press, but the circuits do them, too. Consider this Ninth Circuit order staying an injunction that struck the word "operation" from Arizona's law governing when transgender people may amend their birth certificates.
Or! Consider this (much longer) Ninth Circuit order staying (over a dissent) an injunction restricting how ICE officers may treat protestors at their Portland detention facility or what those officers may wear when so doing.
Or! Or!! Consider this third Ninth Circuit order staying an injunction by squarely holding that there is no due-process right for innocent property owners to be free from exposure to tear gas.
Ninth Circuit (unpublished): We're not here to give you legal advice, buddy, but if you want to challenge the enforceability of an arbitration clause, maybe don't, like, fully participate in the disputed arbitration while your case is on appeal.
Inmate at Bent County, Colo. Correctional Facility falls, breaks neck. Prison medical staff: "Vic's Vapor Rub" [sic] should clear that right up for you. More shambolic treatment ensues. Tenth Circuit: The guy should have another chance to amend his pro se complaint.
Everyone loves a good metaphor. But pro tip for prosecutors: In your closing argument urging that a defendant be convicted for enticing a minor, maybe don't present a full-body image of the guy naked in his shower before going on a riff about how the "cloak" of the presumption of innocence has fallen and the dude stands before the jury "naked in his guilt." Tenth Circuit: The government stands before us naked in its plain-error prosecutorial misconduct. Conviction vacated.
Was this Aurora, Colo. policeman acting "under color of state law" when, while on administrative leave for having shot a man in the leg, he allegedly accosts a disabled neighbor walking her dog and proceeds to pummel her so hard that she suffers traumatic brain injury and vision loss—all while saying "I'm a cop," displaying his badge, and saying he was trying to arrest her? Tenth Circuit: He was not acting under color of state law, since the terms of his administrative leave had stripped him of all authority as a police officer. So the City of Aurora itself is not on the hook. (Don't be glum, though, the court reassures us! The now-former officer was criminally charged with first-degree assault by strangulation, attempting to influence a public servant, and third-degree assault! Unmentioned? He'd later plead out to one count of reckless endangerment, avoiding any jail time at all. … Hrm.)
Georgia man offers friends all-expenses-paid vacations to Costa Rica. All he asks in exchange is that they bring back souvenirs in their luggage—most importantly, canned fruits and vegetables. When the travelers returned, he would collect only the cans and let them keep the other souvenirs. Eleventh Circuit: "The cans, as the reader may have suspected, contained neither fruit nor vegetables, but cocaine."
And in en banc news, the Second Circuit will not reconsider its earlier panel opinion affirming E. Jean Carroll's $83.3 million defamation award against President Trump for statements he made while president. Three dissenting judges would have granted rehearing to consider presidential immunity arguments and to allow the United States to belatedly substitute itself in Trump's shoes.
And in further en banc news, the Third Circuit will not reconsider its earlier panel opinion holding that talc producers facing thousands of tort suits alleging asbestos-related injury may file for bankruptcy. The panel will, however, provide additional explanation for why this is so.
And in additional en banc news, the Fifth Circuit will reconsider its earlier panel opinion about two of America's favorite topics (arbitrability and ERISA) in a dispute between two of America's favorite companies (Aramark and Aetna).
And in still more en banc news, the Fifth Circuit will not reconsider its earlier panel opinion holding that the federal machinegun ban survives both Commerce Clause and Second Amendment challenge; Judge Willett, concurring in the denial, thinks the Fifth Circuit's earlier rulings on these issues are dubious, but that this case is the wrong vehicle for revisiting them. Judges Ho and Oldham, are not pleased.
And in final en banc news, the Ninth Circuit will not reconsider its earlier panel opinion allowing a death row inmate to reopen habeas proceedings challenging his murder conviction from the 1980s. Nine judges dissent and would not further disturb a conviction based on ineffective-assistance-of-counsel claims raised for the first time seventeen years later.

Victory! For 13 years, IJ has been representing retired Texas veterinarian Ron Hines in his long-running fight for the freedom to give online veterinary advice to pet owners around the world. In 2024, the Fifth Circuit held that Ron's speech was protected by the First Amendment, but the state board of veterinary medicine sought review at the Supreme Court. Last month, the Supreme Court denied review, giving Ron a well-deserved final victory! Learn more here.

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Prosecuting Fauci, Pirate Economy, and Mr. Beast's Red Button Blues

2026-05-01T22:03:32Z

Robby Soave and Christian Britschgi break down how extreme the COVID cover-up has been. They also discuss how Sen. Rand Paul (R–Ky.) is gung-ho on prosecuting Anthony Fauci even though he has a full pardon from the Biden administration. Then they talk about their favorite revolutions and maybe even some of their favorite monarchies. Finally, they talk about Mr. Beast, The Matrix, and how complicated intellectual property and patents are.

0:00—Will Congress try to test the power of Anthony Fauci's pardon?

8:27—James Comey has been arrested for the silliest reason.

10:40—Celebrating the American revolution and some other revolutions

19:39—The White House Correspondents' Dinner chaos

32:58—Christian visits James Garfields' grave.

39:04—Robby and Christian are pro-science, but not pro-scientists.

43:39—Mr. Beast's Red Button vs. Blue Button test

51:05—Pro-libertarian takes on pirates?

54:28—The Matrix and Pirates of the Caribbean sequels

1:04:11—It's too easy to get a patent

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"Gaslighting" Isn't "Abuse" for Child Custody Law Purposes

2026-05-01T19:14:10Z

From Oregon Court of Appeals Judge Ramón Pagán, joined by Judges Robyn Aoyagi and Jacqueline Kamins, Wednesday in Estens v. Wells:

[In a child custody hearing, w]itnesses testified to an incident in which mother took the child on vacation to Hawaii and claimed to father that she had been bumped from her flight, requiring her to return the child late. Mother's boyfriend testified that she had not been bumped from the flight. Mother was also found to be evasive about details of the child's medical care. She denied, but then later admitted, that she had cancelled or skipped medical appointments. The parties also testified about text messages between mother and father where mother had greatly exaggerated the number of times that child had attended a particular extracurricular activity in what appeared to be an attempt to have father help pay for the activity.

In its decision, the trial court explained that one of the factors it was considering was that mother had abused father:

"Another factor that I may have skipped over is the abuse of one parent by the other. There has been no allegation of abuse. However, I find that Mother's communication with Father and the testimony amounts to a lot of gaslighting. It's a moving target, the truth with Mother's testimony has been a moving target. 'Didn't you say this?' 'Oh, yes, but I meant this.' There's six different explanations for everything. And it is not good for the child and it does constitute abuse, gaslighting is abuse. And so that is another factor that the Court is considering."

The trial court found mother not credible and father credible. The trial court thus modified sole custody to father….

Mother appealed, and the court reversed, concluding in part:

We agree with mother that the conduct that the trial court described as "gaslighting" is not sufficient to be considered "abuse" under the relevant statutes.

In making custody decisions, courts consider two relevant provisions of ORS 107.137 that use the word "abuse." ORS 107.137(1)(d) requires the court to consider, among other relevant factors, "[t]he abuse of one parent by the other[.]" As relevant here, ORS 107.137(2) goes on to provide:

"The best interests and welfare of the child in a custody matter may not be determined by isolating any one of the relevant factors referred to in subsection (1) of this section, or any other relevant factor, and relying on it to the exclusion of other factors. However, if a parent has committed abuse as defined in ORS 107.705, * * * there is a rebuttable presumption that it is not in the best interests and welfare of the child to award sole or joint custody of the child to the parent who committed the abuse."

Thus, a finding of abuse is highly significant because if a parent's conduct is found to qualify as abuse under ORS 107.705, custody is presumed to not be awarded to the abusive parent.

Abuse is not defined in ORS 107.137(1)(d). However, ORS 107.137(2) relies on the definition in ORS 107.705(1) …:

"(1) Abuse' means the occurrence of one or more of the following acts between family or household members:

"(a) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury.

"(b) Intentionally, knowingly or recklessly placing another in fear of imminent bodily injury.

"(c) Causing another to engage in involuntary sexual relations by force or threat of force."

There is no evidence of any abuse that meets the ORS 107.705(1) definition. Father did not allege that mother engaged in verbal threats that put him in fear of imminent bodily injury. Nor was there any evidence that mother had ever threatened father with bodily injury.

The only remaining question then is whether the evidence could meet a more general definition of abuse under ORS 107.137(1)(d), assuming there is such a distinction in the law…. For the sake of argument, we assume—but do not conclude—that ORS 107.137(1)(d) has a separate, more general, definition of abuse than ORS 107.705(1). To the extent that we have allowed verbal abuse to be considered in a prior case, it was accompanied by physical abuse … [or at least verbal conduct] of a serious and menacing nature that implied a threat of physical violence….

Thus, the question is whether mother's alleged verbal abuse, characterized as "gaslighting" by the trial court, legally rises to the level of "abuse" under ORS 107.137(1)(d). We conclude that the alleged conduct could not rise to the level of abuse under ORS 107.137(1)(d).

At most, the evidence here could show that mother and father did not communicate in a healthy manner, that mother had been at times dishonest with excuses for her frequent tardiness, and that mother had exaggerated or misrepresented childcare matters to father and the court. But mother did not threaten physical violence, nor were any of the comments of a serious and menacing nature. The method of the comments' delivery, chiefly via text, as opposed to [an] in-person threat …, further attenuates any possible abusiveness. That is not to say that no verbal conduct could ever rise to the level of abuse under ORS 107.137(1) (d), but we cannot say that mother's statements or actions identified by father or the court in this case rose to the level of abuse.

Father argues that the court's use of the terms gaslighting and abuse are irrelevant because the trial court was simply trying to articulate that it found mother not credible. We disagree with that reading. The trial court made its finding of abuse in the course of articulating the list of factors it had to consider under ORS 107.137(1). The court acknowledged that it had initially skipped ORS 107.137(1)(d), which addresses abuse, but then returned to it and made a finding that mother had abused father and noted that the court was considering that factor. While the trial court may have also used that evidence to find mother to be not credible (as, again, the trial court did explicitly find her to not be credible at the outset of its ruling), it still found that mother had committed abuse by gaslighting father….

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Donald Trump's Deeply Disappointing Would-Be Assassin

2026-05-01T22:02:44Z

On September 5, 1975, Lynette "Squeaky" Fromme, a member of the Manson Family cult, stood a few feet away from President Gerald Ford in Sacramento, California, pointed a pistol at him, and unsuccessfully tried to shoot him. Less than three weeks later in San Francisco, a different woman, an accountant named Sara Jane Moore, managed to actually fire her weapon but missed Ford before being tackled by a bystander.

Was there any deep meaning to such violent and potentially world-changing actions? According to her biographer, Fromme "had no personal feelings about [Ford] one way or another….She felt he was destroying the redwoods." The motivations of Moore, who died last year at age 95, were similarly vague and impersonal, if a bit more political. The Washington Post noted in its obituary that she at various points was a "suburban Republican matron," an FBI informant, and "enthralled" by San Francisco's "radical activists and their Marxist rhetoric." As the Post summarized her comments at her sentencing hearing, "I finally understood and joined those who have only destruction and violence for a means of making change…and came to understand that violence can sometimes be constructive."

The twin attempts to assassinate Gerald Ford, one of America's least consequential but also least offensive presidents, remain puzzling, to say the least. As conspiracy theorists will remind you, Ford was part of the Warren Commission and thus guilty of something, right? He was appointed vice president by Richard Nixon and confirmed by the Senate in December 1973, after Spiro Agnew resigned due to corruption charges but long before it became apparent Nixon might have to quit the Oval Office. Ford came in for a fair amount of abuse when he became president in August 1974 and immediately gave Nixon, by then the most hated person in the country, a "full, free, and absolute pardon…for all offenses against the United States which he, Richard Nixon, has committed or may have committed."

Yet nobody, even his would-be assassins, could muster strong feelings about Ford. Maybe the assassination attempts say less about him and his would-be killers and more about the times. The 1970s were, in the words of historian Kevin Starr, "the goofiest decade of the century for California…in terms of its sheer ominous weirdness."

We desperately want our times to make sense and not just be goofy, ominous, and weird. When confronted with monstrous and seemingly inexplicable acts, we want their perpetrators to make sense too. Villainy and evil demand a backstory. But if Ford's two near misses with death a half-century ago suggest anything, it's that we are often left unsatisfied not just by history but by the people who would change its course.

That certainly seems to be the case with Cole Tomas Allen, the 31-year-old alleged gunman at last week's White House Correspondents' Dinner. His biography and manifesto provide some clues to his actions and state of mind but very little in the way of satisfactory answers that explain the sheer lunacy of what he tried to do.

He graduated from the prestigious California Institute of Technology in 2017 with an engineering degree, picked up a master's in computer science from Cal State Dominguez Hills last year, and was working as a tutor right before he took a cross-country train trip to kill the president. Described in news accounts as "highly intelligent, shy, socially reclusive," and "at one point a devoted Christian," it's possible to patch together an outline of a character frustrated by a failure to deliver on early promise. But how does one get from there to trying to kill the president?

Allen's manifesto is an odd document, not least of which because of its chipper opening: "Hello everybody!" Though tidy and mostly temperate, there are signs of a deep-seated, internal struggle in lines such as this:

I am no longer willing to permit a pedophile, rapist, and traitor to coat my hands with his crimes.

(Well, to be completely honest, I was no longer willing a long time ago, but this is the first real opportunity I've had to do something about it.)

Though only a thousand or so words, the document rambles and shifts from basic declarations to a series of "Rebuttals to objections" in which he raises issues ("As a Christian, you should turn the other cheek") and then answers them ("Turning the other cheek when *someone else* is oppressed is not Christian behavior; it is complicity in the oppressor's crimes"), in a format that suggests (to me, anyway) he might have used an AI program or some other compositional aid. While mostly presented in mild, clinical language, the manifesto strongly suggests a disordered mind, one incapable of staying focused on the import of the task at hand. One of the objections he raises, for instance, is "This is not a convenient time for you to do this." That doesn't suggest a revolutionary in the throes of ideology as much as someone struggling to hang on to basic reality. Perhaps strangest of all, he signs off with advice that seems fully misplaced: "Stay in school, kids."

It's unlikely that whatever else we learn about him will help explain his behavior or motivation in any way that's more satisfying than Squeaky Fromme's or Sara Jane Moore's. People on the right might argue that the left has created a "permission structure" for political violence, especially toward Donald Trump, who is reviled as a dictator, tool of Russian autocrat Vladimir Putin, and, per Allen's manifesto, a child molester. They point to the continuing support for the alleged killer of healthcare executive Brian Thompson by radical chic journalists and podcasters such as Jia Tolentino and Hassan Piker. Given such a context, who can be surprised when violence erupts?

But hyperbolic language that seems to be a call to action by any means necessary is evident on the right, too, as when presidential adviser Stephen Miller tells Fox News that "the Democrat Party is not a political party. It is a domestic extremist organization." More importantly, as the Cato Institute's Alex Nowrasteh has documented, "politically motivated violence is a small threat" and one that shows no substantial uptick in recent years. In his study of "killings by ideology" in the United States between 1975 and 2025, he notes that "Islamism" is by far and away the largest motivating factor but concludes, "there isn't…a statistically significant increase in the number of victims over time, as the deadliest triennial period was 2014-2016, and the safest was 2005-2007."

Cole Tomas Allen—like virtually all would-be and actual presidential assassins, he has been given a three-part name, a sick variation on teen mag conventions—didn't just fail in his grim and deranged task of killing the president. He has failed to explain himself. And it's unlikely that we will do a better job.

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Gov. Newsom's Defamation Lawsuit Against Fox News Over "Gavin Lied About Trump's Call" Claim Can Go Forward

2026-05-01T18:22:03Z

An excerpt from Delaware Superior Court Judge Sean Lugg's 42-page opinion yesterday in Newsom v. Fox News Network, LLC:

In the midst of civil unrest in Los Angeles, California, Governor Gavin C. Newsom spoke on the telephone with President Donald Trump. The call took place after 10:00 p.m. on the night of Friday, June 6, 2025 (Pacific Daylight Time) (after 1:00 a.m. on Saturday, June 7, 2025 (Eastern Daylight Time)). The two did not speak again before President Trump, at a Tuesday, June 10, 2025, Oval Office press conference, was asked when he last spoke with Governor Newsom; President Trump responded that he and Governor Newsom spoke "[a] day ago."

Soon thereafter, Governor Newsom posted on X that "[t]here was no call." President Trump then provided Fox News Network ("FNN") reporters a "phone log" evidencing the Friday night / Saturday morning call he had with Governor Newsom. On this information, FNN published—through nationally televised reporting overlaid by chyron—that "Gavin Lied About Trump's Call." …

The court allowed Newsom's defamation case to go forward:

Delaware's pleading standards at the motion to dismiss stage are minimal…. A complaint is sufficient to survive a motion to dismiss under [Delaware] Rule 12(b)(6) "[if] a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint." …

[1.] It is reasonably conceivable that FNN knew the statements were false at the time of making them.

FNN contends that the "'gist' or 'sting' of the suggestion that Newsom lied was substantially true," because "[t]he word 'lie' certainly encompasses Newsom's misleading tweet categorically denying he had a call with the President." "Substantial truth," FNN asserts, "turns on what Newsom actually said, not what he wishes he had said."

Governor Newsom responds that "the central—indeed, the only—dispute between Newsom and Trump was when the two had last spoken." According to Governor Newsom, this issue was so important that "reporters asked Trump when he has last spoken to Newsom." Governor Newsom's comment that he had no call with President Trump "[a] day ago" was not a lie as "[t]he timing of any call was not minor. It was the question." …

The crux of FNN's statements is that Governor Newsom was dishonest—lied—about not speaking with President Trump. [FNN host John] Roberts' response on June 10, 2025, to Governor Newsom's X post states that President Trump's call logs, and President Trump himself, assert that the President spoke with Governor Newsom. Roberts's response on X does not indicate when this conversation between Governor Newsom and President Trump occurred. [The host of another FNN show, Jesse Watters,] questioned why Governor Newsom would lie about speaking with the President. Watters' statement does not indicate when this conversation between Governor Newsom and President Trump occurred. The issue at the heart of FNN's statements was if Governor Newsom ever had a phone call conversation with President Trump, not when. And, FNN excluded pertinent context in casting this assertion of dishonesty.

It is reasonably conceivable, under the facts set forth in the complaint, that the "gist" or "sting" of FNN's statements is that Governor Newsom lied about having ever talked with President Trump and, thus, FNN's statements may reasonably be understood to be substantially untrue.

[2.] It is reasonably conceivable that Watters' statement is not a protected opinion….

{FNN argues that its statements cannot be proven false because they are statements of opinion. Because falsity is a necessary element of defamation, "only statements alleging facts can properly be the subject of a defamation action." Pure opinions are not actionable.

Opinions do not, however, enjoy blanket protection. "[W]here an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation." Whether a statement constitutes a statement of fact or opinion is a question of law. As such, this Court must determine whether the statements expressed in FNN's broadcasts are actionable: "whether a reasonable fact finder could conclude that the published statement declares or implies a provably false assertion of fact."}

[S]tating "in my opinion, this person is a liar," "implies a knowledge of facts which lead to the conclusion that [a particular person] told an untruth." "To decide whether a statement is fact or opinion, a court must put itself in the place of an average reader and determine the natural and probable effect of the statement, considering both the language and the context." …

Watters, framed by the chyron "Gavin Lied about Trump's Call," stated:

Newsom responded, and he said there wasn't a phone call. He said Trump never called him. Not even a voicemail, he said. But John Roberts got Trump's call logs, and it shows Trump called him late Friday night and they talked for 16 minutes. Why would Newsom lie and claim Trump never called him? Why would he do that?

On the record presently established, this statement implies knowledge of facts that could lead a person to believe Governor Newsom lied. FNN relied on President Trump's phone call logs yet excluded President Trump's temporal description of the call—"a day ago."

The alleged facts do not support finding Watters' rhetorical question to be a constitutionally protected opinion. FNN broadcast the statement on Fox News Channel. The statement was announced as a "Fox News Alert." "[A] headline over a news story arguably implies a factual assertion." It is reasonably conceivable that an average viewer could determine the statement to be one of fact, not opinion.

[3.] A finding of actual malice [i.e., that FNN knew the statement was false or likely false] is reasonably conceivable …

Governor Newsom alleges that FNN "deliberately presented a false picture" of the June 6/7 phone call "to fulfill their preconceived narrative" and that "Fox advanced this falsity about Governor Newsom out of a desire to harm him politically." He contends that FNN harbors ill-will towards him and engages in a "pattern of employing preconceived false narratives to attack Governor Newsom."

To support this claim, Governor Newsom cites to a segment aired on Jesse Watters Primetime, on June 20, 2025, in which Watters states Governor Newsom attended "a swanky wine tasting party as riots engulfed Los Angeles and mobs vandalized buildings." While Governor Newsom asserts the June 20 comments about his attending a "swanky wine tasting party" are false, the Court understands their inclusion in the complaint to support his allegation of actual malice. This "misrepresentation," Governor Newsom argues, represents "Fox's perverse internal culture and slavish partisan mission … to purposely avoid the truth in service of a preconceived narrative."

The Amended Complaint alleges facts which, when viewed in a light most favorable to Governor Newsom, evidence FNN published false information about Governor Newsom with knowledge of the statement's falsity or with a reckless disregard for whether or not it was true. Thus, under the standard applicable here, the facts are reasonably susceptible to a finding of actual malice….

Michael J. Teter (Legal Accountability Center / Teter Legal), and Mark Bankston, Brian E. Farnan, and Michael J. Farnan (Farnan LLP) represents Newsom.

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The Federal Government Once Tried To Restrict Prediction Markets. Now It's Suing States To Save Them.

2026-05-01T17:11:29Z

"When will traffic at the Strait of Hormuz return to normal?" Depending on when you believe this will happen and which prediction market you're using, a $100 position on this event contract could net as much as $400. But if you live in one of the states suing the prediction market Kalshi, you might not be able to profit off your hunch.

In April, Wisconsin sued Kalshi and several other prediction markets—platforms that let people make bets on the outcomes of various events—alleging that they facilitate illegal sports gambling. The platforms, and their millions of users, have found an unlikely ally: the federal government.

Shortly after Wisconsin filed suit, the U.S. Commodity Futures Trading Commission (CFTC)—the federal body that regulates prediction markets—filed a legal challenge against the state. The CFTC argues that the Commodity Exchange Act (CEA) gives it "exclusive jurisdiction" in the "operation of federal law in regulating financial markets," including prediction markets, which operate more like marketplaces than gaming houses.

Wisconsin isn't the only state treating prediction markets as traditional gambling. Arizona, Connecticut, Illinois, New Jersey, and Massachusetts have all pursued legal action against these platforms. The CFTC has countersued these states too, and has filed amicus briefs in the U.S. Court of Appeals for the 9th Circuit and the Supreme Judicial Court of Massachusetts in support of prediction markets.

Ironically, the federal government itself was eager to regulate these platforms strictly. In 2023, the CFTC blocked Kalshi from trading contracts on the political party most likely to control Congress, labeling them "political event contracts" linked to illegal gaming and contrary to the public interest.

Kalshi challenged the order, and the U.S. District Court for the District of Columbia found in the platform's favor, ruling that contracts on elections involve neither illegal activity nor gaming. The U.S. Court of Appeals for the D.C. Circuit later upheld the ruling.

But with prediction markets growing in popularity over the last five years and with more Americans concerned about the effects of legalized gambling, several states are moving against these platforms. In 2025, Massachusetts became the first state to sue a prediction market, charging Kalshi with "neglecting age restrictions, player protection programs, state taxes, and other consumer protections."

An amicus brief from 38 states and D.C. supporting Massachusetts's lawsuit against Kalshi argues that the CEA bans event contracts tied to illegal acts—such as war or gaming—or to activities that the CFTC deems, "by rule or regulation," to be contrary to the public interest.

Yet Judge Jia M. Cobb already rejected this argument when the U.S. District Court for D.C. ruled in Kalshi's favor in 2024. Cobb stated that the CEA "specifically preempts the application of state law to derivative markets" and that event contracts do not "amount to" terrorism, assassination, or war.

The CFTC can, for example, reject a contract on whether a plane sabotaged by terrorists will crash, because a payout based on criminal conduct is both illegal and against the public interest. But it couldn't reject a contract on a routine policy decision, such as whether the Federal Reserve will raise interest rates.

Cobb also found that the CEA's prohibitions on prediction markets apply only "if the contract's subject itself" is related to the terms. In fact, the 2024 circuit court ruling seems to nullify each state's major point of contention, since it found that prediction markets for sports are not "gaming"—that term, it determined, describes playing a game rather than trading on its outcome.

This could render Massachusetts' entire argument moot, as the state specifically alleges that Kalshi runs afoul of laws governing "sports gaming."

It's unclear how these court challenges will turn out. But if you're an adult who uses these aggregators of public opinion and who wants to spend your money as you see fit, you now have an unlikely ally in the federal government. Perhaps there's a way to cash in on that.

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