No Ordinary Opinion Announcement

Gerard N. Magliocca

Next Term, the Supreme Court will rule on the legality of the Administration's tariffs. This will be a market moving event, to say the least. Elsewhere I've pointed out that the usual practice of issuing merits decisions at 10AM without notice will be a disaster for this case. The Court should either give notice of the decision day or do what amounts to the same thing by scheduling the announcement before or after market hours.

The precedent here is the Gold Clause Cases. At a certain point after argument, the Court scheduled an opinion day and announced that those opinions would not be coming out that day. When the next opinion day was scheduled, they made no such announcement. Thus, everyone knew that the decision was coming then. The Court should follow that example or something comparable in this unusual situation.

A Grand Jury Will Not Indict a Thrown Ham Sandwich

Gerard N. Magliocca

I was surprised to learn that a federal grand jury in Washington DC declined to indict on a felony charge the DOJ employee who threw a sandwich at a federal agent. This suggests that there is a potential limit on the Administration's ability to enforce its "crime emergency" policies in the District.

The grand jury requirement of the Fifth Amendment remains unincorporated. Perhaps examples like this will cause people to rethink that exception, which is hard to justify on anything other than a modern belief that grand juries serve no valuable purpose in protecting innocent people or preventing overcharging by prosecutors. 

What *are* the legal questions at issue in Trump's purported removal of Lisa Cook from the Federal Reserve Board?

Marty Lederman

Casebooks, Canons, and Constitutional Memory

JB

Sandy Levinson and I have uploaded a draft of our latest essay, Casebooks, Canons, and Constitutional Memory, to SSRN. Here is the abstract:

Why edit a constitutional law casebook? One might want to shape how professors teach the subject and how students learn it. But the influence of casebook editors is limited. Most students at most law schools will never practice constitutional law, and those that do probably deal with subjects not in the standard introductory course.

Editing a casebook involves the construction of a canon. The canon in literature is organized around  great works of excellence. By contrast, the canon in constitutional casebooks does not reflect the best opinions ever written; instead it reflects generations of political and legal struggles over the Constitution.

There are three kinds of canons in constitutional law, and in constitutional law casebooks: (1) the pedagogical canon of materials that students need to know to be well-trained lawyers; (2) the cultural literacy canon of materials that citizens need to know to understand their constitutional system; and (3) the constitutional theory canon of materials that are grist for the mill of serious academic discussion. Each of these canons has a politics, and different casebooks may align themselves with different political and legal visions and movements.

Casebooks are also sites of collective memory. A casebook foregrounds what teachers and students are likely to focus on and remember. What is left out of teaching materials is more likely to be forgotten. Hence constitutional law casebook authors are almost inevitably memory entrepreneurs, who seek to get people to remember certain things or remember them differently. But casebook editors are hardly all-powerful memory entrepreneurs. Authors must work with their coauthors to decide what materials to include and delete in successive editions. Casebook authors face serious constraints from publishers. Publishers demand frequent new editions to undercut sales of used casebooks; and they want casebooks to be ever shorter and simpler to understand.

Perhaps most important, casebook authors feel obliged to cover contemporary issues in constitutional law. Those issues are not in their control. They are shaped by the continuous interaction and collision between the political branches and the courts, and especially the United States Supreme Court. In this way the Supreme Court exercises vast control over the content and organization of constitutional law casebooks. This creates important problems of constitutional memory. If the Supreme Court overrules a line of cases, those cases are likely to be flushed down the memory hole unless casebook editors are willing to sacrifice other valued content.

The Supreme Court constantly destroys existing canons of constitutional law and reconstitutes them through its choice of cases to decide. Casebook authors must carefully consider how much of this constant churning and change is noise and how much is genuinely important and lasting for understanding the U.S. Constitution. This makes casebook authors' limited choices about what to remember especially important.

At most, by placing certain materials before professors and students,  casebook authors can provide opportunities to recall and absorb what is most important about our constitutional traditions. Yet what others do with those materials--and those memories--is ultimately beyond casebook authors' control.

Where Impoundment Litigation Stands after NIH v. APHA

David Super

      For months, those challenging the Trump Administration’s massive impoundment of appropriated funds have been left to try to divine deep meanings from cryptic orders on the Supreme Court’s shadow docket.  Now, in National Institutes of Health v. American Public Health Association, we have important if incomplete answers about one important branch of impoundment litigation.  This post seeks to put NIH v. APHA into context and anticipate next steps in this kind of litigation.  I will leave the legal merits of the Court’s disposition for others to assess. 

      The Trump Administration’s impoundments can be divided into three categories.  First, it has sought to cancel or ignore legal obligations the federal government has already assumed.  Second, it has refused to obligate appropriated funds.  And third, it proposed a package of proposed rescissions to Congress under the Impoundment Control Act and received a largely favorable action under the ICA’s expedited procedures.  Although billions of dollars are at stake in each category, the second is by far the largest. 

      The impoundments in NIH v. APHA were in the first category:  already obligated funds.  The issues in the second category (funds withheld prior to obligation) are quite different and therefore will see only modest effects from this decision.

Trump Has Found a Cruel New Way to Attack Trans Veterans

Andrew Koppelman

The D.C. Circuit’s Tangled Impoundment Decision

David Super

       On August 13, a panel of the U.S. Court of Appeals for the District of Columbia Circuit handed down an opinion on President Trump’s impoundment of foreign assistance funds.  This case is significant because it is the first one squarely raising the legality of impoundments per se, as opposed to deficient reasons for impoundment, to reach an appellate court.  Unfortunately, the case arrived in a rather confused posture, and the panel’s opinion added considerably to that confusion.  Because this case is likely to draw considerable attention, it merits close analysis.

      Two sets of plaintiffs sued to overturn the President’s impoundment of billions of dollars of foreign assistance funds.  Between them, the plaintiffs raised ten claims, no two of which are truly duplicative.  As is commonly true in such cases, some of these claims were much stronger than others.  The district court chose to engage with, and grant preliminary relief on, some of these claims while declining to address the others as unnecessary to support its order.  Unfortunately, the claims with which the district court engaged were not the best. 

      The case therefore arrived in the D.C. Circuit with the better claims against impoundment not clearly presented for decision.  The Government threw in some theories for the first time in its reply brief, which the court allowed, and then the court itself added to confusion by saying it was going to analyze one claim and then proceeding to analyze another, far weaker, one.  The result is so tangled that future courts and litigants will likely be able to secure scant guidance from the panel’s opinion (or, indeed, from the dissent, which is confined by the same tangled framing).

Parody or Reality? You Decide

Gerard N. Magliocca

August 11, 2025

Jarrett B. Perlow

Clerk of the Court

U.S. Court of Appeals for the Federal Circuit

717 Madison Place, NW

Washington, DC 20439

Re: Rule 28(j) Letter in V.O.S. Selections, et al. v. Trump, et al., Nos. 25-1812, 25-1813 – Pertinent and Significant Authority Arising Since Our Briefs Were Filed

Dear Mr. Perlow:

On July 27, after stating his intention to impose IEEPA tariffs, President Trump announced the largest trade agreement in history with the 27-nation European Union, America’s most significant trading partner. See Alex Gangitano, Trump, EU’s von der Leyen strike trade deal for 15 percent tariffs, The Hill (July 27, 2025). President Trump entered historic agreements with Indonesia, the Philippines, and Japan on July 22; and with the United Kingdom on May 8.

These agreements support our request for a stay if the Court affirms. Opening Br.5, 54-60; Reply Br.27-30. Suddenly revoking the President’s tariff authority under IEEPA would have catastrophic consequences for our national security, foreign policy, and economy. The President believes that our country would not beable to pay back the trillions of dollars that other countries have already committed to pay, which could lead to financial ruin. Other tariff authorities that the President could potentially use are short-term, not nearly as powerful, and would render America captive to the abuses that it has endured from far more aggressive countries.

There is no substitute for the tariffs and deals that President Trump has made. One year ago, the United States was a dead country, and now, because of the trillions of dollars being paid by countries that have so badly abused us, America is a strong, financially viable, and respected country again. If the United States were forced to pay back the trillions of dollars committed to us, America could go from strength to failure the moment such an incorrect decision took effect.

These deals for trillions of dollars have been reached, and other countries have committed to pay massive sums of money. If the United States were forced to unwind these historic agreements, the President believes that a forced dissolution of the agreements could lead to a 1929-style result. In such a scenario, people would be forced from their homes, millions of jobs would be eliminated, hard-working Americans would lose their savings, and even Social Security and Medicare could be threatened. In short, the economic consequences would be ruinous, instead of unprecedented success.

Sincerely,

D. John Sauer

D. John Sauer

Solicitor General

/s/ Brett Shumate

Brett Shumate

Assistant Attorney General

Macedo and Lee’s “In Covid’s Wake” (long post)

Stephen Griffin

Stephen Macedo and Frances Lee, distinguished political scientists who teach at Princeton, have published a deeply provocative look at the nation’s response to the Covid pandemic.  The book is based on extensive medical research and sorts through the effectiveness of the different policy responses to Covid in the fifty states.  Their analysis is thought-provoking and frustrating at the same time.  “In Covid’s Wake” is really two books.  The first is an evaluation of how “elites,” especially medical and scientific elites, but also academic and media elites, gave advice on what was at best partial knowledge while striving to avoid any reasoned debate with those who disagreed.  The second is an evaluation of state and national policymaking during the Covid crisis.  With respect to the latter, although Macedo and Lee evaluate decision making by the nation’s governors, they studiously avoid evaluating national policymaking, most especially decisions made by President Trump.  The result is an odd mix of startling revelations and sharp elbows analysis combined with a studied lack of curiosity about how national decisions are made in crises, both during Covid and in the past.

I’ll begin by citing an example of Macedo and Lee’s startling research from near the end of the book.  For those who followed the Covid policy debates, this should be of interest.  They summarize an article in one of the journals of the American Medical Association which argued that action needs to be taken against physicians who spread “misinformation” about Covid.  Macedo and Lee say that some claims cited in the article are indeed erroneous such as “assertions that exaggerate the risks of vaccines or that make false claims about vaccine ineffectiveness.” (276)  But they go on to argue that other assertions of “misinformation” are made too broadly by the article’s authors, including: (1) the virus originated in a laboratory in China as part of a NIH study; (2) government and public health officials withheld key information; (3) effectiveness of masks was doubtful; (4) natural infection and recovery contribute to population immunity; (5) Government actors were contacting social media companies telling them what to censor.  Keep in mind that the point is that the authors of the journal article are certain that these five points are "misinformation."  In response, Macedo and Lee invoke the lessons learned in their prior chapters: “Readers of this book will already know that those five categories of supposed ‘misinformation’ may actually be correct, or, at minimum, within the scope of reasonable disagreement.” (277)  Macedo and Lee provide evidence worthy of serious consideration against all five points.  In so doing, they upend what I suspect are the assumptions of many “informed” Americans about what happened in the pandemic.

There’s more, much more to Macedo and Lee’s account which almost amounts to an alternative history of Covid.  Some notable examples: prior to Covid, most studies did not recommend non-pharmaceutical interventions (known as “NPIs” – that is, lockdowns, school closings, and social measures such as masks and distancing).  Democratic governments panicked and followed the example of . . . China (?), an extremely repressive regime.  Experts stigmatized disagreement with measures on which, before Covid, there was no widespread agreement.  The different measures taken by governors of red and blue states made no difference to Covid mortality.  The cost of the interventions was incredibly high, especially for essential workers, young people, and the poor.  Inequality increased.  And no one shows any interest in learning from this experience, especially in academia.

This is quite a list.  And it’s something of a challenge to explain why their analysis strikes me nonetheless as frustratingly partial and for that reason not terribly helpful.  But that’s why I’m writing this post.

Enforcing Article Four, Section Two

Gerard N. Magliocca

By one reckoning, there are a group of fugitives in Illinois who are wanted alive and able to answer a quorum call in Texas. Article Four, Section Two says a state must extradite any person charged with a crime to the state making the charge if that state's executive authority demands extradition. Assume that some formal indictment or information must be made before this provision is triggered. Let's also assume that the Clause is operative if the fugitives flee in anticipation of a criminal charge rather than only after being charged. (The latter is the more natural reading of the text, but maybe that will be litigated.)

Can the federal courts enforce Article Four, Section Two? Is there any precedent for issuing an injunction against a state governor to return a fugitive to another state? I have no idea.

Patterns in Slashing Food Assistance

David Super

      The One Big Beautiful Bill Act (OBBBA) that Congress passed this summer represents the third massive cutting spree in the history of the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps).  The first came in three laws enacted under President Reagan in 1981-82, by far the largest of which was the Omnibus Budget Reconciliation Act of 1981 (OBRA 1981).  The second was another pair of laws enacted in 1995-96, dominated by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA or “the 1996 welfare law”).  This post seeks insight into attitudes about anti-poverty programs by comparing the three.  It concludes that no meaningful theme unites these three episodes beyond the desire to fund tax cuts delivering most of their benefits to the affluent.  In other words, no enduring disagreements separate liberals and conservatives on anti-poverty policy except that many Republicans regard assuring adequate nutrition for low-income people is not an essential governmental function.    

     OBRA 1981 was passed by a Republican Senate and a House coalition of Republicans and  conservative Democrats, signed by a Republican President.  PRWORA was passed by a Republican Congress but signed by a Democratic President and, at his urging, gained a great many congressional Democrats' votes.  OBBBA was passed on essentially party-lines votes, with one Republican in each chamber dissenting over objections to the cuts to anti-poverty programs.  

     In 1981, a group of anti-poverty Senate Republicans led by Senator Bob Dole fought back against the proposed cuts that they believed would do the most damage to the program and the low-income people who depend on it.  (Those dismissing Senator Dole’s food stamp advocacy as merely serving Kansas farmers badly underestimate the man.  Among other things, he spent enormous amounts of political capital, risking his later ascension to be Senate Majority Leader, fighting Senator Jesse Helms to replace cuts hitting the poorest of the poor with ones affecting households somewhat better-able to bear the loss.  Those shifts did not change anything from farmers’ point of view.)  Pro-food stamp Democrats also led the House delegation in the conference committee, although they were badly undermined by having repeatedly lost floor votes to the coalition President Reagan had assembled.

     In 1995-96, Republicans on the House and Senate Agriculture Committees started out amenable to some food stamp cuts, but demands from Speaker Newt Gingrich’s leadership far surpassed the level they supported.  They lost intra-party battles on the depth of the cuts, but Reps. Pat Roberts and Bill Emerson, along with Sen. Richard Lugar, remained open throughout the process to ideas for how to reduce the hardship the cuts would inflict on low-income households.  Leaders of both the House and Senate Agriculture Committees fought and won intra-party battles to prevent the program from being block-granted.

     This year, House and Senate Agriculture Committee Republicans decided early among themselves about how they wanted to slash SNAP and largely tuned out dissenting voices, including those from within their Party.  Even on questions of drafting clarity, they largely froze out external voices.  Ultimately Senate Republican Leader John Thune needed to exempt Alaska from some of the harshest provisions in the bill to win Senator Lisa Murkowski’s vote; the Committee did as it was told but did not take the occasion to reconsider any of its policies for the remainder of the country.   

     Each of these three episodes resulted in estimated reductions of about one-fifth in projected spending.  The composition of those cuts, however, was very different. 

     President Reagan’s theme was stripping benefits from the working poor.  He insisted that he was maintaining a “safety net for the truly needy”, but in food stamps and other programs he sought to reduce or eliminate benefits for low-income working families.  This played beautifully into Speaker Gingrich’s hands a decade later as he complained that very few families receiving welfare or food stamps were working.  Gingrich cited that as justification for slashing the programs further. 

     As students in my Public Welfare Law course could tell you, targeting benefits on those most in need and providing incentives for efforts to reduce need are opposite policies that must be balanced when designing any anti-poverty program.  President Reagan was a targeter; Speaker Gingrich was all about incentives while refusing to acknowledge, of course, that he was repudiating President Reagan’s legacy.  Some prominent Democrats, including Senator Daniel Patrick Moynihan, have focused on targeting; others, such as Professor David Ellwood, have focused laser-like on incentives. 

     OBBBA has no consistent philosophical valence in either direction between targeting and incentives.  Its authors complained about people were getting benefits who did not need them – evidently a reference to the low-wage workers states had begun to serve through some flexibility PRWORA granted.  But they also complained that more SNAP recipients should be working.  (Research shows that the overwhelming majority of SNAP recipients who can work do, although they often turn to SNAP for help during gaps in employment, which are common because low-skilled workers typically can obtain only unstable jobs.) 

     Thus, on the one hand, its rules terminating aid to those who had than three months with less than half-time employment during any three-year period will hurt some of the most needy:  those with the least skills.  On the other hand, its provisions shifting benefit costs to states are explicitly intended to discourage those states from adopting options that broaden the program’s reach among low-wage workers. 

     Just as the three episodes of food assistance cutting show no consistency in their philosophies about the best use of program funds, they also diverge on federalism.  States did not feature prominently in debates about President Reagan’s food assistance cuts.  Many states, including those with Republican governors, expressed concern about losing federal aid for their low-income people. 

     The Gingrich Revolution, by contrast, placed states on a pedestal.  It offered them greater control over programs’ funds in exchange for less total money.  States eagerly grabbed this deal to liquidate the Aid to Families with Dependent Children program.  Many balked about taking Medicaid or food stamps, seeing few politically palatable opportunities to cut, but Gingrich leveraged the threat of block-granting to force through massive food stamp cuts within the existing program structure.   

     OBBBA takes the opposite approach, lambasting states for sabotaging and maladministering the program.  This Republican pivot to condemning states counterbalances a pivot by SNAP advocates following the 1996 welfare law.  After decades of seeking to buttress uniform national standards in SNAP, the lesson they learned from 1995-96 was that improvements in SNAP are more politically sustainable with the states’ support.  Republicans apparently have reached similar conclusions and are hoping that forcing states to pay a share of SNAP benefit costs will discourage states from supporting liberalizations and could cause some states to drop out of the program altogether.  This does follow the 1995-96 model of imposing financial inducements for states to shoulder the blame for benefit cuts rather than legislating them directly.  But a serious version of federalism it is not. 

     The only major through-line in the means of extracting savings from SNAP is increasing dependence on bureaucratic disentitlement.  OBRA 1981 required working households to fill out and submit elaborate reports of their earnings every month during a narrow window of days.  When households made mistakes, or state agencies became backlogged, the households were automatically cut off.  This system caused so much chaos that a cross-section of states as well as advocates clamored for its elimination; President Reagan signed legislation making it a state option late in his Administration. 

     OBRA 1981 also imposed draconian fiscal penalties on states for overissuing benefits to households.  Because improper denials did not factor into these error rates, a “when in doubt, deny” attitude grew among many human services offices.  Overwhelming complaints from over forty states caused the Reagan Administration to negotiate a drastic reduction in these penalties (followed by further administrative reductions in the George H.W. Bush Administration and legislative reductions approved by George W. Bush). 

     PRWORA pioneered a new kind of “work requirement”.  Previously, public welfare programs’ work requirements directed beneficiaries to “workfare” or other assignments; if the beneficiaries did as instructed, they kept their benefits.  Most states disliked these programs as being administratively burdensome to operate and serving little purpose as employable food stamp recipients already had strong motivations to find jobs to pay their rent and other non-food bills.  Congressional Republicans were dissatisfied with the numbers of food stamp recipients working so they kept the disqualification rule but eliminated the requirement that recipients be given the chance to work for continued benefits. 

     States’ distaste for running work programs overwhelmed whatever moral responsibility they felt for food stamp recipients who were willing to work but unable to find half-time jobs.  Many others who actually were working half-time or more failed to navigate states’ bureaucratic requirements for proving those hours.  Hundreds of thousands of desperately poor childless individuals between the ages of 18 and 49 were denied aid.  Even when they became eligible again, many failed to realize that or simply understood that they were no longer welcome in SNAP.

     Food bankers and other emergency food providers regarded this as a disaster, but OBBBA’s drafters apparently found this story inspiring.  They expanded this workless “work requirement” to childless individuals up to age 65 and to families with children age 14 and up.  Coupling this with ferocious penalties on states for serving someone whom federal auditors find not to have documented sufficient hours, the bureaucratic barriers to documenting work are likely to multiply. 

     Anti-poverty programs can only be stable with substantial bipartisan support.  Making significant program design sacrifices to secure that support is worthwhile even when one party dominates the levers of power.  Unfortunately, the absence of coherent conservative policy preferences concerning food assistance that emerges from these three episodes makes a viable path to bipartisan compromise difficult to discern. 

     @DavidASuper.bsky.social @DavidASuper1

Supreme Court Lecture--September 25th

Gerard N. Magliocca

The Supreme Court Historical Society awarded the Griswold Prize to Washington's Heir. I'll give a lecture at the Court on September 25th at 6PM to accept the award. The lecture is tentatively titled: "Sanctuary of the Law: Bushrod Washington's Circuit Court." I hope that some of you in the DC area can attend, and I will post further details when I get them.

Some Casual Unconstitutionality

David Super

     Section 20011 of the One Big Beautiful Bill Act (OBBBA) declares “there are appropriated to the Secretary of Defense for fiscal year 2025, out of any money in the Treasury not otherwise appropriated, to remain available until September 30, 2029, $1,000,000,000 for the deployment of military personnel in support of border operations, operations and maintenance activities in support of border operations, counter-narcotics and counter-transnational criminal organization mission support, the operation of national defense areas and construction in national defense areas, and the temporary detention of migrants on Department of Defense installations…”. 

     Article I, section 8, clause 12, of the U.S. Constitution grants Congress the power “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years”.  The four-plus years that section 20011’s appropriation is available would seem to exceed that limit rather directly.  Section 20011 clearly is intended to fund the Army and does so. 

     The Government Accountability Office’s Principles of Federal Appropriations Law (3d ed 2004), which the Supreme Court has relied upon in appropriations cases, says on page 1-13:  “The 2-year limit in clause 12 has been strictly construed as applying essentially to appropriations for personnel and for operations and maintenance and not to other military appropriations such as weapon system procurement or military construction. See B-114578, Nov. 9, 1973; 40 Op. Att’y Gen. 555 (1948); 25 Op. Att’y Gen. 105 (1904). In any event, Congress has traditionally made appropriations for military personnel and operations and maintenance on a fiscal year basis".  Section 20011’s repeated references to “operations” makes clear that much of what it funds is in the personnel, operations and maintenance category and hence subject to the two-year limitation. 

     The One Big Beautiful Bill Act lacks a severability clause.  It has no global statement of purpose nor is one to be found in the concurrent resolution on the budget that it implements.  How lovely it would be if Justices Thomas and Gorsuch led the Court to declare section 20011 unconstitutional and then to remind Congress that the Constitution does not empower the Court to “blue pencil” duly enacted statutes containing unconstitutional provisions.  Congress surely would repass OBBBA without section 20011, but after the hasty and heedless process that led to that legislation, Congress should be reminded that the Constitution still matters and be made to cast those votes again.

     The question arises how this happened.  A mechanical answer is that OBBBA provides the Army with mandatory money (the same kind that funds Social Security and Medicare) and hence was within the jurisdictions of the House and Senate Armed Services Committees rather than the Defense Subcommittees of the House and Senate Appropriations Committees.  Appropriators are accustomed to working with the two-year limitation; authorizing committees are not.  That is a lousy justification:  all Members take oaths to the entire Constitution.  (I shudder to think what would happen if Members of Congress were allowed to take their oaths to the Constitution a la carte.)

     A more structural answer is that neither chamber’s procedural rules place any particular premium on adherence to the Constitution.  It takes sixty votes in the Senate to violate your 302(a) allocation but only 51 votes to violate the Constitution.  And the House Rules Committee may block any points of order it sees fit.  These facts ought to embarrass all Members of Congress with any influence over its rules (with special demerits for those that like to talk about strict adherence to the Constitution). 

     The broader answer seems to be that adherence to the Constitution no longer carries the prestige it once did and disregard of our fundamental charter is no longer particularly stigmatized in much of our political community.  Section 20011’s authors, and all that waved it through as it navigated the legislative process, should be deeply ashamed.  I very much doubt that they are or will be.  This is a fundamental problem for the sustainability of our political community.

     @DavidASuper.bsky.social @DavidASuper1