What the Administration’s SNAP Freeze Teaches Us

David Super

      For more than a decade, Congress has provided a contingency reserve to fund the Supplemental Food Assistance Program (SNAP) during government shutdowns.  The appropriations acts providing them as part of an appropriation “to carry out the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.),”

These funds are available “in such amounts and at such times as may become necessary to carry out program operations”.  Everyone involved with SNAP, very much including the Trump Administration, knew that for years.  Several public documents from the first Trump Administration reaffirmed this obvious point, as did the “Lapse in Funding Plan” USDA posted on its website on September 30 of this year. 

     But then there were Democratic senators to be pressured so the Administration did a sudden about-face, replacing its Lapse of Funding Plan with a crude attempt to blame Democrats’ supposed allegiance to immigrants and transgender people for the loss of SNAP funding.  As discussed in my previous post, the Administration insisted that somehow the SNAP contingency reserve could not be spent on SNAP benefits in a contingency. 

     About half the states sued in Massachusetts while a coalition of non-profits, cities, and retailers sued in Rhode Island and a putative nationwide class of recipients sued in California.      

     Those of us that were hoping the Government’s briefs would lend some clarity about its seemingly incoherent legal position were sorely disappointed.  The Justice Department asserted that there is “$0 in the SNAP account” notwithstanding Congress having explicitly provided $6 billion – some of which the Administration had already spent on state administration and other things – in that account.  It insisted that providing partial SNAP benefits with the remaining balance in the contingency fund – enough to support about two-thirds of regular benefits even if USDA did not exercise clear authority to transfer funds from an account with a large surplus – would be worse than providing no benefits at all. 

     Most remarkably, the Administration ignored the command of section 5(a) of the Food and Nutrition Act that “[a]ssistance under this program shall be furnished to all eligible households who make application for such participation.”  It vehemently insisted that it had discretion not to transfer funds without explaining why section 5(a) did not curtail what discretion it might otherwise have had.  In briefing and in public statements, the Administration continued to argue that it was acting to preserve school meals without explaining how that threat could plausibly materialize.  Child nutrition programs spend about $3 billion per month.  They had a reserve of $23 billion.  SNAP needed a transfer of no more than $4.5 billion, even by the Administration’s contestable estimates.  Unless the government shutdown lasted another half-year, child nutrition programs faced no conceivable peril.  The Administration speculated that Congress might not provide any further funds this year for child nutrition – something that nobody in either party has suggested and that has never happened in the almost eighty years of these programs. 

     Nowhere did the Administration address last year’s 7-2 decision of the Supreme Court that “an identified source and purpose are all that is required for a valid appropriation”.  Section 5(a) directs an activity, and section 10 of the Food and Nutrition Act specifies that benefit funds are to come from the Treasury.  Instead, the Administration demonstrated its evolving view of the Separation of Powers when the Solicitor General told the Supreme Court “the federal courts lack the authority to superintend how the Executive exercises its discretionary authority over appropriating limited funds among competing priorities.”  Pity my poor students, who believe that Congress appropriates federal funds. 

     Not surprisingly, the Rhode Island and Massachusetts courts quickly rejected the Administration’s claim that it could not spend the SNAP contingency reserve on SNAP.  Each in its own way tried to give the Administration room to make its own decision that this was precisely the situation where the transfer authority needed to be exercised.  The Rhode Island court gave the Administration until Wednesday to issue reduced benefits if that was its preference. 

     The Administration finally abandoned its argument about the contingency fund but refused to transfer funds and instead demanded that states follow a complicated process to recalculate benefits for every household to receive partial benefits.  USDA’s own declaration conceded that this could take weeks or months for some states to accomplish due to antiquated automated systems. 

     As if this obstacle was not enough, USDA then released erroneous tables to guide state recalculations.  These tables would cut benefits far more than was necessary to stay within the contingency fund.  The calculations required are relatively simple, and plaintiffs submitted a declaration showing USDA’s error.  USDA then responded with correct tables, insisting that it was planning to do this all the time. 

     With 42 million people lacking food assistance, the Rhode Island court last Thursday became exasperated with USDA’s foot-dragging and issued an order enforcing its earlier temporary restraining order (TRO) to compel USDA to issue full November benefits.  It also adjudicated the transfer authority question and found that section 5(a) compelled USDA to provide full funding. 

     USDA issued guidance Friday afternoon saying that it was “working towards implementing November 2025 full benefit issuances” and promising “[l]ater today, FNS will complete the processes necessary to make funds available to support your subsequent transmittal of full issuance files to your EBT processor.”  The guidance made no mention of the possibility that USDA might reverse its position if it obtained a stay of the Rhode Island court’s orders. 

     In response, numerous states – predominately blue but including a smattering of red – issued full SNAP benefits for November. 

     Friday evening, the First Circuit denied the Administration’s request for an administrative stay of the Rhode Island court’s orders but indicated it was still working on the Administration’s request for a stay pending appeal.  The Administration went to the Supreme Court, and Justice Jackson entered an administrative stay to last until 48 hours after the First Circuit resolved the Administration’s request for a stay pending appeal.  She offered little explanation, but one may speculate that, with a very thin opinion from the district court and none of substance from the First Circuit, she may have felt the case was not sufficiently presented for the full Court to consider the merits of a stay pending appeal. 

     For roughly a full day after Justice Jackson entered her stay, USDA left its Friday “full benefit issuances” guidance in place.  Some additional states initiated or completed issuances during this time.  Saturday night, however, USDA posted new guidance to its website forbidding full issuances, demanding that states “undo” issuances they already had completed – which would violate USDA’s own regulations – and threatening dire penalties against the states that had issued in response to its prior guidance.

     Late Sunday night, the First Circuit unanimously rejected the Administration’s petition for a stay pending appeal.  It found that the Administration had not meaningfully countered the district court’s finding that its foot-dragging, and the prospect of weeks of further delay, violated its initial TRO – which the Administration had not sought to have modified or timely told any court was unachievable.  The First Circuit found that, and the equities in favor of 42 million hungry people, militated in favor of letting the district court’s enforcement order stand. 

     By then, Congress was already moving toward ending the shutdown.  When Justice Jackson’s administrative stay was about to expire last night, the full Supreme Court, over her dissent, extended the administrative stay two more days. 

     Meanwhile, the states sought and received a TRO from the Massachusetts district court preventing USDA from following through on the threats in its Saturday evening memo or compelling those states to try to retrieve the benefits illegally.  Nonetheless, USDA has threatened EBT contractors in the states that issued benefits Friday and Saturday with not being reimbursed for benefits spent in those states.  This would effectively shut down SNAP in those states for all benefits, including remaining balances from earlier months.  USDA stated that, to remove this obstruction, all states had to do was retrieve the benefits USDA no longer believed were properly issued.  USDA’s brief describes a weird quasi-block grant it seems to have imposed on SNAP without any authority in statute or regulation.  Apparently at least one state complied.  With the shutdown ending, it is unclear what if any consequences USDA will face for its blatant disregard of the Massachusetts court’s order. 

     This entire episode is tragic.  We likely will see waves of evictions and utility shutoffs in the months to come against households forced to divert what cash they had to purchasing food.  When SNAP benefits are restored, some households may illegally try to sell them for cash – at a huge loss – to scrape together the funds needed to stave off these evictions and utility shutoffs.  Myriad other difficult personal decisions, including some with likely tragic consequences, will flow from this entirely unnecessary crisis and the Administration’s crude exploitation of vulnerable Americans for political gains. 

     The episode also has much to teach us about the state of our government.  The Administration’s initial position, in its September 30 “Lapse in Funding Plan”, was legally correct and consistent with what prior administrations, including the first Trump Administration, had always said.  But no meaningful guardrails prevented it from switching off that position to a series of ludicrous arguments, which the Justice Department had no problem pressing in court.  The Administration has gutted the experienced, highly professional staff that had run SNAP effectively for decades, and the remnants were incapable of performing simple benefit calculations, of following simple regulations, of writing competent guidance to states, or of recognizing the need to timely replace that guidance when its policy changed.  And neither the agency nor the Justice Department was especially concerned about violating multiple court orders. 

     Those believing that the key to understanding governance in our time is careful attention to the President’s social media posts were surely disappointed:  on November 1 he posted that it would be his honor to issue SNAP if a court told him from what source of money they should be drawn but then later in the week attacked the program as serving the unworthy and insisted that the Government should stay liquid, presumably by withholding funds for SNAP benefits. 

     Most remarkably, the Solicitor General declares in a brief to the Supreme Court what has become increasingly evident this year:  the Trump Administration is done with the Appropriations Clause and is claiming the Power of the Purse for itself.  I will shortly post on the sad fate of that Clause more generally.

     The response of ordinary people around the country to the Administration’s cut-off of SNAP has been heartening.  It confirms a trend we have seen in other venues, such as responses to federal law enforcement officers’ abuses:  We the People currently have a much clearer vision of this country’s core values than does institutional America.  Those of us invested in gesellschaft need to lose our arrogance and recognize everything that gemeinschaft gets right.  But the capacity of local volunteers of good will is woefully insufficient to offset the devastation wrought by a federal government that increasingly considers itself above the law.

     @DavidASuper1 @DavidASuper.bsky.social

Is Punishment Permissible?

Guest Blogger

For the Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).

 John Stinneford

Judith Resnik’s important new book, Impermissible Punishments: How Prison became a Problem for Democracy, sets itself several tasks and largely accomplishes them.  It lays out a history of the prison, focusing on prison brutality and efforts to rein it in.  It argues that prison brutality violates our “democratic commitments to treat each person as an equal.”  Finally, it proposes a solution: The anti-ruination principle – the idea that, whatever punishment the government inflicts on a person, it may not inflict ruin.

This book should be read by every person interested in prison law, and by every Justice of the Supreme Court. The history it sets forth is fascinating, disturbing, and ultimately infuriating.  Despite the efforts of many well-intentioned individuals and groups, incarceration has repeatedly resulted in brutal, dehumanizing treatment of those subjected to it.  Moreover, the idea of an anti-ruination principle to ameliorate this problem is both morally and (potentially) legally compelling. But the book raises some fundamental questions that need answering before the moral can be translated into the legal. I will focus on some of these and will then propose my own (not entirely satisfactory) answer.

1. Are “democratic principles” of equality really the basis for the anti-ruination principle?

Impermissible Punishments seems to treat democracy as a self-justifying source of a comprehensive moral order.  Our commitment to democracy, the argument goes, requires a commitment to equality. Our commitment to equality requires commitment to a whole variety of specific policies – not merely policies against brutal prison conditions, but also policies providing comprehensive social services both inside and outside prison.

This argument seems to treat democracy as the ultimate ground for moral reasoning – but it is not.  We are not committed to equality because of our abiding conviction in democracy; rather, we are committed to democracy because of our conviction in the fundamental dignity and equality of each individual person. Democracy is the result of moral reasoning, not the source of it.

This distinction is important because it means we need to look beyond politics to understand what equality is and how it cashes out in practice. Historically, at least in Europe and America, the idea of equality and human dignity comes from the Judeo-Christian belief that every human being is created in the image and likeness of God. Whatever crime a person has committed, and whatever punishment he deserves, he still possesses the same core dignity and equality as his fellow human beings. Slave-holding Athens, the progenitor of democracy in the West, did not believe in equality in the Judeo-Christian sense.  Although Impermissible Punishments speaks in the language of Athens, its moral commitments seem to derive more directly from Jerusalem.  And appropriately so, for the Judeo-Christian idea of equality is the foundation of American democracy (“We hold these truths to be self-evident…”).  America’s accommodation of slavery at its founding and its tolerance (or even encouragement) of various forms of invidious discrimination ever since shows that we often fail to live up to this commitment.  But if this commitment were not the foundation of our society, we could not criticize prisons for violating the anti-ruination principle - for the principle simply wouldn’t apply.

Just as the anti-ruination principle does not derive from the logic of democracy, it is not inconsistent with other social and political orders.  Indeed, Professor Resnik traces the anti-ruination principle back to Magna Carta, a document from a distinctly hierarchical and non-democratic society.

In short, both equality and the anti-ruination principle must be based on an adequate moral anthropology.  We cannot commit to either principle unless we have some idea of who we are as human beings and why we matter.   

2. What counts as ruination?  Is punishment itself permissible?

Impermissible Punishments does not set forth a positive account of the legitimate purposes of punishment. At one point, the book references the legitimacy of “seeking public acknowledgement that an individual has unlawfully intruded on other people.”  Later, it says that “putting some form of confinement in place marks the radical injuries caused by an individual.”  These descriptions imply that punishment may serve an expressive purpose, but perhaps not a retributive one.  The book briefly mentions deterrence and incapacitation but does not endorse them. 

At the same time, the book argues that the anti-ruination principle requires that “prison life should approximate community life” and should “approximate the normalcy of free movement.”   The book also implies that the government has an affirmative obligation to help prisoners “thrive outside of prison,” although it rejects the idea of rehabilitation because it entails working “on” rather than “with” prisoners.

This discussion raises the question of whether punishment is permissible at all under the proposed anti-ruination principle.   Blackstone, for example, made a distinction between punitive and non-punitive confinement. He wrote that because pretrial prisoners were held “only for safe custody, and not for punishment,” they “ought to be used with the utmost humanity; and neither be loaded with needless fetters, or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only.”  American courts also recognize a distinction between punitive and non-punitive confinement.  If the anti-ruination principle requires that prisoners “ought to be used with the utmost humanity; and . . . [not] subjected to other hardships than such as are absolutely requisite for the purpose of confinement only,” is punishment permissible at all, or merely non-punitive confinement?  On the other hand, if the anti-ruination principle does not prohibit all hardships that are not strictly necessary to effectuate confinement, where are we to draw the line?

3. The original meaning of the Cruel and Unusual Punishments Clause

I have argued elsewhere that in the context of the Eighth Amendment, the word “Cruel” originally meant “unjustly harsh” and “unusual” meant “contrary to long usage.”  A punishment is “cruel and unusual” if it is unjustly harsh in light of longstanding prior practice.  There is no requirement that the punishment be motivated by cruel intent; the relevant question is whether the punishment has an unjustly harsh effect.  The baseline for measuring cruelty is neither current societal consensus (as called for by the evolving standards of decency test) nor the societal consensus of 1790 (as called for in Justice Scalia’s Harmelin opinion). Rather, it is the consensus of multiple generations, up to and including today, as revealed through the actions of legislatures, prosecutors, judges and juries.  The tradition may develop over time, as some practices fall out of the tradition and some enter it, but it also maintains a fundamental continuity.

The normative basis for this approach to deciding questions of cruelty derives from the common law, which was traditionally called the law of “long use and custom.”  The basic idea was this:  We may all agree on core principles of justice (for example, the equality principle), but it is often difficult to translate such principles into practice reliably.  What counts as cruelty?  What counts as ruination?  Common law thinkers concluded that the longstanding customs of a free people were the most reliable way to determine what practices were just, reasonable, and enjoyed the consent of the people.  Therefore, if a practice was universally received over a very long period of time, it was legally enforceable and presumptively just.  If a new practice violated a right established through long usage, on the other hand, it was considered unjust because it was “unusual.”  This mode of thinking provided the justification for the American Revolution and underlays many of the provisions of the Bill of Rights.

Under the common law reasoning that underlies the Cruel and Unusual Punishments Clause, a punishment might constitute “ruination” if its effects are significantly harsher than those traditionally given for the same or a similar crime.  Because punishments traditionally involve some infliction of physical or psychological pain, an anti-ruination principle would not necessarily require that life in prison closely approximate life in the community, although it certainly would condemn many of the harsh and degrading prison conditions identified in Impermissible Punishments.

4. The problem of prison.

That being said, prison poses a particular problem for the “original meaning” approach to questions of cruelty.  The normative power of the common law depended on the people having a certain level of awareness of what the government did to those subjected to punishment.  When punishments were inflicted in public, they were also more likely to be regulated by the public.  It is no accident that public pressure to eliminate the death penalty, for example, largely disappeared when executions were moved out of the town square and into hidden rooms inside prisons, and when obviously violent methods like hanging were replaced by scientific-sounding methods like lethal injection.  If people cannot see the suffering, they are not likely to oppose the suffering.  Thus, enforcement of the prohibition of cruel and unusual punishments depends upon the judiciary being willing to take a close look at prison conditions to determine whether they meet our traditional standards.

This leads to the other problem with prisons:  As Impermissible Punishments shows, the history of incarceration is a long history of experimentation.  Most prison practices that might be challenged under the ruination principle do not enjoy “long usage” – that is, they have not been universally received over a very long period of time.  But the experimentation is so pervasive that it may be difficult to establish a traditional baseline against which to judge such practices.  Nonetheless, in at least some instances, comparison is possible.  For example, as I have shown elsewhere, long-term solitary confinement is a repeated, failed experiment that violates the original meaning of the Cruel and Unusual Punishments Clause.  Doubtless, many of the practices identified in Impermissible Punishments do so as well. 

John Stinneford is a Professor of Law and the Edward Rood Eminent Scholar Chair at the University of Florida Levin College of Law.  He may be reached at jstinneford@law.ufl.edu.

The Struggle to Institutionalise Impermissibility

Guest Blogger

For the Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).

Nicola Lacey

Judith Resnik’s magisterial and comprehensive survey of the history of punishment within prisons, and of the struggle to subject these practices to critical scrutiny, constitutional limits and progressive reform, inspires, first and foremost, humility in the face of a considerable scholarly achievement.  But, as Resnik herself would, I take it, both agree and indeed hope, it also inspires perplexity.  After so much effort, over three centuries, on the part of so many actors – ‘pioneering prisoners’ [1] as well as campaigning reformers, national and international organisations, courts and law-making bodies – how can it be that the persistent effort to build consensus around norms of impermissibility, and to institutionalise those norms, has had such limited success?  Notwithstanding the fact that reform efforts have increasingly taken place in a broad international context which affirms the values of equal respect and human dignity in punishment, the prison seems relatively impervious to decisive humanisation.  As Resnik argues, all too often it remains a place of ‘ruination’: a space in which the basics of human dignity and even of personal safety, let alone of civic status, are either absent or actively subverted by the conditions of imprisonment.  Moreover this holds true not only for authoritarian systems but also the avowedly liberal democracies which most loudly affirm their adherence to humane and civilised norms of governance.  And in this respect, the United States provides perhaps the most perplexing case of all. 

Available Upon Request

Gerard N. Magliocca

Moot is Moot: An Open Letter to the Supreme Court Urging Adherence to Settled Mootness Principles in Little v. Hecox

Jason Mazzone

Vik Amar and I have just published a short essay in the form of an open letter to the Supreme Court concerning Little v. Hecox, the case on the Court's docket this term involving a transgender athlete's equal protection challenge to Idaho's Fairness in Women’s Sports Act. Because of certain developments in the litigation after the plaintiff prevailed below, the case--under settled principles--is now moot. The Court should so hold. But the state defendants resist the obvious and, claiming the plaintiff manufactured mootness in order to avoid review, urge the Court in extensive filings to bypass Article III requirements, adopt a new exception to mootness, and decide the case on the merits. The Court should resist that invitation, just as it has done so in prior cases that have become moot on the way to the Court or before the Court issues a judgment.      

Prison and Death

Guest Blogger

For the Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).

Carol S. Steiker

Judith Resnik has produced a magisterial, learned, and deeply humane work of history, law, and policy that takes us deep within the deeply flawed institution of the American prison.  As a scholar of American criminal justice who focuses on the death penalty, I found many resonances in Resnik’s book to my own primary preoccupation.  Capital punishment makes only the occasional, peripheral appearance in Resnik’s account of the prison (this is not a criticism, as the book is a mammoth doorstopper as it is).  But reflecting on the interplay between these two penal practices is a worthwhile extension of Resnik’s work, as it both amplifies and complicates some of her key themes.

The relationship of the prison to the death penalty has always been complex.  In some ways, their fates often seem inextricably linked, like those of conjoined twins.  In other ways, the two practices seem more like rival siblings locked in a zero-sum battle.  Consideration of four key time periods—the early to mid-nineteenth century, the Progressive Era, the 1960s and ‘70s, and the first decades of the twenty-first century—sheds light on many of the key convergences and divergences of the two practices and may suggest some important questions for their future.

Tariffs, Textualism, and a Easier Way Out

Abbe Gluck

Some people get frustrated when the Court decides high-stakes cases in ways that focus on the micro level of text, dictionary definitions, and grammar, rather than on major principles of constitutional or substantive law. They want the Court instead to take head-on the big issues of separation of powers. Unlike a sweeping decision on presidential authority, a focused textualist analysis coming out against the president in a case like this one is less likely to deter the administration from attempting a policy-do-over via another route. Nor is it as likely to be viewed by the president as a major smack down. And that, indeed, may be part of the attraction of this approach for at least a portion of the Court.

Ruination, Democracy and the Participant Attitude

Guest Blogger

For the Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).

Gideon Yaffe

            Judith Resnik’s Impermissible Punishments is a magisterial work.  What launches the book is the simple observation that prison is profoundly embedded in our lives.  It’s conditions, rules, principles, enabling conditions and political circumstances are, themselves, in any given time and place, highly particular, and they changed and flowed over the many decades since prison’s invention.  The book’s central aim is to give a detailed account of how it came to pass that prison became the enormous, deeply entrenched social practice it is, with all of its distinctive facets.  Of course, the answer to the book’s central question is, “It’s complicated”.  And the book is driven by a determination not to oversimplify; Resnik embraces complexity.  The philosophy of Jeremy Bentham played a role in the state of the social practice and the institutions that support it.  Conferences hosted by relatively minor historical figures played a role.  Medical doctors and people devoted to the logistics of housing and feeding people mattered.  The moral consciences of presidents, Supreme Court justices, imprisoned people, not to mention the family and friends of the imprisoned, played a role.  As did the curiosity-driven work of sociologists, criminologists, economists, philosophers and political scientists.  The bulk of the book is descriptive.  Resnik does her best to accurately describe the startling number of interacting forces and figures that produced the prison-infused world of today. Comprehensiveness is simply not possible in this domain, perhaps not even in principle; but Resnik tries. 

            It is probably hubristic to suggest that the line of thought in the book that most drew my attention, and on which I will focus here, is a central line of thought in this work.  The book has multiple centers.  Perhaps it is more fitting to say that I will here focus on a recurrent theme, which both begins and ends the book, and to which Resnik returns in many places throughout it.  This is Resnik’s idea of “ruination”.  That a punishment produces ruination is sufficient for its impermissibility.  Or, put the other way, a punishment is permissible only if it avoids producing the ruination of the person on whom it is inflicted.  As Resnik sees it, the central feature of contemporary imprisonment that undermines its permissibility is that it frequently ruins those who suffer it, and tends in that direction even in those who emerge unruined.  So, a first question is: what does Resnik means by “ruination”?

The Public & The Prison

Guest Blogger

For the Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).

Andrea Armstrong

The nature of punishment in our prisons has been debated for the past three centuries. This dispute has not merely focused on the number of days a person is incarcerated for, but also the conditions they are subjected to while confined. In “Impermissible Punishments: How Prison Became a Problem for Democracy,” Professor Judith Resnik frames these debates within the demands of democracy and legal claims of rights by incarcerated men.

This is a breathtakingly comprehensive interrogation of the influence of social movements and politics on the imposition of prison punishment, historically and in the present day, as well as around the globe, in the U.S., and in Arkansas. I write to make a small contribution within the enormity of this book, namely to ask how the relationship between the public and the prison may have been influenced by the broader arcs and incentives identified by Resnik.

Northwestern’s missed opportunity to fight antisemitism

Andrew Koppelman

An Enduring Problem: How to Prevent the Abuse of Prisoners

Guest Blogger

"Regular Forces:" A Lesson in the Obvious

Mark Graber

The Supreme Court’s order in Trump v. Illinois asked the parties to the dispute over whether President Trump could constitutionally federalize state militia to enforce federal immigration laws in Chicago to address “whether the term ‘regular forces’” in 10 U. S. C. §12406(3) “refers to the regular forces of the United States military” or, as the Trump administration claims, civilian law enforcement personnel.  The relevant text of 1908 revisions to the Dick Act (1903) declares,  “Whenever . . . the President is unable with the regular forces at his command to execute the laws of the United States; the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute the laws.”  Both common sense and context support “regular forces” referring to the regular forces of the United States military, who are responsible for repelling invasions and suppressing rebellions.  Marty Lederman has a terrific brief demonstrating that the persons responsible for this 1908 language consistently used “regular forces” to refer to the regular forces of the United States and never used that phrase to refer to civilian law enforcement.  My survey of newspapers published at the time confirms Lederman’s findings.

Over the weekend, I began a survey of every use of “regular forces” I could find in newspapers published in 1908.  I started my survey with GenealogyBank, although plan is to examine Newspapers.com and NewspaperArchive as well.  There were 245 hits on GenealogyBank, of which I have reviewed 100.  This blog post will be updated as I review more articles, but the findings below are likely to be robust.

Couple of Observations About Today's Tariff Argument

Gerard N. Magliocca

First, Neal Katyal was channeling Christoper Walken at times with the theme of: "I got a fever. And the only prescription . . . is more Youngstown." We'll see how effective that was.

Second, some questions more or less asked whether IEEPA could be read to grant tariff authority in a dire emergency. The problem is that President Truman made that argument about Article II in Youngstown and lost in a situation that was closer to a real emergency than our trade deficits with Iceland or Singapore.

Third, the Solicitor General's argument that tariffs are regulations of foreign commerce rather than taxes are totally at odd with a century of American history in which the two parties were often divided on tariff policy as a matter of domestic taxation. Go and read party platforms until the Sixteenth Amendment was ratified and could see that well enough. 

The Corporality of Incarceration

Guest Blogger

For the Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).

Ryan Sakoda

In Impermissible Punishments: How Prison Became a Problem for Democracy, Judith Resnik presents a thorough, penetrating, and insightful analysis of the transatlantic history of punishment over three centuries. The book delves into individual accounts of those who suffered from the horrible tools of punishment, provides a detailed transatlantic narrative of the development of and reform to punishment up to the present day, and explains how incarcerated people exercised their rights and resisted the most extreme forms of punishment. 

The introduction of the book immediately puts the brutality of the carceral system into stark relief, opening with an image of Winston Talley’s 1965 handwritten petition that challenged the use of the whip as punishment in the Arkansas prison where he was incarcerated. A modern audience might be surprised that such punishment existed as recently as the 1960s and might expect that the court hearing the case would quickly condemn the brutality of such punishment and grant the relief Talley sought: “order such floggings stopped. And the Whipp destroyed.” (p. 1) Furthermore, as Resnik points out, “One might assume that ending whipping would not have been hard the decade after the UN’s Standard Minimum Rules for the Treatment of Prisoners called for its abolition.” (p. 171) Talley, however, did not win his case. Chief Judge Henley, ruling in the case, did not abolish the whip, but instead required that the Arkansas prisons “establish by appropriate rules and regulations safeguards surrounding the infliction of corporal punishment on inmates so that the infliction of such punishment will not constitute cruel and unusual punishment.” (p. 190) Henley showed a high level of deference to prison officials and granted them “wide latitude and discretion in the management and operation of their institutions, including the disciplining of inmates” (p. 183) Resnik terms this the prison discount, where “rights are routinely cabined by what corrections officials argue to be situationally demanded.” (p. 7) 

Although Talley lost his case, Resnik emphasizes that his petition was an important step for prisoners’ rights due to the fact that his challenge was actually heard. As Resnik states, “[Talley] broke centuries of hegemonic power...[Talley and other] prisoners established a new proposition—that incarcerated people had the legal authority to call for limits on sovereign punishment powers.” (p. 6) In 1968, use of the whip was outlawed in Jackson v. Bishop.

Balkinization Symposium on Judith Resnik, Impermissible Punishments

JB

This week at Balkinization we are hosting a symposium on Judith Resnik's new book, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).

We have assembled a terrific group of commentators, including Andrea Armstrong (Loyola-New Orleans), Paul Butler (Georgetown), Fiona Doherty (Yale), Nicola Lacey (LSE), Ryan Sakoda (Berkeley), Kim Lane Scheppele (Princeton) Reva Siegel (Yale), Carol Steiker (Harvard), John Stinneford (Florida), and Gideon Yaffe (Yale)

At the conclusion, Judith will respond to the commentators.

Aspiring Free Speech Scholars Workshop

Guest Blogger

Second Annual Aspiring Free Speech Scholars Workshop
jointly sponsored by the Sandra Day O’Connor College of Law (ASU)
and the Hoover Institution (Stanford University)

Are you a law student, judicial law clerk, lawyer, or beginning academic hoping to publish a journal article on free speech law? Would you like the opportunity to get advice about your draft from leading free speech scholars?

If so, send us your draft by Sunday, August 16, 2026. (This should still be a draft article, not an article that’s already published or expected to be published within six months.) We plan to select the submissions that we think are particularly promising, and invite their authors to a workshop where they can present their papers and get helpful feedback on them. The workshop will be Saturday, October 24, 2026 (with dinner the night before) at the Sandra Day O’Connor College of Law in Phoenix, and we will inform the selected authors by Tuesday, September 8, 2026.

We have funds to pay for transportation and lodging for the selected authors’ trips. Eligibility is limited to people who have so far published three or fewer law-related journal articles. 

We also plan to officially recognize zero to three of the top articles among those we review. If the authors wish, they can also have their articles reviewed for publication in the Journal of Free Speech Law (http://JournalOfFreeSpeechLaw.org), presumably after they revise the articles in light of the workshop feedback.

If you’re interested, please submit your draft at http://tinyurl.com/aspiring-free-speech (Google logon required). Please single-space, and format the article nicely, so we can more easily read it.

Please do not include your name or law school affiliation in the document or document filename, and please do not include an author’s note thanking your advisors and others. Please make your filename be the title of your article (or some recognizable subset of the article title). We want to review the article drafts without knowing the authors’ identities.

If you have questions, please check http://tinyurl.com/aspiring-free-speech-faq; if your question isn’t answered there, please e-mail volokh@stanford.edu.

Many thanks to the Stanton Foundation for its generous support.

* * *

James Weinstein, Dan Cracchiolo Chair in Constitutional Law and Professor of Law, Sandra Day O’Connor College of Law, Arizona State University

Eugene Volokh, Thomas M. Siebel Senior Fellow, Hoover Institution (Stanford University), and Gary T. Schwartz Distinguished Professor of Law Emeritus, UCLA School of Law

Upcoming Robert Jackson Event

Gerard N. Magliocca

On Tuesday at Noon, I'll be doing a virtual panel with G. Edward White on our respective books about Justice Jackson. Registration for the event is here.

There was a snafu with the printing of my book, but the publisher tells me that should be resolved later this month. If you're totally impatient, though, you can get the digital copy now. 

Congratulations to Marty Lederman

Gerard N. Magliocca

For writing an amicus brief on his own that convinced the Court to take another look at the National Guard case. Power paid tribute to reason.

The Administration’s Shutdown of SNAP is Obviously Illegal-Updated

David Super

     On Friday, October 24, 2025, the Trump Administration suddenly released a memo claiming that it lacks the authority to spend contingency funds appropriated by Congress to provide November benefits in the Supplemental Nutrition Assistance Program (SNAP).  This position, which contradicts a position this Administration adopted on September 30 and has had on USDA’s website until recently, is utterly without foundation in law.  This is another example of the Administration trying to wrest the power of the purse away from Congress by refusing to undertake congressionally mandated spending even as it spends other moneys on its preferred activities without congressional authorization. 

     For the past several years, Congress has included a $3 billion contingency fund in each year’s SNAP appropriation.  Unlike the regular SNAP appropriation, which is limited to a single fiscal year, these contingency funds have been made available for one or two additional years.  For example, the SNAP appropriation for federal fiscal year 2024 states: 

For necessary expenses to carry out the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.), $122,382,521,000, of which $3,000,000,000, to remain available through September 30, 2026, shall be placed in reserve for use only in such amounts and at such times as may become necessary to carry out program operations… .

At the beginning of October, a total of $6 billion is available in contingency funds for SNAP:  $3 billion from the fiscal year 2024 SNAP appropriation that will not expire until a year from now and another $3 billion from the fiscal year 2025 SNAP appropriation that will not expire until September 2027.  With no annual SNAP appropriation for fiscal year 2026, and with the regular fiscal year 2025 appropriation not available beyond October’s SNAP benefits, release of this $6 billion obviously has “become necessary to carry out program operations”. 

     The Administration recognized this in its September 30, 2025, “Lapse of Funding Plan”, which USDA only removed from its website in the past few days.  The plan noted that October benefits were obligated in fiscal year 2025 and chargeable to that appropriation but that “multi-year contingency funds are also available to fund participant benefits in the event that a lapse occurs in the middle of the fiscal year.”  During the 2018-19 appropriations lapse, the first Trump Administration similarly understood the contingency funds to be for precisely this purpose, declaring itself “committed to minimizing the impact of the appropriations lapse on SNAP households and directing the limited funding available from the contingency that can be used toward normal SNAP operations, including the issuance of benefits for new applicants in February.”  Other administrations have made similar statements when appropriations lapses occurred or were threatened. 

     The Administration now asserts “SNAP contingency funds are only available to supplement regular monthly benefits when amounts have been appropriated for, but are insufficient to cover, benefits. The contingency fund is not available to support FY 2026 regular benefits, because the appropriation for regular benefits no longer exists.”  It cites no legal authority for that position, and nothing in that appropriation or general appropriations law requires that the contingency funds be used only to supplement a regular appropriation.  (This contrasts with the two laws the Administration relied upon to move research into servicemembers’ pay, which does require a current, unexpired appropriation to receive transferred funds.)  All the appropriations act requires is that spending the contingency funds has “become necessary to carry out program operations”, which is obviously the case when benefits for forty million people are at risk.    

     Not only is the Administration contradicting its own “Lapse in Funding Plan” and the first Trump Administration, but its position is internally inconsistent.  It asserts “the contingency fund is a source of funds for contingencies, such as the Disaster SNAP program, which provides food purchasing benefits for individuals in disaster areas”.  But Disaster SNAP is authorized under section 5(h) of the Food and Nutrition Act, just a few subsections down from section 5(a), which authorizes regular SNAP benefits.  The SNAP appropriation, which includes the contingency fund, references the entirety of the Food and Nutrition Act as a whole, making clear that all of the funding provided — including contingency funds and annual appropriations — can be used for all of the benefits provided by the statute, including regular benefits and disaster benefits.

     Even if SNAP contingency funds were somehow unavailable to support SNAP benefits in November, USDA has broad transfer authority among nutrition programs.  It has already tapped this authority to move $300 million from child nutrition programs to keep the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) running during the current lapse in appropriations.  In early October, child nutrition programs had $23 billion available.  Those programs spent less than $3 billion per month last year.  Thus, the child nutrition account has more than enough to fund the roughly $8 billion required to pay for November SNAP issuances, another $300 million transfer to WIC, two months of SNAP administrative costs (slightly over $400 million per month) and child nutrition program’s operation without any risk of running out any time soon.  Nonetheless, the Administration’s memo declares that “[t]ransfers from other sources would pull away funding for school meals and infant formula.” 

     Most simply, the Food and Nutrition Act states “Assistance under this program shall be furnished to all eligible households who make application for such participation.”  The Administration has not identified any justification for its disregard of this requirement.  A more clearly unlawful impoundment is difficult to imagine. 

     Terminating SNAP is a choice, and an overtly unlawful one at that.  The Administration has chosen to hold food for more than forty million vulnerable people hostage to try to force Democrats to capitulate without negotiations. 

     UPDATE:  On October 25, the following statement appeared on USDA’s website for the Food and Nutrition Service:  “Senate Democrats have now voted 12 times to not fund the food stamp program, also known as the Supplemental Nutrition Assistance Program (SNAP). Bottom line, the well has run dry. At this time, there will be no benefits issued November 01. We are approaching an inflection point for Senate Democrats. They can continue to hold out for healthcare for illegal aliens and gender mutilation procedures or reopen the government so mothers, babies, and the most vulnerable among us can receive critical nutrition assistance.”  If anyone doubted whether it was political calculation rather than advice from counsel that led to the Administration’s sudden, textually unmoored reversal of its legal position, this should resolve those questions. 

     @DavidASuper1 @DavidASuper.bsky.social

An Elegy for the Actual Founding Generation

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025). 

Aziz Rana

            John Witt’s superb The Radical Fund tells the interwar story of the Garland Fund, a relatively small institution endowed by an idealist young socialist named Charles Garland, which nonetheless played a dramatically outsized role in bringing together key reformers, organizers, lawyers, and politicians across the era’s broad American left. The Fund itself has an almost Zelig-like quality, intersecting at some point with seemingly every major activist in the 1920s and 1930s on behalf of racial equality, labor rights, and civil liberties. In narrating the history of the Fund, Witt ultimately narrates nothing less that the birth of the United States itself—certainly the birth of the version of the country many Americans today embrace as their own. The book is thus a profound and incredibly moving testament to the collective efforts and achievements of the individuals who, in many ways, are the actual founding generation of the modern United States. 

            In popular culture, there persists a tendency to think of the country as having a single, unbroken constitutional project, from the eighteenth century to the present. In this account, later achievements are part of an unfolding liberal essence, whose germ was already present in the 1780s. Yet, in truth, the constitutional compact Americans, who came of age by the end of the twentieth century, have lived under bears little relation to the commitments and cultural world of Hamilton and Madison. The twentieth century compact linked together a series of ideological commitments that fundamentally broke with the eighteenth and nineteenth century defenses of explicit white supremacy and labor oppression. This new compact entailed a reading of the Constitution as grounded in racial inclusion and the legal overcoming of Jim Crow; an anti-totalitarian commitment to civil liberty and speech rights; a defense of market capitalism, but one hedged in by an entrenched regulatory and social welfare state; an embrace of institutional checks and balances, with the Supreme Court as a reformist participant; and a vision of US power as promoting these same internal values globally.

            In returning us to the world of the 1920s, The Radical Fund reminds the reader of what an unfamiliar country the United States was not so long ago. His cast of reformers exist in a society of brutal white violence and the ever-present specter of lynching, alongside extreme economic immiseration and private armies sent by business to wage actual, not metaphorical, war on labor.  These reformers are thus participants in a broad legal, economic, political, and cultural turn, and embody the generational hinge between a nineteenth century order and the one many American now would recognize. 

The post-Cold War years of the 1990s and 2000s saw an endless stream of hagiographies to the eighteenth-century revolutionary elites, with Lincoln added into the mix. In recounting the history of the Garland Fund and in honoring the life’s work of those involved, I see Witt’s book as a vital and beautifully written contribution to a new cultural repository. This repository speaks far more authentically to American achievement. Indeed, books such as this one—especially so grippingly told—are worthy in own right of memorialization through popular art, musicals and film, like the 1990s and 2000s hagiographies.

The Power to Decide

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025). 

Laura Weinrib

Nathan Margold’s oft-debated framework for the NAACP’s desegregation litigation campaign, John Witt convincingly argues in The Radical Fund, “was not a guide, naive or otherwise, to the establishment of new rights,” but “a strategy for navigating power in the institutions where authority resides” (423). That bold reinterpretation is one of many insights in Witt’s magisterial new book—and in my view, the most emblematic of the project as a whole. The Radical Fund is at its most illuminating when it follows its actors to the place where twentieth-century civil-rights, civil-liberties, and labor strategies quietly converged: not in the declaration of abstract rights, but in the allocation of authority. Over the course of the 1920s, the administrators and beneficiaries of the Garland Fund came to understand that substantive victories were downstream of “governing who decides” (426)—a view they helped write into labor law via the Reading Formula and, ultimately, the Wagner Act’s embrace of majority rule and exclusive representation.

Wherefore Art Thou Philanthropy

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

Larry Kramer

          Let me start by saying that I absolutely loved reading this book. It’s a beautifully written, deeply engrossing account of a marvellous range of events across the first third of the twentieth century, though telling these stories often requires John to reach back to the last third of the nineteenth century and, in a few instances, takes him forward into later decades of the twentieth. This is historical research at its very best, displaying an encyclopaedic grasp of details, without ever losing either the narrative thread or the larger picture. I found it entirely captivating. 

          Along the way, readers are treated to oodles of fascinating details and novel insights about well-known incidents—from the Scopes Monkey Trial and the trials of Sacco and Vanzetti to the Scottsboro case—while also being introduced to less familiar episodes, some totally new to me, like April Farm, the Brookwood Labor College, and many more. In like fashion, we gain new perspectives and insights about well-known personalities like Roger Baldwin, Clarence Darrow, and W.E.B. Dubois; as well as familiar but not quite as well-known people like Elizabeth Gurley Flynn, James Weldon Johnson, and Walter Lippman; and more than a few completely new characters (again, to me at least) like Charles Garland himself, A.J. Muste, and Clinton Golden. 

          John manages, in just a few pages for each, to paint detailed pictures of events and the people who made them, bringing the period to life and giving the reader a feeling of familiarity and authenticity. The cumulative effect is a narrative tour de force that should become a must-read for anyone looking to understand this turbulent period of American political history. It also serves as a timely reminder today—when even the most modest efforts to provide a social safety net are with a straight face condemned by folks on the right as “Marxist” and “socialistic”—that there was a time in the not so distant past when American politics really did have a far left. 

          But here is the thing: the book isn’t really about the Garland Fund, which serves in John’s account more like a narrative hook on which to hang the many stories that comprise the book’s substance. The Fund runs through the text as a kind of Zelig-like figure (the eponymous lead character in Woody Allen’s 1983 film). Like the character in the movie, the Fund is there, in the background, of nearly every important development on the political left in the 1920s and 30s. But we learn relatively little about it: about the role it played and how it played that role. 

Altman on Discrimination and Noncomplicity

Andrew Koppelman

The PEA (Philosophy, Politics, Academia) Soup blog, which hosts philosophy discussions, invited me to participate in a symposium on Scott Altman’s article, Discrimination, Noncomplicity, and Reasons That Mask Disdain (Ethics 136 (1):6-33 (2025).  Here’s my contribution:

Scott Altman argues that exemptions from antidiscrimination laws should be denied when they are sought by those who seek to avoid complicity in another’s immorality.  This would categorically bar the now-familiar claims of wedding vendors, such as bakers or photographers, who object to facilitating same-sex weddings.  He thus disagrees with writers such as myself who have argued (see my Gay Rights vs. Religious Liberty? The Unnecessary Conflict, Oxford University Press, 2020) that such claims ought to be legislatively accommodated if that can be accomplished without personally turning away those who seek services for such weddings.

Granting such exemptions, he argues, implicitly accepts and endorses the view that the customer’s immorality makes them unfit for commercial interaction.  Laws should rest on bases that everyone can accept, and that is not a justification that all citizens could accept.  “Reasons that demand humiliation and self-denigration do not treat others respectfully.” (16)  The vendor’s request for exemption “relies on neutral language that masks contempt, requiring the customer to participate in self-denigration by embracing the vendor’s disdain as reasonable.” (16)

Altman is right that the claims of these wedding vendors are predicated on an objectionable kind of disdain for one’s fellow citizens.  But in a diverse society such disdain is common.  Normally citizens cope with that by declining to associate with one another.  Antidiscrimination law is an exception to that right of nonassociation.  The law also sometimes has exceptions to that exception, as part of the general structure of liberal accommodation for diversity.  The exceptions can be invoked even when their motives are invidious.

Emergency Powers and the Youngstown Concurrence

Gerard N. Magliocca

My book on The Actual Art of Governing: Justice Robert H. Jackson's Concurring Opinion in the Steel Seizure Case was published today. I'll be doing some posts in the coming weeks that connect some of the book's themes to ongoing constitutional disputes.

In his concurrence, Justice Jackson emphasized that the Framers did not provide for emergency powers, save for Congress's authority to suspend habeas corpus. "They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies."

Emergency power instead came from Acts of Congress that evolved as part of "the practical working of our Government." He summarized the emergency statutes as of 1939, when Attorney General Murphy described them, and said: "Under this procedure, we retain Government by law-special, temporary law, perhaps, but law nonetheless. The public may know the extent and limitations of the powers than can be asserted, and persons affected may be informed from the statute of their rights and duties."

Here the concurrence was telling us how to interpret emergency statutes. First, they cannot be understood by reference to original public meaning. They can only be construed by reference to practice. Second, they must be temporary or have some clear endpoint. Third, they must provide adequate notice to the public.

The imposition of tariffs under the IEEPA flunks these tests. No President until now understood that law to authorize tariffs. In other words, there is no supportive practice. There is no endpoint to an emergency that is based on trade deficits. We will always have trade deficits with some nations. And there is nothing in the statute or in this year's Executive Orders that provides notice. Tariffs go up, go down, get postponed, and so on with no warning and no reasons. Legal Realists used to say that the law was what the judge had for breakfast. Now the law is what the President had for breakfast. 

As a result, the lead brief from respondents in the tariff case was right to open and close with references to Justice Jackson's opinion. The Court should do the same.

What Money Can Do: John Witt’s The Radical Fund

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

Mary L. Dudziak 

In this chaotic and destructive era of American history, John Fabian Witt’s The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America is something of a salve. Written more in the form of a novel than a traditional history book, the narrative follows the lives of brilliant idealists who sought to realize their expansive visions of social change. Their accomplishments expanded civil rights and free speech and changed American history.  Witt’s great command of the history of U.S. reform efforts coupled with his envious narrative power make the book a compelling read. 

The spark for these reformers’ efforts was money: the unwanted inheritance of Charles Garland, who did not believe in inherited wealth. The visionaries who made decisions about what the Garland Fund would support, and the ones who put the money to use were an important cast of characters in the history of social change in the twentieth century United States. In Witt’s hands, the Fund’s history is a narrative device that weaves their stories together.

Could the Garland Fund Upend America Today?

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

David Pozen 

John Witt’s The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America recovers the remarkable story of the American Fund for Public Service, known as the Garland Fund, and its efforts to advance social democracy during the 1920s and 1930s. With his characteristic mix of erudition and elegant prose, Witt brings to life the personal dramas, institutional dynamics, and ideological struggles that shaped the Fund’s interventions in many of the most pressing issues of the era. A riveting read, The Radical Fund seems likely to become that rarest of academic birds: a 700-page monograph that finds a large and grateful audience. 

Given my limited historical chops, I will leave it to others to evaluate The Radical Fund’s contributions to the history of philanthropy, labor relations, civil rights, and the interwar period. My first encounter with Witt’s project was at a conference on nonprofit law, and it is through this lens that I will offer some reflections. As exemplified by books such as Winners Take All and The Tyranny of Generosity, recent years have seen a boomlet in commentary that depicts wealthy nonprofits in general, and private foundations in particular, as enemies of democracy and engines of plutocracy. Against this backdrop, perhaps the most striking thing about The Radical Fund is its celebratory tone. The Garland Fund, Witt tells us, managed “to remake an unjustifiably unfair society” (p. 4) through its righteous pursuit of economic and racial justice. The implication, made explicit in the book’s Epilogue and in Witt’s recent New York Times essay on “How to Save the American Experiment,” is that a Garland Fund of today might do the same. All that’s needed is a similar level of creativity and courage. 

I am not so sure. Contemporary foundations might take inspiration from the Garland Fund in a generic sense, striving to emulate the Fund’s intrepid spirit while otherwise forging their own path. But nonprofit law has evolved since the 1930s in ways that would make it hard to replicate the Garland Fund’s most innovative tactics and important breakthroughs. Consider some examples.