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Tag: due process

  • Fourth Circuit Rejects Facial Challenge to Two Trump Anti-DEI Executive Orders

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    From Nat’l Ass’n of Diversity Officers in Higher Ed. v. Trump, decided today by Fourth Circuit Chief Judge Albert Diaz, joined by Judges Pamela Harris and Allison Rushing:

    In the first days of his second term, President Donald J. Trump issued two Executive Orders [“Ending Radical and Wasteful Government DEI Programs and Preferencing” and “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”] that directed executive agencies to end “diversity, equity, and inclusion” (“DEI”) programs within federal grant and contract processes…. The district court entered a preliminary injunction, but we stayed it pending appeal. We now vacate the district court’s injunction and remand….

    [1.] The court rejected a Due Process Clause vagueness challenge to the “Termination Provision” of the first executive order, which directed “all [federal] agencies, departments, and commissions to”:

    terminate, to the maximum extent allowed by law, all DEI, DEIA, and “environmental justice” offices and positions (including but not limited to “Chief Diversity Officer” positions); all “equity action plans,” “equity” actions, initiatives, or programs, “equity-related” grants or contracts; and all DEI or DEIA performance requirements for employees, contractors, or grantees.

    The court reasoned:

    Plaintiffs argue that the provision never defines “equity-related,” so there isn’t “any guidance as to which grants or contracts must be terminated.” Thus, “agencies are free to terminate grants and contracts as they please, even based on protected speech.”

    But therein lies plaintiffs’ dilemma. The Termination Provision, on its face, doesn’t ask anything of them, nor does it regulate private conduct. Instead, it instructs the President’s subordinates to act, and then only “to the maximum extent allowed by law.” The Provision, at this stage at least, is nothing more than “an outward-facing” policy directive from the President to his agents…. “Any concerns of vagueness regarding exactly what authority an agency may have to terminate a grant are internal considerations for the agency itself.” …

    The President may determine his policy priorities and instruct his agents to make funding decisions based on them. President Trump has decided that equity isn’t a priority in his administration and so has directed his subordinates to terminate funding that supports equity-related projects to the maximum extent allowed by law. Whether that’s sound policy or not isn’t our call. We ask only whether the policy is unconstitutionally vague for funding recipients.

    The Supreme Court’s decision in NEA v. Finley provides the answer. There, the Court rejected a facial vagueness challenge to certain standards in the National Foundation on the Arts and Humanities Act. Those standards directed the National Endowment for the Arts’ chairperson “to ensure that ‘artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.’”

    The Court acknowledged that “[t]he terms of the provision are undeniably opaque, and if they appeared in a criminal statute or regulatory scheme, they could raise substantial vagueness concerns.” But it explained that, in the funding context, “when the Government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe.” “To accept [the] respondents’ vagueness argument,” continued the Court, “would be to call into question the constitutionality” of other government funding programs and awards based on “subjective criteria such as ‘excellence.’” …

    [2.] The court rejected a Free Speech Clause challenge to the “Certification Provision” of the second order, which instructs “[t]he head of each agency [to] include in every contract or grant award,”

    (A) A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of {the False Claims Act, which carries a civil penalty for knowingly making false statements}; and

    (B) A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.

    The court reasoned:

    [T]he Provision requires only that plaintiffs certify compliance with federal antidiscrimination laws, which the First Amendment doesn’t confer a right to violate. {The certification requirement also seemingly aligns with the Executive Order’s purpose: to enforce “[l]ongstanding Federal civil-rights laws [that] protect individual Americans from discrimination based on race, color, religion, sex, or national origin.”} … [P]laintiffs have no protectable speech interest in operating, and “no constitutional right to operate[,] DEI programs that violate federal antidiscrimination law.”

    Indeed, existing federal law already demands such compliance, and plaintiffs have not challenged existing law as viewpoint-discriminatory or as over or underinclusive. Plaintiffs suggest that defendants view all DEI programs as illegal under existing antidiscrimination law. Perhaps, but the Certification Provision doesn’t say that.

    What plaintiffs are really asking us to do is read subtext into the Provision’s text. And what they’re really challenging is how the Administration and its agency actors interpret antidiscrimination law in relation to plaintiffs’ DEI programming. Neither is fertile ground for a facial attack against the Certification Provision.

    Instead, we’re bound by the text. If the President, his subordinates, or another grantor misinterprets federal antidiscrimination law, plaintiffs “can challenge that interpretation in a specific enforcement action.” But we can’t conclude today that a “substantial number of the [Certification Provision’s] applications” will be unconstitutional.

    [3.] The court held plaintiffs lack standing to challenge the “Enforcement Threat Provision” of the second Executive Order, which

    tasked the “heads of all agencies, with the assistance of the Attorney General” to prepare a report, within 120 days of the Order, identifying “[a] plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated ‘DEI’ or otherwise) that constitute illegal discrimination or preferences.”

    The court reasoned largely that the provision itself didn’t do anything to plaintiffs—it only ordered agencies to prepare a report with planned steps, steps that could themselves later be challenged once they are implemented.

    [4.] Chief Judge Diaz filed a short concurrence:

    We’re presented today with a facial challenge to two Executive Orders concerning certain DEI programming, not the legality or termination of any particular DEI program. That makes all the difference.

    Defendants represented at oral argument that there is “absolutely” DEI activity that falls comfortably within the confines of the law. I hope that’s true. But the evidence cited by plaintiffs, their amici, and the district court suggests a more sinister story: important programs terminated by keyword; valuable grants gutted in the dark; worthy efforts to uplift and empower denigrated in social media posts.

    {The Administration’s obsession over so called “woke” DEI programs appears to know no bounds. This past December, Secretary of State Marco Rubio—who also serves as Acting National Security Advisor and Acting Archivist of the United States—somehow found time to rail against the Calibri typeface previously approved for State Department use by his predecessor. I kid you not.

    Secretary Rubio’s predecessor made the change to Calibri (a sans serif font) to help improve accessibility for those with dyslexia or other visual impairments. So why did Secretary Rubio decree otherwise? Primarily, for the entirely defensible reasons that (1) his preferred choice (Times New Roman 14, a classic serif font) presents a more professional and formal typography for diplomatic correspondence, and (2) use of the Calibri font had (at least in the State Department’s experience) not meaningfully improved reader accessibility.

    Had the Secretary left it there, I would applaud him, particularly since our court favors his font choice. But leave it there, he couldn’t. Instead, the Secretary lashed out at his predecessor for imposing yet another “illegal, immoral, radical [and] wasteful [diversity initiative]” before ordering Calibri’s demise. Sigh.}

    Cognizant of my oath, I’ve framed the limited question before us and answered it. And I’ve (reluctantly) left others for tomorrow.

    For those disappointed by the outcome, I say this: Follow the law. Continue your critical work. Keep the faith. And depend on the Constitution, which remains a beacon amid the tumult.

    [5.] Judge Allison Rushing concurred in part and in the judgment; she disagreed as to certain standing questions related to the certification provision—you can read her opinion, as well as more from the majority related to standing, here.

    Jacob Moshe Roth argued for the government.

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    Eugene Volokh

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  • The Real Target of Trump’s War on Drug Boats

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    In August, however, the hard-liners began to win out, according to someone with knowledge of the Administration’s internal deliberations. The shift seemed to mark a victory for Rubio. But the change didn’t reflect Rubio’s influence so much as the involvement of a new player in the policy fight: Stephen Miller, the President’s deputy chief of staff and the head of the White House Homeland Security Council. “Miller sided with Rubio not because of regime change,” the source told me. Rather, it was because Venezuela presented “an outlet for the belief that the President can just kill these guys” as part of an open-ended war on drugs and crime. “Stephen is a lot of the energy behind the bombings,” the source said. “He is owning the Western Hemisphere portfolio: immigration, security issues, and going after the cartels. He convenes working groups almost every day. He’s been very top-down with the Department of Defense about what he wants to see. Hegseth’s team just says ‘yes.’ They don’t push back. Miller got told no for similar stuff in the first term. He doesn’t have people there to say ‘No, this isn’t a good idea’ anymore.”

    For Miller, the military strikes help expand the President’s power, while also reinforcing the narrative of Venezuelan immigrants as “alien enemies.” As a former Trump Administration official put it, “this just feels like the militarization of domestic policy. How do you stay in power? You create an ‘other.’ You say that we’re under attack. You create a casus belli. You blame the other for everything. This is happening while you have the deployment of National Guardsmen to cities. You’re getting people used to these kinds of actions. This is expanding the definition of the use of force.”

    The implications of Trump’s use of the military, the former White House official said, are not lost on other Latin American countries, either. “If you’re Panama, you think this is about you. If you’re Colombia, you think it’s about you,” he told me. “You prove to the Mexicans that you’ll do what you say. The Brazilians thought this was about them. If you think it’s a signal, it is a signal.”

    In Trump’s first term, he asked his advisers whether the U.S. could conduct military strikes against Mexico, based on the premise that the country was principally to blame for America’s drug problems. “They don’t have control of their own country,” Trump told Mark Esper, his previous Secretary of Defense. As Esper later wrote in a memoir, Trump had repeatedly asked if he could “shoot missiles into Mexico to destroy the drug labs,” and proposed that, if necessary, it could be done “quietly.” “No one would know it was us,” Trump reportedly said.

    Trump was ultimately forced to relent after staunch opposition from the Department of Defense: the Mexican government was the U.S.’s largest trade partner and a muscular ally in limiting the spread of regional migration. By the start of 2023, though, the prospect of drastic action was becoming an increasingly mainstream position in the Republican Party. G.O.P. lawmakers in the House introduced, but failed to pass, an authorization for the use of military force against cartels, and they argued that the federal government should designate them as foreign terrorist organizations. Adding Tren de Aragua to this particular cause was a by-product of the 2024 Presidential campaign. In August, after a video from a housing complex in Aurora, Colorado, went viral, showing armed men alleged to belong to the gang, Trump began talking about the group constantly.

    Once he was back in office, Trump wanted to see more dramatic military action on the international stage. “There’s been an urge, an energy to do something aggressive and different,” the person with knowledge of the Administration told me. “It had to go somewhere. We were going to start killing cartel members. But there was a feeling that if we started to go kinetic in Mexico then that would have second- and third-order consequences that would be bad.”

    The Mexican government, for its part, was being quietly coöperative at the border, and the country’s President, Claudia Sheinbaum, was managing to balance public opposition to Trump with greater flexibility in private. Venezuela, by contrast, was an obvious target. “There wasn’t a direct risk because Venezuela isn’t on our border,” the person said. Maduro has viciously attacked political opponents and presided over the country’s economic collapse. During the past decade, nearly eight million people have fled. On October 10th, the Venezuelan opposition leader María Corina Machado was awarded the Nobel Peace Prize. She promptly dedicated it to Trump, whom she’s been trying to enlist for years to oust Maduro. “We all know that the head of Tren de Aragua is Maduro,” Machado told Donald Trump, Jr., on his podcast in February. “The regime has created, promoted, and financed Tren de Aragua.” Under Maduro, she added, the country has become a “refuge for terrorists, drug cartels, and groups like Iran, Hezbollah, Hamas, and China.”

    When the U.S. struck the first Venezuelan boat, in September, one detail immediately caught the attention of former government officials: eleven people were said to have been on board. In drug-running operations, it is highly unusual for so many passengers to be on a single vessel. “There’s almost always three or four: a navigator, a pilot, and a person to put gas in the boat,” Story told me. “There are never eleven people on a drug boat because each person is drugs that you can’t transport.”

    It was possible that some men on the boat were involved in trafficking and that others were simply hitching a ride. The boat was intercepted off the northern coast of Venezuela, near a small fishing town called San Juan de Unare, which, in the past two decades, has become a transit point for the smuggling of cocaine and marijuana. One Venezuelan woman told the Times that her husband, a fisherman, left for work and never returned. In the immediate aftermath of the bombing, the families of the men killed posted testimonials on social-media accounts. But the Venezuelan government, for reasons that remain unclear, appears to have pressured them to take down their accounts. “This is the problem with the situation,” Ronna Rísquez, a Venezuelan crime journalist, told me. “Both governments”—the U.S. and Venezuela—“like to lie.”

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    Jonathan Blitzer

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  • ACLU seeks release of Michigan immigrant held in custody despite life-threatening leukemia

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    Federal authorities refuse to release a Michigan man in a pending deportation case, despite his life-threatening leukemia and the inconsistent health care he’s received while in custody since August, his lawyer said Thursday.Related video above: Massachusetts city council passes resolution barring police from assisting ICEThe American Civil Liberties Union of Michigan is seeking a bond hearing for Jose Contreras-Cervantes, which could allow him to return to his Detroit-area family and doctors while his case winds through immigration court. He’s currently being held at a detention center about three hours away.Contreras-Cervantes, a 33-year-old married father of three who has been living in the U.S. for about 20 years, but not legally, was arrested at an Aug. 5 traffic stop in Macomb County, near Detroit. He had no criminal record beyond minor traffic offenses, said ACLU lawyer Miriam Aukerman.Contreras-Cervantes was diagnosed last year with chronic myeloid leukemia, a life-threatening cancer of the bone marrow, said his wife, Lupita Contreras.”The doctor said he has four to six years to live,” she said.His detention is a consequence of the Trump administration’s policy of refusing to agree to bond hearings for immigrants if they entered the U.S. illegally, even if they lack a criminal record. The policy is a reversal of past practices and it has been successfully challenged, including this week in Washington state.”We don’t just lock people up and throw away the key,” Aukerman said. “Judges decide who should be behind bars. That is true for citizens and noncitizens. … Immigration cases can take months or even years.”U.S. Immigration and Customs Enforcement had no immediate comment on the case.Contreras-Cervantes was shuttled from Michigan to Ohio and then back to Michigan and didn’t receive medication for 22 days, his wife said.He is now getting a substitute medication at North Lake Processing Center, a privately operated detention center in Baldwin, Michigan, not the specific medication recommended by his doctors, Aukerman said.The ACLU filed a petition Monday in U.S. District Court in Detroit, asking a judge to order bond hearings for Contreras-Cervantes and seven other people who are in custody.”What the (Trump) administration is doing is trying to crush people’s spirits, make them give up,” and agree to deportation, Aukerman said. “We’re saying no. They’re entitled to due process.”

    DETROIT —

    Federal authorities refuse to release a Michigan man in a pending deportation case, despite his life-threatening leukemia and the inconsistent health care he’s received while in custody since August, his lawyer said Thursday.

    Related video above: Massachusetts city council passes resolution barring police from assisting ICE

    The American Civil Liberties Union of Michigan is seeking a bond hearing for Jose Contreras-Cervantes, which could allow him to return to his Detroit-area family and doctors while his case winds through immigration court. He’s currently being held at a detention center about three hours away.

    Contreras-Cervantes, a 33-year-old married father of three who has been living in the U.S. for about 20 years, but not legally, was arrested at an Aug. 5 traffic stop in Macomb County, near Detroit. He had no criminal record beyond minor traffic offenses, said ACLU lawyer Miriam Aukerman.

    Contreras-Cervantes was diagnosed last year with chronic myeloid leukemia, a life-threatening cancer of the bone marrow, said his wife, Lupita Contreras.

    “The doctor said he has four to six years to live,” she said.

    His detention is a consequence of the Trump administration’s policy of refusing to agree to bond hearings for immigrants if they entered the U.S. illegally, even if they lack a criminal record. The policy is a reversal of past practices and it has been successfully challenged, including this week in Washington state.

    “We don’t just lock people up and throw away the key,” Aukerman said. “Judges decide who should be behind bars. That is true for citizens and noncitizens. … Immigration cases can take months or even years.”

    U.S. Immigration and Customs Enforcement had no immediate comment on the case.

    Contreras-Cervantes was shuttled from Michigan to Ohio and then back to Michigan and didn’t receive medication for 22 days, his wife said.

    He is now getting a substitute medication at North Lake Processing Center, a privately operated detention center in Baldwin, Michigan, not the specific medication recommended by his doctors, Aukerman said.

    The ACLU filed a petition Monday in U.S. District Court in Detroit, asking a judge to order bond hearings for Contreras-Cervantes and seven other people who are in custody.

    “What the (Trump) administration is doing is trying to crush people’s spirits, make them give up,” and agree to deportation, Aukerman said. “We’re saying no. They’re entitled to due process.”

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  • Immigrants arrested during federal takeover of D.C. police are suing ICE and other federal agencies

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    In August, President Donald Trump instituted a federal takeover of the D.C. police department after declaring a “crime emergency” in the city. Thousands of federal law enforcement officers and National Guard members were deployed, resulting in a surge of not only criminal arrests but also civil immigration arrests. Over 40 percent of the arrests made during Trump’s 30-day federal takeover of D.C. were immigration related, according to the Associated Press. Now, a lawsuit is challenging these arrests, saying that many of them violated federal law.

    The lawsuit, filed on Thursday in the United States District Court for the District of Columbia by four plaintiffs and CASA, a national immigration rights organization, alleges that federal immigration officers did not follow proper procedures when making arrests during Trump’s D.C. crackdown. Although immigration agents are allowed to make an immigration arrest without a warrant, the officer must have “reason to believe” that the individual is in the U.S. in violation of any immigration law or regulation and is likely to escape before a warrant can be obtained. This “reason to believe” standard is considered equivalent to probable cause in immigration cases.

    Four of the five named plaintiffs in the case were arrested without a warrant, detained, and ultimately released on immigration charges during Trump’s federal takeover. In each instance, federal officers failed to either inquire about the plaintiff’s legal status or assess whether they were a flight risk, or both, before making an arrest. 

    One plaintiff, Jose Escobar Molina, was approached and immediately handcuffed by plainclothed unidentified federal agents outside of his apartment building on the morning of August 21, despite having a valid Temporary Protected Status for El Salvador since 2001 and living in D.C. for 25 years. The officers did not have a warrant and never asked for Escobar Molina’s name, identification, immigration status, or about his ties to the community—ties that are often used to assess whether someone is a flight risk. 

    According to the lawsuit, when he told the officers that he had legal immigration status, they replied, “No you don’t. You are illegal.” After being put into a vehicle, he pressed the issue again and told the officers he had “papers.” To which the driver responded by yelling, “Shut up, bitch! You’re illegal.” 

    After spending the night in immigration detention, an Immigration and Customs Enforcement supervisor realized that Escobar Molina did, in fact, have legal status, and he was finally released. 

    Another plaintiff, named only as “N.S.” in the suit, spent nearly four weeks in immigration detention before being released, despite having a pending asylum application after fleeing Venezuela. Federal agents arrested N.S. in a Home Depot parking lot without asking any questions about where he lived, for how long, or anything else about his ties to the community. Without making an individualized determination as to whether he posed a flight risk, federal officers “pulled N.S. out of the driver’s seat, threw him against the car, handcuffed him, and provided him a clear bag in which to place his belongings, before placing him in the back of a van,” according to the complaint. 

    Both men, along with the other plaintiffs arrested without a warrant, now live in fear of being arrested and detained again as immigration arrests continue in the nation’s capital.   

    In a post on X, the Department of Homeland Security (DHS) asserted that the lawsuit’s allegations are “disgusting, reckless, and categorically FALSE,” and defended DHS law enforcement’s use of “reasonable suspicion” to make arrests, rather than conducting “indiscriminate stops.” 

    But the issue at the heart of the complaint is not whether the officers had the “reasonable suspicion” to make the stops—stops that Supreme Court Justice Brett Kavanaugh wrote could be made by considering factors like race, ethnicity, and speaking Spanish—but whether officers had probable cause to make the warrantless arrests that followed. 

    “They’re not even doing the bare minimum as far as asking individual questions about a person’s immigration status,” CASA Legal Director Ama Frimpong, told The Washington Post. 

    Federal law requires immigration officers to have “reason to believe” an individual is both in violation of an immigration law and is likely to escape before a warrant can be obtained. These measures are in place to protect individuals from wrongful arrest and detention. But clearly, laws meant to protect people’s rights are dispensable when standing in the way of Trump’s mass deportation goals. 

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    Autumn Billings

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  • Perils of the Pentagon’s Plan to Use Military Lawyers to Adjudicate Immigration Cases

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    NA

    The Pentagon is planning to divert up to 600 military lawyers (known as “JAGs” – members of the Judge Advocate General’s corps) to serve as temporary immigration judges. The idea is to dispose of immigration cases faster.  As Samantha Michaels explains in a helpful Mother Jones article, this is illegal, and is likely to lead to poor decisions in immigration cases, given that most JAG lawyers lack relevant expertise:

    The Trump administration has decided to get more immigration judges from an unprecedented source: the military.

    On Tuesday, the Associated Press reported that the Pentagon plans to send up to 600 military lawyers to the Justice Department to temporarily run immigration courts around the country. Some of them could receive their new assignments as early as next week.

    The arrangement would help the Trump administration tackle a backlog of immigration cases. But military lawyers have little or no experience with immigration law. And some former military lawyers worry the plan isn’t even legal. It “should raise all sorts of alarms,” Daniel Maurer, a former Army attorney who also taught law at West Point, told me recently.

    I spoke with Maurer in July, after President Trump first hinted that he’d be open to the idea of deploying military attorneys—known as Judge Advocate Generals, or JAGs—as immigration judges in Florida. That idea, floated by Gov. Ron DeSantis, hadn’t yet come to fruition. “There is no clear precedent for what DeSantis and the president are doing,” Mark Nevitt, a law professor at Emory University who served as a Navy JAG, told me at the time.

    “This would be unlawful,” added Rachel VanLandingham, a professor at Southwestern Law School in Los Angeles who was an Air Force JAG.

    In particular, VanLandingham said, turning military lawyers into immigration judges would likely violate the Posse Comitatus Act, a federal law that bars US troops from participating in civilian law enforcement or “executing the laws,” unless otherwise authorized to do so by the Constitution or Congress. It’s “frightening,” VanLandingham said of the plan, because “the use of military courts to hear civilian cases is the essential component of martial law.”

    Current and former JAG lawyers have suggested to me that this move could also undermine military readiness, and impair the military justice system. The 600 JAGs the Pentagon may reassign to this function are a substantial proportion of the armed forces’ total of 7300 JAG lawyers. JAGs serving as immigration judges are obviously not performing their regular functions, and those functions may end up getting neglected.

    I would add that there is a more fundamental constitutional problem here: migrants threatened with detention or deportation – like others threatened with severe deprivations of liberty by the government – should have their cases adjudicated by impartial, neutral judges, not people subject to removal and other discipline by the very executive branch authority that filed the case against them. I think most military lawyers would strive hard to be fair, and I have great respect for the JAGs I have met over the years, including a number of my former students. But the threat of retaliation for decisions the administration doesn’t like creates a dangerous incentive structure.

    Sadly, this problem is not limited to JAGs who may potentially act as immigration judges. Even in normal times, many immigration cases are heard to by executive branch “judges” subject to removal by the Justice Department. Earlier this year, Trump fired numerous executive-branch immigration judges who the administration believed were not on board with its draconian deportation agenda.

    The Due Process Clause of the Fifth Amendment mandates that government cannot deprive people of life, liberty, or property without due process. Detention and deportation are obvious severe deprivations of liberty. And there is no exemption for immigrants or non-citizens. During the Founding era, it was generally understood that the Due Process Clause applies even to non-US citizen pirates captured in international waters. If so, it also applies to migrants within the US.

    Adjudication by an official subject to being fired or disciplined for making decisions the executive doesn’t like is obviously inimical to due process – whether the “judge” is a military JAG officer or a civilian executive branch employee. As the Supreme Court put it in Marshall v. Jerrico (1980), “[t]he Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decisionmaking process.” A judge under the control of the executive cannot be genuinely “impartial and disinterested,” since he or she has an obvious interest in catering to the preferences of superiors.

    Conservatives readily see this problem in areas outside the immigration context, as when executive-branch agencies adjudicate civil penalties for violations of economic regulations. In such cases, they rightly argue there are violations of due process, and of the Seventh Amendment’s guarantee of a jury trial in civil cases where significant penalties are at stake. Immigration detention and deportation imperil liberty and property rights at least as much as any economic regulation, and often much more.

    Unfortunately, due process is one of a number of areas where the courts have allowed double standards under which immigration restrictions are to a large extent exempt from constitutional restraints that apply to all other government policies. That double standard should be ended. The administration’s plan to use military JAGs as immigration judges is a particularly egregious tip of a much larger iceberg.

    UPDATE: I have made a few additions to this post.

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    Ilya Somin

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  • Major gun-rights groups oppose the Trump administration’s idea to ban trans people from owning guns

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    The Trump administration’s reported proposal to ban transgender people from owning guns has drawn condemnation from the National Rifle Association (NRA) and every other notable gun-rights group in the country.

    The Daily Wire first reported Thursday, based on anonymous Justice Department sources, that senior officials in the department are considering using their rulemaking authority to declare that trans people are mentally ill, stripping them of their Second Amendment rights. Other major news outlets rereported the story.

    The Justice Department hasn’t issued any such rule yet, or attached a name to any of the statements leaking out to the press, so this all amounts to more of a trial balloon. But as Reason‘s Jacob Sullum wrote, the idea is “legally loony.” There is no statutory authority for such a categorical decree. Even if Congress did pass such a law, it would be unconstitutional based on current Supreme Court precedent and prevailing circuit court opinions.

    If the Trump administration was hoping to get a pass from gun-rights groups over these small details, it will be disappointed. Categorical bans—issued by executive fiat no less—have been a red line for pro-Second Amendment groups and lawmakers for decades.

    “The NRA supports the Second Amendment rights of all law-abiding Americans to purchase, possess and use firearms,” the organization posted Friday on X. “The NRA does not, and will not, support any policy proposals that implement sweeping gun bans that arbitrarily strip law-abiding citizens of their Second Amendment rights without due process.”

    Stephen Gutowski, an independent journalist covering gun rights and the gun industry, reported that the NRA wasn’t alone: “Every major gun-rights group has now spoken against the idea of the DOJ trying to strip trans people of their gun rights en masse,” he posted on X Friday.

    Gutowski’s tally included Gun Owners of America, the Second Amendment Foundation, the Firearms Policy Coalition, the National Association for Gun Rights, and the Citizens Committee for the Right to Keep and Bear Arms.

    “Disarming trans individuals based purely on their self-identification flies in the face of the Constitution and the current administration’s purported support for the Second Amendment,” the Second Amendment Foundation said in a statement to Newsweek. “Beyond the bad policy and constitutional infirmities of such ‘considerations’ the Department of Justice has no authority to unilaterally identify groups of people that it would like to strip of their constitutional rights. SAF sincerely hopes that the reports of such considerations by the DOJ are inaccurate, as the policy reportedly being contemplated is worthy of the strongest possible condemnation and legal action.”

    Second Amendment groups often remind gun-control advocates that, historically, things don’t tend to go well for minority groups after they’re disarmed by the government, so it’s good to see them presenting a united front against just such a proposal.

    If the Trump Administration has any ability to read the room, it will quietly forget about its idea to illegally strip a group of Americans of their constitutional right to bear arms.

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    C.J. Ciaramella

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  • Judge blocks Trump admin. from expanding fast-track deportations nationwide

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    A federal judge on Friday blocked a Trump administration effort to expand fast-track deportations throughout the U.S. under a process known as expedited removal, indicating that officials are trampling on migrants’ due process through the policy’s expansion.

    While it will almost certainly be appealed, Friday’s order is a major setback for the Trump administration’s mass deportation efforts, including its campaign to arrest asylum-seekers at immigration courthouses across the U.S. — an operation that has relied on the expansion of expedited removal.

    The ruling by U.S. District Judge Jia Cobb paused a January directive that had expanded the expedited removal policy — long limited to border areas and recent arrivals — to anywhere in the country and to those who arrived in the past two years.

    Expedited removal allows federal immigration officials to quickly deport certain migrants, without allowing them to see an immigration judge, unless they claim asylum and pass an interview with a U.S. asylum officer. Before President Trump took office for a second time, the fast-track deportations only applied to unauthorized migrants apprehended within 100 miles of an international border and who had been in the U.S. for less than two weeks.

    Cobb said the pro-immigrant advocates who challenged the legality of the nationwide expansion of expedited removal had made a “strong showing” that the effort “violates the due process rights of those it affects.”

    “In so holding, the Court does not cast doubt on the constitutionality of the expedited removal statute, nor on its longstanding application at the border,” Cobb wrote in her opinion. “It merely holds that in applying the statute to a huge group of people living in the interior of the country who have not previously been subject to expedited removal, the Government must afford them due process. The procedures currently in place fall short.”

    Cobb indefinitely postponed the January expansion of expedited removal, and guidance issued to implement it.

    Representatives for the Department of Homeland Security did not immediately respond to a request for comment on Friday’s order.

    Infectious diseases doctor warns of public health consequences from CDC shakeup

    Unseen Beatles photos taken by Paul McCartney show band before fame

    9-year-old boy opens a “compliment stand” to boost people’s self esteem

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  • Compensation for legal fees is a critical protection against civil forfeiture abuses

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    On a Friday in March 2021, Brian Moore, an aspiring rap artist, was about to catch a flight from Atlanta to Los Angeles, where he planned to produce a video that he hoped would promote his musical career. To pay for the video, he was carrying $8,500 in cash, money he had inherited from his late grandfather.

    Federal drug agents put an end to Moore’s plan by taking his money, which they vaguely alleged was connected in some way to illegal drug activity. What happened next illustrates the importance of legal safeguards against the dangers posed by civil forfeiture, a system of legalized larceny that authorizes law enforcement agencies to pad their budgets by seizing supposedly crime-tainted assets without filing criminal charges, let alone obtaining a conviction.

    While profit-motivated law enforcement agencies tend to portray it as inherently suspicious, there is nothing illegal about traveling with large sums of cash. And although the government claimed a drug-detecting dog “alerted” to Moore’s money, that is less incriminating than it sounds, since research has found that most U.S. currency contains traces of cocaine.

    The government’s evidence was so weak that it decided to drop the case after Moore challenged the seizure in federal court. Moore got his money back, but he was still out thousands of dollars in legal fees until last week, when the U.S. Court of Appeals for the 11th Circuit ruled that he was entitled to compensation for those expenses.

    Unlike criminal defendants, civil forfeiture targets have no right to court-appointed counsel, which helps explain why they usually give up without a fight. According to one estimate, more than nine out of 10 federal civil forfeiture cases are resolved without judicial involvement.

    Challenging a forfeiture is a complicated and daunting process that is very difficult to navigate without a lawyer. But the cost of hiring one typically exceeds the value of the seized property, meaning forfeiture targets can lose even when they win.

    Congress tried to address that problem by passing the Civil Asset Forfeiture Reform Act (CAFRA), a 2000 law that says “the United States shall be liable for reasonable attorney fees” whenever a property owner “substantially prevails” in a federal forfeiture case. But when Moore got his money back and sought $15,000 to pay his lawyers, U.S. District Judge Thomas W. Thrash Jr. ruled that he was not entitled to compensation under CAFRA because he had not met that standard.

    Under Moore’s contingency fee agreement with his lawyers, that decision left him on the hook for one-third of the money he had recovered. But with pro bono help from the Institute for Justice, Moore appealed Thrash’s ruling, and a three-judge 11th Circuit panel unanimously concluded that the judge had misapplied CAFRA.

    The government’s prospects of winning at trial were so iffy that the Justice Department asked Thrash to dismiss the case with prejudice, precluding any future attempt to confiscate his money. According to the 11th Circuit, that judicially endorsed outcome was enough to conclude that Moore had “substantially prevail[ed].”

    “We’re pleased to see Brian made whole after years of litigation, but his case highlights the abusive civil forfeiture tactics used by the federal government, which will litigate a case against a property owner for years and then voluntarily dismiss the case on the eve of the government’s defeat,” says Institute for Justice Senior Attorney Dan Alban. “Without the ability to recover their attorneys’ fees after victory, most property owners cannot afford to defend their property from forfeiture”—a reality that motivated the “critical protections for property rights” that Congress approved in 2000.

    “It’s a huge relief to have the court agree that I should get all my money back,” Moore says. “Even though the government couldn’t say what I did wrong and dropped the case, I was going to lose thousands of dollars. I hope that my victory can pave the way for others to get justice without paying a price.”

    © Copyright 2025 by Creators Syndicate Inc.

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    Jacob Sullum

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  • Georgia woman could lose $30,000 after local government denies her permit to open hair salon

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    When Khalilah Few opened her salon, Creative Crowns Collective, in 2023, she didn’t think her business savvy would put her at odds with the local government. But two years later, she now finds herself in a legal battle with Clayton County, Georgia. 

    After outgrowing her original studio space, Few signed a two-year lease for a new salon housed in an old barbershop in Jonesboro, a city in Clayton County, in March. She invested over $30,000 into the property and applied for a Conditional Use Permit (CUP) in April to open her salon. Despite meeting the legal requirements for a permit, the Clayton County Zoning Advisory Board and the Board of Commissioners denied Few’s application in July. 

    Instead of the law, county officials cited a “saturation” of similar businesses in a 5-mile radius, arguing the salon would not “grow Clayton County smartly.” Commissioner DeMont Davis, whose fourth district includes the new location of the salon, even noted that Few’s plan “does align” with the county’s economic development plan but still voted against it, saying Few’s business was “just in the wrong area.”

    Few has filed a lawsuit against Clayton County, alleging violations of the Due Process and Equal Protection clauses of the Georgia Constitution. Jessica Bigbie, an attorney at the Institute for Justice (I.J.), which is representing Few, tells Reason that “nothing in the ordinance or the law says anything about smart growth being a basis to deny a permit.”

    Throughout the process, Few says county staff gave “vague” responses when asked about requirements and reasons for denial. She tells Reason the first time she heard about “oversaturation” was when she attended her meeting with the zoning advisory board. “What’s frustrating and infuriating about this process is I asked questions, I directly asked, ‘What are some reasons that this application can be denied?’” She says, she “wanted to be prepared.” 

    Clayton County officials did not respond to Reason‘s request for comment.

    Few’s hurdles can be traced back to 2024, when Clayton County amended its municipal code and designated District 4, where the proposed salon is located, as a General Business Zoning District with a Business Corridor Overlay District. This overlay permits some businesses to open without a CUP while requiring one for others. Personal service establishments, such as dry cleaners or watch repair shops, typically do not require a CUP, whereas hair salons do.

    The county’s CUP criteria for District 4 appear arbitrary, as they treat similar businesses unevenly. Day cares and dance/music schools are permitted, but gyms and places of worship are conditional. Counterintuitively, even potentially hazardous companies, such as research labs, are permitted.

    To get a CUP, applicants must meet with the Technical Review Committee, community residents, and the Zoning Advisory Group, then attend a final hearing before the County Board of Commissioners. The board considers the application’s proper filing, the Zoning Advisory Group’s recommendation, compliance with permit conditions, and consistency with the ordinance’s purpose and intent. They also weigh the benefits against potential harm to properties or the county and can impose reasonable conditions to ensure public health, safety, and welfare.

    Few’s salon met the permit conditions, and she provided county staff and the commissioners with not only her application but a presentation detailing her alignment with the county’s 2039 comprehensive development plan as well as Davis’ stated economic priorities. She also had “over 50 letters of support,” yet none of that mattered. “I think you have a fabulous business,” said Davis. “You have a fabulous personality, and I love what you bring, and you actually hurt my heart right now, but we’ve got to deny,” he added. 

    “The Board of Commissioners concedes that the salon fits the plan; it’s a good business, she’s doing the right thing, she is just not doing it where they want her to do it,” says Bigbie. “The government shouldn’t be stopping legitimate businesses from opening to stop them from competing with others.”

    Clayton County officials have denied several other potential salon owners a CUP since the passage of the 2024 ordinance. Lea Bakam, who owned LeNa Braiding, tells Reason she was denied a CUP on June 17 after spending “more than $35,000” fixing up a salon in Clayton County. Like Few, Bakam presented the board of commissioners with her business plan and letters of support. Yet, in denying the permit, Davis again noted that the area was “extremely saturated with salons.” 

    The Georgia Supreme Court has already ruled, in Raffesnber v. Jackson (2023), that it is a violation of due process rights when governments restrict the pursuit of “lawful occupation of their choosing free from unreasonable government interference.” I.J. prevailed in a similar case in Fulton County, Georgia—Diagne v. City of South Fulton (2024)—in which the Fulton County Superior Court struck down the town’s attempt to block Awa Diagne from opening a salon. The court found that the county’s denial of a permit ran “contrary to Georgia’s long history of constitutional jurisprudence.”

    Few has filed for an interlocutory injunction to continue working while her court case is pending. Clayton County must respond to her lawsuit by September 18.

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    Tosin Akintola

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  • Florida Woman Seeks Jail Release On Behalf Of Illegally Detained Fetus

    Florida Woman Seeks Jail Release On Behalf Of Illegally Detained Fetus

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    A pregnant Florida woman awaiting trial on a charge of second-degree murder is arguing her unborn fetus ― which hasn’t been charged with any crime ― is being illegally detained and should be released from jail.

    In an emergency petition filed last week on behalf of “UNBORN CHILD,” attorney William Norris argued the Miami-Dade Department of Corrections and Rehabilitation has failed to provide adequate prenatal care for Natalia Harrell and his client, her 8-month-old fetus.

    “An unborn child is a person,” Norris told NBC Miami. “A person has constitutional rights and one of them is the right not to be deprived of liberty without due process of law.”

    “I am asserting the right of someone who is a person who has not been considered in the decision to incarcerate his mother,” the lawyer added.

    The corrections department has failed to provide sufficient prenatal vitamins and nutritious food, didn’t take Harrell to scheduled doctor’s appointments, and at one point left the pregnant woman in a 100-degree transport van without air conditioning, the petition alleged.

    Norris said Harrell was last seen by an OB-GYN doctor in October. He said he filed the petition after the father contacted him with concerns about his future child’s well-being.

    The corrections department disputed the allegations about its care for the inmate, saying in a statement that it’s “committed to ensuring all inmates receive professional, timely medical care and all appropriate treatment.”

    Florida Attorney General Ashley Moody argued Monday for the petition’s dismissal, citing a lack of evidence that Harrell has been mistreated.

    Harrell, 24, has been held without bond in the county jail system since July, when she was accused of fatally shooting fellow Uber passenger Gladys Yvette Borcela amid an argument after a night out in Miami.

    She’s pleaded not guilty and is scheduled for a trial in April.

    “Miss Harrell hasn’t been convicted of anything,” Norris told ABC affiliate Local10 in an interview about the potentially precedent-setting case.

    “She’s been accused,” he continued, “but she has a stand-your-ground immunity defense that her criminal attorney is going to assert. So her conviction is by no means certain.”

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