In Chiles v. Salazar, 607 U.S. ___, 146 S.Ct. 1010 (March 31, 2026), slip opinion accessible here, the Supreme Court invalidated Colorado’s ban on providing conversion therapy to minor patients as violative of the Free Speech Clause. In a precursor to the ruling, National Institute of Family and Life Advocates v. Becerra, 585 U.S. 755, […]
In holding that law enforcement officers could not place listening devices on the outside of a public phone booth without a warrant, the Supreme Court famously proclaimed: “The Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351 (1967). That insight provides perspective on two recent decisions regarding the collection and […]
Upon returning to the presidency, Donald Trump appointed Elon Musk as a temporary employee to head a “Department of Governmental Efficiency” (“DOGE”), using the structure of the United States Digital Service, a previously innocuous the White House entity. Executive Order, Establishing And Implementing The President’s “Department Of Government Efficiency,” §2(a) & (b) (Jan. 20, 2025).[1] […]
The Trump Administration recently contemplated issuing an executive order aimed at combatting state restrictions on the development of artificial intelligence (“AI”), but has, for the moment ceased work on the executive order. The Order, which could be resurrected, would have directed the Attorney General to assemble a task force of Department of Justice lawyers to […]
The Trump Administration recently contemplated issuing an executive order aimed at combatting state restrictions on the development of artificial intelligence (“AI”), but has, for the moment ceased its efforts. The order would have directed that Attorney General to assemble a task force to challenge state laws regulating artificial intelligence, including mounting challenges based on the […]
According to news reports, the Trump Administration recently contemplated issuing an executive order aimed at combatting state restrictions on the development of artificial intelligence (“AI”). A leaked draft has been widely discussed in the press (and, indeed, is available on-line).[1] The Administration has reportedly decided to cease work on the executive order,[2] but could resurrect […]
A person, let’s call him John Doe, sees a damaging news report about himself, and suspects it is based on a federal official’s leak of information from a dossier on him compiled by a government agency. Doe brings a Privacy Act case against the relevant agency. Can Doe subpoena the journalist or news organization that […]
Should a court dismiss a lawsuit challenging a federal agency’s action because a tribal authority is a Rule 19 “required party,” Fed. R. Civ. P. 19(a), not subject to mandatory joinder due to tribal sovereign immunity? This question is raised in a currently pending certiorari petition. Maverick Gaming LLC v. United States, Dkt. No. 24-1161 […]
Access to government records is important for the general public in terms of governmental accountability and democratic governance, but may also be critical to assertion of a valid claim or defense in administrative proceedings or in assessing a potential legal challenge on behalf of an individual.[1] The Privacy Act, 5 U.S.C. § 552a, generally mandates […]
On July 18, a D.C. Circuit panel decided that an agency could invoke Freedom of Information Act (“FOIA”) Exemption 1 (the national security exemption), even though it had not met some of the procedural requirements related to classification set forth in Executive Order 13,526. Project for Privacy and Surveillance Accountability v. Department of Justice, slip […]
I have recently posted on SSRN my addition the Loper Bright literature, entitled Loper Bright: Resurrecting Skidmore in a New Era, 55 Seton Hall L. Rev. 1577 (2025)(“Resurrecting Skidmore“).[1] The piece discusses the Loper–Bright-resurrected Skidmore deference regime in terms of textualism, the major questions doctrine, and stare decisis (i.e., the continuing validity of judicial Chevron-based […]
Summary: This post explores and assesses Justice Kavanaugh’s challenge to the veterans benefit canon of statutory construction, and similar substantive interpretive canons regarding entitlements or benefits legislation. In the midst of the major decisions the Supreme Court handed down last term, it was easy to miss Rudisil v. McDonough, 601 U.S. 294 (2024), especially a […]
Recently, as noted in this blog, a Fifth Circuit panel considered whether the names and email addresses of low-level federal employees who worked on climate change issues must be provided to a Freedom of Information Act (“FOIA”) requester. The divided panel issued a strong pro-transparency decision, concluding that government employees, even low-level ones, generally lack […]
This is the third of three posts assessing Judge Aileen Cannon’s dismissal of an indictment against Donald Trump and his two co-conspirators because Jack Smith was unconstitutionally appointed as a special counsel. This three-part series has focused on the appropriateness of the Judge’s wholesale invalidation of the Special Counsel’s action. As noted in my initial […]
This is the second of three posts assessing Judge Aileen Cannon’s dismissal of an indictment against Donald Trump and two co-conspirators upon finding the Attorney General’s appointment of Jack Smith violated the Appointments Clause. This three-part series assumes that Judge Cannon correctly decided the constitutional question and, instead, assesses the appropriateness of the Judge’s wholesale […]