classic 10th Amendment issue
Civil Rights Lawyer | Personal Views | Not Legal Advice | https://as.tufts.edu/politicalscience/people/faculty/matthew-segal
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classic 10th Amendment issue
On the one hand this makes sense in light of the federal government’s behavior. On the other hand it’s absurd that we are moving toward a system of vaccine federalism.
A federal judge in D.C. now says DOJ has missed its deadline -- by an hour-and-a-half -- for confirming that it has removed unaccompanied children it planned to deport from the aircraft that were to carry them to Guatemala. The judge also ordered DOJ to explain why it missed the deadline.
Pour one out for Judge Sparkle Sooknanan’s clerks this Labor Day weekend
Can we stop to talk about how remarkable the timing was? Compliant at 1am, Judge engaged at 2am, ex parte call to the Government at 2:30am (they did not answer), TRO at 4am? On a Sunday of a holiday weekend?!
This case raises a broader point: In many contexts, there is little reason for state courts to defer to SCOTUS's holdings bc those holdings do not hinge on the meanings of words but instead on SCOTUS's assessment of social facts (e.g., how to construe a suspect's ambiguous statements).
Sooknanan talks about crafting her TRO to ensure that the children aren't removed until briefing is complete and she can rule. I do not want there to be any ambiguity about what I am ordering or what the government is to do down the road, she says.
ENSIGN says all 600 children in question are still in the United States, planes are grounded and will not leave while the judge's order is in place. He said it's possible one had taken off and was returned. www.politico.com/news/2025/08...
It’s funny what a big deal a ruling like this is and how surprised the public would be to see what standard is typically applied.
MAINE SUPREME JUDICIAL COURT: *ME Constitution provides greater protection against self-incrimination than U.S. Constitution. *Any waiver of that protection must be "clear and unequivocal." *Officers must "stop to clarify" ambiguous waivers. www.courts.maine.gov/courts/sjc/l...
The actions of ICE and other federal agencies under Trump are a sad reminder that the early 2020s were a huge missed opportunity to improve policing. No narrowing of QI. No extending §1983 to federal officers. Scarce improvements in federal search-and-seizure jurisprudence. Now look.
The judge spurned the Trump administration's expedited removal policy, calling out their violation of immigrants' rights in a mad dash to carry out President Trump's mass deportation agenda. We celebrate this victory and we'll keep fighting to defend immigrants' fundamental right to due process.
🎁link for terrific op-ed by @hbwhbwhbw.bsky.social Her point is such an important one: the Trump administration is destroying the government's data collecting capacities as part of its war on inconvenient facts. www.nytimes.com/2025/08/29/o...
This is the highest average daily detained population in ICE’s history.
We just prevailed in our case against Trump's massive IEEPA tariffs, in the Federal Circuit! All challenged IEEPA tariffs ruled illegal, but scope of injunction TBD. Will have more to say later. Here is a link to the ruling (7-4 decision by en banc court): www.cafc.uscourts.gov/opinions-ord...
BREAKING: Federal Circuit, 7-4, rejects Trump’s tariffs under the IEEPA, affirming the lower court’s decision against Trump. www.cafc.uscourts.gov/opinions-ord...
That assumption seems fairer, at this point, than the reverse.
From LLMs to social media to podcasts to classrooms, environments in which people can seek and obtain routine validation of their views seem to be huge impediments to critical thinking.
Bradley says she is retiring because being on the court is not "the best path to rebuild the conservative movement," which feels like quite a thing to say outloud as a sitting judge. (Though not surprising.)
In the Mississippi legislative redistricting case, the state is asking SCOTUS to take up the question of whether Section 2 can be enforced by voters through a private right of action. Case is a direct appeal from the ruling of a 3-judge panel. www.supremecourt.gov/DocketPDF/25...
If you think First Amendment protection should depend on "social value," you're gonna have a real bad time.
People also seem to be arguing that *LLMs* lack speech rights, which is true but irrelevant. But yes, it all seems to arise from a view that these things are net negatives so therefore must be proscribable.
Yeah, people are having a real hard time thinking this through. Suppose someone builds a machine that spits out words, calls it art, and puts it in a museum. Can the govt ban it? Okay how is an LLM different?
The National Guard is not just a mindless obedient tool; it's made up of people with families & responsibilities at home that they are missing to ::checks notes:: clean up parks while needlessly carrying weapons in a city they don't live in. Trump's actions are wildly unpopular. This matters.
Top CDC leaders leave as the director is pushed out. They say RFK Jr. and the Trump regime are “weaponizing public health” and “generating materials that do not reflect scientific reality” www.nbcnews.com/health/healt...
BREAKING: Judge Xinis issues order barring Trump administration from deporting Kilmar Abrego Garcia “until further order of the Court.” The admin stated earlier that it would not deport him during this habeas consideration. Also per today’s order, the habeas hearing is set for Oct. 6.
until now, grand juries have been the least effectual check on government power; who would have guessed they would step up to hold the line?
Interesting that the Trump admin seems to be wearing out its welcome with district court judges and grand jurors, who are closer to the facts than, say, SCOTUS justices.
"Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority." — Duncan v. Louisiana, 391 U.S. 145 (1968).
What an image (J. Scott Applewhite, AP)
In the criminal justice system, the people are represented by two separate, yet equally important, groups: the defense, who represent the defendant; and the district attorneys, who prosecute the defendant. Both sit in their offices, without movement for hours staring at Word. These are their stories
Many people who know me have asked me those same questions. Sometimes I will tell people "This is me being very happy" because that is, like, the best I can do.
This thread hilariously captures the drama of appellate lawyering. Highly recommended.
A federal judge in D.C. says the District has unlawfully detained a woman charged with spitting on a National Zoo police officer after she was arrested for entering a staff-only area at the zoo's Bird House. The city jail "has chosen not to comply with this Court’s Order."
Extremely nefarious of Trump to put this out there while people are distracted with the Taylor Swift news.
Great article on Women's Equality Day and the need to fight for our voting rights! www.forbes.com/sites/hollyc...
amazing
* turns to camera * "We won." * turns back to computer screen, continues scrolling *
True Story: I was involved in a Netflix docuseries. When we won the big appellate case overturning 1000s of wrongful convictions, we were, of course, not in court. So we were asked to capture the moment by... reading parts of the decision aloud from a computer. It went as well as you'd guess.
LOL
Yep. Same.
We need to get an extension on the time to file this brief in the next 48 hours and we’ve already used our streamlined extension request! What do we do? Quick, email opposing counsel to get his position! Opposing counsel: Sure. Sent from iPhone, please forgive typos. Man, that was a close one!
Yes, exactly. IIRC, whenever there was a legal issue in the original show, it would just immediately land at an oral argument in front of one or more judges.
leading to the iconic line "You can't handle the kerning!"
This is why there's never been a popular show called Law & Order: Appeals Unit.
On this day in 1920, the Nineteenth Amendment was certified as part of the Constitution. Secretary of State Bainbridge Colby chose to sign the document at home and without ceremony, reportedly because he found the suffragists’ request that the moment be commemorated undignified. #WeTheMen
professional ethics as a check against encroaching authoritarianism—many people are saying
Trump's fundamental insight is that SCOTUS is afraid of him.
Yes, if there has been one constant from SCOTUS during the Trump era, it has been a belief that if they can avoid making him mad then things will just work themselves out.
What’s worse: A ruling saying the Fed’s protections of for-cause removal are unconstitutional, or a ruling saying that the President’s determination that there is cause is unreviewable?
A leading case protecting people for alleged flag desecration involved someone prosecuted for wearing a small U.S. flag on "the seat of his trousers." supreme.justia.com/cases/federa... So if Trump's view were to prevail, future prosecutors could target him and people who buy his merchandise.
Noted.
Lest anyone think you're just being clever, you can point them to this case about someone prosecuted because he "wore a small cloth version of the United States flag sewn to the seat of his trousers." supreme.justia.com/cases/federa...
If you were silly enough to base your views on existing case law, you might have thought the general police power resides with the states — not the federal govt. Haha joke's on you!
I generally feel the same way about dissents. But yeah, if SCOTUS continues to allow Trump to behave as though there is only one branch of govt, it will be important for dissenting justices to say "it was contemporaneously obvious that the Court's handling of Trump was wrong."
Aside from the other issues, this is why capitulating to Trump doesn't work. The stick is always raised for something else.
Always a challenge to write posts these days because we sort of have to say "under the logic of prior cases, this should be struck down," as opposed to "this *will* be struck down."
Sure. All I'm saying is that, even assuming this would normally be a circumstance in which the federal government can seek to influence state behavior without violating the 10th Amendment, the action might be subject to challenge on other grounds because the asserted policy aim is irrational.
The federal system doesn't use cash bail. I fail to see how this proposal — the federal govt insisting that states use a system that the federal govt *itself* does not use — could survive even rational basis review.
Yep. Been trying to emphasize this point for a long time. Huge portions of public discourse about college students are almost fictional.
The Supreme Court made possible the administration's threats to send Mr Abrego Garcia to Uganda -- because the Court blocked the lower court decisions that had restricted the gov'ts ability to send noncitizens to far-flung places they've never been & where they could face violence, torture, & death.
This is extraordinarily lawless and is happening all over the country, and because of the Supreme Court there is no remedy for whatsoever. The Constitution, if you can keep it, huh.
Bolts has done work to track how this jurisprudence is evolving at the STATE level. See this telling decision in New Hampshire: boltsmag.org/partisan-ger... And Florida: boltsmag.org/florida-map-...
Agreed.
👇🎯 Today in “neither our media nor our political system is designed to deal with a far right authoritarian party”
The thing is: each state supreme court gets to interpret its state's constitution. So some state courts might strike down partisan gerrymanders under their state constitutions, and some state courts might not.
Will be interesting to see how partisan gerrymandering plays out in state court. If courts in "blue" states strike down partisan gerrymanders, but courts in "red" states do not, gerrymandering could become even more asymmetric than it already is.
WAPO: New temporary US Attorney for DC Jeanine Pirro removes prosecutorial discretion and orders US prosecutors to always seek maximum punishment. Since her office had lost 90 prosecutors and 60 paralegals and investigators, this PR move is just going to force expensive and slow trials for everyone.
I sometimes wonder if SCOTUS justices see stuff like this on the way to work and think about how great things are going.
As we inch closer to 2028, it will be interesting to see how markets and other institutions behave, because their behaviors will reflect predictions about what Trump will do or be allowed to do.
🚨BREAKING: A federal district court has found that the Alabama state senate map runs afoul of Section 2 of the Voting Rights Act by failing to create an additional Black-majority district in the Montgomery area. drive.google.com/file/d/1ZVLd...
It’s a good day. Abrego Garcia, Free From Tennessee Jail, Is Returning to Maryland, Lawyer Says www.nytimes.com/2025/08/22/u...
10th Cir: no QI for officers who failed to intervene while other officers excessively tased and then knelt on a restrained suspect until he stopped breathing and died. Held: it is clearly established law you can't just watch fellow officers murder a guy. www.ca10.uscourts.gov/sites/ca10/f...
In 2023 the Mass. SJC held that a conflict of interest can arise when a defense attorney expresses bigotry against persons of their client's faith or race. law.justia.com/cases/massac... Worth thinking about.
I'm just going to pretend I don't know about this and keep using "Sept."
Less than half of Americans know their state has its own constitution. Help bring our panel of state constitution superusers to #SXSWEDU. Vote for "How State Constitutions Empower and Protect Youth" before Sunday! bit.ly/47pILS1.
Yes indeed. I'm just pointing out that, although things are particularly egregious under Trump, it will almost never make sense for a large law firm to provide free legal services, no matter how framed, to the federal government.
Great news in this important case regarding U of CA grant terminations. The U did not itself sue, so folks from Berkeley Law School (including Chemerinsky & Polsky), with some help from law firms, brought suit on behalf of individual researchers. Opinion here: www.documentcloud.org/documents/26...
Like you say, I don't begrudge people their big ideas. But the op-ed is not an accurate diagnosis of what ails us.
Just as a factual matter, the Trump era has put to rest the ideas that: (1) huge changes in modern constitutional law are driven by constitutional text; and (2) the other two branches are prepared to hold the President in check but have been restrained by the text of Article II.
Ok, just to clarify: 1. I am not discouraging thinking big. Thinking big is good. 2. The problem here is not thinking big. It is not thinking big enough. It is proposing something that is extremely resource-intensive and unlikely to address any structural problems that got us here.
The entire concept of a law firm doing pro bono publico work for the federal govt, which the public funds with its tax dollars, is completely absurd.
Yep, and that lesson extends beyond lawyering. E.g., I see people on here whose posts and advocacy seem mostly concerned with seeking validation of their own righteousness. Fine, but don't act surprised when you don't achieve anything, because improving real-world outcomes wasn't your focus.
Always funny when advocates who were not laser-focused on achieving their stated goals express surprise, or blame others, when they predictably do not achieve those goals.
NEW: 10th Cir declares that New Mexico’s 7 day waiting period for gun purchases violates the Second Amendment. Evidence shows such laws have a marked effect on firearm suicides, saving untold lives, but no matter — Bruen means history is all that counts. www.ca10.uscourts.gov/sites/ca10/f...
“To that end, I specifically ask that you redouble your efforts to not leak this confidential letter.”
Watch your muscles grow and your rights shrink.
Rep. Nicole Collier files a state court application for a writ of habeas corpus concerning her detention in the Texas State Capitol. www.courthousenews.com/wp-content/u...
In a case I've been watching, an Ohio court has ruled that Google search is not a common carrier (under common law), because search is not indifferent transport held out to the public generally. Intersects with many cases considering the degree of Google contributions to search. tinyurl.com/47vs3ak4
Eager to learn which tier of scrutiny courts will apply to an executive action reportedly taken on the advice of a foreign dictator. www.axios.com/2025/08/18/t...
This reminds me of the time at a law firm when someone said "chomping at the bit," and a partner immediately said "It's champing."
Fifth Circuit blocks West Texas A&M University's ban on student drag performances, reversing district court: www.thefire.org/news/victory...
An excellent #Appellatejob has opened up, at the Georgetown Law's @immersionclinic.bsky.social. Really a great job for someone wanting to work in an appellate clinic, it seems to me. perma.cc/CX9E-NSEJ
“Why would it be something you wouldn't consider criminal as to your own personal decision with your partner, but, as to Lizelle, that personal decision is now homicide?” the ACLU's Lauren Johnson told Jezebel. www.jezebel.com/texas-da-who...
Hell yes.
Love the "Mickey Stockton" idea. Solid name.
rebranding my initials from MS to MS LAW please like and subscribe
That's one reason why I said the *viewpoint* was protected. But note that ICE's post didn't say it removed an illegally posted sign; it focused on viewpoint. Oopsie.