Since 1871, a federal statute has authorized Americans to sue state and local officials for violating their constitutional rights. But since 1982, thanks to the court-invented doctrine of qualified immunity, such claims have been allowed only when they allege violations of "clearly established" law.
Because courts often require plaintiffs to meet that standard by citing precedents involving closely similar facts, qualified immunity can prove insurmountable even for victims of outrageous abuses. But as two recent cases illustrate, there are limits to this license for misconduct, meaning officials may still be held accountable when they flout longstanding constitutional principles, even when they do so in novel ways.
In 2022, Mario Rosales and Gracie Lasyone sued two Alexandria, Louisiana, police officers, Samuel Terrell and Jim Lewis, alleging that they had pulled Rosales over without legal justification. The cops ordered Rosales and Lasyone, his girlfriend, out of the car and detained them for 21 minutes, during which they grilled the couple about illegal drugs, frisked Rosales, and instructed him to empty his pockets.
Terrell and Lewis sought refuge in qualified immunity. But last month, the U.S. Court of Appeals for the 5th Circuit ruled that Rosales and Lasyone had plausibly alleged several Fourth Amendment violations, including a stop based on a "fabricated traffic violation," an improperly prolonged detention, and unjustified searches.
In reaching that conclusion, the 5th Circuit relied mainly on a 1968 decision in which the Supreme Court said police may detain someone only if they reasonably suspect he is involved in criminal activity and may frisk him only if they reasonably suspect he is "armed and dangerous." Assuming the facts alleged in the lawsuit are true, the three-judge panel unanimously held, Terrell and Lewis had failed both of those tests.
When the officers stopped Rosales, the principles that the 5th Circuit applied had been the law of the land for more than half a century. Terrell and Lewis nevertheless argued that "any constitutional violation arising from the traffic stop was not clearly established," which gives you a sense of the chutzpah that qualified immunity invites.
Police commonly pull drivers over, ostensibly for traffic violations, in the hope of implicating them in drug crimes. A case that the U.S. Court of Appeals for the 8th Circuit considered this month involved a much more unusual scenario: a judge who locked two children in jail cells because he was frustrated by their resistance to a parental custody decision.
During a 2019 hearing in Taney County, Missouri, a divorced couple agreed that the mother would have primary custody of their two children, then 12 and 14. But contrary to that agreement, the children did not want to go home with their mother, which led to an argument in the courthouse lobby.
Judge Eric Eighmy intervened, telling the children they had to leave with their mother and repeatedly warning them that they could end up in foster care if they refused to do so. When that did not work, Eighmy jailed them until they became more cooperative.
"The time spent in the holding-cell area was between twenty and forty minutes," the 8th Circuit noted. And since Eighmy did not have probable cause to believe the children had committed any offense, "much less one that justified placing them in a holding cell," the court said, their confinement clearly violated the Fourth Amendment.
If so, Eighmy argued, he had no way of knowing that. The 8th Circuit panel unanimously disagreed: "As we put it over a decade and a half ago, long before the events in this case, 'it is clearly established that a warrantless arrest, unsupported by probable cause, violates the Fourth Amendment.'"
Notably, the 8th Circuit did not think the bizarre details of the case counted in Eighmy's favor. "We are not concerned about the lack of a prior case" with "fundamentally similar" facts, it said. "Indeed, given how clear the law is, it would have been surprising to find one."
Back in June, I wrote a post about Canada's two active secession movements: one in Alberta and one in Quebec. Since then, there have been some important developments. Alberta secessionists suffered a major defeat. Quebec secessionists are in better shape, but the odds are still against them succeeding anytime soon. That said, both movements may well persist for a long time to come.
Yesterday, Alberta secessionists lost a referendum on secession by a massive 75-25 margin. Pollsters expected a blowout, but this margin is close to the outer edge of expectations. Moreover, the result may actually understate the true extent of opposition to secession in the province. As noted in my earlier post, the question put to the voters was not directly about secession, but rather on whether "the Government of Alberta [should] commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada." Essentially, it was a referendum on whether to hold another referendum. Some "yes" voters might have been confused about what it meant or wanted to hold a second referendum, while planning to vote "no."
United Conservative Party Alberta Premier Danielle Smith (who played a key role in arranging yesterday's vote, despite opposing secession herself) has pledged not to hold any further referenda on secession. She may well be happy to sideline an issue that divides her party (Alberta secessionists are overwhelmingly right-of-center UCP voters).
All of this is bleak news for Alberta secessionists. But it's too early to say their movement is dead. As noted in my previous post, secession movements often persist for many years, even in the face of defeats in referenda and other political setbacks. Scotland, Quebec, and Catalonia are all examples of this phenomenon. And some 25% of Alberta voters did express support for secession, despite opposition from the leaders of all major political parties. That's a minority, but far from an insignificant one.
Meanwhile, in Quebec, on October 5, the secessionist Parti Quebecois (PQ) won the provincial election. But they got only 28% of the vote (the lowest percentage for any winning party in the history of Canadian provincial elections). That translated to a "minority" government that has 59 seats in Quebec's National Assembly (the provincial legislature), 5 short of a majority. And, as discussed in my previous post, secession remains unpopular, with polls showing opposition by a margin of 2-1 or more. For much more detailed discussions of the Quebec election and its ramifications, see analyses by Canadian election/polling experts Eric Grenier and Philippe Fournier.
As Fournier emphasizes, PQ leader Paul St. Pierre Plamondon (known as "PSPP") remains committed to holding a secession referendum. But the minority nature of his governments makes it unclear whether the PQ can find the votes to enact legislation to hold one. The left-wing Quebec Solidaire party (which holds 9 seats) is also pro-independence. But they may not be willing to work with the PQ. In addition, PSPP has promised not to hold a referendum so long as Donald Trump remains president of the United States, claiming it would be too dangerous to do so while Trump continues his trade war with Canada and otherwise threatens the country. Unless Trump dies or gets impeached and removed (both relatively unlikely), he will remain in office until January 2029. Canadian minority governments generally don't last more than two years. So PSPP may not be in power long enough to outlast Trump.
While Quebec secessionists seem unlikely to prevail in the near future, the fact that they managed to return to power is still a sign of the movement's persistence. And they have survived referendum defeats in 1980 and 1995. Thus, the movement is likely to continue to be a thorn in the side of Canadian federal governments, perhaps for many years to come. It has demonstrated its staying power over many years, much more so than Alberta secessionists.
Many Canadians believe Trump's threats against their country have weakened secessionists in both Alberta and Quebec. PSPP's stance is just part of the evidence for this conclusion. Trump's trade war and threats to make Canada the "51st state" have bolstered national unity and made the Liberal Party government of Prime Minister Mark Carney much more popular than might otherwise be the case. Trump is making Canadian national unity - and the Canadian Liberal Party - great again! But for him, the Liberals would likely have lost last year's Canadian federal election to the Conservatives.
Perhaps, all along, Trump has been trying to help the Liberals and stymie secessionists. If that's the true objective of his Canada policy, then maybe it's not quite as evil and stupid as otherwise seems to be the case. On a more serious note, Trump's policies have illegally usurped congressional authority over trade, damaged our economy, and alienated a crucial ally - all for no good reason.
In my June post, I outlined reasons why I am more sympathetic to Alberta's secession movement (motivated by conservative economic ideology and grievances about federal fiscal transfers and energy policies), than Quebec's (motivated by Francophone ethno-nationalism). Although I think the Alberta movement has greater merit than Quebec's, for reasons also summarized in the earlier post, I remain skeptical that Alberta secession would accomplish more good than harm. I also explained why these movements may be of interest to many non-Canadians and why I (an American) comment on them them:
[T]hese events are… of interest to students of federalism and secession, and to anyone who cares about the future of America's northern neighbor and one of our most important allies. And history shows that secession movements often persist even after defeat in a referendum….
From a US perspective, I worry that a successful secession movement would make Canada a weaker and less effective ally. Unlike our current president, I think a strong Western alliance is essential….
Some might find it inappropriate for an American to comment on Canadian politics. I disagree. Canadians and other non-Americans often express views on US politics. And they have every right to do so. Political analysis should be judged on its substance, not on the background of the author. In addition,… Canadian secessionism potentially impacts the US in various ways, and raises broader issues about the morality of secession movements that Americans and others have reason to take an interest in…. I am a longtime academic expert on federalism and secession-related issues, and I know French, as well as English. Thus, I think have the necessary qualifications to write about these issues. Whether the commentary is any good or not, is for others to judge.
On Monday, Mississippi Attorney General Lynn Fitch ruled that the police shooting of 1-year-old boy Kohen Wiley was a "justified" use of force. Kohen was fatally shot in June, outside of a Walmart, as cops investigated his mother and her friend for stealing diapers. Fitch didn't explain the reasoning behind the decision or what evidence was considered in a case that has sparked national backlash.
According to a June 14 statement from the Mississippi Bureau of Investigation (MBI), officers from the Senatobia Police Department (SPD) and Tate County Sheriff's Office were responding to a shoplifting call when "officers encountered two subjects and a juvenile child fleeing from the store into a vehicle." They "attempted to stop the vehicle, but the driver drove in the direction of the officers, almost striking one," and the officer then "discharged their weapon and the vehicle fled the scene." The family went to a local hospital, where 1-year-old Kohen Wiley was pronounced dead.
Kohen's mother, Vellesiya Wiley, has a different version of events, which she outlined in avideo on X following the tragedy. She said that after police tried to stop her friend (the driver) outside the Walmart, Wiley continued to go to her car, saying the interaction had "nothing to do" with her. Once she got into the car, her friend arrived and began to back out of the parking spot. Then officers came over to the car, drawing their guns. She says that after she raised Kohen to show him to the officers and try to diffuse the situation, they opened fire. "[The police] tried to say that [my friend] forcefully was trying to drive and hit them, but they was all on the right side, and she was driving towards the left….They personally just shot at the car," she said. In the months since the incident, the family held several rallies, demanding justice for Kohen's death.
The tragedy of the shooting has been compounded by a lack of transparency from the SPD, as well as alleged expert analysis that counteracts the MBI's statement. According toreporting from Mississippi Today, Ben Crump, a civil rights attorney who is representing the Wiley family, claims that an independent autopsy conducted by forensic pathologist Robert Mitchell indicates that the bullets entered through the front passenger door, rather than the windshield, suggesting that the officer wasn't in the vehicle's path when he discharged his gun.
In response to Fitch's announcement on Monday, Crump released a statement asking, "How can anyone accept that conclusion when Kohen's family and the public still have not been allowed to see the body-camera footage?"
"If the footage supports the state's decision, release it. We will not stop fighting until this family gets the truth," he added. To this point, the SPD has declined to release the footage, saying it's standard procedure during an ongoing investigation.
Crump was also keen to point out complaints of racism in the SPD: "This is a department whose chief was fired after reports of racial slurs in his text messages, and whose officer faced a complaint alleging a racially offensive remark two days before he shot Kohen."
The SPD's chief at the time, Harold Vanderford, was unceremoniously fired after journalists from Mississippi Today, The New York Times, and Verite News revealed a slew of racist text messages he sent. According to reporting from Verite News, in one of the messages he said he "almost beat a nigger and white woman's ass a few minutes ago." Senatobia's Board of Aldermen rejected his attempted resignation and voted to fire him instead on September 1.
Crump also cited a complaint filed by Officer Dexter Smith, who claimed that Sergeant Hunter Foster, the officer who shot Kohen referred to him as "a black motherfucker" on June 12, just two days before the incident. According to reporting from Mississippi Today, Smith's complaint states that he was filling out paperwork in the booking room when he heard Foster say, "Who is this Black motherfucker back there?" to his colleagues. Smith claims to have had almost no relationship with Foster prior to the encounter.
It's hard not to feel outraged considering that this little boy lost his life over something as trivial as shoplifting—a misdemeanor in Mississippi that does not justify use of lethal force, as Reason's Joe Lancaster wrote in June—and for diapers no less. With the bodycam footage yet to be released, all the public is left with is the state's word that the investigation found no wrongdoing. Given the multiple instances of racism within the department, it shouldn't come as a surprise if the public isn't content to take them at their word.
Last July, President Donald Trump imposed 50 percent tariffs on various Canadian goods, a list he subsequently expanded to include additional imports, some of which he banned outright. His legal justification was Section 338 of the Smoot-Hawley Tariff Act, which Congress approved in 1930. Section 338 authorized tariffs in response to discriminatory trade practices. But in the 96 years since it was enacted, no president had ever used it to impose tariffs.
Why is that? According to a lawsuit that the Liberty Justice Center (LJC) filed on Tuesday in the U.S. Court of International Trade (CIT), the answer is clear: Section 338 was superseded by subsequent legislation that likewise targeted discriminatory trade barriers, beginning with the Reciprocal Trade Agreements Act of 1934 and culminating in Section 301 of the Trade Act of 1974. Section 301, the current remedy, includes requirements that Trump apparently sought to dodge by invoking Section 338 instead.
That maneuver is illegal, the LJC argues. "Congress already gave the executive branch a tool for responding to unfair foreign trade practices: Section 301, which requires an investigation, public comment and other safeguards," says Jeffrey M. Schwab, the LJC's director of litigation. "The administration cannot skip those protections by reaching for a 1930 statute that no president had ever used to impose a tariff."
Why not? "Where provisions in two acts are in irreconcilable conflict, the later act, to the extent of the conflict, constitutes an implied repeal of the earlier one," the lawsuit says. "Where a later act covers the whole subject of an earlier one and is clearly intended as a substitute, it operates similarly as a repeal. And a specific policy embodied in a later federal statute controls the construction of an earlier one even absent express amendment."
Even if Section 338 somehow survived congressional approval of contrary laws, the LJC adds, Trump's tariffs exceed the authority it grants. And if Trump's interpretation of Section 338 were correct, the lawsuit says, the provision would violate the nondelegation doctrine, which bars Congress from delegating its tariff power to the president without providing "an intelligible principle" to guide and constrain his exercise of it.
Trump's Section 338 tariffs, in short, are "the Administration's latest attempt to exercise, through a statute never designed for the purpose, the tariff power that the Constitution assigns to Congress." That pattern should be familiar by now.
Shortly after taking office in 2025, Trump claimed to have discovered a previously unnoticed delegation of extensive tariff authority in the International Emergency Economic Powers Act (IEEPA), a 1977 law that does not mention import taxes and had never been used to impose them. That claim was rejected by every court that considered it, and last February the Supreme Court ruled that IEEPA does not authorize tariffs at all.
Trump responded to that decision by immediately announcing similarly broad tariffs under Section 122 of the 1974 Trade Act, which addresses "fundamental international payments problems" caused by "serious United States balance-of-payments deficits." In May, the CIT ruled that the new tariffs were illegal because Trump had failed to "identify balance-of-payments deficits within the meaning of Section 122."
Trump then switched to Plan C, invoking Section 301 of the Trade Act, which authorizes tariffs in response to a foreign "act, policy, or practice" that is "unreasonable or discriminatory" and "burdens or restricts" U.S. commerce. He claimed that provision justified tariffs on 86 trading partners, accounting for nearly all U.S. imports, because they had failed to "impose and effectively enforce a prohibition on the importation of goods produced with forced labor." The CIT is currently weighing challenges to those tariffs, including an LJC lawsuit.
Trump's Section 338 tariffs have now added to the CIT's caseload. The LJC represents Gellert Global Group, an importer that was hit hard by those taxes after Trump added cheese to the list of disfavored Canadian goods. The lawsuit asks the CIT to certify a class of importers, numbering in "the hundreds, if not the thousands," that likewise have been clobbered by Trump's 50 percent tariffs.
Since Trump obviously is aware of Section 301, why did he resort to a never-used, seemingly obsolete provision to justify the tariffs on imports from Canada? As the LJC notes, Section 301 requires an investigation by the Office of the U.S. Trade Representative, "consultation with the foreign country concerned, notice, public comment, a hearing, and determinations within statutory deadlines." It also requires "that action be equivalent in value to the burden imposed, that duties be preferred over other import restrictions, and that actions terminate after four years absent a request for continuation and review."
Can Trump avoid those constraints by invoking Section 338 instead? The LJC thinks not: "Congress did not intend to leave in place a parallel authority that would allow the President to impose the same remedies, for the same conduct, free of every one of those safeguards."
Section 338 has been "impliedly repealed," the LJC argues. "At a minimum, Section 301 controls where, as here, the President seeks to respond to foreign practices within Section 301's scope, and the President may not impose duties in response to such practices while disregarding the procedures and limits Section 301 imposes. Because the President did not proceed under Section 301, the Section 338 Tariffs are unlawful whether or not Section 338 survives."
Even if you ignore subsequent legislation, the LJC argues, the Canadian policies that Trump cited when he announced the tariffs do not qualify as "discrimination" under Section 338. "Canada's motor vehicle surtax and its provinces' alcohol purchasing decisions are responses to tariffs that the United States imposed on Canada, not discrimination by Canada against the United States," it says. Trump also complained that Canada treats European cheese imports more favorably than U.S. cheese imports. But "when Congress enacted Section 338, a preference granted under a reciprocal agreement was not 'discrimination.'"
Section 338 "addresses discrimination: measures that single out United States commerce for worse treatment than the commerce of the world at large," the lawsuit says. "It is not a general authorization to impose tariffs whenever the President disagrees with a trading partner's policies, or whenever a trading partner responds to tariffs the United States has imposed on it."
Trump also was unfazed by Section 338's requirement that the president set duties to "offset" the costs imposed by discriminatory practices, which implies proportionality. Rather than attempt that, the LJC notes, Trump imposed "the statutory maximum rate of 50 percent without tying it to any measured burden."
As interpreted by Trump, the lawsuit warns, Section 338 authorizes the president to "impose tariffs of up to 50 percent on any products of any country that extends better treatment to any other country in any respect—including through any of the hundreds of preferential trade agreements to which the United States is not a party—or that responds to tariffs the United States has imposed on it." Yet Section 338 "contains no clear statement authorizing that power," contrary to the "major questions" doctrine, which applies to assertions of executive authority with "vast economic and political significance."
If Section 338 conferred the sort of unfettered authority that Trump is claiming, the LJC says, it "would supply no intelligible principle constraining the exercise of Congress's power to lay duties." His reading "would convert a narrow, fact-dependent provision into an effectively unrestricted delegation of Congress's tariff power," which would be "an unconstitutional delegation of legislative power."
This case "is not about the president," says LJC CEO Sara Albrecht. "It is about the presidency. No president should have the power to pull a dormant statute off the shelf and use it to impose sweeping tariffs or import bans without the limits Congress required."
On Monday, the U.S. Department of Agriculture (USDA) announced it would "make $8 billion available for one-time payments to American farmers this harvest season to provide relief during temporary market disruptions and increased input costs."
Using a formula derived from the USDA's production, yield, and price estimates, the Harvest Fuel Relief program will "provide simple, proportional support to producers." It will only cover a "portion of modeled losses during the 2026 crop year." The Farm Service Agency—an office within the USDA that administers credit and loan programs—will administer the $8 billion in one-time payments using funds from the Commodity Credit Corporation, a federal entity authorized to draw up to $30 billion from the U.S. Treasury to fund agricultural initiatives. Payment rates won't be released until November, and the USDA's notice leaves open the possibility of additional payments for "non-Title I commodities, including specialty crop growers and fishermen."
A fiscally questionable decision, the program comes at a time when farmers are feeling a significant price pinch. The dyed diesel American farmers and ranchers use is exempt from state and federal highway taxes, but that has done little to offset skyrocketing fuel prices. In September, the American Farm Bureau Federation projected that fuel expenses would reach $22 billion this year, up 29 percent from 2025. The Farm Bureau estimates that total production expenses will reach nearly $500 billion in 2026. According to its own predictions, the USDA doesn't expect the situation to improve anytime soon.
In its latest Commodity Costs and Returns report, released in June, the USDA projects farmers and ranchers will face record production costs in 2027—higher than during the COVID-19 supply chain disruptions—driven by higher prices for necessary inputs such as fuel, fertilizer, seeds, machinery, and labor.
While the USDA has blamed "temporary market disruptions" for these cost hikes, the blame more accurately falls to President Donald Trump, thanks to his illegal war in Iran. As of Tuesday, Trump's war—and the subsequent shocks it has caused to the global diesel supply—have pushed the national average price in the U.S. up $2.70 per gallon from a year ago, a 74.6 percent increase, according to AAA data.
Unfortunately, the war in Iran is just one of several Trump administration policies making life more expensive for everyone, including the nation's farmers and ranchers. Tariffs on imported fertilizer, which began in 2020 during the first Trump administration, have made it difficult for American farmers to afford what they need. By the Farm Bureau's estimates, fertilizer costs for 2026 are projected to reach a record $40 billion, up 15 percent from the previous year.
The $8 billion program is part of a windfall of taxpayer money the Trump administration has sent to farmers as relief for harms caused by the president's actions. Last December, the USDA sent $11 billion in one-time bridge payments to more than half a million farmers nationwide. Earlier this month, the USDA announced it would provide a record $13.8 billion in gross payments to agricultural producers to cover revenue losses.
In a speech in Kansas touting the program, Trump claimed that the state's residents would see a "plunge" in prices once the war ends. That's likely an exaggeration, given the host of questionable economic policies he seems hell-bent on implementing.
Still, that shouldn't discredit the president's suggestion. Ending the war would benefit farmers, ranchers, and consumers, without doling out billions in another government bailout for a favored industry.
A proposed "wealth tax" on California's billionaires could backfire and cost the state tens of billions of dollars in the long run.
If the proposed tax drives wealthier residents out of the state, California could end up losing between $1 billion and $3.5 billion annually in income taxes, according to a working paper published this week. A pair of researchers at Stanford University warn that the state could end up losing an estimated $39 billion because of the consequences of the wealth tax.
"These findings suggest that the Billionaire Tax Act will not fulfill the primary functions for which it was designed," write researchers Benjamin Jaros and Joshua Rauh.
Voters in California will decide next month whether to impose the one-time, 5 percent tax when they vote on Proposition 40. The ballot measure is dividing Democrats—Gov. Gavin Newsom opposes it, while progressive Rep. Ro Khanna (D–Calif.) claims it is the "most important ballot initiative in America and a fight for the soul of our party."
And it's already spurring some billionaires to flee the state—including venture capitalist Peter Thiel and Google co-founder Larry Page. Including those two, the seven billionaires who have publicly said they are leaving the state represent more than $539 billion of the nearly $1.9 trillion aggregate net worth of California's billionaires, the researchers note.
With other departures likely happening more quietly, the new study estimates that the tax will generate about $30 billion, a far cry from the $100 billion that the tax's supporters expect. The "behavioral response" from billionaires in California "has eroded most of the projected tax base," write Jaros and Rauh.
That's still a pretty big pot of revenue. In the long run, however, the state is likely to lose out.
After running 100,000 simulations using different assumptions, the two researchers report that "85 percent of plausible outcomes produce a negative" result in state revenue.
Capital is always mobile, despite the best efforts of politicians. And if you were a billionaire living in California, why would you stick around?
Polls show voters are narrowly divided over Proposition 40. A Politicopoll published earlier this month showed 46 percent of voters plan to vote for the measure, while 43 percent oppose it. Voters were similarly divided when asked if they expected it to pass or not.
Today, the Liberty Justice Center (LJC) filed Gellert Global Group Corp. v. Trump, the first lawsuit challenging President Donald Trump's massive Section 338 tariffs against a variety of Canadian imports. The case was filed in the US Court of International Trade (which has jurisdiction over tariff-related cases); Gellert Global Group is an importer of Canadian cheese subject to the tariffs. LJC is the same public interest group that I worked with on the case challenging Trump's earlier IEEPA tariffs, which ultimate resulted in their invalidation by the Supreme Court. I am not directly involved in the present case. But I support it and believe it deserves to prevail.
LJC has also filed cases challenging Trump's massive Section 122 and Section 301 tariffs. They have become America's premier public interest law group standing up for free trade and enforcing constitutional constraints on executive power over trade restrictions.
Section 338 was part of the infamous Smoot-Hawley tariff act of 1930, which gravely exacerbated the Great Depression. It has never been used before, likely because it was superseded by later laws.
I have previously written about why Trump's Section 338 tariffs are harmful and illegal. See my recent Montreal Economic Institute paper on this topic, and earlier pieces here, here, and here. To briefly summarize, the tariffs on Canada are illegal because 1) Section 338 has been superseded by later legislation, 2) even if Section 338 is still operative, Trump's tariffs do not meet its requirements because the Canadian actions they supposedly respond to do not "discriminate" against US goods, as the law requires, 3) Trump's tariffs do not "offset" the Canadian actions (as Section 338 also requires), but go far beyond that, 4) the administration's interpretation of Section 338 runs afoul of the "major questions" doctrine, and 5) if Section 338 is operative and does authorize the Trump actions, it would violate the constitutional nondelegation doctrine (which restricts delegation of legislative power to the executive).
The LJC complaint advances all five of these arguments. To prevail, they need win on only one. They also add a few more technical points that I will not try to cover here. LJC further seeks a class action certification for a class of all those importers subject to the Section 338 tariffs. If this succeeds, it would block all enforcement of Section 338 tariffs, not just those paid by Gellert.
This lawsuit does not directly challenge Trump's extension of the Section 338 action to categorically ban some Canadian imports, in addition to imposing tariffs. As far as I can tell, Gellert does not import goods subject to the ban (as opposed to the tariffs). However, as I explained here and here, the legality of the bans is dependent on that of the initial tariffs. In a recent Lawfare article, I outline the reasons why executive-imposed import bans are subject to most of the same legal constraints as executive-imposed tariffs.
Like the IEEPA, Section 122, and Section 301 tariffs, Trump's use of Section 338 is an attempt to convert a limited delegation of authority into a blank check enabling the president to impose tariffs whenever he wants. Courts should reject all of these power grabs.
I commend LJC for bringing this important case. And I hope and expect it may not be the last lawsuit challenging the Section 338 measures. Future cases might well challenge the import bans directly, as well as the tariffs.
Happy Tuesday, and welcome to another edition of Rent Free. This week, we're going to jump right into it with a philosophical question: What is an accessory dwelling unit anyway?
It's a question that officials in Somerville, Massachusetts, are realizing they didn't know the answer to after learning that a state law allowing ADUs in single-family neighborhoods could also require them to approve three-story backyard mini-apartments.
As the Boston Globereported on Sunday, Somerville's "deep ethos in favor of new housing" is being tested by the extent of the state law. Elected officials are describing the potential for three-story ADUs as a "joke," and the area's state lawmakers, including one who voted for the state law, are demanding reforms to stop them.
The law in question was a statewide accessory dwelling unit (ADU) legalization tucked inside a major housing package of mostly new spending programs that passed in 2024.
The bill required municipalities to allow ADUs of either 900 square feet or half the size of the primary dwelling (whichever is smaller) anywhere single-family homes are allowed. A subsequent rule issued by state regulators also forbade localities from imposing height and bulk limits on ADUs that are stricter than the limits imposed on primary dwellings.
That latter rule is what's causing Somerville's freakout.
Because the town allows triple-decker apartments (a three-story triplex common in New England) in all its single-family zones, the state rule means that it must also allow ADUs to be three stories tall.
The Globe story notes that the mini-triple-deckers could still only be 900 square feet, meaning each floor of a mini-triple-decker would have to be pretty small. Thus far, no one has proposed building an ADU tower in Somerville.
Even so, the town is worried that someone will eventually propose one of these "out-of-scale" units that it'll have to approve. Its officials are now agitating for changes to the state law to prevent this.
On the one hand, one can perhaps understand why Somerville officials feel blindsided.
The text of the 2024 ADU law allows localities to set "reasonable" height and bulk limits on accessory units. It was state regulators who decided after the law's passage that requiring ADUs to be shorter than the primary unit was "unreasonable."
On the other hand, allowing a second home on a lot to be as tall as the first house sounds "reasonable" enough. Can one complain about out-of-scale development when the new unit is the same height as an existing home and a little bit smaller?
Somerville is not the first city where people's own colloquial definition of an accessory unit as "a tiny home that doesn't bother anyone" has clashed with official regulatory definitions that allow ADUs to be a fair bit bigger.
San Diego's ADU Bonus program once allowed a technically unlimited number of ADUs to be built on single-family parcels near transit stops. (Height and bulk regulations imposed practical limits on how many units could fit on a site.)
That enabled developers to build what were, in effect, ADU apartment complexes on large single-family lots throughout the city. This year, the city imposed new restrictions to stop these "monster" ADU developments, including a per-lot accessory unit cap.
The latest dust-up in Somerville, like the San Diego controversy before it, provides several lessons about the realities of housing reform.
The first is that the definition of "accessory dwelling unit" is completely arbitrary.
In Massachusetts, an ADU is a 900-square-foot home that can be one story or three stories, depending on the town and zoning district it's being built in.
In Montana, it's a 1,000-square-foot unit. In California, state law can require localities to allow ADUs as large as 1,200 square feet. Under certain conditions, these ADUs can even be sold separately from the main house.
At a certain point, an accessory dwelling unit is just a dwelling unit. A house is a house.
The second lesson is that any ADU reform that is actually intended to produce new housing units is going to cause controversy.
State and local laws allowing ADUs have been one of the more common forms of housing reforms to pass.
Supply-boosters see them as a way to get a modest number of new units. Supply skeptics don't see much to object to about allowing someone to install a kitchenette and bathroom in their garage.
If the ADU regulations don't allow much more than the garage conversion, supply-boosters will be disappointed and push for expansions of the law. California passed dozens of ADU laws before they started enabling actual units to be built.
If an ADU law actually allows more homes, the ADUs will look like homes, and the supply skeptics will be mad.
No amount of branding or planning will resolve the inherent conflict of some people wanting more development while others oppose it in their neighborhoods.
Thus far, Massachusetts' ADU law has been modestly productive. The state's ADU survey reports that 2,048 ADU permits have been issued since the state law went into effect in January 2025. About half of those units are attached ADUs (think the garage with the kitchenette).
That's a little under 10 percent of Massachusetts total housing production during that time, per the Census Bureau's building permit survey.
At 50 units permitted, Somerville has actually approved the second most ADUs of any jurisdiction in the state. (Boston has only approved 49.)
But now that it's facing the prospect of allowing ADUs that look like actual homes, it's starting to get cold feet about the new law.
While Spain is tightening its tenant protections and rent controls in the face of housing protests, Portugal is trying to remove regulations on its rental housing industry. Either way, housing protesters are clashing with police.
The Urban Institute has a new white paper on whether data center development is coming at the expense of housing development.
A new report on home construction in Chicago finds that the practice of aldermanic privilege (where individual aldermen can veto projects in their district) is strangling development.
On Monday, a group of students from the University of Chicago stood outside the Chicago Mercantile Exchange—one of the world's largest and most diverse derivatives marketplaces—and called for the repeal of an obscure 1958 law that bans onions as futures products traded on U.S. exchanges.
Attracting an audience with a humorous jingle and amusing signs that included "Onions Deserve a Future," "Honk If You Want Free Onions," "Hot Girls Hedge Onions," and "Free Markets Feed Families," the student group, named For Our Futures, has a simple platform: a repeal of the 1958 Onion Futures Act, which prohibits anyone from trading in onion futures on commodity exchanges. (The law was amended in 2010 to ban motion picture box office receipts from being traded on commodity exchanges.) The viral campaign drew enough attention that Mike Selig—chairman of the Commodity Futures Trading Commission and a proponent of expanding the list of commodities traded on futures markets—was asked about the law in a media appearance.
American farmers produce about 6.75 billion pounds of onions a year, according to the National Onion Association, an industry trade group. While peers who grow cotton, wheat, corn, and soybeans can hedge against price swings by trading futures contracts, onion farmers have no such recourse under federal law. But, as the Agriculture Department's daily National Potato and Onion Report shows, onion prices are highly volatile and subject to wild swings, making them an ideal market for futures trading.
In its latest report, released Monday, the agency shows that onion prices have roughly doubled since this time last year. If onion futures contracts were legal, farmers could rely on market expectations instead of planting crops based on last year's prices. It would also let buyers potentially cut costs by locking in lower prices to protect against spikes. Trading onion futures contracts would give the industry a useful price-discovery tool, one that the student group aptly notes is "crucial for price stability and for hedging risks associated with weather and market fluctuations."
It's not For Our Futures' first time trying this gambit. The student group staged similar protests at college campuses in April and May, armed with bags of raw onions to entice passersby into signing their petition to legalize onion futures. The students' crusade might be comical, but after a recent Gallup poll found that 57 percent of Americans age 18–34 have a positive image of socialism, it's encouraging to see college-age students stand up for free markets.
A protest over onions sounds absurd, but it's a viral reminder to others in that age cohort of how far governments can go when given the slightest leeway to regulate an industry.
Instead of relying on outdated price points when planning future harvests, American onion producers could use resources like futures contracts that offer real-time market signals. All that would require—as the college kids state—is for federal lawmakers to "let the free market reign supreme."
On Monday, the Supreme Court agreed to hearAssociation for Education Fairness v. Montgomery County Board of Education. The case, which was originally brought forth in 2020 by the Association for Education Fairness (AFEF), a coalition of Montgomery County, Maryland, parents, alleges that Montgomery County's selection process for magnet programs (gifted programs for STEM and humanities studies in middle schools) violates the Constitution'sEqual Protection Clause by discriminating against Asian American students. The county insists that the selection process is race-neutral.
Montgomery County changed its selection process in the 2021–22 school year. According to reporting from The New York Times, the county was facing pressure from community groups, including the NAACP and Citizens Assisting and Sheltering the Abused (CASA Inc.), over the underrepresentation of black and Latino students in its magnet programs. Previously, students were selected based on test scores and grades. The new process implemented a lottery system in which high-achieving students are placed in a selection pool and selected at random.
The AFEF's central complaint is that the new system factors school poverty levels into the criteria for pool eligibility. This means students' eligibility depends on their scores relative to students in similarly affluent or disadvantaged schools, rather than the general population. They argue that since Asian Americans are concentrated in high-performing, lower-poverty schools, they have to clear a higher bar to become eligible. The group alleges the new system has caused fewer Asian American students to be admitted into magnet schools, a claim that is backed up by admissions data (which also show that the share of Asian American applications has fallen). The AFEF alsocites Montgomery County's 2015 hiring of Metis, a national consulting firm, to recommend ways to make the system more "equitable" as an indication of the county's effort to "racially balance" its magnet programs.
The complaint was dismissed by U.S. District Judge Paula Xinis in 2022, whoruled that the parents hadn't shown the policy disproportionately harmed Asian American students, citing the fact that they made up a larger share of admitted students than of the applicant pool. Xinis drew a distinction between accounting for economic disparities, which she called "wholly permissible," and racial discrimination. "Alleged disparity in treatment based on socioeconomic status alone does not make plausible discrimination on account of race," she wrote in the ruling. The tension raised by Xinis sits at the center of many debates regarding diversity, equity, and inclusion, as factors like poverty levels can often become a proxy for race; therefore, policies that are neutral on their face can still disparately impact a certain race.
In February, the 4th Circuit Court of Appealsupheld the dismissal, ruling that precedent from the Coalition for TJ v. Fairfax County School Board (2023) requires parents to show the policy disproportionately harmed Asian American applicants, which they hadn't. However, there is a real legal question as to whether racial groups should have to prove they were harmed as a group, as opposed to the individual, and lower courts have given mixed answers.
The Pacific Legal Foundation (PLF), a public-interest law firm representing the AFEF, litigated asimilar case in New York City, where the city implemented an economic need index in its admissions process for competitive high schools, aimed at increasing the number of black and Hispanic students. Again, parents alleged that the requirement discriminated against Asian American students. In 2024, the 2nd Circuit Court of Appeals found that if the city intended to discriminate, the parents don't have to prove Asian Americans were harmed as a group and that harm to an individual was enough for the case to move forward. The case was sent back to the district court to determine whether the city intended to discriminate, where it remains pending.
The Supreme Court will now settle the issue anddetermine "whether a plaintiff challenging a facially neutral admissions policy as racially discriminatory must establish that the targeted racial group suffered an aggregate disparate impact relative to its share of the applicant pool," according to SCOTUSBlog.
In a statement on Monday, PLF Senior Attorney Chris Kieser said, "The Constitution protects students as individuals, not as members of a racial group. A school district should not be able to defeat a discrimination claim by showing that its policy did not harm enough Asian American children. Every family deserves admissions rules that judge their child on their own merit."
SCOTUSBlog has published the final installment in our series on recent changes in constitutional law. This essay focuses on the separation of powers. It begins:
The late 1990s and early 2000s ushered in the Rehnquist federalism revolution, which appeared to place limits on Congress' powers and expand those of the states. Then came Sept. 11, 2001, and the global war on terror, which seemed poised to expand the president's powers. Yet, by 2008, Congress' powers seemed without meaningful limits and the president's efforts to expand his own powers had failed. And the separation of powers remained, well, separate. Nevertheless, the next two decades would vastly enlarge the president's powers as Congress' authority over the executive branch would be greatly diminished.
Here is a chart that shows the shift in cases:
Here is our conclusion:
Up to the fourth edition of our casebook in 2022, constitutional law followed a somewhat predictable arc. To be sure, there were shifts to the left and to the right, but the doctrine could be explained by a coherent narrative: the New Deal settlement on federal power was untouchable; the court would offer only modest protections for federalism; the administrative state was beyond reproach; attempts to single out unpopular groups would be halted; "benign" racial classifications were permitted; and church and state were strictly separated. Now, each aspect of this narrative has been reconceived. The five years since that edition appeared have brought the most changes to constitutional law since the Warren court.
We began this series by observing that lawyers tend to internalize the constitutional law that existed when they attended law school. The same is true of law professors. Virtually all law professors today came of age in a time of stasis. They could safely assume that the trajectory of the Warren court would continue indefinitely. But the jurisprudence of the Burger and Rehnquist courts was primed for a reversal, just as the Warren court reversed so many precedents from before. Ultimately, the Roberts court continues to chip away at precedents from the 1970s and 1980s, even if the precedents from the 1960s and before remain.
Many of these professors have struggled to cope with sudden changes in the doctrine. Some have voiced their despair of teaching constitutional law at all. Unsurprisingly, their students also struggle to cope with these developments. This trend is regrettable. Our role as casebook editors, and constitutional law professors, is to guide students through the entire corpus of constitutional law, from the framing to the present day, without any nostalgia for, or bias against, times gone by.
This is my last planned post with SCOTUSBlog. I'm sure there will be more to come.
The European Union claims that "the fundamental right to freedom of expression" only applies to journalists "acting in good faith," and that authorities do not have to give due process before freezing people's bank accounts, as these sanctions are "temporary and are not criminal in nature," according to a legal letter shared by a sanctioned journalist.
Last year, the European Union blacklisted 21 people for allegedly spreading Russian propaganda, banning them from doing business in Europe. One of them, Hüseyin Doğru, was falsely listed as a Turkish citizen living in Istanbul. In fact, Doğru is a German journalist in Berlin, making him the first European citizen on European soil to be sanctioned this way.
It was like being sentenced to "civil death," Doğru told American journalist Chris Hedges. He was banned from holding a job in Europe or having a European bank account, and authorities have restricted Doğru to a €506 ($567) per month allowance from his own money. "The sanctions are designed for people outside of Europe, so they don't really know how that should function with me, because I'm a European citizen and I'm living in Europe," Doğru told Hedges.
Last month, the civil libertarian Wau Holland Foundation hired lawyers to contest the sanctions against Doğru. And earlier this month, the Council of the European Union sent a response letter, which Doğru shared on social media, promising to escalate the case to the E.U. General Court. Although the council conceded to Doğru that he is not a Turkish citizen living in Turkey, it still insisted on the authority to punish him for his speech.
The council quoted a 2022 court case between the Russian news outlet RT and several European countries: "The protection of the right of the media and, more particularly, of journalists to impart information on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide 'reliable and precise' information in accordance with the ethics of journalism."
Doğru's lawyers insisted that he should be treated as innocent until proven guilty. But the council responded that sanctions fall short of a criminal punishment, so any complaint about a "violation of the presumption of innocence is therefore unfounded." In other words, because he is not accused of a crime, Doğru has fewer rights than a criminal suspect.
"People need to understand sanctions are an extrajudicial measure. They're extrajudicial. There's no court. There is no hearing, no evidence, there is no sentence by the court, nothing," Doğru told Hedges. "When you're sanctioned, you are not informed….The day when I was sanctioned, me and my wife, my wife was pregnant back then, we went to the pharmacy to buy medicine for her, and her cards did not work."
The original blacklisting decision accuses Doğru of supporting "actions by the Government of the Russian Federation which undermine or threaten stability and security in the Union" by spreading "false information on politically controversial subjects with the intent of creating ethnic, political and religious discord amongst its predominantly German target audience."
Doğru and his wife, British journalist Lizzie Phelan, previously worked at the Russian-funded publication Redfish. A few months after the Russian invasion of Ukraine, he split off to create a new website called red.media, insisting to The Left Berlin that "we are not Russian. We are not Kremlin. red.media is not funded by Russia or any other state." In the same interview, Doğru called Russia an "imperialist" regime.
But in September 2024, a Biden administration "fact sheet" on Russian propaganda offhandedly mentioned red.media, citing a hit piece on Doğru by the German newspaper Tagesspiegel. Doğru told Hedges that the U.S. fact sheet created a circular logic in German media: "They said red.media is Russian because [U.S. Secretary of State Antony] Blinken said so. But what they never said is that Blinken is referring to your articles where you never say it like that. You say there is a suspicion, it might be so."
Doğru shut down red.media in May 2025 due to the bad press. The European Union sanctioned him a few weeks later. Doğru's lawyer, Alexander Górski, told the Frankfurter Allgemeine earlier this year that the European Union didn't "even attempt to make an evidentiary case" about any ongoing connection to Russia.
The blacklisting decision also claimed that, during a pro-Palestinian student protest at Humboldt University in Berlin, red.media "coordinated with the occupiers to disseminate images of their vandalism—which included the use of Hamas symbols." Doğru told Hedges that these accusations are an attack on journalists' freedom to do their jobs.
The European Union does not have the same protections for the freedom of the press as the U.S. Constitution. Earlier this year, the Curia of the European Union ruled that simply reposting clips from Russian media could be a violation of European sanctions, even if no money changes hands, something that is explicitly exempted from U.S. sanctions under the Berman Amendment.
Still, U.S. authorities have tried to push the limits of international sanctions to censor speech. The Biden administration told an American nonprofit that "the provision of a platform for [the sanctioned individuals] to speak" was illegal, backing down after the nonprofit sued.
And the Trump administration sanctioned Italian academic Francesca Albanese for her "lawfare" calling for the prosecution of Israeli leaders and a boycott of Israeli industries. In addition to freezing her bank accounts, the sanctions forced Columbia University researchers to cut off their relationship with Albanese, and Georgetown University to close her email account.
In the same statement accusing red.stream of being a Russian front, the Biden administration announced sanctions on two Russian news agencies. "We encourage dissent, open debate, and free discourse. But we will not stand for attempts by state actors to carry out covert activities with the goal of hijacking that discourse," the statement insisted. "The ultimate goal of sanctions is not to punish, but to bring about a positive change in behavior."
Most New Yorkers are lawbreakers and don't even know it.
New York City requires residents to separate certain sorts of food scraps from the rest of their trash. Composting diverts waste from landfills, creates nutrient-rich soil, and helps the environment by reducing greenhouse gases.When food scraps are buried in a landfill, they decompose without access to oxygen, causing the release of methane. Composting lets rotten food breathe and reduces methane emissions. In New York City, composting is also supposed to save money by reducing the amount of trash that the city hauls to landfills and incinerators, many of which are out of state.
The city's older, voluntary residential curbside composting initiative started as a pilot program 13 years ago under Mayor Michael Bloomberg. In his 2013 State of the City address, he declared that he would "tackle New York City's final recycling frontier, and that is food waste." Mayor Bill de Blasio wanted to expand the program, butin 2018that was put on hold due to exploding costs and low participation rates.
Around this time, according to the Citizens Budget Commission (CBC), the city was spending an estimated $1,700 per ton to collect organics compared to $291 per ton of regular trash, as special composting trucks were carrying relatively little waste. The CBC also reported that in participating neighborhoods, almost 90 percent of organic material was still going in the regular trash in 2017. During the pandemic, budget constraints forced the sanitation department to pause compost pickups altogether.
The city made composting mandatory in late 2024, under Mayor Eric Adams. Since then, residents have had to separate eggshells, orange peels, and other food scraps from regular trash and dispose of these organic materials in composting bins. In April 2025, the city began issuing fines of up to $300 to property owners who failed to comply. The city paused fines for most violators a few weeks later, on the grounds that New Yorkers needed more time to learn what to do. Now, under Mayor Zohran Mamdani, the composting enforcement fines are back.
With all this confusion, it's hardly surprising that New Yorkers are not great composters. According to the New York City Independent Budget Office (IBO), "Organic waste—food scraps, yard waste, and other compostable materials—make up roughly 36% of the City's residential waste stream, yet organics collections were 2.4% of residential waste collected in [fiscal year] 2025." In other words, New Yorkers separated only about 7 percent of their organic waste from the regular trash during the first nine months of the citywide composting program. A recent report from the city government says that the amount of all organics separated from the rest of the trash increased by 25 percent in fiscal year 2026. Given the already low levels of compliance, the figures are still not encouraging.
It's unclear exactly how much the city is spending on this largely ignored program. A spokesperson for the Sanitation Department told Reason, "It is difficult to put a number on it, since composting is integrated with so much of [the department's] other work, but for personnel and processing, the city budget includes baselined funding for 299 uniform positions at a recurring cost of $33.4M a year for curbside organics collection."
Still, some have tried to estimate how much the city would need to compost to make the program cost-effective. Samantha MacBride, a former director of research and operations at the sanitation department, has estimated that the city would need to sort out about 30 percent of its organic waste.
The Mamdani administration attempted to increase compliance by reinstating fines at the beginning of this year. Buildings face tickets of up to $300 for failing to compost or composting improperly, but the fines haven't had much impact. According to data from the city's sanitation department, there was a brief jump in the amount of organic waste collected after Adams instituted fines in April 2025. But oddly, the monthly tonnage collected in May, June, and July of 2025 (when fines were not being enforced) was higher than in May, June, and July of 2026 (when fines were in effect).
City of New York
Suppose all residents complied with the composting mandate. Would the city even be able to process all that waste? Absolutely not.
As of 2025, the city can handle only about 400,000 tons of organic waste per year. That organic waste goes either to traditional composting facilities or to anaerobic digesters, which turn waste into energy. Based on the IBO's estimate that 36 percent of residential waste is compostable, New York residents produce around 1.1 million tons of compostable organic waste per year.
The city's composting and digesting facilities would hit capacity if New Yorkers put barely more than a third of their organic waste into brown bins. Not that the city is close to that level of compliance. Right now, it's still trying to tell New Yorkers the mandate even exists.
In one amusing effort to alert citizens about composting, the city launched a Sex and the Citymarketing campaign funded by a grant from the Environmental Protection Agency. The ad features the composting mascot "Scrappy" on the side of NYC buses and urges residents to call 3-1-1 if their buildings aren'tcomplying with the rules.
Reason asked several New Yorkers whether they understood this ad. Overwhelmingly, they did not.
One might think this PSA would at least inspire Carrie Bradshaw wannabes in Manhattan to compost, but no. Manhattanites actually tend to be the worst composters. This may be due to living in cramped apartments and large apartment buildings. The borough with the highest composting rate is actually Staten Island, the city's Republican stronghold, where many residents live in single-family homes.
Steven Cohen, who used to run Columbia University's Earth Institute, is skeptical that the program will ever achieve 100 percent compliance. He believes composting is a worthwhile endeavor, but as he told Reason, "It takes a lot to change people's habits." That's why he has proposed an alternative to relying on individuals to sort their trash: AI.
Ideally, he says, a mixed stream of garbage could go to "essentially a waste mining facility where artificial intelligence and robotics will do the separation for us and try to extract the value out of the waste stream." Instead of paying to send garbage to landfills, he says, we could extract, process, and sell the valuable mineral resources in the waste stream. Some places, such as Portsmouth, Virginia, have begun experimenting with AI trash sorting, but the technology is still in its early stages.
And for now, New York City seems determined to keep its mandatory composting program going with fines and confusing reminders from Scrappy.
Photo Credits: MEGA / Dennis Rees / MEGA / Newscom/DRSTA/Newscom; John Marshall Mantel/ZUMAPRESS/Newscom; RICHARD B. LEVINE/Newscom: Rafael Ben-Ari/Chameleons Eye/Newscom
Music Credits: "Sneaky Tactics" by Ilona Harpaz via Artlist; "Gentle Persuasion" by Matt Evans via Artlist; "Second Smile" by LMOP via Artlist; "Catch Me" by Ty Simon via Artlist; "The Microwave Dance" by Semo via Artlist
Hello and welcome to another edition of Free Agent! Be careful when you're behind the wheel this week.
College football is great! Surely you want even more of it, right? We'll get into the problems with a 24-team College Football Playoff (CFP), then talk about the NBA's new betting restrictions, and close with thoughts about President Donald Trump's new government golf course plans. And just in case you don't make it to the end, here's a shortcut to our survey on who you're rooting for in the World Series.
But first, many congratulations to "Gary's 1st Entry" on outlasting everyone else in our NFL Survivor group. There's no prize other than this shoutout, so be sure to print out today's newsletter, highlight this paragraph, and frame it in gold. Perhaps Gary can keep going and challenge Primetime Paulie Rothrock's 13-game winning streak from last season.
Locker Room Links
Both teams in the WNBA Finals left the court for the National Anthem—unclear if this was a protest or just part of the pregame routine. WNBA policy doesn't require teams to be on the court for the anthem, but does require a "dignified posture" if they are.
In the thick of a playoff race, three Zambian women's soccer players are separated from their National Women's Soccer League teams because they played in Uganda, and the Centers for Disease Control and Prevention has a three-week restriction on reentry due to Ebola. (There are zero active Ebola cases in Uganda and Zambia.)
This is the kind of excessively nerdy fantasy football content I live for. (Yahoo remains the best fantasy sports system. ESPN's is trash, relying on name recognition to get by.)
I figured out how ESPN calculates fantasy football win percentage, it's bad!
ESPN made a stats 101 error when calculating their win percentage which leads to horribly miscalibrated numbers. ( thread) pic.twitter.com/bDypgjelKj
Saturday was one of the best days of college football ever—or perhaps it could have been, if we thought any of the five top-10 teams who took a loss were now certainly out of playoff contention. Instead, Georgia, Notre Dame, Indiana, Alabama, and Texas are all still very much alive in the championship hunt.
Today was one of the craziest days in college football history:
- First time ever five teams ranked in the top 7 lose in a single week - First time the No. 1-ranked team loses to an unranked team in consecutive weeks since 1990 - First time Texas, Alabama, and Georgia all lose… pic.twitter.com/psVRoM5s5b
With two losses, Alabama and Texas are at least on the edge of the playoff bubble with perhaps no more room for error. But that's only true under this year's CFP format. Next year, the playoff is almost officially set to balloon to 24 teams, making the chaos of a day like Saturday matter even less.
Fans will always celebrate a huge upset or major rivalry win, of course—Tennessee fans don't need playoff stakes as an excuse to get drunk when they beat Alabama. But the joy of a rivalry win in the past was always bigger because of the off-field stakes, too—the first loss for your rival meant they probably wouldn't be national champions, the second meant they'd be out of the Rose Bowl, a third meant you could be proud your team sent them packing for the Alamo Bowl. Winning is great; ruining your rival's season is even better.
With 24 teams in the playoff, the joy is a bit diminished because it will take four or possibly five losses to knock a powerhouse program out of the CFP (Iowa, at 8–4, was ranked 23rd by the committee before last year's playoffs). It'll be a bit like a rivalry win in college basketball—we win, you suck, congrats on getting a slightly worse NCAA Tournament seed.
In the business of sports, more inventory for TV is king, and the powers that be think more teams playing more playoff games will make more money. At Free Agent, we don't begrudge institutions for trying to make more money—we all do the same every day. But it's not clear abandoning conference championship games will be the answer, especially when the Big Ten and SEC championships apparently outdraw many playoff games.
ESPN and the power conferences know fans aren't happy about it—just look at allthechatteronline, and how the crowd at BYU reacted when College GameDay discussed expansion on Saturday (especially when BYU would probably benefit from expansion!). They're betting enough people will watch to make the expansion profitable anyway. The last hope is that fans get loud enough to bully them into abandoning expansion—which only occasionally works, sometimes on things small (putting the trophy logo on the court for the NBA Finals) and large (soccer's European Super League). If any powerhouse considers going independent, that might shock leaders into a rethink too.
Almost every sport I know is adding more: more teams, bigger playoffs, more for TV. As fans, we still eat it up, of course—much to the excitement of the TV executives who are selling commercial time to the people trying to reach us, the viewing public. (The only counterexample is the MLB proposal to cut eight games from the regular season—I'd love to see each sport I follow cut its season by about 25 percent to make regular season games matter more, so I'm interested to see how this goes.)
Perhaps I'm biased because my favorite team, Michigan State, is a dumpster fire—they could expand the playoff to 64 teams and the Spartans still wouldn't deserve a bid. I personally don't have a whole lot at stake in the playoff format now or anytime soon. But as a neutral, the chaos of Saturday might have been viewed with my full attention in the past—instead, this year I just had it on in the background while I played video games.
Sports Are Regulating Bets Without Politicians, Part 3
After last year's major betting scandal, the NBA asked sportsbooks late last week to stop offering certain types of potentially problematic bets. The sportsbooks, which the NBA says handle roughly 99 percent of the U.S. betting market, agreed. No politician or regulation was necessary to solve the problem.
No longer can bettors bet on unders for a bit player who likely won't get more than 12 minutes of playtime. Bettors also can't wager on the opening tip or on players to miss specific shots. Parlays that string together under bets on the same player's statistics are also out (this one seems a bit harsh—if you just want to bet on a certain major player to have an off night, you can bet on stats separately, but not in a big multiplier parlay). Bets on players who have two-way contracts between the NBA and G League were already banned.
This all comes on the heels of similar developments last year in the NFL and MLB. While some people want to ban prop bets altogether, the NFL asked sportsbooks to eliminate bets in four different categories. Sportsbooks largely agreed or weren't offering those bets anyway. MLB, in light of some pitching-related scandals, asked for a $200 limit on pitch-specific bets and to keep them out of parlays—sportsbooks agreed to that too.
As I wrote last year, "Ideally, this is how the regulation of the sports betting industry should go….These approaches are catching the nuances of what works for both the leagues and for sportsbooks without the heavy-handed approaches of politicians who would use an axe to ban all prop bets instead of a scalpel to limit problematic bets."
It's important to note leagues are able to do this because they have commercial partnerships with the sportsbooks. Otherwise, the leagues would have no direct leverage over a sportsbook offering a bet the league doesn't like. Keep that in mind the next time you see people bemoaning a league partnership with a sportsbook or a prediction market.
Trump's Golf Course Plans Have People Teed Off
President Donald Trump has new plans for the National Park Service golf course at East Potomac—again. Last time new plans were announced, the site plan still had its historic miniature golf course, a par-3 course, and the existing road still ringing the property for bicycling, running, etc. Much of the public didn't like that plan anyway—now, none of that remains in the latest plans, just 18 holes of golf and a driving range.
What's really going on here seems quite clear to me: Like so many other things going on in the second Trump administration, this is a scheme to enrich the Trump family. The plan?
Step 2: Use taxpayer dollars to pay for renovation of the course into, allegedly, a championship-level course capable of hosting major golf tournaments (no matter that the area has next to zero parking, is a mile from the nearest Metro station, and only accessible by narrow roads not meant to handle tens of thousands of spectators).
Step 3: Have the federal government sign a sweetheart deal with, who else, the golf division of the Trump Organization to operate the course on extremely favorable and profitable terms.
If you're wondering why the Trump administration is doing something, corruption is usually a good guess.
The arguments for the course don't make much sense. There are plenty of adequate, competitively priced golf courses in the broader Washington, D.C., area. Several of them are already capable of hosting professional golf tournaments. Between LIV Golf and the PGA Tour, there were three tournaments at three different courses in the last couple years. The 2030 PGA Championship and 2037 Ryder Cup will happen just over the D.C. line in Bethesda, Maryland.
East Potomac is not the nicest course around, no thanks to the legal limbo it's been in for the past year. But if the National Park Service is going to, for some reason, be in the business of running a golf course, it should be a course that emphasizes and teaches its history instead of the pipe dream of a corrupt madman.
Who Ya Got? 2026 World Series Edition
For the first time in 46 years, we've got a World Series contested by two teams that have never won it before. Brewers against Rays is also a rare instance of the top seeds from each league outlasting the randomness of the MLB playoffs to make the World Series. And before you trot out the tired line that "TV executives must be seething about the small market teams" remember that they care much more about getting a playoff series that goes seven games with close results in each game (What did I say above? Inventory rules all!).
Can Republicans just spend their way to success in Ohio? "Republicans have bombarded Ohioans with ads with $19 million spent on competitive races through Oct. 12, intended to sell voters on the tax law that had been called the One Big Beautiful Bill," reportsThe Washington Post. "But the message is struggling to connect with voters amid anxiety over tariffs and the war with Iran, which have pushed up prices for everyday products. The ad blitz, the most spent on the topic in any state with competitive races, is aimed at bolstering vulnerable GOP candidates in a state that was considered safely Republican for the better part of the last decade."
Republicans in states across the Midwest (and the country) have experimented with distancing themselves from the Trump administration and its agenda; it's hard to know if this strategy will prove successful, or if it's just too little, too late. In Ohio, though, Republican candidates are mostly staying close to Dear Leader.
Sen. Jon Husted, a Republican, is running for U.S. Senate against Democrat Sherrod Brown in what looks to be an extremely tight race; ads claim Husted has "supported ending taxes on tips, overtime and Social Security, plus a $200 million investment in rural hospitals," trying to tie him closely to President Donald Trump's agenda. But it's really not clear whether this type of pitch will be enough to make voters forget about tariffs and inflation, the war in the Middle East and gas prices. A New York Times/Siena poll found that 79 percent of likely Ohio voters disapproved of Trump's handling of gas prices. It's hard to sell people on a tax cut when they're paying a different tax, in the form of tariffs, every time they go to the store; Ohio voters might not be so easily swindled.
Gun laws in Oregon: In the aftermath of the tragic shooting at an elementary school in Bend, Oregon, where a 16-year-old killed three little kids and one teacher, some parents of elementary schoolers there are asking what laws can be changed.
But "Oregon earns high marks from gun safety advocates for its firearms laws," notesThe New York Times. "Everytown for Gun Safety, one of the nation's largest gun violence prevention organizations, ranks Oregon 12th in the country for the strength of its laws, citing recent legislation tightening storage requirements, banning untraceable 'ghost guns' and prohibiting devices that can convert semiautomatic firearms into machine guns." Gifting laws are pretty lax, though, and that might be what happened here: The 16-year-old's mother seems to have been the one who purchased the Maverick 88 12-gauge pump-action shotgun, so it's possible she either gifted the gun to her son or that he stole it from her. "Decades ago, Oregon lawmakers made an exception to gun laws that allow parents to give rifles and shotguns to minors. In many areas of the state, as in other parts of the American West and South, it's a rite of passage for a young person to receive a weapon for hunting or target practice."
There's no law that can really prevent theft of weapons, especially when the thief is a teenager living inside the home where the gun is stored, and there's no law that can prevent parents from foolishly gifting guns to teenagers or young adults whom they've misjudged as capable of handling the responsibility. These are terribly unsatisfying realities.
Prosecutors could, of course, attempt to try the parent for the crimes of their teenager. They "could consider charges ranging from reckless endangerment to manslaughter or criminally negligent homicide, a felony punishable by up to 10 years in prison," continues the Times. "But that would require evidence of more than just a parent's awareness that a child was troubled. Prosecutors would have to establish that the mother disregarded—or, in the case of criminal negligence, failed to recognize—a substantial and unjustifiable risk."
Scenes from New York: "Mayor Zohran Mamdani announced on Monday that New York City will expand free child care for 2-year-olds to Staten Island and across the Bronx as the city moves to add 10,000 seats next school year," reportsThe New York Times. Here's why that won't work:
QUICK HITS
Something juicy for you, readers, since I too frequently subject you to my Catholicism. Let's switch it up: "I'd been thinking about turning down the speed on my vibrator for a long time, but I'd considered my affliction personal, not society-wide. Now it was dawning on me that the problem wasn't simply mine. Women are being sold egg-shaped suction devices in the pages of New York magazine, and BookTok influencers pair with sex-toy companies for promotional collabs. Yes, there is a bookmark that doubles as a vibrator," writes Sarah Hepola for The Atlantic. "Does this consumer game of one-upmanship amid the mainstreaming of vibrators even matter? There are too many varieties of women's razors, too, and I don't care. But what worries me is how this points in the direction in which so much of modern life has been barreling: self-pleasure, self-love, self-care, self, self, self.…Like so much of our day-to-day lives, getting off is becoming more efficient, easier, faster. But has it gotten better?"
"Next year, I will give one of my SpaceX shares to every kid in America," wrote Elon Musk on X yesterday. "This will be the first of many."
"Mahmoud Khalil, the Columbia University graduate arrested last year by Immigration and Customs Enforcement agents amid campus protests, appealed to the Supreme Court on Monday in an attempt to prevent his deportation," reportsThe New York Times. "Khalil, a legal permanent U.S. resident who is married to an American, became an early and high-profile example of President Trump's crackdown on pro-Palestinian demonstrations on college campuses."
The federal drug police want to turn consumers of certain concentrated kratom-derived products into criminals while leaving traditional kratom leaf products outside the ban. Before exposing adults to arrest and prosecution, the feds owe them a scientific explanation for that distinction.
On October 14, the Drug Enforcement Administration (DEA) announced its intent to temporarily place 7-hydroxymitragynine (commonly called 7-OH) and mitragynine pseudoindoxyl—above specified thresholds—in Schedule I. Schedule I is the category for drugs that the agency thinks have "no currently accepted medical use" and "a high potential for abuse." A scheduling order could be issued on or after November 13.
The DEA already classifies mitragynine pseudoindoxyl as a Schedule I substance regardless of concentration. The proposal would ease that restriction by introducing thresholds—while imposing new Schedule I restrictions on 7-OH under the same criteria.
The Food and Drug Administration (FDA) and the Department of Health and Human Services (HHS) have supported the DEA's move, and HHS supplied the proposed thresholds. Under the temporary scheduling provision of the Controlled Substances Act, the DEA must consider HHS's comments but need not follow its recommendations. Congress gave a law-enforcement agency the authority to decide which drugs individuals may consume.
The ordinary scheduling process gives health officials more authority: HHS's scientific and medical findings bind the DEA, and its recommendation against control prevents the agency from proceeding. But temporary scheduling lets the DEA bypass those requirements when it determines a substance poses an imminent hazard to public safety.
Congress should never have given federal drug police that power. Having done so, it should at least demand compelling evidence before they exercise it.
Kratom comes from a Southeast Asian plant whose principal alkaloid is mitragynine. Its leaves contain trace amounts of 7-OH. Manufacturers also sell concentrated 7-OH products and products containing the related compound, mitragynine pseudoindoxyl.
Millions of Americans use kratom or kratom-derived products. A 2022 review cited an estimate of 2.1 million U.S. users in 2020. In a survey of 2,798 users, 91 percent reported using it for pain and 41 percent said they use it to reduce or stop opioid use. In a letter to HHS, nine military veterans described using 7-OH to manage pain and symptoms of post-traumatic stress disorder and to move away from other opioids and from alcohol. They warned that banning it could drive them back to more dangerous drugs.
These reports describe benefits that warrant further study and needs that will persist after a ban.
Concentrated 7-OH products deliver a potent alkaloid without requiring consumers to ingest large amounts of kratom leaf. 7-OH is significantly more potent than mitragynine in activating the opioid receptors involved in pain relief. Researchers still need to determine how its benefits and risks compare across different human doses.
The DEA's proposed criminal controls hinge on concentration and composition. The concentration threshold is 1 milligram per gram of solid material or 1 milligram per milliliter of liquid, calculated for the two covered substances combined. Products would also trigger controls if the mitragynine-to-covered-substances ratio fell below 100 to 1.
Consider a tablet containing 15 milligrams of 7-OH, a strength advertised by some sellers. If the tablet weighs one gram, its concentration exceeds the limit fifteenfold. Diluting the same 15 milligrams into a product weighing 15 grams brings it to the concentration limit. Consuming the entire product still delivers the same dose. It would also need at least 1,500 milligrams of mitragynine to avoid the separate ratio restriction.
Adding bulk changes the concentration but does not change the amount of 7-OH consumed. These calculations tell us nothing about whether that dose is effective or safe.
The DEA acknowledges that controlled trials have not established safe consumption limits or standardized dosing for concentrated 7-OH products. Neither DEA nor HHS has determined that below-threshold products are safe.
In a public comment submitted to HHS in July, I urged officials to obtain the human evidence needed to justify a threshold before setting one. Animal studies can reveal hazards, including dependence and respiratory depression, but they cannot, by themselves, identify a scientifically defensible cutoff for human consumption.
Officials may intend these thresholds to distinguish traditional kratom from concentrated products. What evidence shows that crossing that boundary justifies criminal penalties?
The DEA also owes consumers an accounting of what prohibition could do to them. People seeking relief from pain or withdrawal will still need it after a ban. Some may abandon these products, while others may turn to illicit sellers or switch to other opioids. Criminalizing those choices could make them more dangerous.
Misleading labels, contamination, dependence, and drug interactions warrant attention. Accurate labeling, independent testing, age restrictions, and enforcement against fraud can address several of these concerns. Before resorting to criminal penalties, the DEA should explain why those measures would be inadequate.
We already know how difficult it is to verify a drug's identity, strength, and purity in an illicit market. Creating another prohibited product will give that market another opportunity.
Autonomous adults should be free to decide which substances they consume and which risks they accept. The DEA proposes taking that choice away even as it acknowledges major gaps in the medical evidence. Before the drug police turn more consumers into criminals, they should at least demonstrate how doing so will make those consumers safer.
L.R. and her mother, R.S., alleged that after an incident involving L.R.'s father at end-of-school pickup, employees of Jennings School District placed L.R. in an out-of-school virtual learning program that was inferior to regular schooling. According to their complaint, the district employees did not provide L.R. with an explanation of how her conduct justified the suspension, a timeline or consistent standards for returning to in-person classes, or an opportunity to be heard or appeal. Those shortcomings, they argued, violated L.R.'s rights to constitutional and statutory due process as well as a free public education.
Since then, the parties have reached a settlement…. As to the settlement, the Court intends to approve it provided that the plaintiffs file an amended complaint that discloses R.S.'s identity.
[R.S.] argues that disclosing her identity "will effectively disclose L.R.'s identity" too. True, the Federal Rules of Civil Procedure presumptively require anonymizing minors by their initials, but there is no similar requirement for parents. Compare Fed. R. Civ. P. 5.2(a)(3) (stating that filings must replace "the name of an individual known to be a minor" with "the minor's initials"), with id. 10(a) ("The title of the complaint must name all the parties."). Instead, Rule 10 creates a "strong presumption against allowing parties to use a pseudonym." A party may overcome that presumption "only in those limited circumstances where [the] need for anonymity outweighs countervailing interests in full disclosure."
This case is not one of them. R.S. and L.R. do not share a last name, and R.S. has not established that third parties necessarily will infer L.R.'s identity from her mother's.
Even if third parties would discern L.R.'s identity, the fact that she was suspended from in-person classes after a vaguely described "incident" involving her father is not particularly sensitive…. [O]ne factor to consider [in pseudonymity cases is] whether identifying a party "threaten[s] to reveal information of a sensitive and highly personal nature" …. "[S]ome cases allow parents who are suing on behalf of their minor children to proceed pseudonymously, at least when the case involves highly personal information about the children" …. This case does not involve, for example, sexual assault or coercion of a minor to use drugs.
If anything, there are weighty interests in full disclosure because knowing the identities of the people involved in this case could help third parties assess the reasonableness or unreasonableness of a school policy that has become a topic of public debate across the nation. The school district in this case has been featured in national media on the topic of discipline at issue. See, e.g., Carly Graf, The newest form of school discipline: Kicking kids out of class and into virtual learning, Washington State Standard (Aug. 7, 2023) (explaining how "[s]chool districts across the country, including in Missouri, have begun punishing students by forcing them into online classes"); id. (quoting the "superintendent of Jennings School District in Missouri"). R.S.'s own complaint invokes the surrounding policy debate about virtual learning, including what critics say is a negative effect on students of certain races. Therefore, the Court will deny her motion for leave to proceed anonymously.
The settlement, by the way, was that "[a]lthough the defendants are not required to admit liability, they must remove any mention of the suspension from L.R.'s records, promote her to 8th grade, pay her $40,000 dollars plus $20,000 to her attorneys, and make available a policy that "clearly enshrines due process protections for all students prior to any transfer to virtual learning."
I've seen some say yes as to that—as an objection to gun control laws, not as an objection to the man's actions—but I don't think it's quite right.
It's true that Oregon law generally criminalizes gun possession on school property, including by people with concealed carry licenses, if the school board adopts such a no-guns-allowed policy. And apparently the Bend school in which the shooting took place indeed has such a policy.
But Oregon law recognizes a so-called "choice of evils" defense, often called a "necessity" defense, that allows people to violate a wide range of laws if it's genuinely necessary in an emergency:
(1) Unless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when:
(a) That conduct is necessary as an emergency measure to avoid an imminent public or private injury; and
(b) The threatened injury is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.
(2) The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.
That means that, even when gun possession is otherwise criminal, it is "not criminal" when it's necessary to avoid imminent serious harm. Indeed, even felons, who are generally barred from possessing guns, may pick up a gun that's physically available to them when it's necessary for imminent self-defense:
We think that the trial judge's conclusion that ORS 161.200 [the choice of evils statute] is inapplicable to the offense of being an ex convict in possession of a firearm is incorrect. The statute contains no such express exception, and we see no justification for implying one. To the contrary, one who has been previously convicted of a felony is just as entitled to defend himself from an imminent threat of injury as is any other private citizen. We hold that the defense is available to those who have been previously convicted of a felony and, in appropriate circumstances, may justify their resort to a weapon which it would otherwise be unlawful for them to possess.
Likewise, a law-abiding gun owner may go into a school where gun possession is otherwise criminal when it's necessary to try to stop a school shooting. (Even in jurisdictions that don't formally recognize a choice-of-evils / necessity defense, the separate doctrines of self-defense or defense of others may provide a defense as to bringing a gun onto school property in such a situation, just as they provide a defense as to using the gun to kill the shooter.) And while in some situations the balancing test in the necessity defense can be vaguer than the somewhat more precise terms of the self-defense defense, carrying a gun into a no-guns zone in order to stop an apparent in-progress school shooting makes for an extraordinarily clear case for the defense.
Nor is this just a matter of prosecutorial discretion. If a prosecutor does file charges in such a situation, the gun owner can raise the defense. And if the evidence is sufficient to potentially trigger the defense (e.g., if the defendant or a witness testifies to facts that a reasonable jury may interpret as sufficing for the defense), then "the state must negate [the defense] beyond a reasonable doubt."
In this respect, the choice-of-evils defense is much like the defense-of-others defense. Killing someone is generally a crime; but the law recognizes that sometimes it's justifiable (in particular, to defend yourself or others against death or other very serious harms), and thus provides a defense-of-others affirmative defense.
Likewise, carrying a gun onto school property in Oregon is a crime when the school district forbids it. But the law recognizes that sometimes it's justifiable (in particular, to defend people against a school shooting), and thus provides a choice-of-evils affirmative defense.
Naturally, the operation of the defense depends on the good sense of prosecutors, judges, and juries—just as the operation of the self-defense and defense-of-others defense do. But it's the way our legal system deals, even if at times imperfectly, with situations where an emergency need warrants what would otherwise be illegal action (whether that otherwise illegal action would be murder, as to the shooting itself, or a weapons offense, as to the carrying of a gun onto school property).
Of course, the choice-of-evils defense doesn't work for people who want to carry guns in forbidden places simply to be prepared in case the gun is needed (the usual reason most people who carry guns do so). One can certainly debate whether schools should allow at least some people, such as teachers or other school staff who are trained and licensed, to keep guns on their persons in school.
But even if you think the Oregon law (coupled with Bend's policy) is foolish in generally criminalizing gun licensees' carrying a gun onto school property, it's not so foolish as to criminalizing their carrying a gun onto school property when necessary to stop an in-progress school shooting.
In popular rendering, international politics since 1945 has been shaped by the so-called "liberal order." Led by the United States, a bundle of international institutions, rules, and norms intended to limit interstate competition and facilitate cooperation were widely embraced, contributing (per this narrative) to a peaceful and prosperous world. Today, that system seems to be breaking down, leaving policymakers, pundits, and scholars grappling with what a future order should entail and how this system should be orchestrated.
Rivers of ink have already flowed in service of this foundational question. To the mix we can now add Charles Kupchan's Bringing Order to Anarchy. Kupchan, a professor of government at Georgetown University and a senior fellow with the Council on Foreign Relations, is interested in both how the present crisis of order arrived and what should be done about it—as he puts it, "How did we get here?" and "What do we do now?" In his telling, we arrived at this moment because of the diffusion of power abroad, combined with shifts in domestic priorities among key members of the post-1945 order (especially the United States). The post-1945 order, he concludes, is thus irredeemably broken.
Going forward in what he sees as an increasingly multipolar world, Kupchan advocates a "global system of concerts" modeled on the Concert of Europe—the international order established after the Napoleonic wars. His proposed system would prioritize relations among the great powers, creating "informal and flexible steering groups" that would emphasize "building consensus, establishing lateral lines of authority across power centers, and providing top down governance." In practice, influence and authority would devolve to different regions, within which local great powers would play leading roles in shaping regional affairs. Meanwhile, the great powers would meet as part of a global concert, sitting atop regional orders as a kind of deconfliction and organizing body.
The most welcome contribution here is Kupchan's call to accept the end of the post-1945 order and to work within the constraints of a new distribution of power. For all that policymakers and analysts recognize that change is needed, the debate over the future of international order tends to focus on preserving whatever elements of the existing order we can. It also tends to attribute the need for change to shifts in U.S. domestic politics. Kupchan, on the other hand, helpfully reminds us that order depends first and foremost on the distribution of power. States, after all, are the building blocks of any international system, just as relative power affects both what they want and their options for pursuing their interests. The creation and maintenance of an order therefore hinges on whether it broadly reflects the distribution of power, allowing states to get some of what they want, through means most can accept.
It follows that pronounced shifts in the distribution of power require adjustments in the larger system. The greater the shift, the greater the change. And since the power shift underway today is foundational—with China emerging as a peer competitor to the United States, American power in relative decline, and power diffusing away from the West (broadly conceived)—it would be extremely foolhardy to try to preserve an order created at a very different historical moment. With a new distribution of power, Kupchan recognizes, a new system is required. Hard stop.
Still, Kupchan's call for creating a concert to replace the extant order is not entirely convincing. Two problems stand out.
First, the very same power shifts that require change to the current system leave the efficacy of the concert approach open to question. If great powers are to play the leading role in a concert system, it matters both which states constitute the great powers and how their relative power compares to one another. But amid a power shift, these are the very issues that are likely to be intensely contested, if not fundamentally uncertain. It's inauspicious for the envisioned concert, for instance, that scholars of international politics cannot agree whether the world today is unipolar, multipolar, bipolar, or something else altogether. Absent some baseline understanding of the distribution of power, it is difficult to see how a concert would form, gain buy-in, and operate successfully.
Kupchan's invocation of the Concert of Europe itself alludes to the problem. It is no accident that the Concert formed only after 25 years of warfare clarified the European distribution of power, and waned as power shifted (due heavily to the emergence of Germany). Nevertheless, Kupchan doesn't seriously engage with this core requirement for a concert model when he makes the case for a concert today. The result is a tension between the book's underlying logic and its top-line policy prescription.
Second, and relatedly, it is not completely clear what the concert's remit would actually entail. On one hand, Kupchan argues that the "Global Concert would be a consultative body, not a decision-making one"; it would "tee up decisions that could be taken and implemented" by other ordering bodies. Yet Kupchan also notes that a key virtue of concerts writ large is their ability to "lower the bar to reaching and abiding by agreements"; similarly, he calls for concert diplomacy that would set up "bespoke steering groups to tackle specific challenges," particularly in security affairs. This suggests something grander than a consultative body. "Reaching and abiding by agreements" and setting up ad hoc fora to tackle specific challenges are decisions. Indeed, even "teeing up" ideas and decisions that could be tackled by subordinate international institutions and structures is a kind of decision.
One gets the sense that Kupchan is not totally comfortable with the implications of his own reasoning. If new great powers are emerging and are poised to dominate international politics, and if these states are to coordinate with one another in small group settings, it seems likely that the concert would be a decision-making body. Alternatively, if the concert is to truly function as a consultative body, it is unclear why new great powers eager to assert influence over the international agenda would sign up and give credence to this exercise.
Beyond the logic of the concert system itself, no review of Bringing Order to Anarchy would be complete without some reflection on the volume's discussion of U.S. politics. The book contains a lengthy list of proposed domestic changes, including calls to encourage civility, forge bipartisan consensus, put the U.S. fiscal house in order, and avoid ideological excesses at home. No doubt many readers would agree with these recommendations. Still, it is not really clear what these proposals do to advance Kupchan's core arguments. Rather than directly affecting the creation or operation of a concert order, the domestic challenges he wants to remedy act as constraints on U.S. power: They impede the translation of U.S. material capabilities into international influence. Accordingly, a concert system could operate even with a domestically dazed and confused United States—the U.S. would simply be a less effective participant. Changing the domestic status quo may be a good thing, but it is not central to the mission of explaining what a future international order entails. The book's domestic discussion ends up being an odd discursion.
Still, this is an important book. In calling for casting the former order aside, Kupchan brings needed clarity to a meandering discussion. By the same token, it is very useful to bring insights from the Concert of Europe into the policy conversation. Whatever gaps there might be in its ideas about the logic and operation of a concert system—or the relationship of domestic politics to a concert—the book raises a new set of options, and that in itself is a valuable contribution to the discussion.
The U.S. Supreme Court's 2026–2027 term just got a whole lot boozier. On Monday, the justices agreed to hear arguments later this year or next in the case of Department of Justice v. McNutt. At issue is whether the 1868 federal ban on distilling liquor at home is unconstitutional because it exceeds the lawful regulatory power of the federal government. If any modern Supreme Court case ever deserved its own drinking game, this one is it.
In April, the U.S. Court of Appeals for the 5th Circuit found the federal ban on home distilling to be unconstitutional because Congress lacked the proper authority to issue such a ban in the first place. It was not a legitimate exercise of the congressional authority "To Lay and collect Taxes," the appellate court reasoned, because "the purpose of a tax is to raise revenue for the government;" yet this law "amount[s] to an anti-revenue provision" that only "prevents distilled spirits from coming into existence." And if it does not exist, of course, the government cannot tax it.
The 5th Circuit also denied that the federal ban on home distilling could be saved by the government's appeal to the Necessary and Proper Clause, which says that Congress has the authority "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
But the federal ban on home distilling cannot be "necessary" to the execution of the enumerated taxing power, the 5th Circuit argued, because the provisions of federal law at issue "tax nothing, and are distinct from the regulation of distilling alcoholic products that is permitted by federal tax law."
Nor did the 5th Circuit find the ban to be "proper." "By purporting to ban activity without a plain connection to the exercise of Congress's taxation power," it held, "Congress has essentially—and 'improperly'—invaded the reserved police and regulatory power of the states."
The Trump administration lost this case at the 5th Circuit and has now successfully urged the justices to hear its appeal. In its petition seeking review, the Trump administration faulted the 5th Circuit for its overeagerness to "second-guess" the "legislative judgment" of Congress. Instead, the Trump administration argued, the federal judiciary owes a great deal more deference to the federal government's regulatory priorities in a case like this. "A law is necessary and proper if it is 'convenient' or 'useful' for carrying an enumerated power into effect, and 'plainly adapted' to that legitimate end," the Justice Department's brief argued. "That is the case here."
This case may lead to an interesting divide among the Supreme Court's more conservative members. In United States v. Comstock(2010), a 7–2 Supreme Court embraced the Necessary and Proper Clause as sufficient constitutional grounding for the Adam Walsh Child Protection and Safety Act, which had empowered federal officials to order the indefinite civil commitment of "sexually dangerous" individuals who had already finished serving their prison sentences. Chief Justice John Roberts joined the majority opinion in that case, while Justice Samuel Alito voted in concurrence. In other words, they both endorsed a broad view of congressional power under the Necessary and Proper Clause. By contrast, Justice Clarence Thomas, joined by the late Justice Antonin Scalia, voted in dissent. The Comstock ruling, Thomas protested, "comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that 'we always have rejected.'"
Are we about to see a similar Alito-Thomas split over the proper reach of federal power in this case? And what about Justices Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh? Will one or more of them play the Scalia part and similarly reject the Trump administration's broad reading of the Necessary and Proper Clause?
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