Strict Scrutiny The Lower Courts Punch Up
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Sep 8, 2025 Justin Driver, Robert R. Slaughter Professor of Law at Yale and author of 'The Fall of Affirmative Action,' discusses the recent Supreme Court changes affecting education and diversity. He delves into the consequences of abolishing affirmative action, highlighting its impact on Black student experiences and the complexities of racial dynamics in academia. The conversation also explores how universities can maintain diversity without traditional affirmative action, raising questions about the future of equal opportunity in higher education.
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Limits On Federalizing The Guard
- Judge Charles Breyer found the Posse Comitatus Act applied and that federalized forces engaged in unlawful law-enforcement activities in L.A. deployments.
- The opinion warns the claimed authority could let a president federalize forces for many routine enforcement issues, including elections.
Alien Enemies Act Narrowly Read
- The Fifth Circuit rejected the administration's use of the Alien Enemies Act to expel Venezuelan nationals, finding mass immigration is not an 'invasion' under the statute.
- The panel majority emphasized the Act requires an armed, organized incursion, not encouragement to migrate.
Funding Cuts Shifted To Slow Court
- The D.C. Circuit sent EPA grant challenges to the Court of Federal Claims, blocking district-court relief against termination of $16 billion in climate grants.
- That routing delays meaningful judicial review and lets the administration proceed while claims slog in a slower forum.
