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Minimum Competence

Minimum Competence

Di: Andrew and Gina Leahey
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Minimum Competence is your daily companion for legal news, designed to bring you up to speed on the day’s major legal stories during your commute home. Each episode is short, clear, and informative—just enough to make you minimally competent on the key developments in law, policy, and regulation. Whether you’re a lawyer, law student, journalist, or just legal-curious, you’ll get a smart summary without the fluff. A full transcript of each episode is available via the companion newsletter at www.minimumcomp.com.

www.minimumcomp.comAndrew Leahey Giornaliero Politica e governo Scienze politiche
Episodi
  • The NAACP’s Suit Over xAI’s Turbines Survives, a Judicial Council Presses a Dallas Judge in a Fitness Inquiry & What Illinois’ Swipe-Fee Fight Teaches About Tech Regulation

    The NAACP’s Suit Over xAI’s Turbines Survives, a Judicial Council Presses a Dallas Judge in a Fitness Inquiry & What Illinois’ Swipe-Fee Fight Teaches About Tech Regulation
    Oct 22 2026
    This Day in Legal History: Moritz v. CommissionerOn October 22, 1970, the U.S. Tax Court denied a deduction claimed by Charles Moritz, a never-married man from Denver who worked as a book editor and paid a caregiver to look after his elderly mother so he could keep working. The tax code at the time allowed a deduction for those caregiving costs to women, widowers, divorced men, and men whose wives were incapacitated. A man who had never married didn’t qualify. Moritz, representing himself, argued that the rule was unfair. The Tax Court said the statute was clear and rejected his constitutional argument.The case came across the desk of Martin Ginsburg, a tax lawyer, who showed it to his wife, Ruth Bader Ginsburg, then a law professor at Rutgers. The Ginsburgs took the appeal together. In 1972, the Tenth Circuit ruled for Moritz, holding that denying the deduction based solely on sex violated equal protection. Their brief in Moritz became the template for Ruth Bader Ginsburg’s brief in Reed v. Reed, where the Supreme Court for the first time struck down a law for discriminating on the basis of sex.The significance of October 22, 1970 is that one of the most important lines of constitutional law in the twentieth century started with a small tax deduction and a self-represented taxpayer. As a tax professor, I’ll admit I love that. It’s a reminder that the tax code isn’t just about revenue; how it defines families, workers, and caregivers reflects and shapes who the law treats as equal.The administration has asked the Supreme Court to let it resume building border barriers across the Big Bend region of Texas. On October 2, U.S. District Judge Kathleen Cardone halted construction across the roughly 500-mile Big Bend project area, along with the use of legal waivers for the project, while a lawsuit by environmental groups, including the Center for Biological Diversity, moves forward. Here’s the legal background. A 1996 law lets the Secretary of Homeland Security waive environmental and other laws to speed construction of barriers in areas of high illegal entry. Past administrations have used those waivers to bypass dozens of laws, and courts have generally upheld them. The challengers here argue the waiver authority doesn’t fit Big Bend, a remote, rugged region that includes a national park and has relatively few crossings. Judge Cardone found that construction on this scale required clear authorization from Congress, an argument related to the major questions doctrine, which says courts expect Congress to speak clearly before agencies take actions of vast economic or political significance. Solicitor General D. John Sauer called the injunction “baseless” and argued that the government’s border security interests outweigh what he described as aesthetic, recreational, and cultural harms. The administration also says leaving a gap in Big Bend could funnel crossings into the region once the rest of the border is walled off, and it says it won’t build a large wall inside the national park itself. Notably, the government is asking the Court not only for emergency relief but to effectively overrule the district judge’s decision now, without waiting for the case to work its way up. That’s an aggressive use of the emergency docket. It’s also a reversal of the usual pattern in which the major questions doctrine is used against the government’s regulatory programs. Here, the challengers are invoking it against an executive construction project.Trump asks US Supreme Court to allow Big Bend border wall construction | Reuters · CBS News · Marfa Public RadioStates are preparing to keep a close eye on the Justice Department’s election monitors. The department plans to send about 1,000 monitors to all 50 states on Election Day, roughly triple the number at the last midterm and the largest observation effort in its history. NPR reports the department has already notified counties including seven in Texas, King County in Washington, Miami-Dade in Florida, and Hennepin and Ramsey counties in Minnesota. Some states are responding by monitoring the monitors. In Minnesota’s August primary, about 40 state employees, working in pairs, followed Justice Department lawyers as they traveled through two counties. California has started a similar program. Several states have issued guidance to poll workers explaining the limits on federal observers’ authority. Here’s the legal framework. The Justice Department has sent election monitors for decades, mainly to enforce civil rights laws like the Voting Rights Act and the Americans with Disabilities Act by watching for discrimination or inaccessible polling places. But monitors generally have no special legal right to enter polling places unless a court has ordered federal observers under the Voting Rights Act or the state allows it. Otherwise, access is governed by state law, and some state laws let election officials keep them outside. Monitors don...
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    8 min
  • The NAACP’s Suit Over xAI’s Turbines Survives, a Judicial Council Presses a Dallas Judge in a Fitness Inquiry & What Illinois’ Swipe-Fee Fight Teaches About Tech Regulation

    The NAACP’s Suit Over xAI’s Turbines Survives, a Judicial Council Presses a Dallas Judge in a Fitness Inquiry & What Illinois’ Swipe-Fee Fight Teaches About Tech Regulation
    Oct 21 2026
    This Day in Legal History: Abrams v. United StatesOn October 21, 1919, the Supreme Court heard argument in Abrams v. United States. Jacob Abrams and several other Russian immigrants had thrown leaflets from a Manhattan building criticizing American military intervention in Russia and calling for a general strike. They were convicted under the Sedition Act of 1918 and sentenced to as much as twenty years in prison. That November, the Court upheld their convictions, 7 to 2.The case is remembered for its dissent. Justice Oliver Wendell Holmes, joined by Justice Louis Brandeis, argued that the government may punish speech only when it presents a clear and imminent danger, not because it is unpopular or distasteful. He wrote that “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” the line that gave us the phrase “the marketplace of ideas.” Earlier that same year, Holmes had written the Court’s opinion upholding a conviction in Schenck v. United States. In Abrams, he moved toward a much more protective view of speech.The significance of October 21, 1919 is that Holmes’s dissent became, over the following half century, the foundation of modern First Amendment law, culminating in Brandenburg v. Ohio in 1969. It’s also a reminder that the idea of a market, where outcomes come from competition rather than decree, has shaped how American law thinks about speech as much as commerce. And today’s column is about what happens when the law tries to dictate how a market’s plumbing must work.A federal judge in Mississippi has refused to let the Environmental Protection Agency end a lawsuit the NAACP brought against Elon Musk’s artificial-intelligence company, xAI. The NAACP and its Mississippi chapter allege that xAI and a subsidiary built and ran gas-fired turbines in Southaven, Mississippi, without the permits the Clean Air Act requires. Those turbines supply power to xAI’s Colossus 2 data center just across the state line in Memphis. Residents in the area, many in predominantly Black neighborhoods, have raised concerns about air pollution. The NAACP sued under the Clean Air Act’s citizen-suit provision, which lets private parties enforce the law when the government doesn’t. The Justice Department, on behalf of the EPA, moved to intervene and argued that the agency could dismiss the case because federal regulators have primary authority to enforce the statute. U.S. District Judge Debra Brown agreed the EPA could join the case but held it couldn’t end the case on its own. Here’s why that matters. Citizen suits exist precisely because Congress didn’t want enforcement of environmental laws to depend entirely on the government’s willingness to act. The statute gives the government a way to take the lead: it can preempt a citizen suit by diligently prosecuting its own enforcement action. But the court’s ruling means the government can’t simply step in and shut down a private suit while not enforcing the law itself. If the EPA could do that, the citizen-suit provision would offer little protection exactly when it’s most needed. The ruling doesn’t decide whether xAI violated the law. That’s still to come. But it ensures the community’s claims will be heard. It also follows a pattern we’ve seen this fall, from the grant-conditioning cases to the agency-dismantling cases: courts insisting that the government’s preferences don’t automatically override the procedures Congress put in place.US judge rejects Trump administration bid to block NAACP lawsuit against Musk’s xAI | Reuters · Earthjustice · Lawyer MonthlyNow a sensitive story about how the federal judiciary polices itself. U.S. District Judge Ada Brown of the Northern District of Texas, in Dallas, has been temporarily removed from hearing cases after a judicial investigation found a “reasonable basis” to conclude she may have a mental condition interfering with her ability to do her job. That’s not a medical diagnosis, and Judge Brown has rejected the suggestion. The investigation pointed to concerns about her workload: she had recused herself from more than 40 cases since June, and a recent report identified 78 undecided motions on her docket. On September 29, the Fifth Circuit’s judicial council reassigned her existing cases and barred her from receiving new ones for three months or until further notice. It also ordered her to undergo an independent psychiatric evaluation. Judge Brown has said she won’t participate further in the proceedings, and the council is now urging her to reengage. Here’s the legal framework. Federal judges have life tenure under Article III and can be removed only by impeachment. That protects judicial independence, but it also means there’s no ordinary way to handle a judge who can’t do the job. The Judicial Conduct and Disability Act of 1980 provides a limited process: a circuit’s judicial council can investigate...
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    8 min
  • Trump Threatens California Election Officials With Jail, Mahmoud Khalil Petitions the Supreme Court & HUD’s Fair Housing Overhaul Stays Blocked

    Trump Threatens California Election Officials With Jail, Mahmoud Khalil Petitions the Supreme Court & HUD’s Fair Housing Overhaul Stays Blocked
    Oct 20 2026
    This Day in Legal History: The Saturday Night MassacreOn the night of October 20, 1973, President Richard Nixon ordered Attorney General Elliot Richardson to fire Archibald Cox, the special prosecutor investigating Watergate. Cox had refused to accept a compromise that would have given him summaries of the White House tapes instead of the tapes themselves. Richardson had promised the Senate during his confirmation that Cox would be independent, and he resigned rather than fire him. Nixon then ordered Deputy Attorney General William Ruckelshaus to do it. Ruckelshaus also refused and resigned. Solicitor General Robert Bork, now acting attorney general, carried out the order.That night Cox issued the statement quoted at the top of today’s episode. The public reaction was immediate and enormous. Within days, Nixon agreed to turn over subpoenaed tapes, a new special prosecutor, Leon Jaworski, was appointed with stronger protections, and the House began impeachment inquiries. A federal court later found that Cox’s firing had violated the Justice Department’s own regulations. Less than a year later, Nixon resigned.The significance of October 20, 1973 is the principle that the Justice Department’s power to investigate and prosecute is not supposed to be wielded as the President’s personal instrument, and that the officials who hold that power have duties to the law that can require them to refuse. That principle is very much at issue in our first story today.The President has threatened California election officials with prison over how they handle mail ballots. Here’s the sequence. Days ago, the Justice Department gave California 48 hours to review a list of roughly 20,000 voters the administration says are probably noncitizens, or face legal action. Los Angeles County said it couldn’t comply because the administration hadn’t explained how the list was made. The Justice Department then sent a letter, signed by acting Deputy Attorney General Trent McCotter, warning county officials that if they count mail ballots from people on that list, they could be liable as “abettors” of a federal crime. The President posted the letter on social media and wrote that the officials “will all go to jail for a long period of time.” The Justice Department has also sued California to block the state from counting those ballots. California’s secretary of state said the administration’s efforts to access voter data and purge rolls “serve only to cause chaos and fuel public distrust in our elections.” There are several serious legal problems with the threat. First, the accuracy of the list. We covered last month how the federal SAVE database has wrongly flagged real citizens, including findings in one Texas county that 10 to 21 percent of those flagged were citizens. Election officials who reject ballots based on an unexplained list risk disenfranchising eligible voters, which can itself violate federal and state law. Second, aiding-and-abetting liability requires intent to help someone commit a crime. An official following state procedures for verifying and counting ballots isn’t acting with that intent. Third, federal law limits systematic voter-roll removals in the 90 days before a federal election, precisely to prevent last-minute purges. Fourth, recall that a federal judge in Miami ruled earlier this month that the federal law criminalizing noncitizen voting is unconstitutional, though that ruling binds only that case. And finally, there’s the question raised by today’s legal-history segment: when the President publicly promises prison for specific officials, it becomes harder to see a prosecution as an independent decision by the Justice Department rather than a political one.Trump threatens California officials with imprisonment over stance on mail ballots | Reuters · Newsweek · The Business StandardMahmoud Khalil, the Palestinian activist and former Columbia University graduate student, has asked the Supreme Court to hear his case. Immigration authorities arrested Khalil, a lawful permanent resident, in March 2025 over his pro-Palestinian activism. A federal judge in New Jersey later ordered him released, finding he had a strong claim that he was being detained to punish his speech. This year, the Third Circuit reversed 2 to 1, holding that federal immigration law stripped the district court of jurisdiction to order his release, and that challenges like his must go through the immigration courts first, with review later in the court of appeals. Khalil’s petition argues that federal courts have always had the power to hear a claim that the executive is detaining someone unconstitutionally, and to order that person freed. That’s the writ of habeas corpus, which the Constitution says can’t be suspended except in cases of rebellion or invasion. His lawyers argue that if immigration law can route these claims away from district courts, then someone can be locked up for months for ...
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    8 min
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