Ed Crane was arguably the most important person in building the libertarian movement we now know. There had been previous—and valiant—attempts by others, but they largely fizzled out for a variety of reasons: lack of financing, reluctance to change approaches to addressing issues, insufficient faithfulness to the ideas libertarians hold dear, and simple bad luck, among others.

Ed was involved with a number of libertarian institutions and publications throughout the 1970s and early 1980s, some under his direct control and some he oversaw indirectly. His lasting legacy, though, will be cofounding the Cato Institute. In 1977, libertarian ideas were in the ascent due to the failure of the Vietnam War, the Watergate scandal, and stagflation, all of which reduced public trust in government. In short, Cato was founded at a propitious time. That wasn’t an accident—it was ideological entrepreneurism at its best.

Cato slowly but surely grew and became one of the most important public policy institutions in the United States—indeed, the world. Ed’s vision of creating a think tank that would compete with others in the battle of ideas has been realized, perhaps more successfully than even he had envisioned.

Only 20 months ago, we lost David Boaz, Ed’s longtime right-hand man, the person who oversaw Cato’s policy work on a day-to-day basis. He made sure that our output met Ed’s exacting standards and became the foremost voice of his generation for advancing libertarian ideas through his own work. 

Without Ed, there very well may not have been a Cato Institute at all, and without David, there wouldn’t be the one we know today. I am extremely grateful to both of them for that and for giving me a shot to be a part of it. I will remain so forever. 

This goodbye has been difficult to write. Edward H. Crane III, the larger-than-life leader of the libertarian movement, died last week. One struggles to convey the magnitude of his achievements or what his work has meant to his compatriots.

In 1977, on the heels of the 200th anniversary of the Declaration of Independence, Ed Crane joined Charles G. Koch to found the Cato Institute. Over the next 35 years, as president and CEO, Ed built Cato into something bigger than himself.

Ed inspired me and countless others to work for human liberty. When I first set foot in the Cato building in 1993, I had no idea who Ed Crane was. All I knew was that I could not imagine a cause or organization for which I would rather work. In 2004, I got that opportunity after a terrifying interview with Ed and Cato’s other legendary leader, Executive Vice President David Boaz. I worked with Ed for eight years and with David for two decades.

Ed drew his inspiration from the Declaration: “The genius of the American experiment is a respect for the dignity of the individual.” Respecting the dignity of the individual axiomatically requires securing the freedom of every individual to speak, worship, work, earn, trade, migrate, marry—to pursue happiness however they wish, so long as they respect the equal right of others to do the same.

When I say Ed inspired, I mean he inspired. His rhetorical skills were legendary. My second research assistant asked if Cato could install a building-wide PA system just so Ed could deliver an inspirational message to her and the rest of the staff every morning. Woe unto they who followed Ed at a microphone.

Ed regarded politicians with a clarity that was itself inspiring. Like the Declaration’s author, he knew that once a man casts a longing eye on public office, a rottenness begins in his conduct. He cared nothing for the approval of politicians and disdained currying favor with them. After granting his blessing to serve on a governor-elect’s transition team, Ed stopped me as I left his office, “Michael, I don’t care if they kick you off that team. Do the right thing.”

At Cato, doing the right thing meant pushing the debate as far as possible in the direction of liberty and the dignity of the individual. He cared about setting people free, which more than anything required setting a standard.

Ed attracted a large and diverse base of donors willing to support such a libertarian think tank. That means Cato can survive the loss of a donor who disagrees with our position on this or that issue. It has happened many times. I have worked for other libertarian and free-market organizations that do not have that luxury. It makes a difference.

One example: In 2007, the CEO of the nation’s largest private-sector employer threw his company’s support behind a regulation to require employers to offer health insurance to their workers. (One of their lobbyists later told me why: The regulation would disproportionately harm their competitors.) In the nation’s highest-circulation newspaper, I criticized the CEO’s decision and reasoning. I had no idea at the time that the company was a Cato donor. By itself, that fact is astounding and a credit to Ed. The CEO retaliated by ending his company’s donations.

At many other DC policy shops, I would have received a pink slip or at least a stern lecture. And so, I will never forget what Ed said to me: nothing. He read my comments, agreed that I was correct, and that was the end of it. The freedom that Ed created for Cato scholars to do the right thing inspires us to this day.

If anyone deserved to see the 250th anniversary of the Declaration, it was Ed. Like the Declaration, he articulated an ideal and created a forum where that ideal would push past the limitations of its individual adherents. His labors gave us the late, great David Boaz and countless other scholars who continue their work of protecting the dignity of every human being. Like the Declaration, Ed was a quantum leap beyond what had come before and left humanity in better shape than he found it.

In 2006, George F. Will observed, “I’ve seen Washington before and after Cato, and I can tell you the difference that it has made. The Cato Institute is the foremost upholder of the idea of liberty in the nation that is the foremost upholder of the idea of liberty.”

I once regaled Ed with the essential role that Cato played in my courtship of my wife. He looked at me, raised that eyebrow, and impishly deadpanned, “You owe me so much.”

Vaya con dios, Jefe.

At this year’s Silicon Flatirons Flagship Conference, yours truly, Jennifer Huddleston, took part in a lighthearted debate on whether we should ban chatbots. The debate was far more fun with requisite Taylor Swift references supplied. But the underlying questions deserve more serious treatment. This is especially in light of Senator Josh Hawley’s bill to ban AI chatbots, introduced in October 2025, and similar proposals in various states, including California, Virginia, and Illinois.

In short, while every individual may have different preferences in their use or avoidance of chatbots, banning chatbots in law would have a number of concerning consequences for innovation and speech. In this blog post, we explore the question of banning chatbots a bit more seriously.

Banning Chatbots Would Likely Ban More Than We Think

Banning chatbots would not be simple. Defining artificial intelligence (AI) is difficult, and limiting it to chatbots does not solve the problem. Even in a lighthearted debate, we had to account for the many uses of AI that are often overlooked, such as customer service and specific professional tools. In legislation, this is even more difficult, as laws lock in static definitions that could prevent both beneficial existing applications and innovative future uses of a technology.

Concerns about chatbots are often tied to their use by vulnerable kids and teens, concerns about particular types of content, like when Grok generated non-consensual sexual imagery or content linked to suicide or mental health. But attempts to limit the technology only to “beneficial” chatbots or those with more specific applications may eliminate innovative uses of general-purpose chatbots or stifle future advancements we aren’t yet aware of. 

For example, an educational purpose exception might be able to cover Khan Academy’s personal tutor, but it doesn’t take into account how a student, teacher, or parent might use a general-purpose chatbot for a similar purpose. Or worse, limit our creativity in how these tools could be used to solve problems by deeming them acceptable in only a narrow set of use cases.

Additionally, such an approach certainly raises concerns about the government determining which applications individuals are entitled to access. This would easily set up the government to choose which innovators are winners or losers by making often subjective judgments about which products are deemed beneficial or low-risk enough to be allowed in the market. Unlike a car or other products, these decisions would involve questions around expression that raise concerns about the government making subjective determinations about speech.

In short, there is little agreement on the often vague harms of chatbots despite the headlines that they are making people “dumber” or leading to new mental health issues. Instead of trying to define chatbots and limit the technology at this stage due to the potential risk to some individuals, questions about technology’s impact on mental health or attention span merit more serious discussions about how these are playing out in society more generally.

What Would We Lose by Banning Chatbots?

There are, of course, concerning anecdotes about chatbots and vulnerable individuals who have gone down dark paths. It is easy to demonize a technology when we see such a tragedy. But there are also positive examples of individuals who have used chatbots as a form of connection when they might not otherwise have been ready to seek help from a human or were unable to access resources. Just as some individuals have had an extremely negative experience with chatbots, others have found them beneficial in ways previously thought impossible.

Some Americans from every background suffer from crushing loneliness, and it’s killing us. Some choose to seek professional help, facing stigma and risking discrimination in the process. Others simply can’t afford it. The cost of this lack of access is clear: suicide is the second leading cause of death for those between the ages of 10 and 34.

For many, chatbots offer a lifeline for those without strong support systems or access to professional help. They are available at all hours of the day, react without judgment, and represent a promising source of social support. Yet the impact of chatbots can go much further than just basic social support. For at least 30 people, GPT‑3 and GPT‑4 enabled chatbot Replika “stopped them from attempting suicide.” These are 30 anecdotes, and taken alone, they don’t represent something good or bad about chatbots. But these are also 30 Americans who thank a chatbot for keeping them alive.

In addition to being a resource for our most vulnerable, chatbots also represent a whole new frontier in accessibility. The world we live in can be difficult for some people to navigate. But many people have leveraged chatbots to help. For people with autism, ChatGPT can help them navigate complex social situations like arguments with friends or roommates. ChatGPT’s multimodal capabilities can also help those with visual impairments by instantaneously describing their environment and answering questions.

These uses demonstrate that chatbots are offering many paths to complete independence for the first time. Therapists and social workers are only available at certain hours of the day, usually for limited periods, and they can be prohibitively expensive. Chatbots, by contrast, are available on demand at any time of day. They can be accessed by one’s phone in almost any environment. And they are relatively cheap. These are just a few of the factors that weigh into people’s use of chatbots, but they make it clear that chatbots are actively changing the world in ways that allow people to live their lives with more freedom and safety—no matter how they were born.

We cannot focus only on harms without considering the benefits. This is not about going anecdote-for-anecdote on whether there are more positive or negative interactions, but about ensuring we know what the underlying issue is and how it compares to the status quo and its benefits. This includes the benefit of solutions and applications we could never imagine right now, as well as those that individuals are already experiencing. An overly precautionary approach limits a potential trajectory and eliminates not only potentially negative interactions but positive ones as well.

There Are Less Restrictive Means to Resolve Concerns

Just as with any technology, AI chatbots will be used or result in harm for some. This is not about debating whether bad things could happen, but about determining the best response and the appropriate government role. A variety of solutions exist that are far less restrictive than banning chatbots more generally.

First, we are seeing the industry respond with various solutions that allow responses to common concerns. Both Meta and OpenAI have announced various parental controls on their general AI chatbot products. Other industry efforts include using red-teaming type AI models to determine potential risks and identify ways to improve models to prevent the likelihood of toxic or problematic responses. Additionally, civil society groups like Common Sense and the Family Online Safety Initiative provide resources for parents or other users who want to understand the risk of exposure to certain content. Much like the internet before it, these market-based responses can help resolve problems in ways that fit both different technologies and individual needs without governments dictating what approach or specific controls are best.

If the government were to set policy, there are many steps that would be less restrictive than a total ban on a particular technology or application. Many of these would raise their own speech concerns, such as banning certain lawful, if distasteful, content. In many cases, the content in question, like non-consensual intimate imagery, is likely already covered by existing law, or those laws could be updated to ensure it is. While Jennifer has discussed concerns about mandatory AI disclosures, particularly when they are applied more generally, requiring a chatbot to disclose that it is a chatbot is certainly less restrictive than banning the technology entirely.

Banning a general-purpose technology such as chatbots to address more nuanced harms, or simply out of general distrust of technology or risks, would limit the expression and information rights of human users. As such, a ban would likely raise First Amendment concerns for both the designers and users of these tools, especially given evolving industry responses and less restrictive means available to resolve potential safety or other compelling government concerns.

Conclusion

A chatbot ban would ignore the various benefits of this technology that can extend far beyond writing silly poems. As with any tool, there is a potential for abuse, misuse, and harm; however, a ban or over-regulation not only eliminates any potential risks but also benefits. Banning a technology that reflects its creators’ and users’ expression rights also raises significant First Amendment concerns, given a variety of solutions that have only begun to be deployed and represent less restrictive means of resolving these issues.

When it comes to the Winter Olympics, I’m mostly interested in figure skating events. But when I saw that Team USA luger Ansel Haugsjaa is an alumnus of one of the schools I’ve been planning to feature, I was excited. Earlier this week, he and his doubles partner surprised the luge world by taking the top spot in the first of two runs—setting a track record in the process—before ultimately landing in sixth place overall. Reading his story, it seemed like this would be the perfect week to feature Sudbury Valley School.

Sudbury Valley in Framingham, Massachusetts, is not like most schools. Opened in 1960, it is a fully democratic, self-governing school where students essentially run everything. The rules, the schedule, the hiring of staff, and even which holidays to take—all of it goes through the school meeting, a governing body that includes every student and staff member.

While it sounds a bit crazy to outsiders, it’s a way of life for Francesca Matisoo. She attended Sudbury Valley from 1992 until she graduated in 2007. Her father has been on staff since 1988. Her husband, brother, and sister-in-law are alumni. And both her kids, now six and nine, attend. “I totally drank the Kool-Aid,” she says. 

The school serves about 60 students ages 4 to 19, and every one of them has an equal vote. The school meeting is the main governing body, but there are smaller committees and corporations that manage specific things, such as the library, arts and crafts, and music equipment. “And then we have a judicial committee for managing disputes between school meeting members,” Francesca says. “That is a mandatory service. So it’s one month of service for every age group. So every month there’s one student from each age group that represents sort of a jury of their peers.”

There’s no set curriculum and no required subjects. To comply with compulsory education laws, students must be there for a minimum of five hours a day, but they can choose which five hours between 8:30 a.m. and 5:00 p.m.

A day might start with a student finding their friend group and then negotiating how to spend the morning. Maybe it’s sewing. Maybe it’s a computer game. Maybe it’s heading outside. “Because everything is completely self-governed, there’s not really a typical day,” notes Francesca. “Although I would say for most people, their day includes finding their friends and sort of figuring out what everybody’s up to and kind of really checking in with yourself and seeing how and where you want to spend your time in that moment.” 

Sudbury Valley has an open campus policy that operates through a certification process. Under the age of eight, they can only leave campus with a parent. Between 8 and 13, they must be certified in the open campus policy. They must have a buddy and a charged cell phone with the school’s number saved, and there are rules about where they’re allowed to go. From 13 on, certification and sign-out are still required, but students are largely free to come and go.

Francesca says they have certification processes on “pretty much everything that we do,” which is central to how the school functions. “I think of the certification processes as one of the ways that we are able to have so many different ages in one building and treat them all the same,” she explains. “Because of the fact that everybody has read and understood the rules and knows what the repercussions are, everything is very, very clear and upfront.”

As for academics, kids take the lead, and adults are there for support. For example, if a student decides they want to prep for the SAT, they find a staff member who can help them make a plan. According to Francesca, there are opportunities to learn anything they’re interested in. “For a kid who’s really interested in something and wants more resources for that particular interest, one of the things that they would probably do is go to the school meeting and create a corporation,” she says.

They also bring in outside experts when it makes sense. They’ve had classes in karate, driver’s ed, dance, and different musical instruments. There have also been woodworking and hairdressing corporations when there was enough interest. “The corporations sort of come and go as there’s need within the community,” she says. “We’d really be open to pretty much whatever if there was a need within the community and if there was really interest within the kids.”

Sudbury-model schools exist throughout the US and internationally, in Ireland, England, Spain, Japan, and elsewhere, though there’s no central registry tracking them all. Francesca would like more cohesion, as it would be a valuable resource for families interested in the model.

It’s probably not a surprise to say the school has skeptics. Francesca says she’s been dealing with that for as long as she’s been involved with the school, so she faces it head-on: “People are like, ‘there’s no way that that works, there’s no way that that’s a school, there’s no way that kids learn anything.’ And I’m sort of like, okay, well you’re literally having a conversation with somebody who went there, so you tell me.”

For anyone genuinely curious, she points them to the school’s website, published materials, and open houses. She recommends they read on their own and then come back to her with any questions. If they’re still interested, she encourages them to come for a visit. “I think this philosophy is very challenging to grasp on paper. And when you sort of see the interactions between students and staff and get to experience the community, that’s when things sort of click a little bit more.”

Francesca realizes Sudbury Valley may not work for everyone, and she doesn’t push parents who aren’t on board to change their minds. “Realistically, if it’s not a good fit for your family, it’s not a good fit for your family. Whether your child would benefit from it or not is no longer the question, because you have to be able to trust your kid to be here and govern themselves all day long,” she says.

Looking at the big picture, Francesca notes how odd society’s approach to education is. “I’ve never really understood how there’s this one-size-fits-all philosophy for education in a world where literally nothing is one-size-fits-all,” she says. For a long time, she adds, people have been considered crazy for pursuing alternative educational models for their kids. But she thinks that’s changing as families increasingly take advantage of new learning opportunities. 

Federal Trade Commission Chairman Andrew Ferguson recently addressed a letter to Apple CEO Tim Cook to suggest that the Apple News product may be in violation of the FTC Act.

Apple’s crime?

Its Apple News product, which curates news from a variety of sources, has “systematically promoted articles from left-wing news outlets and suppressed news articles from more conservative publications,” including recently not featuring “a single article from any American conservative-leaning news sources.”

The FTC’s allegations of bias, even if true, are ultimately irrelevant. The FTC has no authority to regulate the speech that Apple News chooses to curate. This is core First Amendment territory that even the FTC is forced to acknowledge. Ferguson writes that the “First Amendment protects the speech of Big Tech Firms” and that the “FTC is not the speech police; we do not have the authority to require Apple or any other firm to take affirmative positions on any political issue, nor to curate new articles based on the perceived ideological or political viewpoint of the article or publication.”

If Chair Ferguson stopped there, perhaps we could appreciate that the FTC recognized its limits and its respect for the First Amendment’s protections for platforms to exercise editorial control over the speech they collate and organize.

But Chair Ferguson did not stop there. Instead, the Chair attempts an end run around the First Amendment by accusing Apple News’ curation practices of violating the FTC Act for being an unfair or deceptive trade practice. But this attack is predicated on a highly flawed theory that somehow the FTC has the ability to determine when the curation and moderation decisions of platforms are “unfair or deceptive.”

Specifically, Chair Ferguson suggests that curation practices of Apple News may be unfair or deceptive because they are not in line with Apple’s terms of service. But Apple News’ Terms of Service explicitly state—in all capital letters no less—that:

THE SITE AND ITS CONTENT ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS… APPLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE… YOUR SOLE REMEDY AGAINST APPLE FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT.

I’m not sure Apple could have been clearer, and it would be an insult to the FTC Chair and his staff to suggest that they were incapable of finding this. The FTC letter specifically cites this document, so the FTC must know that Apple makes no promises to include a certain amount of conservative, libertarian, or any other type of content. Instead, it seems the FTC is ignoring what is in front of them to justify its baseless accusation of an unfair or deceptive trade practice.

Perhaps recognizing that this argument is not worth the paper it is printed on, the letter also suggests that Apple’s curation may still constitute an unfair or deceptive trade practice by failing to be “consistent with the reasonable expectation of consumers.” But this is no stronger than the first accusation. Do all media platforms now need to affirmatively declare their exact editorial standards or else be at risk of misleading their readers and users? Is a platform allowed to change its editorial positions or else risk being at odds with the reasonable expectations of users?” Must a bookstore justify each editorial decision about the books it stocks to the FTC? No organization forfeits its First Amendment rights because the FTC believes that users may have differing expectations about how that organization curates content.

Consumers who do not like the editorial decisions of a media or social media platform are free to use another. If someone does not like the New York Times’s editorial stance, they are free to check out the Wall Street Journal or the New York Post. If a user does not like how Apple News curates content, they can use other apps that curate content, such as GroundNews, or go straight to the outlets they prefer.

The FTC claims this work is somehow combating efforts to “censor content for ideological reasons.” But the FTC has it completely backwards, as they are the state actor working to force conformity to its ideological viewpoint. The FTC letter cites its “Request for Public Comment Regarding Technology Platform Censorship” as another example of this work. But that just shows that the FTC has deeply confused what censorship is. And Chairman Brendan Carr of the FCC also praised the FTC letter, showing how widely this corrupted view of free expression has spread among the leadership of other agencies as well.

Could Apple better serve its customers by including more conservative viewpoints? Maybe. Having worked on the content policy team at Meta, my experience is that large technology platforms have historically favored left-wing viewpoints in their curation and moderation decisions. But those decisions are not censorship; they are the core expressive rights of companies. Censorship is when the government, through force or threat of force, strips its citizens and companies of the right to express themselves as they wish.

The FTC and other government agencies should stop their censorial attempts to control online speech.

The House of Representatives voted on Wednesday night (February 11) to terminate the national emergency declared by President Trump last year with respect to the flow of illegal narcotics from Canada, which he then used to justify imposing tariffs under the International Emergency Economic Powers Act (IEEPA) on Canadian imports. The resolution now heads to the Senate, which passed similar resolutions last April and October, rejecting the president’s tariffs on imports from America’s northern neighbor—and the dubious fentanyl emergency on which these taxes are based. 

Unfortunately, no resolution carried the veto-proof majority that would ensure the termination of both the emergency and the tariffs, and it is unlikely that such a supermajority will emerge when the Senate considers the House’s resolution. So, while the outcome of the House’s vote is a welcome sign that more members of Congress are willing to break with the president’s tariff policy, the likely absence of a veto-proof majority in both chambers to terminate this particular emergency is also an unfortunate indication that Trump’s misguided tariffs will continue, and that Congress remains unwilling to prevent the continued abuse of presidential emergency authority.

From the outset, the president’s case for invoking the National Emergencies Act (NEA) and IEEPA due to illegal drugs coming into the United States from the northern border rested on shaky ground. Canada only accounted for about 0.2 percent of all fentanyl seizures at the US border in 2024, and more drugs were seized coming into Canada from the United States than the other way around. Furthermore, the Trudeau government announced additional measures in November 2024 to combat the flow of illegal narcotics after then-President-elect Trump issued his first tariff threat to Canada.

After President Trump declared the emergency, it quickly became a mere pretext for turning IEEPA into a personal “tariff” button. As Table 1 shows, the president used tariffs and the threat thereof to address other grievances with Canada stemming from Canada’s retaliation to the IEEPA duties, dairy policies, aircraft regulations, and even a pro-trade commercial aired by the Ontario government during the World Series. Some of these grievances were overblown (e.g., Canada’s supposedly high dairy tariffs), some were petty (e.g., the World Series ad), but they all shared one feature: they were unrelated to the underlying “emergency” that the president used to justify invoking IEEPA in the first place. 

To top it off, the president also granted carve-outs from the tariffs to politically connected US industries, such as the auto and agricultural sectors, and to politically sensitive items, such as energy.

Though approximately 65 percent of Canadian imports to the US in 2025 (through November) entered under the US-Canada-Mexico Agreement (USMCA) preferential regime—and thus were exempt from the IEEPA tariffs—the tariffs and the uncertainty they’ve created have imposed real costs on American companies, farmers, and families. The IEEPA tariff regime has contributed to raising the average effective US tariff rate on non-USMCA Canadian imports from nearly zero in 2024 to 2.7 percent in 2025 and resulted in more than $2.4 billion in new taxes paid almost entirely by Americans through mid-December 2025. Beyond these aggregate costs, the tariffs also disrupted specific industries. Tariffs on Canadian oil, for instance, led to price increases and reduced imports shortly after entering into effect, and likely continue to impose costs as Canada accounted for 63 percent of the US total imports of crude oil in 2025 (through November), including 100 percent of Midwest crude oil imports. (Around 20 percent of those imports entered without claiming preferential treatment under USMCA.) 

In sum, the president’s abuse of his emergency authority under the National Emergencies Act (NEA) and his (highly questionable) tariff authority under IEEPA resulted in an absurd succession of tariffs and tariff threats, which harmed American consumers and firms, undermined transparency and the rule of law in US trade policy, and further heightened tensions with one of America’s longest-standing allies. The Canada emergency, thus, offers a particularly compelling case for Congress to reclaim its authority over US tariff policy and, more broadly, to discipline executive use of the NEA, through which presidents have vast and unchecked powers that are typically reserved to Congress. (As Lincicome documented earlier this month, fifty national emergencies are active today, many of which date back decades.)

The resolution passed by the House and its likely passage in the Senate are welcome news, but if Congress is to fulfill its constitutional obligation to serve as a real check on unbounded executive power, there’s much left to do.

The eminent intellectual historian Quentin Skinner, surveying history from antiquity to the Enlightenment, once defined “liberty” as freedom from the arbitrary whims of another. By that definition, twenty federal prisoners might just be the least free people in America.

To be sure, these twenty are even less sympathetic than the average federal prisoner: according to a federal court order issued Wednesday, each was sentenced to die after committing “some of the most horrific crimes imaginable.” They were spared execution at the very close of President Biden’s term in office, when he commuted their sentences to life in prison. 

President-elect Trump disagreed with that clemency, to put it mildly. Almost immediately, he posted on social media that the commuted prisoners should “GO TO HELL.” On his first day back in office, he issued an executive order directing that “these offenders are imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose.” Shortly after, the Bureau of Prisons (BOP) told each of the twenty that they would be transferred to ADX Florence—“the Alcatraz of the Rockies”—and the “most restrictive prison in the federal system.”

There was only one problem: the law. Congress passed a statute telling BOP to assign prisoners to facilities the agency deems “appropriate and suitable.” BOP has enacted a regulation governing who gets moved to ADX Florence. Only when no other high-security option is available can a federal prison warden apply for an inmate’s transfer, and reassignment is limited to inmates whose (1) “placement in other correctional facilities creates a risk to institutional security and good order or poses a risk to the safety of staff, inmates, others, or to public safety” or (2) “may not be safely housed in the general population of another institution.” Three BOP officials must agree that the transfer is necessary. Then an inmate is afforded a hearing and the chance to respond, as well as the right to appeal if the hearing officer decides to order a transfer.

These regulations exist for good reason: getting into ADX Florence is supposed to be nearly as hard as breaking out of it.

Faced with both these established procedures and the new president’s fury, the Trump administration turned the former into a sham. Federal officials met with the families of the inmates’ victims, where some of the officials said they wished conditions at ADX Florence “were even worse” than they are. Attorney General Pam Bondi made several public statements saying the prisoners would be sent to ADX Florence.

A high-ranking Department of Justice (DOJ) official was, unprecedentedly, given the final say over the commuted prisoners’ reassignments. A BOP official tried to walk back prison officials’ instructions immediately after the executive order that the inmates were all going to be sent to ADX Florence, before soon saying that would indeed be the case for all but two medically fragile prisoners. That official said this whiplash was caused by the DOJ—and that BOP had presented different recommended placements for the inmates. Each prisoner had a hearing, and each resulted in a recommendation of transfer to ADX Florence—featuring partial cookie-cutter language. Each inmate’s appeal was denied.

The twenty inmates sought relief in federal district court, alleging that they had been denied constitutional due process. The government defended its decision-making process as fair in part by citing the case of inmate Brandon Basham, who was sent to another facility. But just weeks later, the government had Mr. Basham referred to ADX Florence. The only other inmate whose sentence was commuted who was not reassigned to ADX Florence was transferred by DOJ to Arizona’s custody—so that the state could seek the death penalty against him.

The district court found the government’s claims that the inmates were afforded due process under the BOP regulation to be unworthy of belief. It noted that for 23 years, prisoner Julius Robinson served in prison without receiving a disciplinary mark—working, taking dozens of courses, and even apparently being baptized. But his hearing officer decided he was suddenly an intolerable safety risk at any facility less secure than ADX Florence. 

Another inmate told the court his hearing officer “admitted that he had to” follow Attorney General Bondi’s directions. He said he would recommend a transfer to ADX Florence “no matter what” happened at the hearing—an allegation the government did not rebut.

Based on this evidence, Judge Timothy Kelly found the transfer proceedings to be “an empty exercise to approve an outcome that was decided before it even began”—they were a legal pretext for a fundamentally lawless decision. On Wednesday, he issued a preliminary injunction against the transfer of the inmates while litigation continues. Judge Kelly was nominated to the federal bench by President Trump.

My colleague Walter Olson recently asked whether the executive branch is still entitled to the “presumption of regularity.” That presumption is a privilege the federal courts afford officials. The courts assume that agency personnel perform their official duties properly in the absence of evidence to the contrary. Specifically, in the words of a Just Security analysis, the executive branch is assumed to act “with procedural regularity and with bona fide, non-pretextual reasons.”

Judge Kelly clearly began with that assumption. His order said he “is in no position to second-guess the merits of BOP’s redesignation decisions.” He further wrote that he “does not lightly cast aside” BOP’s representations about its internal processes. But he explained that neither was he ultimately “required to exhibit a naiveté from which ordinary citizens are free.”

As Professor Skinner concluded years ago, freedom from the caprices of another has always been liberty’s core. Judge Kelly rightly recognized that accepting the government’s lies would have subjected the inmates—and the rest of us as Americans—to just that.