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Mike Sacks

@mikesacks.bsky.social

25K followers 1K following 3.1K posts

NY-17 Congressional Candidate. Democracy advocate. Former political-legal journalist. Retired competitive air guitarist. Second-Best dad ever.

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Mike Sacks

@mikesacks.bsky.social

I bet it’s part of a build-up to Mollie Hemingway’s April hagiography release

January 30, 2026 at 9:08 PM

Mike Sacks

@mikesacks.bsky.social

Judge Mendoza concurs to call Trump and Noem racist xenophobes.

“It is our duty to say what is already plainly known to the public.”

National TPS Alliance v. Noem, No. 25-5724
JAN 28 2026
MOLLY C. DWYER, CI
U.S. COURT OF APPE.
Mendoza, Circuit Judge, with whom Wardlaw, Circuit Judge, joins as to Parts I and II, concurring:
I wholeheartedly agree with Judge Wardlaw's opinion and its conclusion
that Secretary of Homeland Security Kristi Noem exceeded her authority under 8
U.S.C. § 1254a when she vacated and terminated Temporary Protected Status
("TPS") for Venezuela and Haiti. I believe Judge Wardlaw's explanation is
sufficient to dispose of this case.
However, I write separately to underscore why we must not permit government agencies to justify their actions with pretext, especially when that pretext is cloaking animus on the basis of race or national origin. When decision-makers repeatedly broadcast their impermissible reasons for making a decision, we should heed the fitting words of Maya Angelou and "believe them the first time."
Maya Angelou, Oprah Winfrey Show (Harpo Productions broadcast, June 18,
1997). And as the Supreme Court cautions, we cannot allow agencies to eschew
their obligation to engage in reasoned decision-making and instead use
administrative procedure to reach preordained outcomes. I therefore author this concurrence to explain why the Secretary's actions would not stand had we
reached the merits of Plaintiffs' Administrative Procedure Act ("APA") claims.

We cannot ignore the backdrop of extraordinary statements by direct
decision-makers when assessing whether the agency's proffered rationale was
genuine or merely a pretext for an ulterior (and impermissible) motive. The record
is replete with public statements by Secretary Noem and President Donald Trump
that evince a hostility toward, and desire to rid the country of, TPS holders who are
Venezuelan and Haitian. And these were not generalized statements about
immigration policy toward Venezuela and Haiti or national security concerns to
which the Executive is owed deference. Instead, these statements were overtly
founded on racist stereotyping based on country of origin.
Stereotyping on the basis of race or country of origin can never form the
basis of "reasoned decision making" nor can it provide a "rational connection between the facts found and the choice made" necessary to survive review under
the APA. All. for the Wild Rockies v. Petrick, 68 F.4th 475, 493 (9th Cir. 2023)
(internal quotation marks and citations omitted) ("The touchstone of 'arbitrary and
capricious' review under the APA is reasoned decisionmaking." (alterations and
internal quotation marks omitted) (quoting Altera Corp. & Subsidiaries v. Comm'r,
926 F.3d 1061, 1080 (9th Cir. 2019))).

Animus based on race or national origin can never qualify as a "political
consideration[]" or "Administration priorit[y]" that falls beyond a court's scrutiny
of agency decision-making. Dep't of Com., 588 U.S. at 781; see Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977) ("I]t is because
legislators and administrators are properly concerned with balancing numerous
competing considerations that courts refrain from reviewing the merits of their
decisions, absent a showing of arbitrariness or irrationality. But racial
discrimination is not just another competing consideration. When there is a proof
that a discriminatory purpose has been a motivating factor in the decision, this
judicial deference is no longer justified.").
Here, the Secretary's statements are neither isolated nor stray. They are
numerous, specific, and closely tied to the agency action at issue. Cf. Trump v.
Hawaii, 585 U.S. 667, 701-02 (2018). Many of the assertions were made within
days or hours of the Secretary's decision to vacate TPS for Venezuela and Haiti.
Here, the Secretary's and President's statements of ethnic hostility and prejudice
toward TPS holders who are Venezuelan and Haitian reveals the ugly truth of bad
faith and impermissible animus.*

At its core, the APA enshrines a fundamental principle: agencies of the
federal government "must pursue their goals reasonably" and in a manner that is
transparent to the people they serve. Dep't of Com., 588 U.S. at 785. When
executive officials short-circuit statutory guardrails or base decisions on hidden
motives, it is not a mere technical lapse but an affront to the rule of law. Judicial
vigilance in these circumstances is essential to ensure that regulatory power
remains tethered to law and reason, not the whims of hidden motives or prejudice.
In sum, while the Executive may certainly shape an agency's policy within
the scope granted by Congress, it may not do so by subverting the APA's
requirements or by smuggling racial or national origin animus into the administrative process. Animus is never a legitimate basis for agency action and will always constitute arbitrary and capricious decision-making.
The law's promise of accountability demands no less than candor and reasoned decision-making from those entrusted with immense regulatory powers.
Here, that promise was betrayed, and it is our duty to say what is already plainly
known to the public.

January 30, 2026 at 5:58 AM

Mike Sacks

@mikesacks.bsky.social

CA9 goes full Robertsball Refusenik, this time on the merits finding Noem illegally ended Venezuelans’ and Haitians’ Temporary Protected Status.

cdn.ca9.uscourts.gov/datastore/op...

WARDLAW, Circuit Judge:
We again consider the National TPS Alliance's and individual Temporary
Protected Status ("TPS") beneficiaries' (collectively, Plaintiffs) challenge to Department of Homeland Security ("DHS") Secretary Kristi Noem's vacatur and
termination of Venezuela's TPS designation. We also consider Plaintiffs'
challenge to Secretary Noem's partial vacatur of Haiti's TPS designation. The
district court held that the Secretary's actions exceeded her statutory authority
under the TPS statute, 8 U.S.C. § 1254a, and that the Secretary acted in an
arbitrary and capricious manner. The district court therefore set aside the
Venezuelan vacatur and termination, and the Haitian partial vacatur. We affirm.
Congress created TPS to provide stability, predictability, and a brief reprieve
from deportation to qualifying citizens of designated countries. The catch: that reprieve is guaranteed for no more than 18 months at a time. See 8 U.S.C.
§ 1254a(b)(2)(B), (b)(3)(C). The TPS statute grants the Secretary of Homeland Security significant discretion and authority in designating, extending, and
terminating a country's TPS. But by its plain language, the statute does not grant
the Secretary the power to vacate an existing TPS designation. Secretary Noem
exceeded her statutory authority by vacating and terminating Venezuela's TPS
designation, and by partially vacating Haiti's TPS designation.
The Secretary's unlawful actions have had real and significant consequences
for the hundreds of thousands of Venezuelans and Haitians in the United States

who rely on TPS. The record is replete with examples of hard-working,
contributing members of society-
-who are mothers, fathers, wives, husbands, and
partners of U.S. citizens, pay taxes, and have no criminal records—who have been
deported or detained after losing their TPS. Other TPS beneficiaries have lost their
jobs after the Secretary stripped them of their work authorization forms, leaving
them with no ability to provide for their families. Some beneficiaries, unable to
work legally, have now lost their homes, rendering them and their families
homeless. The Secretary's actions affect physicians, artists, automotive
mechanics, food service employees, construction workers, students, and thousands
of others who "didn't come [to the United States] for hand-outs," but "to work
hard." The Secretary's actions have left hundreds of thousands of people in a
constant state of fear that they will be deported, detained, separated from their
families, and returned to a country in which they were subjected to violence or any
other number of harms.
The Secretary's actions fundamentally contradict Congress's statutory
design, and her assertion of a raw, unchecked power to vacate a country's TPS is
irreconcilable with the plain language of the statute. The district court correctly set
aside the Secretary's unlawful actions.

IV. Effect of the Supreme Court's Emergency Stay Orders
At the outset, we address the Government's argument that we are bound by
the Supreme Court's twice determination that the Government is likely to succeed
on the merits. However, the Supreme Court's emergency stay orders did not
expressly decide the issue of whether the Government was likely to succeed on the
merits of this case, so we reject the Government's argument that the stay orders
control our determination of this case. See Noem v. National TPS Alliance, 606
U.S. -.., 2025 WL 2812732, at *1 (Mem.) (2025) ("Although the posture of the
case has changed, the parties' legal arguments and relative harms generally have
not. The same result that we reached in May is appropriate here.").
Unlike NTPSA I and NTPSA II, our opinion today for the first time addresses
solely the merits of Plaintiffs' claims. Because "[wle can only guess as to the
Court's rationale when it provides none," we are wary of the possibility that the
Court granted the Government's emergency stay application due to its assessment
of the balance of the equities or the parties' respective irreparable harms, rather
than its assessment of the merits. NTPSA II, 2025 WL 2661556, at *2-3.
The Supreme Court's unreasoned stay orders were "not conclusive as to the merits." Trump v. Boyle, 606 U.S...., 145S. Ct. 2653, 2654(2025). While they may have informed "how [we] should exercise [our] equitable discretion in like
cases," in this appeal, we are confronted with legal questions, not equitable ones.

Id.; cf. Noem v. National TPS Alliance, 2025 WL 2812732, at *2 (Jackson, J., dissenting) (arguing that the Court "misjudge[d] the irreparable harm and balance-of-the-equities factors," rather than addressing the merits). We therefore conclude
that the Supreme Court's October 3, 2025, stay order is not controlling as to the outcome of this case.

January 30, 2026 at 5:45 AM

Mike Sacks

@mikesacks.bsky.social

1791: “A well regulated militia, being necessary to a free state”
2008: Militia clause is irrelevant! 2A protects individual right to keep and bear arms for self-defense
2023: And find an analogous law from the Founding if you want the gun safety law to survive!
2026: Ok here’s militia regulations.

These founding-era laws and practices show that mark-ing, inventorying, or otherwise publicly tracking firearms is part of our historical tradition of firearm regulation. Of course, our modern system of firearm serialization is far more sophisticated and comprehensive, but it fits comfortably within this tradition. It follows that § 922(k), which punishes the knowing possession of a deserialized firearm, is likewise consistent with this tradition- in principle, if not specifics. In Bruen's framing, as refined by Rahimi, § 922(k) is
"relevantly similar" to founding-era regulations requiring firearms to be inventoried, inspected, or marked to promote militia readiness and permit public tracking of firearms.
Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 29).
Rahimi confirmed that a closer match to a historical precursor is not necessary. 602 U.S. at 691. The founding-era laws establishing public inventory and inspection regimes and rudimentary forms of firearm marking ensured that the relevant governing authority could monitor and track firearm Ovithin its jurisdiction, penalizing those who did not comply. It's true that some of the historical regulations were linked to militia preservation and readiness. But "the Second Amendment permits more than just those egulations iden-

tical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers." Rahimi, 602 U.S. at 691-92.
Accordingly, we hold that § 922(k) is compatible with the
Second Amendment.

January 28, 2026 at 10:39 PM

Mike Sacks

@mikesacks.bsky.social

Every 2A decision upholding or striking down gun laws since Bruen proves just how stupid its history and tradition test is.

Bruen's second step requires the government to demonstrate that § 922(k) is consistent with the Nation's historical tradition of firearm regulation. As we've noted, in Rahimi the Court clarified that the Bruen standard should not be misunderstood to mean that modern firearm regulations require close founding-era comparators. 602 U.S. at 691-92. The Court punctuated the point this way: Heller and Bruen "were not meant to suggest a law trapped in amber." Id. at 691.
Rather, "the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition." Id. at 692.
The analysis examines "whether the new law is 'relevantly similar' to laws that our tradition is understood to permit."
Id. (quoting Bruen, 597 U.S. at 29).
Although systemic firearm serialization as it exists today was not in use when the Second Amendment was ratified, founding-era regulations established various measures to inventory and track firearms. For example, starting in the early seventeenth century, Virginia required plantation commanders to take a yearly account of "arm[]s and muni-tion." Virginia Act of Mar. 2, 1631, Act. LVI, reprinted in
1 THE STATUTES AT LARGE, BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 1619, at 174-75 (William Waller Hening ed., N.Y., R. & W. & G. Bartow 1823); see Robert J.
Spitzer, Gun Law History in the United States and Second Amendment Rights, 80 L. & CONTEMP. PROBS. 55, 76 (2017).
Similarly, in the mid-seventeenth century, Rhode Island required by governor's order a lieutenant to go from house to house "tak[ing] a precise and exact account of all the

arm[]s, am[m]unition[,] and weapons ... each person is furnished with." 2 RECORDS OF THE COLONY OF RHODE ISLAND AND PROVIDENCE PLANTATIONS, IN NEW ENGLAND 196 (John Russell Bartlett ed., Providence, R.I., A. Crawford Greene &
Brother 1857).
By the time the Second Amendment was ratified, it was common practice for states to conduct musters to keep track of firearms for militia purposes. See Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 L. & HIST. REV. 139, 161 (2007). In the mid-eighteenth century, South Carolina adopted a law authorizing its military officers to go door to door to view and inspect any arms and ammunition with a penalty of three pounds for refusing inspection or possessing noncompliant arms. An Act for the Better Regulating the Militia of this Province, § 10(1747), reprinted in 9 THE STATUTES AT LARGE OF SOUTH CAROLINA app. at 647 (David ). McCord ed., Columbia, S.C., A.S.
Johnston 1841). New Jersey similarly required militia officers to go door to door at militiamen's homes three times a year to report on the "[s]tate of [their] arms ... and [a]mmunition"; it separately required its militia to assemble twice a year to likewise report the state of arms and ammu-nition. An Act for the Regulating, Training, and Arraying of the Militia, and for Providing More Effectually for the Defence and Security of the State, ch. 242, SS 13, 15 (1781), reprinted in ACTS OF THE GENERAL ASSEMBLY OF THE STATE OF NEW-JERSEY 169-70 (Trenton, Isaac Collins 1784).
Massachusetts similarly required an annual assembly to
"examin[e] and tak[e] an exact account of every man|']s arms and equipment[] with a fine for militiamen who were

absent. An Act for Regulating and Governing the Militia of the Commonwealth of Massachusetts, ch. 14(1793), reprinted in ACTS AND LAWS OF THE COMMONWEALTH OF MASSACHUSETTS 394-95 (Boston, Wright & Potter Printing Co. 1895). The early Congress enacted a law requiring state militia officers to report the "situation of the arms, accoutrements, and ammunition of the several corps"; those reports were collected and sent to the President of the United States. Act of May 8, 1792, ch. 33, 1 Stat. 271, 273-74.
Meanwhile, our early regulatory tradition also required the marking of firearms. For example, during the Revolutionary War, George Washington required all military equipment, including firearms, to be stamped with an insignia to keep track of firearms and prevent theft.
E. WAYNE CARP, TO STARVE THE ARMY AT PLEASURE 67 (1984).
By the early 1800s, some states required gun barrels to be proved and marked (and penalized obliterating the marks).
For example, an 1805 Massachusetts law established an inspection process (called "proving") for "all [m]usket [b]arrels and [plistol barrels" manufactured in the Commonwealth and required inspectors to stamp compliant firearms with their initials, the year of the inspection, and the letters "P" and "M." An Act to Provide for the Proof of Fire Arms Manufactured Within this Commonwealth, ch. 81
(1805), reprinted in ACTS AND LAWS OF THE COMMONWEALTH OF MASSACHUSETTS 111-12 (Boston, Wright & Potter Printing Co. 1898). These markings were to be "so deeply impressed" that they "[could] not be erased or disfigu[]red." Id. at 112.
Anyone who manufactured or sold a firearm without having it inspected and stamped (or "proved," in the language of the statute) was subject to a 10-dollar fine, and anyone who

falsely forged or altered the stamp was subject to a fine of 20 to 50 dollars. Id. at 112-13.
Maine enacted a similar law in 1821, requiring "provers" to "mark and number every barrel" in a "permanent man-ner" and to provide a certificate attesting to the proof with their initials and the date. 1821 Me. Laws 685. Anyone who sold an unproved firearm was subject to a 10-dollar fine, and anyone who falsely altered the stamp or mark on the certificate was subject to a fine of 20 to 100 dollars. Id. at 685-86.
These founding-era laws and practices show that mark-ing, inventorying, or otherwise publicly tracking firearms is part of our historical tradition of firearm regulation. Of course, our modern system of firearm serialization is far more sophisticated and comprehensive, but it fits comfortably within this tradition. It follows that § 922(k), which punishes the knowing possession of a deserialized firearm, is likewise consistent with this tradition-in principle, if not specifics. In Bruen's framing, as refined by Rahimi, § 922(k) is
"relevantly similar" to founding-era regulations requiring firearms to be inventoried, inspected, or marked to promote militia readiness and permit public tracking of firearms.
Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 29).

January 28, 2026 at 10:22 PM

Mike Sacks

@mikesacks.bsky.social

CA7 upholds federal ban on possessing a firearm with an obliterated serial number.

The unanimous, bipartisan panel (GWB/Trump/Biden) says the law triggers but survives Bruen’s 2A analysis, while CA2 & CA4 upheld the ban by saying 2A doesn’t cover the law.

media.ca7.uscourts.gov/cgi-bin/Opin...

Before SYKES, ST. EVE, and LEE, Circuit Judges.
SYKES, Circuit Judge. Jose Reyna pleaded guilty to possessing a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k). Just before sentencing he moved to dismiss the indictment, arguing that § 922(k) is an unconstitutional infringement of his Second Amendment right to keep and bear arms under the Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen,
597 U.S. 1 (2022).

Bruen established a new standard for assessing the constitutionality of restrictions on weapons-related conduct:
"When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." 597 U.S. at 24.
The Court issued Bruen before Reyna pleaded guilty, and his motion was otherwise untimely under the district court's scheduling order. But the judge found good cause to entertain the belated motion and denied it on the merits. He rejected Reyna's claim at Bruen's first step, holding that the Second Amendment's text does not cover possession of a deserialized firearm. Reyna asks us to reverse that decision.
We affirm the judgment, though on somewhat different reasoning. Bruen's first step is explicitly framed as a plaintext inquiry. Like most other provisions in the Bill of Rights, the Second Amendment is expressed in broad and highly general language; we're not confident that the text alone resolves this case. Still, we agree that § 922(k) is not uncon-stitutional. The Court clarified Bruen in United States v.
Rahimi, 602 U.S. 680 (2024), explaining that the new decision method should not be misunderstood to mean that modern regulations are invalid unless a close analogue in founding-era legal history can be identified. Instead, "the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition." Rahimi, 602 U.S. at 692.
Under Rahimi's refinement of Bruen, § 922(k) is a valid firearm regulation. Although the modern requirement of serialization lacks a precise analogue in our early history, it

is loosely but relevantly similar to founding-era laws and

practices requiring firearms to be marked or stamped,

inventoried, and inspected in furtherance of military service

or militia readiness. We hold that § 922(k) is consistent with

the principles underlying this tradition.

In closing, we note that two of our sister circuits have also upheld the validity of § 922(k) since Bruen, though their reasoning differs from ours. The Second and Fourth Circuits have rejected challenges to § 922(k) at step one of Bruen, agreeing with the government's position that possession of a deserialized firearm is not covered by the Second
Amendment's text. See United States v. Gomez, 159 F.4th 172, 177-78 (2d Cir. 2025); United States v. Price, 111 F.4th 392, 402-08 (4th Cir. 2024) (en banc). Though our analysis diverges, our conclusion is the same.
AFFIRMED

January 28, 2026 at 10:08 PM

Mike Sacks

@mikesacks.bsky.social

January 28, 2026 at 3:56 AM

Mike Sacks

@mikesacks.bsky.social

January 28, 2026 at 3:52 AM

Mike Sacks

@mikesacks.bsky.social

My Mike-to-Mike advice:

January 27, 2026 at 6:17 PM

Mike Sacks

@mikesacks.bsky.social

I know the post isn’t really about urinal cakes but

January 27, 2026 at 7:58 AM

Mike Sacks

@mikesacks.bsky.social

The Trump DOJ’s corruption in three pages to Judge Cannon

storage.courtlistener.com/recap/gov.us...

January 26, 2026 at 10:30 PM

Mike Sacks

@mikesacks.bsky.social

mikesacksforcongress.com/issue/immigr...

January 26, 2026 at 6:31 PM

Mike Sacks

@mikesacks.bsky.social

(If you want to read it for yourself)

tile.loc.gov/storage-serv...

In this case, the financial "inducement" Congress has chosen is much more than "relatively mild encouragement"-it is a gun to the head. Section 1396c of the Medicaid Act provides that if a State's Medicaid plan does not comply with the Act's requirements, the Secretary of Health and Human Services may declare that "further payments will not be made to the State." 42 U.S. C. § §1396c. A State that opts out of the Affordable Care Act's expansion in health care coverage thus stands to lose not merely "a relatively small percentage" of its existing Medicaid funding, but all of it.
Dole, supra, at 211. Medicaid spending accounts for over 20 percent of the average State's total budget, with federal funds covering 50 to 83 percent of those costs. See Nat. Assn. of State Budget Officers, Fiscal Year 2010 State Expenditure Report, p. 11 (2011) (Table 5); 42 U.S. C.
§ 1396d(b). The Federal Government estimates that it will pay out approximately $3.3 trillion between 2010 and 2019 in order to cover the costs of pre-expansion Medicaid. Brief for United States 10, n. 6. In addition, the States have developed intricate statutory and administrative regimes over the course of many decades to implement their objectives under existing Medicaid. It is easy to see how the Dole Court could conclude that the threatened loss of less than half of one percent of South Dakota's budget left that State with a "prerogative" to reject Congress's desired policy,
"not merely in theory but in fact." 483 U.S., at 211-212.

The threatened loss of over 10 percent of a State's overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.12

12 JUSTICE GINSBURG observes that state Medicaid spending will increase by only 0.8 percent after the expansion. Post, at 628. That not only ignores increased state administrative expenses, but also assumes that the Federal Government will continue to fund the expansion at the current statutorily specified levels. It is not unheard of, however, for the Federal Government to increase requirements in such a manner as to impose unfunded mandates on the states. More importantly, the size of the new financial burden imposed on a State is irrelevant in analyzing whether the State has been coerced into accepting that burden. "Your money or your life" is a coercive proposition, whether you have a single dollar in your pocket or $500.

January 26, 2026 at 4:24 PM

Mike Sacks

@mikesacks.bsky.social

GWB and Trump judges in dissent:

storage.courtlistener.com/recap/gov.us...

January 26, 2026 at 12:03 AM

Mike Sacks

@mikesacks.bsky.social

Trump judge in dissent: "New Jersey’s post-Reconstruction sources have no basis in Founding-era law and reject the complementarity of the First and Second Amendments. Those sources fail to satisfy the State’s burden."

January 25, 2026 at 5:24 PM

Mike Sacks

@mikesacks.bsky.social

GWB judge in dissent: "Maryland failed to meet its
burden at Bruen step two as to Maryland’s public demonstration firearms restriction, and [I] would hold the provision unconstitutional."

January 25, 2026 at 5:24 PM

Mike Sacks

@mikesacks.bsky.social

(Though I had to refresh my memory on *what* he was defending...aaaaand it was the Comstock Act.)

January 25, 2026 at 5:30 AM

Mike Sacks

@mikesacks.bsky.social

Memories

January 25, 2026 at 5:26 AM

Mike Sacks

@mikesacks.bsky.social

ICE just murdered another person on the streets of Minneapolis.

This is what Mike Lawler voted to fund. And, after he blamed Renee Good for her death, Lawler voted to keep ICE funded, and will probably blame this man for his exectution, too.

Abolish ICE.