Note

Identical, Not Fraternal Twins: RLUIPA, RFRA, and Damages

The federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and Religious Freedom Restoration Act (“RFRA”) are commonly labeled “twin” or “sister” statutes. Both reinstall a strict scrutiny regime for religious accommodations, and they use identical remedial language to do so, providing for “appropriate relief against a government.” In 2020’s Tanzin v. Tanvir, the Supreme Court interpreted RFRA’s remedial provision to allow for personal capacity damages suits against government officials. By that time, however, ten federal courts of appeals had reached the opposite conclusion regarding that same remedial text within RLUIPA. Post-Tanzin, no circuit has changed course. Instead, they hold fast to two objections grounded in RLUIPA’s Spending Clause underpinnings: (1) RLUIPA has not provided “clear notice” of potential liability, which is required for a party to be liable for damages; and (2) because government officials are non-recipients of federal funds, they cannot be held personally liable.

This Note argues that these circuits have misapplied Spending Clause jurisprudence. Background presumptions, text, context, and precedent all make clear that damages suits against individuals are on the table. And the Supreme Court has repeatedly held funding non-recipients monetarily liable for violation of Spending Clause statutes, creating a line of precedent at odds with the circuits’ divined rule. This Note also illustrates the injustice that these erroneous damages bars have worked upon the one million-plus incarcerated persons in state and local institutions whose rights under RLUIPA often lack a remedy.

Introduction

In his civil complaint filed in the U.S. District Court for the Middle District of Louisiana, Damon Landor alleged that Louisiana prison officials at the Raymond Laborde Correctional Center (“RLCC”) forcibly shaved his head upon transfer to the facility.1 1.Complaint & Jury Demand ¶ 37, Landor v. La. Dep’t of Corr. & Pub. Safety, No. 21-cv-00733, 2022 WL 4593085 (M.D. La. Sept. 29, 2022), aff’d, 82 F.4th 337 (5th Cir. 2023), cert. granted,145 S. Ct. 2814 (2025).Show More Landor, a devout Rastafarian, had been growing his dreadlocks for twenty years in compliance with the Nazarite vow not to cut one’s hair.2 2.Id.¶¶ 21–24.Show More Precedent in the U.S. Court of Appeals for the Fifth Circuit squarely forbade the officials’ conduct as a violation of Landor’s rights under the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”).3 3.See Ware v. La. Dep’t of Corr., 866 F.3d 263, 274 (5th Cir. 2017) (holding that a Louisiana Department of Corrections grooming policy, which prohibited inmates from having dreadlocks, was an unjustified substantial burden on Rastafarian inmates’ faith under RLUIPA).Show More Landor, in an abundance of caution, had brought with him to RLCC a physical copy of the opinion that established Rastafarian incarcerated persons’ right to grow their hair.4 4.Complaint & Jury Demand, supra note 1, ¶ 33.Show More RLCC’s intake officer, unpersuaded by binding federal law, tossed the opinion in the garbage.5 5.Id ¶ 34.Show More The warden arrived and demanded the religious documentation provided by Landor’s sentencing judge.6 6.Id.¶¶ 34–35.Show More Landor offered to request the documents from his attorney.7 7.Id.¶ 36.Show More “Too late for that,” the warden responded, before having Landor cuffed to a chair.8 8.Id ¶ 37.Show More

Despite its egregious facts, Landor’s complaint was summarily dismissed by the district court judge.9 9.Landor v. La. Dep’t of Corr. & Pub. Safety, No. 21-cv-00733, 2022 WL 4593085, at *3 (M.D. La. Sept. 29, 2022).Show More A Fifth Circuit panel reviewing the case on appeal “emphatically condemn[ed]” Landor’s treatment.10 10.Landor v. La. Dep’t of Corr. & Pub. Safety, 82 F.4th 337, 345 (5th Cir. 2023).Show More Nevertheless, the panel unanimously affirmed the dismissal.11 11.Id.Show More While a prima facie violation of RLUIPA had been alleged, no remedy was available to redress the injury suffered. Injunctive and declaratory relief were off the table since Landor was no longer incarcerated.12 12.See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (concluding that an incarcerated individual’s suit for equitable relief under RLUIPA is mooted once they leave the injurious facility).Show More The Supreme Court has held that RLUIPA claims against state officials in their official capacity—which are tantamount to claims against the state itself—are barred by state sovereign immunity.13 13.See Sossamon v. Texas (Sossamon II), 563 U.S. 277, 282, 293 (2011).Show More And Fifth Circuit precedent holds that monetary damages are unavailable under RLUIPA for suits against state officials in their individual capacity.14 14.Sossamon v. Lone Star State of Texas (Sossamon I), 560 F.3d 316, 331 (5th Cir. 2009), aff’d on other grounds sub nom. Sossamon II, 563 U.S. 277. Suits against an officer in their individual or “personal” capacity are lawsuits that “can be executed only against the official’s personal assets” and not the governmental entity for which they work. Kentucky v. Graham, 473 U.S. 159, 166 (1985).Show More

Sympathy aside, the federal courts left Landor empty-handed. This Note rejects that result as his proper judicial fate. Particularly, it argues that damages should be available in suits against officers in their individual capacity under RLUIPA. The present answer, across all federal circuits to have addressed the question, is that they are not.15 15.See, e.g., Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir. 2009); Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir. 2012); Smith v. Allen, 502 F.3d 1255, 1275 (11th Cir. 2007).Show More But this unanimity is deceiving. Most courts have not readdressed the question since the U.S. Supreme Court handed down its 2020 decision in Tanzin v. Tanvir, which established that individual capacity suits for damages are available under the federal Religious Freedom Restoration Act (“RFRA”).16 16.141 S. Ct. 486, 493 (2020).Show More RFRA and RLUIPA are commonly labeled “twin” or “sister” statutes.17 17.See, e.g., Ramirez v. Collier, 142 S. Ct. 1264, 1277 (2022) (“sister”); Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2396 n.13 (2020) (Alito, J., concurring) (“twin”).Show More Both were enacted as part of Congress’s efforts to legislatively abrogate the Supreme Court’s abandonment of the strict scrutiny standard for violations of the Free Exercise Clause in Employment Division v. Smith.18 18.See Holt v. Hobbs, 574 U.S. 352, 356–57 (2015).Show More They also share functionally identical remedial provisions, allowing for injured parties to seek “appropriate relief against a government.”19 19.42 U.S.C. §§ 2000bb-1(c), 2000cc-2(a).Show More

Despite this congruity and the common practice of using case law interpreting the text of one of these “twin” statute to elucidate the other’s meaning, the scope of RLUIPA’s remedies remains unchanged.20 20.See infra Section I.B.Show More The Fifth Circuit, one of the few courts of appeals to revisit the question of individual capacity damages suits following Tanzin, reaffirmed their unavailability under RLUIPA in Landor’s case.21 21.Landor v. La. Dep’t of Corr. & Pub. Safety, 82 F.4th 337, 345 (5th Cir. 2023).Show More The panel focused, as other circuits have, on the fact that RLUIPA, unlike RFRA, is Spending Clause legislation.22 22.See id. at 344 (explaining that Tanzin’s holding does not reach RLUIPA because “it addresses a different law that was enacted under a separate Congressional power”); see also Tripathy v. McKoy, 103 F.4th 106, 114 (2d Cir. 2024) (reaffirming a narrower interpretation of RFRA’s remedial scheme “for the simple reason that RFRA and RLUIPA were enacted pursuant to different constitutional provisions”).Show More As the panel explained, there are unique barriers to the imposition of liability under statutes enacted through Congress’s spending power—barriers that RLUIPA does not overcome in the context of individual officer damages suits.23 23.See Landor, 82 F.4that 341 (“Spending Clause legislation ‘operates like a contract,’ so ‘only the grant recipient—the state—may be liable for its violation.’” (quoting Sossamon I, 560 F.3d 316, 328 (5th Cir. 2009))).Show More However, six judges dissented from the denial of a rehearing en banc, finding the Spending Clause arguments unconvincing.24 24.See Landor v. La. Dep’t of Corr. & Pub. Safety, 93 F.4th 259, 265 (5th Cir. 2024) (Oldham, J., dissenting from the denial of rehearing en banc).Show More Nine other judges concurred in the denial, asserting that only the Supreme Court could resolve the intractable friction between prior precedent and Tanzin.25 25.See id. at 261 (Clement, J., concurring in the denial of rehearing en banc) (“[T]hreading the needle between Sossamon II and Tanzin is a task best reserved for the court that wrote those opinions.”).Show More As Damon Landor’s case sits pending on the Supreme Court’s docket and other circuits grapple with Tanzin’s upshot,26 26.See, e.g., Fuqua v. Raak, 120 F.4th 1346, 1360 (9th Cir. 2024) (acknowledging that Tanzin indicates that “appropriate relief” should carry the same meaning across RFRA and RLUIPA, but concluding that the court remains bound by pre-Tanzin circuit precedent).Show More the question is ripe and underexplored.

This Note proceeds in four Parts. Part I examines the establishment and demise of the strict scrutiny standard of review for claims under the First Amendment’s Free Exercise Clause. Part I also analyzes the enactment of RFRA and RLUIPA in response to Smith, the case that circumscribed the application of strict scrutiny review to free exercise claims, as well as the prevailing judicial interpretations of these statutes’ remedial schemes. Parts II and III separately address each of the two Spending Clause rationales for the unavailability of damages against individual state and local officials under RLUIPA: (1) that RLUIPA does not provide the requisite “clear notice” to individual officers of their potential liability for damages; and (2) that individual officials are not themselves recipients of federal funds and thus cannot be held personally liable for violating RLUIPA’s terms. Parts II and III challenge these conclusions. Specifically, these Parts conclude that “clear notice” has been provided and non-recipients of federal funds can be held liable for violations of the conditions of spending power legislation, so damages should be available against individual officers under RLUIPA. Finally, Part IV discusses the real-world implications of the issues addressed in this Note. For the over 1.5 million individuals currently incarcerated in federally funded state prisons and local jails, the Free Exercise Clause permits almost across-the-board denial of religious accommodations. And RLUIPA currently extends a right to religious accommodations but often no remedy.

  1.  Complaint & Jury Demand ¶ 37, Landor v. La. Dep’t of Corr. & Pub. Safety, No. 21-cv-00733, 2022 WL 4593085 (M.D. La. Sept. 29, 2022), aff’d, 82 F.4th 337 (5th Cir. 2023), cert. granted, 145 S. Ct. 2814 (2025). ↑
  2.  Id. ¶¶ 21–24. ↑
  3.  See Ware v. La. Dep’t of Corr., 866 F.3d 263, 274 (5th Cir. 2017) (holding that a Louisiana Department of Corrections grooming policy, which prohibited inmates from having dreadlocks, was an unjustified substantial burden on Rastafarian inmates’ faith under RLUIPA). ↑
  4.  Complaint & Jury Demand, supra note 1, ¶ 33. ↑
  5.  Id ¶ 34. ↑
  6.  Id. ¶¶ 34–35. ↑
  7.  Id. ¶ 36. ↑
  8.  Id ¶ 37. ↑
  9.  Landor v. La. Dep’t of Corr. & Pub. Safety, No. 21-cv-00733, 2022 WL 4593085, at *3 (M.D. La. Sept. 29, 2022). ↑
  10.  Landor v. La. Dep’t of Corr. & Pub. Safety, 82 F.4th 337, 345 (5th Cir. 2023). ↑
  11.  Id. ↑
  12.  See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (concluding that an incarcerated individual’s suit for equitable relief under RLUIPA is mooted once they leave the injurious facility). ↑
  13.  See Sossamon v. Texas (Sossamon II), 563 U.S. 277, 282, 293 (2011). ↑
  14.  Sossamon v. Lone Star State of Texas (Sossamon I), 560 F.3d 316, 331 (5th Cir. 2009), aff’d on other grounds sub nom. Sossamon II, 563 U.S. 277. Suits against an officer in their individual or “personal” capacity are lawsuits that “can be executed only against the official’s personal assets” and not the governmental entity for which they work. Kentucky v. Graham, 473 U.S. 159, 166 (1985). ↑
  15.  See, e.g., Rendelman v. Rouse, 569 F.3d 182, 189 (4th Cir. 2009); Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir. 2012); Smith v. Allen, 502 F.3d 1255, 1275 (11th Cir. 2007). ↑
  16.  141 S. Ct. 486, 493 (2020). ↑
  17.  See, e.g., Ramirez v. Collier, 142 S. Ct. 1264, 1277 (2022) (“sister”); Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2396 n.13 (2020) (Alito, J., concurring) (“twin”). ↑
  18.  See Holt v. Hobbs, 574 U.S. 352, 356–57 (2015). ↑
  19.  42 U.S.C. §§ 2000bb-1(c), 2000cc-2(a). ↑
  20.  See infra Section I.B. ↑
  21.  Landor v. La. Dep’t of Corr. & Pub. Safety, 82 F.4th 337, 345 (5th Cir. 2023). ↑
  22.  See id. at 344 (explaining that Tanzin’s holding does not reach RLUIPA because “it addresses a different law that was enacted under a separate Congressional power”); see also Tripathy v. McKoy, 103 F.4th 106, 114 (2d Cir. 2024) (reaffirming a narrower interpretation of RFRA’s remedial scheme “for the simple reason that RFRA and RLUIPA were enacted pursuant to different constitutional provisions”). ↑
  23.  See Landor, 82 F.4th at 341 (“Spending Clause legislation ‘operates like a contract,’ so ‘only the grant recipient—the state—may be liable for its violation.’” (quoting Sossamon I, 560 F.3d 316, 328 (5th Cir. 2009))). ↑
  24.  See Landor v. La. Dep’t of Corr. & Pub. Safety, 93 F.4th 259, 265 (5th Cir. 2024) (Oldham, J., dissenting from the denial of rehearing en banc). ↑
  25.  See id. at 261 (Clement, J., concurring in the denial of rehearing en banc) (“[T]hreading the needle between Sossamon II and Tanzin is a task best reserved for the court that wrote those opinions.”). ↑

  26.  See, e.g., Fuqua v. Raak, 120 F.4th 1346, 1360 (9th Cir. 2024) (acknowledging that Tanzin indicates that “appropriate relief” should carry the same meaning across RFRA and RLUIPA, but concluding that the court remains bound by pre-Tanzin circuit precedent). ↑

The President Told Me To: The Public Authority Defense in the Trump Era

After hundreds were charged in connection with the events of January 6, 2021, several defendants argued they were only doing what President Trump told them to. More specifically, they raised the public authority defense as articulated in the U.S. Court of Appeals for the District of Columbia Circuit’s Watergate-era case United States v. Barker. The defense involves a claim that an individual was authorized to engage in otherwise unlawful activity by a government official. But the D.C. Circuit was split on whether the government official in question must have the authority to make such an authorization, or if the defendant’s belief in the official’s apparent authority would suffice. The D.C. Circuit never clarified the standard, and now that President Trump has pardoned the January 6 defendants, the court is once again unable to do so. Nevertheless, the January 6 case is a prime test to determine the proper standard, and this is the prime time to do so, given the possibility of future prosecutions of current Trump Administration associates who may want to claim reliance on President Trump’s direction.

This Note makes four contributions: First, it describes the public authority defense case law, beginning with the actual-versus-apparent authority debate in Barker and its progeny. Second, this Note argues that the actual authority standard is correct based on existing law and policy. Third, it applies the actual and apparent authority standards to the January 6 case, illustrating how only the actual authority standard provides a workable rule. This conclusion makes clear that the public authority defense must fail for the January 6 defendants, but not for the reason courts thought. Fourth, this Note elucidates additional implications for the public authority defense and for those President Trump directs to take unlawful action during his second term. Ultimately, individuals cannot rely on a president’s orders to escape criminal culpability.

Introduction

President Trump’s approach to his second administration is best captured in his own tweet: “He who saves his Country does not violate any Law.”1 1.Donald J. Trump (@realDonaldTrump), X (Feb. 15, 2025, 1:32 PM), https://x.com/realDo‌naldTrump/status/1890831570535055759 [https://perma.cc/Z9L5-VV6V].Show More Newly emboldened in his second term by broad criminal immunity,2 2.See Trump v. United States, 144 S. Ct. 2312, 2327 (2024). The president is also immune from civil liability for official actions taken while in office. Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982).Show More President Trump has made clear with his words that he believes he is above the law and will act accordingly. It is less clear, however, what happens to those the President instructs to undertake unlawful action at his behest.3 3.The Trump opinion only addressed the president, and it relied on the president’s unique position to hold that he is entitled to immunity. See Trump v. United States, 144 S. Ct. at 2327, 2330–31. Furthermore, absolute presidential immunity from civil suit does not extend to the president’s aides, so it is unlikely that criminal immunity would. See Harlow v. Fitzgerald, 457 U.S. 800, 808–13 (1982).Show More Perhaps these individuals have an affirmative defense: that the President told them to act unlawfully, and by virtue of his position as President of the United States, he legally authorized their otherwise criminal conduct. This defense is not merely hypothetical; it was raised by several of the individuals charged for their involvement with the January 6 attack on the U.S. Capitol. Although the January 6 rioters have all received pardons,4 4.Proclamation No. 10,887, 90 Fed. Reg. 8331 (Jan. 29, 2025).Show More revisiting their cases is a vital exercise to understand how such a defense works in anticipation of similar prosecutions that may arise from conduct engaged in during President Trump’s second term.

Throughout the various January 6 legal proceedings, several defendants pointed to President Trump’s incendiary language to argue that he ordered them to “stop the steal.”5 5.See infra notes 92–93.Show More During the presidential debate back in September 2020, in response to a question about whether he would condemn the far-right militia group the Proud Boys, President Trump told the group to “stand back and stand by.”6 6.Kathleen Ronayne & Michael Kunzelman, Trump to Far-Right Extremists: ‘Stand Back and Stand By,’ AP News (Sept. 30, 2020, 2:52 PM), https://apnews.com/article/election-2020-joe-biden-race-and-ethnicity-donald-trump-chris-wallace-0b32339da25fbc9e8b7c7c7066a1d‌b0f [https://perma.cc/LR78-FCNV].Show More In the months leading up to January 6, he repeatedly espoused the claim that the presidential election was stolen from him.7 7.H.R. Rep. No. 117-663, at 195, 213–16 (2022).Show More On the evening before the attack, President Trump again emphasized the election had been stolen and that his supporters had to do something to stop President-elect Joe Biden from taking office.8 8.Donald J. Trump (@realDonaldTrump), X (Jan. 5, 2021, 5:05 PM), https://x.com/realDon‌aldTrump/status/1346578706437963777 [https://perma.cc/TK9L-UAP6].Show More Finally, in a speech at the rally on the National Mall on January 6, 2021, just before the attack on the Capitol began, he made the following remarks:

Our country has had enough. We will not take it anymore and that’s what this is all about. And to use a favorite term that all of you people really came up with: We will stop the steal. . . . And fraud breaks up everything, doesn’t it? When you catch somebody in a fraud, you’re allowed to go by very different rules. . . . And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore. . . . So we’re going to . . . walk down Pennsylvania Avenue. . . . And we’re going to the Capitol, and we’re going to try and give . . . them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.9 9.Transcript of Trump’s Speech at Rally Before US Capitol Riot, AP News (Jan. 13, 2021, 9:11 PM) [hereinafter Trump January 6 Speech Transcript], https://apnews.com/article/electio‌n-2020-joe-biden-donald-trump-capitol-siege-media-e79eb5164613d6718e9f4502eb471f27. President Trump was impeached for inciting insurrection based in part on this language. H.R. Res. 24, 117th Cong., at 3 (2021). Incitement does not necessarily equate to authorization, but the fact that this language was considered incitement by Congress nonetheless helps explain the effect President Trump’s words had on his supporters.Show More

Defendants used this language to argue that President Trump legally authorized their break-in of the Capitol Building. For example, defendant and Proud Boys member William Chrestman argued the following in a motion requesting release on bail:

Trump’s incitement and enablement of this insurrectionary riot weighs heavily against the weight of the evidence prong, because the mob was given explicit permission and encouragement by the former President to do what they did. The American head of state directed a specific action; the Due Process Clause says that those who obeyed him have a viable defense against criminal liability.10 10.Detention Memorandum at 11, United States v. Chrestman, 521 F. Supp. 3d 1107 (D. Kan. 2021) (No. 21-mj-08023) [hereinafter Detention Memorandum, Chrestman].Show More

Similarly, defendant Alexander Sheppard argued the following in his response to the government’s motion in limine:

Never before in our nation’s history has a sitting United States President, alongside other prominent elected officials, invited, encouraged, and condoned the public to engage in criminal conduct. . . . [T]he federal government now opposes Mr. Sheppard’s right to present a viable defense.11 11.Defendant’s Reply to Government’s Opposition to Notice of Public Authority Defense at 3–4, United States v. Sheppard, No. 21-cr-00203, 2022 WL 17978837 (D.D.C. Dec. 28, 2022) [hereinafter Defendant’s Reply to Government’s Opposition, Sheppard].Show More

This is the public authority defense. As described by the Department of Justice, such a defense is available where a government official authorized the defendant to engage in otherwise unlawful conduct.12 12.U.S. Dep’t of Just., Crim. Res. Manual § 2055, https://www.justice.gov/archives/jm/crimi‌nal-resource-manual-2055-public-authority-defense [https://perma.cc/85ZN-SK34].Show More This defense has its origins in a Watergate-era case, United States v. Barker.13 13.546 F.2d 940 (D.C. Cir. 1976) (per curiam).Show More There, the U.S. Court of Appeals for the District of Columbia Circuit held that the trial court should have allowed the defendants to raise the defense that they broke into a psychiatrist’s office to steal information about the person who leaked the Pentagon Papers only because a White House official told them to.14 14.Id. at 943, 954 (Wilkey, J.).Show More But the judges disagreed on how the defense should work. Judge Robert Merhige wrote that the defense required that the defendant receive authorization from someone who had the actual authority to make such an authorization.15 15.Id. at 955 (Merhige, J.).Show More Judge Malcolm Wilkey wrote separately that the defendant’s belief in the official’s apparent authority would suffice.16 16.Id. at 949 (Wilkey, J.).Show More That split has never been resolved.

The U.S. District Court for the District of Columbia decided that the public authority defense was unavailable in the January 6 cases.17 17.United States v. Chrestman, 525 F. Supp. 3d 14, 29, 33 (D.D.C. 2021).Show More While that conclusion is correct, the court’s reasoning is unpersuasive. The court did not clarify the correct standard for the defense and failed to wrestle with the factual comparisons to Barker.18 18.See infra Section I.C.Show More To foreshadow, the court concluded that the public authority defense fails because President Trump never gave an affirmative authorization; however, Barker and its progeny do not impose such a strict requirement.19 19.Infra Section I.C.Show More Engaging with the public authority defense case law reveals that the defense fails for the January 6 defendants not because President Trump never authorized their conduct, but because the President does not have the power to do so.

This Note is the first to give an in-depth treatment to the public authority defense case law, apply it to the January 6 defendants, and use this application to argue for the correct standard for the defense.20 20.The literature that addresses the public authority defense largely focuses instead on the related defense of entrapment by estoppel. See generally, e.g., John T. Parry, Culpability, Mistake, and Official Interpretations of Law, 25 Am. J. Crim. L. 1 (1997). But see generally Matthew Babb & Lauren Emmerich, Official Misrepresentations of the Law and Fairness, 17 Crim. L. & Phil. 83 (2023) (addressing both the entrapment by estoppel and public authority defense). A law review article from 1978 by attorney Stephen Kristovich addressed the apparent-versus-actual authority debate in Barker in its immediate wake and argued for the actual authority standard, but it did not have the benefit of analyzing the decades of case law following Barker. See generally Stephen M. Kristovich, United States v. Barker: Misapplication of the Reliance on an Official Interpretation of the Law Defense, 66 Calif. L. Rev. 809 (1978). Professor Alfredo Garcia explored the applicability of the public authority defense to a military officer turned January 6 defendant and concluded the public authority defense could not justify the January 6 conduct, but he neither established the precise contours of the defense nor explained why the elements laid out in either Barker opinion were not met. See generally Alfredo Garcia, The Public Authority Defense, January 6, 2021, and the Following Orders Defense: A Juxtaposition, in Human Flourishing: The End of Law 955 (W. Michael Reisman & Roza Pati eds., 2023). This Note pulls all the cases and doctrines together to argue for one articulation of the public authority defense using the January 6 test case to do so.Show More Part I explores the public authority defense case law, beginning with the diverging opinions in United States v. Barker that created the debate between actual and apparent authority. Part I then looks to other courts of appeals to draw out more precise contours of the defense. Part I concludes by examining how the January 6 defendants used this defense and why it was rejected.

Part II argues that the actual authority standard is the proper test for the public authority defense based on the weight of circuit-level authority, comparisons to the related doctrines of entrapment by estoppel and superior orders in military law, and public policy concerns. Part III then uses the January 6 defendants as a test case to further establish that only the actual authority standard produces a workable rule and legitimate outcome. This conclusion makes clear that the D.C. District Court had the right answer that the public authority defense should fail for the January 6 defendants, but for the wrong reason.

Part IV addresses implications of the January 6 case. First, the case draws out an additional limit on the defense beyond the actual authority standard, such that it should not work where there is a broad, public authorization. Second, the case suggests that the public authority defense is limited to specific factual circumstances and that Barker itself might be an exception rather than the rule. In conclusion, it is clear that in the event of future prosecutions of Trump Administration officials and associates, a defense that President Trump authorized their conduct is likely to fail.

  1.  Donald J. Trump (@realDonaldTrump), X (Feb. 15, 2025, 1:32 PM), https://x.com/realDo‌naldTrump/status/1890831570535055759 [https://perma.cc/Z9L5-VV6V]. ↑
  2.  See Trump v. United States, 144 S. Ct. 2312, 2327 (2024). The president is also immune from civil liability for official actions taken while in office. Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982). ↑
  3.  The Trump opinion only addressed the president, and it relied on the president’s unique position to hold that he is entitled to immunity. See Trump v. United States, 144 S. Ct. at 2327, 2330–31. Furthermore, absolute presidential immunity from civil suit does not extend to the president’s aides, so it is unlikely that criminal immunity would. See Harlow v. Fitzgerald, 457 U.S. 800, 808–13 (1982). ↑
  4.  Proclamation No. 10,887, 90 Fed. Reg. 8331 (Jan. 29, 2025). ↑
  5.  See infra notes 92–93. ↑
  6.  Kathleen Ronayne & Michael Kunzelman, Trump to Far-Right Extremists: ‘Stand Back and Stand By,’ AP News (Sept. 30, 2020, 2:52 PM), https://apnews.com/article/election-2020-joe-biden-race-and-ethnicity-donald-trump-chris-wallace-0b32339da25fbc9e8b7c7c7066a1d‌b0f [https://perma.cc/LR78-FCNV]. ↑
  7.  H.R. Rep. No. 117-663, at 195, 213–16 (2022). ↑
  8.  Donald J. Trump (@realDonaldTrump), X (Jan. 5, 2021, 5:05 PM), https://x.com/realDon‌aldTrump/status/1346578706437963777 [https://perma.cc/TK9L-UAP6]. ↑
  9.  Transcript of Trump’s Speech at Rally Before US Capitol Riot, AP News (Jan. 13, 2021, 9:11 PM) [hereinafter Trump January 6 Speech Transcript], https://apnews.com/article/electio‌n-2020-joe-biden-donald-trump-capitol-siege-media-e79eb5164613d6718e9f4502eb471f27. President Trump was impeached for inciting insurrection based in part on this language. H.R. Res. 24, 117th Cong., at 3 (2021). Incitement does not necessarily equate to authorization, but the fact that this language was considered incitement by Congress nonetheless helps explain the effect President Trump’s words had on his supporters. ↑
  10.  Detention Memorandum at 11, United States v. Chrestman, 521 F. Supp. 3d 1107 (D. Kan. 2021) (No. 21-mj-08023) [hereinafter Detention Memorandum, Chrestman]. ↑
  11.  Defendant’s Reply to Government’s Opposition to Notice of Public Authority Defense at 3–4, United States v. Sheppard, No. 21-cr-00203, 2022 WL 17978837 (D.D.C. Dec. 28, 2022) [hereinafter Defendant’s Reply to Government’s Opposition, Sheppard]. ↑
  12.  U.S. Dep’t of Just., Crim. Res. Manual § 2055, https://www.justice.gov/archives/jm/crimi‌nal-resource-manual-2055-public-authority-defense [https://perma.cc/85ZN-SK34]. ↑
  13.  546 F.2d 940 (D.C. Cir. 1976) (per curiam). ↑
  14.  Id. at 943, 954 (Wilkey, J.). ↑
  15.  Id. at 955 (Merhige, J.). ↑
  16.  Id. at 949 (Wilkey, J.). ↑
  17.  United States v. Chrestman, 525 F. Supp. 3d 14, 29, 33 (D.D.C. 2021). ↑
  18.  See infra Section I.C. ↑
  19.  Infra Section I.C. ↑

  20.  The literature that addresses the public authority defense largely focuses instead on the related defense of entrapment by estoppel. See generally, e.g., John T. Parry, Culpability, Mistake, and Official Interpretations of Law, 25 Am. J. Crim. L. 1 (1997). But see generally Matthew Babb & Lauren Emmerich, Official Misrepresentations of the Law and Fairness, 17 Crim. L. & Phil. 83 (2023) (addressing both the entrapment by estoppel and public authority defense). A law review article from 1978 by attorney Stephen Kristovich addressed the apparent-versus-actual authority debate in Barker in its immediate wake and argued for the actual authority standard, but it did not have the benefit of analyzing the decades of case law following Barker. See generally Stephen M. Kristovich, United States v. Barker: Misapplication of the Reliance on an Official Interpretation of the Law Defense, 66 Calif. L. Rev. 809 (1978). Professor Alfredo Garcia explored the applicability of the public authority defense to a military officer turned January 6 defendant and concluded the public authority defense could not justify the January 6 conduct, but he neither established the precise contours of the defense nor explained why the elements laid out in either Barker opinion were not met. See generally Alfredo Garcia, The Public Authority Defense, January 6, 2021, and the Following Orders Defense: A Juxtaposition, in Human Flourishing: The End of Law 955 (W. Michael Reisman & Roza Pati eds., 2023). This Note pulls all the cases and doctrines together to argue for one articulation of the public authority defense using the January 6 test case to do so. ↑

The Association Game: Applying Noscitur a Sociis and Ejusdem Generis

The Supreme Court has applied noscitur a sociis, often called the associated words canon, in many notable decisions—including the recent Fischer v. United States. This canon has a longstanding history in American jurisprudence, but interpreters face challenges in finding a common theme among words or phrases and supporting it with surrounding context. And some scholars argue judges can use noscitur to bring in external policy preferences and ideological beliefs. This Note proposes several steps to guide the use of noscitur and, by extension, its cousin ejusdem generis, including the clear identification of an association and multiple common themes and principles for transparent contextual analysis. These steps can shield judges from the appearance of guesswork or ideologically influenced decisions and encourage more accurate results by providing a clear roadmap of these canons’ proper application. They may also bring interpreters of all methodologies closer to their interpretive goals.

Introduction

What do the words “bud,” “mate,” “pal,” and “partner” have in common? According to the New York Times Connections puzzle on August 15, 2024, the answer is . . . nothing.1 1.Wyna Liu, Connections No. 431, N.Y. Times (Aug. 15, 2024), https://www.nytimes.com/‌games/connections/2024-08-15.Show More Connections, a fairly recent addition to the Times’s growing portfolio of games, asks readers to sort sixteen different words or phrases into four categories of four.2 2.SeeJoyann Jeffrey,Connections Is the NYT’s New Wordle Alternative. Here’s How to Play, Today (Aug. 29, 2023, 10:30 AM), https://www.today.com/popculture/connections-nyt-puzzle-how-to-play-rcna102300. The New York Times crossword has entertained readers since the early 1940s. David W. Dunlap, Birth of the Crossword, N.Y. Times (Dec. 17, 2022), https:/‌/www.nytimes.com/2022/12/17/insider/first-crossword.html. In recent years, the Times has added several different puzzles to go along with the crossword, including Connections. N.Y. Times Co., Games, https://www.nytco.com/products/games/ [https://perma.cc/85CZ-75KW] (last visited Mar. 28, 2025).Show More The puzzle relies on tricking readers with a number of different possible categories. For instance, in that August 15 scenario, “PARTNER” and “MATE” actually went with “COMPLEMENT” and “MATCH” under the common theme “OTHER HALF.”3 3.See Liu, supra note 1.Show More “BUD” connected with “NATTY,” “SIERRA,” and “STELLA” under “BEERS, FAMILIARLY.” “PAL” fell into “WORDS AFTER ‘PAY’” with “DIRT,” “CHECK,” and “PHONE.”4 4.Id. The final category was “BREADTH,” featuring “EXTENT,” “RANGE,” “REACH,” and “SCOPE.” Id.Show More

The Connections example shows that identifying a common theme among words can be a difficult process—even an impossible one—without context. Unless you knew the rules of the game, you probably would struggle to arrive at the desired common themes. And you would also find it difficult to explain your thought process to a friend without telling them that you need four categories of four.

Courts face a similar struggle in many cases of legal interpretation. They often must interpret a word or phrase as part of a list or grouping, and sometimes the meaning of that word or phrase is not immediately obvious. That is where the tool of noscitur a sociis comes in. Noscitur a sociis literally translates from Latin to “it is known by its associates.”5 5.Noscitur a sociis, Black’s Law Dictionary (12th ed. 2024). This Note usually refers to the canon simply as noscitur and to its relative ejusdem generis as ejusdem.Show More In essence, associated words or phrases around the target word or phrase can influence its meaning.6 6.Id.Show More

Take the Connections puzzle for a simple example. If you found a list in a sentence that read “BUD, MATE, PAL, or PARTNER,” you would probably assume that “BUD” referred to “buddy.”7 7.See Bud, Merriam-Webster, https://www.merriam-webster.com/dictionary/bud [https://pe‌rma.cc/Q4DQ-CLS5] (last visited Mar. 28, 2025).Show More But if the list instead read “BUD, NATTY, SIERRA, or STELLA,” you would likely think that “BUD” referred to the short name for a Budweiser. In neither instance would you think that “BUD” meant the beginnings of a flower on a plant (an otherwise perfectly acceptable meaning).8 8.Id.Show More Thus, the context of associated words influences the meaning of the target word.

Legal interpreters often face much more difficult instances of association. And unlike the small stakes of winning the Connections game, judges’ decisions can affect people’s lives, freedom, and finances. Those affected by judicial opinions deserve frank, thorough, and well-reasoned decisions. So, if those decisions in part come down to the application of noscitur—to most, an unfamiliar Latin phrase—interpreters ought to explain exactly how they used it and exactly how it informed their conclusions.

In addition, to use noscitur effectively, a court must thoroughly investigate the definitions of key words and conduct enough legwork to arrive at an accurate conclusion. It might be tempting for an interpreter to look at a group of words or phrases and claim, without much explanation, to have found the common theme. The answer is often not so simple. And in some recent instances, courts have failed to explain their application of noscitur with sufficient clarity to prove that their purported common theme is the best interpretation.9 9.See, e.g., infra notes 161–67, 262–68 and accompanying text.Show More

Perhaps this stems from a lack of documentation about noscitur. Existing literature, aside from major casebooks, has not provided much help for interpreters seeking advice on applying the canon.10 10.See, e.g., Caleb Nelson, Statutory Interpretation 117–20 (2d ed. 2024).Show More Apart from the well-known handbook Reading Law by Justice Antonin Scalia and Professor Bryan Garner, no article has yet centered on guidelines for courts using noscitur.11 11.See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012). For instance, a search of the HeinOnline Law Journal Library on November 30, 2024, for “noscitur” in the title of pieces revealed only two articles, neither of which took this tack. See generally David A. Schlesinger, Chevron Unlatined: The Inapplicability of the Canon Noscitur a Sociis Under Prong One of the Chevron Framework, 5 N.Y.U. Env’t L.J. 638 (1996) (discussing why noscitur should not be used under prong one of the Chevron doctrine); Keegan P. Dennis, Noscitur a Sociis: We Will Never Be the Same, 47 S. Ill. U. L.J. 485 (2023) (reflecting on attending law school during the COVID-19 pandemic).Show More Even Reading Law spends a mere four pages on noscitur as compared to fifteen on a subset of the canon, ejusdem generis.12 12.Scalia & Garner, supra note 11, at 195–98, 199–213.Show More So the general principles underlying noscitur have not received the treatment they deserve.

This Note seeks to fill that gap by presenting a model for courts planning to employ the noscitur canon—and by extension its relative ejusdem—in legal interpretation.13 13.I often refer to these canons together as the “association canons.” Since ejusdem also relies on finding a common theme among words or phrases, this Note’s conclusions apply to both canons. But there are several unique aspects of ejusdem that require further discussion throughout.Show More Part I highlights the history and importance of the canon and its use in the notable recent case Fischer v. United States, which concerned a law applied to defendants in the January 6 riot.14 14.144 S. Ct. 2176, 2181–82 (2024).Show More Part II dives into concerns with noscitur’s application. Several notable scholars have argued that it may open the door to the influence of policy preferences or ideology.15 15.See infra notes 68–79 and accompanying text.Show More And the principle behind noscitur naturally implies several difficulties: the presence of multiple potential common traits, an undefined trigger, and a possible deviation from dictionary meaning. Part III then answers these concerns, building a model for applying noscitur. This model strongly encourages courts to explain the canon’s use in detail, including its relationship with the ordinary meaning of each word or phrase involved. It urges interpreters to be thorough, since a more detailed explanation wards off possible accusations of ideological influence. Part IV then revisits Fischer with this model in mind, examining the majority and dissenting opinions and their relationship with the model. It concludes that Fischer did not apply the association canons in the traditional way, and that the Court missed an opportunity to do so.

  1.  Wyna Liu, Connections No. 431, N.Y. Times (Aug. 15, 2024), https://www.nytimes.com/‌games/connections/2024-08-15. ↑
  2.  See Joyann Jeffrey, Connections Is the NYT’s New Wordle Alternative. Here’s How to Play, Today (Aug. 29, 2023, 10:30 AM), https://www.today.com/popculture/connections-nyt-puzzle-how-to-play-rcna102300. The New York Times crossword has entertained readers since the early 1940s. David W. Dunlap, Birth of the Crossword,
    N.Y.

    Times (Dec. 17, 2022), https:/‌/www.nytimes.com/2022/12/17/insider/first-crossword.html. In recent years, the Times has added several different puzzles to go along with the crossword, including Connections.

    N.Y.

    Times Co

    .,

    Games, https://www.nytco.com/products/games/ [https://perma.cc/85CZ-75KW] (last visited Mar. 28, 2025). ↑

  3.  See Liu, supra note 1. ↑
  4.  Id. The final category was “BREADTH,” featuring “EXTENT,” “RANGE,” “REACH,” and “SCOPE.” Id. ↑
  5.  Noscitur a sociis, Black’s Law Dictionary

    (12th ed. 2024). This Note usually refers to the canon simply as noscitur and to its relative ejusdem generis as ejusdem. ↑

  6.  Id. ↑
  7.  See Bud, Merriam-Webster, https://www.merriam-webster.com/dictionary/bud [https://pe‌rma.cc/Q4DQ-CLS5] (last visited Mar. 28, 2025). ↑
  8.  Id. ↑
  9.  See, e.g., infra notes 161–67, 262–68 and accompanying text. ↑
  10.  See, e.g., Caleb Nelson, Statutory Interpretation 117–20 (2d ed. 2024). ↑
  11.  See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012). For instance, a search of the HeinOnline Law Journal Library on November 30, 2024, for “noscitur” in the title of pieces revealed only two articles, neither of which took this tack. See generally David A. Schlesinger, Chevron Unlatined: The Inapplicability of the Canon Noscitur a Sociis Under Prong One of the Chevron Framework, 5 N.Y.U. Env’t L.J
    .

    638 (1996) (discussing why noscitur should not be used under prong one of the Chevron doctrine); Keegan P. Dennis, Noscitur a Sociis: We Will Never Be the Same, 47 S. Ill. U. L.J

    .

    485 (2023) (reflecting on attending law school during the COVID-19 pandemic). ↑

  12.  Scalia & Garner, supra note 11, at 195–98, 199–213. ↑
  13.  I often refer to these canons together as the “association canons.” Since ejusdem also relies on finding a common theme among words or phrases, this Note’s conclusions apply to both canons. But there are several unique aspects of ejusdem that require further discussion throughout. ↑
  14.  144 S. Ct. 2176, 2181–82 (2024). ↑

  15.  See infra notes 68–79 and accompanying text. ↑

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