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Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
July 11, 2025 | Volume 32, Issue 19
This Report summarizes opinions issued on June 27 and 30, 2025 (Part I).
Opinions
Trump v. CASA, Inc., 24A884.
By a 6-3 vote, the Court held that universal injunctions―“which prohibit enforcement of a law or policy against anyone,” not just the parties―“likely exceed the equitable authority that Congress has granted to federal courts.” President Trump issued an Executive Order declaring that the American-born children of undocumented aliens and temporarily present aliens are not American citizens. Under the Order, the federal government will no longer issue or accept documentation of citizenship. Three groups of plaintiffs, including states, individuals, and organizations, filed three separate actions challenging the Order. “In each case, the District Court concluded that the Executive Order is likely unlawful and entered a universal preliminary injunction barring various executive officials from applying the policy to anyone in the country. And in each case, the Court of Appeals denied the Government’s request to stay the sweeping relief.” The federal Government asked the Court to stay the universal scope of the relief. (It did not ask the Court to rule on the merits.) In an opinion by Justice Barrett, the Court granted the Government’s request.
The Court ruled that “[a] universal injunction can be justified only as an exercise of equitable authority, yet Congress has granted federal courts no such power.” The Court explained that “[t]he Judiciary Act of 1789 endowed federal courts with jurisdiction over ‘all suits . . . in equity,’ §11, 1 Stat. 78, and still today, this statute ‘is what authorizes the federal courts to issue equitable remedies[.]’ Though flexible, this equitable authority is not freewheeling. We have held that the statutory grant encompasses only those sorts of equitable remedies ‘traditionally accorded by courts of equity’ at our country’s inception. Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 319 (1999)[.]” The Court then concluded that “[n]either the universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding,” and therefore does not satisfy the Grupo Mexicano test. The Court found that “suits in equity were brought by and against individual parties.” That was the case in England, and “founding-era courts of equity in the United States” did not “chart a different course.” To the contrary, found the Court, “universal injunctions were not a feature of federal court litigation until sometime in the 20th century.”
The Court rejected respondents and the dissent’s contention that “the universal injunction has a sufficient historical analogue: a decree resulting from a bill of peace.” The Court concluded that bills of peace were distinguishable in several notable ways from universal injunctions. Indeed, said the Court, “[t]he bill of peace lives in modern form, but not as the universal injunction. It evolved into the modern class action, which is governed in federal court by Rule 23 of the Federal Rules of Civil Procedure.” Yet “by forging a shortcut to relief that benefits parties and nonparties alike, universal injunctions circumvent Rule 23’s procedural protections and allow courts to create de facto class actions at will.” (Internal quotation marks omitted.) The Court found taxpayer suits to be “a similarly inadequate historical analogy.”
The Court next addressed respondents’ contention “that universal injunctions—or at least these universal injunctions—are consistent with the principle that a court of equity may fashion a remedy that awards complete relief.” The Court “agree[d] that the complete-relief principle has deep roots in equity. But to the extent respondents argue that it justifies the award of relief to nonparties, they are mistaken.” Under the complete-relief principle, the question “is whether an injunction will offer complete relief to the plaintiffs before the court.” The Court found the complete relief inquiry “complicated” for the state respondents, who argued that because “[c]hildren often move across state lines or are born outside their parents’ State of residence, . . . a ‘patchwork injunction’ would prove unworkable, because it would require them to track and verify the immigration status of the parents of every child, along with the birth State of every child for whom they provide certain federally funded benefits.” The Court declined to resolve whether that argument prevails; it sent the issue back to the lower courts.
Lastly, the Court rejected respondents’ argument that, as a matter of policy, (1) “a universal injunction is sometimes the only practical way to quickly protect groups from unlawful government action”; (2) “universal injunctions are an appropriate remedy to preserve equal treatment among individuals when the Executive Branch adopts a facially unlawful policy”; and (3) “forcing plaintiffs to proceed on an individual basis can result in confusion or piecemeal litigation that imposes unnecessary costs on courts and others.” The Court noted the policy arguments (set out by the Government) against universal injunctions: (1) “universal injunctions incentivize forum shopping”; (2) “universal injunctions operate asymmetrically: A plaintiff must win just one suit to secure sweeping relief. But to fend off such an injunction, the Government must win everywhere.” and (3) universal injunctions “mean[] that highly consequential cases are often decided in a ‘fast and furious’ process of ‘rushed, high-stakes, [and] low-information.’” The Court concluded that policy arguments go both ways, but that the case is resolved based on the principles of equity jurisprudence discussed above. The Court therefore held that “[t]he Government’s applications to partially stay the preliminary injunctions are granted, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.”
Justice Thomas filed a concurring opinion, which Justice Gorsuch joined. He wrote “separately to emphasize the majority’s guidance regarding how courts should tailor remedies specific to the parties.” In particular, “the complete-relief principle operates as a ceiling: In no circumstance can a court award relief beyond that necessary to redress the plaintiffs’ injuries.” But it is not a floor or a mandate; and “in some circumstances, a court cannot award complete relief.” In Justice Thomas’ view, “[a]n indivisible remedy is appropriate only when it would be ‘all but impossible’ to devise relief that reaches only the plaintiffs.”
Justice Alito filed a concurring opinion, which Justice Thomas joined. He wrote, first, to note that the Court did “not address the weighty issue whether the state plaintiffs have third-party standing to assert the Citizenship Clause claims of their individual residents.” He expressed the concern that, “[l]eft unchecked, the practice of reflexive state third-party standing will undermine [the Court’s] decision as a practical matter.” Justice Alito next asserted that “district courts should not view [the Court’s] decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors of Rule 23. Otherwise, the universal injunction will return from the grave under the guise of ‘nationwide class relief.’”
Justice Kavanaugh filed a concurring opinion. He noted that “there often (perhaps not always, but often) should be a nationally uniform answer on whether a major new federal statute, rule, or executive order can be enforced throughout the United States during the several-year interim period until its legality is finally decided on the merits.” He said that the Supreme “Court’s disposition of applications for interim relief often will effectively settle, de jure or de facto, the interim legal status of those statutes or executive actions nationwide.” And, he said, the Court should not shy away from the responsibility: “Deciding those applications is not a distraction from our job. It is a critical part of our job.”
Justice Sotomayor filed a dissenting opinion, which Justices Kagan and Jackson joined. Justice Sotomayor began with the merits, concluding that “[a]s every conceivable source of law confirms, birthright citizenship is the law of the land.” The Citizenship Clause provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The issue is what it means to be “subject to the jurisdiction” of the United States. Justice Sotomayor found it clear that it “means simply to be bound to its authority and its laws.” She found that reading supported by the common-law rule of jus soli, which carried over to the United States at the founding. And it is supported, she said, by the history of the Fourteenth Amendment’s enactment, which shows that the Citizenship Clause “’simply restored the longstanding English common law doctrine of jus soli’ abrogated by Dred Scott.” Justice Sotomayor added that the Court confirmed that understanding in United States v. Wong Kim Ark, 169 U.S. 649 (1898). Since that time, she said, all three branches of government have adhered to that interpretation.
Justice Sotomayor criticized the Court for granting relief to the Government, given that (in her view) “[i]t defies logic to say that maintaining a centuries-long status quo for a few months longer will irreparably injure the Government.” Turning to the propriety of universal injunctions, Justice Sotomayor observed that “[a]daptability has always been a hallmark of equity, especially with regard to the scope of its remedies.” And, dating back centuries, bills of peace and taxpayer suits were the principal ways equity courts their power over all parties in interest. Justice Sotomayor maintained that early 20th-century Court cases imposing universal relief followed that tradition. Responding to the majority, Justice Sotomayor said the fact “[t]hat bills of peace bear some resemblance to modern day Federal Rule of Civil Procedure 23 class actions does not mean they cannot also be a historical analogue to the universal injunction.” “Most critically,” she said, “the majority fundamentally misunderstands the nature of equity by freezing in amber the precise remedies available at the time of the Judiciary Act. . . . Historical analogues are no doubt instructive and provide important guidance, but requiring an exact historical match for every equitable remedy defies equity’s purpose.” Justice Sotomayor pointed to Ex parte Young actions as an example of equity evolving. And, she said, “[t]he relative absence of universal injunctions against the United States before the late 20th century [] reflects constitutional and procedural limitations on judicial power, not equitable ones.”
Justice Sotomayor criticized the majority for not sustaining the nationwide injunctions based on the plaintiff states’ need for complete relief. She noted that the Government never raised to the district courts its proposed narrower injunctions designed to award complete relief. And she found the proposed alternative injunctions unworkable. Further, and contrary to Justice Thomas, she said that “the principle of complete relief does not require courts to award only the absolute narrowest injunction possible. To conclude otherwise would eviscerate the ‘discretion and judgment’ that is integral to the crafting of injunctive relief.” Finally, Justice Sotomayor maintained that “[t]he equities and public interest weigh decisively against the Government. For all of the reasons discussed, the Citizenship Order is patently unconstitutional. To allow the Government to enforce it against even one newborn child is an assault on our constitutional order and antithetical to equity and public interest.”
Justice Jackson filed a separate dissenting opinion. She asserted that “[t]he Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.” “Stated simply, what it means to have a system of government that is bounded by law is that everyone is constrained by the law, no exceptions. And for that to actually happen, courts must have the power to order everyone (including the Executive) to follow the law—full stop. To conclude otherwise is to endorse the creation of a zone of lawlessness within which the Executive has the prerogative to take or leave the law as it wishes, and where individuals who would otherwise be entitled to the law’s protection become subject to the Executive’s whims instead.”
Free Speech Coalition, Inc. v. Paxton, 23-1122.
By a 6-3 vote, the Court upheld against a Free Speech Clause challenge a Texas law that requires pornography websites to verify the age of every user before permitting access. In 2023, Texas enacted H.B. 1181, which requires commercial websites for which “more than one-third of” their displays “is sexual material harmful to minors” to “use reasonable age verification methods . . . to verify that an individual attempting to access the material is 18 years of age or older.” “Soon after Texas enacted H.B. 1181, a trade association for the pornography industry, a group of companies that operate pornographic websites, and a pornography performer sued the Texas attorney general[,]” alleging that the law violates the Free Speech Clause. “They alleged that adults have a right to access the speech covered by H.B. 1181, and that the statute impermissibly hinders them from doing so.” A district court, applying strict scrutiny to H.B. 1181, preliminarily enjoined the law. The Fifth Circuit, applying rational basis scrutiny, vacated the injunction. In an opinion by Justice Thomas, the Court affirmed after applying intermediate scrutiny.
The Court observed that “[h]istory, tradition, and precedent” teach that states “may proscribe outright speech that is obscene to the public at large, and they may prevent children from accessing speech that is obscene to children.” See Miller v. California, 413 U.S. 15 (1973) (setting test for bans on speech that is obscene to the public at large); Ginsberg v. New York, 390 U.S. 629 (1968) (holding that states may prohibit sales to children of speech that is obscene to children). The Court then noted that in Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004) (Ashcroft II), it applied strict scrutiny to affirm a preliminary injunction against enforcement of the Children’s Online Privacy Protection Act of 1998 (COPA). COPA “criminalized posting content that is ‘harmful to minors’ online for ‘commercial purposes,’ but it contained an affirmative defense to websites that required age verification ’to prevent minors from gaining access to the prohibited materials on their Web site.’” (Some quotation marks omitted.) With that background, the Court concluded that intermediate scrutiny applies to its assessment of H.B. 1181.
The Court reached that conclusion because that law “is an exercise of Texas’s traditional power to prevent minors from accessing speech that is obscene from their perspective. To the extent that it burdens adults’ rights to access such speech, it has ‘only an incidental effect on protected speech,’ making it subject to intermediate scrutiny.” The Court explained that “[t]he power to verify age is a necessary component of the power to prevent children’s access to content that is obscene from their perspective. ‘No axiom is more clearly established in law, or in reason, than that . . . wherever a general power to do a thing is given, every particular power necessary for doing it is included.’” The Court added that “[r]equiring age verification is common when a law draws lines based on age,” including laws limiting the distribution of pornography to minors at brick-and-mortar stores. “That is not to say, however, that H.B. 1181 escapes all First Amendment scrutiny. Adults have the right to access speech that is obscene only to minors.” But “any burden H.B. 1181 imposes on protected activity is only incidental, and the statute triggers only intermediate scrutiny.”
The Court noted that “[a]pplying the more demanding strict-scrutiny standard would call into question the validity of all age-verification requirements, even longstanding requirements for brick-and-mortar stores.” As to its precedents, the Court found that “[e]very case that petitioners cite” in support of strict scrutiny “involved a law that banned both adults and minors from accessing speech.” That includes Ashcroft II, which “characterized COPA as a ban.” The Court acknowledged that “COPA established an age-verification defense,” but “because it did so only as an affirmative defense, COPA still operated as a ban on the public posting of material that is obscene to minors. . . . The same is not true under H.B. 1181, which makes the lack of age verification an element that the State must plead and prove.” The Court also noted that it decided Ashcroft II “when the internet was ‘still more of a prototype than a finished product,’” and that “since the factual record closed in Ashcroft II, the internet has expanded exponentially.”
In the final section of its opinion, the Court held that H.B. 1181 “readily satisfies” intermediate scrutiny. “H.B. 1181 undoubtedly advances an important governmental interest. Texas’s interest in shielding children from sexual content is important, even ‘compelling.’” And “H.B. 1181 is also sufficiently tailored to Texas’s interest.” Requiring proof of age “ensures that an age-based ban is not ineffectual, while at the same time allowing adults full access to the content in question after the modest burden of providing proof of age. H.B. 1181 simply adapts this traditional approach to the digital age.” The Court held that even if content-filtering software might be “equally or more effective, under intermediate scrutiny a ‘regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.’”
Justice Kagan filed a dissenting opinion, which Justices Sotomayor and Jackson joined. In the dissent’s view, H.B. 1181 should have been subjected to strict scrutiny (though it “might well pass the strict-scrutiny test, hard as it usually is to do so”). “That is because,” Justice Kagan wrote, “H.B. 1181 covers speech constitutionally protected for adults; impedes adults’ ability to view that speech; and imposes that burden based on the speech’s content.” On the second point, she observed that “[f]or the would-be [adult] consumer of sexually explicit materials, [the age verification] requirement is a deterrent: It imposes what our First Amendment decisions often call a ‘chilling effect.’” Such a consumer may reasonably fear that the website “operator might sell the information; [or that] the operator might be hacked or subpoenaed.” On the third point, Justice Kagan stated that “H.B. 1181 imposes those burdens on protected speech based on the speech’s ‘communicative content,’ making it a quintessential content-based law. Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).” Justice Kagan then reviewed a number of the Court’s prior decisions, all of which (she claimed) supported applying strict scrutiny to H.B. 1181.
Justice Kagan rejected the majority’s dismissal of strict scrutiny, asserting that the majority started with its conclusion and reasoned backwards from there. As to the Court’s insistence that H.B. 1181 only “incidentally” limits adults’ speech, she said the case the Court cited “was not about speech; it was about conduct” (burning a draft card). By contrast, H.B. 1181 “is not a regulation of conduct that just so happens, on occasion, to impinge on expressive activity. It is instead a direct regulation of speech, triggered by the amount of sexually explicit expression on a commercial website.” Justice Kagan rejected the Court’s effort to distinguish Ashcroft II, saying that “in this context, the difference between an affirmative defense and an element is but a smidge[.]” And she dismissed the notion that changes in technology should change the applicable level of scrutiny; rather, it might affect only the result of applying a particular level of scrutiny. Finally, Justice Kagan maintained that the Court’s application of intermediate scrutiny highlighted why that level of scrutiny is the wrong one―it led the Court to ask the wrong question. The right question, in her view, is whether “a scheme other than H.B. 1181 can just as well” prevent minors from viewing obscene-for-children speech “and better protect adults’ First Amendment freedoms[.]” She offered no answer to that question, but believed the lower courts should have been given the chance to address it.
Mahmoud v. Taylor, 24-297.
By a 6-3 vote, the Court held that parents who object on religious grounds to the teaching of “LGBTQ+-inclusive” storybooks in their children’s elementary school curriculum are entitled to a preliminary injunction that would allow their children to opt out of those instructions. “In the years leading up to 2022, the [Montgomery County Board of Elections (Board)] apparently ‘determined that the books used in its existing [English & Language Arts] curriculum were not representative of many students and families in Montgomery County because they did not include LGBTQ characters. The Board therefore decided to introduce into the curriculum what it described as ‘LGBTQ+-inclusive texts.’ . . . . At issue in this lawsuit are the five ‘LGBTQ+-inclusive’ storybooks that are approved for students in Kindergarten through fifth grade—in other words, for children who are generally between 5 and 11 years old.” (Citations omitted.) The Board suggested “that teachers incorporate the new texts into the curriculum in the same way that other books are used”; said that not teaching them was forbidden; and “contemplated that instruction involving the ‘LGBTQ+-inclusive’ storybooks would include classroom discussion.” After the Board launched the “LGBTQ+-inclusive” texts into the county’s schools, some parents objected on the ground that the texts conflicted with their religious beliefs. The Board initially “compromised with objecting parents by notifying them when the ‘LGBTQ+-inclusive’ storybooks would be taught and permitting their children to be excused from instruction involving the books.” But less than a year later, the Board changed course and removed the opt-out option. Petitioners―several parents with children enrolled in Montgomery County public schools and an association―filed suit alleging “that the Board’s no-opt-out policy infringed their right to the free exercise of their religion.” The district court denied petitioners’ request for a preliminary injunction. The Fourth Circuit affirmed, “suggest[ing] that petitioners could succeed on their free exercise claim only if they could ‘show direct or indirect coercion arising out of the exposure’ to the storybooks.” In an opinion by Justice Alito, the Court reversed and remanded.
The Court stated that “‘[w]e have long recognized the rights of parents to direct the religious upbringing’ of their children. And we have held that those rights are violated by government policies that substantially interfer[e] with the religious development of children.” (Quotation marks omitted.) The Court walked through its cases establishing those principles, most notably Wisconsin v. Yoder, 406 U.S. 205 (1972). In Yoder, the Court held that “a Wisconsin law that required parents to send their children to public or private school until the age of 16” violated the religious rights of Amish parents, for high school education would “expos[e] Amish children to worldly influences in terms of attitudes, goals, and values contrary to [their] beliefs” and would “substantially interfer[e] with the religious development of the Amish.” “That interference, the Court held, violated the parents’ free exercise rights.” The Court then applied those principles here and found that the Montgomery County public schools’ non-opt-out policy “substantially interferes with the religious development of [petitioners’] children and imposes the kind of burden on religious exercise that Yoder found unacceptable.”
This is so, found the Court, because “[l]ike many books targeted at young children, the books are unmistakably normative. They are clearly designed to present certain values and beliefs as things to be celebrated and certain contrary values and beliefs as things to be rejected.” Among those things to be celebrated is same-sex marriage, which (as Obergefell v. Hodges, 576 U.S. 644, 679 (2015), recognized) many Americans do not “condone[]” for religious reasons. Similarly, “[m]any Americans, like the parents in this case, believe that biological sex reflects divine creation, that sex and gender are inseparable, and that children should be encouraged to accept their sex and to live accordingly. But the challenged storybooks encourage children to adopt a contrary viewpoint.” (Citations omitted.) Stated the Court, “[l]ike the compulsory high school education considered in Yoder, these books impose upon children a set of values and beliefs that are ‘hostile’ to their parents’ religious beliefs.” This concern “is only exacerbated by the fact that the books will be presented to young children by authority figures in elementary school classrooms.”
The Court rejected the Board and dissent’s contention that the books at issue merely teach lessons in “mutual respect” or “merely expos[e] students to the message that LGBTQ people exist and teach them to treat others with kindness.” (Quotation marks omitted.) And the Court disagreed with the Fourth Circuit’s back-of-the-hand dismissal of Yoder’s relevance. The Court insisted that it has “never confined Yoder to its facts”; rather, it has “at times relied on it as a statement of general principles.” To the dissent’s contention that “the Free Exercise Clause[] guarantee[s] nothing more than protection against compulsion or coercion to renounce or abandon one’s religion,” the Court said: “Under this test, even instruction that denigrates or ridicules students’ religious beliefs would apparently be allowed. We reject this chilling vision of the power of the state to strip away the critical right of parents to guide the religious development of their children.” The Court rejected the Fourth Circuit’s view that the record is too thin to support a preliminary injunction. And it rejected the contention that “parents who are unhappy about the instruction in question can simply ‘place their children in private school or . . . educate them at home.’” The Court reaffirmed that “when the government chooses to provide public benefits, it may not ‘condition the availability of [those] benefits upon a recipient’s willingness to surrender his religiously impelled status.’”
Finally, the Court turned to whether this burden on petitioners’ right to the free exercise of religion is constitutionally permitted. Under Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), “the government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable.” The Court concluded, however, that Smith recognized that Yoder is an exception to that rule. It therefore held that “when a law imposes a burden of the same character as that in Yoder, strict scrutiny is appropriate regardless of whether the law is neutral or generally applicable.” The Court then held that the Board’s no-opt-out policy fails strict scrutiny. The Court explained that the policy is not necessary to serve the Board’s interest in “’having an undisrupted school session conducive to the students’ learning.’” We know this, said the Court, because the Board allows for a “robust ‘system of exceptions’” for other school activities and units of instruction. The Court added that “[s]everal States across the country permit broad opt outs from discrete aspects of the public school curriculum without widespread consequences.”
Justice Thomas filed a concurring opinion. He wrote that “sex education is [] a ‘relatively recent development’—and the practice of teaching sexuality- and gender-related lessons to young children even more so. And, as in Yoder, there is little to suggest that these lessons are critical to the students’ civic development.” He added his view that “[t]he Board’s ‘LGBTQ+-inclusive’ curriculum and no-opt-out policy pursue the kind of ideological conformity that [Pierce v. Society of Sisters, 268 U.S. 510 (1925)] and Yoder prohibit.”
Justice Sotomayor issued a dissenting opinion, which Justices Kagan and Jackson joined. Justice Sotomayor stated that the Free Exercise “Clause prohibits the government from compelling individuals, whether directly or indirectly, to give up or violate their religious beliefs. . . . Consistent with these longstanding principles, this Court has made clear that mere exposure to objectionable ideas does not give rise to a free exercise claim.” That, she said, resolves this case for “each of the three sets of parent-plaintiffs premised their objections on, in essence, ‘expos[ure]’ to material that conflicts with their religious beliefs.” Justice Sotomayor maintained that the Court misread Yoder, where the state law at issue “compelled Amish parents to do what their religion forbade: send their children away rather than integrate them into the Amish community at home.” She found this case―involving exposure to (for example) “books depicting LGBTQ individuals as happily accepted by their families”―miles away from Yoder. Compounding that error, said Justice Sotomayor, is the lack of a limiting principle in the Court’s opinion. “Given the multiplicity of religious beliefs in this country, innumerable themes may be ‘contrary to the religious principles’ that parents ‘wish to instill in their children.’ Books expressing implicit support for patriotism, women’s rights, interfaith marriage, consumption of meat, immodest dress, and countless other topics may conflict with sincerely held religious beliefs and thus trigger stringent judicial review under the majority’s test.”
Justice Sotomayor recounted practical problems with the Court’s test. “Establishing a new constitutional right to opt out of any instruction that involves themes contrary to anyone’s religious beliefs will create a nightmare for school administrators tasked with fielding, tracking, and operationalizing highly individualized and vaguely defined requests for particular students, as this Board learned.” “Worse yet, the majority’s new rule will have serious chilling effects on public school curricula. Few school districts will be able to afford costly litigation over opt-out rights or to divert resources to administering impracticable notice and opt-out systems for individual students. The foreseeable result is that some school districts may strip their curricula of content that risks generating religious objections. . . . In effect, then, the majority’s new rule will hand a subset of parents a veto power over countless curricular and administrative decisions.” Finally, Justice Sotomayor criticized the Court’s burden analysis, saying it misread Smith’s treatment of Yoder. According to her, Smith distinguished Yoder as involving “hybrid” rights: “the parents relied on both their substantive due process rights to ‘direct the education of their children’ and the Free Exercise Clause.” Closing, Justice Sotomayor stated that the Court’s ”ruling threatens the very essence of public education.”
FCC v. Consumers’ Research, 24-354.
By a 6-3 vote, the Court held that Congress did not violate the non-delegation doctrine when it required the FCC to operate universal-service subsidy programs. The Communications Act of 1934 “instructed the FCC to pursue the goal now called universal service.” The Telecommunications Act of 1996 overhauled the method of providing universal service by authorizing “a plan for explicit transfer payments to ensure that basic communications services extend across the country. . . . Section 254 of the amended statute requires every carrier providing interstate telecommunications services to ‘contribute,’ in line with the statute and FCC rules, to a fund designed to ‘preserve and advance universal service.’ §254(d). The FCC must use the money in that fund, now known as the Universal Service Fund, to pay for subsidy programs for designated populations and facilities needing improved access. . . . The statute also provides detailed guidance for identifying the specific communications services to which the statute’s beneficiaries should have access.” And Congress set out six “principles” on which the FCC “shall base” all its universal-service policies. The FCC now operates four universal-service programs. “To calculate how much carriers must contribute to the Fund for those programs, the FCC has devised a formula, known as the “’contribution factor.’” In 1998, the FCC appointed the Universal Service Administrative Company to serve as the Fund’s “permanent Administrator.” The “Administrator” “is a private, not-for-profit corporation owned by an association of carriers. It manages the day-to-day operations of the Fund, ‘bill[ing] and collect[ing] contributions from carriers’ and ‘distribut[ing] the resulting pot of money, as FCC rules provide, to program beneficiaries.’” And of special relevance here, the Administrator “plays a role each quarter in producing the financial projections that end up determining the contribution factor” that determines how much carriers must contribute to the Fund.
After the FCC imposed a contribution factor in 2022, Consumers’ Research petitioned for review in the Fifth Circuit. The en banc court granted the petition, holding that “the universal-service contribution mechanism is unconstitutional because of its so-called ‘double-layered delegation.’” The court first stated that Congress in §254 “may have delegated legislative power” to the FCC by giving it “the power to tax” carriers “without supplying an intelligible principle to guide [its] discretion.” The court next stated that the FCC “may have impermissibly delegated the taxing power to private entities” by involving the Administrator in setting contribution amounts. “The dispositive constitutional problem, the Fifth Circuit ultimately held, is ‘the combination of Congress’s sweeping delegation to FCC and FCC’s unauthorized subdelegation’ to the Administrator.” In an opinion by Justice Kagan, the Court reversed.
The Court noted that, while “[l]egislative power . . . belongs to the legislative branch, and to no other, . . . Congress may ‘seek[] assistance’ from its coordinate branches to secure the ‘effect intended by its acts of legislation.’” “To distinguish between the permissible and the impermissible in this sphere, [the Court has] long asked whether Congress has set out an ‘intelligible principle’ to guide what it has given the agency to do.” “[I]n examining a statute for the requisite intelligible principle, [the Court has] generally assessed whether Congress has made clear both ‘the general policy’ that the agency must pursue and ‘the boundaries of [its] delegated authority.’ And similarly, [the Court has] asked if Congress has provided sufficient standards to enable both the courts and the public [to] ascertain whether the agency’ has followed the law.” (Citations omitted.) The Court rejected Consumers’ Research and the dissent’s contention that a different test applies to tax statutes, as to which “Congress must set a ‘definite’ or ‘objective limit’ on how much money an agency can collect—a numeric cap, a fixed rate, or the equivalent.” The Court held that twice before it has “rejected a party’s request to create a special nondelegation rule for revenue-raising legislation.” See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928); Skinner v. Mid-America Pipeline Co., 490 U.S. 212 (1989). The Court added that the proposed special tax rule “would throw a host of federal statutes into doubt,” including the statute funding the Federal Reserve. The Court declined to adopt Consumers’ Research and the dissent’s proposed way of distinguishing those other federal statutes, namely, by distinguishing fees from taxes. That distinction, held the Court, conflicts with precedent, is artificial, and would create a “morass.”
The Court next applied the intelligible-principle test to assess “whether Section 254 adequately guides the FCC in requiring contributions from carriers.” The provision (as noted) “directs the FCC to collect the amount that is ‘sufficient’ to support the universal-service programs Congress has told it to implement.” The Court found that the term “sufficient” “sets a floor and a ceiling alike,” for the FCC must collect the amount that is “adequate” or “necessary” to achieve the statute’s purpose. The Court then addressed “[s]ufficient for what? If Section 254’s universal-service program is itself indeterminate—so that the FCC can turn it into anything the FCC wants—then the ‘sufficiency’ ceiling will do no serious work.” The Court noted that it has “found intelligible principles in a host of statutes giving agencies significant discretion.” And, critically, “Section 254, for its part, provides the FCC with determinate standards for operating the universal-service program.” The provision specifies who is to be served; and “provides specific criteria for which services those statutory beneficiaries should receive.” The Court found that “[e]ach of the four programs the FCC now operates under Section 254 reflects Congress’s choices about universal service’s scope and content.”
The Court then turned to “whether a different delegation, now from the Commission to the Administrator (which, recall, is a private, not-for-profit corporation), independently flouts a constitutional command.” The Court concluded it does not. Consumers’ Research invoked the private nondelegation doctrine. Consumers’ Research relied on Carter v. Carter Coal Co., 298 U.S. 238 (1936), which struck down a congressional delegation of power to “private persons whose interests” are often “adverse to the interests of others.” The Court found, though, that in Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940), the Court held that “[a]s long as an agency [] retains decision-making power, it may enlist private parties to give it recommendations.” That, found the Court, is what happens when it comes to the Administrator and the contribution factor. “[T]he Administrator is broadly subordinate to the Commission. . . . Although the Administrator plays an advisory role” in determining the contribution factor, “the Commission alone has decision-making authority.”
Finally, the Court rejected the Fifth Circuit’s “combination” theory. Stated the Court: “’Two wrong claims do not make one that is right.’ If a regulatory scheme authorizes neither executive legislation nor private governance, it does not somehow authorize an unlawful amalgam. Contra the Fifth Circuit, a meritless public nondelegation challenge plus a meritless private nondelegation challenge cannot equal a meritorious ‘combination’ claim.”
Justice Kavanaugh issued a concurring opinion. He endorsed the intelligible-principle test, while noting that it is not “toothless.” Justice Kavanaugh then emphasized three points. First, “’the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.’” Second, many concerns about excessive delegation have been mitigated by “(i) the Court’s rejection of so-called Chevron deference and (ii) the Court’s application of the major questions canon of statutory interpretation.” Third, “in the national security and foreign policy realms, the nondelegation doctrine (whatever its scope with respect to domestic legislation) appropriately has played an even more limited role in light of the President’s constitutional responsibilities and independent Article II authority.” (Justice Kavanaugh added that “the major questions canon has not been applied by this Court in the national security or foreign policy contexts, because the canon does not reflect ordinary congressional intent in those areas.”) Finally, Justice Kavanaugh explained why in his view “Congressional delegations to independent agencies, as distinct from delegations to the President and executive agencies, raise substantial Article II issues.”
Justice Jackson filed a short concurring opinion to express her “skepticism that the private nondelegation doctrine—which purports to bar the Government from delegating authority to private actors—is a viable and independent doctrine in the first place.”
Justice Gorsuch filed a dissenting opinion, which Justices Thomas and Alito joined. Justice Gorsuch accused the Court of breaking with the “time-honored rule[]” that “only our elected representatives [have] the power to decide which taxes the government can collect and at what rates.” He maintained that carriers’ contribution to the Universal Fund is a “quintessential tax—a ‘compulsory contribution to the support of government.’” And he found that the “Court has never approved legislation allowing an executive agency to tax domestically unless Congress itself has prescribed the tax rate.” Yet “Congress has not set the rate at which the FCC may exact contributions.” Even assuming that qualitative directions can suffice, “[f]ar from supplying ‘qualitative’ directions akin to a numerical cap, §254 supplies little more than a blank check.” In particular, Justice Gorsuch found it “hard to see” how a “provision [that] merely tells the FCC to tax carriers in an amount ‘sufficient’ to ‘preserve and advance universal service’ . . . might be fairly analogized to a numerical cap.”
Justice Gorsuch distinguished various cases upon which the Court relied as involving fees, not taxes. “Fees, by definition, are payments made in ‘compensation for a service provided to, or alternatively compensation for a cost imposed by, the person charged the fee.’ For that reason, fees carry a built-in intelligible principle: The government cannot collect more money than it needs to offset a real-world cost or benefit.” (Citations omitted.) Responding to the Court’s contention that having to distinguish taxes from fees would be a “morass,” Justice Gorsuch countered that it would not be a Herculean feat. “Courts must, and do, routinely distinguish between taxes and fees in many contexts.” Justice Gorsuch found it immaterial that the Court had rejected nondelegation challenges to “authorizations to regulate in the ‘public interest’ and to set ‘just and reasonable’ rates.” “[E]ven if a particular statutory term evokes ‘well-known and generally acceptable standards’ in one domain, that does not mean the same term will necessarily supply similar guidance when used in other ‘uncharted fields.’” And the FCC’s universal-service obligation, as amended in 1996, is such an uncharted field.
Kennedy v. Braidwood Mgmt., Inc., 24-316.
By a 6-3 vote, the Court held that members of the U.S. Preventive Services Task Force―which issue recommendations that mandate which preventive services health insurers and group health plans must cover―“are inferior officers and therefore may be appointed by the Secretary of HHS.” The Court therefore rejected an Appointments Clause challenge to their appointments. In 1999, Congress placed the U.S. Preventive Services Task Force “as an entity within the Agency for Healthcare Research and Quality (AHRQ), which in turn is an agency in the Public Health Service within HHS. Under that 1999 statute, the Director of AHRQ ‘convene[s]’ the Task Force, which is ‘to be composed of individuals with appropriate expertise.’ . . . As presently constituted, the Task Force consists of 16 members who are now appointed by the Secretary of HHS to staggered 4-year terms.” The volunteer Task Force’s principal duty is to issue recommendations regarding preventive services. The Affordable Care Act changed the Task Force’s role from being merely advisory. Under the Affordable Care Act, most health insurers and group health plans must cover certain preventive services without cost sharing such as copayments and deductibles. The Act mandates no-cost coverage for preventive services rated highly by the Task Force. The “Act also amended the statute governing the Task Force to describe the Task Force as ‘independent’ and to provide that the members of the Task Force and their recommendations ‘shall be independent and, to the extent practicable, not subject to political pressure.’”
Several individuals and small businesses (collectively Braidwood) who object to the Affordable Care Act’s preventive-services coverage requirements filed suit in federal district court alleging that the Task Force’s structure violated the Appointments Clause. They claimed that Task Force members are principal officers who must be appointed by the President “with the Advice and Consent of the Senate.” The district court ruled for the plaintiffs. The Fifth Circuit affirmed in relevant part. The court acknowledged that Task Force members are removable at will by the Secretary of HHS. “But the Fifth Circuit concluded that the Secretary cannot block Task Force recommendations before they take effect. The court pointed to 42 U.S.C. §299b–4(a)(6), which provides that Task Force members ‘shall be independent and, to the extent practicable, not subject to political pressure.’ The Task Force, according to the Fifth Circuit, ‘cannot be “independent” and free from “political pressure” on the one hand, and at the same time be supervised by the HHS Secretary, a political appointee, on the other.’ So the court concluded that the Task Force is not supervised and directed by the Secretary—and that Task Force members are therefore principal officers and may not be appointed by the Secretary.” (Citation omitted.) In an opinion by Justice Kavanaugh, the Court reversed and remanded.
The question here, the Court explained, was whether Task Force members are principal officers or inferior officers. Only the former must be appointed by the President with the advice and consent of the Senate. The Court had previously ruled that “[i]nferior officers are those ‘whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.’” The Court “conclude[d] that Task Force members are inferior officers because their work is ‘directed and supervised’ by the Secretary of HHS, a principal officer.” The Court first emphasized that Task Force members are removable at will by the Secretary. At-will removal usually shows subservience to the superior officer because “the authority to remove an officer at will is a ‘powerful tool for control.’” Indeed, “Braidwood has not identified any instance where an executive officer was removable at will by someone other than the President and nonetheless deemed a principal officer.” “In addition,” found the Court, “the Secretary can block a Task Force recommendation from taking effect by combining his at-will removal authority with his authority to determine when Task Force recommendations become binding.” That is because “during the minimum 1-year period after the Task Force makes a recommendation before it becomes binding, the Secretary can request that the Task Force reconsider or withdraw a recommendation that he disfavors. He has plenty of time to remove and replace Task Force members who refuse.” Further, “the Secretary also has statutory power to directly review and block Task Force recommendations before they take effect.”
The Court rejected Braidwood’s arguments for why Task Force members are principal officers. Like the Fifth Circuit, Braidwood relied on the Affordable Care Act’s provision stating that recommendations shall be “independent and, to the extent practicable, not subject to political pressure.” “According to Braidwood, it is impossible for Task Force members to be ‘independent’ if they are also removable at will. So they must not be removable at will, Braidwood reasons.” Disagreeing, the Court found that this language was not explicit enough “to ‘take away’ the power of at-will removal from an appointing officer.” In short, “[t]he word ‘independent’ alone in a statute does not make an officer removable only for cause.” Further, “the requirement that Task Force members be ‘independent’ is best read to mean that Task Force members must not be unduly influenced by their outside affiliations.” The Court then found that the “not subject to political pressure” clause “mean[s] only that Task Force members are generally free from the Secretary’s influence in their formulation of recommendations in the first instance. The Secretary would still retain power to review and block recommendations in the minimum 1-year period before the recommendations take effect.” The Court added that if there were any doubt on this score, the doctrine of constitutional avoidance would require rejecting Braidwood’s argument.
The Court next addressed Braidwood’s contention “that even if Task Force members are inferior officers, their appointments were nonetheless unconstitutional.” That is because, Braidwood says, the Secretary lacks the statutory authority to appoint Task Force members. The Court disagreed. It ruled that “Congress has, in two steps, expressly vested the Secretary of HHS with the authority to appoint Task Force members. First, in 1999, when Congress codified the Task Force, Congress authorized the Director of the Agency for Healthcare Research and Quality (AHRQ) to appoint members of the Task Force. Second, Reorganization Plan No. 3 of 1966 transfers all of the AHRQ Director’s functions to the Secretary. Congress ratified that Reorganization Plan in 1984. So in 1999, when Congress gave the AHRQ Director the authority to appoint Task Force members, that authority vested in the Secretary. Beginning in June 2023, the Secretary has exercised that statutory authority to appoint the Task Force members.” The Court acknowledged that the 1999 statute authorizes the Director of AHRQ to “convene” the Task Force, not “appoint” it. But in this context, “the obvious conclusion is that the person with the power to convene is also the person with the power to appoint.” After responding to Braidwood and the dissent’s counterarguments in detail, the Court added (again) that the doctrine of constitutional avoidance confirms this result.
Justice Thomas filed a dissenting opinion, which Justices Alito and Gorsuch joined. As an initial matter, Justice Thomas would have remanded to the Fifth Circuit to address for the first time the question whether the Secretary has the statutory power to appoint the Task Force, which is logically precedent to the constitutional issue. On the statutory issue, Justice Thomas agreed with Braidwood that the Secretary lacks the statutory power. He stated that “[t]he vesting of appointment authority must be explicit,” and Congress’s granting the Director of AHRQ the power to “convene” the Task Force does not suffice. As a matter of ordinary meaning, to “convene” means to “assemble,” which is a different act than appointing. Justice Thomas next concluded that “[e]ven if Congress unconstitutionally vested appointment power in the Director, the Reorganization Plan does not transfer that power to the HHS Secretary.” Justice Thomas provided four reasons for his conclusion that “the power to appoint the Task Force cannot be a ‘function’ transferred by the Plan.” Justice Thomas next asserted that “[t]he majority’s erroneous statutory holding may save the Secretary’s midappeal claim of authority, but it makes hash of Congress’s design. Congress established the Task Force to be an independent agency that answers directly to the President. By misinterpreting the statute, the Court reconfigures the Task Force to be subordinate to the Secretary of HHS.”
Goldey v. Fields, 24-809.
The Court unanimously and summarily reversed a Fourth Circuit decision that “permitted the plaintiff here to maintain an Eighth Amendment excessive-force Bivens claim for damages against federal prison officials.” Andrew Fields sued the federal Bureau of Prisons, a prison warden, and several prison officials in federal court for damages, claiming that certain prison officials used excessive force against him when he was in solitary confinement in violation of the Eighth Amendment. The district court dismissed the complaint, holding that he lacked a cause of action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The Fourth Circuit reversed, allowing the Bivens damages claim to proceed. Through a per curiam opinion, the Court reversed.
The Court explained that in a series of recent opinions it “has applied a two-step test. First, the Court asks whether the case presents ‘a new Bivens context’—that is, whether the case ‘is different in a meaningful way’ from the cases in which this Court has recognized a Bivens remedy. . . . Second, if so, we then ask whether there are ‘special factors’ indicating that ‘the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’” The Court concluded here that “[t]his case arises in a new context, and ‘special factors’ counsel against recognizing an implied Bivens cause of action for Eighth Amendment excessive-force violations.” On the latter point, the Court noted that “Congress has actively legislated in the area of prisoner litigation but has not enacted a statutory cause of action for money damages.” It added that “extending Bivens to allow an Eighth Amendment claim for excessive force could have negative systemic consequences for prison officials and the ‘inordinately difficult undertaking’ of running a prison.” The Court therefore declined to extend Bivens to Eighth Amendment excess-force violations.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
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