July 7, 2026 | Volume 33, Issue 18
This Report summarizes opinions issued on June 25, 2026 (Part I).
Opinions
Wolford v. Lopez, 24-1046.
By a 6-3 vote, the Court held that a Hawaii law providing that no one carrying a firearm may enter private property open to the public unless the property owner gives express permission violates the Second Amendment. After the Court held in New York State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1 (2022), that the Second Amendment protects the right to carry handguns outside the home for self-defense, Hawaii replaced its law on firearm permitting but also prohibited carrying firearms on private property open to the public without the express and affirmative consent of the property owner. Petitioners are residents with concealed carry permits who filed suit in federal court seeking temporary and permanent injunctive relief. The district court enjoined the law as applied to private property open to the public, but the Ninth Circuit reversed. In an opinion by Justice Alito, the Court reversed.
The Court applied the two-pronged test from Bruen, which first “ask[s] whether the restrictions imposed by the challenged law fall within the plain text of the Second Amendment.” The Court found that test “easily met” here. The Court explained that the new Hawaii law flipped “the default rule on private property open to the public,” noting that at common law property open to the general public implies a “license to all persons to enter” unless the property owner has given “due notice” that such a person is banned. The Court noted that owners of property open to the public “can admit or exclude persons who are carrying guns for self-defense.” But Hawaii’s new law “imposes a new burden on permit holders who will have to somehow obtain permission to carry a firearm on the property before stepping foot on it.”
The Court then turned to Bruen’s second step, under which “the relevant government—federal, state, or local—may be able to show that its challenged law did not infringe the historical understanding of the codified right.” The state argued that its arrangement is based on Hawaii’s “particular customs and laws,” but the Court ruled that “the Second Amendment has the same meaning in all parts of the United States.” And the Court found that Hawaii’s law is “a distinct outlier” from the “enduring American tradition permitting public carry.”
The Court next addressed “Hawaii’s main argument: that analogous colonial and early state laws support the constitutionality of the State’s new law.” Disagreeing, the Court found most of those laws to be “vastly different from Hawaii’s new default rule. They consist almost entirely of laws that prohibited unauthorized hunting of deer or small game on someone else’s private property.” Those laws, the Court said, “had little if any impact on the Second Amendment’s central objective: protecting the fundamental right to self-defense. And their obvious aim was to prevent the distinctive harms and risks associated with unauthorized hunting.” In short, “[t]he gap between the State’s anti-poaching analogues and its new rule is just too wide.” Finally, the Court criticized Hawaii’s reliance on an 1865 Louisiana statute that, while similar to Hawaii’s new law, was part of the state’s Black Code designed to disarm newly freed slaves. As it “was neither widespread nor widely accepted,” the Court found “it carries no weight.” Indeed, “Hawaii’s claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.”
Justice Barrett issued a concurring opinion, which Justices Thomas and Gorsuch joined. Justice Barrett addressed the contention that the case was really about property rights rather than the Second Amendment. She noted that while all property owners in Hawaii could prohibit carrying guns, the Second Amendment applies to states, not property owners. Justice Barrett reasoned that because the state’s law regulates bearing firearms, it triggers scrutiny under the Second Amendment. (She compared the law to a law that “made it a crime to wear religious head garb (say, a hijab) onto private property open to the public without obtaining express authorization[.] Could that statute evade constitutional scrutiny?”) Justice Barrett also addressed Hawaii’s reliance on the 1865 Louisiana statute, stating that it is beyond her “why Hawaii would claim that these vile laws can justify its present-day restriction.” She concluded that even if “most Hawaiians might prefer that no one carry firearms in public places, a majority’s opposition to a constitutional right is not a permissible basis for restricting it.”
Justice Kagan filed a brief dissent, finding Hawaii’s law to be analogues to colonial and founding era laws that similarly prohibited carrying firearms onto private property without the owner’s affirmative consent. She reasoned that the “how” is identical and the “why” is sufficiently close. Justice Kagan stated that because the challenged law is sufficiently consistent with the principles of gun control at the founding, she would resolve the case, “without addressing Bruen’s step-one inquiry or the use at step two of Louisiana’s Black Code.”
Justice Jackson filed the principal dissent, which Justice Sotomayor joined. Justice Jackson argued that Hawaii’s statute “fairly applies a first principle of property law—the right to exclude—and does no harm to the Second Amendment.” She argued that “Hawaii’s law does not implicate the Second Amendment because there is no right to carry a gun onto private property without consent (as all agree), and the Constitution does not dictate the form of that required consent.” Justice Jackson noted her continuing view that Bruen was wrongly decided, but also charged the majority with failing to apply Bruen faithfully. She examined the historically restrictive firearms regulations of the Kingdom of Hawaii, which continued after it was annexed as a U.S. territory in 1898 and into statehood in 1959. And because of strict rules on concealed-carry permits prior to Bruen, “Hawaiians have rarely carried (or encountered others carrying) guns.” Justice Jackson also maintained that “[c]onceptualizing Hawaii’s law as ‘flipping the default,’ misses the point: State law supplies the default. Yes, the historical custom in most States set the consent rule to be implicit in most circumstances. But that custom was by no means universal . . . . And in every instance, the States retained the power to determine whether the required consent could be implied or had to be explicit.” (Citation omitted.) All of this, Justice Jackson said, was relevant at Bruen step one; she faulted the majority for narrowing that step’s inquiry.
Turning to Bruen step two, Justice Jackson maintained that “[t]he analogues cited by Hawaii clearly establish that legislatures historically required affirmative consent for carrying a firearm onto private property—the same ‘how’ as [the Hawaii law]. And they did so to protect property owners’ interests in response to concerns related to unauthorized armed entry—the same ‘why’ as [the Hawaii law].” Justice Jackson asserted that “[s]een at the correct level of generality, . . . historical laws targeting poaching are also appropriately viewed as being aimed at protecting the property rights of landowners from the harms of unauthorized armed carry on their property. Hawaii’s law does the same.” Addressing the 1860s Black Codes, Justice Jackson found that while the statute’s history is racist and “detestable,” that does “not automatically render these laws irrelevant to a fair assessment of the right to carry.” She contended that tethering the Court’s Second Amendment analysis to history means “our Nation’s entire history, warts and all.” She concluded that “the Court cannot have it both ways. Either history does matter, and if so, all potentially relevant historical experiences” matter “[o]r, it does not, and the Court’s Bruen test “is boundless, allowing it to accept or excise any historical analogue it chooses for any reason it prefers.”
Monsanto Co. v. Durnell, 24-1068.
By a 7-2 vote, the Court held that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) expressly preempts a failure-to-warn tort suit against Monsanto for not including a cancer warning on Roundup’s label. Monsanto manufactures and distributes Roundup, a glyphosate-based herbicide designed to control weeds. The EPA has evaluated glyphosate and concluded it is not likely to cause cancer and has not required Roundup’s labels to include a cancer warning. Plaintiff John Durnell sued Monsanto in Missouri state court, alleging that his use of Roundup caused his cancer. Durnell brought a failure-to-warn tort claim, asserting that Monsanto should have included a cancer warning on Roundup’s label. A jury agreed and awarded Durnell more than $1 million. The Missouri Court of Appeals affirmed, rejecting Monsanto’s argument that FIFRA preempted the claim. In an opinion by Justice Kavanaugh, the Court reversed.
The Court began with the history of FIFRA, which requires the EPA to register pesticides and approve their warning labels. Modifying the label requires an amended registration process. The public can “petition EPA to modify, suspend, or cancel a pesticide’s registration based on, for example, new evidence about the dangers of the pesticide.” Crucially, FIFRA includes a preemption clause that prohibits states from imposing “any requirements for labeling or packaging in addition to or different from those required under” FIFRA. 7 U.S.C. §136v(b). The Court noted the long history of research into glyphosate-based herbicides. When an international agency suggested in 2019 that glyphosate is a probable carcinogen, “EPA re-examined the issue but still adhered to its longstanding position on glyphosate.” Accordingly, the EPA has required Monsanto to use a label without a cancer warning.
The Court found that failure-to-warn claims “‘are premised on common-law rules that qualify’ as labeling requirements.” “[T]he heart of Durnell’s failure-to-warn claim under Missouri tort law is that Monsanto should have included a cancer warning on its Roundup labels.” Yet, ruled the Court, FIFRA requires Monsanto to sell Roundup with “the label without a cancer warning.” The Court found support from Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005), where the Court noted that an example of a precluded claim would be one where the EPA designated a “Caution” label while state law required a “Danger” label. The Court found Durnell’s claim to be similar: the “EPA’s registration determination that Roundup’s label need not include a cancer warning constitutes a federal labeling requirement that cannot be altered by state law, including state tort suits.” The Court found dispositive its opinion in Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), which addressed the preemption clause in the Medical Device Amendments of 1976, which is nearly identical to FIFRA’s preemption clause. Riegel held that the “FDA’s premarket approval of a medical device preempted state-law claims premised on additional or contrary safety requirements.” The Court added that the labeling preemption clauses in FIFRA and other statutes “reflect Congress’s judgment that the ability to sell a product throughout the country with a single label can be important to maintaining an efficient nationwide market.”
The Court addressed and rejected Durnell’s four overlapping arguments. First, Durnell argued that a failure-to-warn claim, “like FIFRA itself,” merely requires adequate warnings to protect human health and not to include false or misleading statements. The Court found that argument “operates at too high a level of generality” and that it “disregards the central and comprehensive role that EPA performs in making labeling determinations under FIFRA’s registration provisions.” Second, the Court rejected Durnell’s argument that the EPA’s regulations and procedures for registering pesticides and approving pesticide labels exceeded or contravened its statutory authority. The Court noted that FIFRA “expressly directs EPA to register pesticides” and determine if the labels are compliant. Third, the Court addressed Durnell’s argument based on §136a(f)(2), which provides that pesticide registration is not “a defense for the commission of any offense under [FIFRA].” The Court ruled that the provision “does not apply to state tort suits [but] simply clarifies that registration does not bar EPA enforcement actions against manufacturers for violating FIFRA.” Moreover, the argument fails under Riegel. Fourth, Durnell raised a scenario where “new safety information arises after EPA’s initial registration determination and labeling approval.” The Court found this policy concern addressed in the EPA’s regulations, including that “manufacturers must apprise EPA of new information,” the “EPA may request additional information,” and the EPA can solicit input from the scientific community. Indeed, the EPA did so here to reevaluate whether glyphosate is carcinogenic. The Court concluded that “if third parties (like Durnell) want to bring new information to EPA’s attention or if they believe that EPA has failed to consider relevant information, those third parties are free to petition EPA to modify, suspend, or cancel a pesticide’s registration.”
Justice Thomas concurred to bring attention to “constitutional infirmities” in FIFRA. He maintained that the act exceeds Congress’s authority under the Commerce Clause, which does not allow Congress to regulate agriculture or manufacturing. Justice Thomas also questioned whether Congress can delegate core legislative power to the EPA. Finally, he questioned whether “federal agency action can preempt state law.”
Justice Jackson, joined by Justice Gorsuch, dissented. Justice Jackson asserted that “the Court misunderstands FIFRA’s requirements, misinterprets the scope of FIFRA’s preemption, and ultimately leaves Durnell without a remedy for the significant harms he has suffered.” First, the dissent argued that FIFRA only limits states’ authority to regulate pesticide labels but does not eliminate it. Here, Missouri’s regulation via its failure-to-warn tort “reflects a parallel requirement that is fully consistent with FIFRA’s primary labeling duty—its misbranding prohibition—and makes no additional asks of those who are subject to it.” Justice Jackson also relied on Bates to find that a state law that merely duplicates FIFRA would not be preempted. From there she concludes that “Durnell’s failure-to-warn claim—which faults Monsanto for not including cancer warnings on the Roundup label—does not trigger preemption under FIFRA” because both FIFRA and Missouri’s failure-to warn tort prohibit pesticides from being “misbranded.”
Justice Jackson found the majority’s theory that a manufacturer must “use the label exactly as the EPA approved it” to be “unmoored” from the statute. She reasoned that while under §136a(f)(2) the approved label may be “prima facie evidence” that the product is not mislabeled, it “is not conclusive evidence.” In other words, the EPA’s “approval of a pesticide’s label cannot conclusively establish that the pesticide is not misbranded.” Justice Jackson flatly rejected Monsanto’s argument “that a registered pesticide can never be misbranded” because that position is inconsistent with Bates. The dissent also found the majority’s reliance on Riegel incorrect because the FDA statute “has nothing analogous to 7 U.S.C. §136a(f)(2).” Plus, the issue there did not involve “parallel claims” but assumed the device complied with FDA regulations. Finally, the dissent rejected Monsanto’s alternative implied-preemption argument because “Monsanto does not need the EPA’s “special permission and assistance” to add a cancer warning. Indeed, the dissent noted that on “six occasions, the EPA has permitted manufacturers to add state-specific cancer warnings as minor modifications without the agency’s prior approval.”
Mullen v. Doe, 25-1083.
By a 6-3 vote, the Court held that courts lack jurisdiction to consider respondents’ non-constitutional challenges to the termination of Temporary Protected Status (TPS) for aliens from Syria and Haiti. The Court further held that the one constitutional claim before it—“an equal protection claim that Haiti’s TPS designation was terminated because of the racial makeup of that country’s population”—will likely fail. In 1990, Congress enacted 8 U.S.C. §1254a, which established a discretionary program for providing temporary shelter in the United States for aliens from countries experiencing certain identified categories of substantial but transitory emergencies. The program authorizes the Secretary of Homeland Security, “after consultation with appropriate agencies of the Government,” to designate countries for TPS if they meet certain conditions and the Secretary “finds that permitting the aliens to remain temporarily is contrary to the national interest.” The statute requires the Secretary to terminate a country’s TPS designation if she determines that the country “no longer continues to meet the conditions for designation.” During the Secretary’s once-every-18-months (at least) review, she must “consul[t] with appropriate agencies of the Government” and “determine whether the conditions for such designation under this subsection continue to be met.” §1254a(b)(3)(A). The statute provides for “no judicial review of any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state” for TPS. 8 U.S.C. §1254a(b)(5)(A). In 2010, the Secretary designated Haiti for TPS due to “extraordinary and temporary conditions” resulting from an earthquake that “destroyed most of the capital city.” Haiti was redesignated for TPS in 2021 based on a finding of “extraordinary and temporary conditions” due to a presidential assassination, “a deteriorating political crisis, violence, and a staggering increase in human rights abuses.” Syria was designated for TPS in 2012 due to “extraordinary and temporary conditions” resulting from “a brutal crackdown” by former Syrian President Bashar al-Assad. The initial designation was later extended based on those conditions, as well as the existence of an “ongoing armed conflict.”
In 2025, then-Secretary Noem announced that the TPS designations for Syria and Haiti would be terminated. She provided country-specific reasons and concluded that continuing TPS designation for either contrary was contrary to the national interest due to vetting concerns. Both terminations were enjoined in federal court. The District Court for the Southern District of New York found that the Secretary violated the Administrative Procedure Act by failing to engage in the requisite interagency consultation and relying on impermissible, post hoc justifications “divorced from country conditions” in Syria. Likewise, the District Court for the District of Columbia found the Haitian respondents likely to succeed on the merits of their APA claims. The court also found a likelihood of success on the merits of an equal protection claim, holding that the termination was motivated, at least in part, by racial animus. The Second Circuit and a divided panel of the D.C. Circuit denied the government’s applications to stay the postponement orders, finding that the proffered claims were properly subjected to judicial review because they challenged the Secretary’s compliance with procedural requirements, rather than the merits of her decision. In an opinion by Justice Alito, the Court reversed and remanded.
The Court ruled that, under §1254a(b)(5)(A), the non-constitutional claims raised are not justiciable. The Court explained that the statute’s “text is clear, and its plain meaning is very broad.” While the key term “determination” can either refer to the final decision or “describe the chain of events leading up to a decision,” §1254a(b)(5)(A) bars respondents’ non-constitutional claims under either definition. The Court concluded that because “[e]ach claim concerns a discrete decision made by the Secretary,” be it the manner of consultation or assessment of country conditions, “all those steps were part of the process that led to her final decision to terminate these countries’ TPS designations.” Thus, even if “determination” meant only the final decision, the statute’s broadening language “with respect to” would bar review of decisionmaking of those intermediate processes. Based on this analysis, the Court held that the “general presumption in favor of judicial review” did not apply, for the text of the TPS judicial-review bar is not “reasonably susceptible to divergent interpretation.”
The Court analyzed several of respondents’ counterarguments concerning the availability of judicial review. First, the Court rejected the notion that the operative language of §1254a(b)(5)(A) draws any distinction between “procedural or substantive” determinations, and distinguished prior cases involving judicial bars with more circumscribed language than present here. Second, the Court dismissed the notion that “determination” had a technical, statute-specific meaning here, instead characterizing it as a common term carrying its ordinary meaning. Finally, the Court disagreed with the dissent’s interpretation that “only the Secretary’s ultimate ‘determination’—not any subsidiary decision, such as whether to consult other agencies—is unreviewable.” The Court found this view irreconcilable with the APA, under which “an agency’s subsidiary decisions merge into the final agency action.” And, the Court explained, to hold otherwise would allow an end-run around the judicial-review bar “by creative pleading or clever lawyering.”
The Court next held that the Haitian respondents are unlikely to succeed on the merits of their equal protection claim. As the Court saw it, the complained-of statements by the President and the former Secretary were not “overtly racial,” but instead could be understood to express race-neutral opposition towards permissive immigration policies and alleged misuse of TPS designation in past administrations. In addition, the administration’s revocation of TPS designations had been applied consistently and uniformly to Asian, Middle Eastern, African, and Latin American countries; it had not yet had an opportunity to evaluate the TPS status of a European-majority nation. Thus, the Court reasoned, even assuming that the heightened scrutiny standard articulated in Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), applied, the Haitian respondents were not entitled to relief under equal protection.
Justice Thomas wrote a concurring opinion. He joined the majority opinion in full, but additionally offered his beliefs on several additional points. First, Justice Thomas opined that §1254a(b)(5)(A) barred judicial review even for constitutional claims. Second, he stated that neither the Fifth nor Fourteenth Amendments authorize an equal protection claim against the federal government. In this regard, he proffered that the “Court was wrong to read equal protection into [the Fifth Amendment] in Bolling v. Sharpe, 347 U.S. 497 (1954).” Third, and relatedly, Justice Thomas maintained that “equal protection principles” do not “appl[y] to immigration decisions.”
Justice Kagan authored a dissenting opinion, which Justices Sotomayor and Jackson joined. Justice Kagan first concluded that respondents’ claims were subject to judicial review. She found that “the statute allows judicial review of whether the Secretary adhered to the procedures it mandates” and that this permission encompasses the challengers’ present claims that the Secretary did not satisfy the requirement to consult with appropriate agencies about the relevant country conditions. As she saw it, the State Department’s non-responsive statement (in an email exchange) that it had “no foreign policy concerns” with TPS termination did not satisfy the mandate of genuine, two-way consultation on whether the countries were safe for noncitizens temporarily residing in the U.S. to return to. Turning to the statutory text, Justice Kagan characterized the majority’s reading as “very strange,” and argued that the plain and natural reading of “determination” was the ultimate decision itself, not the antecedent steps and processes in the chain leading up to the decision. Thus, while “no court may second-guess” the Secretary’s determination that a country no longer qualifies for a TPS designation (even if contrary to the evidence), the review bar “does nothing to stop courts from reviewing . . . the procedural steps the Secretary must undertake prior to making any determination about country conditions.” Furthermore, she said that even if the majority’s reading was plausible, it was certainly “reasonably contestable” such that it triggered the “strong presumption” in favor of judicial review.
With regard to the Haitians’ equal protection claim, Justice Kagan criticized the Court for misapplying the Arlington Heights standard by rejecting the claim merely because a “plausible ‘race-neutral explanation[]’ of the termination of Haiti’s TPS designation” exists. Instead, this standard required merely a plausible allegation that race is “a motivating factor,” not “the sole factor, or even ‘the dominant or primary one.’” In Justice Kagan’s view, the allegation is “more than plausible” based on “statements by the President so repellent and racially inflected that the majority declines to put them in print.” These include describing Haitians in terms of “filth, disease, and primitiveness,” describing their immigration to America as “a death wish for our country,” and directly contrasting the desirability of Haitian and Somali immigrants with those from Scandinavian countries. Thus, she concluded, “[t]he statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.”
Mullin v. Al Otro Lado, 25-5.
By a 6-3 vote, the Court held that an alien who is stopped on the Mexican side of the U.S.–Mexico border does not “arrive[] in the United States” for purposes of the Immigration and Nationality Act (INA) provision on asylum applications. Under the INA, an alien who “is physically present in the United States” or “arrives in the United States” may seek asylum. 8 U.S.C. §1158(a)(1). And a person meeting either criterion is deemed an “applicant for admission” who must be “inspected by immigration officers.” From 2016 to 2021, the Department of Homeland Security adopted a practice called “metering,” under which officials stopped aliens lacking valid travel documents before they could cross the border and prevented them from reaching United States soil. This limited “the number of arriving aliens whom CBP would inspect each day and allow to apply for asylum.” Respondents (asylum seekers and the immigration-advocacy organization Al Otro Lado) sued, claiming that the INA requires the government to process asylum applications from, and to inspect, aliens who reach the Mexican side of the U.S.–Mexico border. The district court granted summary judgment to respondents, finding that the metering policy unlawfully denied inspection and asylum processing. The Ninth Circuit affirmed. In an opinion by Justice Alito, the Court reversed.
The Court stated that “[i]n ordinary speech, no one would say that a person ‘arrives in’ a place—for example, a house, a city, or a country—before the person enters that place. The context in which the phrase ‘arrives in the United States’ is used in the immigration statutes at issue here supports an ordinary-meaning reading.” The Court concluded that “a person arrives in a destination when he enters within its area—not before.” The Court rejected respondents’ argument that “when someone ‘block[s]’ the way of the person seeking to arrive,” it shifts the meaning so that “to arrive in a place is merely to ‘be at its threshold.’” The Court gave several examples, including that a “running back does not arrive in the end zone when he reaches the 1-yard line,” nor does a letter “arrive in the mailbox when a dog assaults the carrier a step away from the mailbox. A person arrives in a destination only when he enters it, and that conclusion does not change because someone or something blocks entry.”
The Court then rejected respondents’ reliance on the canon against surplusage. Section “1158(a)(1) allows an alien to apply for asylum not only when he ‘arrives in the United States’ but also if he ‘is physically present in the United States.’” Respondents argued that “an alien who ‘arrives in the United States’ is, on the Government’s view, ‘physically present’ in the United States. So, they maintain, the phrase ‘arrives in the United States’ is wholly redundant if read to require physical presence in this country.” The Court agreed that this argument had “some force.” But the Court found the canon inapplicable. The Court noted that “[t]he anti-surplusage canon is not an iron rule,” and that “even excellent writers do not always trim every unnecessary word, and the same is true of Congress.” All told, concluded the Court, “[t]he anti-surplusage canon is useful, but it is subordinate to the cardinal canon that a legislature says in a statute what it means and means in a statute what it says there.” (Quotation marks omitted.) The Court found it possible that Congress kept both the phrases “arrives in” and “physically present in” the United States to make clear “that aliens could continue to apply for asylum well after they arrived.”
The Court next found that “the presumption against extraterritoriality would tip the scale against [respondents’] position” because nothing in the statute represented “an unmistakable congressional intent to require that aliens be inspected and allowed to apply for asylum while they are still outside the United States.” Finally, the Court rejected respondents’ treaty-obligation arguments, reasoning that those obligations do not apply to refugees who are “outside the territory of the United States.”
Justice Thomas filed a concurred opinion to address two other potential issues in the case. First, he asserted that the district court effectively granted class-wide “injunctive relief that Congress has prohibited in this context.” Second, he stated that the injunction “may well have unconstitutionally infringed on the President’s inherent authority to exclude aliens from the country.” He contended that the President, not Congress, has the power to admit or exclude aliens.
Justice Sotomayor filed a dissenting opinion, which Justices Kagan and Jackson joined. Justice Sotomayor stated that “[p]roperly read in context, the phrase ‘arrives in the United States’ encompasses noncitizens who are in the process of arriving, regardless of where their feet are. This construction comports with the plain text of §§1225(a) and 1158(a)(1), the context clues within those provisions, the usage of the terms ‘arrives’ and ‘arriving’ in neighboring statutory provisions, and the consistent interpretation of this phrase in federal regulations.” She added that the majority’s reading means there is no difference between the statute’s use of “arriving in” and “present in” the United States, rendering part of the statute superfluous. She found it “particularly strange to assume Congress intended the ‘arrives in’ clause to do no work apart from the ‘present in the United States’ clause given that both are not only in the same law but in the very same sentence.” Justice Sotomayor added that the majority failed to understand how ports of entry work in practice, telling “asylum seekers that they may apply for asylum if they can make it across the border illegally” but not “if they patiently wait at the edge of a port of entry.”
Justice Sotomayor compared the Court’s treatment here to the refusal in 1939 by American officials to allow asylum claims by Jewish refugees aboard the MS St. Louis, many of whom ultimately died in the Holocaust. She observed that the Refugee Act of 1980 plainly “permitted anyone who was ‘at a land border or port of entry,’ even if they had not stepped foot onto U.S. soil, to apply for asylum and withholding of removal.” And she argued that Congress did not eliminate this when it amended the INA in 1996, reasoning that “it would be strange to construe Congress as abdicating [its treaty] obligations with this amendment without any affirmative indication that it sought to do so.” Instead, Justice Sotomayor reasoned, “the most plausible explanation for this change is that Congress adopted the ‘arrives in’ language in §1158(a)(1) to conform it to the newly reworked inspection mandate and expedited-removal procedures, both of which now refer to ‘arriving’ noncitizens.” Finally, Justice Sotomayor found the majority’s reliance on “the presumption against extraterritoriality” misplaced because here “all the relevant conduct is domestic, with CBP officials stationed inside the United States allegedly violating both their statutory duties and asylum seekers’ rights by physically blocking individuals at the border from entering and refusing to allow them to apply for asylum.”
Justice Jackson filed a separate dissent accusing the Court of issuing “an advisory opinion on the lawfulness of metering,” which has not been in place since 2021. She noted that “[w]ith potential mootness problems and without a factual record establishing how metering works in practice, the writ of certiorari in this case should never have been granted.” She said that the Court could have simply vacated the Ninth Circuit opinion, which likewise failed to consider mootness.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Kevin Morrow, Supreme Court Fellow
- Michael Butera, Supreme Court Fellow
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