June 26, 2026 | Volume 33, Issue 17
This Report summarizes opinions issued on June 22 and 23, 2026 (Part I); and cases granted review on June 22, 2026 (Part II).
Opinions
Landor v. Louisiana Dept of Corrections, 23-1197.
By a 6-3 vote, the Court held that neither the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) nor other Spending Clause statutes permit “plaintiffs to sue nonconsenting state employees in their private capacities for damages.” RLUIPA allows a plaintiff whose religious exercise was improperly burdened to “obtain appropriate relief against a government,” including against a “person acting under color of State law” 42 U.S.C. §2000cc. Petitioner Damon Landor “is a Rastafarian whose religious convictions require him to leave his hair uncut.” The Fifth Circuit in Ware v. LDOC, 866 F.3d 263 (2017), had held that RLUIPA generally bars prisons from cutting Rastafarians’ hair. With three weeks left in his sentence, Landor was transferred to a new correctional center where two guards threw “his copy of Ware in the trash,” handcuffed him to a chair, and shaved his head. Once released, Landor brought suit under RLUIPA against the Louisiana Department of Corrections (LDOC) and individual-capacity damages claims against respondent prison officials. The district court granted a motion to dismiss. Landor appealed the dismissal of his claims against the officials. The Fifth Circuit affirmed, finding that RLUIPA “does not permit suits against officers in their individual capacities.” In an opinion by Justice Gorsuch, the Court affirmed.
The Court began by noting that Congress’s power to pass RLUIPA comes from the Spending Clause. Although that clause does not provide Congress with any regulatory powers, Congress can attach conditions to funds it distributes and terminate such agreements if they are violated. Critically, the Court has found that “conditions attached to federal funds—including those prescribing exposure to potential sanctions—apply only to those who have knowingly and voluntarily agreed to them.” Here, there was no dispute that LDOC, a recipient of federal funds, “has agreed to answer certain RLUIPA suits as a condition of accepting those funds.” But this appeal involved only “claims against individuals in their personal capacities” who had not entered an agreement with the federal government or consented to answer suits under RLUIPA. Applying a contracts analogy, the Court held that “[u]nder the Spending Clause, Congress lacks regulatory authority to impose liability on them directly and must depend instead on consent.” Because the sued individuals “never agreed to answer suits like this one, Mr. Landor’s case cannot proceed.”
The Court rejected Landor’s four arguments for why “the lack of voluntary and knowing consent does not matter.” First, Landor argued that principles of agency law impose a duty on the individual defendants to “obey all reasonable directions” from their principal when acting within the scope of their authority. The Court held that as a matter of contract law, “the principal’s agents do not become ‘liable’ to the third party for their principal’s ‘nonperformance.’” The Court noted that Congress could have structured RLUIPA to provide such liability, but such “untapped possibilities” underscores the flaw in Landor’s argument. Second, the Court rejected Landor’s reliance on South Dakota v. Dole, 483 U.S. 203 (1987), a case addressing when conditions on federal funding become too coercive. Landor argued that Dole set forth “four requirements for Spending Clause legislation—and consent is not among them.” The Court found this reading incorrect, for the four requirements are “in addition to—not instead of—the rule that Congress may not use the Spending Clause to bind entities and individuals without their knowing and voluntary consent.”
Third, Landor argued that because the individual defendants are paid by LDOC, they “are indirect recipients of federal funds and, for that reason, should be deemed to have implicitly consented to RLUIPA liability.” The Court rejected this interpretation because it would allow Congress to regulate anyone who received a penny of federal spending which would give Congress “an effectively unbridled police power.” Finally, Landor argued that his suit is a “necessary and proper incident to RLUIPA’s policy protecting religious exercises.” The Court ruled that this theory misinterpreted the purpose of the Necessary and Proper Clause, which only allows Congress to enact laws to carry out its other enumerated powers. But Landor’s suit was not “necessary and proper incident to Congress’s constitutionally enumerated power to spend money.” The Court concluded that “Spending Clause statutes can bind only those who voluntarily and knowingly undertake obligations by agreement with the federal government” and that essential element was missing from Landor’s case.
The Court specifically declined to answer the second issue briefed by the parties, which was “whether, by authorizing private lawsuits seeking ‘appropriate relief,’ RLUIPA ever permits suits for money damages—or whether the statute instead limits plaintiffs like Mr. Landor to other remedies, like injunctions or declaratory judgments.” Although the Fifth Circuit held that RLUIPA does not allow such suits, the Court in Tanzin v. Tanvir, 592 U.S. 43 (2020), interpretated the related Religious Freedom Restoration Act (RFRA) to allow individual-capacity damages.
Justice Jackson, joined by Justices Sotomayor and Kagan, dissented. Justice Jackson argued that the majority conflated “law making and agreement making.” She said that the majority’s “severance of rights and remedies is a sleight of hand; it comes by way of [a] full-throated endorsement of a contract analogy even though what secures the rights at issue is not a contract but a law.” The dissent also criticized the majority for addressing only the constitutional argument, ignoring the principle that constitutional questions should be avoided “if there is some other ground upon which to dispose of the case.” The dissent rejected respondents’ statutory argument, finding that, consistent with Tanzin, “RLUIPA plainly authorizes individual-capacity lawsuits for money damages.”
Justice Jackson further maintained that the majority incorrectly interpreted the Spending Clause to contain a direct-consent requirement. Most importantly in the dissent’s view, the clause “is a power to legislate, not merely to negotiate.” The dissent said that Congress’s spending power, as crystallized in Dole, allows spending “in pursuit of the general welfare; unambiguously expressed; related to the federal interest; and not in violation of other constitutional provisions.” Justice Jackson charged the majority with adding a new prong to the rule, that “Spending Clause legislation can make liable only those who have directly and expressly consented to be made liable.” Thus, the conditions “may not bind anybody but the funding recipient itself, no matter the recipient’s relationship to the nonrecipient.” Citing Salinas v. United States, 522 U.S. 52 (1997), and Sabri v. United States, 541 U.S. 600 (2004), which upheld anti-bribery statutes that applied to private individuals, Justice Jackson posited that the Court has previously “not been squeamish about recognizing Congress’s authority to regulate nonrecipients directly in service of protecting ‘the integrity and proper operation of the federal program.’” Justice Jackson listed a “long line of this Court’s precedents” where Congress used “its spending power to reach beyond direct recipients of federal funds.” The dissent also noted that the Necessary and Proper Clause allows Congress to “secure compliance via imposition of liability, including damages.”
Pung v. Isabella County, Mich., 25-95.
The Court unanimously held that when the government sells a home as a collection method for a tax debt, the just compensation the government must pay the former owner “when the sale is fairly conducted in light of our country’s history of tax sales” is the actual tax-sale price (minus the tax debt)—not the property’s “hypothetical fair market value.” Petitioner is the personal representative of the Estate of Timothy Scott Pung. Pung owned a home in Isabella County, Michigan, for which he received an exemption from certain property taxes under the Principal Residence Exemption (PRE). After Pung unexpectedly passed away, the local tax assessor retroactively denied the PRE credit for the property for the 2007 to 2011 tax years. The Michigan Tax Tribunal later ordered the credit fully restored, but the tax assessor nonetheless revoked the PRE credit for the 2012 tax year, resulting in an unpaid tax bill of $2,241.93. Michigan courts ultimately authorized the foreclosure of the Pung property because of the unpaid bill (which petitioner maintains was erroneously assessed). The foreclosure concluded, and the county sold the property for $76,008, though it had an assessed value of $194,400 at the time of foreclosure. The buyer of the foreclosed property later resold it for $195,000. Petitioner sued and raised a Fifth Amendment takings claim and an Eighth Amendment excessive fines claim. The district court dismissed the Eighth Amendment claim. On the Fifth Amendment issue, the district court held that a taking occurred, but the Estate was entitled only to the “surplus” proceeds from the $76,008 sale: a total of $73,766.07. The Sixth Circuit affirmed, citing its own precedent holding that, for purposes of both the Takings Clause and Excessive Fines Clause, the measure of value for a foreclosed property is the foreclosure sale price and not the fair market value. In an opinion by Justice Alito, the Court affirmed this holding, but vacated and remanded for the lower courts to address Pung’s procedural arguments.
The Court found that “[s]ince the time of Magna Carta, governments have seized property from delinquent taxpayers.” The Court further identified a state and federal statutory “tradition dating back to the Founding” in which the government was obligated to pay back only “any surplus proceeds from a tax sale” minus the debt. Multiple Court precedents dating back to 1881 “applied the same rule.” Thus, so long as the auction procedure “is fair in light of” historical tax sales practice, “[o]ur Nation’s history and this Court’s precedent [] establish the principle that when the government seizes and sells property to collect a tax debt, the owner is entitled to the surplus sale proceeds—nothing less, and nothing more.” For the same reasons, the Court rejected Pung’s challenge to the seizure and sale of his property under the Excessive Fines Clause, finding that “like his Fifth Amendment claim, Pung’s Eighth Amendment claim lacks historical or precedential support.”
The Court rejected Pung’s reliance on eminent-domain cases because (1) unlike public-use cases, fair market value is not an appropriate standard of just compensation given that owners can take remedial action to avoid tax sales; and (2) even in the context of blameless government seizure via eminent domain, the Court has “‘refused to designate market value as the sole measure of just compensation.’” The Court added that Pung’s theory “would impose unprecedented burdens on jurisdictions that wish to collect unpaid taxes and might well make” the longstanding practice of “tax sales impractical.” Finally, the Court declined to address Pung’s argument that “the procedure the County followed in seizing and selling his property was unfair” because it sold more property than necessary and instead should have seized chattel or placed a lien on the property. The Court also refused to weigh in on the parties’ disagreement “on what constitutes a fair process” for a tax sale. The Court remanded to the Sixth Circuit to address these issues.
Justice Sotomayor authored a concurring opinion, joined by Justices Gorsuch and Jackson. She fully joined the Court’s ruling, but wrote separately to make clear her understanding that the opinion did not identify “the contours of a fair auction” or endorse any party’s argument regarding “what this standard requires.”
Justice Thomas wrote a separate opinion, concurring in part and concurring in judgment. This opinion was joined by Justice Gorsuch (except as to Justice Thomas’s disavowal of Part II-B of the majority opinion). Justice Thomas noted that “[j]ust compensation ordinarily requires paying the owner the fair market value of his property” and that “[t]he Pungs did not receive fair market value.” He explained, however, that the Court has recognized exceptions to that rule and agreed “that sufficient historical evidence” justified such an exception here. But he emphasized that “any exception based on history can be no broader than what that history justifies,” and interpreted that to mean a government could not take an entire home to pay for a small tax debt unless (1) it had first tried to sell the taxpayer’s personal goods and (2) it had first seized and sold a smaller portion of the land sufficient to recoup the taxes owed. Justice Thomas concluded that “the parties should have the opportunity to litigate below whether the local government’s conduct here was consistent with” historical practice.
McCarthy v. Hernandez, 25–748.
By a 6-3 vote, the Court summarily reversed a Second Circuit decision that had granted habeas relief to respondent based on a purported violation of Missouri v. Seibert, 542 U.S. 600 (2004). In an un-Mirandized 2012 interview with police, Pedro Hernandez inculpated himself in the 1979 disappearance and murder of six-year-old Etan Patz. Specifically, Hernandez admitted to strangling Patz and dumping his body in an alley behind the bodega where he worked. Hernandez, who suffers from a history of mental illness and low IQ, thereafter made repeated Mirandized and videotaped confessions to law enforcement and confirmed his role as the killer in interviews with two psychiatrists. Over the course of several decades, he also made independent confessions to a prayer meeting group, his ex-wife, his current wife, his daughter, and his brother-in-law. New York charged Hernandez with intentional murder, kidnapping, and felony murder.
Hernandez moved to suppress his statements to the detectives and the assistant district attorney, but the trial court denied the motion. It ruled that Hernandez was not in custody before he received his Miranda warning and that he had knowingly and voluntarily waived his Miranda rights before he made his later videotaped confessions. But New York law requires a trial court to instruct a jury to disregard a pretrial statement if the jury finds it to have been “involuntarily made” and defines that term as “obtained in violation of the defendant’s state or federal constitutional rights or the right established in Miranda.” (Citations omitted.) The trial court accordingly instructed the jury on voluntariness, custodial interrogation, Miranda warnings, and Miranda waiver. Following a jury question regarding what effect his un-Mirandized statements had on his subsequent confessions, the trial court determined that “New York law does not require a trial court to instruct a jury on whether an initial involuntary confession taints later confessions and thus imposes an obligation to disregard them”; he thus “did not instruct the jury to decide whether Hernandez’s post-warning confessions were sufficiently attenuated from his first, pre-warning confession.” The jury found Hernandez guilty of kidnapping and felony murder. The state courts affirmed on direct appeal.
On federal habeas, Hernandez argued that the Appellate Division had violated clearly established federal law by rejecting his Miranda arguments and in its ruling on the trial court’s response to the jury note. Specifically, he contended that the court’s response to the jury question violated clearly established federal law by failing to explain to the jury the rule that Justice Kennedy adopted in his concurring opinion in Seibert. That concurring opinion stated “that a post-warning confession obtained through a ‘deliberate’ two-step strategy ‘predicated upon violating Miranda’ is inadmissible unless law enforcement takes ‘specific, curative steps’ to attenuate it from the pre-warning confession.” The district court denied Hernandez’s habeas application, finding “no ground under AEDPA for granting relief based on Hernandez’s Miranda arguments” and concluding that any “failure to explain attenuation to the jury was harmless.” The Second Circuit reversed, granting habeas relief based on the state trial judge’s failure to instruct the jury in accordance with Justice Kennedy’s Seibert concurrence. The panel stated that this opinion “set out a binding rule of federal law and that the trial court needed to explain the rule and its consequences in its response to the jury’s note” because the “’rule laid out in Seibert is relevant not only to a court making admissibility determinations’ under the Constitution but also to juries deciding voluntariness under New York’s code of criminal procedure.” In a per curiam opinion, the Court reversed and remanded.
The Court concluded that the Second Circuit had misread Seibert and thereby “exceeded the role that AEDPA prescribes.” It explained that Seibert concerned a trial court’s ruling on a suppression motion. No clearly established Supreme Court precedent had ever extended Seibert to apply to a jury’s subsequent determination of the legality of a confession. Just the opposite: “Hernandez had no federal right to have the jury evaluate the lawfulness of his confessions after the trial court admitted them.” The trial court thus had no constitutional duty to “instruct the jury on the grounds for suppression set out in Miranda or Seibert.” Instead, any such requirement would have stemmed from New York law, and “state-court determinations on state-law questions” are “no part of a federal court’s habeas review of a state conviction.” Accordingly, held the Court, even assuming (without deciding) that Justice Kennedy’s concurring opinion “sets out the holding that courts must follow,” the state courts neither contravened nor unreasonably applied it.
In reaching its decision, the Court rejected the argument that “the trial judge’s response to the jury’s note violated Hernandez’s right to due process.” The Court explained that “[w]e have never held that the Due Process Clause, or any other provision of the Federal Constitution, requires a trial court to explain to a jury an issue that the jury is not required to decide.” This conclusion does not change “merely because the jury ‘focused on this question’ or because the legality of the confessions was ‘an issue central to the trial.’” Further, the Court rejected Hernandez’s argument that federal law compels that Seibert “must control the jury’s consideration” where New York law purportedly “vest[s] juries with th[e] responsibility” to assess attenuation—particularly because the state courts’ binding interpretation of state law concluded that “New York law does not vest juries with the responsibility to assess attenuation.”
Justices Sotomayor, Kagan, and Jackson would have denied the petition for writ of certiorari.
Cisco Systems, Inc. v. Doe, 24-856.
By a 6-3 vote, the Court held that members of the Falun Gong religion cannot sue Cisco Systems under either the Alien Tort Statute (ATS) or the Torture Victim Protection Act of 1991 (TVPA) for aiding and abetting their torture at the hands of the Chinese government. The Court found that the ATS does not allow courts to create new causes of action for violations of international norms, abrogating Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The Court further held that the TVPA, while containing an express cause of action, does not provide for aiding-and-abetting liability. Respondents are Chinese nationals and one U.S. citizen who practice the Falun Gong religion. They filed suit under the ATS and TVPA alleging that Cisco Systems and two of its executives aided and abetted violations of international law by selling surveillance equipment to the Chinese government, which used that equipment to identify, apprehend, torture, and kill members of the Falun Gong religion. The district court dismissed the suit. The Ninth Circuit reversed in part and remanded, finding that “aiding and abetting liability is sufficiently definite and universal to be a viable form of liability under the ATS.” The Ninth Circuit also held that the TVPA “encompasses claims against those who aid and abet torture or extrajudicial killing.” In an opinion by Justice Barrett, the Court reversed and remanded.
The Court started by analyzing its decision in Sosa and reaffirming its holding that the 1789 ATS is a jurisdictional statute, and it is “[t]he general rule that grants of jurisdiction alone . . . are not themselves grants of lawmaking authority.” “At the same time—and in considerable tension with the first point—[the Sosa Court] said that the ATS allows for the possibility of new, judicially created causes of action to enforce norms of international law” in narrow circumstances. The Court here “close[d] the door that Sosa cracked and h[e]ld that courts may not create new causes of action for violations of international norms” other than the original three recognized by Blackstone that formed the background law in 1789 (“violation of safe conducts, infringement of the rights of ambassadors, and piracy”). The Court noted that “[s]ince Sosa, we have repeatedly turned away plaintiffs asserting claims under the ATS.”
The Court found two considerations decisive in rejecting any new causes of action under the ATS. First, it found flawed the second step Sosa demanded for a new ATS cause of action―that the plaintiff “show that it would be prudent for the court to create the proposed cause of action when the political branches have not acted.” “But,” stated the Court here, “ATS cases by their nature implicate foreign policy.” Second, “the power to create causes of action belongs to Congress.” Indeed, the Court has “firmly committed to the view that judicially created causes of action offend the separation of powers in almost every circumstance.” Further, “when Congress has created ‘an alternative remedial structure,’ ‘that alone’ precludes the creation of a cause of action.” Here, the TVPA creates an express cause of action under the ATS. For these reasons, the Court concluded that respondents’ ATS claims must fail: none of its claims are among the Blackstone three, and it follows that “there is necessarily no liability for aiding and abetting such violations.”
The Court also rejected respondents’ claims under the TVPA, which provides a cause of action against someone who “subjects” another to torture. In Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164 (1994), the Court held that it would not imply civil aiding-and-abetting liability without an express provision. Here, the Court found that the TVPA does not provide for aiding-and-abetting liability, “and that silence is enough to settle the issue.” The Court rejected respondents’ argument that the statutory term “subjects” is broad enough to include aiding-and-abetting liability. The Court reasoned that “[t]o ‘subject’ another to torture means ‘to cause to undergo or submit to.’ The term thus signals a causal connection between torturer and victim. Aiding-and-abetting liability, by contrast, encompasses many forms of assistance provided by those who are one (or more) steps removed from the torturer.” (Citation omitted.)
Justice Jackson, joined by Justice Kagan, filed an opinion concurring in part and dissenting in part. They agreed with the majority’s analysis that the TVPA does not encompass aiding-and-abetting liability. But they argued that “the majority is wrong to treat Central Bank as creating a ‘magic words’ test for aiding-and-abetting liability generally” and that the absence of the term in the statutory analysis in that case “was but one consideration of many.” Justices Jackson and Kagan joined Justice Jackson’s dissent with respect to ATS liability.
Justice Sotomayor filed a dissenting opinion in which Justices Kagan and Jackson joined (except Part IV). The dissent criticized the majority for overruling precedent without considering the stare decisis factors and closing “the courthouse doors not just to respondents, but to virtually every future litigant seeking redress for a violation of international law under the ATS.” Justice Sotomayor would reaffirm Sosa’s conclusion that “the historical context surrounding the ATS’s passage” shows that “Congress ‘intended’ for the ATS ‘to have practical effect the moment it became law,’” which means that courts should “find implied private causes of action under the ATS ‘for violations of any international law norm’ comparable to ‘the historical paradigms familiar when [the ATS] was enacted.’” Justice Sotomayor defended Sosa‘s two-step test for recognizing a new cause of action under the ATS and found that respondents’ case satisfies both steps. First, torture and extrajudicial killing violate several international norms; second, the “political branches have already consistently condemned China’s treatment of Falun Gong members.” Justice Sotomayor also criticized the majority for not explaining “why implied causes of action for the Blackstone three are permissible but implied causes of action for any other norm of international law, which either existed in 1791 or exist today, are not.” In Part IV, Justice Sotomayor argued that the TVPA allows plaintiffs to sue for the aiding and abetting of torture. In her view, the statute’s use of “subjects an individual to torture” plainly encompasses aiding and abetting.
Exxon Mobil Corp. v. Corporación Cimex, S.A. (Cuba), 24-699.
By a 6-3 vote, the Court held that the Cuban Liberty and Democratic Solidarity Act (also known as the Helms-Burton Act) itself abrogates the sovereign immunity of Cuban agencies and instrumentalities, such that plaintiffs who sue these entities under the Act need not also satisfy an enumerated exception in the Foreign Sovereign Immunities Act of 1976 (FSIA). After Fidel Castro seized power during the communist revolution in 1959, the new Cuban government forcibly took American-owned properties and enterprises in Cuba without compensation. In 1996, Congress enacted the Helms-Burton Act, 22 U.S.C. §6021 et seq., which in relevant part provided American victims of confiscation “with a judicial remedy in the courts of the United States.” §6081(11). Title III of the Act creates a private right of action for any U.S. national who “owns the claim” to property “confiscated by the Cuban Government on or after January 1, 1959,” allowing suits against “any person” who “traffics in” the confiscated property. §6082(a)(1)(A). As defined, the term “person” includes “any agency and instrumentality of a foreign state.” 22 U.S.C. §6023(11). An entity that traffics in confiscated property is liable for “money damages” presumptively equal to the amount certified by the Foreign Claims Settlement Commission. §§6082(a)(1)(A)(i)(I), (2).
Petitioner Exxon Mobil (then Standard Oil) owned substantial Cuban oil and gas assets through a subsidiary, including a refinery, terminals, packaging plants, and more than 100 service stations. Following the communist takeover, the Castro regime confiscated those assets. The Foreign Claims Settlement Commission confirmed that Exxon had a valid interest in the expropriated property and therefore certified over $71 million in losses. In 2019, Exxon sued three Cuban instrumentalities for allegedly engaging in prohibited trafficking under Title III. Exxon sought damages in the amount of the claim certified by the Commission plus pre-judgment interest and treble damages. The Cuban defendants moved to dismiss on the basis that the district court lacked jurisdiction over them under the FSIA, which generally immunizes foreign states and their instrumentalities from the jurisdiction of U.S. courts unless an enumerated exception applies. 28 U.S.C. §1604. The district court sided with the Cuban defendants, holding that Title III of the Helms-Burton Act does not abrogate foreign sovereign immunity and Exxon must satisfy an exception under the FSIA. A divided panel of the D.C. Circuit affirmed in relevant part, concluding that the FSIA sets out the exclusive mechanism for securing jurisdiction over civil suits against foreign sovereigns, and the Helms-Burton Act “harmoniously coexists with the FSIA.” In an opinion by Justice Kavanaugh, the Court reversed and remanded.
The Court found that “the entire architecture of the Helms-Burton Act establishes that the Act waives the foreign sovereign immunity of Cuban agencies and instrumentalities, and does not require Exxon to also satisfy one of the FSIA’s exceptions to foreign sovereign immunity.” The Court relied on four distinct points. First, the “Court’s general sovereign immunity precedents . . . hold that when, as here, Congress creates a cause of action and expressly applies the cause of action against government agencies or instrumentalities, Congress has abrogated sovereign immunity.” Second, applying the FSIA in this context would effectively render the Helms-Burton Act “self-defeating.” The FSIA’s commercial activity and expropriation exceptions require direct effects or commercial activity in the United States, but the Act’s simultaneous embargo prohibiting American commercial activity with Cuba would make satisfying these exceptions virtually impossible—thereby undermining Congress’s intent to provide a meaningful remedy.
Third, the Act provides that subject-matter jurisdiction for its suits lies under the federal-question statute (28 U.S.C. §1331) rather than under the FSIA (§1330), reinforcing that the latter’s jurisdictional provisions do not apply here. Fourth, “the Act grants the President plenary power to suspend suits under the Act when doing so is in America’s national security or foreign policy interests.” And because the President’s “statutorily assigned gatekeeping authority over suits against Cuban agencies and instrumentalities” mirrors authority vested in the executive branch under “the pre-FSIA foreign sovereign immunity regime,” the Court viewed this structure as “yet another sign that the FSIA does not apply here.”
In reaching its conclusion, the Court rejected counterarguments offered by the Cuban defendants and the dissent. The Court explained that the canon against implied repeal “does not apply here because the Helms-Burton Act contains many express indications that the Act is a standalone statutory exception to foreign sovereign immunity.” Further, although the Court had previously labeled the FSIA as the “sole basis for obtaining jurisdiction over a foreign state in federal court,” this “general language” was merely descriptive and “did not preclude Congress from enacting a later exception to foreign sovereign immunity” that specified a different jurisdictional basis. Finally, the Court rejected arguments that “Congress could have more clearly displaced the FSIA if it wanted to do so” and had removed an express waiver from an earlier draft of the Act. The Court emphasized that “Congress does not need to use ‘magic words’ to abrogate sovereign immunity” and had made its intent “clearly discernable” from the “sum total” of its work.
Justice Kagan authored a dissenting opinion, which Justices Sotomayor and Jackson joined. Justice Kagan began by noting that litigating a claim against a sovereign defendant requires two “analytically distinct” showings: a cause of action, and an abrogation of sovereign immunity. In other words, “Congress’s creation of a cause of action does not, standing alone, tell us whether Congress has abrogated immunity.” As she saw it, the “comprehensive framework” enacted in the FSIA provides that foreign states and their instrumentalities “shall be immune from the jurisdiction” of the federal courts (barring an exception), and the Helms-Burton Act merely provides a substantive cause of action that does not contain an “unmistakably clear” statutory intent to abrogate immunity. Thus, the answer to whether “Cuban-owned companies are immune from the jurisdiction of the federal courts” should be “just what the FSIA says.” Justice Kagan relied on the additional facts that (1) the Act amended the FSIA’s “execution” immunity provision “while leaving untouched the FSIA’s jurisdictional-immunity provision”; and (2) an express abrogation of sovereign immunity was removed from the final draft of the Act. Finally, Justice Kagan argued that the structure and intent of the Helms-Burton Act do not require abrogation of sovereign immunity to offer a “comprehensible” remedy, for the statute was primarily intended to deter private investors in the Cuban regime and “most Helms-Burton suits are brought against private parties, not Cuban instrumentalities.”
Blanche v. Lau, 25-429.
By a 6-3 vote, the Court held that where a returning green card holder had been arrested for “a crime involving moral turpitude,” the government did not need to provide “clear and convincing evidence” proving that offense in order to parole him into the country as “an applicant for admission” who was potentially inadmissible or deportable. Under the Immigration and Nationality Act (INA), “[t]he Government can remove aliens on different grounds depending on whether they have been formally admitted to the country.” It can remove applicants for admission to the country if they are “‘inadmissible,’” and it can remove aliens already admitted if they are “‘deportable.’” These designations can involve distinct grounds for removal and impose different statutes of limitations on removable offenses. “Ordinarily, a lawful permanent resident who arrives in the United States after a temporary absence does not have to apply for admission because he is regarded as already admitted. 8 U.S.C. §1101(a)(13)(C). If he has committed certain crimes, however, the Government may regard him as not yet admitted. §1101(a)(13)(C)(v).”
Respondent Muk Choi Lau, a Chinese citizen and lawful permanent resident of the U.S., temporarily left the country after being charged with a crime covered by §1101(a)(13)(C)(v). Lau thereafter attempted to reenter the United States by presenting himself to a border officer at John F. Kennedy International Airport. Because of Lau’s pending criminal charge, the border officer did not regard Lau as already admitted, but “instead paroled him pending the resolution of his criminal case” under §1182(d)(5)(A), “meaning that Lau was allowed to physically enter the country without being formally admitted.” After Lau pleaded guilty to the New Jersey charge, the government initiated removal proceedings and secured a removal order based on his conviction. In relevant part, the Immigration Judge rejected Lau’s argument that “the Government improperly classified him as an applicant ‘seeking admission’ when he returned from his trip abroad, instead of deeming him already admitted as a lawful permanent resident and subject to removal only on deportability grounds.” The Board of Immigration Appeals affirmed. The Second Circuit vacated the removal order, concluding that Lau “should have been regarded as already admitted upon arrival unless the border officer had ‘clear and convincing’ evidence that Lau had committed the crime.” In an opinion by Justice Thomas, the Court vacated and remanded.
The Court concluded that, unlike other provisions of the statute that expressly provide a burden of proof, “[n]othing in the INA required the border officer to have clear and convincing evidence that Lau had committed a crime involving moral turpitude before deeming him an applicant for admission.” Rather, the Board of Immigration Appeals precedent that Lau relies on provides that the government must establish that a lawful permanent resident is an applicant for admission by clear and convincing evidence “only ‘at the time of the removal hearing,’ not at the border.” Thus, the government was entitled to charge him with inadmissibility as an applicant for admission, and to conditionally parole him into the country rather than making a final and formal determination of his status at the border.
In reaching its conclusion, the Court rejected Lau’s argument that because border officers were required to determine that he was “seeking an admission,” the standard for making that assessment should mirror the standard the Board applies at removal proceedings. The Court found that the border agent had made the requisite determination that Lau was seeking an admission when they paroled him. The Court declined to impose an additional and atextual “evidence burden on border officers entrusted with making ‘quick judgments on the spot.’” Finally, the Court rejected Lau’s contention that the clear-and-convincing evidence standard required proof of conviction or admission to the crime by the noncitizen at the border. The Court explained that removing a lawful permanent resident on a charge of inadmissibility “involves two steps: ‘while only commission [of the crime] is required at step one’ (to show that the alien could be regarded as seeking to be admitted), ‘conviction (or admission) is required at step two’ (to show that the alien seeking to be admitted is inadmissible).” Thus, while “an alien’s ultimate inadmissibility under §1182(a)(2) turns on whether the alien is convicted of an identified crime,” “[a] straightforward reading of the text” allows the government to “regard a lawful permanent resident as seeking admission as soon as he ‘committed a’ crime involving moral turpitude.”
Justice Jackson authored a dissenting opinion that Justices Sotomayor and Kagan joined. Justice Jackson began by emphasizing that lawful permanent residents (LPRs) hold “special status in the U.S. immigration system” and “are as close to citizenship as one can get absent naturalization.” For this reason, the INA expressly requires border officers to treat them as “already admitted” when they return from an international trip, absent an enumerated exception. As Justice Jackson saw it, the INA’s “text, structure, and context” require proof that an LPR “has committed” a crime involving moral turpitude before a border officer may refuse “to deem him already admitted at the border.” In her view, §1101(a)(13)(C) provides a “clear directive” that a border officer “shall not” require an LPR to reprove that “he satisfies the standard admission criteria upon his return to the United States.” Given this default rule, she reasoned, the existence of an exception must be shown as a threshold matter at the border in order to depart from the statute’s presumption.
Justice Jackson dismissed the government’s concern “that holding it to a burden of proof at the time of an LPR’s reentry would force border officers to conduct minitrials and clog up immigration processing at the border.” She explained that immigration officers are already empowered and equipped to administer oaths, conduct interviews, take evidence, and make credibility determinations. Conversely, she posited that “[i]n the worst-case scenario under today’s holding, the Government could merely assume at the border that any one of the six exceptions applies to an LPR (without any evidence) and prove the applicability of the statutory downgrade at a later removal hearing, using evidence accrued in the meantime.”
Cases Granted Review
Nielsen v. Watanabe, 25-417.
At issue is “[w]hether the Ninth Circuit here erred in recognizing a Bivens cause of action” for a prisoner who “alleged that he suffered a fractured coccyx in a prison gang fight, causing chronic pain, but was not sent to a hospital.” Respondent Kekai Watanabe is a federal prisoner who was assaulted during a gang-related fight in 2021. Petitioner Francis Nielsen was a staff nurse at the prison who allegedly failed to provide appropriate treatment for Watanabe’s injuries. Watanabe sued, alleging a violation of his Eighth Amendment rights and seeking damages under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). The Court has only approved a Bivens claim in three cases. One was Carlson v. Green, 446 U.S. 14 (1980), where the “Court extended Bivens to an action against prison officials accused of violating the detainee’s Eighth Amendment rights, where they not only failed to treat his acute asthma attack, but exacerbated it, causing his on the-scene death.” When a plaintiff brings a Bivens claim, courts now apply a two-step inquiry. First, they must ask whether it presents “a new Bivens context,” that is, a different context from the three approved cases. Second, if different, do “special factors” indicate that the Judiciary is at least arguably less equipped than Congress to “weigh the costs and benefits of allowing a damages action to proceed.” Egbert v. Boule, 596 U.S. 482 (2022). Here, the district court dismissed Watanabe’s complaint for failure to state a claim, holding that “no such Bivens remedy exists.” The Ninth Circuit reversed, holding that Watanabe’s claim of deliberate indifference to his medical needs was not meaningful different from Carlson, “notwithstanding the fact that the incarcerated individual had access to” an alternative remedial scheme. 115 F.4th 1034. The Ninth Circuit denied rehearing en banc with 11 judges dissenting.
Petitioner Nielsen argues that the existence of alternative administrative remedies for Watanabe—through the Bureau of Prisons’ Administrative Remedy Program (ARP)—and the “extremely different harms” makes this case sufficiently different from Carlson to foreclose extending the Bivens remedy to this case. First, Nielsen argues that the Court “has held that the existence of ‘alternative remedial structures’ like the ARP is a ‘special factor.’ . . . The existence of an alternative remedial structure like the ARP, which previous Bivens cases did not consider, is sufficient to make the Bivens context ‘new.’” Nielsen criticizes the Ninth Circuit for considering the alternative scheme as not meaningful in the new-context inquiry on the ground that the scheme is primarily relevant at step two. Next, Nielsen explains that Watanabe is merely alleging chronic pain from a broken bone, “not an acute medical emergency resulting in death, as in Carlson.” Nielsen asserts that the Ninth Circuit erred by expanding Carlson beyond a wrongful death claim. Finally, Nielsen suggests that the “Court may wish to consider whether it should dispense with Bivens altogether.”
Watanabe counters that any issue with alternative remedies is immaterial because the Ninth Circuit found in the alternative that even if the ARP was considered at step one, Watanabe’s claim can go forward because it is “not meaningfully different from other claims allowed under Carlson.” He argues that the availability of an alternative remedy does not create “a per se new context for every claim arising under Carlson.” And Watanabe points out that the “Court reaffirmed that Carlson claims remain viable within their sphere—even after discussing the ARP as a potential alternative remedy in place at the time.” See Corr. Services Corp. v. Malesko, 534 U.S. 61 (2001). Moreover, Watanabe says, in Carlson the Court considered alternative remedies and concluded they did not foreclose the availability of a Bivens claim. Finally, Watanabe asserts that while the Court has declined to extend Carlson, “such as to private employees in private prisons,” those decisions did not rest on the narrow distinction that the plaintiffs had not died, but instead focused on “different categories of defendants, or entirely different constitutional rights.” Watanabe concludes that Nielsen is really just asking the Court to overrule Carlson despite Congress’s history of legislating with “clear reliance on Carlson.”
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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