March 12, 2026 | Volume 33, Issue 7
This Report summarizes opinions issued on February 20, 24, and 25, 2026 (Part I); and cases granted review on February 23, 2026 (Part II).
Opinions
Learning Resources, Inc. v. Trump, 24-1287.
By a 6-3 vote, the Court held that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs. Under IEEPA, the President may use various economic tools to address “unusual and extraordinary” foreign threats to national security, foreign policy, or the economy. 50 U.S.C. §1701(a). To invoke IEEPA, the President must declare a national emergency. §1701(b). One of the tools at the President’s disposal to deal with a threat is to “regulate . . . importation.” §1702(a)(1)(B). Relying on this authority, the President declared national emergencies related to two foreign threats. First, the President declared a national emergency regarding the influx of illegal drugs from Canada, Mexico, and China and the failure of those countries to stem illegal drug trafficking. To remedy this, the President imposed a 25% duty on most Canadian and Mexican imports and a 10% duty on most imports from China, later increased to 20%. Second, the President declared a national emergency related to international trade practices that contributed to trade deficits for U.S goods. He imposed a 10% baseline duty “on all imports from all trading partners” and additional duties up to 50% on a per-country basis. The President later modified the tariff rates and the types of goods that were subject to tariffs.
The Learning Resources petitioners, two small businesses, challenged the tariffs in district court. The respondents in the consolidated case V.O.S. Selections, five small businesses and 12 states, sued in the Court of International Trade (CIT). The Learning Resources district court preliminarily enjoined the IEPPA tariffs. Meanwhile, the CIT granted the V.O.S. Selections plaintiffs’ motion for summary judgment, and the Federal Circuit affirmed. In an opinion by the Chief Justice, the Court affirmed the judgment of the Federal Circuit in V.O.S. Selections. (The Court vacated the district court’s judgment in Learning Resources and remanded with instructions for the district court to dismiss for lack of jurisdiction.)
The Court began by noting that Article I, §8 of the Constitution vests with Congress the power to “lay and collect Taxes, Duties, Imposts and Excises.” This power had a unique significance at the founding. And because a tariff is a tax levied on imports intended to raise revenue, the power to impose tariffs falls within Congress’s taxing power. Thus, found the Court, the President has no inherent authority to impose tariffs during peacetime. Regardless of the President’s power to do so during wartime, here the President relied on IEEPA and construed its grant of authority to “regulate . . . importation” as a “sweeping delegation” of Congress’s tariff power, “authorizing the President to impose tariffs of unlimited amount and duration, on any product from any country.”
The Chief Justice, joined by Justices Gorsuch and Barrett, employed the major questions doctrine to interpret IEEPA’s reach. The Chief Justice explained that the Court is reluctant to “read into ambiguous statutory text extraordinary delegations of Congress’s powers.” He cited Biden v. Nebraska, 600 U.S. 477 (2023) (invalidating cancellation of $430 billion in student loan debt), and West Virginia v. EPA, 597 U.S. 697 (2022) (invalidating regulations imposing a nationwide transition away from the use of coal), as cases where “the Government claimed broad, expansive power on an uncertain statutory basis.” In such cases, the Court acknowledged that the statutory text could be read to delegate the asserted power, but the Court relied on statutory context, constitutional structure, and “common sense” to conclude otherwise.
Applying the major questions doctrine here, the Chief Justice noted that the power of the purse is a “core congressional power.” When Congress has delegated its tariff power, it has done so explicitly and with express conditions or limitations on the amount and duration of tariffs. But the President claims that IEEPA provides unilateral authority to “impose unbounded tariffs.” No president has ever invoked IEEPA to impose any tariffs, “let alone tariffs of this magnitude and scope.” Also, the “economic and political consequences of the IEEPA tariffs are astonishing.” Thus, stated the Chief Justice, the Government must cite “clear congressional authorization” for the tariffs, and IEEPA does not provide that authority. Defending application of the major questions doctrine, the Chief Justice rejected arguments from the Government and the principal dissent that it does not apply to “emergency statutes” or where the President is exercising authority over foreign affairs or national security. Put succinctly, “[t]here is no major questions exception to the major questions doctrine.”
The full majority then analyzed IEEPA’s text and concluded that the power to “regulate . . . importation” does not grant the power to impose tariffs. The Court noted that IEEPA authorizes a lengthy list of powers, including the authority to “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit . . . importation or exportation.” 50 U.S.C. §1702(a)(1)(B). Yet it does not mention tariffs or duties. “[H]ad Congress intended to convey the distinct and extraordinary power to impose tariffs, it would have done so expressly—as it consistently has in other tariff statutes.” And although taxes “may accomplish regulatory ends,” the term “regulate” “is not usually thought to include[] taxation.” The Government could not identify any statute where it did. Where Congress authorizes tariffs, it does so with explicitly and with “careful restraints.” The Court also concluded that “tariffs . . . are different in kind, not degree, from the other authorities in IEEPA.” None of IEEPA’s authorities include the power to raise revenue.
The Court rejected the argument that Congress had incorporated a contrary judicial definition of the phrase “regulate . . . importation.” The Government and the principal dissent cited a 1975 decision by a specialty intermediate appellate court that had interpreted IEEPA’s predecessor statute to authorize limited tariffs. The Court was not convinced that this interpretation was sufficiently “well-settled” at the time of IEEPA’s enactment. The Court was also not persuaded by the Government’s reference to the Court’s wartime precedents or precedents interpreting federal statutes with more sweeping language than IEEPA.
Justice Gorsuch authored a 46-page concurrence supporting application of the major questions doctrine. He asserted that it safeguards congressional lawmaking power “against executive encroachment.” Justice Gorsuch addressed in turn the contrary approaches taken by his fellow Justices. To start, he disagreed with Justices Kagan, Sotomayor, and Jackson that ordinary tools of statutory interpretation would produce the same result. He suggested that these Justices were “[p]ast critics of the major questions doctrine” but they did not seem to “object to its application in this case.” He cited his colleagues’ dissenting opinions in West Virginia and Nebraska and in two other recent cases. But “when it comes to IEEPA’s similarly broad language,” “they take a more constrained approach” that Justice Gorsuch suggests “looks remarkably like the major questions doctrine’s” clear-authority rule. He rejected his colleagues’ view that the doctrine is a “novelty without basis in law.” Justice Gorsuch cited the English common law of corporations, early American corporate and agency law, and cases involving railroad commissions and other early administrative law cases to support that executive officials must cite clear authority to exercise extraordinary powers. The Court experimented with a different approach with Chevron deference, but in its absence, the major questions doctrine prevails. It is not “rooted in an anti-administrative-state stance,” he said; it is “pro-Congress.”
Justice Gorsuch also disagreed with Justice Barrett’s view that “the major questions doctrine is nothing more than routine statutory interpretation.” The doctrine does more work than “commonsense principles of communication.” Finally, Justice Gorsuch disagreed with the dissenting Justices’ view that IEEPA provides clear authority for tariffs and the major questions doctrine doesn’t apply because this case involves “foreign affairs.” On the former point, Justice Gorsuch found that “three of the four clues the dissent relies on cut against it” and that the reasoning of the Chief Justice’s and majority opinion stand unrebutted. On the latter point, Justice Gorsuch emphasized that “the President concedes that he does not enjoy independent Article II authority to impose tariffs in peacetime. . . . Therefore, the President relies entirely on power derived from Congress, and that means the major questions doctrine applies in the normal way.” The dissent’s claim that a foreign-affairs exception to the doctrine applies any time the President uses “a ‘too[l]’ to ‘incentivize a change in behavior by allies . . . or enemies’” would, said Justice Gorsuch, “have (enormous) consequences hard to reconcile with the Constitution.” Finally, Justice Gorsuch criticized Justice Thomas’s theory that Congress may completely delegate to the President most of its powers (namely, all those except powers that involve “rules setting the conditions for deprivations of life, liberty, or property”). Justice Gorsuch asserted that this theory conflicts with Article I of the Constitution, which vests “[a]ll legislative Powers herein granted” in Congress and no one else; with the Court’s precedents, which never hinted at Justice Thomas’s approach; and with our nation’s history.
Justice Barrett, concurring, contended that the major questions doctrine is “best understood as an ordinary application of textualism.” Part of this context is Article I of the Constitution’s vesting Congress with legislative powers. Rejecting the level of precision Justice Gorsuch would require of Congress, Justice Barrett suggested that “less obvious” textual clues can indicate Congress intended to delegate a major power. But none were present here. She also disagreed that the Court has adopted “a true clear-statement rule” and suggested that the major questions doctrine should not stand in the way of the Court embracing “the most natural reading of the statute.”
Justice Kagan filed a concurrence, joined by Justices Sotomayor and Jackson, embracing “ordinary tools of statutory interpretation.” Text is read in context. That involves “examining a delegation provision’s language, assessing that provision’s place in the broader statutory scheme, and applying a modicum of common sense about how Congress typically delegates.” The clear-authorization rule, which demands “something more explicit or specific than the statutory basis that would ordinarily suffice,” has been used in prior cases “to negate expansive delegations Congress had approved.” Justice Kagan responded to Justice Gorsuch by asserting that she “proceeds in this case just as [she] did in West Virginia and Nebraska” and that conventional statutory interpretation “will not always favor (or always disfavor) executive officials, given the variety of delegation schemes Congress adopts.” There is no need for the “major-questions thumb on the interpretive scales.”
Justice Jackson authored a concurrence to assert that the major questions doctrine invokes needless speculation. A statute’s legislative history shows “what Congress actually intended the statute to do.” Committee reports are among the best evidence, and in this case show that Congress did not intend for IEEPA to authorize tariffs. Justice Jackson cited House and Senate Reports that accompanied IEEPA and IEEPA’s predecessor-statute that show the purpose of the “regulate . . . importation” language was to allow the President to control or freeze foreign-owned property.
Justice Thomas authored a dissent to explain why IEEPA “is consistent with the separation of powers as an original matter.” He asserted that the nondelegation doctrine forbids Congress “from delegating core legislative power, which is the power to make substantive rules setting the conditions for deprivations of life, liberty, or property.” Congress may freely delegate other kinds of power, including the power to impose tariffs. He argued that at the founding, the power over foreign commerce was not a core legislative power and that it was often delegated to the President.
Justice Kavanaugh issued the principal dissenting opinion, which Justices Alito and Thomas joined. Noting that the only legal question is whether “tariffs are a means to ‘regulate . . . importation,’” Justice Kavanaugh asserted that the statutory text, history, and precedent demonstrate that, “[l]ike quotas and embargoes, tariffs are a traditional and common tool to regulate importation.” IEEPA authorizes the President to “regulate . . . importation” “by means of instructions, licenses, or otherwise.” The term “regulate” meant “to control” or “adjust by rule,” and imposing tariffs is clearly a way of doing so. The similar phrase “regulate commerce” has also been interpreted to encompass tariffs. Justice Kavanaugh highlighted a few historical points. President Nixon imposed a 10% tariff under IEEPA’s predecessor statute, and the Court upheld tariffs imposed by President Ford under a similarly worded statute. Historically, the President has been authorized to issue tariffs during wartime and national emergencies, and Congress has regularly authorized tariffs by statute. With this background, said Justice Kavanaugh, Congress would have understood when it enacted IEEPA that the power to regulate importation included tariffs. Also, common sense dictates that IEEPA would not have authorized the President to block imports and impose quotas or embargoes but not employ tariffs.
As to the major questions doctrine, Justice Kavanaugh asserted that IEEPA provides clear congressional authorization to issue tariffs. And in any event, contended Justice Kavanaugh, the major questions doctrine does not apply in cases like this. “In the foreign affairs realm, courts recognize that Congress often deliberately grants flexibility and discretion to the President to pursue America’s interests.” The dissent also noted that the President could issue some if not all of the challenged tariffs under other federal authorities, such as the Trade Expansion Act of 1962, the Trade Act of 1974, or the Tariff Act of 1930. Justice Kavanaugh concluded by noting that the process of refunding the billions of dollars collected under the unlawful tariffs “is likely to be a mess” and that the Court’s decision may cause uncertainty in trade arrangements.
Villarreal v. Texas, 24-557.
The Court unanimously held that a trial judge did not violate a defendant’s Sixth Amendment right to counsel when he allowed counsel to speak with the defendant during an overnight recess that interrupted the defendant’s testimony, but prohibited counsel from “managing” the defendant’s testimony during that time. David Villarreal testified in his own defense at his murder trial. His testimony was interrupted by a 24-hour recess. Before the recess, the trial judge acknowledged that Villarreal had a constitutional right to confer with counsel, but instructed defense counsel to “ask yourselves before you talk to [Villarreal] about something, is this something that—manage[s] his testimony in front of the jury?” Villarreal’s counsel raised a Sixth Amendment objection. The following day, Villarreal continued his testimony. He was ultimately convicted, and his conviction was affirmed on appeal. The Texas Court of Criminal Appeals interpreted the trial court’s qualified conferral order as “restrict[ing] discussions of [Villarreal’s] ongoing testimony and nothing else.” In an opinion by Justice Jackson, the Court affirmed.
The Court began with a review of the relevant precedent. It noted that the Sixth Amendment guarantees a fundamental right for criminal defendants to confer with counsel. But when a defendant chooses to testify at trial, he assumes the “criticisms and burdens” of a witness. And a court may prohibit counsel from influencing any witness’s testimony “in light of testimony already given.” For that reason, in Perry v. Leeke, 488 U.S. 272 (1989), the Court held that during a brief daytime recess that occurs during a defendant’s testimony, a court may outright prohibit the defendant from conferring with counsel. Such conversations are “virtually certain[]” to relate to ongoing testimony. Earlier though, in Geders v. United States, 425 U.S. 80 (1976), the Court held that a court could not altogether ban counsel from conferring with a defendant during an overnight recess in the middle of his testimony. That is because overnight breaks afford time to “discuss the events of the day’s trial,” make tactical decisions, and gather newly relevant information. The Court explained here that the difference in outcomes between Perry and Geders is “not simply because of the amount of time the recess lasts.” It is based on the “content of discussion that presumably occupies” each type of recess.
Because its precedents establish that the Sixth Amendment protects a defendant’s right to discuss only certain matters midtestimony, the Court concluded that the Sixth Amendment does not guarantee an “absolute and unqualified” right to confer with counsel during an overnight recess. A “shift” occurs “when a defendant becomes a witness.” “[F]or the duration of the defendant’s time on the stand, consultation about the testimony itself . . . sheds its constitutional protection.” “This means that, as even Texas acknowledges, a court cannot prohibit a lawyer from asking his client about a new potential witness or a piece of evidence mentioned for the first time during the defendant’s testimony, or a defendant from asking his lawyer about compliance with the court’s evidentiary rulings. What it may prohibit is discussion of testimony for its own sake. Such discussion threatens to shape the defendant’s testimony and undermine the trial’s search for the truth.” (Citation omitted.)
Here, the trial judge’s order prohibiting counsel from “managing” the defendant’s testimony struck the right balance. The Court was not persuaded that its rule would chill protected discussions between defendants and counsel. “[C]onsultation about the testimony itself” is a recognized tool that lawyers should have no difficulty refraining from using during an overnight midtestimony recess.
Justice Alito authored a concurring opinion to “set out the framework under which courts should analyze limitations” on midtestimony conferral. He noted that when the Sixth Amendment was adopted, criminal defendants could not testify in their own defense. When the Court recognized such a right, it relied primarily on the Due Process Clause. It also made clear that the right to testify is subject to limitations to preserve the truth-seeking functions of trial. When a defendant testifies, he must “speak directly to the jury in his own words” without coaching by counsel. Justice Alito argued that a recess should not alter this rule. Thus, during a midtestimony overnight recess, counsel could say: “We should seek a deal because there is a strong chance the jury will find you guilty.” But counsel could not say: “We will really need to secure a deal unless you clean up mistakes A, B, and C that you made today on the stand.” Counsel may not seek to “improv[e] or shap[e] the defendant’s ongoing testimony.”
Justice Thomas filed an opinion concurring in the judgment, joined by Justice Gorsuch. In Justice Thomas’s view, the trial court’s qualified conferral order complied with the Court’s existing precedents. The Court has interpreted the Sixth Amendment to “guarantee a defendant a right to discuss with counsel matters other than his ongoing testimony.” Accordingly, “the trial judge’s order was constitutional because Villarreal could discuss matters other than his testimony.” He argued that the Court’s approach in this case unnecessarily expanded its precedents. The Court permitted discussion of the defendant’s testimony so long as it is “incidental to other topics.” But the Court has previously embraced a “categorical” prohibition on “discussion of ongoing testimony.” In backing away from this categorical approach, the Court discussed circumstances “not presented here.” It also applied a methodology requiring conflicts such as these to be resolved in favor of the right to counsel. Under the Court’s precedents, however, a criminal defendant who has assumed the role of a witness is subject to the same rules as any other witness.
U.S. Postal Service v. Konan, 24-351.
By a 5-4 vote, the Court held that the United States could not be sued for money damages for postal workers’ intentional failure to deliver mail. The Federal Tort Claims Act (FTCA) excepts from its waiver of the United States’ sovereign immunity “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” 28 U.S.C. §2680(b). The Court held that “this exception applies when postal workers intentionally fail to deliver the mail”―meaning that sovereign immunity bars claims based on such intentional conduct. Respondent Lebene Konan sued the U.S. Postal Service, alleging that postal workers intentionally failed to deliver her mail based on racial animus and that the mail disruptions resulted in a loss of rental revenue. The district court dismissed the complaint based on sovereign immunity. The Fifth Circuit reversed, holding that “the terms ‘loss,’ ‘miscarriage,’ and ‘negligent transmission’ do not encompass the intentional act of not delivering the mail at all.” In an opinion by Justice Thomas, the Court reversed and remanded.
The Court began by observing that the postal exception to the waiver of the United States’ sovereign immunity reflects a judgment that tort suits are not the proper redress for harms of “the sort primarily identified with the Postal Service’s function of transporting mail throughout the United States.” “Given the frequency of postal workers’ interactions with citizens, those suits would arise so often that they would create a significant burden for the Government and the courts.” The Court then reviewed the definitions of “miscarriage” and “loss” at the time of the FTCA’s enactment in 1946 to conclude that the postal exception applies to intentional actions. The Court defined “miscarriage” as including “any failure of mail to properly arrive at its intended destination . . . regardless of why it happened.” A “willful failure to deliver” mail therefore results in a “miscarriage” of mail. The Court declined to limit “miscarriage” to negligent acts. It noted that courts in the early 20th century recognized a “miscarriage” of a litigant’s mail as an excuse, without investigating whether the carrier acted intentionally. It also cited two news reports that described stolen or destroyed letters as “miscarried” mail.
Similarly, the Court defined the “loss” of mail as “a deprivation of mail, regardless of how the deprivation was brought about.” Thus, like “miscarriage,” the willful refusal to deliver mail could result in the “loss” of mail. The Court analogized the term “loss” to suffering a tax “loss” from embezzlement or an army suffering a “loss” of soldiers after battle. The Court cited news reports describing the “loss” of mail due to theft. And because the subject of the postal exception is “claim[s] arising out of” the loss, miscarriage, or negligent transmission of mail, it does not apply only when “the Postal Service lost, miscarried, or negligently transmitted” the mail. It describes “kinds of harms, not kinds of actions by the postal workers.” The Court noted that this interpretation of “loss” is consistent with the principal provision of the FTCA that waives sovereign immunity, which requires a plaintiff to allege a “loss of property . . . caused by the negligent or wrongful act or omission” of a federal employee. §1346(b)(1). The Court rejected the argument that the term “negligent” transmission similarly qualifies miscarriage and loss. And acknowledging that the terms “loss” and “miscarriage” “substantially overlap,” the Court concluded that “Congress likely used broad, overlapping terms to better keep complaints about mail delivery out of court.”
Justice Sotomayor filed a dissenting opinion, which Justices Kagan, Gorsuch, and Jackson joined. She noted that the postal exception is narrower than neighboring provisions like the exception for “claim[s] arising from the activities of the Tennessee Valley Authority.” §2680(i), (l). She also noted that the Court has recognized that the Government is not immune from all claims involving the Postal Service. It may face liability for claims arising from car accidents and slip and falls caused by postal employees. Justice Sotomayor argued that rather than describing “harms,” the postal exception outlines “three categories of misconduct that postal employees can commit without incurring liability for the United States.” This construction is consistent with most other FTCA exceptions, which focus on Government conduct. Intentional misconduct falls outside the exception’s scope for a few textual reasons.
First, Justice Sotomayor said, Congress’s choice to include “negligent transmission” implies that at least some intentional misconduct related to transmission can give rise to tort liability. The majority’s view, however, is that Congress chose to “sweep that conduct back into the exception through ‘miscarriage’ and ‘loss.’” “It is difficult to see how a postal employee could intentionally transmit mail wrongfully . . . without falling within these definitions of ‘miscarriage’ or ‘loss.’” And “loss” is ordinarily unintentional. In holding otherwise, the Court shifted the “harm” from “harms that befall the mail to harms that befall Konan.” Justice Sotomayor also argued that “loss” as used in the postal exception and “loss” in the FTCA’s sovereign immunity waiver are “used in two different ways” and thus carry “two different meanings.” Similarly, said Justice Sotomayor, “miscarriage” ordinarily covers only negligence or inadvertence. The Postal Laws and Regulations that pre-dated the FTCA used the word “detention” for intentional withholding, rather than miscarriage. And “under the majority’s broad definition of ‘miscarriage,’ the words ‘loss’ and ‘negligent transmission’ become no more than misleading surplusage.” Rejecting the majority’s view that allowing this claim to proceed would lead to a barrage of lawsuits, Justice Sotomayor argued that the FTCA and ordinary litigation tools offer adequate safeguards; and, in any event, that policy judgment is reserved for Congress.
Hain Celestial Group v. Palmquist, 24-724.
The Court unanimously held that a federal district court’s final judgment as to completely diverse parties must be vacated when an appellate court later determines that the district court erred by dismissing a nondiverse party at the time of removal. The Palmquists, parents of a child with developmental disorders linked to heavy-metal poisoning, sued Hain Celestial Group and Whole Foods Market in Texas state court. They alleged that Hain produced baby food with elevated levels of heavy metals and that Whole Foods mispresented Hain’s products as safe for consumption when it sold the baby food to the Palmquists. Hain removed the case to federal court based on diversity of citizenship. At the time of removal, Whole Foods was headquartered in Texas and the Palmquists were also Texas citizens. Hain moved to dismiss Whole Foods as an improperly joined party. Agreeing that the Palmquists failed to allege a facially plausible claim against Whole Foods, the district court dismissed Whole Foods and denied the Palmquists’ motion to remand. At the close of trial, the district court granted Hain’s motion for judgment as a matter of law. The Palmquists appealed the judgment and the court’s improper-joinder decision. The Fifth Circuit reversed, finding that the Palmquists plausibly alleged a claim against Whole Foods. Because the district court improperly dismissed Whole Foods as a party, the Fifth Circuit concluded that the district court lacked jurisdiction and vacated its final judgment. In an opinion by Justice Sotomayor, the Court affirmed and remanded.
The Court first noted that it was undisputed that Whole Foods was a proper party and that absent the district court’s error in dismissing Whole Foods, the court would have lacked jurisdiction. It then explained that federal courts are courts of limited jurisdiction. Generally, if a district court lacked jurisdiction to hear a dispute when it was filed or removed to federal court, the court’s final judgment must be vacated. The only exception is if, at some point before the district court enters final judgment on the merits, the court “cures” the jurisdictional defect. In those cases, vacatur is not required. See Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996).
The Court then concluded that the district court’s erroneous dismissal of Whole Foods did not “cure” the jurisdictional defect. Whole Foods was “only temporarily and erroneously removed from the case; it was not ‘gone for good.’” Rejecting Hain’s argument that the parties had been completely diverse at the time of final judgment, the Court noted that it “has never held that a district court can create jurisdiction through its own mistakes.” The Court was also not persuaded to excuse the uncured jurisdictional defect because it would be inefficient to require a new trial. The Court acknowledged that a court may exercise its discretion to order the dismissal of a nondiverse party under Federal Rule of Civil Procedure 21. But it explained that the court must consider whether the dismissal would prejudice any party before doing so. The plaintiff is the “master of the complaint,” with a right to its choice of forum. Using Rule 21 to dismiss a nondiverse party “over the plaintiff’s consistent objections, to dismiss a properly joined defendant,” would prejudice the plaintiff. Thus, the Fifth Circuit correctly vacated the district court’s judgment.
Justice Thomas filed a concurring opinion to note his skepticism of the “improper joinder” doctrine. “The doctrine appears to allow federal courts to enlarge their jurisdiction by assessing the merits of claims over which they lack jurisdiction.” It prompts a “Rule 12(b)(6)-type analysis.” It is ostensibly based on the Court’s “fraudulent joinder” precedents, but those cases “concerned only whether the plaintiff avoided federal diversity jurisdiction by bad faith or actual fraud—such as lying about a party’s conduct or citizenship.” In Justice Thomas’s view, federal courts likely cannot dismiss nondiverse parties based on merits determinations.
GEO Group v. Menocal, 24-758.
In Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18 (1940), the Court held that a federal contractor cannot be held liable for conduct the government has lawfully “authorized and directed” the contractor to perform; liability may attach only if the authorization was unlawful or the contractor acted outside its scope. The Court unanimously held here that a contractor may not take an immediate appeal of a district court’s pretrial order denying Yearsley protection.
GEO Group operates a detention facility under contract with U.S. Immigration and Customs Enforcement (ICE) in Aurora, Colorado. Alejandro Menocal was detained in this facility. He brought a class action lawsuit alleging that two GEO policies violated prohibitions on forced labor and unjust enrichment. GEO filed a motion for summary judgment and argued that the case should be dismissed under Yearsley because ICE “authorized and directed” the two challenged policies. The district court disagreed and denied GEO’s motion. GEO immediately filed an appeal, which the Tenth Circuit dismissed for lack of jurisdiction. The court concluded that an order denying Yearsley protection does not qualify for interlocutory review under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). The court found that such an order is not “completely separate from the merits” of the suit because examining what the government directed the contractor to do is also relevant to the “lawfulness of the contractor’s challenged actions.” In an opinion by Justice Kagan, the Court affirmed and remanded.
The Court first explained the circumstances in which a non-final order may be immediately appealable. Although 28 U.S.C. §1291 grants federal courts of appeals jurisdiction to review only “final decisions of the district courts,” under the collateral-order doctrine recognized in Cohen, a pre-judgment order may be treated as “final” and immediately appealable if it “(1) conclusively determine[s] the disputed question, (2) resolve[s] an important issue completely separate from the merits of the action, and (3) [is] effectively unreviewable on appeal from a final judgment.” Van Cauwenberghe v. Biard, 486 U.S. 517, 522 (1988).
The Court then explained that whether a defendant may immediately appeal an order denying a pretrial request to dismiss turns on whether he advances “a defense to liability or instead an immunity from suit.” In mounting a defense, a party argues that “his conduct was not unlawful.” In contrast, a defendant may assert immunity regardless of whether he violated the law. This is true even for qualified immunity, which asks whether the defendant violated a “clearly established” law. Qualified immunity thus “offers protection even when the defendant acts unlawfully.” Unlike a defense, which results in a “judgment of non-liability,” an immunity is an “entitlement not to stand trial” that saves the defendant the “burdens of litigation.” This difference matters for the third Cohen factor because a right not to stand trial “would be irretrievably lost absent an immediate appeal.”
With that backdrop, the Court concluded that Yearsley offers a defense to liability and is thus not appealable under Cohen. In Yearsley, the Court held that a government contractor is not liable unless “he exceeded his authority” or the authority “was not validly conferred.” Therefore, a contractor invoking Yearsley mounts a “merits defense—that it is not liable because it has complied with the law.” Yearsley does not “shield unlawful conduct, the way that all immunities do.” The Court rejected GEO’s view that Yearsley confers “derivative sovereign immunity.” Sovereign immunity “belongs alone to the Government” and is “not transferrable” to agents and contractors. The Court concluded that because Yearsley offers a merits defense, an order denying its protection is not “effectively unreviewable on appeal from a final judgment” under the third Cohen factor. Thus, the Tenth Circuit lacked jurisdiction over GEO’s appeal.
Justice Thomas filed an opinion concurring in part and concurring in the judgment. Although he agreed that Yearsley establishes a merits defense and not an immunity, he argued that the Court need not and should not apply Cohen’s collateral-order doctrine because it “conflicts with Congress’s authority over federal appellate jurisdiction.” Congress has authorized “certain exceptions to the final judgment rule” and allowed the Court to “create further exceptions through rulemaking.” But the collateral-order doctrine improperly “allows judges to create additional exceptions by judicial opinion.”
Justice Alito filed an opinion concurring in the judgment. He agreed that an order denying a Yearsley defense is not immediately appealable. But he argued that this result does not rest “solely on the fact that Yearsley’s applicability ‘turns on the defendant’s conduct’s legality.’” Rather, Justice Alito maintained, the collateral-order doctrine allows defendants to “appeal the denial of a defense immediately when doing so is necessary to vindicate important constitutional or public-policy interests.” Summarizing the development of Cohen’s “effectively unreviewable” requirement, Justice Alito argued that assessing whether a defense constitutes an immunity requires evaluating the “value of the interests” involved. He cited cases including Nixon v. Fitzgerald, 457 U.S. 731 (1982), where the Court held that an order denying Presidential immunity was immediately appealable due to separation-of-powers concerns, and Mitchell v. Forsyth, 472 U.S. 511 (1985), which held that orders denying qualified immunity are immediately appealable to avoid distraction, overdeterrence, and timidity in government service.
Applying that principle here, Justice Alito concluded that permitting immediate appeals of Yearsley denials “is not necessary to vindicate any sufficiently important constitutional or public-policy interests.” It would not safeguard separation-of-powers more than in any other case involving a government contractor, and it would not protect “sovereign-dignity interests.” And because government contractors can invoke qualified immunity, it is not necessary to promote other public interests. Finally, he argued that the majority’s approach cannot account for immunities that turn on the legality of the defendant’s conduct, like qualified immunity, or defenses that do not, like the Federal Tort Claims Act’s judgment bar and the defense of vindictive prosecution.
Cases Granted Review
Suncor Energy, Inc. v. County Commissioners of Boulder County, 25-170.
The Court will decide (1) “whether federal law precludes state-law claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate,” and (2) “whether the Court has statutory and Article III jurisdiction to hear this case.” The City of Boulder, Colorado and Boulder County brought state-law tort claims seeking monetary damages against three Suncor Energy companies and Exxon Mobile (collectively, Suncor) to recover for harms caused by climate change. Boulder alleged that Suncor knowingly contributed to climate change through its fossil fuel activities and intentionally misled the public about the dangers of fossil fuels. Suncor moved to dismiss, arguing that federal law preempts state-law claims seeking relief for harm caused by interstate emissions. The trial court denied Suncor’s motion. On a petition for interlocutory review, the Colorado Supreme Court affirmed. 2025 WL 1363355. The court held that neither federal common law nor the Clean Air Act (CAA) preempted Boulder’s state-law claims.
Suncor argues that Boulder’s claims “fall squarely within the inherently federal areas of interstate pollution and foreign affairs.” Thus, “the Constitution precludes those claims from proceeding under state law.” In Suncor’s view, federal common law exclusively governed disputes about interstate pollution until the passage of the CAA. And the CAA’s displacement of federal common law did not open the door to state-law claims challenging interstate emissions. Instead, the CAA empowers the Environmental Protection Agency to regulate greenhouse-gas emissions. Similarly, Suncor argues that Boulder’s claims related to international pollution cannot proceed because the federal government controls foreign relations. Suncor cites International Paper Co. v. Ouellette, 479 U.S. 481 (1987), which held that the Clean Water Act (CWA) preempts state claims related to interstate emissions. The Ouellette Court noted that “[i]n light of this pervasive regulation and the fact that the control of interstate pollution is primarily a matter of federal law,” “the only state suits that remain available are those specifically preserved by the Act,” which only include suits related to emissions originating within the state.
On the second question presented, Suncor argues that the Court has statutory and Article III jurisdiction. Under 28 U.S.C. §1257(a), the Court may review the “[f]inal judgments” of state courts. Because the Colorado Supreme Court stated it was exercising “original jurisdiction” to hear this dispute, under Atlantic Richfield Co. v. Christian, 590 U.S. 1 (2020), it was a “self-contained case, not an interlocutory appeal.” Suncor further asserts that this case falls under the fourth exception to the final judgment requirement recognized in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). Suncor “might prevail on the merits on nonfederal grounds,” such that review of the federal issue would be “render(ed) unnecessary.” Further, reversal on the federal issue would end the litigation because Boulder has only asserted claims related to interstate emissions. Finally, Suncor argues that the Court has Article III jurisdiction because Boulder would have standing to bring the same claims in federal court, and under ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989), the decision below injures Suncor by “by eliminating a threshold defense to a lawsuit seeking billions of dollars in damages.”
On the first question, Boulder urges the Court to reject Suncor’s theory “that because courts once created federal common law for interstate air pollution, the Constitution requires such questions to be governed exclusively” by federal law. Congress determines whether its federal legislation will preempt state law. Suncor’s proposed “constitutional preemption” principle that “inherently federal areas must turn on federal rules of law” is unprecedented and would “risk courts mistaking their own policy intuitions for what the structure of the Constitution supposedly demands.” Boulder similarly counters Suncor’s foreign policy theory. In its view, the Court should decide whether the CAA preempts Boulder’s state-law claims and apply standard preemption principles, including the presumption against preemption. Boulder argues that the Court applied these principles in Oullette when it assessed what was “specifically preserved by the Act.” Here the CAA does not preempt Boulder’s state-law claims because, unlike in Oullette, Boulder challenges “upstream activity,” which the CAA does not regulate. Boulder analogized its case to Virginia Uranium, Inc. v. Warren, 587 U.S. 761 (2019), where the Court found that a federal law regulating uranium “milling, transfer, use and disposal” did not preempt a state ban on uranium mining activities. “Simply stating that state-law claims have an indirect effect on federally regulated activities can never be sufficient for preemption.”
As to the second question, Boulder argues that Colorado law suggests that the Colorado Supreme Court used “original jurisdiction” as a shorthand to refer to its standard appellate jurisdiction. Thus, Atlantic Richfield Co. does not apply. Boulder further argues that the fourth Cox exception does not apply because Suncor might prevail on any number of its other federal defenses, reversal on this issue would not preclude further litigation related to emissions originating within the state, and denying review would not “seriously erode federal policy.” It further argues that, “[e]ven if it applied, the fourth Cox exception should be overruled. Cox does not pretend that cases falling within the fourth exception can plausibly be described as ‘final’ within any normal or historic sense of the term.” As to Article III jurisdiction, Boulder argues that it is not clear Boulder would have had the requisite Article III standing to bring this case in federal court or that the Colorado Supreme Court’s decision declining to reverse a denial of a motion to dismiss injured Suncor’s “tangible legal rights.”
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Lauren Watford, Supreme Court Fellow
- Alex Tucker, Supreme Court Fellow
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