March 23, 2026 | Volume 33, Issue 8
This Report summarizes opinions issued on March 4, 2026 (Part I); and cases granted review on March 9 and 16, 2026 (Part II).
Opinions
Galette v. New Jersey Transit Corp., 24-1021.
The Court unanimously held that the New Jersey Transit Corporation (NJ Transit) is not an arm of the State of New Jersey for interstate sovereign immunity purposes. After NJ Transit buses struck and injured two individuals, Jeffrey Colt in New York City and Cedric Galette in Philadelphia, the injured plaintiffs sued NJ Transit in their respective state courts. NJ Transit raised an interstate sovereign immunity defense and moved to dismiss both suits. Applying a three-factor test, the New York Court of Appeals ruled that NJ Transit is not an arm of New Jersey and thus is not entitled to sovereign immunity. The Pennsylvania Supreme Court applied a six-factor test and reached the opposite result. In an opinion by Justice Sotomayor, the Court affirmed the judgment of the New York Court of Appeals, reversed the judgment of the Pennsylvania Supreme Court, and remanded both cases.
The Court began by outlining the relevant considerations. To assess whether a state-created entity like NJ Transit is an arm of the state, and thus entitled to the state’s sovereign immunity, courts should consider “whether the State structured the entity as a legally separate entity liable for its own judgments.” “The clearest evidence” is if the state “created a corporation with the traditional corporate powers to sue and be sued, hold property, make contracts, and incur debt.” Indeed, if a state chooses to create such a corporation, “courts should presume that the corporation enjoys all the advantages and disadvantages of separate legal status, including the fact that the corporate entity is no longer part of the State itself.” Beyond the corporate form, courts may consider whether state law otherwise indicates a legal separation. And “[i]f the State is formally liable for judgments against an entity, that entity is more likely to be an arm of the State.” Absent formal liability, the mere fact that a state chose to fund an entity or indemnify it does not mean that the entity is part of the state itself. The Court also explained that although “courts may consider the degree of control the State exerts over the entity,” “courts should do so with caution.” States retain “ultimate control” over every state-created entity, and a state “might exercise control through various formal and informal levers,” complicating the analysis. Thus, even where a state exercises “significant control” over an entity, the Court has “never once found a corporation that was liable for its own judgments to be an arm of the State.”
With these principles in mind, the Court concluded that NJ Transit is not an arm of the state. “New Jersey structured NJ Transit as a legally separate entity,” and “NJ Transit pays its own expenses and is responsible for its debts and liabilities.” Specifically, the New Jersey legislature created NJ Transit as a “body corporate and politic with corporate succession.” NJ Transit can sue and be sued, enter contracts, acquire property, raise funds, and own and control any “corporate entity” that it “acquired” or “formed,” among other powers. It also must pay its own debts and liabilities. Although New Jersey law refers to NJ Transit as a state “instrumentality,” not all state instrumentalities are immune from suit. And other New Jersey statutes do not consider entities with sue-and-be-sued status like NJ Transit to be part of the state.
The Court also concluded that “the control that New Jersey exerts over NJ Transit does not change the overall conclusion here.” This control, the Court found, is “substantial.” The Governor can appoint and remove members of NJ Transit’s Board of Directors, the Chairman of the Board is a member of the Governor’s cabinet, and the Governor may veto the Board’s actions. But NJ Transit operates independently from the Department of Transportation and exercises its “independent judgment.” And the Governor must have cause to remove 8 of the 13 board members. The Court concluded that “[t]his level of control does not meaningfully affect NJ Transit’s status, given the fact that it is a legally separate corporation and is responsible for its own judgments.”
In reaching this conclusion, the Court addressed several of NJ Transit’s counterarguments. The Court agreed with NJ Transit that the “corporation” label is not dispositive, but emphasized that the corporate form, including the power to sue-and-be-sued, “weighs strongly against arm-of-the-State status.” The Court was not persuaded that NJ Transit’s performance of essential government functions makes it an arm of New Jersey. The relevant question is “whether the State has chosen to serve those public functions through its own apparatus or through that of a legally separate entity.” Further, assessing whether a service qualifies as an essential government function can be “unsound” and “unworkable.” Similarly, NJ Transit’s suggestion that courts should consider not only formal liability, but a state’s practical financial relationship with an entity is unsupported and could lead to arbitrary and inconsistent results. New Jersey’s funding for NJ Transit illustrates this problem because it “has oscillated anywhere from 15% to 46% of [NJ Transit’s] budget.”
Finally, the Court highlighted several problems with the proposal by 23 amicus states to treat a state’s own characterization of an entity as dispositive. Such a rule would focus on a label rather than an entity’s structure and would require the Court to pick one state-ascribed label over another―here, “instrumentality” over “body corporate.” Thus, the states’ proposed rule would not yield predictable results. Instead, the rule that would promote consistency is that “state-created corporations that are formally liable for their own judgments” are not “arms of the States that created them.”
Urias-Orellana v. Bondi, 24-777.
The Court unanimously held that the Immigration and Nationality Act (INA), 8 U.S.C. §1252(b)(4)(B), requires federal courts of appeals reviewing orders of removal to “review the entirety of the agency’s conclusions—both the underlying factual findings and the application of the INA to those findings—for substantial evidence.” Douglas Urias-Orellana, his wife, and their minor child (petitioners) entered the United States without authorization and claimed asylum as a defense to removal. At the removal hearing, Urias-Orellana testified that he suffered death threats from a “sicario” (hitman) in his hometown in El Salvador. The sicario vowed to kill every member of Urias-Orellana’s family and shot two of his half-brothers. Urias-Orellana relocated with his wife and child several times within El Salvador. After each move, Urias-Orellana received death threats by men demanding payment. When he returned to his hometown for a visit, he was physically assaulted by one of these men. After moving a fourth time and hearing that men were asking around about newcomers to the town, the family left for the United States.
The Immigration Judge (IJ) credited Urias-Orellana’s testimony but concluded that the undisputed facts did not show he was “unable or unwilling to return” to El Salvador “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” under 8 U.S.C. §1101(a)(42)(A), the showing required to make an individual a “refugee” eligible for asylum. Urias-Orellana’s testimony could not support a past-persecution claim without evidence that the death threats cased “significant actual suffering or harm.” Likewise, his testimony had not established a well-founded fear of future persecution because he was able to relocate safely within El Salvador if he avoided his hometown or nearby areas. The IJ issued a removal order for Urias-Orellana and his wife and minor child (whose claims were derivative of Urias-Orellana’s). The Board of Immigration Appeals (BIA) affirmed. Petitioners sought further review. The First Circuit limited its review to “whether the Agency conclusion [that petitioners] had not demonstrated past persecution or a well-founded fear of future persecution was supported by substantial evidence.” The court concluded that Urias-Orellana’s testimony did not compel a finding of persecution under §1101(a)(42)(A) and affirmed the BIA’s decision. In an opinion by Justice Jackson, the Court affirmed.
The Court noted that when evaluating removal orders, “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” §1252(b)(4)(B). This has been interpreted as a substantial-evidence standard of review. Accordingly, courts review the agency’s factual findings for substantial evidence. But the federal courts of appeals have split over how to review the agency’s determination that a given set of facts does not qualify as persecution under §1101(a)(42)(A). Some courts review the agency’s application of the law to the facts for substantial evidence. Others apply de novo review.
The Court concluded that its precedents and the statutory history of the INA compel the conclusion that substantial-evidence review applies to the entire inquiry, including the agency’s persecution determination. In INS v. Elias-Zacarias, 502 U.S. 478 (1992), the Court held that “to obtain judicial reversal” of the agency’s persecution determination, an asylum applicant “must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” This is consistent with how substantial-evidence review works in the administrative context. At the time, the INA provided that the agency’s “findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive.” 8 U.S.C. §1105a(a)(4) (1988 ed.). Elias-Zacarias made clear that this provision applied to “not only the agency’s factual findings but also the application of those findings to the statutory standard for persecution.”
Following Elias-Zacarias, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). IIRIRA added §1252(b)(4)(B), which codified the Elias-Zacarias standard. Congress also limited review of certain types of removal orders and provided that some agency determinations are “conclusive unless manifestly contrary to the law.” §§1252(b)(4)(C), (D). Therefore, “it would make little sense to interpret subparagraph (B) as expanding judicial review beyond the pre-IIRIRA practice of applying deference to agency persecution determinations.”
The Court rejected petitioners’ contention that courts should review BIA persecution determinations de novo. Petitioners noted that §1254(b)(4)(B) does not explicitly address “mixed questions of law and fact.” Elias-Zacarias and the subsequent passage of IIRIRA, however, suggest that such mixed questions are reviewed for substantial evidence. The Court was also unpersuaded by petitioners’ reference to cases establishing that a mixed question of law and fact can be a “question of law” exempt from the bar on judicial review under §1252(a). Section 1252(a) addresses the “court’s ability to review removal orders at all,” not the standard of review that applies to removal orders. As such, de novo review is not required.
Cases Granted Review
Noem v. Doe,25-1083 (25A952);
Trump v. Miot, 25-1084 (25A999).
At issue is whether two district courts properly postponed the administration’s termination of Temporary Protected Status (TPS) for Syrian nationals (Noem v. Doe) and Haitian nationals (Trump v. Miot). Subsumed within that general issue are two questions: (1) Whether the district courts had jurisdiction to postpone the terminations, where the statute provides for “no judicial review of any determination of the [Secretary] with respect to the designation, or termination . . . of a designation” of a foreign state for TPS; and (2) Whether the terminations were contrary to law or arbitrary and capricious. The Court consolidated the cases, granted the Solicitor General’s request to treat the stay applications as petitions for a writ of certiorari before judgment, and granted certiorari.
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 in the event of (1) ongoing armed conflict; (2) natural disaster resulting in substantial disruption of living conditions; or (3) “extraordinary and temporary conditions” that prevent the aliens’ safe return, and the Secretary determines that permitting them to remain in the country temporarily is not “contrary to the national interest of the United States.” When the Secretary designates a country for TPS, eligible individuals from that country who are physically present in the United States on the effective date of the designation (and continuously thereafter) generally may not be removed from the United States and are authorized to work for the duration of the country’s TPS designation.
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.” Following an enjoined termination of this status during the first Trump administration, the Secretary redesignated Haiti 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.” Meanwhile, in 2012, the Secretary designated Syria for TPS 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 a second condition: the existence of an “ongoing armed conflict.”
In 2025, then-Secretary Noem announced that the TPS designations for Syria and Haiti would be terminated, based on her assessment that they no longer meet the conditions for the designation. For Syria, she found that the situation no longer constitutes an ongoing armed conflict because after the Assad regime fell in December 2024, the “national level war” had reduced to “sporadic, isolated episodes of violence,” allowing 1.2 million Syrian nationals to return to the country. The Secretary further emphasized that the interim president had taken steps to establish a governing infrastructure and legal framework for the country, and stated that ongoing TPS designation would “complicate the administration’s broader diplomatic” attempts to normalize relations with Syria’s transitional government. As to Haiti, the Secretary stated that, while certain conditions “remain concerning,” including “escalating violence and gang violence” in the capital city, data showed that “parts of the country are suitable to return to.” She noted positive trends, including a new gang suppression force and a projected increase in Haiti’s GDP, and declared that ending TPS “reflects a necessary and strategic vote of confidence” in the “foreign policy vision of a secure, sovereign, and self-reliant Haiti.” For both countries, the Secretary concluded that continuing TPS designation was contrary to the national interest, since neither could provide the U.S. with the information necessary to meaningfully screen and vet the “identity, criminal history, or potential terrorist affiliations” of foreign nationals entering the United States.
Federal district courts postponed both terminations. In Doe, the District Court for the Southern District of New York found that the Secretary violated the Administrative Procedure Act (APA) by failing to engage in the requisite interagency consultation, and relied on impermissible post hoc justifications “divorced from country conditions” in Syria. The court further concluded that the termination was motivated by “undue political influence” in support of the President’s “anti-immigrant agenda.” Likewise, the District Court for the District of Columbia found the Haitian respondents likely to succeed on the merits of their APA claims in Miot. The court concluded that the administration’s termination of all TPS designations indicated that the termination of Haiti’s designation was not only arbitrary and capricious, but the preordained result of an invalid pattern and practice of summary TPS revocation. The Miot court also found a likelihood of success on the merits of an additional 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 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. The Second Circuit found a likelihood of success on the merits on the APA claim for insufficient interagency consultation, and determined that the government would not suffer irreparable harm from the order. The D.C. Circuit majority did not address the merits but concluded that the balance of equities favored respondents.
The Trump administration argues that, under 8 U.S.C. §1254a(b)(5)(A), the claims raised are not justiciable because Congress allowed for “no judicial review of any determination of the [Secretary] with respect to the designation, or termination . . . of a designation” of a foreign state for TPS. It asserts that the APA challenges “second-guess the underpinnings of Secretary Noem’s decisions,” and thereby constitute “attempts to end-run a judicial-review bar that forecloses those sorts of claims.” The administration also asserts a high likelihood of success on the merits of the APA and equal protection claims, arguing that the Secretary complied with the interagency consultation requirement and based her decision on an individualized assessment of both the designation requirements in the statute and the country conditions, rather than on any impermissible political or race-based motivation. The administration further argues that postponement in effectuating the Secretary’s determination would cause irreparable harm to the government’s national interest and foreign-relations considerations.
Respondents (Haitian and Syrian nationals) argue that the TPS terminations for Haiti and Syria were properly enjoined and the government is not entitled to a stay pending resolution of their claims. They assert that the balance of equities weighs strongly against a stay, as the challenged determinations would jeopardize the freedom, livelihood, and personal safety of thousands of individuals potentially subject to detention or deportation, as well as impose substantial public health, economic, and tax impacts upon the communities from which they would be removed. They further contend that the administration is unlikely to succeed on the merits. Regarding justiciability, they argue that §1254a(b)(5)(A) does not bar their challenges concerning “how the Secretary went about making her determination” because they are procedural, not substantive. Respondents also allege that the Secretary’s determinations did not comply with the procedural mandates of the statute, arbitrarily and capriciously failed to objectively consider evidence of dire conditions in the designated countries, and stemmed from an indiscriminate practice and policy of eliminating all TPS designations based on a political hostility towards immigration and (in the case of Haiti) a racial animus against nonwhite foreign migrants.
Department of the Air Force v. Prutehi Guahan, 25-579.
The Court will consider “(1) Whether the federal government’s submission to a state or territorial regulator of an application to renew a [Resource Conservation and Recovery Act of 1976 (RCRA)] permit is ‘final agency action’ that is immediately reviewable under the Administrative Procedure Act [(APA)], 5 U.S.C. 704. (2) Whether the federal government must comply with the general environmental-review procedures of the National Environmental Policy Act of 1969 [(NEPA)], 42 U.S.C. 4321 et seq., before submitting a permit-renewal application under RCRA, which sets forth its own specific procedures to review environmental impacts in the context of hazardous-waste treatment.”
NEPA requires federal agencies to prepare a statement considering the environmental impacts of major federal actions. Meanwhile, RCRA regulates hazardous waste. Under RCRA, the Environmental Protection Agency may authorize state and territorial agencies to administer permitting programs for hazardous waste facilities, including those operated by the federal government. Since the early 1980s, the Air Force has operated a waste-treatment facility to dispose of military munitions at Anderson Air Force Base in Guam. In 1982, the Guam EPA granted the Air Force a permit under RCRA to operate the Anderson facility and use open burning (OB) and open detonation (OD) processes. In compliance with the Guam EPA’s requirement to request a renewed permit every three years, the Air Force filed a permit renewal application in 2021. While that application is pending, the Air Force’s expired permit remains effective. After the Air Force asked to renew its RCRA permit, respondent Prutehi Guahan, a member-based organization in Guam, filed suit under the APA. Prutehi Guahan alleged that the Air Force violated NEPA by deciding to go forward with OB/OD operations without completing an Environmental Impact Statement or an Environmental Assessment that takes the requisite “hard look” at environmental impacts, considers reasonable alternatives, or provides an opportunity for public comment. The district court dismissed the complaint. It concluded that Prutehi Guahan failed to identify a final agency action under the APA. The court also held that RCRA displaces the Air Force’s obligations under NEPA. A divided panel of the Ninth Circuit reversed and remanded. 128 F.4th 1089.
The Ninth Circuit ruled that the Air Force’s decision to apply for a permit was a final agency action and the Air Force was required to comply with NEPA. On the former question, the court reasoned that the Air Force’s permit application “reflected the agency’s commitment to a particular location for and method of waste munitions disposal,” signifying “the endpoint in its decisionmaking process.” This commitment “determined the agency’s legal obligations.” Thus, the permit application satisfied both prongs of Bennett v. Spear, 520 U.S. 154 (1997). In holding that NEPA applies, the court reasoned that RCRA’s permitting process is dissimilar from NEPA’s environmental review requirements. And RCRA does not suggest that Congress intended for NEPA to not apply to federal operational agencies (as opposed to environmental regulatory agencies).
In its petition, the Air Force argues that its permit renewal request was “the initial step of an ongoing regulatory process,” through which the “Guam EPA may request that the Air Force review or supplement [its] application.” It also “entails no meaningful legal consequences until Guam EPA grants or withholds a new permit.” “The application is not itself a permit, and standing alone it authorizes nothing under the governing RCRA provisions.” It is like an agency’s submission of a census report to the President or an agency’s recommendations for military base closures, both of which carry no direct consequences absent presidential approval and are thus not final agency actions. Similarly, the mere continuation of the Air Force’s earlier permit does not determine any legal rights or obligations. Thus, the Air Force argues, neither of the Bennett conditions are satisfied. On the second question presented, the Air Force contends that it has never been required to comply with NEPA before renewing its permit for the Anderson facility. And as a matter of statutory interpretation, RCRA’s specific hazardous-waste procedures must govern over NEPA’s more general requirements. The fact that RCRA’s requirements do not exactly mirror NEPA’s shows that RCRA “strike[s] a workable balance . . . in a scheme tailored to meet the distinctive needs of hazardous-waste regulation.” This interpretation is consistent with EPA’s longstanding regulation providing that “all RCRA . . . permits are not subject to the environmental impact statement provisions of . . . the National Environmental Policy Act.” 40 C.F.R. 124.9(b)(6). Contrary to the Ninth Circuit’s reasoning, if the “EPA need not conduct a NEPA review before it grants a RCRA permit . . there is no sound reason to require such review when another federal agency simply applies for a permit.”
Prutehi Guahan responds that “[a]lthough Guam EPA has not yet approved [the Air Force’s] plan, that does not make the Air Force’s decision ‘tentative or interlocutory.’” The Air Force has committed itself to a particular course of action and the “mere possibility” that it might change its mind in response to Guam EPA’s feedback does not “suffice to make an otherwise final agency action nonfinal.” And, in any event, its application had the “concrete legal effect” of extending its prior permit. Further, the Air Force’s cited cases involve an agency delivering a “tentative recommendation” to a superior “about what that superior should do” and are inapposite. On the second question, Prutehi Guahan contends that NEPA applies because the Air Force’s proposal involved a major federal action, requiring the Air Force to report on environmental impacts and consider reasonable alternatives. 42 U.S.C. §4332(2)(C). Because the Air Force is not an environmental agency, its decision to conduct OB/OD operations did not necessarily involve environmental considerations. RCRA also does not mandate a process that is functionally equivalent to NEPA. As the Ninth Circuit recognized, NEPA requires environmental review before deciding to engage in an activity, and RCRA requires it after the decision has been made. Further, displacement by implication is disfavored. Finally, Prutehi Guahan argues that the Air Force’s reliance on the specific-over-general canon is misplaced because RCRA and NEPA are not irreconcilable. And the Air Force’s citation to EPA’s regulation is not relevant because it speaks only to EPA’s obligations as a permitting authority (not the obligations of a permittee), and other federal regulations assume that agencies must comply with NEPA even where an action requires a permit.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Lauren Watford, Supreme Court Fellow
- Alex Tucker, Supreme Court Fellow
- Michael Butera, Supreme Court Fellow
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