Category: All Posts

  • Supreme Court Green-Lights Trump’s Hasty Termination of Temporary Protected Status

    The Supreme Court allowed the Trump Administration to proceed with its hasty termination of temporary protected status for Haitian and Syrians. The ruling means that hundreds of thousands of Haitians and Syrians may not lawfully remain in the United States. At the same time, they cannot safely return to their home countries, both of which the State Department itself says are too dangerous for travel.

    While the ruling is preliminary–allowing the Administration to terminate TPS while the case moves forward on the merits in the lower courts–the practical effect is to end protection for Haitians and Syrians, and to invite to the Administration to hastily end protection for others, too.

    The case, Mullin v. Doe, tested whether the Trump Administration’s termination of TPS for Haitians and Syrians violated federal law and equal protection. (TPS is a program that offers temporary and lawful refuge in the United States for nationals of countries where the conditions are unsafe. The Secretary of Homeland Security first designated Haiti for TPS in 2010, following a devastating earthquake. The Secretary first designated Syria in 2012 because of the brutal and repressive government there. Secretaries have since redesignated the countries based on their dangerous conditions.)

    Plaintiffs brought two claims. First, the plaintiffs argued that the Secretary failed to “consul[t] with appropriate agencies of the Government” and “determine whether the conditions for [TPS] designation . . . continue to be met,” as required by 8 U.S.C. Sec. 1254a(b)(3)(A). The plaintiffs said that a single cursory and perfunctory e-mail exchange between DHS and the State Department–in which State replied simply that there were no foreign policy concerns with terminating TPS for Haiti and Syria–didn’t cut it.

    Next, the Haitian plaintiffs argued that the Administration’s termination was motivated at least in part by race, in violation of equal protection.

    As to the lack-of-consultation claim, the Court ruled that a statutory bar on judicial review prevented the Court from weighing in. 8 U.S.C. Sec. 1254a(b)(5)(A) bars “judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state.” The Court said that “determination” includes not just the final decision to terminate, but also any decision to consult (or not) under Section 1254a(b)(3)(A). As a result, the Court said that courts lack jurisdiction to review the Secretary’s compliance with the consultation requirement (and, by extension, any other procedural requirement leading to the final decision).

    As to the equal protection claim, the Court held that the many racially-tinged statements by the President and the Secretary–the plaintiffs’ principal evidence of racial discrimination–weren’t “overtly racial” and could have merely reflected President Trump’s general opposition to immigration and his particular antipathy to the TPS program. Because these statements didn’t reflect a racial motivation to end protection, the decision didn’t violate equal protection.

    Justice Thomas concurred, arguing that the statutory ban on judicial review covered the plaintiffs’ equal-protection claim (in addition to their statutory failure-to-consult claim) and that in any event “aliens have no equal protection rights against the Federal Government.”

    Justice Kagan wrote a scathing dissent, joined by Justices Sotomayor and Jackson. She argued that the statutory ban on judicial review only applied to the Secretary’s final decision, and not to procedural steps leading to the decision, including the consultation requirement. She noted that the majority’s reasoning effectively strips the statute of its procedural requirements and invites the Administration to ignore them: “the majority’s holding makes everything in the statute precatory, including procedural requisites whose enforcement would seem to fall smack in the middle of the judicial wheelhouse.”

    As to equal protection, Justice Kagan argued that the President’s statements about Haitians reflect a clear racial motivation behind the decision to terminate:

    the Haitian plaintiffs have carried their burden. The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print. [She recounts them, page 11.] The statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.

  • Court Halts Key Portions of Trump’s Elections Executive Order

    Judge Indira Talwani (D. Mass.) ordered the government to halt implementation of key portions of President Trump’s executive order on elections.

    The ruling prevents federal government agencies from compiling a list of eligible voters; it prevents the Postal Service from initiating rulemaking on mail-in ballots; and it halts the government from enforcing certain provisions against states.

    While the ruling is a sharp rebuke, the Trump Administration will surely appeal.

    The case, State of California v. Trump, tests the constitutionality of three portions of President Trump’s EO on “Ensuring Citizenship Verification and Integrity in Federal Elections.” Twenty-three states sued to halt these provisions:

    (1) Section 2 of the EO, which directs the Director of the U.S. Citizenship and Immigration Services, in coordination with the Commissioner of the Social Security Administration, to compile lists of citizens eligible to vote in a specific state, and directs the Department of Homeland Security to transmit these “Confirmed Citizen Lists” to each state at least 60 days before a scheduled federal election;

    Section 3, which directs the Postmaster General to initiate rulemaking regarding “election mail design,” to provide each state with a list of individuals “enrolled with the USPS,” and not to transmit a ballot of any voter who hasn’t been “enrolled”;

    Sections 2 and 5, which describe certain federal criminal offenses and require the Attorney General to prioritize the prosecution of state and local officials who issue ballots to individuals who are not eligible to voter; and

    Section 5, which strongly suggests that states retain voting records for five years.

    The court ruled that the President lacked authority to issue the EO in each of these areas.

    The court started by noting that the Voter Qualifications Clause (for members of the House), the Seventeenth Amendment (for members of the Senate), the Elections Clause, and the Electors Clause all say that states, not the federal government, have default power over federal elections. At the same time, the court acknowledged that Congress has authority to “make or alter” state election laws under the Elections Clause, and that it has done so through several acts, including the Help America Vote Act.

    But the court said that nothing in the Constitution or federal law gave the President the power to issue these orders.

    As to compiling the lists, the court simply held that the President has no power to order this.

    As to USPS regulations, the court said that USPS lacks statutory authority to issue regulations on mail-in voting, and that in any event the EO requires USPS to act on a timeline that’s inconsistent with federal law.

    As to enforcement, the court held that to the extent that the EO attempts to intimidate state and local election officials to use the federally created eligible-voter lists, it’s invalid.

    Finally, as to voting-record retention, the court said that Congress set a twenty-two-month retention requirement, and that the President has no authority to extend it.

  • Second Circuit Vacates Ruling for Schools in Transgender Pronouns Case

    The Second Circuit vacated a lower court ruling that dismissed a parent’s challenge to a school district’s policy of using “the name and pronoun that corresponds to the gender identity the student consistently asserts at school” without requiring notification to the parents.

    The ruling is notable, among other reasons, because it orders the lower court to reconsider how the Supreme Court’s recent emergency-docket ruling in Mirabelli v. Bonta applies. (Emergency-docket rulings, or “shadow-docket” rulings, are preliminary and deal only with the likelihood of success on the merits, not the merits themselves. They therefore lack the full precedential value of a merits ruling. Still, lower courts often treat emergency-docket rulings as precedential, and some on the Supreme Court have suggested that emergency-docket rulings enjoy at least some precedential value.) More on Mirabelli below.

    The case, Vitsaxaki v. Skaneateles Central School District, a non-precedential summary order, arose out of a parent’s challenge to the school district’s policy of recognizing the gender identity of students at school without sharing that gender identity with the parents. A parent sued, arguing that the policy violated the Free Exercise Clause and their substantive-due-process right-to-parent under the Due Process Clause. They sought monetary damages and declaratory relief.

    The court held that the parent lacked standing to claim declaratory relief, because they failed to plead any likelihood of future harm.

    As to the damages claim, the court vacated the lower court’s dismissal and remanded the case to apply Mirabelli. Mirabelli says that a similar policy in California likely violated the Free Exercise Clause and parents’ “primary authority with respect to ‘the upbringing and education of children.’” Pierce v. Society of Sisters (1925).

    Mirabelli says “likely” violated (and not certainly violated), because the case came to the Court as an emergency request to reinstate a lower-court ruling enjoining the law (and not on the Court’s regular merits docket). As a result, Mirabelli lacks the same precedential value of a fully-briefed and fully-argued merits-docket ruling. Still, Mirabelli was enough for the Second Circuit to order a remand and order the lower court to consider how it applied to this case.

    Justice Kagan, joined by Justice Jackson, dissented in Mirabelli and argued why the Court jumped the gun in that case.

    The Second Circuit ruling leaves the school policy in limbo. On the one hand, the court didn’t formally enjoin or strike the policy, or rule the policy unconstitutional, and nothing in the opinion says that the district can’t continue to enforce the policy. On the other hand, Mirabelli strongly suggests that the policy is likely unconstitutional, and, given how lower courts increasingly treat emergency-docket rulings of the Supreme Court, the lower court may well agree.

  • Supreme Court Strikes Hawaii’s Consent-to-Carry Law

    The Supreme Court today ruled that a Hawaii law that prohibits firearms on private property open to the public without the express and affirmative consent of the property owner violates the Second Amendment.

    The ruling means that gun owners in Hawaii can now carry their weapons into restaurants, stores, gas stations, and more without first obtaining the owner’s consent.

    The case, Wolford v. Lopez, tested Hawaii’s law that prohibits a person from carrying a gun onto private property that’s open to the public without the owner’s permission. The Court applied its historical-tradition test from New York State Rifle & Pistol Ass’n, Inc. v. Bruen and ruled the law unconstitutional.

    The Court said first that Hawaii’s restrictions fall within the plain text of the Second Amendment, and that the law was therefore presumptively unconstitutional.

    The Court then said that Hawaii failed to present an historical analogue. It held that Hawaii’s “spirit of Aloha” can’t override the Second Amendment; that Hawaii’s proffered colonial and early state analogues, which prohibited hunting, weren’t sufficiently similar; and that the state’s other analogues (including an 1865 Louisiana statute depriving Black people of the right to bear arms and enacted as part of that state’s Black Codes) weren’t sufficiently similar and weren’t sufficiently widely adopted.

    Justice Barrett joined the Court but wrote separately to elaborate on the Court’s historical-tradition analysis. Justice Thomas and Gorsuch joined the portion of her opinion where she argued that Black Codes weren’t good analogues. (“It is beyond me why Hawaii would claim that these vile laws can justify its present-day restriction.”)

    Justice Jackson, joined by Justice Sotomayor, dissented. She argued that Hawaii’s law “fairly applies a first principle of property law–the right to exclude–and does not harm to the Second Amendment.” But even if the Second Amendment applied, she argued that the Court mis-applied its historical-tradition test.

    Justice Kagan dissented separately and joined the portion of Justice Jackson’s dissent where she showed that Hawaii’s law had sufficient historical analogues.

  • Juneteenth Celebration and Educational Resources

    Some resources:

  • Supreme Court: Gun Prosecution of Casual Marijuana User Violates Second Amendment

    The Supreme Court ruled today that the prosecution of a casual marijuana user for unlawful gun possession violates the Second Amendment.

    The ruling extends Second Amendment rights to a casual marijuana user, but otherwise says little new about the Court’s historical-tradition approach to the Second Amendment.

    The case, United States v. Hemani, arose out of the government’s prosecution of Ali Hemani for knowingly possessing a gun in his home while being an unlawful drug user, in violation of 18 U.S.C. Sec. 922(g)(3). During the investigation, Hemani pointed federal agents to marijuana in his home and told them that he used it about every other day.

    The Court ruled that the prosecution violated the Second Amendment. It applied its historical-tradition approach under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, and held that the government couldn’t point to a sufficiently similar historical analog to its prosecution of a person for casual marijuana use.

    In particular, the Court rejected the government’s sweeping theory that the statute validly bans “an individual from possessing a gun from the moment he becomes an unlawful user of any controlled substance and remains in effect until he ceases being one,” regardless of the drug, or the amounts ingested, or the person’s dangerousness, or the reasons the person keeps a gun, or how safely the person keeps the gun. It said that the government’s analogy to historical “habitual drunkard” laws “fails on every metric.”

    According to the Court, the ruling “is narrow.” It doesn’t “address efforts to ban addicts, or those presently intoxicated, from possessing a firearm” or “other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms.” It also doesn’t address federal law that “disarm[s] individuals convicted of felonies.” Finally, it doesn’t address cases where a particular person’s use of marijuana, or any other drug, renders the person dangerous.

    Justice Thomas concurred, adding that Section 922(g)(3) “appears to exceed Congress’s enumerated power to regulate interstate commerce.”

    Justice Jackson concurred, joined by Justice Sotomayor, expressing her view that the Court “veered off course in Bruen.”

  • Supreme Court Says Criminal Appeal Waivers are Unenforceable if They Result in “Miscarriage of Justice”

    The Supreme Court today set the standard for criminal appeal waivers: They are unenforceable if they would result in a “miscarriage of justice.”

    The ruling sets a uniform standard for criminal appeal waivers, which are an increasingly common part of a criminal plea in federal court. The standard is lower than the one that the Fifth Circuit applied below, and lower than the government’s proposed standard. Still, the Court emphasized that it nevertheless “sets a high bar.”

    The case, Hunter v. United States, arose when Munson Hunter III entered into a plea agreement that included an appeal waiver. (This means that Hunter waived his right to appeal his agreement and his sentencing, with a narrow exception not applicable here.) The court then sentenced Hunter to prison time. It also sentenced him to participate in a mental-health treatment program that included mental-health medications prescribed by Hunter’s treating physician.

    Hunter appealed, arguing that the mandatory-medication condition violated due process. The Fifth Circuit dismissed the appeal, however, pointing to Hunter’s appeal waiver in his plea agreement.

    The Supreme Court vacated and remanded. The Court said that the proper test is that “an appeal waiver is unenforceable when it would result in a miscarriage of justice.” The Court explained:

    That rule, properly understood and applied, sets a high bar: The waiver may be set aside only if the sentence is marred by the kind of egregious error that would bring the judicial system into disrepute. The error must be obvious–not one a judge could reasonably make. And it must be of the type that would undermine public confidence in the judiciary. . . . [S]tandard-fare errors in misapplying sentencing law cannot cancel an appeal waiver. . . . But some faults in sentencing can. So a high bar is not an insurmountable one. The point of the miscarriage-of-justice limit, as many appellate courts have properly applied it, is to offer a safety valve for extreme cases–a way out of a waiver when the justice system’s basic integrity is at stake.

    The Court went on to provide some examples. It then remanded the case to apply the standard to Hunter.

    Justice Gorsuch concurred, joined by Justices Sotomayor and Jackson. He pointed out that plea bargains and appeal waivers are increasingly common, and that appeal waivers are problematic. He wrote that the Court’s ruling is a step in the right direction “toward reining in appeal waivers.”

    Justice Kavanaugh concurred, joined by Justices Alito and Barrett. He argued that Justice Gorsuch’s concurrence “would set a lower bar for the miscarriage-of-justice exception” and that “the concurrence may not be entirely consistent with the Court’s opinion.”

    Justice Barrett concurred, expressing skepticism “that the Supreme Court possesses an inherent, supervisory authority over inferior federal courts.” But she argued that the Court’s ruling “rests on longstanding waiver principles and thus falls within” the category of cases dealing with “the development of procedural common law” (and not the category dealing with the Court’s “inherent, supervisory authority over inferior federal courts”).

    Justice Thomas dissented, arguing that a fully enforceable appeal waiver, even when it results in a miscarriage of justice, is consistent with historical practice and the rule that a defendant can voluntarily waive a right. He said that the Court’s standard lacks any grounding in law.

  • Supreme Court: No Federal District Court Jurisdiction Over State Court Judgments Subject to Further Review

    The Supreme Court ruled today that federal district courts lack jurisdiction to hear challenges to state-court judgments that are subject to further review in state appellate proceedings. The ruling applies the Rooker-Feldman doctrine to those state-court judgments, and thus limits the power of federal district courts to weigh-in on state-court cases that haven’t fully run their course in the state courts.

    The case, T.M. v. University of Maryland Medical System, arose when T.M. sought to challenge a consent order entered by a state court in federal district court. The consent order was subject to further appellate review in the state court system. (Indeed, T.M. filed an appeal of the order in the state courts.) Yet T.M. sought to challenge it in federal court.

    The Court ruled that the federal court lacked jurisdiction. The Court said that the Rooker-Feldman doctrine, which denies federal district courts jurisdiction over certain state-court decisions that are subject to further review within the state courts, barred the suit. The Court wrote that the Rooker-Feldman doctrine was based on two principles: (1) when plaintiffs seek federal district court review of a state court ruling, “they are seeking an exercise of appellate jurisdiction”; and (2) federal appellate jurisdiction of state-court rulings belongs exclusively to the Supreme Court (and not to lower federal courts). The Court said that the doctrine applied squarely to this case.

    The ruling makes it more difficult for state-court litigants to challenge state-court rulings in federal court. The Court today made clear that they now have to exhaust their appeals through the state courts and only then bring an appeal only to the Supreme Court.

    Justice Barrett dissented, joined by Chief Justice Roberts and Justices Kagan and Gorsuch. Justice Barrett argued that the Rooker-Feldman doctrine only applied to state-court judgments that are not subject to further state-court appeals, most usually state supreme court rulings. She also took aim at the underlying bases for the doctrine.

    Justice Thomas concurred, arguing that there’s an originalist basis for the doctrine.

  • Georgia’s Asymmetric Contribution Limit Likely Violates First Amendment

    The Eleventh Circuit ruled last week that Georgia’s campaign-finance law that allows incumbent governors and lieutenant governments to raise funds without limit, while at the same time limiting contributions for other candidates, likely violates the First Amendment.

    This bottom-line ruling isn’t surprising: the First Amendment flatly prohibits asymmetrical contribution limits.

    But the lawsuit is.

    The case, Jackson v. Jones, arose when billionaire Rick Jackson sued Lieutenant Governor Burt Jones to stop Jones from benefiting from the asymmetrical contribution limit. (Jackson won the nomination for governor in the Republican primary runoff yesterday.)

    Jackson had an easy case to make that Georgia’s law violated the First Amendment. But he had a harder time persuading the court that he sued the right defendant. That’s because Jones argued that he wasn’t a state actor and therefore wasn’t subject to the First Amendment.

    The court disagreed. The court said that Jones only enjoyed unlimited fundraising opportunities because he was the lieutenant governor–one of two offices that Georgia law grants unlimited fundraising opportunities–and “a proper defendant in his official capacity.” According to the court, it wasn’t an answer to say that Jones was running for office in his private capacity: “Jones as a private actor would have no access to the advantages offered by a leadership committee. Only Jones as a government actor–the sitting Lieutenant Governor–can raise unlimited funds and spend those funds directly on his campaign.”

    Chief Judge Pryor dissented, arguing that Jones should have sued the state agency who enforces the law, and that he should have sought different relief–that the cap that applied to him, Jones, was unconstitutional. Chief Judge Pryor said it wasn’t “difficult to see why” Jones didn’t sue the agency for this alternative relief: “Because Jackson is ‘self-fund[ing] his campaign,’ it would do him little good to enjoin the enforcement of any contribution limits against him.”

  • DOJ Purports to Limit Disparate-Impact under Title VII

    The Department of Justice Office of Legal Counsel issued an opinion last week that would sharply limit, or even eliminate, disparate-impact claims for employment discrimination under Title VII. OLC said that certain “limiting principles” were necessary to ensure that disparate-impact claims don’t violate equal protection. As a practical matter, these principles could eviscerate disparate-impact claims under Title VII.

    According to OLC, the Equal Employment Opportunity Commission’s guidelines for disparate-impact claims under Title VII do not incorporate these principles. OLC opined that the guidelines are therefore unconstitutional.

    The opinion is not legally binding in the same way a court ruling is. Still, the opinion will affect the way EEOC investigates and processes Title VII complaints. In particular, EEOC will adopt OLC’s interpretation of disparate-impact theory under Title VII. And because EEOC is the gate-keeper for Title VII claims (plaintiffs have to file a complaint with EEOC before bringing their case in court), EEOC will almost surely reject most or all disparate-impact claims going forward. At the very least, the OLC opinion gives employers a roadmap for avoiding disparate-impact liability. (If EEOC rejects a claim, a plaintiff can still sue on their own in court. The OLC opinion does not bind courts, although they may find it persuasive. And whatever happens with the government’s new approach to disparate impact, plaintiffs can still turn to state-law anti-discrimination remedies that may provide greater disparate-impact protection. OLC’s opinion doesn’t, and can’t, change that.)

    Title VII imposes liability for both (1) employment actions based on intentional discrimination and (2) employment actions that are facially neutral but nevertheless have a disparate impact based on race, color, religion, sex, or national origin.

    Under Title VII, to prevail on a disparate-impact claim, a plaintiff must first establish a prima facie case of discrimination by showing that a particular employment practice created a disparate impact. If a plaintiff carries this burden, then the burden shifts to the employer to show “that the challenged practice [wa]s job related for the position in question and consistent with business necessity.” Finally, if an employer makes this showing, the burden shifts back to the plaintiff to demonstrate that the employer refuses to adopt an “alternative employment practice” that would reduce the disparity. 42 U.S.C. Sec. 2000e-2(k).

    OLC opined that disparate-impact theory under Title VII raises “serious equal-protection” concerns, because it “tends to incent–and even coerce–employers to make race-based decisions to avoid liability or the threat of liability.” And: “By pressuring employers to take race-based actions in the name of proactively addressing potential statistical disparities, disparate-impact liability allows the government to engage in race discrimination indirectly.” OLC said that this government “incent[ing]” and “coerc[ing]” violates equal protection.

    OLC said that disparate-impact theory requires updating, in the same way that the Supreme Court’s recent ruling in Louisiana v. Callais (2026) updated the disparate-impact approach to racial gerrymandering in Section 2 of the Voting Rights Act. This updating requires three things:

    “First, the business-necessity defense to liability must provide defendants significant ‘leeway to state and explain the valid interest served by their policies.’” According to OLC, this means that “a challenged practice need only be a ‘reasonable’ way of accomplishing a ‘valid’ interest.” OLC wrote that this new low standard allows employers to offer “competing explanations” of the disparities.

    “Second, any disparate-impact claim must satisfy a robust causality requirement to avoid reading Title VII as imposing an unconstitutional quota system.” According to OLC, this will “ensure that [employers] will not resort to impermissible ‘racial quotas’ to stave off lawsuits.”

    “Third, the plaintiff must offer a viable alternative to the challenged practice that accomplishes the employer’s legitimate goals ‘just as well.’”