Tag: supreme-court

  • District Court Halt’s Trump Mail-In Ballot EO, Again

    The same federal district court that earlier enjoined the Trump Administration from enforcing President Trump’s EO on mail-in balloting again halted the Administration.

    The move came yesterday, after the Supreme Court stayed the district court’s original injunction and after the plaintiffs renewed their motions in light of the now-issued USPS regulations.

    The upshot is that the USPS is barred from enforcing its new regulations on mail-in voting. The government already appealed, however, and will almost certainly seek an emergency stay. Ultimately, the case seems destined to return to the Supreme Court, this time probably on the merits.

    Here’s the backstory:

    President Trump issued an executive order that, among other things, directed the Postal Service to issue regulations that specify the design of mail-in-ballot envelopes, require states to report eligible voters to USPS, and refuse to deliver ballots to individuals if the ballots don’t conform to the new design rules or if the individual isn’t on the state-provided list. (The EO also directed DHS to generate a list of eligible voters in each state and to provide that list to the states. That part of the EO isn’t directly at issue in the ruling and filings in the last couple days.)

    States and voting-rights organizations filed two separate lawsuits that landed before the same judge. The court issued preliminary injunctions in both cases, holding, in short, that the EO likely exceeded the President’s authority. (Under the Constitution’s Elections Clause, states, not the federal government, have responsibility in the first instance for running federal elections. If the federal government gets involved, as it can under the Elections Clause, the Constitution gives the authority to Congress, not the President. Because Congress hasn’t authorized anything like the provisions in President Trump’s EO, President Trump and the implementing agencies lack authority.)

    The First Circuit declined to stay the states’ injunction, but the Supreme Court on Monday granted a stay. The Court didn’t rule on the merits, though; instead, it ruled that the states likely lacked standing and that their claims likely weren’t ripe, because they couldn’t demonstrate how the not-yet-finalized USPS regulations would harm them. (The USPS did, in fact, finalize the regulations last Friday, three days before the Court ruled. But the Court assessed standing (and apparently ripeness) at the time of the states’ complaint, not at the time of its ruling.) The district court then lifted its injunction in the organizations’ case.

    In response to the Supreme Court ruling, the states filed a new lawsuit, and the organizations supplemented their complaint to allege cognizable harms and ripeness in light of the now-issued USPS regulations.

    The regulations require states to get USPS approval for their mail-in-ballot envelope design, then, upon approval, to load their voter data into a USPS portal. Under the regs, USPS won’t mail ballots sent in a non-conforming envelope, and it won’t mail ballots to individuals not on the state-uploaded list.

    But there’s no timeline for any of this, and there are a lot of opportunities for mistakes. And because jurisdictions have already printed their envelopes and will start mailing them out shortly, any delay by USPS or any ordered re-design will cost states time and money and interfere with their elections. The regs also create confusion for voting organizations (that seek to educate voters) and voters themselves.

    With those harms now in hand, the court late yesterday issued a temporary restraining order, halting USPS from enforcing its regulations. On the merits, the court said exactly what it said before: the states have authority to regulate federal elections unless preempted by Congress, and Congress hasn’t enacted legislation that authorizes USPS’s regulations.

    The Administration appealed, and will surely seek an emergency stay from the First Circuit and, in all likelihood, the Supreme Court.

    Stay tuned . . . .

  • Supreme Court Green-Lights Trump’s EO on Mail-In Ballots, for now

    The Supreme Court today stayed a lower-court ruling that halted implementation of President Trump’s executive order on mail-in voting.

    The ruling means that the Administration can move to implement the EO. This could have a significant impact on mail-in voting in the upcoming mid-term elections.

    But the ruling was limited to jurisdictional issues and the stay factors; it did not address the EO’s lawfulness. The ruling thus allows state-plaintiffs to sue again if and when the EO harms them. But that potentially raises a different jurisdictional problem: the Court has ruled that courts should not intervene in a way that alters election rules too close to an election, lest they create confusion. Given the timing, this principle–the Purcell principle–could limit the ability of states to sue the closer we come to the election, even if they suffer harm.

    (In a separate case brought by the League of Women Voters, the court earlier this month entered a preliminary halting USPS from initiating rule-making under the EO for the upcoming mid-terms. The Administration filed a motion to reconsider in light of the Supreme Court’s ruling today. The court hasn’t yet ruled.)

    President Trump’s EO comes in three parts. First, it requires the Department of Homeland Security to create a list of citizens over the age of 18 in each state and to send that list to the states. Next, it requires the Attorney General to prioritize prosecution of those who issue federal ballots to ineligible voters. Finally, it requires the Postal Service to initiate rule-making that would require outbound ballot envelopes to contain a unique barcode and not to deliver the ballots of anyone not enrolled by a state with USPS.

    A group of states and D.C. sued, and a district court entered final judgment prohibiting the Administration from implementing those portions of the EO.

    The Supreme Court today granted a stay. On the likelihood of success on the merits, the Court ruled that the states lacked standing, because they haven’t yet demonstrated a concrete and particularized, actual or imminent harm. It also held for similar reasons that the case wasn’t ripe for judicial review. It held that other stay factors also favored the government.

    Justice Sotomayor wrote a dissent, joined by Justice Kagan. Justice Jackson wrote her own dissent.

    It’s not clear what happens next. The Administration may not have time to implement and enforce the EO before the mid-terms. If it does, however, it’s not entirely clear what would happen, that is, how the Administration would actually implement it, including how many mistakes DHS’s list may contain. And if the states can demonstrate harm, it’s not clear whether they could sue to block Administration actions, given the Purcell principle.

    On the merits, the Constitution gives the states in the first instance–not the federal government, and certainly not the President alone–the authority to run and regulate federal elections. According to the lower court (and the law), the President has no legal authority to issue much of the EO. Still, the Court didn’t seem too concerned about overreach, at least not yet, because, according to the Court, the EO limited DHS, the Attorney General, and USPS to act only “[t]o the extent feasible and consistent with applicable law.”

  • District Court Halts Trump EO on Mail-In Voting

    Judge Indira Talwani (D. Mass.) issued a preliminary injunction halting the Postal Service from “implementing, giving effect to, or enforcing” a key portion of President Trump’s executive order on mail-in voting in the upcoming elections. The ruling means that the Postal Service can’t move forward with its regulations that specify the design of mail-in ballots and restrict mail-in voting to voters on a USPS-approved list.

    We previously covered the issue here. Recall that circuits split on standing and ripeness, and the Administration asked the Supreme Court to intervene. (The Court hasn’t yet ruled.)

    The Massachusetts district court previously ruled (in denying a portion of the Administration’s motion to dismiss) that the plaintiffs plausibly alleged that the EO violated the Constitution. Its analysis in the PI ruling was curt and direct:

    The court has already answered and will again resolve the question clearly and affirmatively. The executive branch has no authority to regulate elections. U.S. Const., art. I, sec. 4, cl. 1; id., art. II.

    The ruling deals a sharp blow to the Administration and its efforts to regulate mail-in voting. Even if the Supreme Court intervenes and rules for the Administration in its pending application, the Administration will now have to reckon with this ruling–most likely by seeking a separate stay. As the court says, though: the Administration’s merits arguments are (extraordinarily) weak, and the other PI factors lean (strongly) in the plaintiffs’ favor.

  • Trump Tries to Limit Birthright Citizenship . . . again

    President Trump issued an executive order last week that again tried to limit birthright citizenship, even after the Supreme Court struck his first effort just over a month ago, in Trump v. Barbara. (Our analysis of that case is here.)

    Under the new EO, the following individuals (among other) do not qualify for birthright citizenship:

    (c) either parent of that person engaged in a commercial transaction to purchase or access birthright citizenship for the person, or engaged in fraudulent activity to obtain citizenship, to include:

    (i) when the parent(s) of the person engage in a commercial transaction to ensure that the person’s mother is present in the United States, or a territory of the United States, to give birth; or

    (ii) when the parent(s) engage in a commercial transaction with a surrogate present in the United States, or a territory of the United States, to give birth . . . .

    The new EO targets “birth tourism,” when a person pays for help to get to the United States for the purpose of birthing a child (who then becomes a citizen).

    But Trump v. Barbara didn’t contain an exception to birthright citizenship for “birth tourism.” In fact, the decision said nothing about it. It didn’t even hint at such an exception.

    So it’s not clear how the Trump Administration thinks this new EO can skirt Trump v. Barbara. Or if that’s even its end-game.

    As of yet, nobody’s sued to block this new EO. Stay tuned . . . .

  • Trump Administration Seeks Supreme Court Intervention in Election EO

    The Trump Administration asked the Supreme Court to stay a lower court ruling that enjoined the Administration from enforcing portions of President Trump’s executive order on elections.

    If the Court grants a stay, the Administration could move forward in implementing President Trump’s EO. If it doesn’t, the Administration can only enforce the EO in states that weren’t a party to the lawsuit.

    The case arose when 23 states and the District of Columbia challenged President Trump’s March 31, 2026, EO on elections. The plaintiffs argued that the EO’s Sections 2, 3, and 5 exceeded the President’s authority, violated the Elections and Electors Clauses, and violated the Tenth Amendment’s anti-commandeering principle.

    Section 2 of the EO directs DHS to compile a list of U.S. citizens and transmit the list to the states. It also provides for investigation and prosecution of state officials who issue or distribute ballots to individuals not eligible to vote. Section 3 directs the U.S. Postal Service to issue regulations governing the design of envelopes for mail-in voting and requiring all ballot mail to be mailed in such envelopes. Section 5 orders the Attorney General and department heads “to deter and address noncompliance” by “state and local election officials” and “public or private entities engaged in” ballot printing or distribution.

    The district court ruled for the plaintiffs. The court held that the plaintiffs had standing, that their case was ripe for review, and that Sections 2 and 3 are “ultra vires and violate the separation of powers.” The court issued an injunction, halting enforcement for the upcoming primaries and general election (though not later elections) in the plaintiff states (though not in non-plaintiff states).

    The Trump Administration sought a stay of the injunction pending appeal with the Second Circuit, arguing that the plaintiff states lacked standing and that the case wasn’t ripe for judicial review. The Second Circuit on Friday denied a stay.

    Then today the Administration sought a stay in the Supreme Court, again arguing that the plaintiff states lack standing and that the case isn’t ripe for judicial review.

    If the Court grants a stay, the Administration can go ahead with its plans to generate a list of U.S. citizens and to impose Postal Service requirements on mail-in voting in the plaintiff states. If the Court denies a stay, the Administration can’t.

    Either way, the merits aren’t going before the Court, at least as the Administration has briefed the case so far. (The Administration didn’t appeal the merits to the Second Circuit, either, and that court didn’t rule on the merits.) That’s probably because the Administration understands the weaknesses in its positions on the merits: The President has no statutory authority for his EO; the Elections Clause and the Electors Clause give initial responsibility to the states to govern elections for federal office, subject to congressional action (which hasn’t happened in this area); and the EO may impose requirements on the states in violation of the anti-commandeering principle.

    The Administration’s theories on standing and ripeness, if accepted, could make it hard or impossible for plaintiffs to challenge the EO until close to or even after the upcoming elections, at which point even a successful challenge would come too late.

  • Supreme Court Rejects President Trump’s EO Limiting Birthright Citizenship

    The Supreme Court ruled yesterday that President Trump’s executive order purporting to limit birthright citizenship violated the Citizenship Clause of the Fourteenth Amendment.

    The ruling leaves in place the long- and well-established rule that a person born in the United States is a citizen of the United States, with only limited exceptions–not including those who are unlawfully or temporarily present.

    The case, Trump v. Barbara, tested President Trump’s January 20, 2025, executive order, “Protecting the Meaning and Value of American Citizenship.” The EO said that children of persons who are unlawfully present or temporarily present in the United States do not qualify for birthright citizenship.

    In particular, the EO pointed to the text of the Citizenship Clause–“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States”–and said that persons who are unlawfully or temporarily present were not “subject to the jurisdiction” of the United States and therefore did not enjoy birthright citizenship. The theory turned on allegiance, which, in turn, turned on domicile: A person is “subject to the jurisdiction” if they owe allegiance; they owe allegiance if they are domiciled in the country. By the President’s reckoning, those who are unlawfully or temporarily present can’t be domiciled here, therefore they can’t owe allegiance to the United States, and therefore they are not “subject to the jurisdiction” of the United States.

    Plaintiffs sued, arguing that the EO violated the Citizenship Clause and federal law that mirrors the Citizenship Clause. (This wasn’t the Court’s first crack at the case. Plaintiffs originally prevailed and won universal, or nationwide, injunctions against the EO early last year. In an emergency-docket ruling last year, the Court held that district courts lacked authority to issue universal injunctions. Plaintiffs then refiled and again prevailed, but with different relief, leading to yesterday’s ruling on the merits.)

    Six Justices agreed that the EO was unlawful. Five Justices held that it violated the Citizenship Clause, and one Justice (Justice Kavanaugh) held that it violated federal law (but not the Citizenship Clause). Three Justices dissented.

    This means that five Justice on the Court held that the Citizenship Clause provides birthright citizenship to children born in the United States to parents who are unlawfully present or temporarily present. (Four Justices disagreed.) Because a majority issued its ruling under the Citizenship Clause (and not just federal law), neither the President nor Congress can act to prohibit citizenship to children born of such parents.

    Chief Justice Roberts wrote the majority opinion, joined by Justices Sotomayor, Kagan, Barrett, and Jackson. He traced the history of birthright citizenship from English common law and concluded that “subject to the jurisdiction” only meant that a person is present in the United States (“referring to the power of the United States to govern those within its territory”), with narrow exceptions for children of foreign ministers and members of certain nineteenth-century Native American tribes (or those who raised “intersovereign concerns”). He wrote that children born of parents who are unlawfully or temporarily present in the United States do not fall within an “intersovereign” exception, and therefore they are citizens.

    Justice Jackson concurred, joined in part by Justice Sotomayor. She filled in with additional history and countered some of the points in Justice Thomas’s dissent.

    Justice Kavanaugh concurred in part and dissented in part. He argued that the EO violated federal law, but not the Constitution. (“I respectfully disagree with the Court’s constitutional holding. In my view, the Executive Order does not violate the Fourteenth Amendment.”) Although the statue and Citizenship Clause contain the same language, he contended that the Citizenship Clause, as “appl[ied] to new circumstances[,] *** support[s] additional exceptions for children born to foreign citizens unlawfully or temporarily in the country.” And despite his reading of the current statute, he also argued that “Congress could–consistent with the Fourteenth Amendment–amend [the law] or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country.”

    Justice Thomas wrote the principal dissent, joined by Justice Gorsuch. He traced his own history and argued that the Citizenship Clause was designed to provide citizenship for “Blacks . . . because they were Americans,” and that birthright citizenship doesn’t extend to children born to parents who are temporarily or unlawfully present.

    Justice Alito separately dissented with his own textual and historical analysis.

  • Supreme Court Says FTC Can’t Be Independent

    The Supreme Court ruled today that Federal Trade Commissioners’ statutory independence violates the separation of powers.

    The ruling was not unexpected. It builds on a string of decisions out of the Roberts Court over the last couple decades or so.

    Still, the ruling will likely have dramatic impacts. The logic of the Court’s ruling likely means that dozens of independent federal agencies and offices, touching on all aspects of our daily lives, are unconstitutional, and that the President can remove incumbents at will (meaning: for purely political reasons). In other words: These agencies, designed by Congress to be politically independent, are now fully politicized.

    This is likely even more so under the current President, who has already endorsed and applied an extremely robust version of the unitary executive theory. UET says that the President, as unitary head of the Executive Branch, enjoys plenary authority over its officers, notwithstanding congressionally-designed independence in congressionally-created agencies. (Remember: Congress creates agencies through legislation; it vests them with authority; it funds them; and it oversees them.) Today’s ruling endorses a just-slightly-less robust version of UET. But we can expect that President Trump will use today’s ruling not only to politicize officers within the Executive Branch, but also to politicize civil-service employees, to restructure and dismantle federal agencies, and even to ignore law, including appropriations law, that applies to the Executive Branch. (We can reasonably anticipate this, because this is what he’s already done.)

    In other words, today’s ruling massively increases the President’s power, and massively reduces Congress’s. (It also increases the Court’s power, because, after all, it’s the one that issued the decision).

    But even as today’s ruling allows and invites President Trump to politicize offices and agencies, remember that it will also invite the next Democratic President to do the same. The net effect of the ruling, therefore, could be wild and economically-destabilizing swings in agencies’ enforcement priorities as different Presidents come in and out of office.

    The case, Trump v. Slaughter, arose when President Trump removed FTC Commissioner Rebecca Slaughter without providing a cause or reason. Slaughter claimed that this violated federal law, which says that the President can remove an FTC commissioner only “for inefficiency, neglect of duty, or malfeasance in office.” 15 U.S.C. Sec. 41. That statutory “for cause” removal protection is key to ensuring FTC independence, because it prohibits the President from removing an FTC commissioner at will, or for purely political reasons.

    The Court ruled that the “for cause” removal protection violated the separation of powers. In short, it said that by granting FTC commissioners for-cause removal protection, Congress impermissibly encroached on the power of the President, as unitary head of the Executive Branch, to direct the operations of the Executive Branch and, ultimately, to execute the law.

    The Court said that its ruling was narrow, applying only to the FTC, given the FTC’s significant executive authority under law. But the logic of the opinion almost surely sweeps in other independent agencies and offices, allowing the President to remove officers for purely political reasons. It will also invite the President to extend its reasoning to civil-service employees (who are protected by statutory civil-service laws), agencies themselves, and even the law of the Executive Branch.

    Along the way, the Court also overruled Humphrey’s Executor v. United States, the 1935 case that upheld the independence of the FTC against a similar separation-of-powers argument. That’s significant, because Humphrey’s Executor provided the precedent for multi-member agency independence. It (obviously) no longer does.

    Justice Gorsuch concurred, raising a concern that today’s ruling gives the President all the legislative and judicial powers that Congress has delegated to agencies over time. Justice Gorsuch’s concern is that Congress delegated those powers in the first place, not that the Court’s ruling gives the President sweeping power over previously independent agencies in their law-enforcement capacities.

    Justice Sotomayor dissented, joined by Justices Kagan and Jackson. In short:

    Today, this Court undoes centuries of political practice and concludes that all three branches of Government have been acting in open defiance of the Constitution all this time. Its conclusion is wrong. The text of the Constitution, along with its history, the longstanding practices of the political branches, and the precedents of this Court, make clear that Congress may limit the causes for which the heads of Commissions like the FTC can be removed by the President. In holding otherwise, the Court gives the President a power unknown even to the English Crown against which the Founders revolted, elevating him above his once-coequal branches by transforming a duty to take care that the laws be faithfully executed into a license to act in defiance of those very laws. . . .

    Perhaps worst of all . . . [t]oday’s majority . . . decides that it knows better: better than members of the founding generation who created agencies like the Sinking Fund Commission and the Bank of the United States, free from unfettered Presidential control; better than a century and a half of Congresses and Presidents, starting with Grover Cleveland and continuing into the 21st century, who created agencies in the FTC’s mold; better than even Hamilton, Story, Webster, Holmes, Brandeis, Frankfurter, and Rehnquist. . . .

  • 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.

  • 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.