The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

Today, 24 states led by the state of Oregon filed the first lawsuit challenging Donald Trump's massive new Section 122 tariffs, which would impose 15% tariffs on most imports from nations around the world. The case is before the US Court of International Trade, which has exclusive jurisdiction over cases challenging tariffs.

I have previously written about why the new tariffs are illegal, much as were the IEEPA tariffs invalidated by the Supreme Court in the case I helped litigate on behalf of the plaintiffs. Here is an excerpt from my recent Boston Globe article explaining why the Section 122 tariffs are illegal:

Section 122 only permits tariffs for up to 150 days in response to "fundamental international payments problems" that cause "large and serious United States balance-of-payments deficits" or "an imminent and significant depreciation of the dollar," or are to cooperate with other countries in addressing an "international balance-of-payments disequilibrium."

As conservative legal commentator Andrew McCarthy explained in National Review, none of these legal preconditions to the use of Section 122 exist….

A balance of payments deficit can only arise in a fixed exchange-rate system, like the one the United States had before 1973, when the federal government took part in the Bretton Woods system of fixed exchange rates backed by US gold reserves. In that situation, the United States could experience a shortage of official currency reserves when demand for dollars at the fixed rate increased, or a shortage of gold arose. Since the introduction of floating exchange rates in 1973, that problem has been eliminated. As Nobel Prize-winning monetary economist Milton Friedman explained in 1967, "a system of floating exchange rates completely eliminates the balance-of-payments problem. The [currency] price may fluctuate but there cannot be a deficit or a surplus threatening an exchange crisis." When Section 122 was enacted in 1974, it was not yet clear whether the flexible exchange rate system would continue indefinitely. Since it did, Section 122 has never been used until now….

The three conservative justices in the majority in [the IEEPA] decision cited…. the "major questions doctrine," which requires Congress to "speak clearly" when authorizing the executive branch to make "decisions of vast economic and political significance."

They concluded that IEEPA did not clearly grant the president sweeping tariff authority. But the same is true of Section 122. At the very least, it is far from clear that it authorizes the president to impose 15 percent tariffs on goods from virtually every nation in the world, in a situation vastly different from that which inspired the law. And the effects of Trump's Section 122 tariffs would be large enough to qualify as a "major question." Within 150 days, the tariffs would impose some $30 billion in taxes on American businesses and inflict serious damage on the economy by raising prices and disrupting production in industries that depend on imports.

That figure would be much greater if Trump can extend the tariffs after the deadline expires. And if he can claim that "fundamental international payments problems" and a balance of payments deficit exist even when they obviously do not, he could likely reimpose the tariffs indefinitely, simply by issuing a new proclamation soon after the prior one expires.

Elsewhere in the article, I also explain why these tariffs violate the nondelegation doctrine.

I am far from alone in concluding that the Section 122 tariffs are illegal. As noted above, Andrew McCarthy takes the same view. See also these more extensive analyses by Phil Magness and Marc Wheat in National Review and and Stan Veuger and Clark Packard in Foreign Policy, among others.

Oregon also led the state lawsuit challenging the earlier IEEPA tariffs, which was eventually consolidated with our own. I commend Oregon Attorney General Dan Rayfield and Solicitor General Ben Gutman for their leadership in this important cause.

I will almost certainly have more to say about this case later. It is also likely this will not be the only lawsuit challenging the new tariffs.

Today, The Dispatch published my article "Why Donald Trump's Iran War is Unconstitutional." Here is an excerpt:

The large-scale U.S. military attack on Iran (undertaken in collaboration with Israel) is blatantly unconstitutional, even if its wisdom and morality are more debatable.

Article I of the Constitution gives Congress the exclusive power to declare war. One can debate the extent to which presidents can initiate relatively small-scale military actions, and such debates have raged for decades. But this attack is obviously large enough to qualify as a war. Thus, it just as obviously requires congressional authorization. President Donald Trump got no such authorization, nor did he even try….

Article I of the Constitution gives Congress the exclusive power to declare war. One can debate the extent to which presidents can initiate relatively small-scale military actions, and such debates have raged for decades. But this attack is obviously large enough to qualify as a war. Thus, it just as obviously requires congressional authorization. President Donald Trump got no such authorization, nor did he even try….

The framers of the Constitution deliberately gave Congress exclusive control over the power to initiate war. As James Madison put it, "[i]n no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department … [t]he trust and the temptation would be too great for any one man."

Alexander Hamilton—Madison's great rival and the leading champion of broad executive power among the Founders—actually agreed with Madison on this point. Defending President George Washington's 1793 proclamation of neutrality in the then-raging war between Britain and France, Hamilton wrote that "the Legislature have a right to make war" and therefore it follows that it is "the duty of the Executive to preserve Peace till war is declared." Hamilton and Madison…. were united on the proposition that no one man could take the nation to war, and that the executive must refrain from initiating such a conflict without congressional authorization….

This consensus undermines claims by modern advocates of untrammeled executive war powers that Congress' authority to declare war was just a power to declare a technical legal state, leaving the president free to initiate large-scale hostilities at will. The whole point of giving Congress the power to declare war was to ensure the executive could not start a massive conflict on its own, as European monarchs routinely did….

This limitation on presidential power is more than just a technical legal point. The requirement of congressional authorization for the initiation of war is there to ensure that no one person can take the country to war on his own, and that any major military actions have broad public support, which can be essential to ensuring that we have the will and commitment needed to achieve victory against difficult opponents. Trump's failure to seek and secure that kind of broad public support has ensured that only about 27 percent of Americans approve of this military action, compared to 43 percent who disapprove, according to a Reuters poll. Other surveys show similar results. This is a historically low level of public support at the start of a major military action and bodes ill for U.S. staying power if we suffer reverses or a prolonged conflict results.

Later in the article, I rebut the oft-made claim that the War Powers Act of 1973 somehow authorizes the president to start wars:

Many… argue that Trump's actions are authorized by the War Powers Act of 1973. But the WPA is a limitation on presidential power, not a grant of it. Enacted in the wake of real and imagined presidential abuses during the Vietnam War, it requires the president to secure congressional approval within 90 days of entering U.S. troops into "hostilities" or situations "where imminent involvement in hostilities is clearly indicated by the circumstances." The purpose of this requirement is to constrain even small-scale combat deployments that might otherwise not require congressional authorization, because they fall short of being a war. Section 2(C) of the WPA makes clear that the statute does not expand presidential war initiation authority, emphasizing that "[t]he constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." None of these three preconditions exist in the current situation.

The article also address nonoriginalist arguments against requiring congressional authorization for war, such as claims that it would prevent the US from taking enemies by surprise, arguments that Congress cannot act fast enough when needed, and more.

[The last of four blog posts drawing on this week's Hallows Lecture at Marquette Law School.]

This final blog post about the role of unstated legal ideas in deforming the Constitution involves a third unstated idea, beyond either the part played by the "three buckets" idea, combined with the "unitary executive" theory, or the contributions of various delegation theories. This unstated idea concerns the Supreme Court's conception of its role.

Students of the Court have identified two polar ideas about how the Court conceives of its role. One, which should be familiar, is called dispute resolution. The Court conceives of its job as resolving disputes between adverse parties, especially when the lower courts have disagreed about the proper disposition of the matter. The second, which commentators have labeled "law declaration," conceives of the Court's role as identifying certain important legal issues and resolving those issues without actually deciding disputes between adverse parties; instead, the Court concentrates on clarifying contested questions about the law and lets the lower courts sort out how to apply the law in the case at hand.

The Court's conception of its role in its recent opinions must be regarded as mixed; if one were in the mood to be uncharitable, one might call it schizophrenic. On the one hand, the Court insists that the authority of federal courts must be confined to resolving disputes. This is encapsulated in the law of standing. Federal courts, including the Supreme Court, can only hear actual cases and controversies between adverse parties. The plaintiff must show that it has suffered an injury that is concrete and particularized and actual or imminent, the defendant's action caused the injury, and a ruling for the plaintiff would make the injury go away. Every term, the Court declines to decide one or more cases for failing to qualify for standing under this elaborate matrix of factors.

On the other hand, once the Court concludes that the standing requirements have been met, it increasingly shifts to the law-declaration mode. The Court grants review only in cases presenting questions of general importance, it concentrates on resolving those questions, and having done so it sends the case back to the lower courts to apply the new or clarified understanding of the law to the facts presented by the case.

Courts Congress Executive Power

Show Comments (12)

3/5/1934: Nebbia v. New York decided.

Show Comments (350)

Today, in the case of Atmus Filtration, Inc. v. United States, Judge Richard K. Eaton of the US Court of International Trade ordered the Trump Administration to refund all tariffs illegally collected by the Trump Administration using the International Emergency Economic Powers Act of 1977 (IEEPA). On Monday, in V.O.S. Selections, Inc. v. Trump, the case I helped bring that led to the invalidation of the IEEPA tariffs by the Supreme Court, the US Court of Appeals for the Federal Circuit unanimously rejected the Trump Administration's efforts to delay lower-court proceedings on repayment. It is notable that all 11 judges of the en banc Federal Circuit agreed, including the four who voted against us on the merits when the Federal Circuit ruled on the case last year.

The federal government owes some $175 billion in tariff refunds to importers who paid them, and they repeatedly promised they would refund them money if they lost the case - a point which was crucial to their argument that appellate courts should stay the trial court injunction blocking further illegal tariff collection, while the litigation proceeded. Each month the government delays repayment costs taxpayers some $700 million in accumulated interest payments.

Significantly, Judge Eaton ordered payment of refunds to all those businesses that paid illegal tariffs, not just those who filed lawsuits to reclaim them:

Plaintiff's entries are among the millions of entries that were entered subject to IEEPA duties, which the Supreme Court ruled unlawful in Learning Resources, Inc. v. Trump, 2026 WL 477534 (U.S. Feb. 20, 2026). All importers of record whose entries were subject to IEEPA duties are entitled to the benefit of the Learning Resources decision.

In Trump v. CASA, Inc., the Supreme Court held "that universal injunctions are impermissible." 606 U.S. 831, 865 (2025). That holding, however, does not apply to the orders that will be issued in this case. The Court's discussion of "whether, under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions" does not constitute a legal direction to this Court. Nearly 200 years after the Judiciary Act of 1789, the United States Court of International Trade was established pursuant to the Customs Courts Act of 1980, Pub. L. No. 96-417, 94 Stat. 1727 (codified as amended in scattered sections of 28 U.S.C.). To that end the Court was provided with national geographic jurisdiction. See 28 U.S.C. § 1581.

The Court was also given exclusive subject matter jurisdiction to hear claims like those presented in this case. This exclusive jurisdiction was recently acknowledged by the Supreme Court. See Learning Res., Inc., 2026 WL 477534, at *6 n.1 ("We agree with the Federal Circuit that the V.O.S. Selections case falls within the exclusive jurisdiction of the [United States Court of International Trade]."). That is, the parties to a case in no other court will be bound by this order.

Moreover, when establishing this Court, Congress cited "[c]onsiderations of judicial economy, and the need to increase the availability of judicial review in the field of international trade in a manner which results in uniformity without sacrificing the expeditious resolution of import-related disputes." 126 CONG . REC. S13344 (daily ed. Sept. 24, 1980) (statement of Sen. Dennis DeConcini). The Constitution requires this uniformity. U.S. CONST . art. I § 8, cl. 1 (providing that "all Duties, Imposts and Excises shall be uniform throughout the United States").

Finally, the Chief Judge has indicated that I am the only judge who will hear cases pertaining to the refund of IEEPA duties. So there is no danger that another Judge, even one in this Court, will reach any contrary conclusions. To find otherwise would be to thwart the efficient administration of justice and to deny those importers who have filed suit the efficient resolution of their claims, and to deny entirely importers who have not filed suit the benefit of the Learning Resources decision.

I agree that a universal injunction makes sense here. Otherwise, we will have many months of needless litigation and delay, to the detriment of both businesses victimized by the tariffs and taxpayers who will be on the hook for additional interest payments. I think Judge Eaton's distinguishing of Trump v. CASA's ill-advised strictures against universal injunctions also makes sense. However, the universal injunction ruling may well be challenged on appeal. Thus, we probably have not yet seen the end of litigation over IEEPA tariff refunds.

Stepping back from the more technical legal issues, I would note that the Trump Administration can easily resolve the refund issue simply by giving up this legal fight and issuing refunds to all those forced to pay the illegal tariffs. That would not be hard to do. The government has a record of all the payments and who made them. Calculating interest also is not difficult. The government could just make electronic payments or send checks to all those entitled to them.

Ultimately, the government illegally seized billions of dollars and therefore must pay them back. If I unjustly and illegally take your property, I have a duty to give it back, and pay interest. The same principle applies when the federal government does it. You don't have to be a legal theorist or a tariff expert to grasp this simple point.

As various commentators have pointed out, it may not be possible to compensate all the victims of the illegal tariffs. For example, there is no established procedure for compensating consumers who paid higher prices, workers who were laid off because their employers had to cut back production, and more. Even tariff-paying businesses like our clients in the V.O.S. Selections case will not be compensated for lost sales, disrupted relationships with supplies, loss of investments, and more. The noncompensable nature of harms like these is one of the reasons why courts erred when the stayed the Court of International Trade injunction against the tariffs issued when we won our initial trial court victory in May 2025, at a time when IEEPA tariffs had only been in force for a few weeks. As I explained at the time:

One factor courts consider in assessing a motion to stay is which side is likely to ultimately prevail on the merits….

Another key factor is which side is likely to suffer "irreparable harm" if they lose on the stay issue. We argue that our clients - and thousands of other businesses - will suffer great irreparable harm if a stay is imposed. They will lose sales due to higher prices, good will can be lost, relationships with suppliers and investors will be disrupted, and more. Those harms can't be made up merely by refunding tariff payments months from now, after the appellate process concludes.

It is too late to reverse the mistake courts made on the stay issue, and too late to prevent all the harm that error caused. But the best should not be the enemy of the good. Refunding illegal tariffs to those who paid them is not perfect justice. But it's far better than nothing.

NOTE: As I have previously noted, I am no longer a member of the V.O.S. Selections legal team, because my role ended after the Supreme Court issued its decision. Thus, I am not involved in the refund phase of this litigation.

[1.] From Judge John Robert Blakey's decision yesterday in Doe v. Northwestern Univ., the allegations in the Complaint (note that at this stage they are of course just allegations):

In the days following [the October 7] attack, several members of Northwestern's faculty in Evanston posted about the attack on social media, with one stating "resistance is justified when a people are occupied." Another professor, Steven Thrasher, said a New York Times story on sexual assault allegations relating to the October 7 attack was "widely discredited," and noted that a story by the Guardian was disturbingly "similar."

School programs like the Northwestern Women's Center and the Asian American Studies Program also made statements on social media. The Women's Center shared a brochure from the Palestinian Feminist Collective with short articles on protests and advocacy, protest chants, hashtags like #AlAqsaFlood, and website links to suggested readings about the Israeli-Palestinian conflict. The Asian American Studies Program made a statement on Islamophobia and disputed reports that Hamas had "beheaded babies." Student groups like Students for Justice in Palestine ("SJP") issued statements accusing "Zionists" of "whitewashing" and legitimizing the "genocide" of Palestinians, which several Northwestern faculty members signed onto.

Northwestern maintains a satellite campus in Qatar ("Northwestern Qatar"), through which students and faculty in Evanston and Qatar may visit the other campus in exchange programs. At Northwestern Qatar, faculty also posted on social media about the Hamas terror attack. Professor in Residence Khaled AL-Hroub called for a Third Intifada to "sweep away the occupier," while an assistant professor in residence tweeted the "chain must be broken," in reference to the Hamas incursion into Israel. AL-Hroub also participated in a radio interview where he said he had not seen "any credible media reporting" that Hamas killed women and children on October 7th, prompting Northwestern to issue a statement condemning the "attempt to minimize or misrepresent the horrific killing of Israeli civilians by Hamas."

On April 25, 2024, student demonstrators at Northwestern's Evanston campus organized an encampment of tents, protest signs, and flags on Dearing Meadow, the campus' central lawn. Within the encampment, several individuals dressed up as members of Hamas, demanding to know whether others spoke Hebrew. Some of the signs featured blatant antisemitic imagery, like a slashed-out Star of David or a drawing of Northwestern's President Schilll—a Jewish man—with horns and blood dripping from his mouth.

Free Speech Campus Free Speech Harassment Anti-Semitism

Show Comments (19)

Today the Supreme Court decided two related state court cases. The question presented was whether New Jersey Transit is an arm of the New Jersey government, and therefore protected from suit by sovereign immunity. The New York Court of Appeals (the highest court in New York) found that NJ Transit was not an arm of the government. The Pennsylvania Supreme Court found that the transit agency was an arm of the government.

Through Justice Sotomayor's unanimous decision, the Supreme Court resolved this two-way split by favoring New York's holding.

This pair of cases arises out of two accidents, one in New York City and one in Philadelphia, in which New JerseyTransit buses struck and injured people. Both victims sued New Jersey Transit, a corporation created by the New Jersey Legislature, in their respective home courts in New York and Pennsylvania. The highest courts in those States diverged as to whether New Jersey Transit is an arm of New Jersey. The Court granted certiorari to resolve whether New Jersey Transit is an arm of New Jersey and thus entitled to the State's sovereign immunity. It is not. Accordingly, the judgment of the New York Court of Appeals is affirmed and the judgment of the Pennsylvania Supreme Court is reversed.

It is rare enough for the Supreme Court to actually resolve a circuit split among state courts. These splits can linger for years. It is rarer still for the Court to settle a split in a single decision. It is rarer still that, in the same week, the Supreme Court rules in favor of Staten Island, but against its cross-river-rival, New Jersey. Look around, look around. At how lucky we are to be alive right now.

Moreover, there is an emergency docket angle. Back in September 2025, the New Jersey Solicitor General sought an emergency stay to block a trial from proceeding against NJ Transit in New York state court. Two weeks later, the Court granted an emergency stay:

Application (25A287) for stay presented to Justice Sotomayor and by her referred to the Court is granted. The Court has already granted certiorari on the sovereign immunity issue decided below, and the pending damages trial before the Supreme Court of the State of New York would be barred if New Jersey Transit Corporation were entitled to sovereign immunity from suit. Respondents, on the other hand, identify no tangible irreparable harm they would face if the trial were delated until after this Court decides the pending case. The trial scheduled for September 15, 2025, in the Supreme Court of the State of New York, New York County, is therefore stayed pending the issuance of the mandate of this Court in NJ Transit Corp., et al. v. Colt, Jeffrey, et al., case No. 24-1113, and Galette, Cedric v. NJ Transit Corp., case No. 24-1021.

Here, the Court stayed the trial, even though the Court would go on to unanimously rule that NJ Transit lacked sovereign immunity. This is a case where emergency relief was granted based on the risk of irreparable harm, and not the likelihood of success on the merits.

Rubio: "We're going to unleash Chiang on these people in the next few hours and days. You're going to really begin to perceive a change in the scope and intensity of these attacks as, frankly, the two most powerful air forces in the world take apart this terroristic regime."

But what the heck does unleash Chiang mean?

Some internet sleuthing tells me that after the Communists took over China and Chiang Kai-shek and the Nationalists fled to Taiwan, conservative commentators argued that the US should support a Nationalist invasion of the mainland. The shorthand for this became "unleash Chiang." Over time, in conservative foreign policy circles, "unleash Chiang" became slang for "unleash overwhelming force."

From a dissent from rehearing en banc Friday in Perez v. City of San Antonio, by Fifth Circuit Judge Andrew Oldham, joined by Chief Judge Jennifer Walker Elrod and Judges Jerry Smith, Stephen Higgenson, Don Willett, and James Ho:

The City of San Antonio plans to destroy a sacred Native American religious site. The burdens on plaintiffs' religious freedoms are undeniable. But a panel of our court dismissed them. In my view, this easily meets the standard for en banc rehearing. And I respectfully dissent from the majority's contrary view….

Gary Perez and Matilde Torres are members of the Lipan-Apache Native American Church. "For centuries, [their] ancestors have gathered at a specific bend along the [San Antonio] River to meditate, worship, and pray." Specifically, church members understand "the trees and cormorants that occupy a twenty-foot by thirty-foot area" near the River to be "the 'axis mundi,'" a bridge between this world and the after-life. These elements form a cohesive "spiritual ecology;" the trees' roots "go into the underworld, underneath the earth," before "ris[ing] all the way up into the heavens," while the cormorants signify "a spirit … [that] scattered life-giving water across the San Antonio River Valley" in the church's creation story. As in many faiths, the trees and cormorants' religious significance to the Native American Church turns on a tight relationship between the sign and the thing signified—"ceremonies cannot be properly administered without specific trees present and cormorants nesting."

The City of San Antonio owns the land on which this sacred site rests, called Brackenridge Park. In 2022, the City announced "reformation efforts" in the Park. Among other things, the City plans to uproot most of the trees in the sacred area and deploy "pyrotechnics, clappers, spotlights, lasers, distress calls, effigies, balloons, explosives, and drones" to keep the cormorants away. The City maintains that this campaign "[will] not harm the birds." But the City concedes that its heavy artillery is intended to and likely will prevent cormorants from nesting in the Sacred Area.

Recognizing a grave threat to their religious practices, Perez and Torres sued under, inter alia, the Texas Religious Freedom Restoration Act ("TRFRA"). They sought an injunction preventing the City from moving forward with its destructive campaign…. [A Fifth Circuit panel decision] held that the City's campaign of tree removal, pyrotechnics, lasers, and explosives would not substantially burden the plaintiffs' religious practice and, even if it did, the City's deforestation and artillery were the least restrictive means of furthering its compelling need to repair the park….

That's wrong on both counts. But the substantial-burden point is the most egregious. First, the City's plan substantially burdens religious conduct under any reading of TRFRA. Second, the panel majority's faulty substantial burden analysis poses a particularly acute risk to minority faiths. Third, the better approach is to apply the same standards to all people.

Religion and the Law

Show Comments (31)

[The third of four blog posts drawing on this week's Hallows Lecture at Marquette Law School.]

It is not just the "three buckets" picture, in combination with the unitary executive theory, as discussed in my first two blog posts, that has warped the design of the U.S. Constitution. A second "unstated idea," the topic of this third post, concerns the delegation of authority by Congress.

There is, of course, the longstanding complaint that delegations by Congress should be reined in, so as to force Congress to legislate greater specificity. This has given us agitation, most prominently by Justice Gorsuch, to overturn the longstanding doctrine that delegations are permissible as long as they include an "intelligible principle" guiding the exercise of discretion—the claim being that a more restrictive doctrine is required. More recently, it has given us the major questions doctrine, which says that far-reaching and controversial exercises of delegated authority will be set aside by the courts absent clear authorization by Congress. These are not unstated ideas—they are quite vigorously asserted and debated.

Rather, I am concerned with two other aspects of congressional delegation that are unstated but have contributed greatly to the deformation of our constitutional structure. The first concerns an extremely casual attitude to certain types of delegation to the President or one of the many administrative agencies.

The case against delegation rests on the proposition that the Constitution, in the first sentence of Article I, gives "[a]ll legislative Powers" to Congress. One would therefore assume that sensitivity to delegation would be at its height when the President or some regulatory agency claims the power to issue so-called "legislative rules"—regulations that have a force and effect similar to that of a statute. At one time, the courts were very cautious about such delegations, and said they would refuse to recognize agency rules having the force of law unless they were explicitly authorized by Congress.

Congress Nondelegation

Show Comments (7)

3/4/1861: President Abraham Lincoln's inauguration.

Show Comments (451)

In Employment Division v. Smith, a Native American used peyote as part of a religious ritual. This is not a recreational drug that people get addicted to. Rather, it is a very strong drug that causes hallucinations. And from what I've heard, it has serious side effects. Some years ago, one of my students had tried it as part of a religious ritual. He described the ritual as meaningful, but said the peyote was extremely unpleasant, and he could not stop vomiting. But I take it as a testament to faith that people endure through a ritual, even when it has unpleasant side effects.

While most students are familiar with Smith, far fewer people remember Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006). This was Chief Justice Roberts's first majority opinion on the Court. Here, a sect from the Amazon rainforest used hoasca, also known as ayahuasca, as part of a religious ritual. The group argued that under RFRA, they should receive an exemption from the enforcement of the Controlled Substances Act. Hoasca is similar to the peyote at issue in Smith. Indeed, the Court found that because an exemption was granted for peyote, a similar exemption should be grated for hoasca.

Everything the Government says about the DMT in hoasca—that, as a Schedule I substance, Congress has determined that it "has a high potential for abuse," "has no currently accepted medical use," and has "a lack of accepted safety for use … under medical supervision," 21 U.S.C. § 812(b)(1)—applies in equal measure to the mescaline in peyote, yet both the Executive and Congress itself have decreed an exception from the Controlled Substances Act for Native American religious use of peyote. If such use is permitted in the face of the congressional findings in § 812(b)(1) for hundreds of thousands of Native Americans practicing their faith, it is difficult to see how those same findings alone can preclude any consideration of a similar exception for the 130 or so American members of the UDV who want to practice theirs.

I hadn't given much thought to hoasca until oral argument in Hemani on Monday. Justice Kagan raised a hypothetical about whether a user of hoasca could be subject to a categorial bar on firearm ownership.

JUSTICE KAGAN: Suppose, Ms. Murphy, Congress tomorrow says, you know, we're afraid that this Controlled Substances Act is not really doing it for us in this area, so we're going to come up with a list of particular drugs that we -- we want to be able to take away people's guns. And the first on that list -- I'm going to say I don't know a lot about this drug, I'm assuming you don't know a lot about this drug, so what I'm going to tell you about this drug let's just assume is the truth about this drug. So it's -- the drug is Ayahuasca, and it's a very, very, very intense hallucinogen, and the -- the episode lasts a very long time. But it's not, let's say, an addictive drug. You know, you can choose when to take it. But, when you're in its grip, like, you basically -- reality dissolves, all right? And I'm assuming that Congress has a good reason for saying, when reality dissolves, you don't want guns around. So -- but that to me, when you give the description of the historical analogue, to me, that's going to fail your test. Should it fail your test?

It does not seem that Justice Barrett was familiar with hoasca, the drug at issue in O Centro:

JUSTICE BARRETT: I was just going to give you a variation of Justice Kagan's hypothetical. I have never heard of the drug that she was -- is that real? Okay.

(Laughter.)

Justice Kagan's hypothetical was very difficult because there is both a religious liberty issue and a Second Amendment issue. If the religious liberty claim is asserted under the Free Exercise Clause, we may get to the "hybrid" right formulation that Justice Scalia described in Smith. In other words, the Free Exercise Clause would reinforce the Second Amendment clause. How would this work? The government would be banning people of this sect from using this controlled substance, and then would be banning those who use this drug for religious reasons from having a firearm. The government might simultaneously violate the First and Second Amendment.

The issue becomes a bit clearer under RFRA. The Court already ruled in O Centro that those who use Ayahuasca should receive an exemption from the Controlled Substances Act, as the ban is not the "least restrictive means." I am not entirely sure how RFRA would interact with Section 922 in light of the Second Amendment. But at a broad level, I don't think a person could be disarmed for engaging in a religious sacrament.

I don't think this question is easy, but my tentative conclusion is that the ayahausca ban would fail the historical tradition test.

Of course, there is still the question of sincerity. I tend to think that people who belong to this sect, and take a drug that has such severe side effects, can make the case that they have a sincerely held religious belief. I also think this sect is an actual religion, and not a faith manufactured for purposes of litigation like the Church of Marijuana or something to that effect.

Despite all of the attention that Dobbs has received, I think the decision is still poorly understood. Consider the divide between the majority and dissent in Mirabelli v. Bonta. In this case, parents raised a substantive due process claim that they had the right to direct the upbringing and medical care of their children. And the Court relied on substantive due process to grant relief. But as Justice Kagan pointed out in dissent, the per curiam opinion gave SDP the Voldemort treatment:

But the very phrasing the Court uses betrays the delicateness of the operation: Even in recognizing that parental right, the Court cannot quite bring itself to name the legal doctrine—it is, again, substantive due process—that provides the right's only basis.

Kagan writes further that the Court has, of late, expressed some skepticism of substantive due process:

Anyone remotely familiar with recent debates in constitutional law will understand why: Substantive due process has not been of late in the good graces of this Court—and especially of the Members of today's majority. The Due Process Clause, needless to say, does not expressly grant parental rights of any kind. The relevant text bars a State only from depriving a person of "liberty" "without due process of law." Members of the majority often have expressed skepticism—sometimes outright hostility—to understanding the "capacious" term "liberty" to enshrine specific rights. Dobbs v. Jackson Women's Health Organization, 597 U. S. 215, 239 (2022).

Justice Kagan quotes several pre-Dobbs opinions that attack the Warren Court's conception of SDP, including Justice Thomas in McDonald and Obergefell, and Justice Gorsuch in Sessions. Kagan also quotes from Justice Kavanaugh's Dobbs concurrence, which stated that the "Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution." Here, Kagan feels "whiplash," as the Court in Mirabelli accepted an SDP right of parents to direct the upbringing of their child, even as Dobbs "repudiat[ed] a woman's right to make important decisions about her own health."

Let me alleviate Justice Kagan's confusion. All five members of the Dobbs majority accepted the version of substantive due process articulated in Glucksberg: the Due Process Clause protects those rights that are deeply rooted in text, history, and tradition. The right of parents to direct the upbringing of their children falls squarely in this tradition. The purported right of a woman to end a pregnancy does not. Glucksberg expressly repudiated the notion that you can define abortion at the broad level of generality of a woman "mak[ing] important decisions about her own health." Stated at the right level of generality, the Constitution protects the right of parents to safeguard their offspring, not the right of parents to terminate their offspring. This issue isn't very difficult.

Justice Barrett summarizes the state of the doctrine in her concurrence, which was joined by the Chief Justice and Justice Kavanaugh. And Chief Justice Roberts, by joining Justice Barrett's concurrence, has now embraced the methodological approach from Dobbs.

As the dissent observes, substantive due process is a controversial doctrine. Judges typically interpret express constitutional rights, such as the freedom of speech or religion. But substantive due process asks us to find unexpressed rights in a constitutional provision that guarantees only "process" before a person is deprived of life, liberty, or property. U. S. Const., Amdt. 14, §1. When rights are unstated, how do judges know what they are? The obvious risk is that judges will use their own values as a guide, thereby jeopardizing the People's right to self-governance. To mitigate this risk, the Court has crafted a demanding test for recognizing unexpressed rights: They must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted). Relevant here, the doctrine of substantive due process has long embraced a parent's right to raise her child, which includes the right to participate in significant decisions about her child's mental health. See Pierce v. Society of Sisters, 268 U. S. 510 (1925); Meyer v. Nebraska, 262 U. S. 390 (1923); Parham v. J. R., 442 U. S. 584 (1979). The parent-applicants are likely to succeed on the merits under a straightforward application of these cases.

Pierce and Meyer would squarely fit under the Glucksberg test. Or better, Glucksberg derives from cases like Pierce and Meyer. There is absolutely nothing inconsistent about the Court rejecting Roe and Casey, while reaffirming Pierce v. Society of Sisters and Meyer v. Nebraska. The right to abortion was invented by judges of wisdom. The right of parents comes from time immemorial.

Consider Justice McReynold's list of rights from Meyer:

While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive, but is subject to supervision by the courts.

If a right is listed in this passage, it would fit under Glucksberg

Next, Justice Kagan takes an unfair shot at Justice Thomas. Footnote 2 of the dissent states:

From today's long decision in Stepp v. Lockhart, by Tenth Circuit Judge Scott Matheson, joined by Judges Gregory Phillips and Veronica Rossman (there's a lot going on there besides the single-sex education question as well):

We conclude the SAC [Second Amended Complaint] plausibly alleged an equal protection violation based on the sex segregation policy. The policy classified fifth-grade students on the basis of sex and thus is "subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment." It is subject to intermediate scrutiny, meaning Defendants must provide an "exceedingly persuasive justification for [the] classification."

The SAC alleged that "[u]nderpinning Defendants' decision to segregate [TES's] fifth grade class based on sex were offensive and outdated stereotypes about boys and girls, their behavior, and the discipline and instruction permissible for or required for each." The SAC further alleged that "Defendants had no legitimate basis, at law or in fact, to implement a policy of sex segregation at [TES]." The SAC also alleged that defendants acted "knowingly, intentionally, and/or recklessly" in "adopting, implementing, and enforcing" the sex-segregation policy. Thus, we conclude the SAC stated a viable equal protection challenge….

Equal Protection Education

Show Comments (26)

Mirabelli v. Bonta represents an important installment in the Supreme Court's developing emergency docket jurisprudence. Indeed, I think it is extremely significant that both Justices Barrett and Kavanaugh appear to be on the same page, and are joined by Chief Justice Roberts. Justice Gorsuch did not join the concurrence, but I suspect that was because of the substantive due process analysis. (More on that topic later.) Justice Gorsuch has never been a shrinking violet on the shadow docket. At this point, all six Justices seem to agree when and why emergency relief is proper.

First, unlike with Malliotakis, the Court issued a seven-page per curiam opinion that explained all facets of the Court's ruling. On top of that, Justice Barrett wrote a four-page concurrence that responded to Justice Kagan. It is true that the Court did not hold oral argument. Moreover, as Justice Kagan reveals in her dissent, the Court did not "deliberate in conference." But it does not appear those steps were necessary. Six members of the Court thought this case was squarely controlled by Mahmoud, a case that the Ninth Circuit gave short thrift to. The per curiam opinion stated:

On the free exercise issue, it relied on a not-precedential Sixth Circuit decision and brushed aside Mahmoud v. Taylor, 606 U. S. 522 (2025), as "a narrow decision focused on uniquely coercive 'curricular requirements.'" App

Justice Barrett added:

The Ninth Circuit (following the Sixth Circuit) significantly misunderstood Mahmoud v. Taylor, 606 U. S. 522 (2025), and general course correction will allow the case to progress efficiently.

The Ninth Circuit was quite skilled at ignoring Heller and McDonald. It is unsurprising they would apply a similar treatment to Mahmoud.

Scheduling emergency docket cases for oral argument may make sense where the issue is close, but where it is lopsided, and controlling federal precedent is ignored, that step seems unnecessary. What would have been gained by allowing Justice Alito to demolish the California Solicitor General? Indeed, I suspect Justice Kagan and perhaps also Justice Jackson would agree with the majority on the merits. Kagan conceded as much:

None of this is to say that the Court gets the merits here wrong. . . . But California's policy, in depriving all parents of information critical to their children's health and well-being, could have crossed the constitutional line. And that would entitle the parents, at the end of the day, to relief.

Second, Justice Kagan repeats her claim that the Supreme Court is simply impatient. I think patience is important, but patience has to be viewed in context. Here, the parents raced to the Supreme Court without first waiting for the en banc Ninth Circuit to act. And, Justice Kagan writes, "The Court jumps the line, pre-empting the Ninth Circuit's normal (and notably reflective) en banc process."

Justice Kagan is the circuit justice for the Ninth Circuit. Would she really call the Ninth Circuit's process "normal"? Is it really "notably reflective"? Justice Kagan must be California Dreamin'. There is nothing "normal" or "reflective" about the en banc Ninth Circuit. Judge Van Dyke has articulated a different perspective about the Circuit of Wackadoo. I think there is a 0% chance that the en banc Ninth Circuit would reverse the unanimous three-judge emergency panel in a case concerning transgender rights. At best, the case would remain pending for months or even a year as several members write dueling concurrals and dissentals. Why would rational litigants wait for this process to play out?

Likewise, why would Representative Nicole Malliotakis wait a few weeks just to have the New York Court of Appeals rule against her? The Supreme Court's emergency docket should not be blind to the fact that litigants who face harm should not have to waste their time in hostile forums.

The parents' case has been pending since 2023. Every day this policy is in effect, parents are suffering irreparable harm over the most important institution in our society: the family. Remember, one child attempted to commit suicide, and only then did the parents learn about the child's condition. Justice Barrett explained:

Under California's policy, parents will be excluded—perhaps for years—from participating in consequential decisions about their child's mental health and wellbeing. Thus, the parents are likely to suffer irreparable harm if California enforces its policy while this litigation winds its way through the courts.

I think the Supreme Court is absolutely right to move promptly on this case, and not wait for a pointless process to play out.

Third, I think Justice Barrett hoists Justice Kagan on her own petard. Kagan has long complained that the Court does not write opinions in emergency docket cases. But now, when the Court writes a detailed opinion, Kagan complains that the majority should not be making a merits ruling in this interim posture. Well, which one is it? Barrett explains:

One last point: The Court has chosen to accompany today's order with a per curiam opinion that explains its reasoning. The choice to say more rather than less is perhaps the source of the dissent's concern that our disposition of this application will be taken as a "conclusive merits judgment."

Barrett then quotes several of Kagan's dissents which critiques the Court for not offering any reasoning. And here, Justice Barrett embraces Justice Kavanaugh's concurrence in Labrador v. Poe, which I thought was one of the most important emergency docket rulings at that point.

Interim applications routinely require the Court to balancethe lock-in risk of saying too much against the transparencycost of saying too little. See Labrador v. Poe, 601 U. S. ___, ___–___ (2024) (KAVANAUGH, J., concurring in grant of stay) (slip op., at 11–12).

Fourth, as Barrett notes, the Ninth Circuit stayed the injunction based on its preliminary judgment of the merits. And they stayed a ruling based on a full merits process. Why can't the Supreme Court make a similar preliminary judgment?

We consider the merits not to conclusively resolve them, but because they bear on the limited question before us: Are the parents entitled to thebenefit of the judgment entered by the District Court whileCalifornia tries to overturn that judgment on appeal? The Ninth Circuit—itself acting on an interim basis—said "no." We disagree. The parents must continue to litigate in theNinth Circuit, and if necessary, this Court. But in the meantime, the injunction of California's policy—which, incidentally, was entered after a full merits process—remains in place.

There really seems to be a double standard. Lower courts are entitled to do whatever they want on their own emergency docket, but the Supreme Court has its hands tied.

Mirabelli offers a beautiful vision of the emergency docket.

Newly-elected Virginia Governor Abigail Spanberger is refusing to cooperate with federal Immigration and Customs Enforcement (ICE) efforts to detain and deport unlawfully present immigrants, including those with criminal records. Whether or not one agrees with this policy, Governor Spanberger is under no obligation to help the federal government enforce federal law. For the same reasons that New Hampshire cannot be required to implement the federal Clean Air Act, states cannot be directed to enforce (or even facilitate the enforcement of) federal immigration law. This is the import of the anti-commandeering principle embodied in cases like New York v. United States, Printz v. United States, and Murphy v. NCAA.

While states may not be commandeered by the federal government, states can be required to comply with generally applicable law--that is, laws that regulate state activities that are otherwise subject to federal regulation, such as employment or the operation of certain functions. States also cannot block federal efforts to enforce federal law directly, such as occurred with Operation Metro Surge. As I have explained previously, Minnesota's arguments that the federal government violated the anti-commandeering principle by deploying federal agents to enforce federal immigration laws in Minneapolis bear no weight.

I unpack the anti-commandeering principle a bit more in my latest Civitas Outlook column. Here is a taste:

The New York decision makes clear why Minnesota's Attorney General Ellison's anti-commandeering argument went nowhere in Minnesota v. Trump. The imposition of otherwise-constitutional burdens on states is a permissible way to induce state cooperation, as is the direct enforcement of federal law, even when it is not to the liking of state governments. This is precisely how "cooperative federalism" works under most federal environmental laws. States are encouraged to embrace federal priorities and agree to enforce federal pollution control laws, and are promised federal financial support for their efforts. Should states refuse, however, the federal government comes in to enforce federal environmental laws directly, often in ways that are more burdensome or disruptive than the state would like. In effect, the federal government tells the states, "if you don't enforce our standards, we'll do it for you, and you won't like it." Indeed, under the Clean Air Act, the U.S. Environmental Protection Agency enforces more stringent regulatory standards in non-cooperative states than in the rest of the country.

While the federal government can offer incentives for state cooperation, the Trump Administration does not have free rein to withhold federal funding from sanctuary jurisdictions or impose sanctions that Congress has not approved. The federal government may impose conditions on the receipt of federal funds, but those conditions must be related to the funding's purpose and — of particular relevance to the debate over immigration — states must have notice of the conditions before the funds are disbursed. Existing precedent also suggests that such conditions should be imposed or authorized by Congress and cannot be declared by executive fiat. This means the Trump Administration will have a harder time withholding federal funds from sanctuary jurisdictions than it might like, unless it gets Congress to go along.

The anti-commandeering doctrine may seem counterintuitive to some (and confusing to some government officials), but it aligns with the federalist nature of our republic. Preventing the federal government from forcing states to enforce or implement federal law reinforces political accountability by clarifying which government officials are responsible for which policy decisions. Yet, as Justice O'Connor explained in her New York v. United States opinion, if the federal government could commandeer state officials, federal officials would be insulated from political consequences for their decisions (should they prove unpopular), and the accountability of both federal and state officials would be "diminished."

You can read the whole thing here.

For those interested in anti-commandeering issues, I have two papers in the works. One unearths some of the anti-commandeering principle's pre-New York history, including the federal government's concession that such a principle exists fifteen years before New York was decided. A second explains why some applications of the Endangered Species Act to state and local governments violate the anti-commandeering principle. I'll post more on both of these subjects in coming weeks.

The Volokh Conspiracy

Twenty-Four States Led by Oregon File Lawsuit Challenging Trump's Section 122 Tariffs

My New Dispatch Article on "Why Donald Trump's Iran War is Unconstitutional"

How the Supreme Court's Conception of Its Role Contributes to the Deformation of the Constitution

Today in Supreme Court History: March 5, 1934

Open Thread

US Court of International Trade Orders Refund of All Illegally Collected IEEPA Tariffs

Court Dismisses Discrimination Claims Against Northwestern Over Alleged Post-Oct. 7 Anti-Semitism

SCOTUS Resolves Two-Way State Court Split About New Jersey Transit

Marco Rubio Threatens to "Unleash Chiang" on Iran. What?

Interesting Dissent in American Indian Religious Case Under Texas RFRA

The Role of Delegation Theories in Deforming the Constitution

Today in Supreme Court History: March 4, 1861

Open Thread

Justice Kagan's Bad Ayahuasca Trip

Substantive Due Process After Mirabelli

Equal Protection Clause Challenge to Single-Sex Public School Classes Can Go Forward

Mirabelli Offers a Beautiful Vision of the Emergency Docket

Confusion about Commandeering

Login Form

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

I WANT FREE MINDS AND FREE MARKETS!

I WANT TO FUND FREE MINDS AND FREE MARKETS

SUPPORT HONEST JOURNALISM

PUSH BACK

HELP KEEP MEDIA FREE & FEARLESS

STAND FOR FREE MINDS

PUSH BACK AGAINST SOCIALIST IDEAS

FIGHT BAD IDEAS WITH FACTS

BAD ECONOMIC IDEAS ARE EVERYWHERE. LET’S FIGHT BACK.

JOIN THE FIGHT FOR FREEDOM

BACK JOURNALISM THAT PUSHES BACK AGAINST SOCIALISM

FIGHT BACK AGAINST BAD ECONOMICS.