The Volokh Conspiracy

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

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, Staten Island. 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

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[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.

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

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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 "make important decisions about her own health." Stated at the right level of generality, the Constitution protects the right to 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

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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.

My hometown of Staten Island is often called the forgotten borough. Everyone knows about Manhattan, Brooklyn, Queens, and the Bronx. But Staten Island is known, if at all, as a conduit to get from New York to New Jersey. In terms of the famous New Yorker magazine cover, Staten Island lies beyond the Hudson River. Yet, Staten Island made it all the way to the Supreme Court's emergency docket, and prevailed.

Yesterday the Court granted a stay in Malliotakis v. Kosinski. The effect of this ruling is that the congressional maps that were previously in effect, and were not blocked by New York's supermajority democratic legislature, will go into effect. New York will not redraw the districts such that the Republican-leaning Staten Island is combined with Democratic-dominant parts of lower Manhattan. This suit was, from the outset, an audacious attempt by Mark Elias to simply create a new Democratic district under the guise of the state Voting Rights Act.

I have several observations about the case.

First, what took so long? The petition stated: "Unless this Court issues a stay by February 23, 2026, New York's congressional elections will be thrown into chaos and uncertainty." But the Court did not rule until March 2. I realize that the word of the day is "impatience," but there were clearly six members of the majority from the outset, and those six members did not feel compelled to explain their reasoning. Justice Sotomayor wrote a thirteen page dissent. Did she really need nearly four weeks to write this dissent? To what extent does the majority have to wait for the dissent to be circulated? At least in Galveston, Judge Brown wouldn't wait 24 hours for Judge Smith's dissent to avoid Purcell problems. But why should SCOTUS wait four weeks, thereby generating potential Purcell problems? Wouldn't it have been better for everyone involved for the Court to issue the stay by February 23, and state that a dissent is forthcoming? The Court did not wait for Justice Alito's dissent in A.A.R.P. v. Trump, which was published several days later. In one of my draft pieces on Supreme Court reform, I propose that six Justices can force a judgment to be issued immediately, even if opinions are not yet ready. Call it a Quirin quorum.

Second, the majority does not explain its reasoning, but Justice Alito does. Can we reasonably infer that the majority agrees with Justice Alito? Likely no. Indeed, the fact that the per curiam opinion offered no reasoning suggests that the Court (and by the Court, I mean Justice Barrett) has not yet coalesced around a single reason. There is a real contrast with Mirabelli, where Justice Barrett had (likely) made up her mind. If I had to guess, Barrett sees the risk of undoing an election as untenable, so the Court, were it to ever intervene, would have to do so here. The Elias-preferred maps can always be used for the next election.

Third, what do we make of the fact that the Supreme Court did not wait for the New York Court of Appeals to issue a ruling? Well, let's talk about A.A.R.P. v. Trump again. As readers will recall, the Supreme Court found that the district court's failure to rule on an emergency motion in the span of a few hours was a constructive denial, and then the Supreme Court felt compelled to intervene before the Fifth Circuit had even issued a ruling. (As it turns out, the Fifth Circuit ruled a few moments after the Supreme Court did, and the Supreme Court almost certainly knew that ruling was coming, but the Chief Justice never sweats the details.) All of this happened in the span of 24 hours. Perhaps some may say a different standard should apply where alleged gang members, who were undoubtedly removable under other authorities, were at risk of being removed. I would reply that the clearly established rights of residents of Staten Island to be represented under constitutional maps is of a greater importance than those of purported alien enemies trying to fight removal.

Moreover, while the Texas courts moved with remarkable dispatch, it could be argued that the elected judges of the New York courts were not exactly moving with all deliberate speed. Why would they? The safer course of action is to do nothing and let SCOTUS bail them out. Only two years ago, Hector LaSalle, Governor Hochul's nominee to be Chief Judge of the New York Court of Appeals, was blocked for being insufficiently progressive. A New York judge who ruled for the Republicans would likely see massive blowback. The need for review by life tenured Article III judge is especially apt here. If the Supreme Court could find a constructive denial in Texas, then a constructive denial in New York should have been very easy to find.

Fourth, even if there was not a constructive denial, the Supreme Court can enter relief because it is"necessary or appropriate in aid of [our] jurisdiction." 28 U. S. C. §1651(a). I am not a fan of reading this provision broadly, but it has been read broadly. The Supreme Court invoked this standard in A.A.R.P. v. Trump. The implication was that if the alleged enemy aliens were removed, the Court would not have jurisdiction to consider their cases in the future. I vigorously disagreed with that ruling. Indeed, I thought this case had a Marbury problem, as there Supreme Court ruled without the benefit of any lower court ruling. At least in New York, the state trial court had issued a ruling. Given what the Supreme Court did in the Alien Enemies Act case, I am not troubled by the jurisdictional rulings in Malliotakis. Indeed, the case for Supreme Court intervention seems much clearer in Staten Island than in Texas. The rule for Staten Islanders should be at least as, if not more protective, than the rule for alleged members of Tren De Aragua.

Fifth, let's talk about the merits. Justice Alito contends that the enforcement of the state voting rights act is blatantly unconstitutional under the Equal Protection Clause:

That is unadorned racial discrimination, an inherently "'odious'" activity that violates the Fourteenth Amendment's Equal Protection Clause except in the "most extraordinary case." Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 181, 208 (2023). Extraordinary circumstances exist only when the challenged state conduct is narrowly tailored to achieve a "compelling" interest, and our precedents have identified only two compelling interests that can justify race-based government action: (1) mitigating prison-specific risks and (2) "remediating specific, identified instances of past discrimination that violated the Constitution or a statute." Id., at 206–207. Neither of those interests is present here. Instead, the court based its injunction on an interpretation of state law. But under the Supremacy Clause, a state law cannot authorize the violation of federal rights. It is therefore an understatement to say that applicants are likely to succeed on the merits of their equal protection claim.

It seems likely that Justice Alito is going to write the majority opinion in Callais. No one felt compelled to respond to Alito here. Justice Sotomayor offers no defense of the New York court's ruling, at all. I suspect this passage will be cited in Callais, which might come tomorrow?

For more on the backstory, see these posts; an excerpt from one:

This case arises out of the tragic murder of four University of Idaho students in November 2022. Plaintiff Rebecca Scofield is a professor at the University of Idaho. She alleges that, despite never meeting any of these students or being involved with their murders in any way, Defendant Ashley Guillard posted numerous TikTok (and later YouTube) videos falsely claiming that Plaintiff (i) had an extramarital, same-sex, romantic affair with one of the victims; and then (ii) ordered the four murders to prevent the affair from coming to light….

Plaintiff asserts two defamation claims against Defendant: one is premised upon the false statements regarding Plaintiff's involvement with the murders themselves, the other is premised upon the false statements regarding Plaintiff's romantic relationship with one of the murdered students.

Free Speech Libel

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The Independent Law Journal is a new faculty-led legal journal aimed at helping reform academic legal publishing and promoting ideological diversity and faculty participation in article review. It has already published its first issue, which includes articles from law professors at NYU and Texas, and professors in other fields at Illinois and Cal Poly.

The ILJ is led by a faculty board of distinguished scholars (from the law schools at Penn, Vanderbilt, Columbia, Harvard, Cornell, Virginia, Notre Dame, Yale, Berkeley, and Northwestern), who do the final screening on each published article. Initial article screening and editorial work is conducted by an editorial staff of judicial clerks, SJD candidates, and law students (currently ones from UCLA, Duke, Virginia, Harvard, BU, Cornell, and Washington & Lee).

The ILJ is now recruiting more judicial clerks, SJD candidates, legal fellows, and junior faculty interested in serving on the editorial staff. (It's not currently looking for more law student editors.) Editor positions run for one-year renewable terms. Being an editor at the ILJ provides people interested in legal scholarship and academia an opportunity to engage with the cutting edge of current legal scholarship by reviewing, editing, and providing feedback on scholarly pieces on a wide variety of legal issues. Those interested can find more details on how to apply at the ILJ's website.

Politics

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[The second of four blog posts drawing on yesterday's Hallows Lecture at Marquette Law School.]

My first blog post set forth the implicit but widely accepted "three buckets" picture of the government's structure underlying the Supreme Court's separation of power cases, under which if a federal entity is not part of Congress or part of the judiciary, it inevitably follows that it must be in the Executive Branch. The three buckets conception becomes deformative of the Constitution's design when it is combined with another idea that is explicitly and repeatedly asserted by the President's lawyers—the idea of the "unitary executive."

Ever since the Reagan Administration, lawyers working in the Executive Branch have asserted that the President must have the authority to control everything that happens in the Executive Branch. This advocacy has paid off: The Supreme Court has embraced the idea nearly in full—from the Trump immunity decision to a series of decisions giving the President the authority to remove the head of administrative entities.

The justification for the unitary executive proposition is the vesting clause of Article II of the Constitution, which says that "[t]he executive Power shall be vested in a President of the United States." The unitarians argue that this means all executive power must be subject to the control of a single person—the President. This is a lot of weight to put on the use of a singular indefinite article—"a"—in an introductory clause of an Article of the Constitution, but let that pass.

The point is that once the legal system encompasses an unstated idea—that the executive branch is a residual bucket into which all government activity flows that cannot be ascribed to the legislative or the judicial buckets—and this is combined with an expressly stated idea that everything in the executive bucket must be controlled by the President, what do you get? You get a federal government in which the President exercises enormous power.

Perhaps if we had a fairly narrow conception of the executive power—as, say, the power to determine when to initiate enforcement actions by the federal government—the unitary executive thesis would not be so destabilizing. Maybe the Federal Trade Commission, which has the power to sue to enjoin certain mergers, should lose its ability to perform this function without presidential control. But once the unstated picture of three buckets takes hold, and is combined with a zealous faith in the notion of a unitary executive, then everything in a very large and residual bucket falls within the discretionary control of the President.

Executive Power

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3/3/2019: Schenck v. United States decided.

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Mirabelli v. Bonta is a momentous emergency docket ruling that was frankly not on my radar. Sooner or later, I expected the Supreme Court to take case where a school district refused to tell parents that their child was engaging in a gender transition. What made these cases so tricky is that whenever litigation began, the districts conveniently changed the policy in an attempt to moot out what would be a certain loser. No one actually wants to defend these policies on the merits. But I thought the Court would resolve such a case on the merits docket. For example, in July 2025, ADF filed a cert petition in Foote v. Ludlow on appeal from the First Circuit. The briefing in that case concluded in November 2025, but the case entered relist purgatory with eight relists. Apparently, there are not four votes for cert in this case.

Yet the Court was willing to take action in Mirabelli. The emergency application was filed on January 8, and briefing concluded on January 22. About six weeks later, the Court has now ruled. In dissent, Justice Kagan asks why the Court acted here, and not in Foote. And if not in Foote, why not in one of the many other cases that are lined up? If I had to guess, this ruling from District Court Judge Benitez is the only one where the lower court actually ruled for the parents, and built an suitable record. Perhaps in the other cases, there were vehicle problems aided and abetted by judges who tried to make the cases vanish. But I'm not sure.

The votes in Mirabelli were not entirely clear. The emergency application raised two primary points. First, the parents had a Free Exercise and Substantive Due Process right to opt out of the gender policy. Second, the teachers had a Free Exercise, but not Substantive Due Process right, to opt out of the policy. Only Justices Thomas and Alito would have ruled for the parents and teachers.

This split reminds me of Justice Barrett's first opinion on the Court in South Bay United Pentecostal Church v. Newsom. In that case, Justices Barrett and Kavanaugh allowed people to pray in church, but not sing; Alito and Thomas, as well as Gorsuch, would have also allowed singing. Here, Barrett did not rule for the teachers; only the parents. In Mirabelli, Justice Sotomayor was the only member of the Court who would have denied the entire application. She would not have ruled for the parents or the teachers. Justice Kagan dissented, joined by Justice Jackson. Sotomayor did not join that dissent, which was surprisingly sympathetic to the claims from the parents on the merits. Justice Barrett wrote a short concurrence, which was joined by the Chief Justice and Justice Kavanaugh. Barrett explains why she voted to grant interim relief, and in particular why a claim under substantive due process was consistent with Dobbs. Indeed, the concurrence goes into more depth than the per curiam opinion.

Was the vote here 6-3 or 5-4? Remember, with a per curiam opinion, a Justice does not need to indicate whether he dissents. It isn't clear at first blush how Justice Gorsuch voted. But Justice Kagan tells us that Justice Gorsuch was with the majority. She writes:

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. . . . Members of the majority often have expressed skepticism—sometimes outright hostility—to understand- ing the "capacious" term "liberty" to enshrine specific rights. . . . Another has pointed to the "judicial misuse of the so-called 'substantive component' of due process to dictate policy on matters that belonged to the people to decide." Sessions v. Dimaya, 584 U. S. 148, 191 (2018) (GORSUCH, J., concurring in part and concurring in judgment).

In other words, Gorsuch is another member of the majority today.

If that is right, presumably Justice Gorsuch agreed with the per curiam opinion, but did not agree with Justice Barrett's concurrence. Why? Barrett offers some thoughts on substantive due process, which Justice Gorsuch likely disagrees with. So that might make some sense why he doesn't go along with the concurrence.

Then there is Justice Thomas, who has repudiated substantive due process in Dobbs and elsewhere. Justice Kagan questions whether Thomas's repudiation extends to Meyer and Pierce:

For that reason, JUSTICE THOMAS has called for overruling "all" of this
Court's "substantive due process precedents." Dobbs, 597 U. S., at 332–
333 (concurring opinion). That invitation presumably extends to the
precedents supporting both the District Court's decision and today's per
curiam. See ante, at 5–6 (citing Meyer v. Nebraska, 262 U. S. 390 (1923);
Pierce v. Society of Sisters, 268 U. S. 510 (1925); and Parham v. J. R., 442
U. S. 584 (1979)); App. to Emergency Application 38a–39a.

I'm not so sure. I think Thomas could support Meyer and Pierce under the Glucksberg framework as deeply rooted rights. After all, Thomas went along with Glucksberg in Dobbs. Moreover, no one has asked the Court to revisit Meyer and Pierce. Or perhaps Thomas sees the rights of family as protected by the Privileges or Immunities Clause of the Fourteenth Amendment.

We should not forget Justice Thomas's brief concurrence in Troxel v. Granville (2000):

I write separately to note that neither party has argued that our substantive due process cases were wrongly decided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenumerated rights under that constitutional provision. As a result, I express no view on the merits of this matter, and I understand the plurality as well to leave the resolution of that issue for another day.[*]

[*Note: This case also does not involve a challenge based upon the Privileges and Immunities Clause and thus does not present an opportunity to reevaluate the meaning of that Clause.See Saenz v. Roe, 526 U. S. 489, 527-528 (1999) (Thomas, J., dissenting).]

Consequently, I agree with the plurality that this Court's recognition of a fundamental right of parents to direct the upbringing of their children resolves this case. Our decision in Pierce v. Society of Sisters, 268 U. S. 510 (1925), holds that parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them. The opinions of the plurality, Justice Kennedy, and Justice Souter recognize such a right, but curiously none of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights. Here, the State of Washington lacks even a legitimate governmental interest—to say nothing of a compelling one—in second-guessing a fit parent's decision regarding visitation with third parties. On this basis, I would affirm the judgment below.

As they say, if you shoot the king, you best not miss. And I think Justice Kagan missed here.

What happens now to Foote? Can the Court GVR in light of Mirabelli? Heads will explode if the Court remands on the shadow docket based on a shadow docket ruling.

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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

SCOTUS Saves Staten Island

$10M Award to Idaho Prof Accused of Murder Based on Defendant's "Psychic Intuition"

Faculty-Run Independent Law Journal Looking for Editors (Law Clerks, SJD Students, Fellows, or Junior Professors)

The "Unitary Executive" Theory's Contribution to the Deformation of the Constitution

Today in Supreme Court History: March 3, 2019

Open Thread

Counting The Votes In Mirabelli v. Bonta

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