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Second Amendment Roundup: Supreme Court Decides Wolford
Aloha to Hawaii’s Vampire Rule on private property open to the public.
On June 25, the Supreme Court decided Wolford v. Lopez, holding 6-3 that Hawaii may not "prohibit licensed concealed-carry permit holders from carrying handguns on private property open to the public unless the property owner gives express permission." Justice Alito delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Justice Kagan dissented, as did Justice Jackson, joined by Justice Sotomayor.
The Court calls out both lower courts and states that have resisted its Second Amendment jurisprudence. In the dozen years between McDonald and Bruen, "lower courts rejected nearly all Second Amendment claims based on reasoning that resembled that in Justice Breyer's Heller dissent." "After Bruen, Hawaii and four of the other five States called out by our decision adopted a new method of restricting law-abiding citizens from carrying firearms for self-defense by flipping the default rule on private property open to the public." They enacted what has become known as the "Vampire Rule," under which guns are banned on private property open to the public unless a "Guns Welcome" sign is posted or other affirmative consent is given. As to such signage: "Some proprietors who do not themselves object to entry by carry-permit holders may be reluctant to post a sign welcoming such individuals for fear of alienating other customers."
The same states also enacted "sensitive place" bans in public parks, assemblies, and certain establishments. As Wolford notes about Hawaii, "On a large portion of the land within the State's boundaries, possession of a firearm is now flatly prohibited." While these absolute bans have been challenged, the Court's comments do not bode well for them should they reach the Court. (On the Second Circuit's false historical narrative in Antonyuk upholding New York's place bans, see my exposé here.)
To consider the overwhelming impact of Hawaii's Vampire Rule, the Court lists places that people routinely visit on a daily basis where they cannot be armed, such as gas stations, convenience stores, restaurants, coffee shops, drug stores, grocery stores, "big box" stores, home improvement stores, barber shops or hair salons, dry cleaners, and laundromats. A day in the life of a hypothetical Ms. Caetano (based on Justice Alito's concurrence in Caetano) is traced to show the impossibility of asking for actual consent to enter one place after another when armed – the person is already in violation when in the parking lot and when looking for someone with authority to give consent.
At the jurisprudential level, Wolford starkly clarifies the methodology of text first and history second, which are often flipped to uphold infringements. In determining whether a law clashes with the plain text, three questions arise:
First, does the law apply to "the people"—which is to say, to "all members of the political community"? …. Second, does it concern any form of "Arms," i.e., any weapon customarily used for offensive or defensive purposes? … Third, does the law place any restrictions on either the "keep[ing]" (i.e., possession) or the "bear[ing]" (i.e., carrying) of arms?
Regarding "the people," in the Court's recent decision in Hemani, the Court referred to "the right of 'all Americans' to keep and bear firearms for self-defense." Curiously, the summary of prior precedents in Wolford does not mention Hemani. Maybe that's of no significance, as Hemani tested purported historical analogues as applied to the ban on firearm possession by pot users (see my post here) without introducing any new doctrines. It has also been suggested that Wolford was finalized before Hemani but simply not handed down before it.
Arms "customarily used" for offense or defense, the Court elsewhere noted, "refers to implements used for offense or defense," such as handguns that are (quoting Heller) "overwhelmingly chosen by American society" for self-defense. Perhaps next Term the Court will grant cert in a case that will confirm how the American people customarily and overwhelmingly choose semiautomatic rifles for self-defense.
Given that Hawaii banned activity that is clearly within the text – "the people" are "bearing arms" – the burden is on the state to justify it by historical tradition. That entails consideration of the number of jurisdictions that adopted analogous laws, the extent to which they were well-accepted (such as being judicially upheld or being "open, widespread, and unchallenged"), and whether the analogues are "relevantly similar" to the modern law. That last factor entails "how" and "why" the analogue restricted the right.
For analogues, Hawaii "recounts its long history of antipathy to the private possession of firearms. It tells us that one of the very first written laws of the Kingdom of Hawaii, issued in 1833 by King Kamehameha III, prohibited the possession of all deadly weapons." That fell flat with the Court, as "the Second Amendment has the same meaning in all parts of the United States…. It cannot give way to 'the spirit of Aloha' in Hawaii [citing State v. Wilson (Haw. 2024)], any more than it can yield to the spirit of the Big Apple (Bruen) or the Windy City (McDonald)."
But most of Hawaii's analogues were colonial or founding laws that prohibited unauthorized hunting of deer or small game on someone else's private property, which flunked both the "how" and "why" tests. They are not "relevantly similar" to Hawaii's law because prohibiting unauthorized hunting on private land has no relation to banning the carrying of a handgun for self-defense at a gas station or other private property open to the public without express consent.
But "the State's most remarkable analogue" is the 1865 Louisiana statute that made it unlawful "for any person or persons to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor…." Not only was that law "neither widespread nor widely accepted," it was "part of Louisiana's Black Code" that "provided a tool for disarming blacks and thus leaving them defenseless against attacks." "Unless we put history entirely out of our minds, Hawaii's claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously." (For more details, see my amicus brief for the National African American Gun Ass'n.)
Justice Barrett, joined in part by Justice Thomas and Justice Gorsuch, doubled down on the discrepancy between the purported analogues and Hawaii's law, which "does not target any particular abuse of firearms at all. Rather than identifying a specific threat to public peace and safety, Hawaii admits that it enacted the rule because many of its citizens oppose the public carry of guns." However, "Mere disapproval of protected conduct is not a valid reason to severely restrict it."
Justice Kagan's brief dissent simply asserts that the historical laws cited by Hawaii sufficed as proper analogues, which "is enough for me to resolve this case, without addressing Bruen's step-one inquiry or the use at step two of Louisiana's Black Code." Good way to avoid two of the case's sticking points.
Finally, Justice Jackson, with whom Justice Sotomayor joins, dissenting, reminds us once again that, "For what it is worth, I think Bruen was wrongly decided." As to the analogues, Louisiana's 1865 law and the other Black Code provisions violated the antidiscrimination portion of the Fourteenth Amendment (although the words "equal protection" don't appear in her dissent), but did not violate the Second Amendment.
In so arguing, Justice Jackson quotes General Sickles' 1866 order rescinding South Carolia's Black Code where he stated, "The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed." She adds that "in his view, no person (of any race) had the right to carry a firearm onto private land without consent." But Sickles actually said that the right to bear arms "did not "authorize any person to enter with arms on the premises of another against his consent." That expressed the traditional common-law rule that Wolford upholds, namely that private property open to the public implies a license to enter, absent notice otherwise.
The Supreme Court's Badly Flawed Ruling in the Haiti TPS Case
Extensive evidence indicates that the decision to end Temporary Protected Status for Haitian migrants was motivated by unconstitutional racial and ethnic discrimination. The Court's ruling on statutory issues also has flaws.
In my last post, I explained why today's Supreme Court Second Amendment ruling was right. In this one, I explain why its decision in Mullin v. Doe, the Haitian Temporary Protected Status case, is badly wrong. This case involves a challenge to the Trump Administration's decision to terminate Temporary Protected Status (TPS) for hundreds of thousands of Haitian and Syrian migrants in the US. TPS status protects from deportation migrants who entered the US from countries where conditions such as war, violence, or natural disaster make it dangerous for them to return home.
The Haitian and Syrian plaintiffs argued (and lower courts agreed) that the Trump administration violated various procedural requirements in terminating their status. The Haitians also contended (correctly, as well shall see) that the withdrawal of TPS status in their case was motivated by racial and ethnic bigotry, and thus a violation of the Constitution for that reason.
The constitutional question here is somewhat similar to that in Trump v. Hawaii (2018), where the Court upheld Trump's first-term travel ban barring residents of Muslim-majority nations, despite extensive evidence Trump was motivated by anti-Muslim prejudice and discrimination. But, in that case, the Court ruled that a much lower standard of review applied than would normally be the case, because the context was a policy excluding non-citizens from entering the United States (in previous writings, I have explained why the Court was wrong to apply such a low standard; see here and here).
In this instance, the majority did not address the issue of whether a lower standard of review applies to withdrawal of legal status from migrants already in the US. Instead, Justice Alito's majority opinion concludes the plaintiffs should lose even under normal standards applicable to facially neutral laws and regulations that may have been enacted for unconstitutional discriminatory reasons. This conclusion is badly wrong.
Evidence of anti-Haitian bigotry motivating Trump and other officials involved in the decision is overwhelming. Justice Elena Kagan summarizes some of it in her dissent:
[T]he Haiti plaintiffs have carried their burden. The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print….
So here are some of those statements. Haitians are "eating the dogs . . . . They're eating the cats. They're eating—they're eating the pets of the people that live [in Springfield, Ohio]." 2 App. 802; see id., at 644. And: Haitians are also eating "other things too that they're not supposed to be." Id., at 698–699. And: Haitians in the United States "probably have AIDS." Id., at 698. And: Haiti is a "shithole country," which is "filthy, dirty, [and] disgusting." Id., at 698–699. And: Haitian immigration is "like a death wish for our country." Id., at 698. And: Haitians, along with some others, are "poisoning the blood" of our country. Id., at 698. And: "Why is it we only take people from shithole countries" like "Haiti [and] Somalia"? "Why cannot we have some people from Norway [and] Sweden?" Id., at 699. The majority briefly replies that those remarks are not "overtly racial," ante, at 21, but it is hard to know what that means. Haitians are Black. (Norwegians and Swedes not so much.) The references—of filth, disease, and primitiveness—are shot through with racial stereotypes and tropes.
I would add that even if these statements evidence ethnic rather than racial prejudice, the same result follows. Ethnic discrimination is unconstitutional for much the same reason as the racial kind. For example, it is unconstitutional for the government to discriminate against Hispanics, Jews, or Irish, even though these are ethnic rather than racial categories.
Under the Arlington Heights test, which Kagan and the majority both apply, once there is evidence that racial or ethnic prejudice motivated the policy in question, the burden of proof shifts to to government, requiring them to prove they would have adopted the same policy even aside from the these unconstitutional motives. Here, such proof will be difficult to come by, because the evidence is overwhelming that Haiti continues to be wracked by violence, thus making it unsafe for migrants to return there. Thus, there is no good reason to conclude things have actually changed there in a way that makes the TPS designation no longer necessary.
Justice Alito acknowledges that "[p]olitical discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago, and the statements cited by Miot respondents—especially those concerning Haiti and Haitian immigrants to this country—exemplify this development." But he nonetheless claims that there is "a strong, race-neutral explanation of these officials' statements: the
present administration's general stance on immigration" and its general opposition to the use of the TPS program.
The problem here is that this "general stance" is itself heavily infected with racial and ethnic bigotry. Trump and other high-ranking officials have repeatedly engaged in racial and ethnic discrimination in their immigration policies, for example in limiting refugee admissions almost exclusively to white South Africans (an absurd decision that has no plausible non-racial explanation), and in promoting massive racial profiling in immigration enforcement. And it is notable that the President himself repeatedly condemns migrants based on their ethnic and cultural groups. Thus, the "general stance" actually accentuates rather than mitigates suspicions that the Haiti decision was based on discriminatory motives. At the very least, the Court should have recognized there is more than enough evidence to shift the burden of proof to the government.
On the statutory question, the majority relies on a provision of the TPS statute stating that "[t]here is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of
a foreign state under this subsection." The majority claims this means there can be no judicial review of any statutory issue here, at all. Justice Kagan's dissent argues that "determination" only covers factual conclusions about the need for TPS status or lack thereof, but not procedural requirements. The latter, she contends, are not really "determinations."
I am not entirely sure who is right on this point, and will not go into this debate in detail. But I will note that, at the very least, both sides have plausible arguments. Under the majority's approach, the executive would have totally unconstrained power to grant or withdraw TPS status to migrants from any country in the world, completely without limit - potentially tens or even hundreds of millions of people! That triggers the major questions doctrine (MQD), which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." The unlimited power to grant and withdraw TPS status to millions of people is obviously of "vast economic and political significance." And here, it is at the very least not completely clear whether the statute actually does that. Thus, MQD required the Court to rule that there are at least some constraints on the power in question.
If the statute really does give the president such unlimited powers, that raises constitutional nondelegation problems. There are at least some constitutional limits to Congress' power to delegate its authority to the president. And if there are any meaningful limits at all, unconstrained power to grant or deny residency and work rights to migrants from anywhere in the world surely breaches those limits. Elsewhere, I have explained why nondelegation principles apply in the immigration context, in part because the Supreme Court has ruled that immigration restriction is a congressional power.
At the very least, the Trump administrations' interpretation of the law raises serious constitutional problems. And that should have triggered the constitutional avoidance canon, which requires courts to interpret federal statutes in ways that avoid constitutional problems whenever it is "fairly possible" to do so.
As far as I can tell, the plaintiffs in the case did not raise major questions and nondelegation issues, though maybe the courts should have addressed them of their own accord (as they do bear on the statutory interpretation issues the plaintiffs did raise). Perhaps they can be addressed in a future case.
The practical implications of today's ruling are dire. Hundreds of thousands of Haitians and others are now subject to deportation. This will predictably cause grave harm to migrants forced to return to horrendous conditions in Haiti, Syria, and elsewhere. It will also harm many US citizens, who can no longer benefit from these migrants' important contributions to key sectors of the economy. For example, thousands of TPS holders (perhaps about 50,000) work as health care providers, and their expulsion is likely to harm patients and residents of elder-care facilities.
For supporters of expanded immigration rights, there is this silver lining to the Court's statutory ruling: under the approach adopted by the majority, future presidents will have virtually unlimited authority to grant TPS status to any and all migrants - totally unconstrained by either procedural or substantive rules.
In a solo concurring opinion Justice Clarence Thomas argues that the Equal Protection Clause of the Fourteenth Amendment only applies to state governments, and thus its protections against racial discrimination don't apply to federal government actions. He further argues that protections against racial discrimination generally do not apply to immigration policy. These points have radical implications that go far beyond the present case. Among other things, they would give the federal government a blank check to engage in racial and ethnic discrimination in immigration policy, and even beyond it. Thomas claims that federal racial discrimination against US citizens is still barred by the Citizenship Clause of the Fourteenth Amendment. But the dominant view at the time the amendment was enacted was that a wide range of racially discriminatory policies were still permissible, even as to citizens. That's one of the reasons why the Fourteenth Amendment had to be adopted in the first place. Merely granting citizenship was not enough to protect Blacks (or any minority group) against racial and ethnic discrimination.
Sometimes, when Thomas advocates unorthodox ideas unsupported by other justices, he makes excellent points, as with his positions on a number of federalism and property rights issues. Other times, not so much. This is one of the latter cases. If time allows, I may have more to say about Thomas's opinion later.
In sum, this is a bad decision that is likely to have bad real-world effects, at least in the short run. In the long run, some of the effects might cut the opposite way - giving more pro-immigration administrations an opportunity to grant TPS status without any limitations. But that possibility doesn't justify what the Court has done.
Guns, Property Rights, and the Second Amendment
The government cannot force private property owners to allow guns on their land. But the Supreme Court rightly ruled today that it also cannot impose a presumption of exclusion.
I am one of the few people who believe the Supreme Court was very right in its Second Amendment ruling today, in Wolford v. Lopez, but badly wrong in its ruling allowing abolition of TPS status for Haitian migrants in Mullin v. Doe. Both majority opinions were written by Justice Alito; but he did a way better job in one than in the other. In this post, I assess Wolford. I will try to cover Mullin v. Doe later.
In Wolford, the Court struck down a Hawaii law that barred people carrying guns from entering private property "held open to the public" unless they had specific permission from the owner. In a 6-3 decision divided along ideological lines, the Court held the law violates the Second Amendment right to keep and bear arms. The conclusion is right.
Elsewhere, I have argued that red-state laws requiring property owners to allow guns on their land violate the Takings Clause of the Fifth Amendment (see here and here). Private property owners have every right to exclude people who carry guns from their property, just as they also have a right to exclude people for any number of other reasons. But the Hawaii law goes far beyond merely allowing property owners to exclude bearers of guns. It singles out the exercise of a constitutional right for a legal presumption of exclusion. And here I would emphasize that the Second Amendment protects not only the right to own arms, but also the right to "bear" them. Such bearing is often useful for self-defense, particularly in high-crime areas.
Most people would readily agree such a targeted presumption of exclusion is us unconstitutional when it comes to other constitutional rights. As Justice Amy Coney Barrett points out in her excellent concurring opinion, "What if a State made it a crime to wear religious head garb (say, a hijab) onto private property open to the public without obtaining express authorization? Could that statute evade constitutional scrutiny?" We can easily extend the analogy. If the state enacted a law barring people who criticize the president or the state's governor from private property without specific permission from the owner, that would be a violation of the Free Speech Clause. If the state barred the use of contraception on private property (e.g. - hotel rooms) without getting specific permission from the owner, that would be a violation of the right to contraception protected by Griswold v. Connecticut (1965). And so on.
As Barrett notes, this point disposes of Justice Ketanji Brown Jackson's main argument in the principal dissenting opinion (joined by Justice Sotomayor): "that Hawaii's law does not restrict the right to carry a gun at all. Instead, its law vindicates its resident's property rights by operating on the scope of the implied license to enter." The state cannot manipulate those default rules to deliberately disfavor the exercise of a constitutional right. If a state law banned critics of the president or people wearing religious garb from entering private property without specific permission, I doubt Justice Jackson would such a law "does not restrict First Amendment rights at all."
There is also an extensive debate between the majority and the dissent about whether the Hawaii law meets the "history and tradition" test outlined in the Court's 2022 ruling in the Bruen case, which held that gun control regulations can be upheld if they are sufficiently analogous to historically prevalent laws. On balance, I think the majority and Justice Barrett are right to emphasize that most of these laws were narrower than the Hawaii law, and had narrower purposes (e.g. - controlling poaching). But I agree with Justice Jackson that this whole exchange demonstrates - yet again- that the "history and tradition" test is badly flawed, and too easily manipulable. While she thinks the manipulation goes only towards invalidating too many regulations, I think it could just as easily go the other way (or would, if the Court had a liberal majority). Indeed, her own arguments in this case demonstrate how that could happen.
As I explained in my post about the recent Hemani case, the best solution to this problem is to junk the history and tradition test, and replace it with one focused on the text, original meaning, and purpose of the Second Amendment. On that approach, a categorical presumption against bringing guns into any private property "open to the public" pretty obviously has to be struck down. Note that the presumption applies regardless of the type of gun, regardless of whether the owner is doing anything dangerous with it, and regardless of the type of property. That makes it a severe imposition on the core constitutional right to bear arms, and not one that can be justified by any kind of narrowly targeted safety concerns. Things might be different if the law were limited to, e.g., situations where the owner brandished the gun in a dangerous manner.
Part of the debate between the majority and dissent focuses on the notorious Black Codes enacted by southern states after the Civil War, for the purpose of oppressing recently freed slaves and other Blacks, which in this case included restrictions on carrying guns, so as to disarm Black people and render them more vulnerable to coercion by whites. Hawaii and Justice Jackson argue that these laws are appropriate analogues to the current Hawaii law, thereby justifying the latter.
I think it obvious that laws which are themselves unconstitutional (because engaging in blatant racial discrimination) cannot serve as justifying analogues for anything. Indeed Justice Jackson recognizes the Black Codes were unconstitutional, but argues that they might still serve as part of the relevant "history and tradition," because racial discrimination has a long history and was traditional, and because the unconstitutionality here may have been under the anti-discrimination provisions of the Fourteenth Amendment, not the Second Amendment.
I think a law intended to disarm a racial minority pretty obviously violates the Second Amendment, as well as other constitutional provisions. If the mere fact that many states enacted such laws makes them permissible under the "history and tradition" test, that's just another strike against that test. But even within the framework of that test, there is every reason to exclude regulations that are unconstitutional under other provisions of the Constitution (and therefore should never have been allowed to become "traditional" in the first place). Ditto for regulations intended to undermine the central purposes of the Second Amendment, by making people more vulnerable to government and private oppression.
A good rule of thumb is that if defending the constitutionality of a law requires arguing that it is similar to the Black Codes, that probably means the law is actually unconstitutional! And if your test for determining constitutionality gives positive (rather than negative) weight to similarity to the Black Codes, you should junk that test and use a different one.
Something Feels Off About Hemani and Wolford (Updated)
The Court decides two major Second Amendment cases, but the latter does not even mention the former.
On June 18, the Supreme Court decided United States v. Hemani. The case was 9-0, though was fragmented. Justice Thomas concurred, finding that possession statute exceeded Congress's powers under the Commerce Clause. Justices Jackson and Sotomayor repeated their view that Bruen was wrongly decided. And Justices Alito and Kagan concurred in judgment, though I still am not entirely sure what they disagreed with the majority about.
Today, the Supreme Court decided Wolford v. Lopez. There was a time when we had to wait more than a decade for the Supreme Court to decide a Second Amendment case. This year, we get two victories in the span of a week! Here, the Court split 6-3, finding that Hawaii's "vampire" law violates the Second Amendment.
Justice Alito, who did not join Hemani, wrote the majority opinion in Wolford. Part I of Alito's opinion offers an extremely thorough, nine-page discussion of Heller, McDonald, Bruen, and Rahimi. This is a perfect capsule summary to teach students about how the doctrine has developed since 2008. But something very significant is missing: Hemani. Indeed, Justice Alito writes that Rahimi was "our most recent Second Amendment case." What about Hemani, decided seven days ago? Alito does not cite Hemani at all. But Justice Barrett's concurrence and Justice Jackson's dissent does cite Hemani.
What's even stranger is the sequencing. Justice Alito's opinion should have been released first, as it laid out all of the Second Amendment doctrine, and then Justice Gorsuch's opinion could have come out second, and cited back to Alito. But Hemani came out first.
Something feels off here. Maybe Wolford was supposed to come out first, but the Chief wanted to force out the 9-0 Hemani to send a signal of bipartisanship, so the ordering was flipped? I don't like that theory as there were no other blockbusters last Friday. I don't think the majority opinion flipped in Hemani. The only person who didn't write from that sitting was Justice Thomas, and his view on the Commerce Clause was never going to command a majority.
I can't quite put my finger on it, but something happened with Hemani and Wolford.
Update: Is it possible that Justice Barrett may have lost the majority opinion in Wolford? Justice Alito's majority opinion is 24 pages and avoids any major traps concerning property law. It is neat and clean, and offers a cogent summary of all the case law. Barrett's 14 page concurrence gets into the weeds of scrutiny. Barrett only brings along Thomas and Gorsuch for Part II-B. I can see Roberts thinking this opinion about property law reads like something a law professor would write (it is), and jumping ship to the safe harbor of Alito. Even now, the Barrett concurrence covers much of the same ground as the Alito majority. And she responds often to the Jackson dissent, as a majority opinion would. Barrett did not write an opinion for January when Wolford was argued. There were seven cases that sitting, so Alito may not have had an assignment.
This theory still doesn't explain why Alito didn't acknowledge Hemani. Something is up.
Update #2: Justice Alito's concurrence cites Molly Brady's Stanford Law Review Article as "forthcoming 2026" with a parenthetical of ("last revised Feb. 27, 2026") followed by a permalink, which was created on June 4, 2026 at 8:47 am. The permalink was also made private, which usually happens in the case of a copyright violation.
Alito's other permalinks were created on Monday, May 25, 2026 at 10:18 pm, 10:19 pm, 10:42 pm. Glad to see the Alito clerks are burning the midnight oil.
The reply brief was filed on January 9, and the case was argued on January 20. This citation was clearly created by the Alito chambers at some point after the case was argued. Brady's article was published in April 2026. Barrett's concurrence and Jackson's dissent both cite Brady's article in its final, paginated form. Barrett also includes permalinks, which were created in 2025, likely by the parties.
I don't know what this means, but the timeline suggests Alito's opinion was written earlier, but finalized later.
Trump Administration Sweeps All of the (Other) Immigration Cases at SCOTUS
With the Birthright Citizenship case still undecided, the Trump Administration has prevailed in every other immigration case before the Court this term, and some are quite consequential.
Today the Trump Administration completed its clean sweep of the non-birthright-citizenship immigration cases at the Supreme Court. Some of these decisions are quite significant. This highlights that the current Court is quite sympathetic to aggressive executive branch action in the immigration sphere--aggressive action often expressly authorized by Congress--even if it is likely to reject the Administration's unlawful attempt to unilaterally rewrite the law of citizenship.
The first immigration decision today was Mullin v. Al Otro Lado, in which the Court held, 6-3 in an opinion by Justice Alito, that an alien seeking to enter the United States from Mexico does not "arrive in the United States" unless and until the alien actually enters the country. This matters because an alien cannot apply for asylum until arriving in the country, and thus allows the federal government to turn away potential asylum applicants before they may seek asylum.
The second immigration decision today was Mullin v. Doe, in which the Court held, again 6-3 in an opinion by Justice Alito, that the statute authorizing "Temporary Protected Status" bars judicial review of non-constitutional claims challenging the revision or rescission of such status. Finding the sole constitutional claim raise in the litigation unlikely to succeed, the Court vacated the district court order postponing the termination of temporary protected status for aliens from Syria and Haiti pending legal challenges to the termination.
On Tuesday, the Court decided Blanche v. Lau, another 6-3 decision (this one by Justice Thomas) concluding that the Immigration and Naturalization Act does not require a border officer to have "clear and convincing evidence" that a lawful permanent resident has committed a crime of moral turpitude before deeming that individual an "applicant for admission" when re-entering the country. Thus a lawful permanent resident who has committed such a crime, but has not yet been convicted, can be required to reapply for admission after temporary foreign travel. (In this case, Lau had been charged with trademark counterfeiting but was still awaiting trial.)
Not all of the Trump Administration's immigration victories were 6-3, however. Earlier this spring the Administration prevailed in Urias-Orellana v. Bondi, in a unanimous opinion written by Justice Jackson. Here the Court concluded that the INA requires application of the fairly deferential substantial-evidence standard to the government's conclusion as to whether a given set of undisputed facts rises to the level of "persecution" for asylum applicants. (The applicants had advocated for de novo review.)
The Court also sided with the Trump Administration in its per curiam opinion in Margolin v. National Association of Immigration Judges, rejecting the U.S. Court of Appeals for the Fourth Circuit's attempt to bypass the channeling requirements of the Civil Service Reform Act (based upon issues the parties had not even raised).
Taken together, these opinions show that the current Court is quite willing to embrace broad assertions of executive power over immigration policy, particularly given the expansiveness with which Congress has delegated such authority. It also shows the Court interpreting statutes narrowly, and without regard for broader policy considerations--considerations a majority of the justices believe are for Congress to resolve.
This string of immigration law victories is unlikely to extend to the birthright citizenship case, which should be decided next week. In that case, the Trump Administration is attempting to rewrite the law of citizenship unilaterally. Even if one is sympathetic to the Administration's constitutional argument (and I am not), it is hard to argue that the EO is consistent with the longstanding interpretation of the applicable federal statute.
While Section 1401 echoes the language of the Fourteenth Amendment, it should be interpreted in line with the public understanding of those words at the time it was adopted (Cf. Justice Alito's Bostock dissent), and such an interpretation is wholly incompatible with that offered by the Trump Administration. Thus even if one thinks the conventional interpretation of the citizenship clause is mistaken, Section 1401 would control. So, just as the Court has hewed closely to what Congress has authorized in the immigration cases already decided this term, it should reject the Administration's birthright citizenship arguments on statutory grounds.
Revisiting My Authorship Predictions And Making More Predictions
Today the Court decided four more cases, including three opinions by Justice Alito. How did my predictions from Tuesday fare?
There were no cases decided today from December. I still think the Chief Justice has Trump v. Slaughter. Now that Alito has six opinions for the term, I think he is done. Justice Kavanaugh almost certainly has NRSC v. FEC. But if Alito has NRSC, then my theory about his losing the majority in Hamm fails.
Today the Court decided Wolford from the January sitting. Alito wrote the majority opinion. Outstanding are the two transgender sports cases and Cook. So far, Roberts, Gorsuch, and Kavanaugh have not written from that sitting. I think Gorsuch is done for the term with seven majority. My thought on Tuesday was that Barrett, a former student athlete, would write both athletics cases while the Chief writes Cook. (Clarification: Barrett did not play college sports, but did participate in track and field in middle school.) But maybe Roberts may write the transgender cases, as he wrote Skrmetti. Then, Justice Kavanaugh may write a "The Fed is different" opinion for Cook.
The February sitting is done.
No new cases today were decided from March. I still think Roberts has Barbara. I wrote that Alito has Watson, but he wrote Al Otroe Lado from that sitting. I think it unlikely that Justice Thomas has the majority in Watson, so the election case will likely go to Justice Barrett. I'm not sure how ACB votes here, so it is a tossup.
For April, my prediction on Monsanto was completely wrong. I thought there might be a shot the plaintiffs win, but it wasn't close. They only got Gorsuch and Jackson. Justice Kagan has Chartie. It should be a fun Fourth Amendment case to read.
There are seven remaining cases. We know there is a session on Monday, and maybe the Court will wrap up on Tuesday to avoid spilling into July.
May the odds ever be in your favor.
Academic Freedom Podcast Returns
Conversation with Brian Soucek about his book, institutional neutrality, and DEI
A new episode of the Academic Freedom Podcast has been released. The podcast is sponsored by the Academic Freedom Alliance and the Center for Academic Freedom and Free Speech at Yale Law School.
This episode features a conversations with Brian Soucek, of UC-Davis Law and the AAUP. Brian has been a leading scholarly critic of the new wave of a institutional neutrality policies and defender of the compatibility of DEI policies with academic freedom commitments. He now has a new book that brings those themes together in The Opinionated University: Academic Freedom, Diversity, and the Myth of Neutrality in American Higher Education.
In the new podcast episode, we discuss the mission of the university and its relationship with academic freedom, diversity initiatives in universities relating to faculty hiring and promotion, and institutional speech by university leaders and faculty bodies such as university departments. I've been on the opposite side of Brian on many of those issues, such as institutional neutrality and diversity statements. A useful and enlightening conversation. Give it a listen here.
Mayor and Fire Chief Calling Union Leaders "Punk Ass White Boys" and "Racist" Was Labor Law Violation
From the Ohio State Employment Relations Board in In re City of Youngstown, decided in December by Chair W. Craig Zimpher, Vice Chair Sandra Drabik Collins, and Board Member Robert Walter, but just posted on Westlaw:
- City violated RC 4117.11(A)(1) when Fire Chief yelled at, physically threatened, uttered racially oriented names (i.e., "punk ass white boys"), and accused Union President and Vice President of being "racist" when they requested information about, and demanded to bargain over, effects of offering EMT class to bargaining unit employees, constituting restraint and coercion in exercise of rights guaranteed to them.
- City violated RC 4117.11(A)(1) when Mayor publicly labeled two Union leaders as being racist for engaging in lawful actions, likely causing reputational harm, and restraining their continued protected activity.
- City violated RC 4117.11(A)(3) when Mayor condoned Fire Chief's conduct and ratified his views in media. More likely than not, this led to negative characterization of Captains by at least one citizen and at least one Union member. This, in turn, caused each official to have to defend his reputation for merely exercising his duty as Union officer. This reputational harm constituted a change in conditions of employment for Union President and Vice President, because Mayor's conduct specifically harmed their protected right to maintain their good reputation….
Today in Supreme Court History: June 25, 1997
6/25/1997: City of Boerne v. Flores is decided.
Open Thread
What’s on your mind?
The Fourth Amendment and the Color-Blind Constitution
A tale of two doctrines.
When applying Fourth Amendment doctrine, to what extent can race and ethnicity be considered? The Supreme Court denied cert on Monday in United States v. Carter, a case on this question—specifically, on whether the Fourth Amendment test for whether a person is "seized" factors in the person's race. There's an interesting connection between this issue and last fall's debate over the role of race in immigration stops, raised in Noem v. Vasquez Perdomo. I thought it might be worth flagging the potential connection, and to ask about ways to distinguish how the law approaches them.
Here's the context. Carter asked the Court to resolve a longstanding open question in Fourth Amendment law: When applying the Fourth Amendment test for when a person is seized—whether a reasonable person in that situation would feel free to terminate the encounter and leave—does the suspect's race matter? There's a split among lower courts. Some courts say that there is one reasonable person standard for people of any and all races. Other courts say that people of different races tend to have different experiences with the police, and that those different experiences can can lead to a different sense of when they are free to leave. Under the first approach, race is irrelevant; under the second approach, race is relevant.
Justice Alito dissented from the denial of certiorari, joined by Justice Thomas. Justice Alito's dissent raised the question of whether a broader commitment to a color-blind Constitution answered the question in Carter:
We have said that our "'Constitution is color-blind.'" Students for Fair Admission, Inc. v. President and Fellows of Harvard College, 600 U. S. 181, 230 (2023). It "almost never" allows government actors to treat persons differently based on their race. Louisiana v. Callais, 608 U. S. ___, ___ (2026) (slip op., at 17). And we have rejected the proposition that the Constitution permits an individual to be treated differently based on a "perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike." Shaw v. Reno, 509 U. S. 630, 647 (1993). It is dangerous to allow an individual to be treated differently based on statistics, studies, or expert testimony that purports to show that members of the racial or ethnic group to which he belongs are more likely to act in a certain way than are members of other groups. Here, the special treatment helped the individual; in other situations it will not. See Buck v. Davis, 580 U. S. 100, 119 (2017).
Perhaps the [lower court's] test has legitimate justifications. In any event, it is important, and it warrants this Court's review. I therefore respectfully dissent from the denial of certiorari.
I don't take Justice Alito to have answered the question of whether a commitment to a color-blind Constitution requires saying race is irrelevant to the seizure analysis, as he was just flagging the question as important and cert-worthy (which seems right to me). Still, Justice Alito's opinion suggests at least that it might do so. And that view has surfaced in some of the lower court caselaw, such as Judge William Pryor's opinion in United States v. Knights, 989 F.3d 1281, 1289 (11th Cir. 2021).
Which brings me to my question: If you believe that a commitment to a color-blind Constitution answers the question in Carter, does it also answer whether race can be used as a basis for cause in making a stop for immigration violations, one of the big questions debated last fall when the Court was considering in Noem v. Vasquez-Perdomo?
As you may recall from Noem, one of the issues involved in reviewing that injunction was the use of race and ethnicity to temporarily stop people for immigration violations, which was a major question in light of ICE enforcement activities. That wasn't a new issue in Fourth Amendment law, to be clear. Back in 1975, in United States v. Brignoni Ponce, the Court had held that a person's perceived Mexican ancestry was relevant to whether to stop them for a possible immigration violation but not enough cause on its own. Brignoni Ponce concluded: "The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens."
In Noem, last fall, that holding was relied on in parts of Justice Kavanaugh's concurrence explaining his vote in favor of the stay of the district court's injunction. That led some to treat Justice Kavanaugh's opinion as the source of that approach, although I think it goes back to 1975 and Justice Powell's opinion for the Court in Brignoni Ponce (which was joined by Justices Marshall and Brennan, among others). And although this isn't a post specifically about Justices Alito and Thomas, it's perhaps worth flagging (given their dissent on Monday in Carter) that we can't be sure that they agreed with Justice Kavanaugh's reliance on Brignoni Ponce for the stay in Noem, but that it seems at least plausible to surmise that they did.
The broad question I want to flag is whether there is a principled basis for saying that the color-blind Constitution forbids use of race in the Fourth Amendment seizure test in Carter, but that it allows use of race in Fourth Amendment doctrine in determining if there is cause to seize someone in a case like Noem. And consider the flip side of it, too: Is there a principled basis for saying that the color-blind Constitution allows use of race in the Fourth Amendment seizure test, but that it forbids use of race in Fourth Amendment doctrine in determining if there is cause to seize someone? More broadly, does the answer to whether the doctrine can account for race, and derive different answers based on race, have to be the same in these two doctrinal contexts?
Did Justice Jackson Lose The Majority In Landor To Justice Gorsuch? (Updated)
I think Gorsuch was able to flip the majority and place the Court back on the path to policing the scope of the spending power and the Necessary and Proper Clause.
Landor v. Louisiana Department of Corrections and Public Safety is an unexpectedly significant case. I thought this was going to be another unanimous religious liberty case like Holt v. Hobbs or Tanzin v. Tanvir, where the conservatives and liberals unite to rule for a non-Christian plaintiff. (Ramirez v. Collier was 8-1, with only Thomas in dissent.) My prediction about Landor was very wrong. The final vote was 6-3. Justice Gorsuch wrote the majority opinion for the six conservatives, ruling against the Rastafarian whose dreads were cut off. Justice Jackson wrote the dissent for the three liberals, finding that RLUIPA permits monetary damages against the prison guards.
As I read through opinion, and thought about the assignments so far, I speculated that something changed. I think Justice Jackson may have been assigned the majority opinion, with Justice Gorsuch in dissent, and the vote flipped at some point after the transgender sports cases were argued. Here is my evidence.
First, in the November sitting, nine cases were argued. Justice Gorsuch had two majority opinions (Landor and Rico), while Justice Jackson had none. Justice Barrett had two related cases (Fernandez and Rutherford), while Justice Kavanaugh had none. I can see the Chief Justice giving Justice Jackson the majority opinion to signal how the Court is unified on a religious liberty case. Moreover, Justice Gorsuch has seven majority opinions for the term, more than anyone else.
Second, all of the other November cases were decided at least a month ago. Justice Gorsuch's majority opinion in only 18 pages, compared to Justice Jackson's 33 page dissent. There were no other separate writings. A majority opinion of this length should have been ready some time ago, not the penultimate week in June. Something has been in the works.
Third, Justice Jackson's dissent gives off a majority opinion vibe. She has a lot of detailed historical research that may not have been needed in a dissent. It is also, as noted above, nearly twice as long as the majority opinion. Jackson also responds to the majority opinion in footnotes. That seems backwards, as usually the majority opinion comes first. These opinions, I think, were written outside the usual sequence.
Fourth, Justice Gorsuch's majority opinion connects RLUIPA with the pending Tile IX case:
On Mr. Landor's theory, Congress could require coaches at universities that receive federal funds to permit transgender athletes to play women's sports—or face personal liability in suits for damages.
Justice Jackson points out that this line relates to West Virginia, which was argued in January.
The majority warns that, if RLUIPA's individual-capacity damages provision is constitutional, Congress could subject college coaches to liability if they refuse "to permit transgender athletes to play women's sports," or make doctors personally liable if they "administe[r] certain vaccines to children." Ante, at 13. What the majority intends by these examples is not clear. Congress could of course impose these conditions on the colleges and medical practices themselves, assuming they receive federal funds and the laws are otherwise constitutional and not coercive.[FN11]
[FN11] 11A Title IX case currently pending before us asks whether Congress imposed the majority's first "hypothetical" condition on federally funded educational institutions. See West Virginia v. B. P. J., No. 24–43.
I wonder if something is brewing in the Title IX case that helped flip Landor? Maybe Justice Gorsuch recognized that allowing damages under RLUIPA could allow the transgender athletes another way to sue coaches. My guess is that sometime after January, the majority flipped. That chronology would make sense of the timing for an end-of-June drop.
Fifth, I can see how Gorsuch persuaded several of his colleagues to jump ship based on the merits. One of the most consistent projects of the Roberts Court is to constrain causes of action. Just this term, the Court clawed back on causes of action in Exxon and Saba, plus there is a Bivens case on the docket for next term. Viewed in that context, Landor makes sense: Congress should make explicit to prison officials that they are subject to monetary damages. Moreover, for the first time since NFIB, the Court has imposed limits on Congress's spending power and the Necessary and Proper Clause. Last week in Hemani, Justice Thomas wrote that "It has now been 26 years since a party has received relief in this Court based on a Commerce Clause challenge." Yet only a few days later, a party has received relief based on the Spending Clause and the Necessary and Proper Clause. I can see how Justices Barrett and Kavanaugh could find this enterprise worth pursuing. Why did the Chief jump ship? Maybe he is still feeling some pangs of regret about NFIB. (I am still not over the case). Justice Jackson jabs the Chief hard on this point:
Taking this wisdom to heart, the Court usually exhibits a well-founded "reticence to invalidate the acts of the Nation's elected leaders." National Federation of Independent Business v. Sebelius, 567 U. S. 519, 537–538 (2012) (opinion of ROBERTS, C. J.). In my view, an ill-formed analogy to contract law is a regrettable basis on which to turn reticence into enthusiasm.
I will have a lot more to say about Landor. This might be the most important enumerated powers case since NFIB.
Update: A colleague writes with another theory: Justice Kavanaugh was assigned the majority opinion on the ground that appropriate relief isn't clear enough in RLUIPA, however, Gorsuch persuaded four others to rule based on the Spending Clause. At that point, Kavanaugh dropped his opinion and went along with Gorsuch. My colleague suggests it makes no sense that Justice Kavanuagh has no November cases, and there is nothing else he could have lost. Moreover, he adds, the conservatives all seemed united in result after argument, so there is no reason to think Jackson ever had two of them. This theory seems persuasive.
D.C. Circuit Rejects Challenge to Trump Administration Expedited Removal Policy (Is an En Banc Petition to Follow?)
Is the D.C. Circuit willing to allow "conservative" panel decisions on hot-button issues to stand? And is en banc review more than a way to ensure further review at One First Street?
Yesterday, in Make the Road New York v. Mullin, a divided panel of the U.S. Court of Appeals for the D.C. Circuit vacated a district court's stay blocking the Department of Homeland Security from applying "expedited removal" processes more broadly. Judge Walker wrote the opinion for the court. Judge Rao concurred in part and concurred in the judgment. Judge Wilkins concurred in part and dissented in part. Given the subject matter of this case, and the panel's composition, I suspect Make the Road will seek en banc review, and that there's a strong chance such a petition will be granted, as the full D.C. Circuit is significantly more liberal than this panel.
Judge Walker's offered this summary at the start of his opinion:
Thirty years ago, Congress created a new process for deporting illegal aliens. It is called "expedited removal." Unlike other statutorily required procedures that can take years to complete, expedited removal often takes just a few days.
At issue here is the provision allowing the Secretary of Homeland Security to designate certain aliens already in the country for expedited removal. Congress excluded many people from that provision. Any aliens admitted or paroled are excluded, even if they are here illegally. So too is anyone who can prove he has lived here — legally or illegally — for at least two straight years.
Today in Supreme Court History: June 24, 2013
6/24/2013: Fisher v. University of Texas at Austin I is decided.
Open Thread
What’s on your mind?
Authorship Predictions For The Remaining Cases
Today was a busy day at the Court. The Justices handed down five opinions, though none were major. I've read Cisco, Exxon, and Pung. I'll finish the other two later. Here, I'd like to venture authorship predictions for the outstanding cases. These guesses are worth what you paid for them. (And unlike an increasing number of tenured law professors, I do not charge a subscription fee for my blog posts.)
Let's go sitting-by-sitting.
Ten cases were argued in the October sitting and all ten were decided. Justice Jackson had two opinions, and the other Justices each had one.
Nine cases were argued in the November sitting and all nine were decided. Justices Kavanaugh and Jackson had none. Justices Gorsuch and Barrett each had two.
Eight cases were argued in the December sitting. Five of those cases were already decided, and Hamm v. Smith was DIG'd. Two cases remain outstanding: Trump v. Slaughter and NRSC v. FEC. So far, Justices Thomas, Kagan, Gorsuch, Barrett, and Jackson have written for December. The Chief Justice and Justices Alito, Sotomayor, and Kavanaugh have not yet written. In May, I speculated that Justice Alito lost the majority opinion in Hamm. I predict that Chief Justice Roberts has Slaughter and Justice Kavanaugh has NRSC. I do not think Justice Sotomayor has an opinion from the sitting.
Seven cases were argued in the January sitting. Three of those cases were authored by Justices Thomas, Sotomayor, and Jackson. Four cases remain outstanding, and they are all huge. First, I am reasonably confident Chief Justice Roberts will write Cook. This is the sort of case he will certainly keep for himself. But now that Jerome Powell is no longer Chairman of the Fed, Cook seems must less hot. I suspect one Justice will write a single opinion for both Little v. Hecox and W.V. v. B.P.J. My best guess is Coach Kavanaugh, who has a special interest in female athletics, or Justice Barrett, who was a direct beneficiary of Title IX. The one wildcard will be if Justice Kagan, who was sympathetic to traditional view of Title IX, finds a way to write some narrow majority opinion that convinced the Chief. Kagan only has five majority opinions for the term, while Sotomayor and Jackson both have six. Kagan is due for a big one. Justice Gorusch wrote Hemani, but I don't think he also writes Wolford. Gorsuch is already at seven for the term. My guess is that whoever doesn't write the transgender sports cases will write Wolford.
Seven cases were argued in February. All seven cases were already decided. Chief Justice Roberts and Justice Jackson did not write from that sitting.
Eight cases were argued in March. Five were already decided. So far, Chief Justice Roberts, and Justices Thomas, Alito, and Barrett have not written for March. Once again, I think Chief Justice Roberts will keep Trump v. Barbara for himself. This case is too important to give up. Watson v. RNC considers whether late-arriving ballots can be counted. If the Court affirms the Fifth Circuit, I think Justice Alito has the opinion; if the Court reverses the Fifth Circuit, Justice Barrett will have the opinion. Mullin v. Al Otro Lado concerns aliens who are detained on the Mexico-side of the border and seek asylum. I suspect Barrett or Alito--whoever does not write Watson--will have Watson.
Nine cases were argued in April, and six were already released. Justice Alito, Kagan, and Kavanaugh have not yet written for April. The three outstanding cases are: Monsanto, Chatrie, and Mullin v. Doe. These assignments are a bit tricky to make since I am not sure how these cases will turn out. When Monsanto was argued, I thought it would be tough for the chemical company to count to five. Alito and Kavanaugh are solid votes for preemption. If they have the majority, then Roberts and/or Barrett voted for preemption. But if not, Kagan has the majority opinion. Chartrie is a Fourth Amendment case about geofences. I could see Kagan or Kavanaugh getting this case as well. And Doe concerns suspension of Temporary Protected Status for Haitians, Syrians, and other groups. I could see Kagan or Kavanaugh getting this one. Then again, the Haitian plaintiffs have asked the Court to DIG this case, so someone may have lost a majority opinion. I think a DIG is unlikely. The SG replied that the newfound documents do not concern the issue at play in this case. Moreover, these documents are not blockbusters like the submissions in the 2020 census case. The records seem to show (shockingly!) that political appointees make policy decisions. This basic point may upset those in the Deep State, but reflects a reality of governance. See Slaughter.
Let's see what Thursday brings.
Fair Market Value Compensation for Takings is Often too Little, not too Much
Fair market value often fails to fully compensate property owners for their losses. This makes the Supreme Court's recent decision allowing compensation below fair market value even worse.
In a previous post, I outlined some of the many reasons why today's Supreme Court decision in Pung v. Isabella County, allowing below-market value compensation for tax foreclosure takings is wrong. The Takings Clause of the Fifth Amendment requires "just compensation" and giving owners far less than the property's fair market value doesn't measure up. Here, I add an additional point: The problem with fair market value compensation is not that it is too much, but that - all too often - it is actually too little. This isn't just my idiosyncratic view. It's a common criticism of current takings doctrine by scholars across the political spectrum.
I noted that critique in the amicus brief I filed in Pung on behalf of myself, the Cato Institute, and a group of property and takings scholars, and covered it in more detail in Chapter 8 of my book my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. Here's a summary from a 2021 nonacademic article I wrote on the subject:
The Fifth Amendment specifically mandates that owners receive "just compensation," which the Supreme Court has long interpreted as the "fair market value" of the property. In reality, however, studies show that most owners get less than that, especially less affluent owners. That is true of both takings by state and local governments and takings conducted by federal government, such as those for President Trump's border wall. Under administrations of both parties, the Department of Homeland Security has a history of low-balling property owners.
Even full fair market value is often not enough to fully compensate owners for their losses. Many people value their property above what they could get for it on the market. Consider, for example, homeowners and small businesses who have been in the same location for years, and have longstanding relationships with friends, neighbors and customers in the area. Nonprofit institutions such as churches and other houses of worship also often have great value that goes beyond the market price of the land they sit on. Such "subjective value" is often left uncompensated when property gets condemned, even if the owners get the full market value of the land. That's true even in some cases in which the government takes only part of the owner's property, as when it seizes land to build a road or a border barrier that cuts through the owner's lot, thereby impairing his or her use of the rest of the property.
As I note in the article and elsewhere, figuring out how much more compensation governments should pay beyond fair market value is often a difficult task. In many situations, it may be so difficult that fair market value is the least bad available option. In addition, there are dangers of overcompensation, as well as undercompensation. If you pay too much, you might even get situations where - perversely - property owners actually lobby to get their property condemned.
Nonetheless, fair market value compensation is often actually far too little; and standard compensation processes often fail to get property owners even the value that the fair market value test is supposed to require. That state of affairs makes the Supreme Court's decision in Pung even more indefensible.
