Amicus Curiae Brief — Texas Top Cop Shop, Incorporated, et al., Petitioners v. Todd Blanche, Attorney General, et al.

Nos. 25-1201, 25-1290

444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States

____________________

NATIONAL SMALL BUSINESS UNITED, d/b/a National

Small Business Association, et al., Petitioners,

v.

SCOTT BESSENT, in his official capacity as the

Secretary of the United States Department of the

Treasury, et al., Respondents.

____________________

TEXAS TOP COP SHOP, INC., et al., Petitioners,

v.

TODD BLANCHE, Acting U.S. Attorney General, et al.,

Respondents.

____________________

On Petitions for Writs of Certiorari to the

United States Courts of Appeals for the Eleventh

and Fifth Circuits

____________________

Brief Amicus Curiae of America’s Future,

Gun Owners of America, Gun Owners

Foundation, U.S. Constitutional Rights Legal

Defense Fund, and Conservative Legal Defense

and Education Fund in Support of Petitioners

____________________

RICK BOYER

Lynchburg, VA

J. MARK BREWER

Johnson City, TX

WILLIAM J. OLSON*

JEREMIAH L. MORGAN

ROBERT J. OLSON

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Attorneys for Amici Curiae Vienna, VA 22180

*Counsel of Record

(703) 356-5070

May 21, 2026

wjo@mindspring.com

444444444444444444444444444444444444444444

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT

I.

THE ELEVENTH CIRCUIT DECISION IMPLICITLY

ASSUMED THE EXISTENCE OF A FEDERAL

POLICE POWER . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. THE UTILITY OF A CTA FEDERAL DATABASE

FOR LAW ENFORCEMENT DOES NOT PROVIDE

CONSTITUTIONAL JUSTIFICATION . . . . . . . . . . . . 8

III. THE CTA DOES NOT CONSTITUTE A PROPER

EXERCISE OF THE COMMERCE POWER. . . . . . . . 11

A. The CTA Fails under the Methodology for

Evaluating the Scope of the Commerce

Clause Established by Chief Justice

Marshall . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. The Modern Commerce Clause

Approach . . . . . . . . . . . . . . . . . . . . . . . . . . 14

1. Channels of Commerce Cases. . . . . . . . 14

2. Instrumentalities of Commerce Cases . 15

ii

3. Substantial Effects Cases. . . . . . . . . . . 15

IV. THE CTA JEOPARDIZES THE SECOND

AMENDMENT RIGHTS OF AMERICANS . . . . . . . . 17

V. THE ELEVENTH CIRCUIT ERRED BY REJECTING

THE FOURTH AMENDMENT CHALLENGE TO THE

CTA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. California Bankers Ass’n v. Shultz. . . . . . 20

B. The Fourth Amendment’s Warrant

Requirement . . . . . . . . . . . . . . . . . . . . . . . 23

C. General Warrants and Writs of

Assistance . . . . . . . . . . . . . . . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

iii

TABLE OF AUTHORITIES

Page

HOLY BIBLE

1 Peter 2:14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CONSTITUTION

Article I, Section 8, Clause 3 . . . . . . . . . 4, 6, 7, 11-17

Article I, Section 8, Clause 18 . . . . . . . . . . . . . . . . 12

Amendment II . . . . . . . . . . . . . . . . . . . . . . . . 5, 17-19

Amendment IV . . . . . . . . . . . . . . . . . . . . . 5, 10, 19-27

Amendment V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Amendment VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Amendment X. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATUTES

18 U.S.C. § 922(g)(1) . . . . . . . . . . . . . . . . . . . . . . . 18

18 U.S.C. § 922(g)(9) . . . . . . . . . . . . . . . . . . . . . . . 18

31 U.S.C. § 5336(a)(3) . . . . . . . . . . . . . . . . . . . . . . . 3

31 U.S.C. § 5336(b)(2)(A) . . . . . . . . . . . . . . . . . . . . . 2

31 U.S.C. § 5336(c)(2)(B)(i)(I) . . . . . . . . . . . . . . . . 20

31 U.S.C. § 5336(h)(1) . . . . . . . . . . . . . . . . . . . . . . . 3

31 U.S.C. § 5336(h)(3)(A) . . . . . . . . . . . . . . . . . . . . . 3

2021 National Defense Authorization Act,

134 Stat. 3388 . . . . . . . . . . . . . . . . . . . . . . . . 2, 17

Bank Secrecy Act of 1970, 84 Stat. 1114-2 . . . . 5, 20

Corporate Transparency Act . . . . 2-6, 8, 9, 11, 13, 15

17, 19, 20, 23-27

CASES

Andresen v. Md., 427 U.S. 463 (1976) . . . . . . . . . . 26

Boyd v. United States, 116 U.S. 616 (1886) . . 21, 26

Brigham City v. Stewart, 547 U.S. 398 (2006) . . . 22

California Bankers Ass’n v. Shultz,

416 U.S. 21 (1974) . . . . . . . . . . . . . . . . . . 5, 20, 23

iv

Carpenter v. United States, 585 U.S. 296

(2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

Champion v. Ames, 188 U.S. 321 (1903) . . . . . . 14-16

Coolidge v. N.H., 403 U.S. 443 (1971) . . . . . . . . . . 24

Cort v. Ash., 422 U.S. 66 (1975). . . . . . . . . . . . . . . . 7

Florida v. Jardines, 569 U.S. 1 (2013) . . . . . . . . . 21

Florida v. Jimeno, 500 U.S. 248 (1991). . . . . . . . . 22

Gibbons v. Ogden, 22 U.S. 1 (1824) . . . . 4, 12, 13, 16

Gonzales v. Raich, 545 U.S. 1 (2005). . . . . . . . . . . 11

Gouled v United States, 255 U.S. 298 (1921) . . . . 21

Katz v. United States, 389 U.S. 347 (1967) . . . . . . 21

Messerschmidt v. Millender,

565 U.S. 535 (2012) . . . . . . . . . . . . . . . . . . . . . . 26

New York v. Burger, 482 U.S. 691 (1987) . . . . . . . 24

NLRB v. Jones & Laughlin Steel Corp,

301 U.S. 1 (1937) . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Riley v. California, 573 U.S. 373 (2014) . . . . . 24, 25

Southern Railway Co. v. United States,

222 U.S. 20 (1911) . . . . . . . . . . . . . . . . . . . . . . . 15

Trustees of Dartmouth College v. Woodward,

17 U.S. 518 (1819) . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Jones, 565 U.S. 400 (2012) . 5, 21-24

United States v. Lopez, 514 U.S. 549

(1995) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 14, 16, 17

United States v. Miller, 425 U.S. 435 (1976). . . . . 20

United States v. United States Dist. Court,

407 U.S. 297 (1972) . . . . . . . . . . . . . . . . . . . 26, 27

Warden v. Hayden, 387 U.S. 294 (1967) . . . . . . . . 21

Wickard v. Filburn, 317 U.S. 111 (1942). . . . . 11, 16

MISCELLANEOUS

87 Fed. Reg. 59504 . . . . . . . . . . . . . . . . . . . . . . . . . 23

165 Cong. Rec. H8321 (2019) . . . . . . . . . . . . . . . . . 18

165 Cong. Rec. H8325 (2019) . . . . . . . . . . . . . . . . . 18

v

ABA Task Force on the Federalization of

Criminal Law, The Federalization of

Criminal Law (1998) . . . . . . . . . . . . . . . . . . . . . 10

George Carey and James McClellan, eds., The

Federalist (Liberty Fund: 2001) . . . . . . . . . . 9, 13

Michael Garofalo, “Leaders of the anti-gun

movement: Six politicians who refuse to stay

silent,” Salon (Jan. 9, 2019) . . . . . . . . . . . . . . . 17

House Judiciary Committee, “Financial

Surveillance in the United States: How

Federal Law Enforcement Commandeered

Financial Institutions to Spy on Americans,”

(Mar. 6, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . 18

H.R. 2513, “Corporate Transparency Act of

2019” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 17

James Madison, Federalist No. 42 . . . . . . . . . . . . 13

James Madison, Federalist No. 45 . . . . . . . . . . . . . 9

Herbert Titus & William Olson, “United States v.

Jones: Reviving the Property Foundation of

the Fourth Amendment,” 3 Case Western

Reserve J. of Law, Tech. & the Internet 243

(2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Samuel D. Warren & Louis Brandeis, “The Right

to Privacy” 4 Harvard L.Rev. 193

(Dec. 15, 1890) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

INTEREST OF THE AMICI CURIAE1

Amici curiae America’s Future, Gun Owners of

America, Inc., Gun Owners Foundation, U.S.

Constitutional Rights Legal Defense Fund, and

Conservative Legal Defense and Education Fund are

nonprofit organizations, exempt from federal income

taxation under Section 501(c)(3) or Section 501(c)(4) of

the Internal Revenue Code.

Each organization

participates actively in the public policy process, and

has filed numerous amicus curiae briefs in federal and

state courts defending U.S. citizens’ rights against

government overreach. These amici have filed three

amicus briefs involving challenges to the Corporate

Transparency Act.

•

•

•

1

Hotze v. U.S. Dep’t of Treasury, N.D. Tex. No.

2:24-cv-210, Brief Amicus Curiae of America’s

Future, et al., in Support of Plaintiffs (Nov. 18,

2024);

Garland v. Texas Top Cop Shop, U.S. Supreme

Court No. 24A653, Brief Amicus Curiae of

America’s Future, et al., in Opposition to

Application for a Stay of Injunction (Jan. 10,

2025); and

Texas Top Cop Shop v. Bondi, U.S. Court of

Appeals for the Fifth Circuit, No. 24-40792, Brief

Amici Curiae of America’s Future, et al., in

It is hereby certified that counsel of record for all parties in No.

25-1201 received timely notice of the intention to file this brief;

that no counsel for a party authored this brief in whole or in part;

and that no person other than these amici curiae, their members,

or their counsel made a monetary contribution to its preparation

or submission.

2

Support of Plaintiffs-Appellees and Affirmance

(Mar. 3, 2025).

STATEMENT OF THE CASE

Corporate Transparency Act

The enactment of the Corporate Transparency Act

(“CTA”) was unusual. Congress refused to pass CTA

as a separate bill, so it was buried as a 21-page

subsection into the must-pass, 1,500-page, $740

billion, 2021 National Defense Authorization Act

(“NDAA”). On December 23, 2020, President Trump

vetoed the NDAA, On December 28, 2020, the House

of Representatives voted to override his veto, and, in a

rare New Year’s Day session, the Senate did so as

well,2 making this the only Trump veto which was

overridden.

The CTA requires all “beneficial owners” of

business entities with fewer than 20 employees and

annual revenue of less than $5 million to submit

personal identifying information to the Treasury

Department’s Financial Crimes Enforcement Network

(“FinCEN”). 31 U.S.C. § 5336(b)(2)(A). This Beneficial

Ownership Information (“BOI”) includes “(i) full legal

name; (ii) date of birth; (iii) current ... residential or

business street address; and (iv) unique identifying

number from an acceptable identification document,”

such as an unexpired passport or government-issued

2

See H.R. 6395, William M. (Mac) Thornberry National Defense

Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, 134

Stat. 3388 (Jan. 1, 2021).

3

identification card or driver’s license. Id. A “beneficial

owner” is defined as “an individual who ... (i) exercises

substantial control over the entity; or (ii) owns or

controls not less than 25 percent of the ownership

interests of the entity.” 31 U.S.C. § 5336(a)(3). This

includes single-member LLCs and privately held

corporations. Congress granted certain exemptions,

such as to accounting firms — but not law firms — and

for nonprofit organizations exempt from taxation

under Internal Revenue Code § 501(c) — but not other

nonprofit organizations. The CTA treats a failure to

report as a serious felony. 31 U.S.C. § 5336(h)(1),

(3)(A).

National Small Business United v. Bessent

The CTA was challenged in the Northern District

of Alabama, which granted summary judgment for

plaintiffs. Nat’l Small Bus. United v. Yellen, 721 F.

Supp. 3d 1260, 1267 (N.D. Ala. 2024) (“NSBU I”). The

Eleventh Circuit reversed, ruling that the act of

incorporation is itself economic, because “[f]or-profit

business entities are a means to an economic end.”

Nat’l Small Bus. United v. United States Dep’t of the

Treasury, 161 F.4th 1323, 1329 (11th Cir. 2025)

(“NSBU II”).

Texas Top Cop Shop v. Blanche

The CTA was also challenged in the Eastern

District of Texas. See Tex. Top Cop Shop, Inc. v.

Garland, 758 F. Supp. 3d 607, 623-25 (E.D. Tex. 2024)

(“TTCS I”). The district court granted an injunction

against the CTA requirement, determining that the

4

CTA regulates neither the channels nor the

instrumentalities of commerce. A Fifth Circuit

motions panel stayed the injunction. Tex. Top Cop

Shop, Inc. v. Garland, 2024 U.S. App. LEXIS 32565

(5th Cir. 2024). Then, a Fifth Circuit merits panel

vacated the stay (2024 U.S. App. LEXIS 32702), but

this Court stayed the district court injunction.

McHenry v. Tex. Top Cop Shop, Inc., 145 S. Ct. 1

(2025).

SUMMARY OF ARGUMENT

The Corporate Transparency Act mandates that

Beneficial Ownership Information of nearly every

corporation and LLC be reported to the federal

government to create a massive database. Congress

claimed to have enacted CTA as an exercise of the

Commerce Clause even though the CTA neither

comports with the subject nor the object of the

Commerce Clause, under the test established by Chief

Justice Marshall in Gibbons v. Ogden. The CTA also

fails under the more modern test, as it neither

regulates the channels or instrumentalities of

commerce nor does it regulate activities having

substantial effects on commerce. If the Commerce

Clause can be expanded to encompass the CTA, then

the federal government will have been given the

equivalent of a general police power in violation of the

Tenth Amendment.

The CTA constitutes a threat to gun owners

because it creates a trap for many Americans who,

unaware of this obscure law, could become felons and

5

lose their Second Amendment rights for what amounts

to a paperwork violation.

The CTA violates the Fourth Amendment as it

constitutes a general warrant by mandating the

disclosure of information without suspicion or warrant.

It then allows the warrantless search of this database

by federal law enforcement and others. The reporting

requirement is fundamentally different than the Bank

Secrecy Act reporting requirement sanctioned by this

Court in California Bankers Ass’n v. Shultz. Should

Shultz be considered applicable here, certiorari should

be granted to reconsider that 1974 case in view of this

Court’s 2012 revitalization of the Fourth Amendment’s

property principle in United States v. Jones.

ARGUMENT

I.

THE ELEVENTH CIRCUIT DECISION

IMPLICITLY ASSUMED THE EXISTENCE

OF A FEDERAL POLICE POWER.

The CTA being challenged is quite unlike any

federal statute, perhaps other than the Bank Secrecy

Act of 1970. That Act led to the requirement that

“financial institutions” file “currency transaction

reports” and “suspicious activity reports” to be stored

in a central, federal database. Unlike the CTA, that

rule was imposed on businesses, not on private

citizens. Although California Bankers Ass’n v. Shultz,

416 U.S. 21 (1974), was arguably wrongly decided,

even that decision does not provide a direct precedent

for what is required here, as discussed in Section V,

infra.

6

The CTA takes a classic, if not quintessential,

state activity — the formation of corporations — and

imposes a new and federal requirement unconnected

to the exercise of any previously identified or exercised

federal power. The CTA imposes a duty, backed by

criminal sanction, on every American to provide

information allowing the creation of a federal database

to be searched without warrant whenever federal

agencies might wish.

Exercising no apparent

enumerated power, it is not surprising that Congress

and the Eleventh Circuit have tried to create a new

federal surveillance power, derived not from the

Commerce Clause, but from the following assertions of

need:

•

•

•

•

“bad actors have been using the anonymity of

the corporate form to commit financial crimes,

such as money laundering and financing

terrorism.” NSBU II at 1326.

“Financial crime is a serious problem.” Id.

“Financial criminals often use shell companies

to conceal their fraud and their identities.” Id.

“Because most states do not require businesses

to report information about their owners, law

enforcement has long suffered from an

information gap when fighting financial

crime.” Id.

To make it even worse, the duty placed on

Americans is continuing, requiring regular updates

within 30 days of any changes. Id. at 1327.

The formation, modification, and dissolution of

corporate entities is an area of economic activity long

7

relegated to the states. Chief Justice John Marshall’s

majority opinion in Trustees of Dartmouth College v.

Woodward, 17 U.S. 518, 636 (1819), described a

corporation as “an artificial being, invisible,

intangible, and existing only in contemplation of

law....” For nearly 250 years, Congress recognized

implicitly that the law governing the creation of these

corporations was state, not federal, as stated a century

and a half later, in Cort v. Ash:

Corporations are creatures of state law,

and investors commit their funds to corporate

directors on the understanding that, except

where federal law expressly requires certain

responsibilities of directors with respect to

stockholders, state law will govern the

internal affairs of the corporation. [Id.,

422 U.S. 66, 84 (1975) (emphasis added).]

From 1791 to 2021, no Congress had ever sought

to demand that individuals involved in this

quintessential state activity report their activities to

the federal government. Yet, the Eleventh Circuit

relied on perhaps the most elastic of all federal powers.

The Commerce Clause has been the go-to power to

justify the radical expansion of federal regulatory

authority over Americans for the past 90 years, since

NLRB v. Jones & Laughlin Steel Corp, 301 U.S. 1

(1937). The Commerce Clause was relied on to

authorize the federal government to regulate what had

long been considered purely intrastate activities, based

on a more flexible test which only required: “a close

and substantial relation to interstate commerce that

8

their control is essential or appropriate to protect that

commerce from burden and obstructions....” Id. at 37.

Here, the sole objective is the creation of a

database to be searched at will, and without a

warrant, by federal law enforcement. Such an exercise

of the commerce power, in the absence of actual

commerce, would constitute the exercise of a neverbefore-recognized federal police power in violation of

the Tenth Amendment. This is what Chief Justice

Rehnquist rejected in his opinion for the court striking

down the Gun-Free School Zones Act of 1990.

To uphold the Government’s contentions here,

we would have to pile inference upon inference

in a manner that would bid fair to convert

congressional authority under the Commerce

Clause to a general police power of the sort

retained by the States. [United States v.

Lopez, 514 U.S. 549, 567 (1995) (emphasis

added).]

II. THE UTILITY OF A CTA FEDERAL

DATABASE FOR LAW ENFORCEMENT

DOES NOT PROVIDE CONSTITUTIONAL

JUSTIFICATION.

The Government’s Brief filed in Texas Top Cop

Shop in the Fifth Circuit began with an ominous

warning about the great evils afoot in the land, which

the CTA could stop:

For decades, criminals have evaded

criminal prohibitions on money laundering,

9

terrorist financing, and other financial

wrongdoing by using anonymous shell

companies to conduct illicit transactions. To

address these impediments to law

enforcement and threats to national

security, Congress passed the Corporate

Transparency Act (CTA)....

[Brief for

Appellants, Texas Top Cop Shop v. Bondi

(“Gov’t Br.”) at 1 (emphasis added).]

Note the number of urgent, emotive, “sky is

falling” terms used. If the problem were actually that

serious, Congress would have enacted the CTA long

ago in a stand-alone bill, but that strategy was tried

and failed. When presented as a stand-alone bill in

2019, it had substantial push-back from members of

the relevant committee and the American people. See

H.R. 2513, “Corporate Transparency Act of 2019.” To

ensure passage, the CTA was buried in, and went

largely unnoticed in, “must-pass” legislation.

Before adding to the Executive Branch’s demands

for an increase in its already vast powers, it would be

wise to briefly revisit the relevant principles being

violated. First, there is no precedent for the federal

government to track corporations established under

state law. In Federalist No. 45, James Madison

explained: “The powers delegated by the proposed

constitution to the federal government, are few and

defined. Those which are to remain in the state

governments, are numerous and indefinite.”3

3

Federalist No. 45, George Carey and James McClellan, eds., The

Federalist at 241 (Liberty Fund: 2001) (emphasis added).

10

Conspicuously absent from those “few and defined”

powers vested in the federal government is the

predicate for the explosion in the number of federal

crimes — “a general police power — a power

reserved by the Tenth Amendment to the States.”4

Second, absent from the original plan was the

notion that the government was to have all the powers

necessary to prevent crime. The Government is

worried it has “fallen out of compliance with

international standards for preventing money

laundering.”

Gov’t Br. at 6 (emphasis added).

According to Holy Writ, the government’s power does

not include crime prevention, but rather is limited to

“the punishment of evildoers, and for the praise of

them that do well.” 1 Peter 2:14.

Third, the Judiciary should be highly suspicious of

laws which are insisted upon by the Executive Branch

to remove “impediments to law enforcement,”

particularly when the Framers of our Constitution

established those “impediments.” Demands by law

enforcement for additional powers are generally

demands that the constitutional rights of the American

People be surrendered. According to some, the Fourth

Amendment is a meddlesome “impediment to law

enforcement,” as are the Second Amendment, the Fifth

Amendment, and the Sixth Amendment. Fortunately,

this Court is obliged to view the preservation of

constitutional liberties as superior to removing

“impediments” to law enforcement.

4

See ABA Task Force on the Federalization of Criminal Law, The

Federalization of Criminal Law at 5-6 (1998) (emphasis added).

11

III. THE CTA DOES NOT CONSTITUTE A

PROPER EXERCISE OF THE COMMERCE

POWER.

A. The CTA Fails under the Methodology for

Evaluating the Scope of the Commerce

Clause Established by Chief Justice

Marshall.

In Texas Top Cop Shop, the Government’s

Commerce Clause justification presented to the Fifth

Circuit relied on a line of cases starting with Wickard

v. Filburn, 317 U.S. 111 (1942), wherein the Supreme

Court authorized Congress’ regulation of activity

which “substantially affects interstate commerce”:

Congress may ... regulate the “channels of

interstate commerce,” “the instrumentalities of

interstate commerce, and persons or things in

interstate commerce,” and even “activities that

substantially affect interstate commerce.”

Gonzales v. Raich, 545 U.S. 1, 16-17 (2005);

accord id. at 34 (Scalia, J., concurring in the

judgment). [Gov’t Br. at 16.]

The Government claimed that “Congress

determined that ‘the collection of beneficial ownership

information’ is ‘needed’ to ‘protect interstate and

foreign commerce’ and to ‘better enable ... law

enforcement efforts to counter money laundering ...

and other illicit activity.’” Id. at 6 (emphasis added).

The Government primarily relied on the congressional

findings to support: “the common-sense notion that

anonymous transactions jeopardize law-enforcement

12

efforts [as] well documented in statutory findings and

the legislative history.” Id. at 39.

Two hundred years ago, in Gibbons v. Ogden, Chief

Justice John Marshall set out the steps to be followed

in analyzing enumerated powers cases:

We know of no rule for construing the extent of

such powers, other than is given [i] by the

language of the instrument which confers

them, [ii] taken in connexion with the

purposes for which they were conferred.

[Gibbons v. Ogden, 22 U.S. 1, 189 (1824).]

By “language of the instrument,” Marshall should be

understood as having meant the relevant text of the

Constitution, which states simply: “Congress shall

have the Power ... To regulate Commerce ... among the

several States.” U.S. Const., Art. I, § 8, cl. 3. The

focus of attention in Gibbons was on defining the

words “commerce,” “among the states,” and “regulate.”

There, the Court concluded that licensing steamboats

engaged in coastal trade aligned with the subject

matter of the Commerce Clause. Gibbons at 189-97.

When the language of a statute (subject matter)

aligns with the language of an enumerated power

(subject), the Court should analyze it as an

enumerated powers case rather than as a Necessary

and Proper Clause case. Because the federal statute in

Gibbons regulated subject matter that constituted

interstate commerce, it was a pure enumerated powers

case. The object of the statute must align with the

object of an enumerated power.

13

The object of the Commerce Clause, stated

generally, is to establish a free and common market

among the several states. Congress is limited to

regulating the subject of interstate commerce to

advance the object of ensuring free trade among the

states.5 Concurring in Gibbons, Justice Johnson

identified the object as being the elimination of trade

barriers between the states: “If there was any one

object riding over every other in the adoption of the

constitution, it was to keep the commercial intercourse

among the States free from all invidious and partial

restraints.” Gibbons at 231 (Johnson, J., concurring).

Applying Chief Justice Marshall’s test, it is clear

that the CTA fails both the subject component and the

object component. The CTA requires certain classes of

people, including the Petitioners in this case, who file

organizational documents with their respective

secretaries of state to provide specific identifying

information to FinCEN. This filing activity that the

CTA regulates is neither commercial nor interstate in

nature, and thus is not a proper subject matter for

Congress to regulate. Furthermore, the CTA fails the

object test as it does nothing to remove barriers to free

trade or promote harmonious commercial relations

among the several states.

5

James Madison wrote: “A very material object of this power

[i.e., the Commerce Clause] was the relief of the States which

import and export through other States, from the improper

contributions levied on them by the latter.” George Carey &

James McClellan, The Federalist (Liberty Fund: 2001), No. 42 at

218. Madison further noted that the Commerce Clause is among

a class of powers “which provide for the harmony and proper

intercourse among the States.” Id.

14

B. The Modern Commerce Clause Approach.

In Lopez, the Supreme Court “identified three

broad categories of activity that Congress may

regulate under its commerce power.” Id. at 558.

These categories, with corresponding tests, are (i)

channels of interstate commerce, (ii) instrumentalities

of interstate commerce, and (iii) activities having

substantial effects on interstate commerce.

The district court in National Small Business

United persuasively addressed the constitutionality of

the CTA under three categories. See NSBU I at 127787.

1. Channels of Commerce Cases.

The test that the Supreme Court applies in

channels cases focuses almost exclusively on the

subject of the Commerce Clause — is the regulated

activity “commerce” and is it “interstate”? This test is

based on the principle that Congress may prohibit

interstate commercial activity that it believes is

harmful.

The leading case applying the prohibition principle

is Champion v. Ames (The Lottery Case), 188 U.S. 321

(1903). There, the Court ruled that Congress could

criminalize the transportation of lottery tickets

through interstate commerce. See id. at 344-45. This

satisfied the subject matter test because the statute

regulated commercial activity that crossed state lines.

However, the object of the statute was not to foster

interstate commerce but to prohibit it. The object was

15

to criminalize immoral conduct, which falls within the

police powers reserved to the states. Id. at 356-57.

Nevertheless, the Court upheld the statute.

The activity regulated under the CTA is the filing

of articles of incorporation or similar documents with

a state agency. The CTA fails under the channels of

commerce test because the activity that the statute

regulates is neither commercial nor interstate in

nature. Additionally, as explained supra, some of the

organizations required to disclose information are not

engaged in commercial activity and may never engage

in interstate activity.

2. Instrumentalities of Commerce Cases.

The instrumentalities test is based on the principle

that Congress can protect people, goods, vehicles, and

even electronic transmissions involved in interstate

commerce that may be endangered even by intrastate

activity. The classic example is Southern Railway Co.

v. United States, 222 U.S. 20 (1911), which upheld a

statute requiring intrastate activities to comply with

federal safety standards to protect commerce moving

interstate. Because the CTA on its face is not designed

to protect interstate commerce from threats posed by

intrastate activities, this test is not implicated.

3. Substantial Effects Cases.

The substantial effects test grants Congress the

most expansive power of any of the Commerce Clause

tests. As expansive as that power is, the CTA still

16

manages to exceed the scope of Congress’ regulatory

power.

The substantial effects test was most famously

stated in Wickard v. Filburn, 317 U.S. 111, 125 (1942).

Having done away with the object component in

Champion, the Court then eliminated the subject

component as well. No longer was Congress limited to

regulating the subject matter of interstate commerce;

it was free to regulate any activity that in the

aggregate had a substantial effect on interstate

commerce. Congress was thus allowed to regulate

Filburn’s intrastate, noncommercial production and

personal consumption of wheat grown on his own farm.

Implicitly, the power to regulate was no longer limited

by any object other than what Congress might think

contributes to the general welfare, or in other words

would be good for America. The substantial effects

test threatened to change the nature of the federal

government from one of enumerated powers into one

of general powers.

Eventually recognizing the danger to the Republic,

the Supreme Court reformulated the substantial

effects test in Lopez. The Lopez Court quoted portions

of Marshall’s opinion in Gibbons v. Ogden, which

carefully defined the subject matter of the Commerce

Clause — “commerce” and “among the states.” Lopez

at 553. Nevertheless, the Court then ignored the

importance of the subject component. As reformulated

in Lopez, the substantial effects test allows Congress

to regulate only economic activity that in the

aggregate has a substantial effect on interstate

commerce. Id. at 560-61. In effect, the Court modified

17

the subject component of the commerce power but

failed to focus on the object of the Commerce Clause.

The Court in Lopez ruled that the possession of a

gun in a school zone was not economic in nature and

therefore struck the statute as exceeding Congress’

power to regulate under the Commerce Clause.

Similarly, on its face, the CTA fails to regulate

economic activity and therefore exceeds Congress’

power to regulate under the Commerce Clause. The

Lopez Court suggested that Congress would be able to

regulate non-economic activity pursuant to the

Commerce Clause if the non-economic activity was an

essential part of a comprehensive regulatory scheme

that was economic in nature. See Lopez at 561-63.

That approach does not save the statute in this case

because the CTA, of which disclosure requirements are

a part, is not economic in nature, nor is the National

Defense Authorization Act, of which the CTA is a part,

an economic regulatory scheme.

IV. THE CTA JEOPARDIZES THE SECOND

AMENDMENT RIGHTS OF AMERICANS.

The sponsor of the 2019 CTA bill (H.R. 2513, 116th

Congress) was Representative Carolyn Maloney (DNY), one of the most committed leaders of the anti-gun

movement in Congress.6 For that reason, it is not

unreasonable to have concern that there could be an

anti-gun agenda lurking behind her sponsorship of this

6

See Michael Garofalo, “Leaders of the anti-gun movement: Six

politicians who refuse to stay silent,” Salon (Jan. 9, 2019).

18

bill. Those convicted of federal felonies lose the right

to possess weapons. See 18 U.S.C. § 922(g)(1) and (9).

Representative Maxine Waters (D-CA) conceded

during debate on the CTA, “approximately 78 percent

of all businesses in the US are non-employer firms,

meaning there is only one person in the enterprise.”

165 Cong. Rec. H8321 (2019). Accordingly, millions of

Americans risk a permanent loss of their Second

Amendment rights — not to mention two-year prison

terms — for the simple failure to register their

personal information with “an intelligence bureau

people haven’t [even] heard of,” under a brand new

filing requirement most small business owners are

likely unaware of, as Representative McHenry noted

during the floor debate. 165 Cong. Rec. H8325.

Even more concerning was a recent report by the

House Judiciary Committee that revealed FBI

whistleblower evidence that, early in the Biden

Administration, the FBI and the Department of the

Treasury’s FinCEN division targeted purchasers of

firearms for scrutiny as potential “violent extremists.”

FinCEN suggested a number of firearms sellers whose

names could be paired with Merchant Category Codes

for firearms purchasers, to flag possible “violent

extremists,” including Bass Pro Shops, Cabela’s,

Backcountry World, Targetsportsusa.com, AR15.com,

and Midway USA.7 Accordingly, FinCEN cannot be

7

House Judiciary Committee, “Financial Surveillance in the

United States: How Federal Law Enforcement Commandeered

Financial Institutions to Spy on Americans,” at 2-3, 27 (Mar. 6,

2024).

19

entrusted with a highly sensitive list of “beneficial

owners.” Thus, CTA is an existential threat to the

Second Amendment rights of millions of small

business owners about to fall victim to the CTA’s “trap

for the unwary” if it is allowed to stand.

V. THE ELEVENTH CIRCUIT ERRED BY

REJECTING THE FOURTH AMENDMENT

CHALLENGE TO THE CTA.

The second question presented by both Petitions

for Certiorari is “Whether the CTA’s suspicionless and

warrantless searches to further a generalized interest

in expedient law enforcement violate the Fourth

Amendment.” NSBU Petition at i; see also TTCS

Petition at i.

The Eleventh Circuit dismissed

Petitioners’ Fourth Amendment claim based on the

proposition that “uniform reporting requirements” do

not trigger Fourth Amendment scrutiny: “the CTA

does not violate the Fourth Amendment. It is a

uniform reporting requirement applied to all

businesses that meet the CTA’s definition of ‘reporting

company.’” NSBU II at 1334.

According to that curious proposition, the federal

government could require every American to report

health status, or firearms ownership, or literally any

other personal information without triggering the

Fourth Amendment, so long as the requirement

applied to all members of a “uniform” class. If such a

rule were adopted, is it much of a stretch to suggest

that Congress could require that every company using

financial software, such as QuickBooks, provide its

20

passwords to FinCEN because it could facilitate law

enforcement?

A. California Bankers Ass’n v. Shultz.

In support of that proposition, the Eleventh Circuit

below cited one authority only — this Court’s ruling in

Shultz. In Shultz, this Court ruled that the Bank

Secrecy Act’s requirement for banks to report domestic

financial transactions of $10,000 or more did not

violate the Fourth Amendment. As the NSBU

Petitioners point out, the Bank Secrecy Act reporting

requirement in Shultz was vastly different from the

requirement under the CTA, including the fact that

the CTA applies to companies the Eleventh Circuit

agreed were not engaged in interstate commerce. CTA

reports are not restricted to FinCEN, but may be

disclosed to any federal agency for “national security,

intelligence, or law enforcement” purposes (31 U.S.C.

§ 5336(c)(2)(B)(i)(I)), and even foreign law-enforcement

agencies. See NSBU Petition at 31-33. Additionally

here, there is no third-party bank involved, allowing

the Fourth Amendment rights of individuals to be

devalued due to their being held by a third party. See

United States v. Miller, 425 U.S. 435, 443 (1976).

In addition to the points made by the NSBU

Petitioners, the Shultz decision is highly problematic

and, at most, should be confined to its facts. It needs

reconsideration because it was decided during a period

in this Court’s Fourth Amendment jurisprudence when

the only consideration seemed to be privacy concerns

— before the revitalization of the property principle in

21

United States v. Jones, 565 U.S. 400 (2012) and

Florida v. Jardines, 569 U.S. 1 (2013).

From the ratification of the Fourth Amendment in

1791, there was no confusion that the people truly

would be “secure in their persons, houses, papers, and

effects” against “unreasonable” searches and seizures.

This principle was known as the “mere evidence rule,”

as declared by this Court in Boyd v. United States, 116

U.S. 616 (1886) and Gouled v. United States, 255 U.S.

298 (1921). Under that longstanding rule reflective of

the original public meaning of the Fourth Amendment,

all searches and seizures were deemed unreasonable,

even with a warrant, unless the government had a

superior property interest, as it did in the fruits of a

crime, the instrumentalities of a crime, and

contraband (e.g., drugs and counterfeit money). Yet, in

May 1967, in an opinion by Justice Brennan, this

Court abandoned the “mere evidence rule” in Warden

v. Hayden, 387 U.S. 294 (1967). In December of that

same year, this Court substituted an atextual8

“reasonable expectation of privacy” test drawn from

Justice Harlan’s concurrence in Katz v. United States,

389 U.S. 347 (1967). No longer would all searches

where the government did not have a superior

property interest be deemed “unreasonable.” Rather,

under this rule, it was frequently stated that the scope

of the Fourth Amendment was determined by whether

8

The first significant discussion of a privacy right occurred a

century after ratification of the Fourth Amendment in an article

co-authored by the future Justice Louis Brandeis. See Samuel D.

Warren & Louis Brandeis, “The Right to Privacy,” 4 Harvard L.

Rev. 193 (Dec. 15, 1890).

22

modern judges would find the searches and seizures

“reasonable.”

•

•

“The touchstone of the Fourth Amendment is

reasonableness.” Florida v. Jimeno, 500 U.S.

248, 250 (1991).

“[T]he ultimate touchstone of the Fourth

Amendment is ‘reasonableness.’” Brigham

City v. Stewart, 547 U.S. 398, 403 (2006).

Note that the type of “reasonableness” built into this

test has nothing to do with an examination of what the

authors and ratifiers of the Fourth Amendment

believed, but rather how modern judges feel. The

original public meaning of the Fourth Amendment was

that all searches and seizures, with or without a

warrant, were “unreasonable” if the government did

not have a superior property interest.9

In Jones, Justice Scalia explained that:

The text of the Fourth Amendment reflects its

close connection to property, since

otherwise it would have referred simply to “the

right of the people to be secure against

unreasonable searches or seizures”; the phrase

“in their persons, houses, papers, and effects”

would have been superfluous. [Jones at 405

(emphasis added).]

9

Herbert Titus & William Olson, “United States v. Jones:

Reviving the Property Foundation of the Fourth Amendment,” 3

Case Western Reserve J. of Law, Tech. & the Internet 243 (2012).

23

Had Shultz been decided after Jones, this Court

would have been required to consider more than just

whether it seemed to the Court that the persons

involved enjoyed a “reasonable expectation of privacy.”

Since the challenge here comes after Jones, the

required analysis is quite different from that which

applied earlier.

B. The Fourth

Requirement.

Amendment’s

Warrant

Equally astonishing is that the CTA constitutes a

complete end-run around the warrant requirement in

two ways. First, the CTA requires that Americans

provide the specified information to FinCEN without

a warrant, backed by criminal sanction for nonfiling,

and then allows the personal information provided to

be accessed by virtually any federal agency without a

warrant.

FinCEN basically has admitted that the purpose

of the law was to circumvent the Fourth Amendment’s

warrant requirement. In testimony to Congress by the

then-Director of FinCEN in support of the CTA’s BOI

reporting requirement, it was explained that

“identifying the ultimate beneficial owner of a shell or

front company in the United States ‘often requires

human source information, grand jury subpoenas,

surveillance operations, witness interviews, search

warrants, and foreign legal assistance requests to get

behind the outward facing structure of these shell

companies.’” 87 Fed. Reg. at 59504 (emphasis added).

24

Acknowledging that the BOI reporting seeks

information that would otherwise be obtained through

a search warrant admits that the information is

protected by the Fourth Amendment’s warrant

requirement. As Justice Brennan once explained in

dissent, “A legislature cannot abrogate constitutional

protections simply by saying that the purpose of an

administrative search scheme is to prevent a certain

type of crime.” New York v. Burger, 482 U.S. 691, 728

(1987) (Brennan, J., dissenting). That principle is all

the more true in a mandatory reporting scheme.

Congressional purposes cannot satisfy the warrant

requirement.

This Court has long made clear that “‘searches

conducted outside the judicial process, without prior

approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment — subject

only to a few specifically established and

well-delineated exceptions.’” Coolidge v. N.H., 403

U.S. 443, 454-55 (1971) (quoting Katz at 357). The

Fourth Amendment today “must provide at a

minimum the degree of protection it afforded when it

was adopted.” Jones at 411.

Clearly, the information demanded by the CTA —

“full legal name, date of birth, current ... residential or

business street address, and unique identifying

number from an acceptable identification document” —

is sensitive personal information that would have been

protected from seizure without a warrant under

protections for “persons, ... papers, and effects” at the

framing. This Court has held, for example, that

because “[c]ell phones ... place vast quantities of

25

personal information literally in the hands of

individuals ... officers must generally secure a warrant

before conducting such a search.” Riley v. California,

573 U.S. 373, 386 (2014).

The CTA requires individuals to submit such

unique personal identifying information to the

government as a condition of opening a business, and

then the government is permitted to spread the

submitted information across government agencies

and even internationally.

C. General Warrants

Assistance.

and

Writs

of

Contrary to the Eleventh Circuit’s apparent

assumption, the Fourth Amendment contains no

“uniform reporting requirement” exception. Indeed,

vast general seizures of documents and searches of

those documents, such as provided for under the CTA,

were precisely what the Framers were reacting

against.

The Founding generation crafted the Fourth

Amendment as a “response to the reviled

‘general warrants’ and ‘writs of assistance’ of

the colonial era, which allowed British officers

to rummage through homes in an unrestrained

search for evidence of criminal activity.”

[Carpenter v. United States, 585 U.S. 296, 303

(2018) (quoting Riley at 403).]

In Carpenter, the Court stated: “as John Adams

recalled, the patriot James Otis’s 1761 speech

26

condemning writs of assistance was ‘the first act of

opposition to the arbitrary claims of Great Britain’ and

helped spark the Revolution itself.” Id. at 303-04.

This is why the Fourth Amendment required

“particularity” in “describing the place to be searched

and the persons or things to be seized.” “‘[T]he

problem [posed by the general warrant] is ... a general,

exploratory rummaging in a person’s belongings….

[The Fourth Amendment addresses the problem] by

requiring a “particular description” of the things to be

seized.’” Andresen v. Md., 427 U.S. 463, 480 (1976). A

“fishing expedition for evidence of unidentified

criminal activity committed by unspecified

persons was the very evil the Fourth Amendment was

intended to prevent.” Messerschmidt v. Millender, 565

U.S. 535, 566 (2012) (Sotomayor, J., dissenting)

(emphasis added).

The Eleventh Circuit recognized that the CTA was

enacted as a tool of law enforcement — “regulating

interstate financial crime” and “prevent[ing] the use of

the corporate form to commit fraud.” NSBU II at

1332. This Court has noted that “general warrants for

search and seizure of papers originated with the Star

Chamber,” the infamous English court that allowed

general warrants and compelled self-incrimination.

Boyd at 629. The CTA’s assumption that all business

owners are potential criminals, and therefore their

information may be searched and seized as a condition

of doing business, reflects the operations of a King’s

prerogative court.

The Fourth Amendment’s “requirement of

‘probable cause’ instructs ... that baseless searches

27

shall not proceed.” United States v. United States Dist.

Court, 407 U.S. 297, 316 (1972). The CTA was

designed to facilitate baseless searches and constitutes

a vast affront to the Fourth Amendment.

CONCLUSION

For the foregoing reasons, the petitions for

certiorari should be granted.

Respectfully submitted,

RICK BOYER

INTEGRITY LAW FIRM

P.O. Box 10953

Lynchburg, VA 24506

WILLIAM J. OLSON*

JEREMIAH L. MORGAN

ROBERT J. OLSON

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

J. MARK BREWER

Vienna, VA 22180

209 N. Nugent Ave.

(703) 356-5070

Johnson City, TX 78636 wjo@mindspring.com

*Counsel of Record

Attorneys for Amici Curiae

May 21, 2026