Supreme Court Term October 2021: A Review of Selected Major Rulings
Congressional research reportOct 11, 2022
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Supreme Court Term October 2021: A Review
of Selected Major Rulings
October 11, 2022
Congressional Research Service
https://crsreports.congress.gov
R47276
SUMMARY
Supreme Court Term October 2021: A Review
of Selected Major Rulings
During the Supreme Court term that began on October 4, 2021, the Court issued a number of
decisions concerning high-profile issues such as abortion, firearms regulation, climate change,
school prayer, and immigration. Many of the Court’s opinions also brought about important
jurisprudential changes on these issues. Looking solely at the Court’s last week before its
summer recess beginning June 30, 2022, the Court issued decisions weighing in on the
Controlled Substances Act, Congress’s power to raise and support the Armed Forces, the
prosecution of crimes committed on tribal lands, the scope of the First Amendment’s
Establishment Clause, and Congress’s ability to delegate significant discretionary authority to
executive agencies. In addition, in that last week, Justice Stephen Breyer retired after 28 years on
the Court, and his successor, Justice Ketanji Brown Jackson, was sworn in.
R47276
October 11, 2022
Valerie C. Brannon,
Coordinator
Legislative Attorney
Kate R. Bowers
Legislative Attorney
Michael A. Foster
Acting Section Research
Manager
This report focuses on four cases, discussing their relevance to Congress. Specifically, the report
David Gunter
explains the Court’s rulings in (1) New York State Rifle & Pistol Ass’n v. Bruen, invoking the
Section Research Manager
Second Amendment to strike down a New York firearms restriction; (2) Kennedy v. Bremerton
School District, ruling in favor of a high school football coach who sought First Amendment
Hillel R. Smith
protections for his post-game prayers; (3) Biden v. Texas, upholding the Biden Administration’s
Legislative Attorney
termination of the Remain in Mexico policy; and (4) West Virginia v. EPA, invalidating the
EPA’s Clean Power Plan after invoking the “major questions doctrine.” Other significant cases
from the October 2021 term, such as Dobbs v. Jackson Women’s Health Organization, in which
the Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey
to conclude there is no federal constitutional right to an abortion, are addressed in other CRS products.
An Appendix at the end of this report lists all of the Court’s merits decisions from this term, states their holdings in summary
form, and provides references to CRS resources that address selected cases in more detail.
Congressional Research Service
Supreme Court Term October 2021: A Review of Selected Major Rulings
Contents
New York State Rifle & Pistol Ass’n v. Bruen: Second Amendment Restrictions on
Firearms Regulation ..................................................................................................................... 2
Background ............................................................................................................................... 2
The Supreme Court’s Opinion .................................................................................................. 5
Concurring and Dissenting Opinions ........................................................................................ 7
Considerations for Congress ..................................................................................................... 8
Kennedy v. Bremerton School District: School Prayer and the Religion Clauses ........................... 9
Background ............................................................................................................................. 10
Facts and Procedural History ............................................................................................ 10
Free Exercise and Free Speech Clause Protections for Religious Speech .........................11
Establishment Clause Limitations on School Prayer ........................................................ 13
The Supreme Court’s Opinion ................................................................................................ 14
Concurring and Dissenting Opinions ...................................................................................... 16
Considerations for Congress ................................................................................................... 17
Biden v. Texas: Termination of the Remain in Mexico Policy ....................................................... 18
Background ............................................................................................................................. 19
Statutory Framework ........................................................................................................ 19
The Texas Litigation.......................................................................................................... 20
The Supreme Court’s Opinion ................................................................................................ 22
Concurring and Dissenting Opinions ...................................................................................... 24
Considerations for Congress ................................................................................................... 26
West Virginia v. EPA: Greenhouse Gas Regulation and the Major Questions Doctrine ................ 27
Background ............................................................................................................................. 27
The Supreme Court’s Opinion ................................................................................................ 28
Concurring and Dissenting Opinions ...................................................................................... 30
Considerations for Congress ................................................................................................... 31
Appendixes
Appendix. List of Cases ................................................................................................................ 34
Contacts
Author Information........................................................................................................................ 55
Congressional Research Service
Supreme Court Term October 2021: A Review of Selected Major Rulings
upreme Court commentators characterized the Supreme Court’s October 2021 term as one
of the most momentous in history.1 The term began on October 4, 2021, and the Court
issued its last merits opinion of the term on June 30, 2022.2 During that period, the Court
confronted a number of high-profile issues such as abortion, firearms regulation, climate change,
school prayer, and immigration. The opinions not only dealt with matters of political salience but
in some cases brought about significant jurisprudential changes. For instance, the Court seemed
to require an originalist analysis in at least three constitutional contexts, saying courts should look
to the Constitution’s original meaning to determine the scope of the First Amendment’s
Establishment Clause, the Second Amendment’s right to keep and bear arms, and the Fourteenth
Amendment’s Due Process Clause.3 The term also saw a highly unusual leak of a draft opinion4
as well as Justice Stephen Breyer’s retirement.5 Justice Breyer’s replacement, Justice Ketanji
Brown Jackson, was sworn in on June 30, 2022.6
S
The October 2021 term saw fewer unanimous opinions and more 6-3 opinions than any other
term in the past decade.7 In cases where the Court issued a merits opinion after oral arguments,
about 14% were decided by a 5-4 vote, and 22% were decided by a 6-3 vote with Republicanappointed Justices in the majority and Democratic-appointed Justices in dissent.8 Chief Justice
John Roberts and Justice Brett Kavanaugh were in the majority 95% of the time, and the Chief
Justice wrote the largest number of majority opinions this term.9
Likely the term’s highest profile ruling was Dobbs v. Jackson Women’s Health Organization, in
which the Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v.
Casey to conclude there is no federal constitutional right to an abortion.10 That decision is
discussed in other CRS products.11
1 See, e.g., Angie Gou, As Unanimity Declines, Conservative Majority’s Power Runs Deeper Than the Blockbuster
Cases, SCOTUSBLOG (July 3, 2022, 8:21 PM).
2 J. OF THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 2021, at 1 (Oct. 4, 2021),
https://www.supremecourt.gov/orders/journal/Jnl21.pdf; id. at 709 (June 30, 2022).
3 “Originalism” refers to a mode of constitutional analysis that focuses on how the Constitution was understood at the
time of the Founding. CRS Legal Sidebar LSB10677, The Modes of Constitutional Analysis: Original Meaning (Part
3), by Brandon J. Murrill.
4 See Press Release, Supreme Court (May 3, 2022), https://www.supremecourt.gov/publicinfo/press/pressreleases/
pr_05-03-22. See also CRS Legal Sidebar LSB10741, Is Unauthorized Dissemination of a Draft Supreme Court
Opinion a Federal Crime?, by Michael A. Foster.
5 Letter from Justice Breyer to President Biden (June 29, 2022), https://www.supremecourt.gov/publicinfo/press/202206-29_SGB_Letter.pdf.
6 Press Release, Supreme Court, Ketanji Brown Jackson Oath Ceremony (June 29, 2022),
https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_06-29-22c.
7 Angie Gou et al., STAT PACK FOR THE SUPREME COURT’S 2021-22 TERM 3 (July 1, 2022),
https://www.scotusblog.com/wp-content/uploads/2022/07/SCOTUSblog-Final-STAT-PACK-OT2021.pdf.
8 Nine of the Court’s 63 merits opinions issued after oral argument were decided 5-4, and 14 were divided along these
6-3 ideological lines. Id. at 4, 12.
9 Id. at 8, 17. With 13 dissents, Justice Sotomayor wrote the most opinions overall. Id at 9–10.
10 Dobbs v. Jackson Women’s Health Org., No. 19-1392, slip op. at 79 (U.S. June 24, 2022).
11 CRS Legal Sidebar LSB10768, Supreme Court Rules No Constitutional Right to Abortion in Dobbs v. Jackson
Women’s Health Organization, by Jon O. Shimabukuro; see also, e.g., CRS Legal Sidebar LSB10787, Congressional
Authority to Regulate Abortion, by Kevin J. Hickey and Whitney K. Novak; CRS Legal Sidebar LSB10820, Privacy
Rights Under the Constitution: Procreation, Child Rearing, Contraception, Marriage, and Sexual Activity, by Kelsey
Y. Santamaria.
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Supreme Court Term October 2021: A Review of Selected Major Rulings
This report primarily focuses on four other significant decisions from this term: (1) New York
State Rifle & Pistol Ass’n v. Bruen, involving Second Amendment restrictions on firearms
regulation; (2) Kennedy v. Bremerton School District, involving First Amendment protections for
school prayer; (3) Biden v. Texas, involving the Biden Administration’s termination of the Remain
in Mexico policy; and (4) West Virginia v. EPA, involving the U.S. Environmental Protection
Agency’s (EPA’s) Clean Power Plan and congressional delegations of authority to executive
agencies more generally. The Appendix provides a list of all the Court’s merits decisions this
term, with summaries of the decisions’ holdings and references to CRS resources that address
selected cases in more detail.
For more background on Justice Breyer’s retirement and Justice Jackson’s jurisprudence prior to
joining the Court, see CRS Legal Sidebar LSB10691, Justice Breyer Retires: Initial
Considerations, by Valerie C. Brannon et al.; and CRS Report R47050, The Nomination of Judge
Ketanji Brown Jackson to the Supreme Court, coordinated by David Gunter.
New York State Rifle & Pistol Ass’n v. Bruen: Second
Amendment Restrictions on Firearms Regulation12
In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court held unconstitutional a
portion of New York’s firearms licensing scheme that restricts the carrying of certain licensed
firearms outside the home.13 In a 6-3 decision, the Court struck down New York’s requirement
that an applicant for an unrestricted license to carry a handgun outside the home for self-defense
must establish “proper cause,” ruling that the requirement is at odds with the Second Amendment
(as made applicable to the states through the Fourteenth Amendment).14 In doing so, the Court
recognized that the Second Amendment protects a right that extends beyond the home and also
clarified that the proper test for evaluating Second Amendment challenges to firearms laws is an
approach rooted in text and the “historical tradition” of firearms regulation, rejecting a “two-step”
methodology employed by many of the lower courts.15 Going forward, the ruling will guide lower
courts in evaluating Second Amendment challenges to laws regulating firearms at the federal,
state, and local levels.
Background
The Second Amendment provides in full: “A well regulated Militia, being necessary to the
security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”16 In
its 2008 decision in District of Columbia v. Heller, a majority of the Supreme Court held, after a
lengthy historical analysis, that the Amendment protects an individual right to possess firearms
for historically lawful purposes, including at least self-defense in the home.17 The Heller majority
also provided some guidance on the scope of the right, explaining that it “is not unlimited” and
that “nothing in [the] opinion should be taken to cast doubt” on “longstanding prohibitions” like
“laws forbidding the carrying of firearms in sensitive places such as schools and government
12 Michael A. Foster, CRS Acting Section Research Manager, authored this section of the report.
13 142 S. Ct. 2111, 2122 (2022).
14 Id.
15 Id. at 2126, 2134–35.
16 U.S. CONST. amend. II.
17 554 U.S. 570, 595 (2008).
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buildings,” among other “presumptively lawful” regulations.18 Nevertheless, the Heller Court
struck down the District of Columbia’s prohibition on the private possession of operative
handguns in the home, specifying that the home is where the need for self-defense is “most
acute.”19 In a later case, McDonald v. City of Chicago, the Court concluded that the right to keep
and bear arms is a “fundamental” right that is incorporated through the Fourteenth Amendment
against the states, meaning that the Second Amendment constrains not just the federal
government but state and local governments as well.20
Before Bruen, the Court had not meaningfully elaborated on the Second Amendment beyond
Heller and McDonald,21 leaving key questions unanswered. First, the Court in Heller did not
establish which level of scrutiny or methodology should ordinarily apply to laws implicating the
Second Amendment right to keep and bear arms. Whether a law will withstand a constitutional
challenge often depends on the level of “scrutiny” a court applies to that law, which can vary
depending on the circumstances. For example, laws that restrict political speech based on its
content typically receive “strict scrutiny,” meaning that the government must show that the law is
narrowly tailored to achieve a compelling government interest.22 Other laws may receive
“intermediate scrutiny” or “rational basis” review and are more likely to be upheld under those
standards.23 In Heller, the Court concluded that the D.C. regulations at issue failed constitutional
muster under “any of the standards of scrutiny” the Court has traditionally applied.24 Second, the
Court in Heller left unclear how far Second Amendment protections extend, if at all, beyond
keeping firearms for self-defense in the home.25
With no further Supreme Court guidance prior to Bruen, lower federal courts generally adopted a
two-step framework for reviewing federal, state, and local gun regulations.26 At step one, a court
would ask whether the law at issue burdens conduct protected by the Second Amendment, which
would typically involve an inquiry into the historical meaning of the right.27 If the law did not
18 Id. at 626–27, 627 n.26.
19 Id. at 628–36.
20 561 U.S. 742, 778, 791 (2010) (plurality opinion); id. at 806 (Thomas, J., concurring in part and concurring in
judgment). The provisions at issue in McDonald were “similar” to the provisions the Court struck down in Heller. Id. at
750 (majority opinion).
21 In Caetano v. Massachusetts, the Court issued a brief, per curiam order vacating a Massachusetts Supreme Court
decision that upheld a law prohibiting the possession of stun guns, reiterating that the Second Amendment applies to
the states and extends to “bearable arms” that “were not in existence at the time of the founding.” 136 S. Ct. 1027, 1027
(2016) (per curiam) (quoting Heller, 554 U.S. at 582) (internal quotation mark omitted). In 2019, the Court also granted
review in another case challenging portions of New York City’s handgun licensing regime, but changes to the laws at
issue prompted the Court to effectively dismiss the case as moot in April 2020 without ruling on the merits. See N.Y.
State Rifle & Pistol Ass’n v. City of New York, 140 S. Ct. 1525, 1526 (2020) (per curiam).
22 See Nat’l Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2371 (2018). Because of this connection
between the government’s interest and the regulatory means by which it chooses to advance that interest, legal
standards such as strict scrutiny and intermediate scrutiny are also sometimes called “means-end scrutiny.”
23 See, e.g., Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980) (applying intermediate
scrutiny to regulations restricting commercial speech).
24 Heller, 554 U.S. at 628. The Heller majority suggested in a footnote that “rational-basis” review would be
inappropriate in analyzing laws under the Second Amendment. Id. at 628 n.27.
25 Id. at 628; see United States v. Masciandaro, 638 F.3d 458, 467 (4th Cir. 2011) (“[A] considerable degree of
uncertainty remains as to the scope of [the Second Amendment] right beyond the home and the standards for
determining whether and how the right can be burdened by governmental regulation.”).
26 See, e.g., Powell v. Tompkins, 783 F.3d 332, 347 n.9 (1st Cir. 2015) (collecting cases).
27 E.g., Silvester v. Harris, 843 F.3d 816, 820–21 (9th Cir. 2016); Ezell v. City of Chicago, 651 F.3d 684, 701 (7 th Cir.
2011). Courts at step one sometimes recognized a safe harbor for the kinds of “longstanding” and “presumptively
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burden protected conduct, it would be upheld.28 If the challenged law did burden protected
conduct, a court would next apply either intermediate or strict scrutiny to determine whether the
law was nevertheless constitutional.29 Whether a court would apply intermediate or strict scrutiny
would ordinarily depend on whether the law severely burdened the “core” protection of the
Second Amendment.30 What precisely constituted the “core” of the Second Amendment, however,
produced some disagreement among the circuit courts, particularly with respect to whether such
protections extended beyond the home.31 Nonetheless, using the two-step framework, the federal
circuit courts upheld many firearms regulations, often after concluding that the “core” of the
Second Amendment was not severely burdened and thus intermediate scrutiny should be
applied.32
In one of those cases, New York State Rifle & Pistol Association v. Bruen, the Supreme Court
agreed33 to consider the constitutionality of a portion of New York’s handgun licensing regime
that relates to concealed-carry licenses for self-defense. New York had long made it a crime to
possess a handgun without a license.34 In general, a New York resident who wanted to possess a
handgun in public lawfully was required to get a “carry” license authorizing concealed carry.35
Among other things, prior to Bruen, “carry” licenses were limited to those holding certain types
lawful” regulations that the Supreme Court in Heller appeared to insulate from doubt. E.g., United States v. Bena, 664
F.3d 1180, 1183 (8th Cir. 2011) (“It seems most likely that the Supreme Court viewed the regulatory measures listed in
Heller as presumptively lawful because they do not infringe on the Second Amendment right.”). In a variation, some
courts treated such regulations not as per se constitutional but merely as being entitled to a presumption of
constitutionality. See, e.g., Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837 F.3d 678, 686 (6th Cir. 2016) (“Heller only
established a presumption that such bans were lawful; it did not invite courts onto an analytical off-ramp to avoid
constitutional analysis.”).
28 E.g., Medina v. Whitaker, 913 F.3d 152, 160 (D.C. Cir. 2019) (concluding that, based on historical evidence, “a
felony conviction removes one from the scope of the Second Amendment”).
29 Under this two-step analysis, courts would sometimes go on to step two in an “abundance of caution” even if it is
doubtful that a challenged law burdens conduct protected by the Second Amendment. Nat’l Rifle Ass’n of Am., Inc. v.
ATF, 700 F.3d 185, 204 (5th Cir. 2012); see Woollard v. Gallagher, 712 F.3d 865, 875 (4th Cir. 2013) (“[W]e and other
courts of appeals have sometimes deemed it prudent to instead resolve post-Heller challenges to firearm prohibitions at
the second step[.]”).
30 E.g., Nat’l Rifle Ass’n, 700 F.3d at 195.
31 Compare Kachalsky v. County of Westchester, 701 F.3d 81, 94 (2d Cir. 2012) (“The state’s ability to regulate
firearms ... is qualitatively different in public than in the home.”), Gould v. Morgan, 907 F.3d 659, 672 (1 st Cir. 2018)
(stating that the right “is at its zenith inside the home” and “is plainly more circumscribed outside the home”), and
Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015) (“If Second Amendment rights apply outside the
home, we believe they would be measured by the traditional test of intermediate scrutiny.”), with Wrenn v. District of
Columbia, 864 F.3d 650, 661 (D.C. Cir. 2017) (recognizing that the right of law-abiding citizens to carry a concealed
firearm is a core component of the Second Amendment), and Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012)
(“The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as
important outside the home as inside.”).
32 E.g., Gould, 907 F.3d at 676–77; Bonidy, 790 F.3d at 1128–29; Kanter v. Barr, 919 F.3d 437, 450–51 (7th Cir. 2019).
Not all firearms regulations have been upheld, however. See, e.g., N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d
242, 264 (2d Cir. 2015) (concluding that a law limiting the number of rounds that could be loaded into a firearm did not
survive intermediate scrutiny on the record before the court); Wrenn, 864 F.3d at 667 (holding that restrictions on
obtaining a concealed carry license effectively banned exercise of core Second Amendment right and were thus
unconstitutional); but see Kachalsky, 701 F.3d at 94 (applying intermediate scrutiny and upholding similar restrictions
after concluding that possession of firearms outside the home is outside the core of Second Amendment).
33 141 S. Ct. 2566 (2020) (mem.) (granting petition for certiorari).
34 N.Y. PENAL LAW §§ 265.01–265.04, 265.20(a)(3).
35 See id. § 400.00(2).
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of employment or who could show “proper cause.”36 State and federal courts in New York
interpreted the phrase “proper cause” to mean that either (1) the applicant wanted to use the
handgun for target practice or hunting, in which case the license could be restricted to those
purposes; or (2) the applicant had a “special need for self-protection distinguishable from that of
the general community or of persons engaged in the same profession.”37
In 2018, the New York State Rifle & Pistol Association, a firearms advocacy organization
composed of individuals and clubs throughout the state, and two of its individual members
(collectively “the petitioners”) filed suit in federal court against relevant New York licensing
officials, alleging that the denial of licenses to carry firearms outside the home for self-defense
was a violation of the Second Amendment.38 Specifically, the petitioners asserted that although
they had been issued restricted licenses to carry for purposes of hunting and target shooting, they
had been denied unrestricted licenses because they had only a generalized desire to carry for selfdefense outside the home and thus could not establish “proper cause” under New York law.39 The
Second Circuit40 summarily affirmed dismissal of the petitioners’ claims, relying on a previous
decision in which the court applied the two-step inquiry described above to New York’s proper
cause requirement.41
The Supreme Court’s Opinion
In a 6-3 decision, the Supreme Court reversed the Second Circuit’s judgment, holding that New
York’s licensing regime violates the Constitution.42 Justice Clarence Thomas’s majority opinion
began by addressing the proper standard for evaluating Second Amendment challenges to firearm
regulations and rejecting the two-step framework that “combines history with means-end
scrutiny.”43 In the majority’s view, the two-step approach was inconsistent with Heller, which
focused on text and history and did not invoke any means-end test such as strict or intermediate
scrutiny.44 Consistent with that exclusive focus on text and history, the Court stated the test as
follows:
When the Second Amendment’s plain text covers an individual’s conduct, the Constitution
presumptively protects that conduct. The government must then justify its regulation by
demonstrating that it is consistent with the Nation’s historical tradition of firearm
36 Id. § 400.00(2)(c)–(f).
37 Kachalsky v. County of Westchester, 701 F.3d 81, 86 (2d Cir. 2012) (quoting Klenosky v. N.Y.C. Police Dep’t, 428
N.Y.S.2d 256, 257 (N.Y. App. Div. 1980) (internal quotation mark omitted)).
38 See N.Y. State Rifle & Pistol Ass’n v. Beach, 354 F. Supp. 3d 143, 145 (N.D.N.Y. 2018).
39 See id. at 146–47 (stating that the individual petitioners sought unrestricted licenses based on their experience and
training handling firearms and, in one petitioner’s case, robberies in his neighborhood). In the case of the organization,
it alleged that at least one of its members would carry a firearm outside the home for self-defense but could not satisfy
the proper cause requirement. Id. at 146.
40 For purposes of brevity, references to a particular circuit in this memorandum (e.g., the Second Circuit) refer to the
U.S. Court of Appeals for that particular circuit (e.g., the U.S. Court of Appeals for the Second Circuit).
41 N.Y. State Rifle & Pistol Ass’n v. Beach, 818 F. App’x 99, 100 (2d Cir. 2020) (summary order); see Kachalsky, 701
F.3d at 89, 94.
42 N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2122 (2022).
43 Id. at 2125–26.
44 Id. at 2127–29.
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regulation. Only then may a court conclude that the individual’s conduct falls outside the
Second Amendment’s “unqualified command.”45
Turning, then, to the first question in the analysis—whether the Second Amendment’s text covers
the conduct at issue—the majority opinion concluded that it did, as the word “bear” in the text
“naturally encompasses public carry.”46 As such, according to the majority, the Second
Amendment “presumptively guarantees ... a right to ‘bear’ arms in public for self-defense.”47
On the next question of consistency with the country’s “historical tradition of firearm regulation,”
the majority opinion provided some further guidance, acknowledging that the “regulatory
challenges posed by firearms today are not always the same as those that preoccupied the
Founders in 1791 or the Reconstruction generation in 1868.”48 For this reason, the majority
explained that historical analysis of modern-day gun laws may call for reasoning by analogy to
determine whether historical and modern firearm regulations are “relevantly similar.”49
To determine what qualifies as relevantly similar, the majority opinion identified “at least two
metrics: how and why the regulations burden a law-abiding citizen’s right to armed selfdefense.”50 As an example of modern laws that could pass muster by means of historical analogy,
the majority opinion pointed to laws prohibiting firearms in “sensitive places” such as schools or
government buildings, though the majority rejected the proposition that the “sensitive place”
category could apply so broadly as to cover “all places of public congregation that are not isolated
from law enforcement.”51
Throughout the majority opinion, the Court provided further guideposts as to what sort of
historical evidence would be most valuable, cautioning, among other things, against reading too
much into early English law that did not necessarily “survive[] to become our Founders’ law” or
ascribing too much significance to post-enactment history, at least where that history was
inconsistent with the original meaning of the constitutional text.52 The majority declined to decide
whether the prevailing historical understanding for analytical purposes should be that of 1791,
when the Second Amendment was adopted, or 1868, when the Fourteenth Amendment was
ratified. Instead, it concluded that the public understanding was the same at both points for
relevant purposes with respect to public carry.53
With this framework and guidance in place, the majority opinion turned to its historical analysis,
assessing whether a variety of laws from England and the United States proffered by the
respondents met the burden of establishing that New York’s laws were consistent with the
country’s historical tradition of firearms regulation.54 Ultimately, the majority concluded that the
respondents did not meet the burden “to identify an American tradition justifying the State’s
proper-cause requirement.”55 While acknowledging that history reflected restrictions on public
45 Id. at 2129–30 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 49 n.10 (1961)).
46 Id. at 2134.
47 Id. at 2135.
48 Id. at 2132.
49 Id.
50 Id. at 2133.
51 Id. at 2133–34.
52 Id. at 2136–37.
53 Id. at 2138.
54 Id. at 2138–56.
55 Id. at 2156.
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carry, which limited “the intent for which one could carry arms, the manner by which one carried
arms,” or the particular circumstances “under which one could not carry arms,” the majority
opinion concluded that “American governments simply have not broadly prohibited the public
carry of commonly used firearms for personal defense” or made public carry contingent on a
showing of a special need.56 The few historical laws that the majority viewed as extending that far
were, according to the opinion, “late-in-time outliers.”57 As such, the majority held that New
York’s proper cause requirement violated the Second Amendment (by way of the Fourteenth
Amendment) in preventing “law-abiding citizens with ordinary self-defense needs from
exercising their right to keep and bear arms.”58
Concurring and Dissenting Opinions
Justice Samuel Alito joined the Court’s majority opinion “in full” but wrote separately to respond
primarily to points made by the dissent.59 Justice Alito emphasized in his concurrence that the
majority opinion did not disturb Heller or McDonald and said nothing about who may be
prohibited from possessing a firearm, what kinds of weapons may be possessed, or the
requirements for purchasing a firearm.60
Justice Kavanaugh, joined by Chief Justice Roberts, also wrote separately to underscore that the
decision in Bruen would not prohibit states from imposing licensing requirements for public carry
based on objective criteria so long as the requirements “do not grant open-ended discretion to
licensing officials and do not require a showing of some special need apart from self-defense.”61
Justice Kavanaugh, quoting from Heller, reiterated that the Second Amendment right is not
unlimited and may allow for many kinds of gun regulations.62
Justice Amy Coney Barrett wrote a solo concurrence to highlight two open methodological
questions regarding the role of post-ratification practice in historical inquiry and whether 1791 or
1868 should be the relevant benchmark year.63 She underscored that both questions were
unnecessary to resolve in the present case but may have a bearing on a future case.64
Justice Breyer authored a dissent, joined by Justices Elena Kagan and Sonia Sotomayor.65 The
dissent objected to deciding the case on the pleadings without an evidentiary record as to how
New York’s standard was actually being applied.66 More fundamentally, Justice Breyer disagreed
with the majority of the Court’s “rigid history-only approach,” which he argued unnecessarily
disrupted consensus in federal circuit courts, misread Heller, and put the Second Amendment on a
different footing than other constitutional rights.67 The dissent also viewed the history-focused
approach as “deeply impractical” because it imposed on judges without historical expertise—and
56 Id.
57 Id.
58 Id.
59 Id. at 2156–57 (Alito, J., concurring).
60 Id. at 2157.
61 Id. at 2162 (Kavanaugh, J., concurring).
62 Id.
63 Id. at 2162–63 (Barrett, J., concurring).
64 Id. at 2163.
65 Id. at 2163 (Breyer, J., dissenting).
66 Id. at 2164, 2170–74.
67 Id. at 2174–77.
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courts without needed resources—the task of parsing history, raised numerous intractable
questions about what history to consider and how to weigh it, and would “often fail to provide
clear answers to difficult questions” while giving judges “ample tools to pick their friends out of
history’s crowd.”68 The dissent viewed the majority’s historical analysis regarding public carry as
an embodiment of these impracticalities. Justice Breyer identified numerous historical regulations
that, in his view, were similar to New York’s under the majority’s reasoning but that the majority
discounted.69
Considerations for Congress
Most immediately, the Supreme Court’s decision in Bruen casts substantial constitutional doubt
on other state public carry laws that require a showing of cause or a special need to carry in
public. According to the majority opinion, at least five states have discretionary public carry
licensing regimes analogous to New York’s “proper cause” standard.70 Following Bruen, the
Court vacated a Ninth Circuit decision that had upheld Hawaii’s open-carry licensure
requirements, which include demonstrating “the urgency or the need” to carry a firearm.71 The
governor of Maryland, which had required a “good and substantial reason” for seeking a
concealed-carry permit, also ordered Maryland State Police to immediately suspend that
provision following Bruen.72
In a footnote, the majority opinion in Bruen emphasized that its decision with respect to New
York’s regime did not suggest that licensing regimes in other states imposing objective
requirements would be unconstitutional. For example, the Court suggested that requirements such
as a background check or completion of a firearms safety course may be permissible, although
circumstances such as “lengthy wait times” or “exorbitant fees” might be subject to challenge if
they “deny ordinary citizens their right to public carry.”73 In response to the Bruen decision, New
York passed new concealed-carry provisions that did not include a “proper cause” requirement
but added new requirements and restrictions, including mandating firearm safety training, and
prohibited concealed carry in particular locations such as subway stations, stadiums, and Times
Square.74 A court challenge was quickly filed and, on October 6, 2022, the district court granted a
temporary restraining order prohibiting enforcement of a number of the provisions.75 Among
other things, the court ruled that several of the location restrictions (including in Times Square
and the subway) and a provision requiring an applicant to establish “good moral character” were
likely unconstitutional under Bruen.76
68 Id. at 2177–81.
69 Id. at 2181–90.
70 Id. at 2124 (majority opinion).
71 See Young v. Hawaii, 142 S. Ct. 2895, 2895–96 (2022) (mem.).
72 Paul Duggan & Ovetta Wiggins, Hogan orders relaxed rules for Maryland concealed handgun permits, WASH. POST
(July 6, 2022), https://www.washingtonpost.com/dc-md-va/2022/07/05/maryland-handgun-rules-relaxed-hogan/.
73 Bruen, 142 S. Ct. at 2138 n.9.
74 Press Release, Governor of N.Y., Governor Hochul Announces New Concealed Carry Laws Passed in Response to
Reckless Supreme Court Decision Take Effect September 1, 2022 (Aug. 31, 2022), https://www.governor.ny.gov/news/
governor-hochul-announces-new-concealed-carry-laws-passed-response-reckless-supreme-court. California failed to
enact similar provisions at the end of August 2022. Ben Christopher, Misfire: Behind the California Concealed Carry
Bill’s Big Fail, CALMATTERS (Sept. 2, 2022), https://calmatters.org/politics/california-legislature/2022/09/californiaconcealed-carry-bill/.
75 Antonyuk v. Hochul, No. 22-CV-986, 2022 U.S. Dist. LEXIS 182965, at *54–*57 (N.D.N.Y. Oct. 6, 2022).
76 Id. at *22–*26, *42, *45.
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Beyond public-carry licensure requirements, the Court’s decision in Bruen could also have
significant implications for other existing and potential firearm laws. Many firearm laws at the
federal, state, and local levels have been upheld under the “two-step” methodology, and decisions
upholding firearm regulations that apply in public have sometimes relied on the proposition that
firearm restrictions beyond the home do not strike at the “core” of the Second Amendment right.77
Following Bruen, a number of provisions that were previously upheld could be subject to
renewed constitutional challenge, though the majority in Bruen did indicate that the approach it
endorsed is “neither a regulatory straightjacket nor a regulatory blank check.”78
For instance, some states and localities have restrictions or prohibitions on certain so-called
“semiautomatic assault weapons,” and multiple federal Courts of Appeals have upheld such laws
using the two-step approach.79 In a 2012 case, the D.C. Circuit applied that approach to uphold
the District of Columbia’s version of a ban on certain semiautomatic rifles. However, Justice
Kavanaugh, who was then a judge on the D.C. Circuit, wrote a dissenting opinion in the case,
arguing that the court should instead use a “text, history, and tradition” approach (which appears
similar to the historical approach ultimately endorsed by the Court in Bruen) and strike down the
law.80 Following Bruen, it appears that at least one challenge to an assault weapon ban is poised
to be re-examined: On June 30, 2022, the Court vacated a lower-court decision that had upheld
Maryland’s prohibition on “assault long guns” in light of Bruen.81
The Supreme Court’s express holdings that the Second Amendment applies outside the home and
that the proper test for analyzing the constitutionality of gun regulations is historical analogy may
also guide legislators in considering future gun legislation. In particular, Congress and other
lawmakers may wish to consider and express whether particular measures under consideration
could be viewed as part of a “historical tradition” of regulation such that they would meet the
Bruen standard. As the majority opinion acknowledged, “[h]istorical analysis can be difficult”
and can call for “nuanced judgments about which evidence to consult and how to interpret it.”82
That poses a challenge for legislative judgment, but legislative findings may also assist courts that
cannot draw on the same historical expertise or resources that are available to Congress.
Kennedy v. Bremerton School District: School Prayer
and the Religion Clauses83
The Supreme Court’s opinion in Kennedy v. Bremerton School District implicates three separate
clauses of the First Amendment: the Establishment and Free Exercise Clauses, collectively known
77 See supra note 32 and accompanying text.
78 Bruen, 142 S. Ct. at 2133.
79 See Worman v. Healey, 922 F.3d 26, 41 (1st Cir. 2019) (addressing Massachusetts ban on semiautomatic assault
weapons and large-capacity magazines); Kolbe v. Hogan, 849 F.3d 114, 135–37 (4th Cir. 2017) (en banc) (addressing
Maryland ban on “assault weapons” and large capacity magazines); N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804
F.3d 242, 261–64 (2d Cir. 2015) (addressing New York and Connecticut bans on semiautomatic assault weapons and
large-capacity magazines); Friedman v. City of Highland Park, 784 F.3d 406, 410–12 (7th Cir. 2015) (addressing a city
ordinance banning semiautomatic assault weapons and large capacity magazines); Heller v. District of Columbia, 670
F.3d 1244, 1260–64 (D.C. Cir. 2011) (addressing D.C.’s ban on semiautomatic rifles and large-capacity magazines).
80 Heller, 670 F.3d at 1271 (Kavanaugh, J., dissenting).
81 Bianchi v. Frosh, 142 S. Ct. 2898, 2898–99 (2022) (mem.).
82 Bruen, 142 S. Ct. at 2130 (cleaned up) (quoting McDonald v. City of Chicago, 561 U.S. 742, 803–04 (2010) (Scalia,
J., concurring)).
83 Valerie C. Brannon, CRS Legislative Attorney, authored this section of the report.
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as the Religion Clauses, as well as the Free Speech Clause.84 Kennedy clarified free exercise and
free speech protections for school prayer by ruling in favor of a high school football coach who
wanted to pray on the field after games.85 The majority opinion also significantly altered
Establishment Clause jurisprudence by announcing that the Court had broadly abandoned use of
the Lemon test,86 which had been the basis for church-and-state decisions over several decades
but had seemed to fall into disfavor with many Justices on the Court in more recent years.87 The
Kennedy opinion described the Lemon test as “abstract” and “ahistorical” and said that courts
should instead interpret the Establishment Clause by reference to “original meaning and
history.”88 In that sense, the decision contributed to the term’s broader trend of requiring an
originalist analysis of constitutional guarantees.
Background
Facts and Procedural History
The plaintiff, Joseph Kennedy, was a high school football coach employed by Bremerton High
School from 2008 to 2015. While the parties disputed how to view the facts of this case, they
agreed that the school suspended Kennedy because he engaged in post-game prayers in which he
knelt at the 50-yard line of the football field and prayed audibly.89 The conflict began in 2015,
when the school learned about this post-game prayer practice and also discovered that Kennedy
had led students in prayer before games and conducted overtly religious inspirational talks with
students after games.90 According to the principal, one parent said his son “felt compelled to
participate” in those prayers out of concern for his playing time.91 Although Kennedy stopped
these additional practices after the school expressed concerns about them, the school emphasized
that he continued his midfield prayers and raised awareness about the practice through media
appearances.92 At one game, the school said this led to spectators rushing the field and Kennedy
leading a large group in prayer.93 Kennedy, by contrast, stressed that he had stopped the earlier
prayers with students and did not expressly invite his students or others to join his later post-game
prayers.94
The school placed Kennedy on paid administrative leave based on his “overt, public and
demonstrative religious conduct while still on duty as an assistant coach.”95 Kennedy received a
poor performance evaluation that advised against his rehiring, and he did not reapply for a
84 Specifically, the First Amendment prohibits the government from making any “law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” U.S. CONST. amend. I.
85 See Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2416 (2022).
86 Id. at 2427.
87 See generally CRS, Establishment Clause Tests, CONSTITUTION ANNOTATED, https://constitution.congress.gov/
browse/essay/amdt1-2-4-3/ALDE_00013073/ (last visited Oct. 11, 2022).
88 Kennedy, 142 S. Ct. at 2427–28.
89 Id. at 2416, 2418–19.
90 Joint Appendix at 40, Kennedy, 142 S. Ct. 2407 (No. 21-418).
91 Id. at 234.
92 Brief for Respondent at 6, Kennedy, 142 S. Ct. 2407 (No. 21-418).
93 Id.
94 Brief for Petitioner at 10, Kennedy, 142 S. Ct. 2407 (No. 21-418).
95 Joint Appendix at 102, Kennedy, 142 S. Ct. 2407 (No. 21-418).
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coaching position.96 Kennedy sued the school, arguing it had violated his constitutional rights
under the First Amendment’s Free Speech and Free Exercise Clauses by punishing him for this
religious speech.97 He sought injunctive relief that included his reinstatement and an order
allowing him to resume his 50-yard-line prayer.98 Lower courts denied his motion seeking a
preliminary injunction.99 The Supreme Court declined to review those rulings in 2019.100
The trial court then granted summary judgment to the school, concluding that although the school
suspended Kennedy because of his religious conduct, its actions were justified because the school
would have violated the Establishment Clause if it allowed the coach to continue his prayer
practice.101 The Ninth Circuit affirmed this ruling,102 although an order denying en banc review by
the full panel of circuit court judges drew separate opinions by several members of the panel,
including three dissents.103
Free Exercise and Free Speech Clause Protections for Religious Speech
Kennedy argued that his religious speech was protected under the First Amendment’s Free
Exercise and Free Speech Clauses. These two constitutional provisions are not coextensive: The
Free Exercise Clause protects religious activity, while the Free Speech Clause protects expressive
activity.104 Nonetheless, the Court has long recognized the “close parallels”105 between the two
clauses and has concluded in a number of cases that religious communication was protected under
both the Free Exercise and Free Speech Clauses.106 However, the clauses use different tests to
96 Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1014 (9th Cir. 2021).
97 Kennedy, 142 S. Ct. at 2419.
98 Joint Appendix at 165, Kennedy, 142 S. Ct. 2407 (No. 21-418). Based on the nature of the relief sought, Bremerton
High School argued the case became moot after Kennedy moved to Florida in 2020, saying that because he had bought
a home in Pensacola and registered to vote there, it seemed unlikely he would “move approximately 2,800 miles back
to Bremerton, Washington, for a $5,304 part-time coaching job.” Suggestion of Mootness at 6, Kennedy, 142 S. Ct.
2407 (No. 21-418). The Supreme Court did not address this issue.
99 Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 815 (9th Cir. 2017).
100 Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634, 634 (2019) (mem.). Justice Alito wrote separately to state that the
lower court’s “understanding of the free speech rights of public school teachers is troubling and may justify review in
the future” and to note open questions under the Free Exercise Clause. Id. at 636–37 (Alito, J., statement respecting the
denial of certiorari).
101 Kennedy v. Bremerton Sch. Dist., 443 F. Supp. 3d 1223, 1240 (W.D. Wash. 2020).
102 Kennedy, 991 F.3d at 1010.
103 Kennedy v. Bremerton Sch. Dist., 4 F.4th 910, 911 (9th Cir. 2021) (mem.). Although summary judgment and
subsequent appellate review are generally based on facts that are not in dispute, the judges reviewing the case held
somewhat divergent views of the facts, particularly the question of whether Kennedy’s prayers should be considered
private. Compare, e.g., id. at 912 (Smith, J., concurring in the denial of rehearing en banc) (saying that although the
post-game prayers “were initially silent and private,” Kennedy made the prayers public and involved students as part of
a “mission to intertwine religion with football”), with, e.g., id. at 932 (O’Scannlain, J., dissenting from the denial of
rehearing en banc) (describing Kennedy’s prayer practice as private).
104 The First Amendment protects both pure speech and expressive conduct. See, e.g., Tinker v. Des Moines Indep.
Cmty. Sch. Dist., 393 U.S. 503, 505–06 (1969). Conduct is sufficiently communicative “to bring the First Amendment
into play” if the speaker intends “to convey a particularized message” and “the likelihood was great that the message
would be understood by those who viewed it.” Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v.
Washington, 418 U.S. 405, 410–11 (1974)) (internal quotation mark omitted). Accordingly, it is possible that a person
could engage in private religious conduct that triggers Free Exercise Clause protections but is not sufficiently
communicative to qualify for free speech protections.
105 Lee v. Weisman, 505 U.S. 577, 591 (1992).
106 See CRS, Relationship Between Religion Clauses and Free Speech Clause, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-2-7/ALDE_00000040/ (last visited Oct. 11, 2022).
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determine whether the government has unconstitutionally infringed on protected activity—tests
that also vary depending on the nature of the law and the regulated activity.
Most Free Exercise Clause analyses depend largely on whether a government action is neutral
toward religion or whether instead the government has discriminated against religion.107 If a
policy is neutral and generally applicable, the Supreme Court has held that any “incidental effect”
on religion will not violate the Free Exercise Clause.108 By contrast, a policy that discriminates
against religion will generally be subject to heightened constitutional scrutiny.109 Bremerton High
School conceded in the lower courts that its policy was not neutral and generally applicable under
this analysis, given that the school restricted Kennedy’s activities because they were religious.110
However, the school believed it could satisfy strict constitutional scrutiny because it needed to
avoid an Establishment Clause violation, as discussed below.111
The Free Speech Clause analysis implicated by Kennedy’s claims was more complicated.
Constitutional speech claims brought by public employees are generally evaluated under a rubric
set out in Pickering v. Board of Education.112 In that case, the Supreme Court recognized that
when public employees speak in the course of their official duties, the government can exercise
some control over their speech in order to provide public services efficiently.113 Accordingly,
courts have held that governments may discipline their employees for statements that were made
as part of their ordinary job responsibilities.114 However, the Court also ruled in Pickering that
when public employees speak as citizens, on issues of public concern, they do not completely
“relinquish the First Amendment rights they would otherwise enjoy.”115 If employees speak
outside the course of their ordinary job duties on an issue of public concern, Pickering instructs
courts to engage in a balancing test, weighing the government’s operational interests against the
interests of the employee and the public in the protected speech.116
Bremerton High School’s principal arguments were that it could regulate Kennedy’s speech
because his post-game responsibilities were “an essential part of his job as coach,” but it also
argued that even if the coach had spoken as a citizen, the school’s interests in avoiding an
Establishment Clause violation “outweighed Kennedy’s desire to pray with students at the 50yard line.”117 In response, Kennedy argued that while some post-game speech might be
“commissioned” by the school, he did not act “as the school’s mouthpiece every moment he
remained on the field.”118 Kennedy said the school would have allowed him to look at his phone
107 See generally CRS, The Free Exercise Clause Overview, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-2-5-1/ALDE_00013221/ (last visited Oct. 11, 2022).
108 Emp. Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 878 (1990).
109 See generally CRS, Laws that Discriminate Against Religious Practice, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-2-5-3-6/ALDE_00000733/ (last visited Oct. 11, 2022).
110 Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1020 (9th Cir. 2021).
111 Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2426 (2022); see also infra “Establishment Clause Limitations
on School Prayer.”
112 Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
113 Id.
114 E.g., Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
115 Pickering, 391 U.S. at 568.
116 See, e.g., Connick v. Myers, 461 U.S. 138, 142 (1983).
117 Brief for Respondent at 19, 23, Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022) (No. 21-418).
118 Brief for Petitioner at 38, Kennedy, 142 S. Ct. 2407 (No. 21-418).
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or greet his spouse in that post-game period and asserted that the school could not
discriminatorily prohibit only his private religious activity.119
Establishment Clause Limitations on School Prayer
The Supreme Court has described the Establishment Clause as “a specific prohibition on forms of
state intervention in religious affairs.”120 The Court has further recognized that if a public school
would violate the Establishment Clause by hosting or sponsoring religious speech, that violation
provides a compelling justification to restrict that speech.121
Broadly, the Supreme Court has said that for the Framers, laws respecting “the ‘establishment’ of
a religion connoted sponsorship, financial support, and active involvement of the sovereign in
religious activity.”122 More specifically, the Court has used a variety of tests over time to
determine whether any given government action violates the Establishment Clause.123 The
primary analysis has looked to three factors that were compiled (but not first announced) in a
1971 case, Lemon v. Kurtzman.124 The eponymous Lemon test says that for a government action
to be constitutional, (1) it “must have a secular legislative purpose”; (2) “its principal or primary
effect must be one that neither advances nor inhibits religion”; and (3) it “must not foster ‘an
excessive government entanglement with religion.’”125 The Court has sometimes also applied a
variation on Lemon that asks whether a “reasonable observer” would think that a government
practice “has the purpose or effect of ‘endorsing’ religion.”126 Although the Court described the
Lemon factors as “no more than helpful signposts”127 and the test faced significant criticism from
scholars and judges,128 the Court continued to apply these factors through the early 2000s.129
In 2019’s American Legion v. American Humanist Ass’n, the Supreme Court limited the
applicability of Lemon in a split decision.130 Three Justices would have ruled that the Lemon test
no longer applies in any circumstances,131 but the plurality opinion more narrowly ruled that
Lemon would not apply to Establishment Clause review of “monuments, symbols, and practices
119 Id. at 29.
120 Lee v. Weisman, 505 U.S. 577, 591 (1992).
121 Widmar v. Vincent, 454 U.S. 263, 271 (1981).
122 Walz v. Tax Comm’n, 397 U.S. 664, 668 (1970).
123 CRS, Establishment Clause Tests, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/
amdt1-2-4-3/ALDE_00013073/ (last visited Oct. 11, 2022).
124 Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). For a discussion of how the Supreme Court applied the first two
factors during the 1960s, see CRS, Purpose and Effect Before Lemon, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/amdt1-2-4-5-3/ALDE_00013082/ (last visited Oct. 11, 2022).
125 Lemon, 403 U.S. at 612–13 (quoting Walz, 397 U.S. at 674).
126 Allegheny Cnty. v. ACLU, 492 U.S. 573, 592 (1989).
127 Hunt v. McNair, 413 U.S. 734, 741 (1973).
128 See Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2081 (2019) (plurality opinion).
129 See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 648–49 (2002) (applying the purpose and effect prongs to reject
an Establishment Clause challenge); McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 861, 881 (2005) (declining to
abandon Lemon’s focus on purpose and instead concluding that a religious display failed Lemon’s purpose prong).
Most recently, a plurality of the Court applied the endorsement test to uphold a Latin cross war memorial in Salazar v.
Buono, 559 U.S. 700, 705–06 (2010) (plurality opinion), although there was not a majority for this ruling.
130 CRS Legal Sidebar LSB10315, No More Lemon Law? Supreme Court Rethinks Religious Establishment Analysis,
by Valerie C. Brannon.
131 Am. Legion, 139 S. Ct. at 2092 (Kavanaugh, J., concurring); id. at 2097 (Thomas, J., concurring in the judgment); id.
at 2101–02 (Gorsuch, J., concurring in the judgment).
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with a longstanding history.”132 The plurality said longstanding monuments and practices should
instead be upheld so long as they are consistent with historical practices and traditions.133
A number of Supreme Court cases have specifically considered the constitutionality of prayer in
public schools, applying a variety of analyses. The Court has previously held that policies
encouraging prayer in public grade schools violate the First Amendment when they have an
impermissible purpose of sponsoring or endorsing religion,134 when they are unduly coercive,135
or when they violate historical understandings of the Establishment Clause.136 In particular, the
Court said in a 1992 decision that there are “heightened concerns” about “subtle coercive
pressure” in the context of “elementary and secondary public schools.”137
As one example, in its 2000 decision in Santa Fe Independent School District v. Doe, the Court
held that a school policy permitting student-led prayer at football games violated the
Establishment Clause.138 Again, the question of coercion was important: The Court noted that
some students were required to attend football games.139 However, even if all students attended
voluntarily, the Court concluded that delivering a pregame prayer “over the school’s public
address system, by a speaker representing the student body, under the supervision of school
faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer”
nonetheless had “the improper effect of coercing those present to participate in an act of religious
worship.”140 Bremerton High School cited Santa Fe to argue that Kennedy, a coach with
“authority and influence over” his students, placed impermissible coercion on the students’
religious exercise.141 The school also asserted that by allowing Kennedy to continue his prayer
practice, it would be seen as impermissibly endorsing religion and “engaging in religious
favoritism.”142
The Supreme Court’s Opinion
The Supreme Court ruled for Kennedy in a 6-3 decision. The majority opinion, authored by
Justice Neil Gorsuch, first held that Kennedy’s religious speech was protected under both the
Free Exercise Clause and the Free Speech Clause.143 Under the Free Exercise Clause, the school
did not contest that Kennedy sought “to engage in a sincerely motivated religious exercise.”144
The Court also concluded that Kennedy was speaking as a private citizen on a matter of public
concern, triggering Free Speech Clause protections.145 Although Kennedy was still on the job and
132 Id. at 2081–82 (plurality opinion).
133 Id. at 2089.
134 Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 309 (2000); Wallace v. Jaffree, 472 U.S. 38, 59 (1985); Abington
Sch. Dist. v. Schempp, 374 U.S. 203, 223 (1963).
135 Lee v. Weisman, 505 U.S. 577, 592 (1992).
136 Engel v. Vitale, 370 U.S. 421, 430–33 (1962).
137 Lee, 505 U.S. at 592.
138 Santa Fe, 530 U.S. at 317.
139 Id. at 311. In addition to coercion, the Court also ruled the policy invalid due to an impermissible perceived purpose
of sponsoring prayer. Id. at 309–10.
140 Id. at 310, 312.
141 Brief for Respondent at 37, Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022) (No. 21-418).
142 Id.
143 Kennedy, 142 S. Ct. at 2426.
144 Id. at 2422.
145 Id. at 2424.
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on the field while praying, the Court decided that the prayer was not offered “within the scope of
his duties as a coach,” observing that coaching staff were “free to engage in all manner of private
speech” during this specific post-game time period.146
The majority opinion next noted that the parties disputed which First Amendment test should
apply.147 Kennedy sought strict scrutiny under the Free Exercise or Free Speech Clauses because
the school’s policy was not neutral toward religious speech, while the school advocated for
Pickering balancing because the coach was a public employee.148 However, the Court concluded
that it did not need to resolve this issue because the school failed either test.149 The sole
justification that the Court considered for the school’s decision was avoiding an Establishment
Clause violation—and because the Court ultimately held that Kennedy’s prayer did not violate
the Establishment Clause, the school could not justify its actions under either First Amendment
test.150
The Supreme Court rejected the school’s arguments that by allowing the coach’s prayers, the
school would impermissibly appear to endorse them.151 In a development likely to be significant
in Establishment Clause jurisprudence, the Court disclaimed “Lemon and its endorsement test
offshoot.”152 The Court stated that it had “long ago abandoned” the “abstract” and “ahistorical”
Lemon test.153 Instead, the Court instructed “that the Establishment Clause must be interpreted by
‘reference to historical practices and understandings’” using an “analysis focused on original
meaning and history.”154 The majority seemed to accept a coercion analysis as consistent with this
approach, saying coercive religious observance “was among the foremost hallmarks of religious
establishments the framers sought to prohibit when they adopted the First Amendment.”155
However, the majority concluded that Kennedy’s prayer practice was not as coercive as school
prayer practices the Court had previously invalidated.156 The Court decided evidence about the
coercion stemming from times when the coach prayed with students was irrelevant because the
suspension decision focused on later instances when the coach “did not seek to direct any prayers
to students.”157 In comparison to Santa Fe, the Court stated that the coach’s prayers “were not
publicly broadcast ... to a captive audience,” and students were not “expected to participate.”158
Accordingly, the Court held Kennedy was entitled to summary judgment on his First Amendment
claims.159 This effectively granted Kennedy the injunctive relief he sought—reinstatement as a
coach at the high school—although he has apparently not returned to the high school.160 More
146 Id. at 2424–25.
147 Id. at 2426.
148 Id.
149 Id.
150 Id. at 2426, 2432.
151 Id. at 2427.
152 Id.
153 Id.
154 Id. at 2428 (quoting Town of Greece v. Galloway, 572 U.S. 565, 576 (2014)).
155 Id. at 2429.
156 Id.
157 Id. at 2429–30.
158 Id. at 2431–32.
159 Id. at 2433.
160 Danny Westneat, The Story of the Praying Bremerton Coach Keeps Getting More Surreal, SEATTLE TIMES (Sept. 17,
2022, 6:00 AM), https://www.seattletimes.com/seattle-news/the-story-of-the-praying-bremerton-coach-keeps-getting-
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broadly, the Court ruled that the school could not require teachers to “eschew any visible religious
expression,” because that would impermissibly “preference secular activity.”161 Certain portions
of the Court’s opinion could be read to limit earlier opinions saying the government can restrict
religious speech if the government’s support would violate the Establishment Clause.162 Rejecting
the idea that the school’s “interest in avoiding an Establishment Clause violation ‘trump[ed]’ Mr.
Kennedy’s rights to religious exercise and free speech,” the Court said that instead, the three
clauses should be read to complement one another.163 The Court said that if the school were
required to “prohibit teachers from engaging in any demonstrative religious activity,” that “would
be a sure sign that our Establishment Clause jurisprudence had gone off the rails.”164 This
provided support for its belief that the Establishment Clause should be read more narrowly.
Concurring and Dissenting Opinions
Justices Thomas and Alito both joined the majority opinion in full but also wrote separately to
emphasize open questions not definitively resolved by the majority opinion—including what
standard of review courts should apply to determine whether a public employer can restrict an
employee’s religious speech.165
Three Justices dissented. Writing on behalf of herself and Justices Breyer and Kagan, Justice
Sotomayor claimed the majority opinion paid “almost exclusive attention to the Free Exercise
Clause’s protection for individual religious exercise while giving short shrift to the Establishment
Clause’s prohibition on state establishment of religion.”166 Taking issue with the majority’s view
of which facts were relevant, Justice Sotomayor argued that Kennedy’s prayers at the 50-yard line
had to be viewed in light of their full history and context, which revealed “a longstanding practice
of the employee ministering religion to students as the public watched.”167 In her view, Kennedy’s
practice violated the Establishment Clause due to endorsement and coercion.168 Further, she
claimed the majority’s approach to evaluating coercion was inconsistent with prior school prayer
cases, saying Kennedy’s prayers raised “precisely the same concerns” as the practice in Santa
Fe.169
The dissent also contested the majority’s assertion that the Court had “long ago abandoned Lemon
and its endorsement offshoot.”170 She stated that American Legion limited Lemon’s applicability
more-surreal/. As discussed supra note 98, Kennedy moved to Florida in 2020.
161 Kennedy, 142 S. Ct. at 2431.
162 See generally Widmar v. Vincent, 454 U.S. 263, 271 (1981) (“We agree that the interest of the University in
complying with its constitutional obligations [under the Establishment Clause] may be characterized as compelling.”).
163 Kennedy, 142 S. Ct. at 2426 (quoting Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1017 (9th Cir. 2021))
(alteration in original).
164 Id. at 2431.
165 Id. at 2433 (Thomas, J., concurring). Justice Thomas highlighted that the Court did not resolve the appropriate level
of scrutiny applicable to Free Exercise Clause claims brought by public employees against their employers and did “not
decide what burden a government employer must shoulder to justify restricting an employee’s religious expression.”
See also id. at 2433–34 (Alito, J., concurring) (emphasizing that the Court did not resolve “what standard applies”
under the Free Speech Clause to private expression that occurs during “a brief lull in ... duties”).
166 Id. at 2434 (Sotomayor, J., dissenting).
167 Id. at 2434, 2441.
168 Id. at 2443.
169 Id. at 2451.
170 Id. at 2449.
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only in certain contexts, and other decisions merely “not applying” the test did not amount to an
“implicit overruling.”171 Justice Sotomayor claimed that “the purposes and effects of a
government action matter in evaluating whether that action violates the Establishment Clause, as
numerous precedents beyond Lemon instruct in the particular context of public schools.”172 She
also doubted the practical value of the Court’s “history-and-tradition test,” believing it offered
“essentially no guidance for school administrators.”173
Considerations for Congress
The Court’s analysis in Kennedy v. Bremerton School District makes this more than a simple
school prayer case. The decision made a clear break with earlier Establishment Clause precedent,
both by finding a school prayer practice constitutional for the first time and by expressly
announcing for the first time that the Court had broadly abandoned the Lemon test in all
contexts.174 The opinion contains a strong requirement for government accommodation of
religious practices and a clear statement in favor of an originalist approach to interpreting the
Establishment Clause. Further, the Court’s suggestion that government policies insisting on
secularity show hostility to religion elevates similar concerns voiced in earlier concurring and
dissenting opinions.175
The opinion leaves open a number of questions about how these principles will play out in future
cases. Although the Court announced that “Lemon and its endorsement test offshoot” were
“abandoned,” it has never (including in Kennedy) overruled that case or a number of other
Supreme Court rulings concluding that specific government actions were unconstitutional
because their purpose or effect was to support religion.176 Accordingly, it is unclear how courts
will apply those rulings as precedent in the future. The Court has instructed lower courts to follow
controlling Supreme Court precedent even if a case “appears to rest on reasons rejected in some
other line of decisions.”177 Lower courts must leave to the Supreme Court “the prerogative of
overruling its own decisions.”178 Some lower courts might attempt to integrate decisions based on
Lemon into a historical practices analysis that follows Kennedy, but the precedential status of
those decisions will likely be disputed until the Supreme Court revisits the issue.
Kennedy announced that in the future, courts should evaluate Establishment Clause challenges by
reference to historical practices and original meaning, and further suggested that coercion is an
appropriate factor to consider.179 However, the majority noted that the Justices “have sometimes
disagreed on what exactly qualifies as impermissible coercion in light of the original meaning of
the Establishment Clause.”180 Justice Sotomayor’s dissent argued that the Court focused too much
on direct coercion and did not properly account for earlier Supreme Court precedent recognizing
171 Id. at 2449 & n.14.
172 Id. at 2450.
173 Id.
174 See id. at 2427 (majority opinion).
175 Id. at 2431; Abington Sch. Dist. v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring); Allegheny Cnty.
v. ACLU, 492 U.S. 573, 655 (1989) (Kennedy, J., concurring in the judgment in part and dissenting in part).
176 See Kennedy, 142 S. Ct. at 2427.
177 Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).
178 Id.
179 Kennedy, 142 S. Ct. at 2428–29.
180 Id. at 2429.
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that “indirect coercion may [also] raise serious establishment concerns.”181 Future Establishment
Clause cases will likely litigate these open questions about what types of coercion run afoul of
historical understandings of the Establishment Clause.
Congress and state governments concerned about possible Establishment Clause violations
stemming from government support of religion may now face judicial review that relies more
directly upon original understandings of the clause as well as historical traditions. While this
mode of analysis has long been employed in Supreme Court cases interpreting the Establishment
Clause, as discussed, it has not always been the primary mode of analysis. In addition to cases
upholding legislative prayer practices,182 there are scattered examples of government actions the
Court previously considered using a historical practice analysis, including religious test oaths
(ruled unconstitutional),183 laws prescribing the forms of prayer (ruled unconstitutional),184 and
tax exemptions (ruled constitutional).185 Outside those contexts, courts faced with Establishment
Clause claims will have to determine what historical analysis may be relevant considering the
varied and evolving historical approaches to religious establishments. That kind of inquiry is
already the subject of scholarly debates,186 and it appears likely those debates will continue.
Biden v. Texas: Termination of the Remain in Mexico
Policy187
Bruen and Kennedy addressed constitutional issues that are frequently important to lawmakers,
and the Court in those cases renewed its emphasis on historical reasoning in constitutional
interpretation. The Court also, however, addressed significant statutory and regulatory issues
involving more recent legal provisions that Congress has the direct authority to reconsider or
address through legislation.
On June 30, 2022, the Supreme Court issued a decision in Biden v. Texas, in which the States of
Texas and Missouri challenged the Department of Homeland Security’s (DHS’s) termination of
the Migrant Protection Protocols (MPP).188 The MPP, also known as the “Remain in Mexico”
policy, began during the Trump Administration and authorized the return of some asylum seekers
arriving at the U.S. southern border to Mexico during the pendency of their formal removal
proceedings.189 The Supreme Court held that DHS has the discretionary authority to rescind the
MPP and that nothing in federal statute concerning the processing of arriving non-U.S.
nationals—aliens, as the term is used in the Immigration and Nationality Act (INA)190—mandates
181 Id. at 2451 (Sotomayor, J., dissenting).
182 Marsh v. Chambers, 463 U.S. 783, 786 (1983) (saying opening legislative sessions with prayer “is deeply embedded
in the history and tradition of this country”); see also Town of Greece v. Galloway, 572 U.S. 565, 577 (2014) (similar).
183 Torcaso v. Watkins, 367 U.S. 488, 490–92, 496 (1961).
184 Engel v. Vitale, 370 U.S. 421, 425–30 (1962).
185 Walz v. Tax Comm’n, 397 U.S. 664, 676–78 (1970).
186 See generally, e.g., Steven K. Green, The Supreme Court’s Ahistorical Religion Clause Historicism, 73 BAYLOR L.
REV. 505 (2021).
187 Hillel R. Smith, CRS Legislative Attorney, authored this section of the report.
188 Biden v. Texas, 142 S. Ct. 2528, 2536 (2022).
189 Press Release, Dep’t of Homeland Sec., Migrant Protection Protocols (Jan. 24, 2019), https://www.dhs.gov/news/
2019/01/24/migrant-protection-protocols.
190 8 U.S.C. § 1101(a)(3) (“The term ‘alien’ means any person not a citizen or national of the United States.”). See
Trump v. Hawaii, 138 S. Ct. 2392, 2443 n. 7 (2018) (Sotomayor, J., dissenting) (“It is important to note ... that many
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the agency’s use of that policy.191 Following the Court’s decision, a federal district court lifted the
nationwide injunction that had required DHS to continue the MPP, thereby enabling the agency to
proceed with the MPP rescission.192
Background
Statutory Framework
The INA contains different avenues through which aliens can be denied entry or removed from
the United States. INA Section 235(b) concerns applicants for admission, which include aliens
arriving in the United States (whether or not at a designated U.S. port of entry) and those
apprehended after entering the country without inspection by immigration authorities.193
Under INA Section 235(b)(1), arriving aliens and recent unlawful entrants who lack valid entry
documents are generally subject to “expedited removal” and may not obtain any review of a
determination that the alien should be removed from the United States.194 If the alien expresses an
intent to seek asylum or a fear of persecution if removed to a particular country (among other
exceptions), the alien may pursue administrative review of that claim by an asylum officer within
DHS’s U.S. Citizenship and Immigration Services.195 If the alien shows a “credible fear” of
persecution or torture, the alien may apply for asylum and related protections from removal
before an immigration judge in formal removal proceedings or potentially have that application
adjudicated by the asylum officer.196 INA Section 235(b)(1) provides that the alien “shall be
detained” pending consideration of the asylum application.197
Under INA Section 235(b)(2)(A), applicants for admission who are not initially screened for
expedited removal (e.g., because they do not meet the criteria or DHS decides not to place them
in expedited removal198) are placed in formal removal proceedings under INA Section 240. The
statute provides that they “shall be detained” during those proceedings.199 Unlike expedited
removal, aliens placed directly into formal removal proceedings have more procedural
protections, including the right to counsel at no expense to the government and the ability to
consider ‘using the term “alien” to refer to other human beings’ to be ‘offensive and demeaning.’ I use the term here
only where necessary ‘to be consistent with the statutory language’ that Congress has chosen and ‘to avoid any
confusion in replacing a legal term of art with a more appropriate term.’” (quoting Flores v. United States Citizenship
& Immigration Servs., 718 F.3d 548, 551 n. 1 (6th Cir. 2013))).
191 Texas, 142 S. Ct. at 2544.
192 Texas v. Biden, No. 2:21-CV-00067 (N.D. Tex. Aug. 8, 2022) (order granting motion to vacate permanent
injunction). See also Press Release, Dep’t of Homeland Sec., DHS Statement on U.S. District Court’s Decision
Regarding MPP (Aug. 8, 2022), https://www.dhs.gov/news/2022/08/08/dhs-statement-us-district-courts-decisionregarding-mpp.
193 8 U.S.C. § 1225(b); see also id. § 1225(a)(1) (“An alien present in the United States who has not been admitted or
who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to
the United States after having been interdicted in international or United States waters) shall be deemed for purposes of
this chapter an applicant for admission.”).
194 Id. § 1225(b)(1)(A)(i).
195 Id. § 1225(b)(1)(A)(ii), (b)(1)(B)(i); 8 C.F.R. § 235.3(b)(4).
196 8 U.S.C. § 1225(b)(1)(B)(ii); 8 C.F.R. § 208.30(f).
197 8 U.S.C. § 1225(b)(1)(B)(ii).
198 See Matter of E-R-M- & L-R-M-, 25 I. & N. Dec. 520, 524 (BIA 2011) (holding that DHS may in its discretion
place aliens otherwise subject to expedited removal directly into formal removal proceedings instead).
199 8 U.S.C. § 1225(b)(2)(A).
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pursue relief from removal without having to satisfy any threshold screening requirement. 200 The
Supreme Court has interpreted both INA Sections 235(b)(1) and 235(b)(2)(A) as mandating
detention during the applicable proceedings.201
As a potential alternative to detention, INA Section 235(b)(2)(C) provides that the DHS Secretary
“may return” applicants for admission covered by Section 235(b)(2)(A) to “a foreign territory
contiguous to the United States” pending the outcome of their formal removal proceedings if the
alien is “arriving on land” from that territory.202 Before implementation of the MPP, DHS and its
predecessor agency, the former Immigration and Naturalization Service, applied this authority on
a fairly limited, ad hoc basis to return certain Mexican and Canadian nationals arriving at U.S.
ports of entry.203
INA Section 212(d)(5)(A) authorizes another option. It permits the “parole” of applicants for
admission, thus enabling them to be temporarily released from DHS custody into the interior of
the country during the pendency of their removal proceedings.204 Under Section 212(d)(5)(A),
parole may be granted “only on a case-by-case basis for urgent humanitarian reasons or
significant public benefit.”205 Based on this authority, implementing DHS regulations allow
parole for certain categories of aliens, including those who present neither a flight nor safety risk
and for whom “continued detention is not in the public interest.”206 In the Texas litigation, DHS
has provided some data concerning the number of applicants for admission who are paroled into
the United States. For example, in June 2022, the agency reportedly paroled nearly 90% of aliens
seeking admission who were encountered at designated ports of entry.207
The Texas Litigation
During the Trump Administration, DHS implemented the MPP in January 2019 to address a
“security and humanitarian crisis on the Southern border.”208 With the cooperation of Mexican
authorities, immigration officials could return arriving asylum seekers to Mexico while U.S.
immigration courts processed their cases in formal removal proceedings.209 The MPP applied to
200 Id. § 1229a(b)(4); 8 C.F.R. §§ 1240.8(d), 1240.10, 1240.11(a)(1).
201 Jennings v. Rodriguez, 138 S. Ct. 830, 845 (2018) (“In sum, §§ 1225(b)(1) and (b)(2) mandate detention of aliens
throughout the completion of applicable proceedings and not just until the moment those proceedings begin.”).
202 8 U.S.C. § 1225(b)(2)(C).
203 Biden v. Texas, 142 S. Ct. 2528, 2535 (2022); see also Matter of M-D-C-V-, 28 I. & N. Dec. 18, 25–26 (BIA 2020).
The Board of Immigration Appeals has held that DHS may use its return authority under INA § 235(b)(2)(C)
“regardless of whether the alien arrives at or between a designated port of entry.” Matter of M-D-C-V-, 28 I. & N. Dec.
at 27.
204 8 U.S.C. § 1182(d)(5)(A).
205 Id.; see also Texas v. Biden, 20 F.4th 928, 947 (5th Cir. 2021) (“[T]he § 1182(d)(5) parole power gives the executive
branch a limited authority to permit incoming aliens to stay in the United States without formal authorization when
their particular cases demonstrate an urgent humanitarian need or that their presence will significantly benefit the
public.”), rev’d on other grounds, 142 S. Ct. 2528 (2022).
206 8 C.F.R. § 212.5(b). DHS has taken the position that detention is not in the public interest if an alien’s detention
would limit the agency’s ability to detain other aliens who pose a greater flight risk or danger to the community. See
Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection
Claims by Asylum Officers, 87 Fed. Reg. 18,078, 18,108 (Mar. 29, 2022).
207 Defendant’s Monthly Report for June 2022, Texas v. Biden, No. 2:21-cv-00067-Z (N.D. Tex. July 15, 2022).
208 Press Release, Dep’t of Homeland Sec., Migrant Protection Protocols (Jan. 24, 2019), https://www.dhs.gov/news/
2019/01/24/migrant-protection-protocols [hereinafter DHS Press Release].
209 See id.; Memorandum from Kirstjen M. Nielsen, DHS Secretary, to L. Francis Cissna, Director, U.S. Citizenship
and Immigration Servs., et al., Policy Guidance for Implementation of the Migrant Protection Protocols (Jan. 25, 2019).
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aliens arriving in the United States by land from Mexico, including those apprehended between
designated ports of entry.210
Under the Biden Administration in January 2021, DHS announced the suspension of new
enrollments of aliens in the MPP.211 DHS Secretary Alejandro Mayorkas issued a memorandum
formally rescinding the MPP in June 2021.212
Texas and Missouri (“the States”) sued to challenge the MPP rescission in the U.S. District Court
for the Northern District of Texas.213 The States argued that the MPP had reduced unlawful
migration at the southern border and that the release of most arriving aliens into the interior of the
United States would force states to expend more money and resources for them.214 In August
2021, the district court ruled that the MPP rescission violated INA Section 235(b)(2)’s mandatory
detention requirements for applicants for admission.215 The court also held that the MPP
rescission was “arbitrary and capricious” in violation of the Administrative Procedure Act
because DHS had failed to consider the program’s benefits, the costs to the states, and the
implications of terminating it.216 The court issued a nationwide injunction ordering DHS to
resume the MPP until it was lawfully rescinded and DHS had sufficient detention space for
arriving aliens placed in removal proceedings.217
While the government’s appeal was pending, Secretary Mayorkas in October 2021 issued a new
memorandum terminating the MPP, along with a supplemental “explanation” addressing the
factors found to be inadequately considered in the earlier rescission.218 Among other findings,
Secretary Mayorkas acknowledged that the MPP “likely contributed to reduced migratory flows”
but concluded that its benefits were outweighed by the “substantial and unjustifiable human costs
The MPP did not apply to certain aliens, including unaccompanied minors and those who expressed a fear of returning
to Mexico and were found to be more likely than not to face persecution or torture in that country. See DHS Press
Release, supra note 208.
210 DHS Press Release, supra note 208. Following an initial round of litigation, the U.S. District Court for the Northern
District of California issued a preliminary injunction barring implementation of the MPP, and the Ninth Circuit
affirmed that ruling. Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110, 1130 (N.D. Cal. 2019), vacated, Innovation
Law Lab v. Mayorkas, 5 F.4th 1099 (9th Cir. 2021); Innovation Law Lab v. Wolf, 951 F.3d 1073, 1077, 1084–85 (9th
Cir. 2020), vacated, Innovation Law Lab v. Mayorkas, 5 F.4th 1099 (9th Cir. 2021). In March 2020, the Supreme Court
stayed the injunction pending the government’s appeal, thereby allowing DHS to continue implementation and
enforcement of the MPP. Wolf v. Innovation Law Lab, 140 S. Ct. 1564 (mem.) (2020).
211 Press Release, Dep’t of Homeland Sec., DHS Statement on the Suspension of New Enrollments in the Migrant
Protection Protocols Program (Jan. 20, 2021), https://www.dhs.gov/news/2021/01/20/dhs-statement-suspension-newenrollments-migrant-protection-protocols-program.
212 Memorandum from Alejandro N. Mayorkas, DHS Secretary, to Troy A. Miller, Acting Commissioner, U.S.
Customs and Border Protection, et al., Termination of the Migrant Protection Protocols Program (June 1, 2021).
213 Texas v. Biden, 554 F. Supp. 3d 818, 828–29 (N.D. Tex. 2021), aff’d, 20 F.4th 928 (5th Cir. 2021), rev’d, 142 S. Ct.
2528 (2022).
214 See Plaintiffs’ Motion for Preliminary Injunction, Texas v. Biden, No. 2:21-cv-00067-Z (N.D. Tex. June 8, 2021).
215 Texas, 554 F. Supp. 3d at 851–52.
216 Id. at 848–51. See also 5 U.S.C. § 706(2)(A) (requiring courts to “hold unlawful and set aside agency action,
findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law”).
217 Texas, 554 F. Supp. 3d at 857–58.
218 Memorandum from Alejandro Mayorkas, DHS Secretary, to Tae D. Johnson, Acting Director, U.S. Immigration and
Customs Enforcement, et al., Termination of the Migrant Protection Protocols (Oct. 29, 2021) [hereinafter Mayorkas
Memorandum]; U.S. Dep’t of Homeland Sec., Explanation of the Decision to Terminate the Migrant Protection
Protocols (Oct. 29, 2021) [hereinafter Supplemental Explanation].
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on the individuals who were exposed to harm while waiting in Mexico.”219 Secretary Mayorkas
stated that the MPP termination would occur only after a final court decision vacating the district
court’s injunction.220
In December 2021, the Fifth Circuit affirmed the district court’s ruling, holding that the June
2021 MPP rescission violated INA Section 235(b)(2).221 The court construed that provision as
mandating the detention of an alien seeking admission during formal removal proceedings and
allowing only two other options: (1) the alien’s return to contiguous territory or (2) the alien’s
release on parole on a limited, case-by-case basis.222 Noting that DHS lacks the resources to
detain most aliens seeking admission, the court held that the MPP rescission violated Section
235(b)(2)’s statutory scheme because it would result in the release of aliens “en masse” into the
United States.223 For that reason, the court determined, Section 235(b)(2) required the agency to
apply its discretionary return authority.224 The Fifth Circuit also agreed with the district court that
DHS had inadequately considered the MPP’s benefits and other factors.225
The Fifth Circuit rejected the government’s argument that the October 2021 memorandum was
the final agency action rescinding the MPP and that it thus mooted the States’ legal challenge to
the June 2021 memorandum.226 The court explained that the termination decision itself, and not
any particular memorandum explaining that decision, constituted the final agency action subject
to judicial review.227
The government petitioned for review to the Supreme Court.228 The Supreme Court granted the
petition and expedited review of the case.229
The Supreme Court’s Opinion
On June 30, 2022, in a 5-4 decision, the Supreme Court reversed the Fifth Circuit’s decision.230 In
the majority opinion written by Chief Justice Roberts (joined by Justices Breyer, Sotomayor,
Kagan, and Kavanaugh), the Court held that DHS’s rescission of the MPP did not violate INA
Section 235(b)(2) and that the October 2021 memorandum was the final agency action ending the
program.231
The Court first considered whether it had jurisdiction in light of INA Section 242(f)(1), which
provides that “no court (other than the Supreme Court) shall have jurisdiction or authority to
enjoin or restrain the operation of” certain INA provisions concerning the inspection, detention,
219 Mayorkas Memorandum, supra note 218, at 2; see also Supplemental Explanation, supra note 218, at 2, 12–14, 16–
18, 23–24.
220 Mayorkas Memorandum, supra note 218, at 4.
221 Texas v. Biden, 20 F.4th 928, 993 (5th Cir. 2021), rev’d, 142 S. Ct. 2528 (2022).
222 Id. at 995–96.
223 Id. at 996–97.
224 Id.
225 Id. at 989.
226 Id. at 950.
227 Id. at 950–51. Further, the court noted, the October memorandum merely continued, rather than reopened, the
termination decision. Id. at 955.
228 Petition for Writ of Certiorari, Biden v. Texas, 142 S. Ct. 2528 (No. 21-954).
229 Biden v. Texas, 142 S. Ct. 2528, 2538 (2022).
230 Id. at 2548.
231 Id.
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and removal of aliens, including INA Section 235(b)(2)(C)’s return authority, “other than with
respect to the application of such provisions to an individual alien” in formal removal
proceedings.232 In the 2022 decision Garland v. Gonzalez, the Court held that Section 242(f)(1)
prohibits class-wide injunctions by lower courts that require the government “to take or to refrain
from taking actions to enforce, implement, or otherwise carry out the specified statutory
provisions.”233 Applying Gonzalez here, the Court determined that the district court acted outside
its authority in violation of Section 242(f)(1) when it issued a nationwide injunction requiring
DHS to continue the MPP.234 Nonetheless, the Court determined that Section 242(f)(1)’s
limitation on injunctive relief does not constrain lower courts from adjudicating the merits of a
case.235 Thus, because Section 242(f)(1) did not remove the lower courts’ subject matter
jurisdiction over the case, the Supreme Court was not barred from reaching the merits. 236 The
Court also noted that it had jurisdiction because the statute preserves the Supreme Court’s power
to enter injunctive relief.237
Turning to the merits of the case, the Court held that the MPP rescission did not violate INA
Section 235(b)(2).238 Noting that Section 235(b)(2)(C) states that the DHS Secretary “may” return
aliens seeking admission, the Court explained that this provision “plainly confers a discretionary
authority to return aliens to Mexico during the pendency of their removal proceedings” but does
not mandate the use of that authority.239 The Court rejected the Fifth Circuit’s reasoning that,
because Section 235(b)(2)(A) states that applicants for admission “shall be detained,” the
otherwise-discretionary return authority in Section 235(b)(2)(C) becomes mandatory when DHS
fails to detain them.240 According to the Court, Section 235(b)(2)(C)’s unambiguous grant of
discretion conflicts with any mandatory return requirement.241
The Court determined that the historical context of Section 235(b)(2)(C) also confirmed its
discretionary nature.242 The Court observed that this provision was created more than 90 years
after the original mandatory detention language currently found in Section 235(b)(2)(A) first
appeared in statute.243 The Court also noted that Section 235(b)(2)(C) essentially codified a
“longstanding practice” of the former INS to require some aliens arriving at land ports of entry to
return to Canada or Mexico pending the outcome of their proceedings.244 The Court also observed
232 Id. at 2538; see also 8 U.S.C. § 1252(f)(1) (“Limit on injunctive relief”).
233 142 S. Ct. 2057, 2065 (2022).
234 Texas, 142 S. Ct. at 2538.
235 Id. at 2539.
236 Id. at 2539–40.
237 Id. at 2539.
238 Id. at 2541–44.
239 Id. at 2541.
240 Id.
241 Id. The Court added that “[i]f Congress had intended [Section 235(b)(2)(C)] to operate as a mandatory cure of any
noncompliance with the Government’s detention obligations,” it would “have coupled that grant of discretion with
some indication of its sometimes-mandatory nature—perhaps by providing that the Secretary ‘may return’ certain
aliens to Mexico, ‘unless the government fails to comply with its detention obligations, in which case the Secretary
must return them.’” Id.
242 Id. at 2542.
243 Id.
244 Id.
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that, since its enactment, every presidential Administration has construed Section 235(b)(2)(C) as
discretionary.245
The Court also held that mandating the return of aliens to Mexico interferes with the executive’s
authority to conduct foreign affairs.246 In the Court’s view, ordering DHS to continue the MPP
“imposed a significant burden upon the Executive’s ability to conduct diplomatic relations with
Mexico” by requiring a U.S.-Mexico agreement over a policy neither country intends to
continue.247 The Court declared that “Congress did not intend [Section 235(b)(2)(C)] to tie the
hands of the Executive in this manner.”248
The Court also noted that, apart from detaining applicants for admission or returning them to
Mexico pending their removal proceedings, the INA authorized a third option of paroling
applicants for admission on a case-by-case basis.249 The Court recognized that every presidential
Administration “has utilized this authority to some extent.”250 In the majority’s view, the
availability of parole undercut the Fifth Circuit’s conclusion that, absent detention, DHS’s only
remaining option was to return arriving migrants to Mexico while awaiting their proceedings.251
Finally, the Court held that the October 2021 rescission memorandum was a new and separately
reviewable final agency action.252 Instead of merely supplementing the original June 2021
memorandum, the Court explained, the October 2021 memorandum was “a new rescission”
supported by its own reasons.253 The Court determined that the fact that DHS proceeded with the
October 2021 decision with a preference for ending the MPP did not mean it was not a final
agency action.254 Thus, the Court reversed the Fifth Circuit’s decision and remanded the case to
allow the district court to decide, in the first instance, whether the October 2021 rescission
memorandum complied with federal law.255
Concurring and Dissenting Opinions
In a concurring opinion, Justice Kavanaugh suggested that the district court on remand should
also consider whether, if there is insufficient detention capacity, DHS’s decision to release most
arriving aliens into the United States on parole rather than returning them to Mexico would meet
the “significant public benefit” standard under INA Section 212(d)(5)(A)’s parole provision.256
245 Id. at 2543.
246 Id.
247 Id.
248 Id.
249 Id.
250 Id.
251 Id. at 2544. The Court recognized that DHS’s parole authority “is not unbounded” and that it may be exercised
“‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.’” Id. at 2543 (quoting 8
U.S.C. § 1182(d)(5)(A)). The Court, however, did not consider whether DHS has been lawfully exercising its parole
authority. Id. at 2544.
252 Id.
253 Id. at 2545–46.
254 Id. at 2547.
255 Id. at 2548; see also 5 U.S.C. § 706(2)(A) (requiring courts to “hold unlawful and set aside agency action, findings,
and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).
256 Texas, 142 S. Ct. at 2548–49 (Kavanaugh, J., concurring); see also 8 U.S.C. § 1182(d)(5)(A) (authorizing parole of
applicants for admission “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”).
Justice Kavanaugh noted that DHS’s lack of sufficient detention facilities for aliens seeking to enter the United States
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In a dissenting opinion, Justice Alito (joined by Justices Thomas and Gorsuch) agreed with the
majority opinion that INA Section 242(f)(1) barred the district court’s nationwide injunction
requiring DHS to resume the MPP but argued that the Court should not have decided whether the
statute permitted review of the merits of the case.257 Justice Alito argued that the parties had
insufficient opportunity to address that issue during the Court’s expedited review of the case.258 In
Justice Alito’s view, the Court should have remanded the case to consider whether Section
242(f)(1) precluded judicial review of the MPP rescission itself.259
Justice Alito also argued that the Court’s analysis of the merits of the case was “seriously
flawed.”260 Justice Alito emphasized that INA Section 235(b)(2)(A) provides that covered aliens
“shall be detained” during their removal proceedings.261 According to Justice Alito, if DHS
cannot comply with this mandate, its only statutory alternatives are either to return aliens to
contiguous territory or to parole them “on an individualized, case-by-case basis.”262 Justice Alito
asserted that the limited scope of INA Section 212(d)(5)(A)’s parole provision “cannot justify the
release of tens of thousands of apparently inadmissible aliens each month.”263 Justice Alito thus
argued that DHS’s policy of paroling arriving aliens “en masse” because of a shortage of
detention facilities, rather than returning them to Mexico, “violates the clear terms of the law.”264
Additionally, Justice Alito disagreed with the majority’s conclusion that the October 2021
memorandum was a new, final agency action.265 Justice Alito noted that the October 2021
memorandum had no legal effect while DHS remained bound by the district court’s injunction.266
Thus, because the MPP rescission could not occur until there was a final court decision vacating
the injunction, Justice Alito argued, the October memorandum could not be construed as final
agency action.267
In a separate dissenting opinion, Justice Barrett (joined in part by Justices Thomas, Alito, and
Gorsuch) contended that, because INA Section 242(f)(1) barred the district court from issuing
injunctive relief, the lower courts arguably lacked subject matter jurisdiction to decide the merits
of the case.268 Justice Barrett argued that the Court should have remanded the case to the lower
courts to address that issue in the first instance.269 Justice Barrett otherwise agreed with the
majority’s analysis of the merits of the case.270
was a “larger policy story behind this case.” Texas, 142 S. Ct. at 2549 (Kavanaugh, J., concurring).
257 Texas, 142 S. Ct. at 2552 (Alito, J., dissenting).
258 Id. at 2552–53.
259 Id.
260 Id. at 2553.
261 Id. at 2553–54.
262 Id. at 2555–56.
263 Id. at 2555.
264 Id. at 2550, 2553.
265 Id. at 2557.
266 Id. at 2558–59.
267 Id.
268 Id. at 2560–61.
269 Id. at 2560, 2563.
270 Id. at 2560.
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Considerations for Congress
The Supreme Court’s decision in Biden v. Texas underscores that DHS has broad authority to
determine how to process arriving asylum seekers and that the agency’s decision whether to
return such aliens to Mexico pending adjudication of their cases is entirely discretionary. That
said, the implementation and termination of the MPP has sparked debate in Congress over how
immigration officials should manage the increasing flow of migrants at the southern border.
Supporters of the MPP argue that the program reduces unlawful migration, decreases detention
facility overcrowding, and prevents the release of asylum seekers into the United States while
their cases are still pending.271 Critics of the policy claim that the MPP offers inadequate
protections to asylum seekers who are subject to dangerous conditions in Mexico and lack the
resources to obtain counsel.272 Over the past few years, legislative proposals concerning DHS’s
return authority under INA Section 235(b)(2)(C) have mirrored this debate. For example, in the
117th Congress, introduced bills would require immigration officials to return applicants for
admission not placed in expedited removal to contiguous territory pending the outcome of their
removal proceedings or, in the alternative, to detain them while their cases are being
considered.273 Conversely, in the 116th Congress, there was proposed legislation that would have
repealed DHS’s return authority under Section 235(b)(2)(C).274
Congress may also consider the extent to which DHS may parole applicants for admission rather
than detain them pending adjudication of their cases—an issue left unresolved by the Supreme
Court in Texas.275 INA Section 212(d)(5)(A) authorizes parole “for urgent humanitarian reasons
or significant public benefit” but provides no criteria to determine whether an alien’s release from
custody would meet that standard.276 DHS regulations give immigration officials broad discretion
to parole aliens, including when detention is found to be “not in the public interest.”277 Recently
proposed legislation would authorize parole in narrower, more specific circumstances, such as
when there is a medical emergency or if the alien’s release is necessary for purposes of a criminal
investigation.278
271 See e.g., 167 CONG. REC. H5129-02 (daily ed. Sept. 23, 2021) (statement of Rep. Chip Roy); 168 CONG. REC.
H4854-01 (daily ed. May 11, 2022) (statement of Rep. Glenn Grothman); 167 CONG. REC. S1675-09 (daily ed. Mar.
22, 2021) (statement of Sen. Rob Portman).
272 See e.g., S.Res. 484, 116th Cong., 166 Cong. Rec. S641-01 (2020); 166 CONG. REC. H645-04 (daily ed. Jan. 29,
2020) (statement of Rep. Veronica Escobar); 165 CONG. REC. H8599-04 (daily ed. Oct. 30, 2019) (statement of Rep.
Filemón Vela).
273 See Solving the Border Crisis Act, S. 4518, 117th Cong. § 6 (2022); Make the Migrant Protection Protocols
Mandatory Act of 2021, S. 1580, 117th Cong. (2021).
274 End the Migrant Protection Protocols Act, H.R. 5207, 116th Cong. (2019).
275 See Biden v. Texas, 142 S. Ct. 2528, 2544 (2022) (declining to decide “whether the Government is lawfully
exercising its parole authorities” under the INA).
276 8 U.S.C. § 1182(d)(5)(A).
277 8 C.F.R. § 212.5(b).
278 S. 959, 117th Cong. § 2(d)(1) (2021).
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West Virginia v. EPA: Greenhouse Gas Regulation
and the Major Questions Doctrine279
Finally, the Court decided a case with significant implications for U.S. environmental policy and,
more broadly, Congress’s ability to delegate authority over significant policy decisions to
executive agencies. In West Virginia v. EPA, the Court held that EPA exceeded its authority under
Section 111(d) of the Clean Air Act (CAA) in its 2015 emission guidelines for existing fossilfuel-fired power plants, which were based in part on “generation shifting,” or shifting electricity
generation from higher-emitting sources to lower-emitting ones.280 Under the decision, EPA
retains the ability to regulate greenhouse gas (GHG) emissions from power plants and other
sources, but it now faces more constraints in how it does so. Perhaps more significantly, the
Court’s articulation and application of the “major questions doctrine” could present further
hurdles for EPA or other agencies that wish to implement novel regulatory programs to address
climate change or other significant policy issues.281
Background
West Virginia v. EPA addresses two EPA rules: the 2015 Clean Power Plan (CPP) and the 2019
Affordable Clean Energy Rule (ACE Rule), which replaced the CPP.282 EPA issued both rules
under Section 111 of the CAA. As part of the CAA’s overall scheme to limit the emission of
pollutants from stationary sources, EPA must take regulatory action with respect to categories of
new and existing stationary sources once it finds that a category of sources causes or contributes
significantly to “air pollution which may reasonably be anticipated to endanger public health or
welfare” (the “endangerment finding”).283 For existing sources, Section 111(d) directs EPA to
establish emission guidelines for states to set “standards of performance” for pollutants that are
not already regulated under other specific CAA programs.284 EPA sets emission standards under
Section 111(d) based on the emissions reductions achievable through “application of the best
system of emission reduction” (BSER).285
Much of the legal debate surrounding the CPP and the ACE Rule centers on the scope of EPA’s
authority to determine the BSER for existing power plants. Under Section 111, EPA identifies and
evaluates the “adequately demonstrated” systems of emission reduction for a particular source
category to determine which is the “best” and sets emission standards based on that best system,
“taking into account” both “cost ... [and] nonair quality health and environmental impact and
279 Kate R. Bowers, CRS Legislative Attorney, authored this section of the report.
280 142 S. Ct. 2587 (2022).
281 For further analysis, see CRS Legal Sidebar LSB10791, Supreme Court Addresses Major Questions Doctrine and
EPA’s Regulation of Greenhouse Gas Emissions, by Kate R. Bowers.
282 Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed.
Reg. 64,662 (Oct. 23, 2015) [hereinafter Clean Power Plan]; Repeal of the Clean Power Plan; Emission Guidelines for
Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guidelines
Implementing Regulations, 84 Fed. Reg. 32,520 (July 8, 2019) [hereinafter Affordable Clean Energy Rule].
283 42 U.S.C. § 7411(b).
284 Id. § 7411(d).
285 Id. § 7411(a)(1).
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energy requirements.”286 EPA also sets emission standards under Section 111(d) based on the
selected BSER.
In the CPP, EPA determined that the BSER was a combination of three “building blocks”: (1)
improving the heat rate (i.e., efficiency of energy generation) at coal-fired units, (2) shifting
generation to lower-emitting natural gas units, and (3) shifting generation from fossil fuel units to
renewable energy generation.287 EPA reasoned that the best “system” was one that applied to the
“overall source category.”288 The Supreme Court stayed the implementation of the CPP before
any court considered its merits, and the rule never took effect.289
In 2019, EPA adopted a narrower interpretation of its authority in the ACE Rule. EPA asserted
that the “only permissible reading” of Section 111 limited the agency to identifying sourcespecific measures as the BSER—that is, control measures that could be applied at a specific
source to reduce emissions from that source.290 The agency thus concluded that it was prohibited
from selecting as the BSER measures that apply to the source category as a whole or that consider
entities entirely outside the regulated source category.291
Various states and stakeholders challenged the ACE Rule and CPP repeal. On January 19, 2021, a
three-judge panel of the D.C. Circuit vacated the ACE Rule and the CPP repeal in a split decision,
though it later granted EPA’s request not to reinstate the CPP until EPA considers a new
rulemaking action.292 In American Lung Association v. EPA, the majority held that CAA Section
111 does not “constrain” EPA’s authority in determining the BSER to considering control
methods that “apply physically ‘at’ and ‘to’ the individual source.”293 The majority specifically
rejected EPA’s argument that Congress would not have delegated to EPA a “major question” of
economic and political significance without a clear statement of its intent to do so.294 Judge
Walker, writing separately, disagreed with that conclusion and argued that EPA’s exercise of
authority in the CPP raised “major questions” that were not clearly delegated by Congress to
EPA.295
The Supreme Court’s Opinion
The Supreme Court reversed and remanded the D.C. Circuit’s decision in a 6-3 opinion authored
by Chief Justice Roberts.296 Even though neither the CPP nor the ACE Rule was in effect, the
majority held as a threshold matter that the case was reviewable.297
286 Id.; see also Essex Chem. Corp. v. Ruckelshaus, 486 F.2d 427, 433–34 (D.C. Cir. 1973).
287 Clean Power Plan, 80 Fed. Reg. at 64,723; see also CRS Report R44480, Clean Power Plan: Legal Background
and Pending Litigation in West Virginia v. EPA, by Linda Tsang.
288 Clean Power Plan, 80 Fed. Reg. at 64,725–64,726.
289 West Virginia v. EPA, 577 U.S. 1126 (2016) (mem.).
290 Affordable Clean Energy Rule, 84 Fed. Reg. at 32,529.
291 Id.
292 Am. Lung Ass’n v. EPA, 985 F.3d 914, 930 (D.C. Cir. 2021); Order, Am. Lung Ass’n v. EPA, No. 19-1140 (D.C.
Cir. Feb. 22, 2021).
293 Am. Lung Ass’n, 985 F.3d at 415.
294 Id. at 430–39.
295 Id. at 466, 473 (Walker, J., concurring in part, concurring in the judgment in part, and dissenting in part).
296 West Virginia v. EPA, 142 S. Ct. 2587, 2616 (2022).
297 Id. at 2606–07.
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The majority proceeded to analyze EPA’s interpretation of Section 111 under the “major
questions doctrine.”298 Prior to West Virginia, the Court had never referred to that doctrine by
name in a majority opinion.299 In a handful of cases involving challenges to agency actions over
the past three decades, however, the Court has rejected agency claims of regulatory authority
under the major questions doctrine when (1) the underlying claim of authority concerns an issue
of “vast ‘economic and political significance,’” and (2) Congress has not clearly empowered the
agency to address that issue.300 In recent cases, the Court has signaled its heightened interest in
applying the major questions doctrine to the review of agency actions.301
The Court in West Virginia provided more detail about the major questions doctrine. The majority
explained that, in general, courts interpret statutory language “in [its] context and with a view to
[its] place in the overall statutory scheme.”302 Where there is something extraordinary about the
“history and breadth of the authority” an agency asserts or the “economic and political
significance” of that assertion, courts should “hesitate before concluding that Congress meant to
confer such authority.”303 In those cases, the majority explained that, because Congress rarely
provides an extraordinary grant of regulatory authority through language that is modest, vague,
subtle, or ambiguous, an agency must identify “clear congressional authorization” for its action to
demonstrate that Congress “in fact meant to confer the power the agency has asserted.”304
The majority held that these principles applied to EPA’s assertion of authority in the CPP.305 It
described Section 111(d) as a “previously little-used backwater” within the CAA and underscored
that prior limits under Section 111 had been based on source-specific pollution control
technology.306 According to the majority, the CPP fundamentally revised the statute.307 Because
EPA’s generation shifting-based approach implicated coal-fired plants’ share of national
electricity generation, the Court cautioned that EPA could extend its authority under Section
111(d) to force coal plants to cease generating power altogether.308
The Court concluded that it was unlikely Congress would task EPA with “balancing the many
vital considerations of national policy implicated in deciding how Americans will get their
energy,” such as deciding the optimal mix of energy sources nationwide over time and identifying
an acceptable level of energy price increases.309 In support of this conclusion, the majority
pointed to EPA’s own description of its expertise in a funding request and the fact that Congress
298 Id. at 2609.
299 CRS Legal Sidebar LSB10791, Supreme Court Addresses Major Questions Doctrine and EPA’s Regulation of
Greenhouse Gas Emissions, by Kate R. Bowers.
300 See, e.g., Util. Air. Reg. Grp. v. EPA, 573 U.S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 160 (2000)).
301 Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam) (“We expect
Congress to speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political
significance.’” (quoting Util. Air. Reg. Grp., 573 U.S. at 324); Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor,
Occupational Safety & Health Admin., 142 S. Ct. 661, 665 (2022) (per curiam) (same).
302 West Virginia, 142 S. Ct. at 2607.
303 Id. at 2608.
304 Id. at 2609.
305 Id. at 2610.
306 Id. at 2610, 2613.
307 Id. at 2612.
308 Id.
309 Id.
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considered and rejected legislation to create an emissions trading program or enact a carbon
tax.310
The Court clarified that it was not deciding whether the phrase “system of emission reduction”
referred solely to source-specific pollution control measures and excluded all other actions from
qualifying as the BSER.311 While the Court recognized that, “[a]s a matter of ‘definitional
possibilities,’” generation shifting could constitute a “‘system’ ... capable of reducing emissions,”
it held that emissions trading systems are not “the kind of ‘system of emission reduction’ referred
to in Section 111.”312 The Court distinguished Section 111 from CAA programs that contemplate
trading systems in order to comply with an already established emissions limit and where
Congress “went out of its way ... to make absolutely clear” that cap-and-trade programs were
authorized.313 Because the “vague statutory grant” of Section 111 was “not close to the sort of
clear authorization required by [the Court’s] precedents,” the Court concluded that the BSER
identified in the CPP was not within the authority granted to EPA in Section 111(d).314
Concurring and Dissenting Opinions
Justice Gorsuch wrote a concurring opinion, in which Justice Alito joined.315 Justice Gorsuch
viewed the major questions doctrine more broadly, rooting it in separation of powers principles
and describing the doctrine as the clear-statement rule for Article I’s Vesting Clause.316 He also
identified several circumstances—generally relating to the economic or political significance of
an agency’s action or its relationship to state law—in which courts should apply the major
questions doctrine.317 Justice Gorsuch argued that, to evaluate whether there is clear congressional
authorization for a challenged agency action, courts should consider (1) the “legislative
provisions on which the agency seeks to rely ‘with a view to their place in the overall statutory
scheme,’” (2) “the age and focus of the statute the agency invokes in relation to the problem the
agency seeks to address,” (3) an agency’s past interpretations of the relevant statue, and (4)
whether there is a “mismatch between an agency’s challenged action and its congressionally
assigned mission and expertise.”318
Justice Kagan, joined by Justices Breyer and Sotomayor, dissented.319 Justice Kagan contended
that neither the CAA nor other statutes conflicted with EPA’s reading of Section 111, arguing in
particular that a textualist reading of the term “system” in Section 111(d) appears to grant EPA
broad authority to choose the BSER.320 Describing generation shifting as a well-established “tool
in the pollution-control toolbox,” and emphasizing the significance of Section 111(d) as a
“backstop or catch-all provision” to reach otherwise unregulated pollution, she would have
concluded that Section 111’s broad delegation of authority permitted the generation shifting
310 Id. at 2614.
311 Id. at 2615.
312 Id.
313 Id.
314 Id. at 2614.
315 Id. at 2616 (Gorsuch, J., concurring).
316 Id. at 2619.
317 Id. at 2620–22.
318 Id. at 2622–23.
319 Id. at 2626 (Kagan, J., dissenting).
320 Id. at 2636.
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provided in the CPP.321 She criticized the majority’s approach to the major questions doctrine as a
“magically appear[ing] get-out-of-text free card[ ]” and articulated different parameters for the
major questions doctrine.322 She argued for a more limited application of the doctrine when, after
considering “the fit between the power claimed, the agency claiming it, and the broader statutory
design,” there is a “mismatch between the agency’s usual portfolio and a given assertion of
power.”323
Considerations for Congress
In one sense, the Court in West Virginia addressed a relatively narrow question. It struck down
only the CPP’s identification of generation shifting as a “building block” in regulating existing
coal-fired power plants pursuant to CAA Section 111(d). That holding affects how EPA regulates
those plants, not whether it may regulate them under Section 111(d) or at all. In 2007, the Court
held in Massachusetts v. EPA that EPA had the authority to regulate GHGs from motor vehicles
because GHGs qualify as an “air pollutant” under the CAA’s general definition.324 The Court did
not revisit that ruling in West Virginia. The Court’s ruling does not bar EPA from regulating
power plant GHG emissions under the CAA, does not address EPA’s regulation of GHG
emissions from other sources, and does not affect EPA’s ability to regulate other air pollutants—
such as ozone, particulate matter, sulfur oxides, or nitrogen oxides—where such regulation would
have a co-benefit of reducing GHG emissions.325 Additionally, states retain the ability under West
Virginia to allow regulated sources to participate in emissions trading programs as a means for
complying with the plans developed under Section 111(d).
Although EPA can regulate GHG emissions from coal-fired power plants pursuant to Section
111(d), the Court’s decision limits the tools it may use to do so, and it leaves unanswered many
questions about the details of the agency’s regulatory options.326 Reading the decision narrowly,
the Court held that EPA may not issue regulations under Section 111(d) that both are premised on
generation shifting and would dictate the nationwide mix of energy sources. That distinction may
leave EPA with meaningful authority under Section 111(d) to issue a different rule “that may end
up causing an incidental loss in coal’s market share.”327 However, the Court did not draw a clear
line between such permissible regulation and “simply announcing what the market share of coal,
natural gas, wind, and solar must be.”328 Additionally, the Court’s skepticism toward what it
perceived to be a novel application of CAA Section 111 suggests that EPA may again face a high
321 Id. at 2629, 2637.
322 Id. at 2641.
323 Id. at 2633–34.
324 549 U.S. 497, 528–32 (2007).
325 EPA has issued a proposed Section 111 rule for GHG emissions from the oil and natural gas industry. Standards of
Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and
Natural Gas Sector Climate Review, 86 Fed. Reg. 63,110 (proposed Nov. 15, 2021). EPA has also issued several
proposed or final rules for GHG emissions from mobile sources. See Regulations for Emissions from Vehicles and
Engines, Regulations for Greenhouse Gas (GHG) Emissions, EPA, https://www.epa.gov/regulations-emissionsvehicles-and-engines/regulations-greenhouse-gas-ghg-emissions (last visited Oct. 11, 2022).
326 Shortly before the Court issued its decision, EPA indicated that it intends to propose a Section 111(d) rule governing
GHG emissions from existing coal-fired power plants in March 2023. Emission Guidelines for Greenhouse Gas
Emissions from Fossil Fuel-Fired Existing Electric Generating Units, OFFICE OF MGMT. & BUDGET, OFFICE OF INF. &
REGUL. AFFS., REGINFO.GOV, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202204&RIN=2060-AV10
(last visited Oct. 11, 2022).
327 West Virginia, 142 S. Ct. at 2613 n.4 (majority opinion).
328 Id.
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degree of judicial skepticism if it seeks to address GHG emissions under statutes that it has not
previously used for that purpose.
Beyond the Court’s CAA holding, its reliance on the major questions doctrine could have broader
implications. The Court did not provide a clear test for when an agency action presents a major
question that would invite closer review. The decision nevertheless suggests that the Court might
closely review agency actions that address novel problems, rely on statutory provisions that are
infrequently used (or use those provisions in a way that deviates from past practice), or could
have significant economic or political repercussions. The Court’s major questions reasoning
could give EPA and other agencies pause before regulating in areas that implicate major policy
decisions, particularly through novel applications of statutory authority. Those agencies must now
discern whether the actions they propose would raise “major questions” and, if so, whether they
can identify “clear congressional authorization,” and not simply a general statutory delegation of
authority, for those actions.329
West Virginia may also portend a shift in the process for judicial review of agency action. The
Supreme Court and lower courts have frequently reviewed agency actions under the so-called
Chevron framework, which directs courts to defer to an agency’s reasonable interpretation of
ambiguous language in a statute the agency administers.330 In its decisions this past term applying
the major questions doctrine, the Court made no reference to the Chevron framework.331 That
silence leaves unanswered questions about how to determine which doctrine applies or whether
courts should undertake a major questions inquiry prior to or as part of a Chevron analysis. At the
same time that lower courts will need to grapple with those issues, litigants and judges have
invoked the doctrine with increasing frequency in other recent lawsuits both within and beyond
the environmental sphere.332
Congressional action—or its absence—will likely play an important role in future regulatory
efforts to address climate change and other significant issues. In addition to considering the
statutory language authorizing other CAA programs, the majority opinion pointed out that
Congress “conspicuously and repeatedly declined to enact” a regulatory program similar to the
CPP.333 While the Court looked beyond the statutory text in its analysis of Section 111, it did not
329 Id. at 2609.
330 Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984); see also CRS Report R44954, Chevron
Deference: A Primer, by Valerie C. Brannon and Jared P. Cole.
331 See Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs., 141 S. Ct. 2485 (2021) (per curiam); Nat’l Fed’n of
Indep. Bus. v. Dep’t of Labor, Occupational Safety & Health Admin., 142 S. Ct. 661 (2022) (per curiam); West
Virginia, 142 S. Ct. 2587.
332 E.g., Louisiana v. Biden, No. 2:21-cv-01074, 2022 WL 438313, at *16 (W.D. La. Feb. 11, 2022) (relying in part on
major questions doctrine to issue preliminary injunction against federal agencies’ use of estimates of the “social cost”
of GHG emissions in their regulatory process); Doug Obey, Foes of EPA Auto GHG Rule Raise EV, ‘Major Questions’
in Court Claims, CLIMATE EXTRA (April 4, 2022), https://insideepa.com/climate-news/foes-epa-auto-ghg-rule-raise-evmajor-questions-court-claims; Robert Iafolla, Biden’s $15 Contractor Minimum Wage Weighed as ‘Major Question,’
BLOOMBERG LAW NEWS (Sept. 28, 2022), https://news.bloomberglaw.com/daily-labor-report/bidens-15-contractorminimum-wage-weighed-as-major-question; Emily Peck, Chamber Sues CFPB Over Its Anti-Discrimination Policy,
AXIOS (Sept. 28, 2022), https://www.axios.com/2022/09/28/chamber-sues-cfpb-over-its-anti-discrimination-policy; see
also Ellie Borst, Supreme Court Climate Ruling Ignites Deregulatory Challenges, GREENWIRE (Aug. 16, 2022),
https://www.eenews.net/articles/supreme-court-climate-ruling-ignites-deregulatory-challenges/.
333 West Virginia, 142 S. Ct. at 2610. In dissent, Justice Kagan criticized the majority’s consideration of Congress’s
failure to enact legislation and underscored that Congress also introduced but did not enact bills that would have barred
EPA from implementing the CPP. Id. at 2631 (Kagan, J., dissenting).
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specify what legislative acts, or even omissions, could bear on the question of clear congressional
authorization.
To address the specific issues considered in West Virginia, Congress may clarify the scope of
EPA’s authority under Section 111 in determining the BSER.334 Congress could also identify a
specific mix of electricity generation that it believes should be achieved and direct EPA to
implement regulations to effectuate that mix. Congress could further continue to consider other
measures to reduce GHG emissions, such as a border carbon adjustment or clean energy tax
incentives and subsidies.335
The more significant questions for Congress arising from West Virginia go beyond the CAA and
the regulation of GHGs. Where Congress can anticipate a major question, it can explicitly state
the latitude it intends to grant to an administrative agency to address that question. Both Justice
Gorsuch and Justice Kagan acknowledged that broad statutory delegations of authority have
historically allowed administrative agencies to also address issues that Congress did not anticipate
when it enacted a statute.336 The Court’s decision in West Virginia leaves open the question of
how, or even whether, Congress may grant agencies the authority to act when such unanticipated
issues raise major questions.
334 E.g., EPA Regulatory Authority Act of 2022, H.R. 8395, 117th Cong. (2022).
335 For example, the Clean Competition Act would impose a border carbon adjustment on certain carbon-intensive
imported and exported goods. S. 4335, 117th Cong. (2022). For additional information about border carbon
adjustments, see CRS Report R47167, Border Carbon Adjustments: Background and Recent Developments, by
Jonathan L. Ramseur, Brandon J. Murrill, and Christopher A. Casey. See also H.R. 5376, 117th Cong. §§ 136107(h),
136109, 136204 (2021).
336 West Virginia, 142 S. Ct. at 2623 (Gorsuch, J., concurring); id. at 2642 (Kagan, J., dissenting).
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Appendix. List of Cases337
This appendix includes cases listed on the Supreme Court’s website as “Opinions of the Court”
for its October 2021 Term, with the exception of cases dismissed by the Court as improvidently
granted.338 Cases are listed in the order in which they were decided. The questions presented are
adapted from the Supreme Court’s statement of the questions presented, which itself often
restates the question as framed by the petitioner in the case. The holdings are adapted in some
cases from the syllabus published by the Supreme Court’s Reporter of Decisions. CRS legislative
attorneys have analyzed many of the Court’s decisions in detail in other products, which are listed
with the applicable case.
Rivas-Villegas v. Cortesluna, 20-1539
Argued:
Decided:
Topics:
N/A
10/18/2021
Civil Rights
Question Presented: In a suit under 42 U.S.C. § 1983, did the Ninth Circuit err in denying
qualified immunity to a police officer defendant who allegedly placed his knee on a suspect’s
back while the suspect was lying face down?
Holding: The police officer was entitled to qualified immunity because no precedent clearly
established that his specific conduct violated the suspect’s constitutional rights.
Opinions: Per Curiam
City of Tahlequah v. Bond, 20-1668
Argued:
Decided:
Topics:
N/A
10/18/2021
Civil Rights
Question Presented: In a suit under 42 U.S.C. § 1983, did the Tenth Circuit err in denying
qualified immunity to police officers who were alleged to have recklessly created a situation in
which deadly force was necessary?
Holding: The police officers were entitled to qualified immunity because no precedent clearly
established that their specific conduct violated the suspect’s constitutional rights.
Opinions: Per Curiam
Mississippi v. Tennessee, Orig. 143
Argued:
Decided:
Topics:
10/4/2021
11/22/2021
Environmental Law
Question Presented: Should the Court sustain Mississippi’s claims of error in the report the
Special Master issued on November 5, 2020, recommending that the Supreme Court dismiss
Mississippi’s complaint?
337 David Gunter, CRS Acting Section Research Manager, authored this section of the report.
338 See Opinions of the Court - 2021, SUPREME COURT OF THE UNITED STATES, https://www.supremecourt.gov/opinions/
slipopinion/21 (last visited Oct. 11, 2022).
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Holding: The underground aquifer beneath Tennessee and Mississippi is subject to equitable
apportionment. Mississippi’s claims of error are overruled, the Special Master’s report is
sustained, and Mississippi’s complaint is dismissed.
Opinions: Chief Justice Roberts (for the Court)
Whole Woman’s Health v. Jackson, 21-463
Argued:
Decided:
Topics:
11/1/2021
12/10/2021
Civil Procedure; Constitutional Law
Question Presented: May a state insulate from federal-court review a law that prohibits the
exercise of a constitutional right by delegating to the general public the authority to enforce that
prohibition through civil actions?
Holding: A pre-enforcement constitutional challenge to a statute could not proceed against state
court judges or clerks who might handle cases under the statute, a private defendant who
disclaimed any intent to sue under the challenged law, or the Texas attorney general. However,
the suit could proceed against state medical licensing officials.
Opinions: Justice Gorsuch (for the Court); Justice Thomas (concurring in part and dissenting in
part); Chief Justice Roberts (concurring in the judgment in part and dissenting in part); Justice
Sotomayor (concurring in the judgment in part and dissenting in part)
CRS Resources: CRS Legal Sidebar LSB10651, The Texas Heartbeat Act (S.B. 8), Whole
Woman’s Health v. Jackson, and United States v. Texas: Frequently Asked Questions, by Joanna
R. Lampe and Jon O. Shimabukuro; CRS Legal Sidebar LSB10668, Texas Heartbeat Act (S.B. 8)
Litigation: Supreme Court Identifies Narrow Path for Challenges to Texas Abortion Law, by
Joanna R. Lampe
Babcock v. Kijakazi, 20-480
Argued:
Decided:
Topics:
10/13/2021
1/13/2022
Social Security; Statutory Interpretation
Question Presented: Is a civil-service pension payment based on dual-status military technician
service to the National Guard “a payment based wholly on service as a member of a uniformed
service” for purposes of the Social Security Act, 42 U.S.C. § 415(a)(7)(A)(III)?
Holding: Civil-service pension payments based on employment as a dual-status military
technician are not payments based on service as a member of a uniformed service within the
meaning of the statute.
Opinions: Justice Barrett (for the Court); Justice Gorsuch (dissenting)
National Federation of Independent Business v. OSHA, 21A244
Ohio v. Department of Labor, 21A247 (consolidated)
Argued:
Decided:
Topics:
1/7/2022
1/13/2022
Administrative Law; Statutory Interpretation
Question Presented: The Court was asked to issue a stay, pending further judicial review in the
lower courts, of an emergency temporary standard of the Occupational Safety and Health
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Administration that imposed COVID-19 vaccination-or-testing requirements on employers with
more than 100 employees.
Holding: The Court granted the stay, holding that OSHA’s emergency temporary standard
exceeds its authority under the Occupational Safety and Health Act and that the stay applicants
were therefore likely to succeed on the merits of their claims.
Opinions: Per Curiam; Justice Gorsuch (concurring); Justices Breyer, Sotomayor, and Kagan
(dissenting)
CRS Resources: CRS Legal Sidebar LSB10689, Supreme Court Stays OSHA Vaccination and
Testing Standard, by Jon O. Shimabukuro
Biden v. Missouri, 21A240
Becerra v. Louisiana, 21A241 (consolidated)
Argued:
Decided:
Topics:
1/7/2022
1/13/2022
Administrative Law; Health Care; Statutory Interpretation
Question Presented: The Court was asked to stay, pending further review in the lower courts,
district court orders that enjoined a rule promulgated by the Secretary of Health and Human
Services. The rule imposed COVID-19 vaccination requirements on facilities that receive
Medicare or Medicaid funding.
Holding: The Court stayed the district court injunctions and allowed the vaccination requirements
to go into effect, holding that the vaccination requirement falls within the Secretary’s statutory
authority and that the stay applicants were therefore likely to succeed on the merits of their
claims.
Opinions: Per Curiam; Justice Thomas (dissenting); Justice Alito (dissenting)
Hemphill v. New York, 20-637
Argued:
Decided:
Topics:
10/5/2021
1/20/2022
Constitutional Law; Criminal Law
Question Presented: Under New York common law, a litigant at trial may introduce evidence that
“opens the door” for other responsive evidence that would ordinarily be barred by the rules of
evidence. Under what circumstances, if any, may a criminal defendant “open the door” to
evidence that would otherwise be barred by the Confrontation Clause of the Constitution?
Holding: Although a state may adopt procedural rules governing the exercise of the right to crossexamine, New York’s “door-opening” doctrine is a substantive principle of evidence that cannot
be applied to admit evidence that would violate the Confrontation Clause.
Opinions: Justice Sotomayor (for the Court); Justice Alito (concurring); Justice Thomas
(dissenting)
Hughes v. Northwestern University, 19-1401
Argued:
Decided:
Topics:
12/6/2021
1/24/2022
Employee Benefits
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Question Presented: Where a plaintiff alleges that a defined-contribution retirement plan violated
its duty of prudence by paying or charging its participants fees that substantially exceeded fees
for alternative available investment products or services, are those allegations sufficient to state a
claim against plan fiduciaries for breach of the duty of prudence under the Employee Retirement
Income Security Act, 29 U.S.C. § 1104(a)(1)(B)?
Holding: A defined-contribution retirement plan may breach its duty of prudence by failing to
remove imprudent investments, even if its array of available investment options includes more
prudent investments. This is a context-dependent inquiry, and the court of appeals therefore erred
in dismissing the plaintiffs’ claims.
Opinion: Justice Sotomayor (for the Court)
CRS Resources: CRS Legal Sidebar LSB10636, Supreme Court Rules on Retirement Plan
Fiduciary Duty in Hughes v. Northwestern University, by Jennifer A. Staman
Unicolors, Inc. v. H&M Hennes & Mauritz, LLP, 20-915
Argued:
Decided:
Topics:
11/8/2021
2/24/2022
Intellectual Property
Question Presented: A district court considering a copyright-infringement case may, in some
circumstances, determine the validity of the underlying copyright registration by making a
referral to the Copyright Office under 17 U.S.C. § 411. Does that statute require referral to the
Copyright Office in the absence of any indicia of fraud or material error as to the underlying
copyright registration?
Holding: Mistakes of fact or law made in a copyright registration application do not invalidate the
copyright registration if the applicant lacked knowledge of the factual or legal error.
Opinions: Justice Breyer (for the Court); Justice Thomas (dissenting)
United States v. Zubaydah, 20-827
Argued:
Decided:
Topics:
10/6/2021
3/3/2022
Civil Procedure; National Security
Question Presented: Did the court of appeals err when it rejected the United States’ assertion of
the state secrets privilege based on the court’s own assessment of potential harms to national
security and required discovery to proceed further under 28 U.S.C. § 1782(a) against former
Central Intelligence Agency contractors on matters concerning alleged clandestine CIA activities?
Holding: The state secrets privilege, which prevents disclosure of information when the
disclosure would harm national security interests, applies to information that would confirm or
deny the existence of a CIA site in Poland.
Opinions: Justice Breyer (for the Court); Justice Thomas (concurring in part and concurring in the
judgment); Justice Kavanaugh (concurring in part); Justice Kagan (concurring in part and
dissenting in part); Justice Gorsuch (dissenting)
CRS Resources: CRS Legal Sidebar LSB10764, Abu Zubaydah and the State Secrets Doctrine, by
Jennifer K. Elsea
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Cameron v. EMW Women’s Surgical Center, 20-601
Argued:
Decided:
Topics:
10/12/2021
3/3/2022
Civil Procedure
Question Presented: May a state attorney general vested with the power to defend state law
intervene after a federal court of appeals invalidates a state law and no other state actor will
defend the law?
Holding: The court of appeals erred in denying the attorney general’s petition to intervene to
defend the law; a state’s opportunity to defend its own laws should not be lightly cut off, and a
state has sovereign authority to structure its executive branch in a way adequate to defend its
interests.
Opinions: Justice Alito (for the Court); Justice Thomas (concurring); Justice Kagan (concurring
in the judgment); Justice Sotomayor (dissenting)
Federal Bureau of Investigation v. Fazaga, 20-828
Argued:
Decided:
Topics:
11/8/2021
3/4/2022
Evidence; National Security
Question Presented: The Foreign Intelligence Surveillance Act, 50 U.S.C. § 1806(f), establishes
in camera and ex parte procedures to determine the admissibility of information obtained or
derived from electronic surveillance for foreign-intelligence purposes. Does that statutory process
displace the state secrets privilege and authorize a district court to resolve the merits of an action
challenging the lawfulness of government surveillance by considering the evidence in question?
Holding: The in camera review procedure of 50 U.S.C. § 1806(f) does not displace the state
secrets privilege.
Opinion: Justice Alito (for the Court)
CRS Resources: CRS Legal Sidebar LSB10683, FBI v. Fazaga: Supreme Court Examines
Interplay of State Secrets Privilege and the Foreign Intelligence Surveillance Act, by Edward C.
Liu
United States v. Tsarnaev, 20-443
Argued:
Decided:
Topics:
10/13/2021
3/4/2022
Criminal Law
Questions Presented: (1) Did the court of appeals err in concluding that the criminal defendant’s
capital sentences must be vacated because the district court did not ask each prospective juror for
a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about
the case? (2) Did the district court err at the penalty phase of the trial by excluding evidence that
the defendant’s older brother was allegedly involved in different crimes two years before the
offenses for which the defendant was convicted?
Holdings: (1) The district court did not abuse its discretion by declining to ask about the content
and extent of each juror’s media consumption regarding the crime. (2) The district court did not
err in excluding evidence of other potential crimes, by the defendant’s brother, from the
sentencing proceedings.
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Supreme Court Term October 2021: A Review of Selected Major Rulings
Opinions: Justice Thomas (for the Court); Justice Barrett (concurring); Justice Breyer (dissenting)
Wooden v. United States, 20-5279
Argued:
Decided:
Topics:
10/4/2021
3/7/2022
Criminal Law
Question Presented: What is the correct interpretation of the phrase “committed on occasions
different from one another” in 18 U.S.C. § 924(e)(1), a provision of the Armed Career Criminal
Act providing for sentencing enhancement?
Holding: The defendant’s 10 burglary offenses were part of a single criminal episode and
therefore count as one “occasion” for purposes of the Armed Career Criminal Act.
Opinions: Justice Kagan (for the Court); Justice Sotomayor (concurring); Justice Barrett
(concurring in part and concurring in the judgment); Justice Gorsuch (concurring in the
judgment)
Wisconsin Legislature v. Wisconsin Elections Commission, 21A471
Argued:
Decided:
Topics:
N/A
3/23/2022
Constitutional Law; Elections Law
Question Presented: Did the Wisconsin Supreme Court correctly interpret the Voting Rights Act
in choosing a state redistricting map that created an additional majority-black district, and did that
redistricting map violate the Equal Protection Clause of the Fourteenth Amendment of the
Constitution?
Holding: Although a state can satisfy strict scrutiny review of a race-based redistricting decision
by proving that its decision was narrowly tailored to comply with the Voting Rights Act, the state
here misapplied Supreme Court precedents interpreting the Act and committed error.
Opinions: Per Curiam; Justice Sotomayor (dissenting)
Houston Community College System v. Wilson, 20-804
Argued:
Decided:
Topics:
11/2/2021
3/24/2022
Constitutional Law
Question Presented: Does the First Amendment restrict the authority of an elected Board of
Trustees to issue a censure resolution in response to a member’s speech?
Holding: The Board of Trustees’ purely verbal censure did not give rise to a First Amendment
claim.
Opinion: Justice Gorsuch (for the Court)
Ramirez v. Collier, 21-5592
Argued:
Decided:
Topics:
11/9/2021
3/24/2022
Civil Rights
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Supreme Court Term October 2021: A Review of Selected Major Rulings
Question Presented: Is the state’s decision to allow the petitioner’s pastor to enter the execution
chamber, but not to lay his hands on the petitioner or pray audibly as he dies, a substantial burden
on the petitioner’s free exercise of religion under the Religious Land Use and Institutionalized
Persons Act (RLUIPA)?
Holding: The state’s restrictions on religious touch and audible prayer in the execution chamber
likely violate RLUIPA because they substantially burden religious exercise and are not the least
restrictive means of furthering the state’s compelling interests.
Opinions: Chief Justice Roberts (for the Court); Justice Sotomayor (concurring); Justice Thomas
(dissenting)
Badgerow v. Walters, 20-1143
Argued:
Decided:
Topics:
11/2/2021
3/31/2021
Civil Procedure; Statutory Interpretation
Question Presented: Do federal courts have subject-matter jurisdiction to confirm or vacate an
arbitration award under the Federal Arbitration Act (FAA), 9 U.S.C. §§ 9–10, where the only
basis for jurisdiction is that the underlying dispute involved a federal question?
Holding: The “look-through” approach to federal jurisdiction, in which federal courts examine
their jurisdiction under the FAA by considering the underlying substantive controversy, does not
apply to requests to confirm or vacate arbitral awards under Sections 9 and 10 of the act.
Opinions: Justice Kagan (for the Court); Justice Breyer (dissenting)
Thompson v. Clark, 20-659
Argued:
Decided:
Topics:
10/12/2021
4/4/2022
Civil Rights
Question Presented: Before a plaintiff may bring an action under 42 U.S.C. § 1983 alleging
unreasonable seizure, that plaintiff must await favorable termination of the criminal proceeding
against him. Does that rule require the plaintiff to show that the criminal proceeding has
“formally ended in a manner not inconsistent with his innocence,” Laskar v. Hurd, 972 F.3d 1278
(11th Cir. 2020), or that the proceeding “ended in a manner that affirmatively indicates his
innocence,” Lanning v. City of Glens Falls, 908 F.3d 19 (2d Cir. 2018)?
Holding: To demonstrate a favorable termination of a prosecution for purposes of a Fourth
Amendment claim under Section 1983 for malicious prosecution, a plaintiff need only show that
his prosecution ended without a conviction.
Opinions: Justice Kavanaugh (for the Court); Justice Alito (dissenting)
United States v. Vaello Madero, 20-303
Argued:
Decided:
Topics:
11/9/2021
4/21/2022
Constitutional Law
Question Presented: Did Congress violate the equal protection component of the Due Process
Clause of the Fifth Amendment by establishing Supplemental Security Income, a benefits
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Supreme Court Term October 2021: A Review of Selected Major Rulings
program, in the 50 states and the District of Columbia, and in the Northern Mariana Islands
pursuant to a negotiated covenant, but not extending it to Puerto Rico?
Holding: The Constitution does not require Congress to make Supplemental Security Income
benefits available to residents of Puerto Rico to the same degree as those benefits are made
available to residents of the states.
Opinions: Justice Kavanaugh (for the Court); Justice Thomas (concurring); Justice Gorsuch
(concurring); Justice Sotomayor (dissenting)
CRS Resources: CRS Legal Sidebar LSB10737, Equal Protection Does Not Mean Equal SSI
Benefits for Puerto Rico Residents, Says Supreme Court, by Mainon A. Schwartz
City of Austin v. Reagan National Advertising of Texas, 20-1029
Argued:
Decided:
Topics:
11/10/2021
4/21/2022
Constitutional Law
Question Presented: The Austin city code makes a distinction between on-premise signs, which
may be digitized, and off-premises signs, which may not. Is that distinction a facially
unconstitutional content-based regulation under Reed v. Town of Gilbert, 576 U.S. 155 (2015)?
Holding: The city’s sign code, which set different rules for signs advertising things at the location
and signs advertising things off-premises, was facially a content-neutral regulation under the First
Amendment that was not subject to strict scrutiny review.
Opinions: Justice Sotomayor (for the Court); Justice Breyer (concurring); Justice Alito
(concurring in the judgment and dissenting in part); Justice Thomas (dissenting)
CRS Resources: CRS Legal Sidebar LSB10739, Refining Reed: City of Austin Updates Test for
Content-Based Speech Restrictions, by Victoria L. Killion
Brown v. Davenport, 20-826
Argued:
Decided:
Topics:
10/5/2021
4/21/2022
Criminal Law
Question Presented: May a federal court conducting habeas review of a state conviction grant
relief based solely on its conclusion that the actual-prejudice test of Brecht v. Abrahamson, 507
U.S. 619 (1993), is satisfied, or must the federal court also find that the state court’s application
of the harmless error rule outlined in Chapman v. California, 386 U.S. 18 (1967), was
unreasonable under the Antiterrorism and Effective Death Penalty Act (AEDPA)?
Holding: When a state court has ruled on a prisoner’s challenge to his or her conviction, a federal
court cannot grant habeas relief unless it applies both the test set forth in Brecht v. Abrahamson
and the one established by AEDPA.
Opinions: Justice Gorsuch (for the Court); Justice Kagan (dissenting)
Boechler, P.C. v. Commissioner of Internal Revenue, 20-1472
Argued:
Decided:
Topics:
1/12/2022
4/21/2022
Tax Law
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Supreme Court Term October 2021: A Review of Selected Major Rulings
Question Presented: 26 U.S.C. § 6330(d)(1) establishes a 30-day time limit to file a petition for
the Tax Court to review a notice of determination from the commissioner of internal revenue. Is
that time limit a jurisdictional requirement or a claim-processing rule subject to equitable tolling?
Holding: The 30-day time limit to petition the Tax Court to review a collection due process
hearing is not a limit on federal court jurisdiction and therefore is subject to equitable tolling.
Opinion: Justice Barrett (for the Court)
Cassirer v. Thyssen-Bornemisza Collection Foundation, 20-1566
Argued:
Decided:
Topics:
1/18/2022
4/21/2022
Civil Procedure; International Law
Question Presented: In hearing state law claims brought under the Foreign Sovereign Immunities
Act, must a federal court apply the forum state’s choice-of-law rules to determine what
substantive law governs the claims at issue, or may it apply federal common law?
Holding: When a federal court hears a state law claim against a foreign government or
instrumentality under the Foreign Sovereign Immunities Act, it must apply the same choice-oflaw rules that apply in similar suits against private parties.
Opinion: Justice Kagan (for the Court)
Cummings v. Premier Rehab Keller PLLC, 20-219
Argued:
Decided:
Topics:
11/30/2021
4/28/22
Civil Rights
Question Presented: Do the damages available under Title VI of the Civil Rights Act of 1964 for
victims of discrimination, and the statutes that incorporate Title VI remedies, include
compensation for emotional distress?
Holding: Emotional distress damages are not recoverable in a private action to enforce either the
Rehabilitation Act of 1973 or the Affordable Care Act.
Opinions: Chief Justice Roberts (for the Court); Justice Kavanaugh (concurring); Justice Breyer
(dissenting)
Shurtleff v. City of Boston, 20-1800
Argued:
Decided:
Topics:
1/18/2022
5/2/22
Constitutional Law
Questions Presented: Petitioner, a religious organization, was denied permission to display a flag
containing a cross on a flagpole the City of Boston had previously allowed third parties to use. (1)
Did the court of appeals err by failing to apply the Supreme Court’s public forum doctrine and
strict scrutiny to petitioner’s First Amendment challenge? (2) Did the court of appeals err by
classifying the potential display of the flag as government speech? (3) Did the court of appeals err
in finding that the city’s approval requirement transforms private speech by the religious
organization into government speech?
Holding: Boston’s flag-raising program did not qualify as government speech. Boston neither
actively controlled these flag raisings nor shaped the messages the flags sent. Accordingly,
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Supreme Court Term October 2021: A Review of Selected Major Rulings
Boston’s refusal to allow petitioners to raise their flag because of its religious viewpoint violated
the Free Speech Clause.
Opinions: Justice Breyer (for the Court); Justice Kavanaugh (concurring); Justice Alito
(concurring in the judgment); Justice Gorsuch (concurring in the judgment)
Federal Election Comm’n v. Ted Cruz for Senate, 21-12
Argued:
Decided:
Topics:
1/19/2022
5/16/2022
Constitutional Law; Elections Law
Questions Presented: When a candidate for federal office lends money to his own election
campaign, 52 U.S.C. § 30116(j) imposes a $250,000 limit on the amount of post-election
contributions that the campaign may use to repay the debt owed to the candidate. (1) Do a
campaign and a candidate have standing to challenge the statutory loan-repayment limit? (2)
Does the loan-repayment limit violate the Free Speech Clause of the First Amendment?
Holdings: (1) The appellees have standing to challenge the threatened enforcement of the
statutory loan-repayment limit; and (2) the loan-repayment limit burdens core political speech
without proper justification in violation of the First Amendment.
Opinions: Chief Justice Roberts (for the Court); Justice Kagan (dissenting)
CRS Resources: CRS Legal Sidebar LSB10734, Campaign Finance and the First Amendment:
Supreme Court Considers Constitutionality of Limits on Repayment of Candidate Loans, by L.
Paige Whitaker; CRS Legal Sidebar LSB10796, Supreme Court Invalidates Cap on Repayment of
Candidate Loans Under the First Amendment: Considerations for Congress, by L. Paige
Whitaker
Patel v. Garland, 20-979
Argued:
Decided:
Topics:
12/6/2021
5/16/2022
Immigration Law
Question Presented: Does 8 U.S.C. § 1252(a)(2)(B)(i) preserve the jurisdiction of federal courts
to review a nondiscretionary determination by the Board of Immigration Appeals that a
noncitizen is ineligible for certain types of discretionary relief?
Holding: Federal courts lack jurisdiction to review facts found as part of discretionary-relief
procedings under 8 U.S.C. § 1255 and the other provisions enumerated in Section
1252(a)(2)(B)(i).
Opinions: Justice Barrett (for the Court); Justice Gorsuch (dissenting)
CRS Resources: CRS Legal Sidebar LSB10762, No Judicial Review of Fact Findings for Certain
Discretionary Immigration Relief, Rules Supreme Court, by Kelsey Y. Santamaria
Morgan v. Sundance, Inc., 21-328
Argued:
Decided:
Topics:
3/21/2022
5/23/2022
Commercial Law; Statutory Interpretation
Question Presented: The Federal Arbitration Act governs situations in which one party in
litigation invokes a right to compel arbitration, and the other party alleges that right has been
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Supreme Court Term October 2021: A Review of Selected Major Rulings
waived. Is the party asserting waiver required to show that it has suffered prejudice from the
alleged waiver, and if so, does such a requirement violate the Supreme Court’s holding that lower
courts must place arbitration agreements on an equal footing with other contracts?
Holding: Because the usual federal rule of waiver does not include a prejudice requirement,
prejudice is also not a condition of finding that a party has waived its right to compel arbitration
under the FAA.
Opinion: Justice Kagan (for the Court)
Shinn v. Martinez Ramirez, 20-1009
Argued:
Decided:
Topics:
12/8/2021
5/23/2022
Criminal Law
Question Presented: In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court held that a
federal court on habeas review may excuse a defendant’s procedural default in failing to raise a
claim of ineffective assistance of counsel that was not presented in state court due to an attorney’s
errors. The Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(e), precludes a
federal court from considering evidence outside the state court record when reviewing the merits
of a habeas claim. Does the application of the equitable rule of Martinez render Section 2254(e)
inapplicable to a federal court’s review of a claim for habeas relief?
Holding: Under Section 2254(e), a federal habeas court may not conduct an evidentiary hearing
or otherwise consider evidence beyond the state court record based on the ineffective assistance
of state postconviction counsel.
Opinions: Justice Thomas (for the Court); Justice Sotomayor (dissenting)
Gallardo v. Marstiller, 20-1263
Argued:
Decided:
Topics:
1/10/2022
6/6/2022
Health Care
Question Presented: When Medicaid recipients receive a personal injury judgment or settlement
compensating them for medical expenses, 42 U.S.C. §§ 1396a(a)(25)(H) and 1396k require that
the Medicaid program be reimbursed out of those funds. Does the federal Medicaid Act provide
for a state Medicaid program to recover reimbursement for its payment of a beneficiary’s past
medical expenses by taking funds from the portion of a beneficiary’s tort recovery that
compensates for future medical expenses?
Holding: The Medicaid Act permits a state to seek reimbursement from settlement payments
allocated for future medical care.
Opinions: Justice Thomas (for the Court); Justice Sotomayor (dissenting)
Southwest Airlines Co. v. Saxon, 21-309
Argued:
Decided:
Topics:
3/28/2022
6/2/2022
Commercial Law; Statutory Interpretation
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Question Presented: Are workers who load or unload goods from vehicles that travel in interstate
commerce, but do not physically transport such goods themselves, interstate transportation
workers for purposes of an exemption from the Federal Arbitration Act, 9 U.S.C. § 1?
Holding: Airplane cargo loaders are a “class of workers engaged in interstate or foreign
commerce,” and the exemption in Section 1 of the FAA therefore applies to them.
Opinions: Justice Thomas (for the Court)
Siegel v. Fitzgerald, 21-441
Argued:
Decided:
Topics:
4/18/2022
6/6/2022
Bankruptcy Law; Constitutional Law
Question Presented: By statute, Congress has divided the nation’s bankruptcy courts into two
programs, the U.S. Trustee Program and the Bankruptcy Administrator program. Does a statute
increasing quarterly fees in the U.S. Trustee Program violate the uniformity requirement of the
Constitution’s Bankruptcy Clause?
Holding: Congress’s enactment of a significant fee increase that exempted debtors in two states
violated the uniformity requirement of the Bankruptcy Clause.
Opinion: Justice Sotomayor (for the Court)
CRS Resources: CRS Legal Sidebar LSB10782, Siegel v. Fitzgerald: Supreme Court Makes Rare
Comment on the Bankruptcy Clause’s Uniformity Requirement, by Michael D. Contino
Egbert v. Boule, 21-147
Argued:
Decided:
Topics:
3/2/2022
6/8/2022
Civil Rights; Constitutional Law
Questions Presented: (1) Is a cause of action available under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for First Amendment retaliation
claims? (2) Is a cause of action available under Bivens for claims against federal officers engaged
in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights?
Holding: Bivens does not extend to create causes of action for the excessive-force claim or First
Amendment ret
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