Blue Brief 2025-2026

THE BLUE BRIEF University of San Diego School of Law

Faculty Review of the 2025-2026 U.S. Supreme Court Term

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Introduction

Mullin v. Doe: Closing the Courthouse Doors to TPS Recipients Louisiana v. Callais: Letting Partisan Bias Hide Racial Bias 8 Dancing with the Elephant: Gun Rights Again (United States v. Hemani and Wolford v. Lopez) 11 Monsanto v. Durnell: Curtailing State Tort Suits for Herbicides and Pesticides 14 The Court’s Hamiltonian Moment: Trump v. Cook and Trump v. Slaughter 17 Chiles v. Salazar 20 Unanimous Win for the SEC in Preserving One of Its Most Significant Remedial Tools in Sripetch v. SEC 23 Trump v. Barbara and Constitutional Birthright Citizenship 26 Learning Resources, Inc. v. Trump: A Cross-Ideological Majority Rejects Presidential Tariffs Under Emergency Powers Law 29 Watson, Mississippi Secretary of State v. Republican National Committee et al. — Mail-In Ballots Arriving After Election Day 32 Chatrie v. United States 35

Table of Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........................................... 4 By Robert Schapiro , Dean and C. Hugh Friedman Professor of Law I. Mullin v. Doe: Closing the Courthouse Doors to TPS Recipients . . . . . . . . . . ........... 5 By Justin Brooks , Professor of Practice II. Louisiana v. Callais: Letting Partisan Bias Hide Racial Bias . . . . . . . . . . . . . .............. 8 By Laurence Claus , Professor of Law III. Dancing with the Elephant: Gun Rights Again (United States v. Hemani and Wolford v. Lopez) . . . . . . . . . . . . . . . . . . . . ...................... 11 By Donald Dripps , Warren Distinguished Professor of Law IV. Monsanto v. Durnell: Curtailing State Tort Suits for Herbicides and Pesticides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .............................. 14 By Natalie Jacewicz , Assistant Professor of Law V. The Court’s Hamiltonian Moment: Trump v. Cook and Trump v. Slaughter . . . . ...... 17 By David McGowan , Lyle L. Jones Professor of Competition and Innovation Law VI. Chiles v. Salazar : Free Speech and the Limits of State Bans on Conversion Therapy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .................................. 20 By Miranda McGowan , Professor of Law VII. Unanimous Win for the SEC in Preserving One of Its Most Significant Remedial Tools in Sripetch v. SEC . . . . . . . . . . . . . . . . . .................. 23 By Caley Petrucci , Associate Professor of Law; Director, Center for Corporate and Securities Law VIII. Trump v. Barbara and Constitutional Birthright Citizenship . . . . . . . . . . . ............. 26 By Michael Ramsey , Warren Distinguished Professor of Law IX. Learning Resources, Inc. v. Trump: A Cross-Ideological Majority Rejects Presidential Tariffs Under Emergency Powers Law . . . . . . . . . . . . ............. 29 By Michael Rappaport , Hugh and Hazel Darling Foundation Professor of Law; Director, Center for the Study of Constitutional Originalism X. Watson, Mississippi Secretary of State v. Republican National Committee et al.: Mail-In Ballots Arriving After Election Day . . . . . . . . . . . . . . . . . . . . ...................... 32 By Maimon Schwarzschild , Professor of Law XI. Geofence Warrants Trigger the Fourth Amendment After Chatrie v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................................... 35 By Erin Sheley , Professor of Law

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Robert Schapiro

Dean and C. Hugh Friedman Professor of Law

Introduction

T he University of San Diego School of Law is pleased to present the sixth annual Blue Brief, a faculty review of 13 carefully selected rulings from the most recent Term of the United States Supreme Court. USD has an extraordinarily distinguished law faculty, and I believe that you will enjoy reading their assessments of cases ranging across a variety of important topics including separation-of-powers, administrative law, Second Amendment rights, citizenship, immigration, and voting rights. This momentous Term highlighted continuing sharp divisions among the Justices. The Supreme Court ruled on cases that substantially reshaped separation of powers as well as executive power in Trump v. Slaughter, Trump v. Cook, and Learning Resources, Inc. v. Trump. The Court also curtailed statutory and judicial protections for immigrants and voters in Mullin v. Doe and Louisiana v. Callais. The Court continued to expand Second Amendment rights with Wolford v. Lopez and United States v. Hemani. In Watson v. Mississippi Secretary of State , the Court resolved a closely watched dispute over whether federal election

law allows states to count absentee ballots received after Election Day if they were timely cast. Perhaps most significantly, a sharply divided Court affirmed constitutional protection for birthright citizenship. In addressing critical issues, the Justices often rely on the insights of our faculty, and this past Term was no exception. Professor Michael Ramsey’s work was quoted and cited twice in Learning Resources, Inc. v. Trump , both by Justice Gorsuch in his concurrence and by Justice Thomas in his dissent. We are very happy to share the insights of 11 of our eminent faculty on these important Supreme Court decisions. We are eagerly awaiting the opening of the Court’s new Term on October 5, 2026, and we look forward to reporting back to you in the summer of 2027 with the latest developments.

Warm Regards,

Robert Schapiro

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Justin Brooks

Professor of Practice

Mullin v. Doe: Closing the Courthouse Doors to TPS Recipients

I.

I n Mullin v. Doe , the United States Supreme Court considered whether federal courts have the power to review the Secretary of Homeland Security’s decision to terminate a country’s Temporary Protected Status (TPS). In a sharply divided 6-3 decision, the Court held that virtually all challenges to TPS termination decisions, except the rare constitutional claim, are beyond the reach of federal judicial review. This decision further expands executive authority to act free from meaningful judicial oversight and could lead to the deportation of hundreds of thousands of longtime U.S. residents. Mullin v. Doe focused particularly on the TPS recipients from Syria and Haiti. Congress created TPS in 1990 as a humanitarian measure designed to protect people who could not safely return to their home countries because of war, natural disasters, or other extraordinary conditions. Syria received TPS in 2012 after peaceful protests against the government of

Bashar al-Assad devolved into a brutal civil war that killed hundreds of thousands of people and displaced millions more. Haiti received TPS in 2010 after a 7.0-magnitude earthquake struck near Port-au-Prince, killing an estimated 230,000 people and leaving more than a million homeless. TPS allowed nationals from both countries who were already in the United States to receive protection from deportation, permission to remain in the country, and authorization to work. The Trump administration has not been a supporter of TPS. In January 2025, President Trump issued an executive order directing that TPS designations be interpreted narrowly and terminated whenever possible. Secretary of Homeland Security Markwayne Mullin subsequently terminated TPS protections for Syria and Haiti .

When recipients of TPS from both countries challenged the terminations in federal court,

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they argued that Secretary Mullin had failed to consult properly with other government agencies, ignored evidence of continuing dangers in Syria and Haiti, and acted arbitrarily and capriciously in violation of the Administrative Procedure Act . Haitian plaintiffs also alleged that the termination of Haiti’s designation was motivated by racial animus in violation of the Equal Protection Clause . Federal judges in New York and Washington, D.C. , ruled in favor of the Syrian and Haitian plaintiffs, and the cases eventually reached the Supreme Court.

decision to terminate TPS, but also procedural claims concerning how those decisions were reached. The Court also rejected the equal protection claims, concluding that President Trump’s repeated statements opposing the TPS program as a whole supplied a race-neutral explanation for the decision to terminate Haiti’s designation, notwithstanding the President’s numerous disparaging remarks concerning Haitian immigrants. Justice Kagan, joined by Justices Sotomayor and Jackson, vigorously dissented , arguing that the majority interpreted the bar on judicial review far too broadly, effectively insulating executive actions from meaningful judicial scrutiny. She wrote that the Syrian and Haitian TPS beneficiaries “ask for only one thing: that they may stay in this country while they continue to litigate their claims. … [T]hey are entitled to that relief, and should not instead be consigned to devastating, and indeed life-threatening, injury.” For the dissent, the majority’s reading of the statute effectively closed the courthouse doors to individuals facing potentially life-threatening consequences. The decision carries consequences extending far beyond Haiti and Syria. It represents another significant victory for executive authority in immigration matters and reinforces the Court’s growing willingness to limit the role of the federal judiciary in reviewing immigration decisions. The ruling underscores the inherently precarious nature of TPS itself. Although many recipients have lived and worked in the United States for years or even decades, the Court’s decision makes clear that TPS remains, at its core, a temporary form of relief that can be terminated with little opportunity for judicial intervention.

The decision carries consequences extending far beyond Haiti and Syria. It represents another significant victory for executive authority in immigration matters …

Writing for the Court, Justice Alito concluded that Congress had foreclosed judicial review of virtually all nonconstitutional challenges to TPS determinations. The Court relied on 8 U.S.C. § 1254a(b)(5)(A) , which provides that “[t]here is no judicial review of any determination” regarding the designation, extension, or termination of TPS for a foreign state. The majority interpreted this language broadly, concluding that it bars not only challenges to the ultimate

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The State Department currently warns Americans against travel to both Syria and Haiti because of widespread violence, crime, terrorism, and kidnappings. Yet despite those continuing dangers, the Court’s decision permits the government to remove TPS protections from nationals of those countries with little opportunity for judicial intervention. Last year, the Supreme Court similarly

allowed the Trump administration, through its emergency docket, to strip TPS protections from more than 300,000 Venezuelans . The message of Mullin v. Doe is unmistakable: although Congress created TPS as a humanitarian safeguard, its continued existence depends less on judicial oversight than on the political choices of the Executive Branch.

Justin Brooks

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Laurence Claus

Professor of Law

Louisiana v. Callais: Letting Partisan Bias Hide Racial Bias

II.

T hrough the Voting Rights Act , Congress sought to help keep the United States Constitution’s promise that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” American courts have applied the Act to the practice of drawing district boundaries for elections to public office. How could drawing district boundaries deny or abridge the right to vote on account of race? Drawing district boundaries could abridge racial minorities’ right to vote if the drafters deliberately draw those boundaries in ways that give those voters less influence than other voters over who will be elected. For example, drafters who want to discriminate against racial minority voters could split the localities where those voters live among so many electoral districts that such voters have little influence in any of those districts. This might lead to few or no racial minority candidates being elected, even if the racial minority is a large and cohesive community.

In 1982, Congress amended the Voting Rights Act to add: “A violation ... is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election ... are not equally open to participation by members of a class of citizens protected by [the preceding words of the Act] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” In seeking to implement this somewhat convoluted language, policymakers and courts have faced a conundrum: how can we stop our governments from drawing district lines to discriminate by race without our remedies becoming so race conscious that they end up involving unconstitutional race discrimination too? In Louisiana v. Callais , Justice Alito’s majority opinion of the Court read the language of the Voting Rights Act in a new way. Justice Alito argued that narrowing the Act’s remedial

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reach reconciled it with the true scope of the constitutional promise it sought to enforce. He noted that “[a]s the Court has long held, the Fifteenth Amendment bars only state action ‘motivated by a discriminatory purpose.’” Though the right reading of the Voting Rights Act “does not demand a finding of intentional discrimination,” he continued, “it imposes liability only when the circumstances give rise to a strong inference that intentional discrimination occurred.” Digging into the details of the Act’s words, Justice Alito addressed what the law meant by racial minorities having “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” In his view, the Act’s required “‘opportunity’ of these ‘members of the electorate’ to contribute their votes to a winning cause is whatever opportunity results from the application of the State’s combination of permissible criteria.” What criteria for districting by state governments are permissible? Justice Alito elaborated: “We have held that they may use traditional districting factors such as ‘compactness, contiguity,’ ‘maintaining the integrity of political subdivisions, preserving the core of existing districts,’ and protecting incumbents.” That observation might not raise an eyebrow, except for his reference to “protecting incumbents.” But what Justice Alito said next has raised many eyebrows: “The same is true with respect to the drawing of districts to achieve partisan advantage. Disapproval of partisan gerrymandering dates back to the founding. ... But partisan gerrymandering claims are not justiciable in federal court. ... Thus, in considering the constitutionality of a

districting scheme, courts must treat partisan advantage like any other race-neutral aim: a constitutionally permissible criterion that States may rely on as desired.”

But the Supreme Court has never said that all partisan districting is “constitutionally permissible.” The Court has said only that federal courts will not decide that question. In Rucho v. Common Cause , the Court concluded not that partisan districting is constitutional, but that its constitutionality is a nonjusticiable political question, to be answered outside the federal courts. To quote from Chief Justice Roberts’ majority opinion in that case: “Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is ‘incompatible with democratic principles’ ... does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” By letting gerrymanderers shelter their handiwork behind bad reasons, the Callais Court has made the Constitution’s promise of equal voting rights much harder to keep.

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Quoting from precedents on which he built, Justice Alito in Callais explained the consequence of treating partisan bias as “a constitutionally permissible criterion” for districting. Someone claiming that the government is engaged in race discrimination would have to “‘disentangle race from politics’ by proving ‘that the former drove a district’s lines.’ ... ‘That means, among other things, ruling out the competing explanation that political considerations dominated the legislature’s redistricting efforts. If either politics or race could explain a district’s contours, the plaintiff has not cleared its bar.’” In other words, drafters of district lines are home free so long as the factual record supports a story of partisan political bias and does not tell a distinct and separable story of racial bias. The Supreme Court has never cast doubt on the rightness of its landmark decisions that stopped American governments from drawing districts with significantly different numbers of people in them. In Rucho , the majority emphasized that the decisions holding malapportionment unconstitutional remain the law. But why is malapportionment unconstitutional? The Rucho majority observed that malapportionment violates the individual right to an equally weighted vote. Why do individual citizens have reason to care that their votes are equally weighted? So that they have an equal say in deciding who will govern . Voting for candidates matters only because it affects who will govern. Malapportionment violates the Constitution’s promise of equal protection because it does not give voters an equal say in who will govern. But partisan bias in drawing district lines —

so-called partisan gerrymandering — also does not give voters an equal say in who will govern. The reason that malapportionment is unconstitutional also applies to gerrymandering. If one tactic is unconstitutional, then the other should be too. Constitutional constraints that courts will not enforce are still in the Constitution, and when legislators act unconstitutionally, they violate their oaths even when there is no judicial remedy. What basis is there for treating partisanship as a constitutionally permissible reason for drawing district lines? Is partisan advantage a legitimate government interest? How could it be? Even under the most deferential “rational basis” standard of review, government action needs a legitimate reason, and for a reason to be legitimate, it cannot be bad . If the government’s only defense against having a bad reason is that it has another bad reason, why should that salvage the government’s action? If the government’s conduct is explicable as one or both of two things, one of which is bad and clearly unconstitutional and the other of which is bad and might be unconstitutional (but we won’t say), why should the badly behaved government get a pass? Why isn’t it enough to establish a claim of intentional race discrimination that redistricting leaves a racial minority with less say in who will be elected and the government’s drafters cannot point to any good reason for their districting choices? By letting gerrymanderers shelter their handiwork behind bad reasons, the Callais Court has made the Constitution’s promise of equal voting rights much harder to keep.

Laurence Claus

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Donald Dripps

Warren Distinguished Professor of Law

Dancing with the Elephant: Gun Rights Again (United States v. Hemani and Wolford v. Lopez) III.

T his term the Court decided two Second Amendment cases. The first, United States v. Hemani , reversed Hemani’s conviction for violating 18 U.S.C. § 922(g)(3) . That statute makes it a felony for anyone addicted to a controlled substance, or any “unlawful user” of a controlled substance , to possess a firearm. Federal agents investigating suspected terrorism executed a search warrant at Hemani’s home. There, they found a gun and some marijuana. Hemani admitted he used marijuana on a regular basis. The § 922(g)(3) prosecution followed. The justices unanimously held that Hemani’s conviction violated the Second Amendment . Following the analysis directed by New York Rifle & Pistol Assn. v. Bruen , Justice Gorsuch’s majority opinion easily concluded that the application of § 922(g)(3) to Hemani infringed his right “to keep” a gun. Justice Gorsuch then rejected the government’s examples of historical analogues. The most plausible of these was the historical practice of denying

firearms to habitual drunkards, who were understood to be incompetent 24/7. One might be a regular and excessive drinker without falling into this category. Ergo, mere “use” of a controlled substance was not analogous to traditional practice. The Court did not declare § 922(g)(3) unconstitutional on its face. The opinion expressly did not even address whether the government could bring a prosecution under § 922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way. Despite this qualification, the Court’s characterization of the historical analogy to disarming habitual drunkards as limited to cases

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of extreme dysfunction suggests that only a rare defendant and/or a rare drug might sustain a future as-applied prosecution under § 922(g)(3).

“to bear” guns. The issue was whether Hawaii could point to a traditional practice analogous to its new law. Hawaii claimed three historical analogues. First, statutes prohibiting trespassing on land with a gun were common historically. For the majority, Justice Alito characterized these as anti-poaching provisions. Their purpose was to prevent shooting animals outdoors, not shooting people indoors. Hawaii relied on two other historical enactments. One was an 1893 Oregon law that prohibited trespassing on enclosed property with a firearm. Leaving aside doubts about whether the Oregon law was anything other than another anti-poaching law, the majority characterized it as at most an isolated example that was not adopted widely elsewhere and therefore didn’t count as well-established. The state also pointed to an 1865 Louisiana statute that prohibited carrying firearms into private premises without the consent of the owner. As with the Oregon statute, the majority characterized the Louisiana act as not “widespread, well-known, and widely accepted.” Justice Alito also noted that the Louisiana law, although facially race-neutral, was part of the infamous Black Codes adopted by Southern states after the Civil War. As the Court discussed in depth in McDonald v. City of Chicago , one of the abuses the Fourteenth Amendment was intended to stop was the disarmament of the former slaves, including many veterans of the Union Army. “Unless we put history entirely out of our minds,” Justice Alito wrote, “Hawaii’s claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.”

The second case, Wolford v. Lopez , was argued (and won) by Alan Beck, USD Law (JD) ’07. Wolford facially invalidated by a vote of six to three a Hawaii statute that prohibited concealed carry permit holders from entering business premises without the express consent of the owner. None of the justices questioned the right of a property owner to exclude visitors carrying guns. The issue was whether the default rule should be “guns allowed” subject to notice by the owner that guns are not allowed, or “guns not allowed” subject to notice by the owner that guns are allowed. The Hawaii law adopted the second of these default rules. Like Justice Gorsuch’s opinion for the Court in Hemani, Justice Alito’s majority opinion in Wolford followed the Bruen analysis. The Hawaii law prima facie infringed the right The elephant in the room here is the prohibition of gun possession by convicted felons… . Any constitutional limits on these laws would apply … with full retroactivity, even decades after a conviction.

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The elephant in the room here is the prohibition of gun possession by convicted felons. Tens of thousands of offenders are in federal or state prisons on felon-in-possession charges. Any constitutional limits on these laws would be substantive rather than procedural changes. They would therefore apply not just to cases pending on direct review, but with full retroactivity, even decades after a conviction. Still more ominously, a § 922(g) conviction is the gateway to the fifteen-year minimum sentence for violent recidivists — an exceptionally sinister group — under the Armed Career Criminal Act . Invalidating the felon-in-possession laws would vacate every ACCA conviction. of § 922, such as subsections (g)(1) (disarming convicted felons) and (g)(4) (disarming any person “adjudicated as a mental defective” or “committed to a mental institution”), involve some manner of pre-deprivation process before an individual’s Second Amendment rights are lost. For that reason, they differ from subsection (g)(3) and “nothing in our opinion should be taken to cast doubt” on them. The language here (we cast no doubt) is stronger than the later language about the application of § 922(g) to other users of other drugs (we say nothing “either way”). Concurring in Hemani , Justice Jackson , joined by Justice Sotomayor, argued for the ends-means test proposed by Justice Breyer in Bruen . The felon-in-possession laws are hard to defend In Hemani, Justice Gorsuch thought it important enough to note that: Certain other provisions

on an ends-means basis. A perpetual firearms disqualification that sweeps up such convicted felons as Donald Trump, Martha Stewart, and Mark Wahlberg is patently overbroad. The Reconstruction Congress’s hostility to disarming African Americans sits uneasily with the estimated one-third of the African American adult male population with felony records. Indeed, it is not wholly beyond the realm of reason to speculate that Bruen ’s unusual history and-tradition test was reverse-engineered from the felt necessity of preserving the felon-in possession laws. That this living-constitution approach should appeal to the Court’s conservatives is otherwise difficult to explain. When the felon-in-possession laws do face a Second Amendment challenge in the Court, at least one vote may turn on whether the prosecution comes from a state or a federal court. In a separate Hemani concurrence, Justice Thomas reiterated his not-implausible view that the federal statute, § 922(g), in toto, is beyond Congress’s power under the Commerce Clause. If Justice Thomas adheres to this view, the government would lose a federal case if four other justices concluded that a § 922(g) prosecution violates the Second Amendment. The justices, of course, can always do nothing. This particular elephant may never make it out of the cert pool. If a Second Amendment challenge to the felon-in-possession laws ever does get to a decision on the merits, the justices will face a quite uncomfortable choice.

Donald Dripps

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Natalie Jacewicz

Assistant Professor of Law

Monsanto v. Durnell: Curtailing State Tort Suits for Herbicides and Pesticides

IV.

A gricultural chemicals are facing renewed scrutiny from the American public. Young adults’ rising cancer rates in “Corn Belt” states, the “Make America Healthy Again” movement, and a confluence of other factors have spurred concern that some food production staples may be carcinogenic. One focus of debate is Roundup, an herbicide produced by Monsanto. In 2015, the International Agency for Research on Cancer deemed glyphosate, Roundup’s active ingredient, “probably carcinogenic to humans.” The Environmental Protection Agency (EPA), which regulates herbicides pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) , nonetheless reaffirmed its longstanding position that glyphosate is unlikely to be carcinogenic. Unassuaged, Americans who developed cancer after long-term exposure to Roundup have brought tens of thousands of cases in state courts, where juries have handed down multimillion-dollar verdicts for state tort claims.

In Monsanto v. Durnell , the Supreme Court put a stop to one such strain of litigation: failure to-warn cause of action. The plaintiff, John Durnell, asserted that twenty years of using Roundup caused his non-Hodgkin’s lymphoma and that Roundup’s label should have included a cancer warning. A Missouri jury agreed and awarded Durnell $1.25 million in compensatory damages on a failure-to-warn theory. The Missouri Court of Appeals affirmed. Throughout the case, Monsanto argued that FIFRA preempts such claims. The argument turns on the statute’s regime for registering products such as Roundup. FIFRA requires that manufacturers register herbicides with EPA , a process that includes submitting information about the product’s formula, potential harmful effects, and label proposals. If EPA determines that the herbicide “will not generally cause unreasonable adverse effects” on human health and the environment and that the labeling “compl[ies] with the requirements” of FIFRA,

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EPA registers the product. A product may not be “ misbranded ,” which the statute defines to include labels lacking “a warning or caution statement … adequate to protect health and the environment.” Critically, FIFRA includes a “Uniformity” provision that bars states from imposing “any requirements for labeling or packaging in addition to or different from those required under” FIFRA. The case’s central question was whether a cancer warning of the sort Durnell urged would constitute a labeling requirement “in addition to or different from [requirements] under” FIFRA. To answer the question, the Court had to determine what counts as “requirements” under FIFRA. Under one interpretation, “requirements” might mean the provisions set forth in the FIFRA statute and implementing regulations . On an alternative reading, “requirements” could refer to the specific labels certified by EPA for each product. According to a dissent penned by Justice Jackson and joined by Justice Gorsuch, “requirements” are provisions set forth in FIFRA itself and implementing regulations. By that definition, FIFRA’s misbranding prohibition is one such “requirement” for herbicide labels. Because the cancer warning Durnell sought is consistent with the statutory provision not to misbrand, the Justices reasoned, the warning would not impose a requirement “in addition to or different from” those of FIFRA. Durnell’s failure-to-warn claim, therefore, was not expressly preempted in the dissenters’ view. Justice Kavanaugh , writing for the Court, disagreed. Because “manufacturers are legally required to use” the label approved by EPA at

registration, he reasoned, such labels must constitute a “requirement” under FIFRA. Any cancer warnings imposed by state tort law thus constitute “requirements … in addition to or different from” FIFRA’s requirements and are preempted by the Uniformity provision. According to the Court, this reading conforms with precedent interpreting FIFRA as well as the Medical Device Amendments of 1976 — part of the broader Federal Food, Drug, and Cosmetic Act — which contain a nearly identical preemption clause . In sum, the Court held that Durnell’s claim was expressly preempted. The opinion’s immediate effect will be to curtail lawsuits against Monsanto. Shares of Monsanto’s parent company, Bayer, jumped by roughly 16% on the day the decision was announced. But the opinion’s lone concurrence , by Justice Thomas, urges farther-reaching doctrinal transformation. Several elements of FIFRA, The opinion’s immediate effect will be to curtail lawsuits against Monsanto. Shares of Monsanto’s parent company, Bayer, jumped by roughly 16% on the day the decision was announced.

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Thomas asserts, likely exceed Congress’s authority under the Commerce Clause . Although Thomas acknowledges that the Commerce Clause bestows the power to regulate “selling, buying, and bartering” across state lines, FIFRA regulates product labels regardless of whether those products are sold within state lines and likewise regulates how consumers use such products. Both exceed Commerce Clause authority, in Thomas’s view.

Moreover, the concurrence expresses skepticism that federal agency actions, as opposed to statutes, can preempt state law and also raises nondelegation questions related to FIFRA. The concurrence thus extends invitations to several lines of future litigation. It remains to be seen whether any of Justice Thomas’s overtures are accepted.

Natalie Jacewicz

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David McGowan

Lyle L. Jones Professor of Competition and Innovation Law

The Court’s Hamiltonian Moment: Trump v. Cook and Trump v. Slaughter

V.

I n Trump v. Cook , the Court held that the independence of Federal Reserve (Fed) governors is constitutional. The same day, in Trump v. Slaughter , the Court endorsed the “unitary executive” theory and held that the President can fire the members of “independent” agencies that wield executive power. The cases may appear contradictory, but they are not. Cook validates the American tradition of a central bank accountable to markets and therefore insulated from transient political pressure. Slaughter upholds the more general principle that accountability for the use of executive power must align with responsibility for exercising it. Cook relies heavily on the history of central banking in the United States. The Constitution established the structure but not the substance of a government. It stitched together colonies long on debt and short on cash but solved neither problem. Hamilton’s monetary policies gave the new government life and energy

through a financial system that converted state war debts into paper currency for liquidity and employed a de facto central bank to manage the money supply. The Court quoted his assessment of what was needed to make his proposed Bank of the United States effective: “it appears to be an essential ingredient in its structure, that it shall be under a private not a public Direction,” one that could resist “the temptations of momentary exigencies.” Lisa Cook is a Fed Governor; her statutory fourteen-year term expires in 2038. In August 2025, a federal housing official asserted on social media that in 2021, before her appointment, Cook fraudulently claimed two different homes as her primary residence on mortgage applications. Within half an hour President Trump was on social media demanding Cook’s resignation; three days later he sent her a letter purporting to fire her on the ground that he had lost confidence in her integrity. (Ironists take note.)

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By law the President can remove a governor “for cause.” Cook sued in part on the ground that the President’s stated rationale did not amount to cause. She obtained a preliminary injunction allowing her to remain in her post. The appeal before the Court sought to stay the injunction, allowing her immediate termination while the underlying case proceeded.

in part because it decided Slaughter at the same time and the Court did not want Slaughter to create uncertainty about the Fed. The Court saw “no reason to leave the public in limbo, or to sow doubt as to the status of one of our Nation’s (and the world’s) most important financial institutions.” It is a rare case of the Court seeking to calm the markets for prudential reasons. Hamilton would have approved. The Court also set the standard for assessing cause on remand. Its test includes at least “the seriousness of the alleged misconduct, and the extent of any nexus that may exist to the Governor’s professional duties.” The key question, for the Court, is whether the facts imply unfitness for the post or whether the charge “simply represents an effort to secure a ‘more congenial’ replacement.” Stay tuned. Slaughter is Hamiltonian in a different sense. Rebecca Slaughter was an FTC commissioner whom President Trump fired in March 2025. The governing statute provided standards for removal, but the President did not assert them; he fired her on the ground that her views were inconsistent with his priorities. Slaughter thus presented the question the government waived in Cook — whether Congress may by statute constrain the President’s power to remove officers exercising authority within “the executive power.” The Court sided with the President. It held that the Constitution vests the executive power in the President. This vesting of power includes the power to remove officials wielding such power, the FTC exercises such power, ergo Congress cannot constrain the President’s ability to remove officers exercising power the Constitution delegates to the President.

The cases may appear contradictory, but they are not.

The government asserted that the statutory text empowered President Trump to decide for himself what counted as cause, and that his decision was final and unreviewable. The Court held the government was unlikely to prevail (and thus not entitled to a stay) because, as used in the statute, the term “cause” must be interpreted to “reflect the Federal Reserve’s unique historical status and role,” including Congress’s desire — and the historical necessity — that the Fed operate independently of transient political desires. Only Justice Thomas’s dissent argued that Congress could not limit the President’s power to terminate a Fed governor. Because the Court denied the stay on statutory grounds, and because the Trump administration waived any argument that the removal restriction was unconstitutional, the Court did not need to reach the constitutional issue. It did anyway,

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The key premise is the second — that the power to remove inheres in the broader grant — and on this point the Court surveyed the extensive historical record supporting the conclusion that the President could remove executive branch officers without Congressional consent. The question whether Congress could limit the removal power rather than requiring Congressional consent to removal was answered in Myers v. United States , which surveyed Founding- and Reconstruction-era history. Myers held that Congress could not qualify the President’s power to remove executive officers. Nine years later, in Humphrey’s Executor v. United States , the Court backtracked on the odd ground that some officers may perform executive functions without exercising executive power. The agency at issue was the same as in Slaughter — the FTC — and the Court held that Congress could qualify President Roosevelt’s power to remove a commissioner owing to the Commission’s quasi-judicial and quasi-legislative nature. Slaughter gave Humphrey’s Executor what the Chief Justice called “a respectful burial,” and the headstone reads as a holding: “Subordinates who exercise the President’s power are subject to removal by him.” Cook is important because it avoids the potentially disastrous politicization of monetary policy. Slaughter is important because it moves the tectonic foundations of the federal government, with uncertain scope and consequences. Replacing a spoils system with a professional civil service was a major achievement. Is that achievement at risk from a unitary executive? Chief Justice Taft wrote in Myers that its holding was compatible with the

merit system but did not explain how or why, and the answer is not self-evident. If Slaughter ushers in a new era of payoff appointments to even ministerial jobs, it will betray its promise of accountability. Justice Gorsuch’s concurrence and Justice Sotomayor’s dissent asked whether Congress would have delegated so much power to agencies if legislators knew they were just handing power to the President. Probably not. Too late now, however. Slaughter does not eliminate the myriad tentacles Congress has sent wending through American life; it simply makes it easier to change what they grasp by concentrating power in the President. Justice Gorsuch’s libertarian tendencies led him to urge that the Court continue to rein in improper Congressional delegations of power to avoid the evils of such a concentration of power in the President. He is right about that. The alternative is a world in which presidential whims or vindictiveness can thwart or approve mergers, grant or revoke broadcast licenses, dictate terms of employment, condemn companies as supply-chain risks based on fits of pique, and thousands of other things. A government that practices extortion in pursuit of kleptocracy is an unappealing prospect, but it is not fanciful, and Slaughter has the potential to increase the risk of that dystopian future. The remedy Justice Gorsuch proposes is a revitalized nondelegation doctrine. Even if one would have preferred that the Court had eschewed the path taken in Slaughter , there are good reasons to support the view that the journey, now started, should be finished.

David McGowan

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Miranda McGowan

Professor of Law

Chiles v. Salazar: Free Speech and the Limits of State Bans on Conversion Therapy

VI. T wenty-three states and the District of Columbia ban licensed healthcare providers from attempting to change the sexual orientation or gender identity of LGBTQ minors but permit therapy to affirm it. Colorado had been the twenty-fourth state before the Court held in Chiles v. Salazar that Colorado’s ban constituted viewpoint discrimination under the First Amendment. including minors. She claimed that Colorado’s ban, as applied to her talk therapy, constituted viewpoint discrimination and violated her First Amendment free speech rights. She uses talk therapy to help minor patients fulfill their own goals — whether to affirm their LGBTQ identity or to change their same-sex attraction or live in “ harmony with [their] physical body .” She did not challenge — nor did the Court decide — whether any other application of the law, say to aversive therapy, was unconstitutional. Aversive Kaley Chiles, a licensed therapist in Colorado, only offers talk therapy to her clients —

therapy can include shock therapy or other conditioning techniques designed to create negative associations with unwanted thoughts or feelings. Such techniques can include telling a patient to snap a rubber band on their wrist or pairing images, thoughts, or feelings of same sex attraction or a gender identity inconsistent with sex assigned at birth with nausea-inducing substances. Whether Colorado can prohibit those kinds of treatments consistent with the First Amendment remains an open question. The lower courts had held that Ms. Chiles’s talk therapy was not considered speech for First Amendment purposes but the professional practice of psychology. Colorado law therefore regulated her professional conduct as a therapist. Outside of her therapist’s office, Ms. Chiles still could advocate for any position related to LGBTQ causes.

In March, the Supreme Court reversed in an 8-1 decision written by Justice Gorsuch. Talk

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therapy consists of “the spoken word[,] … perhaps the quintessential form of protected speech.” Colorado law permitted Ms. Chiles to help clients affirm their LGBTQ identity but not help a client change their LGBTQ orientation or tendencies. “As applied” to Ms. Chiles, therefore, “Colorado’s law … . prescrib[es] what views she may and may not express” — viewpoint discrimination in a nutshell. The Court remanded to the lower court to review the ban under strict scrutiny, which is almost impossible to satisfy. Here it may be particularly difficult for Colorado to satisfy. Ms. Chiles’s therapy focuses on helping her clients to achieve their own goals; she neither practices aversive therapy nor pushes her clients to change their gender identity or sexual orientation. When the client, not the therapist, chooses the therapeutic goals, the argument that such therapy causes serious harm to minors is weaker. Viewpoint discrimination is the third rail of First Amendment law. “[T]he First Amendment protects the inalienable right of every individual to decide for himself how best to speak” even if that speech is “misguided, offensive, or cause[s] incalculable grief,” Justice Gorsuch wrote. State laws that restrict speech because of its viewpoint must satisfy “strict scrutiny” by proving that “its restriction on speech is narrowly tailored to serve compelling state interests.” In dissent, Justice Jackson argued that these particular First Amendment goals made no sense in the context of the medical and psychological treatment of minors. Therapy is not part of the “marketplace of ideas.” It is treatment of a vulnerable child or teen in distress. Government regulation of medicine is by its nature “pervasively and unavoidably viewpoint based,” she wrote. A medical “standard of care” that “punishes a doctor

for providing care outside of that standard, … necessarily limits what medical professionals can say and do on the basis of viewpoint.” Colorado had similarly argued that its conversion therapy ban was analogous to malpractice law. Conversion therapy was malpractice, Colorado argued , because medical and scientific communities have discredited it as ineffective, harmful, and possibly life-threatening.

Viewpoint discrimination is the third rail of First Amendment law.

The Court rejected Colorado’s analogy. When suing a therapist for malpractice, a plaintiff has to prove by the preponderance of evidence that the therapist’s care fell below accepted medical standards; and that that breach caused the plaintiff actual injury. Such “exacting proof requirements … may [themselves] provide sufficient breathing room for protected speech.” In contrast, Colorado’s law set the medical standard of care — anything but supportive therapy violated the law. Actual harm to a person was also not an element of Colorado’s law, which was premised on the idea that conversion therapy hurt minor patients. Colorado’s law, therefore, lacked the “breathing room” that malpractice law provided.

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Finally, the Court chided Colorado for where its logic could one day lead. Before 1973, medical consensus was that “homosexuality” was “a mental disorder.” Were medical consensus to return to that view, Colorado’s logic would permit states to prohibit LGBTQ-affirming therapy. Justices Kagan and Sotomayor concurred , but posited that a content-based but viewpoint neutral law might fare better under the First Amendment. Viewpoint-neutral measures might include a rule prohibiting therapy aimed at changing a patient’s sexual orientation or gender identity in any direction. Another viewpoint-neutral regulation could be to impose greater informed consent requirements about the dangers or efficacy of treatments to change sexual orientation or gender identity. Both would restrict speech because of its content —

therapy related to sexual orientation or gender identity has to satisfy certain requirements that other types of therapy do not. Under such an approach, a state might still plausibly argue that such a law served a compelling state interest of protecting minors’ lives and psychological stability and was narrowly tailored to achieve those ends. Chiles is a narrow decision — as applied to Ms. Chiles’s therapy, the ban is viewpoint-based. Whether other applications — say to aversive therapy or therapy specifically designed to convert a minor from gay to straight or from transgender to cisgender — also discriminate on the viewpoint of the therapist’s speech remains an open question. So, too, whether viewpoint neutral restrictions that achieve the same ends might be constitutional.

Miranda McGowan

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