Congress passed the Authorization for Use of Military Force of 2001 on Sept. 14, 2001, and it became a law four days later. Since then, the AUMF of 2001 has been cited dozens of times as statutory authority for military or counter-terrorism actions taken by American presidents in the Middle East, Africa, South Asia, and other regions.

A year later, a separate Authorization for Use of Military Force Against Iraq passed in October 2002 that gave the president powers to take “necessary and appropriate” actions to “defend the national security of the United States against the continuing threat posed by Iraq.” In December 2025, the Fiscal Year 2026 National Defense Authorization Act (NDAA) repealed the AUMF of 2002 and also the AUMF for the 1991 Gulf War.

However, the AUMF of 2001, which lacked an expiration date when signed into law, remains in force. In recent years, it has been cited as authorizing detention operations at Guantanamo Bay, strikes at ISIS locations in Nigeria, and operations in Iraq and Syria against ISIS and al-Qaida

The AUMF, Article II, and the War Powers Resolution

Presidents have cited the AUMF of 2001 for taking military actions, along with war powers granted to the chief executive under the Constitution under the Commander in Chief Clause in Article II, Section 2, which states, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

Opponents of these actions argue that they conflict with the Declare War Clause in Article I, Section 8, of the Constitution, which grants Congress the ability to initiate prolonged armed hostilities. However, Congress has not formally declared war against a foreign power since World War II.

Opponents also cite the War Powers Resolution of 1973, which Congress passed in response to fallout from the Vietnam War and ongoing conflicts with President Richard Nixon. The Resolution requires that, in the absence of the authorization for the use of military force by Congress, a president must report to Congress within 48 hours after introducing military forces into hostilities and must end the use of such forces within 60 days unless Congress permits otherwise.

The Resolution also requires the president “in every possible instance” to consult with Congress before introducing the military into imminent hostilities. It also gives Congress the ability to terminate the use of force in unauthorized hostilities at any time by concurrent resolution of the House and Senate. (These resolution powers were later modified by a Supreme Court decision in 1983.)

A Brief History of the AUMF of 2001 and Legal Cases

The primary initial action taken under the AUMF of 2001 was the October 2001 invasion of Afghanistan, during which Operation Enduring Freedom targeted Taliban and al-Qaeda operations. United States military forces remained in Afghanistan until 2021. While American forces have left the country, the AUMF passed to approve the military operations there remains in effect.

Between 2004 and 2009, the Bush administration cited the AUMF of 2001 and the AUMF of 2002 as statutory authority to target al-Qaida operations in Iraq. According to a Brown University study in 2021, there were at least 22 countries where presidents deployed actions citing powers under the AUMF of 2001.

Target areas included air and ground operations in Syria, raids and airstrikes in Libya, operations targeting Abu Sayyaf in the Philippines, and drone strikes and ground raids against al-Qaida in the Arabian Peninsula (AQAP) and ISIS targets in Yemen.

Another controversy related to the AUMF of 2001 was the detention of terrorism suspects at Guantanamo Bay in Cuba. Provisions of the act allowed the executive branch to label prisoners taken during these conflicts as “enemy combatants” – a status that would set the stage for several Supreme Court cases.

In Hamdi v. Rumsfeld (2004), the Supreme Court considered the detainment of Yaser Hamdi, a U.S. citizen captured in Afghanistan by the U.S. military in 2001. Hamdi was declared to be an “enemy combatant” fighting for the Taliban and was sent to Guantanamo Bay for indefinite detention. When it was discovered that he was a U.S. citizen, Hamdi was transferred to a military prison in Virginia and his father petitioned the court for his release.

In the plurality opinion, Justice Sandra Day O’Connor wrote that, although Hamdi’s detention was authorized by Congress, due process under the Fifth Amendment applied, and a United States citizen held as an enemy combatant must be given an opportunity to contest the basis for that detention before a neutral decisionmaker. “Hamdi contends that the AUMF does not authorize indefinite or perpetual detention,” O’Connor noted. “Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized.” After the decision, Hamdi was released after agreeing to renounce his U.S. citizenship.

Then in Hamdan v. Rumsfeld (2006), Salim Ahmed Hamdan, a bodyguard and chauffeur for Osama bin Laden, was captured during military actions taken under the AUMF of 2001. Hamdan was sent to Guantanamo Bay after being tried and convicted in a military tribunal that was established by the Department of Defense.

Hamdan asserted that the military tribunal violated the Constitution and international law. In a 5-3 ruling, the Court—with a majority opinion authored by Justice John Paul Stevens— held that the president had no inherent constitutional authority to establish the military tribunals under the AUMF. It then held that Congress had at most authorized military commissions that complied with the Uniform Code of Military Justice and the law of war. Because Hamdan’s trial had violated the UCMJ and the Geneva Conventions, it exceeded the president’s authority.

The Supreme Court held in Boumediene v. Bush (2008) that military commissions established for Guantanamo Bay by Congress after the Court’s Hamdan decision denied detainees their constitutional right to the writ of habeas corpus. It also rejected parts of the law also barred foreign nationals labeled as “enemy combatants” from challenging their detention in Article III courts.

There have been attempts to repeal or end the AUMF of 2001. In December 2025, Representatives Pramila Jayapal and Thomas Massie introduced legislation to fully repeal the AUMF of 2001. That legislation has not progressed through the House.

But in the actions taken by the United States in Iran, the president has not cited the AUMF as statutory authority. Instead, the president’s powers under Article II are more often cited as the authorizing power under the Constitution in such situations in recent years.

Scott Bomboy is the editor in chief of the National Constitution Center.

In Perez v. City of San Antonio, the Supreme Court has been asked to grant a petition for review from Gary Perez and Matilde Torres, members of the Lipan Native American Church, which has used a bend in the San Antonio River for decades for religious observances. Renovation plans from the city of San Antonio would remove a section of trees at the site used for nesting by migratory birds, including cormorants, that are considered sacred by the church and part of their religious ceremonies.

A federal district court allowed the church to continue to worship at the site, but it did not block the city’s plans to redevelop the same site. Then, the United States Court of Appeals for the Fifth Circuit held that the church failed to prove in four separate religious freedom claims that it would succeed in court.

On June 26, 2026, the church filed a petition for a writ of certiorari with the Supreme Court. After the city of San Antonio waived its right to respond, the justices considered Perez v. City of San Antonio in private conference. It then asked San Antonio to file a response by Sept. 30, 2026. About a dozen religious groups have filed amicus briefs with the Supreme Court that support the church as San Antonio prepares its own response.

A Conflict Between Public Policy and Religious Faith

Central to the Lipan Native American Church’s arguments are the First Amendment’s Establishment and Free Exercise Clauses, which read that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

In its appeal to the United States District Court for the Western District of Texas, the church alleged San Antonio violated its rights under First Amendment’s Free Exercise Clause, Texas’s state Religious Freedom Restoration Act (TRFRA), and the Texas Constitution.

The federal district court agreed that the church had a “sincere religious belief,” allowing it limited group access to the river area, but unplanned, unsupervised individual access was seen as impractical. The district court said the city had “a compelling government interest for public health and safety” in removing the trees. It cited expert testimony that dissuading the cormorants to nest elsewhere was in the public’s interest.

On appeal, the Fifth Circuit affirmed the district court’s decision, and it agreed to a request from the petitioners for the Texas Supreme Court to respond to the church’s question about its freedom-to-worship claim under the state’s Texas Religious Services Clause. The clause reads: “This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.”

The state supreme court ruled the clause did not extend to the preservation and management of publicly owned lands, nor did it require preserving natural elements needed for religious services on public property.

The case returned to the Fifth Circuit, where the court issued a second opinion affirming the district court's decision. The appeals court noted that that the case record indicated that various areas of the Park had “become nearly unusable for 10 months of the year due to the bird density/habitat. The resulting feces caused damage to various park amenities, including picnic tables, water fountains, playground equipment, restrooms, and sidewalks.”

The appeals court also said that repairing river retaining walls, like the “amassed bird guano” situation, was a compelling interest, which was complicated when the “relocation or removal of even one, single tree” conflicted with the Migratory Bird Treaty Act.

It held the church did not experience a substantial burden because it continued “to have virtually unlimited access to the Park for religious and cultural purposes,” and San Antonio had met the requirements of the Free Exercise Clause.

The church filed two other en banc rehearing petitions that were denied, with a dissent from six judges, and a second dissent.

The Petition at the Court and Supporting Briefs

The church is presenting two questions to the Supreme Court. In the first question, the church asks if government action can override “a claimant’s sincere theological judgment of what the religious exercise requires” without violating its First Amendment rights.

The second is “whether the government can satisfy its burden to prove that its action is the least religiously restrictive means available when, after notice that its action would burden religious exercise, the government admits that it failed to consider any workable alternatives prior to litigation.”

The plaintiffs argue that there are two circuit splits that merit the Court’s attention. “The first split involves courts telling believers that their honest theological convictions are wrong,” they argue, pointing to a Supreme Court decision in Zubik v. Burwell (2016) that it claims left the question unanswered.

The second circuit split, the plaintiffs argue, is that San Antonio’s approach to the problem did not require it “to investigate or account for less-restrictive alternatives before claiming that none existed.” They argue that six federal circuit court precedents require more investigation, while five circuits don’t.

“Unless this Court intervenes, that split will remain, and some lower courts will continue to allow government to burden religious exercise without ever even considering less restrictive alternatives,” they conclude in their petition.

While San Antonio has yet to respond, the friends of the court briefs include filings from various religious organizations and other interest groups. In a brief from the Jewish Coalition for Religious Liberty, the group argues that the Supreme Court should take the case to “hold that, under the First Amendment, courts cannot make theological judgments disguised as substantial burden analysis.”

The Human Rights Defense Center makes a similar argument: “This case presents a question of profound importance not only for the Petitioners but for all individuals whose religious practices are subject to government interference: whether secular courts may make theological judgments about what a claimant’s religion requires.”

To be sure, there may be briefs supporting San Antonio’s position and the Fifth Circuit’s rulings as the case eventually returns to private conference at the Supreme Court. But the current Court has not been shy about accepting religious rights cases and only four of the nine justices are needed for the Court to accept the case for arguments.

Scott Bomboy is the editor in chief of the National Constitution Center.

The case–really two lawsuits consolidated by the lower court judge–seeks to block the Trump Administration from violating the Presidential Records Act (PRA), enacted in 1978 in response to concerns that President Richard Nixon would destroy Watergate scandal-related documents. The act mandates the preservation of materials related to the official duties of the president, vice president or their staffs, and establishes that those materials are public property.

What is happening with the act and the Trump Administration is a significant piece of an effort by the administration to control or impose its view of “history” now and in the future. Other efforts recently included:

–the replacement of an exhibit at George Washington’s home in Philadelphia that showed his ownership of slaves

–an order directing placement of warning signs at the Smithsonian Museum of American History and accusing the museum of inaccuracy

–the purging of books focusing on diversity, equity and inclusion at military service academies

–the ordering all military branches to scrub online images and articles, such as of the Navajo Code Talkers and Tuskegee Airmen

–the attempt to rename the Kennedy Center, which was built to honor the fallen President John Kennedy, to add the Trump name

–executive orders renaming the Gulf of Mexico as the Gulf of America and Lake Ontario as Lake America– both of which are legally questionable

The administration was forced to reverse course on some of these actions in the face of public criticism and outcry. But some of the efforts continue in the courts. Remember, too, the boxes of documents stacked in the bathroom at Trump’s home, Mar-a-Lago? His retention of those documents at the end of his first term triggered a fight with the National Archives and led to Special Counsel Jack Smith’s investigation and indictment of Trump.

The current threat to the Presidential Records Act arose on April 1, 2026, when, at the urging of the White House Counsel, the Office of Legal Counsel within the U.S. Justice Department issued an opinion stating that the nearly 50-year-old act was unconstitutional. The opinion, advisory only, stated:

“The PRA is not a valid exercise of Congress’s Article I authority and unconstitutionally intrudes on the independence and autonomy of the President guaranteed by Article II. The Act establishes a permanent and burdensome regime of congressional regulation of the Presidency untethered from any valid and identifiable legislative purpose. For these reasons, the PRA is unconstitutional, and the President need not further comply with its dictates.”

The administration quickly issued new guidance on how to preserve records and materials that was viewed by many as less burdensome than the Act’s requirements.

Lawsuits followed almost immediately seeking to defend the act’s constitutionality and to prevent the Trump administration from failing to comply with the act. The suits were filed in federal court in Washington D.C., by Freedom of the Press Foundation and Citizens for Responsibility and Ethics in Washington (CREW). A second suit was filed by the American Historical Association and American Oversight.

The groups bringing the lawsuits warned that under the Justice Department’s opinion, public access to millions of records could be blocked, and lessons from how decisions were made and the ability to hold executive officials accountable for corruption or abuses of power would be lost.

The two cases were assigned to U.S. District Judge John D. Bates who in May 2026 ruled in favor of a preliminary injunction requiring the administration to comply with the act. In his opinion, Bates wrote that the act “democratizes the history of an indispensable institution. Access to those records allows future presidents to pick up where their predecessors left off, Congress to identify inefficiency and malfeasance, and the public to learn from the mistakes of the past.”

One of the key elements that courts must consider in deciding whether to issue an injunction is whether those seeking it are likely to prevail on the merits if the case goes to trial.

“On the merits, the Records Act is likely constitutional,” Bates wrote. “It was validly enacted by Congress under the Property Clause because Congress may prospectively designate presidential records as federal property and then regulate that property. And it is also a valid exercise of the Necessary and Proper Clause as it promotes the accountability and efficiency of Executive Branch operations. Moreover, it does not impermissibly intrude on any presidential prerogative, especially because Presidents– including President Trump in his first term– have complied without complaint for almost 50 years….”

The Trump administration has appealed the judge’s order to the U.S. Court of Appeals for the District of Columbia.

When Judge Bates issued his opinion in May, he opened its 54 pages with a quotation from George Orwell’s 1949 book, 1984, perhaps as a reminder or caution to all Americans. The quotation is:

“Who controls the past controls the future, who controls the present controls the past.”

Marcia Coyle is a regular contributor to Constitution Daily. She was the Supreme Court Correspondent for The National Law Journal and PBS NewsHour who has covered the Supreme Court for more than three decades.

The case had received attention outside of Florida before the ruling by the district court since it touches on several landmark Supreme Court decisions and rulings within the Eleventh Circuit.

As a public university, Florida International University (FIU) maintains policies and regulations that govern student conduct. It has argued that the students violated FIU Regulation 110(3), which pertains to student speech indoors. Under the policy, students can be held responsible for disrupting indoor university activities by undertaking actions such as “protests, parades, marches, picketing, demonstrations, and other similar expressive activities.”

On August 23, 2026, in ICEbreakers v. Nunez, Judge Jacqueline Becerra from the U.S. District Court for the Southern District of Florida disagreed with the university’s position and ruled that the FIU students were likely to succeed in their challenge to regulations restricting certain speech on campus.

The Incident at the Event

On March 13, 2026, according to the court’s record, FIU President Jeanette M. Nuñez was interviewing former baseball player Alex Rodriguez at an on-campus indoor event. The ICEBreakers is a student-led organization opposing FIU’s agreement to deputize the FIU police department with the powers of federal Immigration and Customs Enforcement (ICE) agents.

An estimated 15 ICEBreakers members were in the audience at the event. The members were wearing T-shirts that said, “ICE OFF FIU.” During the interview event, seven members of the group stood up and faced the audience in a silent protest that lasted between one-to-three minutes. The court noted that no one at the event “complained or otherwise raised any concern regarding Plaintiffs’ conduct.” The students left the event, and, after an interaction with FIU police officers, they left the area.

According to the court, “based on the evidence submitted to date, it does not appear that any Plaintiff, or anyone else wearing an ICE OFF FIU’ T-shirt, spoke or did anything other than sit, stand, and walk.”

The matter was referred to FIU’s Office of Student Conduct & Academic Integrity. On April 7, 2026, the office issued letters to the students who stood, charging them with misconduct for failing to comply with FIU Regulation 110, Section 3.

After meeting with officials and attending a hearing, the students were charged with failing to comply with Regulation 110(3). They received a written reprimand, and each were directed to submit a video reflection “explaining your understanding of FIU Regulation 110, what is expected under FIU Regulation 110 related to indoor and outdoor areas, and how you will apply what you have learned moving forward.”

The students appealed the decision within FIU and the appeal was denied. FIU then required students to submit video reflections by September 4, 2026, or FIU would place a “student conduct hold” on their academic records, blocking their ability to register for classes, and obtain financial aid, transcripts, a diploma, or copies of any other academic records.

On August 11, 2026, the American Civil Liberties Union of Florida filed a lawsuit on behalf of the students.

The Legal Precedents

In her opinion, Judge Becerra discussed two Supreme Court decisions. The Court has held since the late 1960s that public school officials can regulate student protests that they view “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” But not all protests can be regulated by schools, especially those that express “pure speech.”

The foundational case for public secondary schools and universities is Tinker v. Des Moines Independent Community School District (1969). In December 1965, at the height of the Vietnam War, three students, including Mary Beth Tinker, a 13-year-old student at Warren Harding Junior High School in Des Moines, Iowa, wore black armbands to school to protest the war. They were all suspended.

In his 7-2 majority opinion, Justice Abe Fortas said, “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

In 2021, the Supreme Court expanded its holding on student speech in Mahanoy Area School District v. B.L., where the justices held that a student’s off-campus Snapchat outburst did not warrant a suspension, even though it targeted a school-related activity that upset students at school.

The Judge’s Ruling

Becerra cited the Tinker precedent as guiding her decision. “Any discussion of a student’s freedom of speech in public schools certainly begins, and perhaps ends, with the Supreme Court’s decision in Tinker,” she wrote. “The Tinker standard still governs: student speech cannot be restrained unless it ‘materially disrupts’ or ‘involves substantial disorder or invasion of the rights of others.’”

She also pointed to Mahanoy as relevant. “The Court explained [in Mahanoy] that the ‘alleged disturbance’—five to ten minutes of discussion during an algebra class and some cheerleaders being ‘upset’ about the posts—did ‘not meet Tinker’s demanding standard, which requires ‘more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.’”

“For at least 60 years, the standard has been the same: student speech cannot be curtailed unless it materially disrupts the educational mission or involves substantial disorder or invasion of the rights of others,” Becerra reasoned as applying the precedents to her case.

“At this stage, Plaintiffs are substantially likely to prevail on their claim that Regulation 110(3) impermissibly prohibits Constitutionally protected speech by failing to limit its prohibition to speech that causes substantial disruption,” she determined.

Becerra pointed to language in Regulation 110(3) which states that “[t]o protect health, safety, and welfare and prevent disruption of University activities, protests, parades, marches, picketing, demonstrations, and other similar expressive activities are prohibited inside University building.” The FIU definition of "expressive activities” indoors elsewhere in its policy, she said, includes activities that are “exercises of free speech … protected under the First Amendment.”

Becerra held that Regulation 110(3) prohibited First Amendment expressive activities “regardless of whether they cause any disruption.” She also rejected FIU’s argument that the students were asserting “a nearly unlimited right to protest on government property.” Becerra wrote that Tinker requires “that restrictions on student speech be limited to those activities and expressions that cause material disruption. That is hardly a ‘nearly unlimited’ right; it is simply the law.”

Becerra also rejected claims from FIU that the “university (arguably all of it) is a limited public forum” subject to appropriate time, place and manner restrictions. “Here, FIU relies on its right to create rules to maintain order and decorum,” she noted. “In doing so, it invites the Court to conduct an analysis of the type of public forum at issue in order to assess whether Regulation 110(3) is valid.”

“The problem with FIU’s invitation is that it points the Court down a road not taken in any school speech case either by the Supreme Court or the Eleventh Circuit,” she noted.

For now, FIU has said it will comply with the injunction as it considers its options.

“FIU values freedom of expression and supports an environment that fosters civil discourse and the respectful exchange of ideas. At the same time, the university's responsibility is to maintain campus operations, support its educational mission, and ensure safety and access for all members of the university community. As this matter is pending litigation, we cannot comment further. We will comply with the court's order while considering our legal options,” it told CBS News.

Scott Bomboy is the editor in chief of the National Constitution Center.

The opinion issued on Monday drew two dissents and included a statement in the per curiam opinion that “the Court’s disposition of this application does not mean that any measure taken by the Government to implement the Order will necessarily be lawful. On that score, time will tell.”

The March 2026 executive order from President Trump requires the United States Postal Service to deliver mail-in ballots only to people on a federal list of voters. The opinion lifted an injunction issued by the United States District Court for the District of Massachusetts against the executive order in Trump v. California.

On July 27, 2026, the Justice Department asked the Supreme Court to stay a preliminary injunction issued by Judge Indira Talwani. Since then, 12 states had joined the Justice Department in requesting the stay in a separate application in Trump v. California, while 23 states supported the injunction blocking the executive order.

The Supreme Court’s Per Curiam Opinion

The Court cited several factors in its majority decision justifying its conclusion. The majority held that the District Court lacked jurisdiction to enter the judgment due to lack of standing and ripeness. The concept of standing requires that “an injury . . . is concrete, particularized, and imminent rather than ‘conjectural or hypothetical,’” the opinion stated. Ripeness, it said, “forbids federal courts to adjudicate disputes that are dependent on ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’”

In the executive order’s Section 2(a), the Secretary of Homeland Security is empowered to create State Citizenship Lists “derived from Federal citizenship and naturalization records, SSA records, SAVE data, and other relevant Federal databases.” The Court concluded that Section 2(a) is a “provision” that represents “an internal directive from the President to a subordinate. It imposes no obligations on the States, so they ‘suffer no concrete harm from’ it. And without concrete harm, there is no standing.”

The plaintiff states in the lawsuit also challenged Section 2(b), which permits the United States Attorney General to prosecute “state and local officials or any others involved in the administration of Federal elections who issue Federal ballots to individuals not eligible to vote in a Federal election.”

The Court concluded that the challenge to Section 2(b) failed the standing test because it only directed the Attorney General to “prioritize” investigations “of those who violate existing federal laws by issuing ballots to ineligible voters. Setting prosecutorial priorities lies within the President’s Article II power,” it held.

The plaintiff states also challenged Section 3, which directs the United States Postal Service to issue a notice of proposed rulemaking about limiting mail-in or absentee ballots to individuals who have been enrolled on a State-specific list. Section 3 also requires design changes to ballot envelopes, including identifiers for individuals on State Citizenship Lists.

“According to the [plaintiff] States, this internal directive demands that they overhaul their existing election procedures. It does not. Section 3 orders the Postal Service to initiate the process of proposing a rule that might bind the States in the future. It is not a proposed rule, let alone a final rule.  And it imposes no legal requirements on the States,” the Court said.

Citing those and other factors, the Court concluded that “the Order itself does not harm the States, so the District Court lacked jurisdiction to bar the Government from trying to implement it. And for the reasons discussed, that injunction is likely to irreparably harm the Government if it remains in place while the appellate process runs its course.”

The Dissents and Next Steps

In her dissenting opinion, Justice Sonia Sotomayor, joined by Justice Elena Kagan, noted that the Court’s majority opinion did not “address whether the President’s attempts to interfere with States’ administration of the November 2026 elections are lawful. Nor does it suggest that the Executive Branch has any constitutional or statutory authority to implement the President’s directives. Instead, today’s decision merely postpones adjudication of those challenges.”

“A commonsense reading of the Executive Order, corroborated by the Government’s own representations, makes clear that the respondent States face a sufficiently concrete and imminent injury to satisfy Article III,” she concluded.

Justice Ketanji Brown Jackson found fault with the per curiam opinion’s conclusion that the “Plaintiff States lacked a concrete injury for Article III purposes.”

“This ruling violates well-established precedents concerning this Court’s equitable discretion and needlessly injects chaos and uncertainty into the upcoming midterm elections,” Jackson said. “It also lets another shoe drop in the Kafkaesque nightmare that our precedents have been steadily creating for certain plaintiffs who seek to bring election-related challenges.”

Jackson added, “To be sure, the Court has not foreclosed States from challenging this blatantly unconstitutional Order. But it declines to explain when, exactly, is the right time to bring a meritorious election-rule claim challenging unconstitutional interference with electoral processes.”

The Court’s stay is pending the disposition of the appeal at the United States Court of Appeals for the First Circuit and the disposition of a petition for a writ of certiorari to the Court, if a writ is sought.

Trump v. California was on the Supreme Court’s interim or emergency docket, which deals with requests for injunctive relief and stays that arrive at the Supreme Court. Decisions on the interim docket by the justices occur without full briefings and arguments. A separate challenge could also soon appear on the same docket.

On August 11, 2026, District Court Judge Talwani ruled in a separate case, League of Women Voters of Massachusetts v. Trump, where she issued a nationwide injunction against the Trump executive order on constitutional grounds. On Monday, the League of Women Voters filed a motion with the district court in response to the U.S. Postal Service’s issuance of a final rule to implement Section 3 on August 21, 2026. In a separate statement, the League said, “[T]he district court’s order in our case blocking USPS from proceeding with the Rule remains in place, and we will fight to keep it that way or to secure new relief.”

While the challenges play out in court, there is a limited period to change procedures for the mail-in ballots process if they are required. In all, 37 states and the District of Columbia allow mail-in voting without electors citing a reason, and 10 states send out mail-in ballots at least 45 days in advance of election day.

Scott Bomboy is the editor in chief of the National Constitution Center.

On Monday, the American Civil Liberties Union and others announced they were filing a joint petition for a writ of certiorari to reverse the United States Court of Appeals for the Fifth Circuit’s decision in Nathan v. Alamo. The ACLU published the petition on its website. Justice Samuel Alito had extended the filing deadline for the petition until Wednesday.

On April 21, 2026, a deeply divided Fifth Circuit, in a 9-8 en banc ruling, held that a state law, S.B. 10, requiring the commandments classroom display did not violate the First Amendment’s Establishment Clause or Free Exercise Clause. These clauses read as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

In a statement issued after the Fifth Circuit ruling in April, the American Civil Liberties Union of Texas said it anticipated appealing the decision to the Supreme Court.

The joint petition for a writ of certiorari

In a press release accompanying Monday’s cert petition, the ACLU says that more than two dozen Texas families were challenging S.B. 10. In addition to the ACLU, the Americans United for Separation of Church and State, the Freedom from Religion Foundation, and Simpson Thacher & Bartlett LLP are involved in challenge. It also includes a related case, Cribbs Ringer v. Comal Independent School District, in the petition.

The petition asks the Supreme Court to decide two questions. The first is whether the First Amendment’s Establishment Clause forbids a state from “mandating the permanent, conspicuous display of a government-selected version of the Ten Commandments in every public-school classroom.”

The second is whether permanently displaying the Ten Commandments in every public-school classroom “interferes with parents’ Free Exercise Clause right to direct their children’s religious education and burdens children’s religious freedom.”

“The Court should grant the petition because the court of appeals, in upholding S.B. 10, flouted this Court’s binding precedents and gutted the religious freedom rights of public-school children and parents,” the petition claims. The ACLU asks the Supreme Court to act soon, since “no Article III barriers exist, the Fifth Circuit having reached the merits in full in Nathan.”

The Fifth Circuit’s decision in Texas

Central to the Fifth Circuit’s majority opinion are two key Supreme Court precedents. In Stone v. Graham (1980), a divided Supreme Court ruled that a Kentucky law requiring the Ten Commandments in public school classrooms violated the Establishment Clause. However, the Fifth Circuit majority also cited the Supreme Court’s 2022 decision in Kennedy v. Bremerton School District as rendering the Stone precedent obsolete.

Link: Read the Fifth Circuit Decision

In his majority opinion, Circuit Judge Stuart Kyle Duncan said the Fifth Circuit majority properly discarded Stone since Stone relied on a prior Supreme Court precedent, Lemon v. Kurtzman (1971). Under Lemon, the Supreme Court created a three-part test to determine if a law violated the Establishment Clause.

However, in Bremerton, Justice Neil Gorsuch established a new method to replace the Lemon test. In his majority opinion, Gorsuch cited the “shortcomings” associated the Lemon test’s “abstract, and ahistorical approach to the Establishment Clause. “

“This Court long ago abandoned Lemon and its endorsement test offshoot,” Gorsuch wrote in Bremerton. “In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’

Applying the Bremerton test, Duncan said “S.B. 10 looks nothing like a historical religious establishment. It does not tell churches or synagogues or mosques what to believe or how to worship or whom to employ as priests, rabbis, or imams. It punishes no one who rejects the Ten Commandments, no matter the reason.”

Duncan also disagreed with arguments that S.B. 10 conflicted with a recent Supreme Court decision, Mahmoud v. Taylor (2025), where a divided Supreme Court held that parents could opt their children out from public school instruction they believed violated their free exercise of religion rights.

In a dissent joined by six other judges, Circuit Judge Irma Carrillo Ramirez stated S.B. 10 clearly violated the Establishment Clause and the Free Exercise Clause. Ramirez objected to Duncan’s claim that the Supreme Court has overruled the Stone precedent, and she said that under Bremerton’s historical test, the Texas law was still unconstitutional.

She repeatedly cited the Supreme Court’s precedent in Lee v. Weisman (1992), where a divided court ruled that including prayers from a rabbi at a public-school graduation was a subtle and indirect religious coercion because students felt compelled to stand during the recitals.

The ACLU agrees with the minority dissent

In its petition to the Court, the ACLU echoes arguments from the Fifth Circuit’s Nathan dissent.

“Nearly fifty years ago, Stone v. Graham held that permanently posting the Ten Commandments in public-school classrooms violates the Establishment Clause. And Mahmoud v. Taylor recently reaffirmed that public schools burden parents’ free-exercise rights when they ‘substantially interfere with the religious development’ of their children or ‘pose ‘a very real threat of undermining’ the religious beliefs and practices the parent[s] wish to instill in the[ir] child[ren],” it argues.

“Notwithstanding these precedents, the en banc Fifth Circuit declared that Stone is no longer good law and upheld a Texas statute mandating the display of a state-selected version of the Ten Commandments in every public-school classroom,” it concludes.

It also cites the holding in Lee v. Weisman that acknowledged there are “heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.”

The ACLU also asks the Supreme Court to consider the national implications of the Fifth Circuit’s decision. “In the last two years, legislatures in two dozen states have either enacted or considered proposed laws regarding the display of the Ten Commandments in public schools, with more sure to follow absent this Court’s intervention.”

The petition concludes with a plea for a full Supreme Court review of the case on the merits with oral argument, or that the Supreme Court reverse or remand the judgments in Nathan and Cribbs Ringer back to the appeals court to apply the precedent in Stone.

Given the case’s national importance, it will be watched closely as the justices consider accepting cases for its next term starting in October 2026.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

On Aug. 13, 2026, House Minority Leader Hakeem Jeffries (D-NY) spoke at the National Association of Black Journalists conference about the various changes he felt were needed at the Court. Jeffries was upset with the Court’s April 2026 decision in Louisiana v. Callais, which struck down a state law that allowed the use of race as a determining factor in creating election districts, and a related decision about districts in Alabama, Allen v. Millgan (2026)

“The Supreme Court steps in and overturns that decision [in Alabama], it tells me that they don't have the credibility for us to move forward, acting like everything is okay and the status quo is acceptable. It's not. And we're going to push for dramatic reform of the Supreme Court,” Jeffries said.

Among the various Supreme Court changes proposed recently, and in prior years, are establishing term limits for the justices; changing the number of justices on the bench; creating an enforceable ethics code for justices; and regulating cases appearing on the Court’s emergency or interim docket.

Some of these ideas are hardly new. In the aftermath of the 2020 election, President Joe Biden formed a presidential Supreme Court commission to study possible reforms. In 2015, Republican presidential candidate Mike Huckabee openly discussed Supreme Court term limits during his primary campaign. There was a robust academic debate on term limits nearly a decade earlier in the aftermath of Chief Justice William H. Rehnquist’s death.

And famously, President Franklin D. Roosevelt fell short in his 1937 attempted to change the number of justices on the Supreme Court.

Term Limits for Supreme Court Justices

Limiting the time served by the justices on the Supreme Court is perhaps the idea most discussed among reformers.

Article III of the Constitution defines the Supreme Court’s basic role in the separation of powers and the lifetime tenure of the justices. “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” it states. And the justices serve as long as they show “good behavior” in office.

In Federalist 78, Alexander Hamilton supported the idea of lifetime service from the justices to serve the principle of judicial independence. “The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government,” Hamilton wrote. “It is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”

The 2021 Biden commission report identified several arguments made by Supreme Court term limits supporters. Supporters argued that the United States is the only democracy without term and age limits for high court justices. Also, many supporters believed a staggered system where each justice was limited to 18 years on the bench would allow a president to appoint two justices during a four-year presidential term, thus reflecting the voice of the electorate in choosing the president and senators who take part in the nomination and confirmation process.

Lifetime tenure supporters countered that the Constitution’s text and history strongly supported the system of service during “good behavior” in office, and a staggered system with term limits would make the Supreme Court nomination process more political as a recurring election issue.

One of the key challenges for supporters of Supreme Court term limits is the method of implementing change. The Congressional Research Service, in a December 2023 report, raised questions about the ability of Congress to set term limits by statute and not by a constitutional amendment. “Because Article III guarantees that Supreme Court Justices ‘shall hold their Offices during good Behaviour,’ most commentators agree that Congress could not impose a term or age limit for Supreme Court Justices without amending the Constitution,” wrote legislative attorney Joanna R. Lampe.

Others argue that Congress can pass laws to create an active/senior justice model where justices serving on the Supreme Court would become senior justices after 18 years and move on to other duties in the judicial system. Justices with senior status would be fully compensated members for life and able to exercise official duties on and off the bench for as long as they choose.

If a term limits law survived the Senate filibuster and passed Congress, opponents could still bring a challenge to the law in court.

Changing the Number of Justices and Other Ideas

Unlike the idea of term limits, the Constitution grants Congress the power to choose how many justices serve on the Supreme Court—a power that Congress has exercised many times across American history. The Judiciary Act of 1789 established the first Supreme Court, when Congress decided that six justices should serve. The number of justices on the Court varied from 1802 to 1869. A Judiciary Act sponsored by Sen. Lyman Trumbull in 1869 put the number at nine Justices. Since then, the number has remained stable.

Some proponents of reform would like to see the number of Supreme Court justices increased for several reasons. During a House hearing in May 2026, Rep. Jamie Raskin (D- Md,) offered one rationale for a change to 13 justices to match the number of federal circuits in America. But a bill changing the size of the Court is still subject to a filibuster and would face opposition.

In 1937, the Judicial Procedures Reform Bill sponsored by President Roosevelt failed in the Senate, where the Democrats held 76 out of 96 seats. The bill would have allowed the president to appoint an additional justice for every sitting justice who was over 70 years of age.

Also, creating an enforceable ethics code for the justices faces its own set of problems. In November 2023, the Supreme Court adopted a voluntary code of conduct. However,  the ability of Congress to sanction the justices is limited by the Constitution. Article III of the Constitution bars Congress from altering the justices’ compensation. The House could impeach a Supreme Court justice, as it did when Justice Samuel Chase faced charges in the Senate in 1804, but the removal decision would still be left in the hands of the Senate. Chase was acquitted by the Senate, setting a precedent that justices shouldn’t face impeachment for political reasons.

Congress could have role in determining how cases are presented to the Court’s non-merits interim or emergency docket. According to the Congressional Research Service, “Judicial procedures are generally based on statutes or court-created rules rather than constitutional mandates, and Congress can alter those procedures through legislation.” In May 2026, Rep. Raskin offered several reforms that would require the Court to explain in writing how it issued orders on the docket and would create a panel federal appellate judges to decide which emergency cases go before the justices.

Such efforts likely would face resistance in Congress. Reforms also could raise separation of powers issues, especially about the ability of Congress to compel the Supreme Court to write non-merits opinions on short notice.

Scott Bomboy is the editor in chief of the National Constitution Center.

Since late July, several lower-court decisions have added urgency to the Supreme Court to act in some fashion in response to the legal dispute over the executive order (EO).

On July 27, 2026, the Justice Department asked the Supreme Court to stay a preliminary injunction issued by the United States District Court for the District of Massachusetts in Trump v. California. Since then, 12 states have joined the Justice Department in requesting the stay in a separate application in Trump v. California, while 23 states support the district court’s injunction against the executive order.

Then, on July 28, 2026, the United States Court of Appeals for the District of Columbia Circuit, in DSCC v. Trump, denied a preliminary injunction blocking the same executive order in a per curiam opinion.

And on August 11, 2026, the same judge who issued the Trump v. California injunction, expanded its impact in a separate case, League of Women Voters of Massachusetts v. Trump. United States District Judge Indira Talwani has issued a nationwide injunction against the executive order on constitutional grounds. Talwani also said the District of Columbia appeals court did not consider proposed Postal Service rules to enforce the executive order, which she felt was critical to the case.

Given the deadlines for preparing ballots for the November elections, all parties involved seek a quick resolution by the Supreme Court. “Every day that the district court’s injunction remains in place, it blocks the government’s ability to finalize and implement the President’s proposed policies,” claimed Solicitor General D. John Sauer in a brief filed on Aug. 4, 2026.

The executive order and the lower court’s decisions

The dispute over Trump v. California is currently on the Supreme Court’s interim or emergency docket, which deals with certain requests for injunctive relief and stays that arrive at the Supreme Court. Decisions on the interim docket by the justices usually occur without full briefing and oral argument.

Executive Order 14399, Ensuring Citizenship Verification and Integrity in Federal Elections, includes several provisions that the Massachusetts district court required injunctive relief. In the executive order’s Section 2, the Secretary of Homeland Security is empowered to create State Citizenship Lists “derived from Federal citizenship and naturalization records, SSA records, SAVE data, and other relevant Federal databases.” States can suggest “modifications or amendments to the State Citizenship List.” The United States Attorney General can also prosecute “state and local officials or any others involved in the administration of Federal elections who issue Federal ballots to individuals not eligible to vote in a Federal election.”

In Section 3, the United States Postal Service “shall not transmit mail-in or absentee ballots from any individual unless those individuals have been enrolled on a State-specific list.” The order also requires design changes to ballot envelopes, including identifiers for individuals on State Citizenship Lists.

In her June 25, 2026, ruling, District Judge Talwani held that “Sections 2 and 3 of the EO are legally void as they are ultra vires and unconstitutionally violate the separation of powers.” (The term ultra vires means “beyond the powers.”) “The creation of the Confirmed Citizen Lists is ultra vires because the President lacks any authority to compile voter lists for each State,” Talwani determined.

Talwani enjoined the Trump administration “from implementing or giving effect to Sections 2 and 3 of the EO with respect to the November 3, 2026, or any earlier federal election in the Plaintiff States.”

 On July 7, 2026, Talwani denied a stay pending appeal. The First Circuit Court of Appeals denied a stay pending appeal on July 25, 2026. The majority decision from the three-judge panel determined that the executive order “directs unprecedented levels of involvement by federal officials in how states administer elections. In doing so, the EO plainly affects the Plaintiff States’ ‘sovereign power . . . to create and enforce a legal code’ for elections.”

Responses to the Supreme Court

In his response to the Supreme Court, California attorney general Rob Bonta argued the executive order was an attempt to alter election rules too close to an election being held. He also pointed to what he saw as a clear constitutional conflict. “The Framers entrusted the States and Congress—not the President—with the responsibility to set rules for federal elections. And Congress has not authorized the EO’s unprecedented directives.” Bonda also said the case’s eventual timeline supported an injunction as the issue continued in court beyond midterm elections.

Solicitor General Sauer in his reply to the Court pointed to a “parallel” opinion on July 28 in DSCC v. Trump, which upheld the denial of a preliminary injunction. In that case, Democratic Party leaders sought a preliminary injunction to block Trump’s mail-in voting executive order. The U.S. Court of Appeals for the District of Columbia held that while the “Plaintiffs have identified a number of serious questions concerning the lawfulness of proposed actions if implemented on the threshold of the upcoming federal election, this case likely is unripe for review in its present posture.” The court concluded that “[i]f the defendant agencies take steps to implement the Executive Order in a manner that violates federal law or the Constitution, Plaintiffs can promptly seek relief.”

“The same analysis applies here,” Sauer reasoned. “Like the DSCC plaintiffs, the respondent States rest their challenge on speculation about what impact the Executive Order would have if it were ultimately implemented in violation of federal law.”

Sauer argued separately that the executive order represented “modest and commonsense steps, consistent with federal law,” taken “to help States ensure that only U.S. citizens vote in federal elections and to facilitate the enforcement of federal law, including laws involving election fraud.”

Judge Talwani’s latest ruling

In her August 11 opinion in League of Women Voters of Massachusetts v. Trump, Talwani noted that the Justice Department had “asked this court and others to postpone judicial review on standing and ripeness grounds” and decide the constitutional questions after the Postal Service issued a final ruling on envelope designs and voter list verifications.

Instead, Talwani said the case’s urgency required a ruling on the constitutional questions now. “The court finds it prudent to review the EO now, where less than 90 days pend before the midterms and the millions of citizens who rely on mail voting require clarity as to how or whether they will vote in November.”

Talwani repeated her findings in July 2026 that the executive order violated the Constitution’s protection of the separation of powers. “The court has already answered and will again resolve the question clearly and affirmatively. The executive branch has no authority to regulate elections.” She cited Article 1, Section 4, Clause 1, the Elections Clause of the Constitution, which reads that the individual states and Congress have rule-making powers over federal elections.

“Where the EO is presently causing confusion and threatening both increasing chaos and an erosion of trust in our democracy, the court finds that enfranchisement heavily outweighs the executive’s attempt to unconstitutionally insert itself into the domain of election regulation,” she concluded.

Whatever action the Supreme Court takes in Trump v. California will be closely watched, given the proximity of general elections. In all, 37 states and the District of Columbia allow mail-in voting without electors citing a reason, and 10 states send out mail-in ballots at least 45 days in advance of election day. And as both sides argue, there will be a limited period to change procedures for the mail-in ballots process.

Scott Bomboy is the editor in chief of the National Constitution Center.

In Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, the justices are presented with several questions involving the federal government’s power to preempt environmental lawsuits from local governments filed in state court. In Article VI, Clause 2, the Supremacy Clause states that “This Constitution, and the Laws of the United States … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

In this case, Boulder County and the city of Boulder in Colorado sued Suncor Energy, Suncor Energy Sales, and Exxon Mobile in 2018. Boulder claimed a state court could compel energy companies to share “a portion of the financial burden their communities must bear in coping with an altered climate brought about in part by petitioners’ tortious conduct.” Critics of Boulder’s strategy labeled the cost-sharing burden as an indirect carbon tax.

A state trial court agreed with Boulder that it could seek a remedy within the state’s legal system. The Colorado state Supreme Court upheld the trial court decision, noting that the lawsuit centered on “deceptive conduct and ‘upstream production activities,’ and it was not a direct attempt to regulate greenhouse gas emissions.”

Suncor appealed to the United States Supreme Court, which accepted one question presented by Suncor: “Whether federal law precludes state-law claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate.”

In addition, the justices added a second question for oral argument: “whether this Court has statutory and Article III jurisdiction to hear this case.”

The basis of the conflict

In its petition to the Court, Suncor noted that “energy companies that produce and sell fossil fuels are facing numerous lawsuits in state courts across the nation seeking billions of dollars in damages for injuries allegedly caused by the contribution of greenhouse-gas emissions to global climate change.”

Suncor stated that the Boulder lawsuit is similar to actions filed by “state and local governments nationwide” in state courts over global climate change. It disagreed with Boulder’s argument that the federal Clean Air Act had displaced preexisting federal common law in such cases, allowing a situation where “state tort law presumptively could regulate interstate emissions.”

“There are few, if any, more consequential questions pending in the lower courts concerning the relationship between state and federal law,” Suncor stated. It asked the Court to “address whether the state-law claims asserted by dozens of states and municipalities can even proceed—and to do so before the energy industry is threatened with potentially enormous judgments.”

Initially, Boulder waived its right to reply to Suncor’s appeal, but the Supreme Court asked on Sept. 9, 2025, for a reply. Boulder filed its first reply brief on Nov. 10, 2025. It claimed that the justices had already denied review of similar questions presented by Suncor in other cases, including Sunoco LP v. City & County of Honolulu (2025). “In the recent Honolulu case, granting interlocutory review would require the Court to wade into a thicket of preliminary questions that promise nothing but rabbit holes and dead ends,” Boulder claimed.

Boulder also noted that the Supreme Court denied Suncor’s appeal within the federal court system in 2023, with Justice Brett Kavanaugh dissenting, before the case headed to the state court system. It argued the Supreme Court lacked the authority to review an interlocutory decision from the Colorado Supreme Court, and even if the Supreme Court accepted other arguments in the case, the justices “could not reach the merits without first resolving complex questions of Article III jurisdiction.”

Boulder also rejected various other arguments that would allow federal precedents to preempt the powers of state courts. “States have always had the authority to provide remedies for in-state injuries arising from out-of-state conduct, subject to Due Process limitations on personal jurisdiction and the restrictions of other specific constitutional provisions (e.g., the Commerce Clause).”

“Whether to displace that state law, and how best to balance the inevitable competing interests, is a policy question for Congress, not one to which the Constitution provides an implicit answer for courts to divine on their own,” Boulder concluded.

Recent claims from the parties involved

In a brief from Deputy Solicitor General Sarah M. Harris, the United States supported Suncor’s case. “Can one city wield one State’s law to dictate how the rest of the world must address a global problem with global effects? The Constitution supplies the answer: Absolutely not,” Harris argued. She also noted that 60 states and localities have filed nearly identical lawsuits against fossil-fuel producers.

“In our constitutional system, States are separate, coequal sovereigns within a unitary federal system. Each State retains powers to regulate matters within its own borders. However, no one State can superimpose its own regulatory preferences on the rest—least of all to address a global problem that exists almost entirely outside its borders and affects the world at large,” she concluded. Harris believed Congress in passing the Clean Air Act preempted Boulder’s claims that state courts controlled this case.

In a brief from May 2026, Suncor repeated several basic arguments. First, it asserted that the use of “state tort law to address the effects of global climate change is incompatible with the structure of the Constitution.” Suncor cited court Supreme Court precedents holding that using “a single State’s law to resolve an inherently interstate dispute contradicts the basic scheme of the Constitution.”

Suncor also believed the Clean Air Act closed out any argument that state-tort laws applied to climate change cases. “The Act establishes a comprehensive statutory scheme for the regulation of air quality across the United States. Respondents’ state-law claims undermine that scheme by subverting the primacy of federal regulation and aggrandizing the limited and defined role afforded to the States.”

In a brief filed on Monday, Boulder repeated its arguments that Suncor and the United States wrongly interpreted the Clean Air Act. “Nothing in the Clean Air Act preempts [our] claims. The statute regulates point-source emissions, not the upstream production, sale, or marketing of products that later produce them. It certainly does not charge the EPA with regulating deceptive marketing of fossil fuels.”

Boulder also claimed that Suncor failed to establish that the Supreme Court had Article III jurisdiction in the case. “This case should begin and end with jurisdiction,” it said. “Article III and the final judgment rule guard against needless state-federal friction by delaying this Court’s review until a final judgment injures a party.” It added that the case was “far from final judgment” in the state legal system. “The Colorado Supreme Court has not yet even decided whether respondents state a claim under state law,” it added.

One measure of Suncor v. Boulder’s importance is that since the justices accepted the case on February 23, 2026, more than 70 “friend of the court” or amicus briefs have been filed. Among those filing briefs were House Majority Leader Steve Scalise, Senator Ted Cruz, numerous legal scholars, interest groups, tribal nations, states and local governments.

Scott Bomboy is the editor in chief of the National Constitution Center.

In RiseandShine Corporation v. PepsiCo, Inc., canned coffee maker Rise Brewing sued beverage giant PepsiCo after PepsiCo marketed a morning energy drink called Mtn Dew RISE. Alleging violations of the Lanham Act, which regulates trademarks, Rise Brewing claimed that the similarity of two products’ names and drinks’ packaging confused consumers and caused significant harm to its business.

A district court issued a temporary injunction against PepsiCo, but the Second Circuit Court of Appeals vacated the injunction. The appeals court concluded that the lower court made two legal errors in determining the strength of Rise Brewing’s trademark and that the packaging of the two products was not similar when considered in light of existing precedents. The case was returned to the lower court.

The district court then issued a summary judgment for PepsiCo, citing the Second Circuit's conclusions. Rise Brewing petitioned the Supreme Court to review the case, citing other circuit court decisions that, it argued, conflicted with the Second Circuit’s reasoning.

The question presented to the Supreme Court is whether the facts in a trademark dispute should be evaluated as a “question of fact” by a jury or as a “question of law” by a judge. The Supreme Court accepted Rise Brewing’s petition for a writ of certiorari on June 29, 2026.

The Constitution, Trademarks, and the Lanham Act

The Lanham Act of 1946 serves as the basis for modern trademark law in the United States. The act derives its power from the Constitution’s Commerce Clause. In Article 1, Section 8, Clause 3, the Constitution grants Congress the power to “regulate commerce with foreign nations, and among the several States, and with the Indian tribes.”

Congress passed trademark acts in 1881 and 1905, which were greatly strengthened and centralized in 1946. A House report in 1946 accompanying the Lanham Act pointed out several reasons for expanded legislation: “One is to protect the public so it may be confident that, in purchasing a product bearing a particular trademark which it favorably knows, it will get the product which it asks for and wants to get. Secondly, where the owner of a trademark has spent energy, time, and money in presenting to the public the product, he is protected in his investment from its misappropriation by pirates and cheats.”

The report cited Justice Felix Frankfurter’s opinion in Mishawaka Rubber and Woolen Company v. S.S. Kresge Company (1942). “The protection of trademarks is the law's recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them,” he wrote. “If another poaches upon the commercial magnetism of the symbol he has created, the owner can obtain legal redress,” Frankfurter concluded.

The Lanham Act and Consumer Confusion

The Lanham Act considers trademarks as words, names, symbols, devices, and other forms of communication that distinguish one person's goods from those made or sold by others. An important factor in trademark disputes is the likelihood of a “violation involving the sale, distribution, or advertising of goods or services in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.”

According to the United States Patent and Trademark Office, failing a likelihood of confusion test is the most frequent reason trademarks are rejected. The test is also cited in many lawsuits over trademark infringement. In this case, Rise Brewing’s infringement claim was considered by the district court using the Polaroid test, a common multi-factor trademark standard, based on the Second Circuit’s decision in Polaroid Corp. v. Polarad Electronics Corp. (1961). In November 2021, the U.S. District Court for the Southern District of New York weighed different factors under the Polaroid test. Judge Lorna G. Schofield issued the preliminary injunction against PepsiCo., citing the inherent strength of Rise’s trademark as a key factor under Polaroid.

In the Second Circuit’s decision from July 2022, Judge Pierre N. Leval concluded that the district court’s decision was “premised on two significant errors.” Leval noted that Rise Brewing needed to show that a “significant number of consumers are likely to be misled or confused as to the source of the products in question.” He said the lower court was incorrect in its analysis of the trademark’s strength.

“While this Court has said, at times, that the classification of a mark is a factual matter, we have also stated that there is an undeniable legal element in the determination of how much strength a given mark commands,” wrote Judge Leval.

“The close associations between the word “Rise’ and coffee constituted a weakness of the mark under the trademark law, which reduced, rather than advanced, Plaintiff’s likelihood of success on the merits. Because the word ‘Rise’ is so tightly linked with the perceived virtues of coffee, the mark is inherently weak and commands a narrow scope of protection,” he concluded.

The Petition to the Supreme Court

In its final petition to the Supreme Court, Rise Brewing argued that “the Second Circuit vacated the injunction based on its own view that Rise’s mark was an inherently weak ‘cliché.’ Bound by that determination on remand, the district court granted summary judgment to PepsiCo on the merits, rejecting as a matter of law a case the court previously would have sent to a jury.”

Both sides disagreed on the premise that other circuit courts are divided on the question. PepsiCo argued that there is no circuit split. Rise Brewing insisted that 12 circuits agreed with its reasoning and that the Second Circuit was an outlier.

Solicitor General D. John Sauer offered another viewpoint. “Granting the petition for a writ of certiorari to determine the proper characterization of the inherent-strength subfactor, in isolation from the larger multi-factor likelihood-of-confusion analysis, would be in tension with this Court’s usual practices,” Sauer said. “Further review is not warranted.”

The justices accepted the appeal after three private conferences. The case is focused on a single question: “Whether trademark strength is a question of fact in a likelihood-of-confusion analysis under 15 U.S.C. § 1114 [the Lanham Act].

Among court observers, the belief is that the case outcome might have a broad impact on law involving trademark disputes. Currently, federal circuits use differing likelihood-of-confusion analysis tests in such disputes.

“It is difficult to predict the Supreme Court’s leanings either way, but a decision will impact almost all trademark cases going forward,” wrote Adam Baker, of Bradley Arant Boult Cummings LLP, in the National Law Review.

Scott Bomboy is the editor in chief of the National Constitution Center.