In Beaird v. United States, the Court is considering a sentencing process based on its precedent in Stinson v. United States (1993), which has defined the level of deference in criminal sentencing given to federal judges. The U.S. Sentencing Commission, an independent agency in the judicial branch of government, publishes Federal Sentencing Guidelines for judges to follow, along with commentary to help judges interpret the guidelines.

In Stinson, a unanimous Court gave great deference to the commentary in sentencing decisions, holding that “the Guidelines Manual’s commentary which interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”

Kendrick Jarrell Beaird is challenging the Stinson precedent. Beaird filed his appeal in forma pauperis, under the conditions of a Court rule that allowed him to waive filing fees with the representation from public defenders.

The Path to the Court

Beaird was arrested for possession of a gun following a felony conviction. A Northern District of Texas grand jury indicted Beaird under 18 U.S.C922(g)(1), a statute that punishes someone previously convicted of a felony from possessing a firearm that has moved in their possession via interstate commerce. Beaird failed at the trial court in his claims alleging violations of the Second Amendment and Commerce Clause, and he pleaded guilty.

A federal judge consulted the Federal Sentencing Guidelines for someone possessing a “semiautomatic firearm that is capable of accepting a large capacity magazine.” Beaird was found in possession a Glock capable of holding 17 rounds of ammunition. The Sentencing Commission’s official commentary on the federal guidelines called for 63 to 78 months of imprisonment for possession of a semiautomatic firearm that “had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition.”

The judge sentenced Beaird to 72 months of imprisonment, to be followed by three years of supervised release. In his appeal, Beaird’s defense argued that commentary on the sentencing guidelines had improperly expanded the definition of a large-capacity magazine. The Fifth Circuit Court of Appeals upheld the decision and sentencing. In taking this case, the Supreme Court limited arguments to the holding in Stinson as it applied in Beard’s case.

Beaird’s appeal took several turns. Initially, the Solicitor General responded to the Court that Beaird’s petition should be denied. But once the Court accepted the case limited to the Stinson guidelines precedent, the United States asked the Supreme Court to vacate the appeals court decision so the lower courts could consider the case focusing on the Stinson precedent. Then, the Supreme Court moved to appoint an amicus curiae, Anthony J. Dick of Washington, D.C., to argue the position that Stinson correctly defined the deference that courts must give to the commentary on Sentencing Guidelines.

The Arguments at the Court

During arguments, public defender Kevin Joel Page, representing Beaird, faced repeated questions from the justices about changing the Court’s precedent in Stinson and granting more discretion to federal judges in sentencing.

“The proper rule for deference to guideline commentary is no deference. Nothing in the text of the Sentencing Reform Act suggests that courts must ever defer to commentary when interpreting a guideline, let alone defer . . . according to the extreme rule of Stinson,” argued Page.

“What concerns me about your arguments is that you’re suggesting that they are separable in some way which is really not the way in which the guidelines were devised,” said Justice Ketanji Brown Jackson, who served as assistant special counsel of the U.S. Sentencing Commission from 2003 to 2005 and as a commissioner and vice chair from 2010 to 2014.

Jackson told Page that his argument represented “a fundamental misunderstanding” of the guidelines and commentary, which she said are linked together. “When you are a judge, you’re using both to reach the right answer under the guidelines, and there is a right answer as to what the guideline range is,” she said.

While Page noted Stinson and other precedents allowed a judge to ignore the commentary if it is not consistent with the guidelines for sentencing, Jackson believed Page’s position allowed a judge to ignore both.

Justice Sonia Sotomayor seemed skeptical of Page’s arguments, stating “you’re creating a sea of confusion for district court judges to fill in the blanks.”

Several justices pointed to the Court’s precedent in United States v. Booker (2005), which held that the guidelines were advisory and not mandatory. Justices Clarence Thomas and Neil Gorsuch asked Deputy Solicitor General Eric J. Feigin how the Court should account for the Booker precedent in this case.

“We do not think that the commentary as it’s been promulgated by the Commission can either be viewed right now as a policy statement or as a guideline,” Feigin told Gorsuch.

Justice Samuel Alito wondered what would happen in the Court overturned Stinson and cases had to be reconsidered. Feigin countered that, “I think we’d argue that in a lot of those cases, the courts reached the correct result notwithstanding having referenced the commentary.”

The Court-appointed amicus curiae, Anthony J. Dick, echoed the Court’s landmark decision in Marbury v. Madison in his opening statement. “It is emphatically the province of the judiciary to say what the law is, but the advisory sentencing guidelines are not the law. They are advisory. As a result, when interpreting the guidelines, the question is not what the law is but, rather, what is the non-binding advice that the Commission is offering about what type of sentence should be imposed?”

“Stinson should be upheld. There's no reason to create the chaos that would come from overruling it,” he concluded.

Dick faced extensive questioning from Justice Neil Gorsuch, who disagreed with Dick’s characterization of Stinson. “It’s a nice reconceptualization of Stinson, but that's not what Stinson said,” Gorsuch noted.

“What about the topsy-turvy problem that we have binding commentary—advisory guidelines?” Gorsuch asked Dick in one exchange, referencing the Booker precedent. After Dick refuted any problem, Gorsuch remarked, “[Y]ou say this is all good with Booker, but, boy, the more you make these things binding, you’re creeping up to a Booker problem again.”

After arguments concluded, Chief Justice John Roberts thanked Dick for his service as amicus curiae.

For now, the justices will consider the Stinson precedent in context of several other precedents mentioned during arguments that could affect how federal judges take Sentencing Commission’s commentary into account. The question is whether Stinson will remain as the basis for such precedents going forward, or whether the Court will create a new test in its place clearly allowing judges more latitude in sentencing decisions?

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

In my 20 years covering the Supreme Court for the Associated Press, I tried very hard to predict how cases would come out based on the argument I had just watched, or more recently, listened to. I thought it was my duty as a reporter to tell my readers where the justices appeared to stand after questioning the lawyers. After all, the written briefs already provide extensive elaboration of each side’s arguments. The one new thing to be gleaned from an hour or two in the courtroom was what the justices thought.

Most of the time, that worked fine. Justices who appear to be on one side or another usually are, though I can recall a few cases where my predictions didn’t reflect the ultimate outcome. Then, too, sometimes I just couldn’t identify five votes for any particular outcome.

Alas, that was the situation in the first argument of the new term in a major environmental case. Clocking in at 1 hour and 47 minutes, the arguments just did not provide the clarity I look for.

In Suncor Energy (U.S.A.) Inc. v. Commissioners of Boulder County (25-170), the court is weighing whether local governments can pursue lawsuits against energy companies for harms associated with climate change. Potentially billions of dollars and dozens of lawsuits hang on the outcome.

Energy giants Suncor Energy, which operates the only two refineries in Colorado, and Exxon Mobil Corporation are appealing a divided ruling from the Colorado Supreme Court in favor of the City of Boulder and Boulder County, Colorado that has allowed the suit to go forward for now.

The state court rejected the companies’ claim that federal law prohibits Boulder’s suit. The energy industry is hoping that the high court will shut down the Boulder case as well as other lawsuits that have popped up around the country. The companies are facing around three dozen lawsuits brought by more than 60 municipalities, lawyer Kannon Shanmugam told the court.

Boulder argues that its lawsuit fits well within the tradition of state court claims that the court has allowed to proceed, including those involving tobacco and opioids.

The Arguments at the Court

Chief Justice John Roberts and Justice Elena Kagan suggested that there was nothing unusual about the Boulder lawsuit, in questions to Shanmugam and Deputy Solicitor General Sarah Harris.

“I guess I'm not quite sure what makes this situation different from those, all those other ones, where we've allowed them to proceed in state court,” Roberts said.

Kagan likened the Boulder case to the third chapter of a book, in which tobacco and opioid litigation were the first two chapters.

“Mr. Shanmugam, in multiple respects, this suit appears to be based on the old 1990s tobacco suits that were brought by states and local governments basically saying that big tobacco had made representations, misrepresentations, which had caused people to use the product in —to overuse the product, causing harm to those governments. I suppose the opioid litigation more recently follows the same model,” Kagan said.

Yet later in the argument, in questions to Kevin Russell, representing Boulder, Roberts and Kagan raised doubts about the viability of the lawsuit, referring to prior Supreme Court decisions that have precluded state action over interstate air and water pollution unless Congress says otherwise. “I'm sorry to interrupt but isn't your suit an attempt to evade those decisions?” Roberts said, “It's really—it's an effort to reduce emissions.”

Kagan said one way to resolve the case might be to say that the Clean Air Act sets up a complicated scheme to regulate greenhouse gas emissions that does not include the kind of suit at issue in the Supreme Court. “And so why not just say: This really does just get in the way of how the—of how Congress decided to regulate greenhouse gases or any other air quality standards?” Kagan said.

The toughest questions Russell faced came from Justice Brett Kavanaugh, who signaled support for the companies’ arguments. “It’s going to bankrupt—you know, if there are enough of these, bankrupt these—these various defendants and certainly other defendants out there,” Kavanaugh said.

There is a second question in the case that could be an off-ramp for the justices, whether the court should even be hearing the case now. But it appeared to interest just two of the court’s justices, Sonia Sotomayor and Ketanji Brown Jackson. Justice Clarence Thomas also asked about the court’s jurisdiction to hear the case, but his questions seemed intended to give lawyers for the companies and the Trump administration the chance to explain why the matter is properly before the court.

Only eight justices heard the case, after Justice Samuel Alito recently recused himself. Alito didn’t provide an explanation at the time, but he has since told multiple media outlets that he was influenced by the arguments made by the companies and their supporters that devastating consequences would follow a decision to allow the lawsuit to proceed. Alito and his wife own stock in energy companies, though not ones that are parties in this case.

Alito’s decision to step aside means that Boulder, which won in the Colorado state court, can prevail with just four votes. A 4-4 tie would affirm the Colorado high court ruling without setting a national precedent. From the Supreme Court’s perspective, it would be a huge waste of time, after having solicited and ingested dozens of briefs, and set aside precious time on its calendar only to fail to set the nationwide rule it presumably took the case to establish.

We’re not likely to know the outcome for several months.

Mark Sherman is a regular contributor to Constitution Daily. Sherman covered the Supreme Court for the Associated Press for 20 years, and he has previously written about the Justice Department, health care, and national politics.

Editor’s Note: Blog posts written by contributors reflect the analysis and opinions of the authors, and do not represent the opinions or positions of the National Constitution Center.

On Oct. 1, 2026, the Court granted a petition for a writ of certiorari in Missionaries of Saint John the Baptist v. Joel Frederic. St. John claims the zoning decision placed a “substantial burden” on its First Amendment free exercise rights, citing a provision under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

In return, Joel and Elizabeth Frederic, neighbors to the proposed site, argue the Kentucky Supreme Court correctly interpreted the zoning regulations of Park Hills, Kentucky, to exclude the planned grotto honoring the Virgin Mary. The state court ruled St. John had alternative options for its grotto project, and the zoning regulations were not an unreasonable burden.

Now, the Supreme Court will review the project in the context of the federal RLUIPA statute and basic constitutional zoning powers.

Local Zoning and Federal Religious Protections

The ability of local governments to pass and enforce zoning laws was affirmed in the Supreme Court’s landmark decision in Village of Euclid v. Ambler Realty Co. (1926). Ambler Realty owned property targeted for industrial development in Euclid, a suburb of Cleveland. The Euclid council passed a zoning law that restricted such industrial developments, and Ambler sued on 14th Amendment due process and equal protection grounds.

Writing for a divided Supreme Court, Justice George Sutherland held that “the segregation of residential, business, and industrial buildings” had many public safety benefits. Sutherland said that before a zoning ordinance could be declared unconstitutional it had to be proven to be “arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”

These general police powers of state and local governments are affirmed by the principle of federalism and the Constitution’s 10th Amendment, which states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

When Congress passed RLUIPA in 2000, the law contained language intended to protect the free exercise of religious rights in the context of state and local zoning laws.

According to the Justice Department, RLUIPA prohibits any land-use regulations that impose a “substantial burden” on the religious exercise of a person or religious assembly or institution except where justified by a “compelling governmental interest” and when the government pursues that interest in the least restrictive way possible. In legal terms, this is known as a strict security test that presents a very high bar for the government to overcome.

In its petition to the Supreme Court, St. John stated the Kentucky Supreme Court’s decision lacked adequate justification for the restrictions placed on the grotto project, and it was treated differently as a religious institution compared with a secular institution.

St. John owns a church, Our Lady of Lourdes, that was built in 1930. Although the church is located in a residential zone, the church existed before Park Hills had a zoning code, and it is permitted as a nonconforming use as a religious institution in the residential area. Under general zoning concepts, a property owner can continue with an unconforming use until the use is different or the property is abandoned.

The church later entered into a lease agreement with a trust for a property that adjoins the church. St. John planned to use the adjacent property for the grotto. St. John applied to the Park Hills Board of Adjustment for “permission to install a customary accessory structure (i.e. grotto) to the existing conditional use for a place of religious worship,” according to court records. After a public hearing, the Board of Adjustment granted a conditional use permit and setback variances on the condition the property was deeded to St. John.

The Frederics filed a complaint about the Board of Adjustment decision, noting that the grotto could only be situated on a property adjacent to an arterial street under the local zoning code, which the church was not on an arterial street. The Frederics were concerned about increased community traffic. The circuit court ruled in favor of St. John, but an appeals court unanimously reversed the lower court’s ruling. It held that the Board of Adjustment exceeded its statutory zoning authority in granting St. John a conditional use permit and variances since it expanded the scope of the church’s preexisting nonconforming use, an act that violated the local zoning code.

The Kentucky state supreme court agreed with the appeals court, and it held that the appeals court decision did not violate RLUIPA, although it came to that conclusion on different grounds. It cited the Sixth Circuit’s decision in Livingston Christian Schools v. Genoa Charter Twp (2017) as guiding precedent, stating that “the religious institution has a feasible alternative location from which it can carry on its mission.”

The Arguments on Both Sides

The Supreme Court only accepted one of two questions posed in St. John’s petition. It declined to consider if the church was treated differently than a secular institution. But it will consider arguments about RLUIPA’s Substantial Burden Provision.

“The Kentucky Supreme Court held that denying petitioner a permit to construct the shrine does not impose a substantial burden on petitioner’s religious exercise solely because petitioner could build a smaller shrine on a different plot and because petitioner was aware of a prohibitory ordinance before it sought a permit,” it argued.

St. John also stated that “well-recognized conflicts among circuits and state supreme courts” exist about RLUIPA’s Substantial Burden Provision and the lower courts were deeply divided on the statute’s guarantees.

“Because these questions recur in communities across the country wherever religious organizations seek to build or expand, this Court’s resolution of the conflicts is critical,” it concluded.

In a reply filing, the attorneys for the Frederics repeated the basic argument accepted by the Kentucky supreme court that the local zoning board lacked the power to allow the grotto on the adjacent lot and that St. John could build a similar grotto on its church property.

St. John in its most-recent filing noted that a recent Third Circuit Court of Appeals decision, Anash v. Borough of Kingston (2026), strongly supported its argument. In Anash, a divided court said that the municipality of Kingston, Pennsylvania, violated the religious rights of a rabbi protected under RLUIPA. The rabbi sought to use two buildings he owned in a commercial district for religious instruction, housing students, maintaining an office, and for prayers. The municipality issued two notices of zoning-ordinance violations.

“Unless land use regulation satisfies strict scrutiny, the choice of where the exercise of religion can take place should be left to persons with rights of access to and use of real property—not to zoning codes and landmarking laws promulgated by governments,” the Third Circuit concluded.

In taking St. John’s appeal, at least four Supreme Court justices at private conference agreed to consider the Substantial Burden Provision. So far, the Court has not considered the provision in detail, and any substantial ruling could have wide-ranging impacts on local zoning laws nationally.

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

Two major cases to be heard in December focus on religious rights with a significant Second Amendment challenge also scheduled for argument that month. In addition, the question of voter ID laws will reach the Court this fall, along with controversies about climate change, and two Eighth Amendment challenges.

October 5 Session

The first case of the October Term 2026 is one with potentially major implications. The justices will hear arguments in Suncor Energy (U.S.A.) Inc. v. Commissioners of Boulder County (25-170), which it added to its docket in February 2026.

Energy giants Suncor Energy and Exxon Mobil Corporation have appealed a divided ruling from the Colorado Supreme Court in favor of the City of Boulder and Boulder County, Colorado. Boulder sued over claims relating to the alleged local negative effects of greenhouse-gas emissions on their governments. Suncor Energy is arguing that federal precedents prevent Boulder from suing over damage caused by emissions from outside of the region.

Johnson v. United States Congress (25-735) will also be heard on the first Monday of October. In this dispute, the Court will consider whether the Veterans’ Judicial Review Act blocks district courts from hearing challenges about the constitutionality of acts of Congress affecting veterans’ benefits. The petitioners have asked the Supreme Court to decide whether its precedent in Johnson v. Robison (1974) allows district courts to consider such challenges.

Other cases in the first session include Beaird v. United States (25-5343), which considers whether the Court’s precedent in Stinson v. United States defines the level of deference in criminal sentencing related to the Commentary of the Federal Sentencing Guidelines. In this case, Beaird contested a sentence that he received for possession of a semiautomatic weapon with a large capacity magazine. Also, in Salazar v. Paramount Global (25-459), the Supreme Court will consider whether Paramount can be liable for sharing with Facebook “personally identifiable information” gathered from email campaigns promoting its own video products.

November 2 Session

The Supreme Court has scheduled seven sets of arguments for early November 2026. The highest-profile case is St. Mary Catholic Parish v. Roy (25-581).

The petitioners, Catholic preschools in the Archdiocese of Denver, claim religious discrimination when they were denied state funding under a Colorado universal preschool program that pays for families to send their children to public or private preschools.

The U.S. Court of Appeals for the Tenth Circuit agreed with a lower court ruling that the state could deny funding to the schools. It cited Supreme Court precedent in Employment Division v. Smith (1990), stating the Colorado program and law were generally applicable and did not target the preschools.

In accepting St. Mary Catholic Parish, the Supreme Court will not consider whether Employment Division v. Smith should be overturned. Instead, it will consider how Supreme Court precedents apply when lower courts consider if a government is explicitly excluding religious people and institutions from public benefits.

Also on the early November argument calendar is Nielsen v. Watanabe (25-417), where the respondent alleged that he suffered a fractured coccyx in a prison gang fight, causing chronic pain due to mistreatment. The question is whether the case should be considered as an Eighth Amendment claim of deliberate indifference to medical needs, as established in Carlson v. Green (1980).

November 30 Session

Arguments running from Nov. 30, 2026, until Dec. 9, 2026, include several major cases. In Jouppi v. Alaska (25-246), the justices will consider a dispute from Alaska over the Eighth Amendment’s Excessive Fines Clause, where state police arrested pilot Ken Jouppi and his lone passenger on Jouppi’s local air-taxi transport plane. The plane was bound for a town that had banned the consumption of alcohol. The police spotted a six-pack of Budweiser on top of the passenger’s luggage and subsequently found three cases of beer.

Alaska has tried to seize Jouppi’s Cessna aircraft under a forfeiture statute. The question presented to the Supreme Court is “whether, in determining whether a fine contravenes the Excessive Fines Clause, courts may consider the gravity of the underlying offense purely in the abstract or should consider the gravity of the specific defendant's wrongdoing.”

In Republican National Committee v. Mi Familia Vota (25-1017) the Supreme Court will turn to the National Voter Registration Act, which allows voters to register to vote at the same time they apply for a driver's license, whether by mail or in person. Arizona passed laws requiring new voter registrants to provide physical “documentary proof of citizenship” and for county recorders to conduct citizenship audits of voter registration rolls against state and federal databases. Mi Familia Vota and others have sued to block these laws from going into effect.

In Viramontes v. Cook County (25-238) and Grant v. Higgins (25-566), the Supreme Court will consider challenges to laws that place restrictions on the possession of assault rifles. The constitutional question is whether these laws conflict with the Second Amendment and 14th Amendment of the Constitution. In Viramontes, Cutberto Viramontes and others are appealing a Seventh Circuit ruling upholding Cook County’s ban on AR-15 rifles. Viramontes sought to acquire such a rifle. Cook County criminalizes the sale, transfer, or possession of any “assault weapon” including AR-15s.

The circuit court concluded that rifles like the semiautomatic AR-15 rifle “are not ‘Arms’ under the Second Amendment,” citing Bevis v. City of Naperville, another Seventh Circuit decision from 2023. The Bevis court undertook a Bruen-style analysis to decide the case, using a frame from the Supreme Court’s landmark ruling in New York State Rifle & Pistol Association v. Bruen (2022). The Bruen test requires a court to look at history and tradition when considering appeals about laws that restrict firearms ownership.

In his appeal, Viramontes said the appeals court misapplied Bruen and did not consider another key Supreme Court precedent, District of Columbia v. Heller (2008).

In Grand v. City of University Heights, Daniel Grand, an Orthodox Jew, invited 15 of his friends over to pray with a “minyan,” in the privacy of his home in University Heights, Ohio. Grand was then contacted by the town’s mayor and its law director before the minyan. They told Grand that praying in a residential home constituted a “synagogue” under the University Heights zoning code, which required a special-use permit. Grand also received a cease-and-desist letter.

Grand sued the city, its mayor, and its law director in federal court. The district court ruled that Grand lacked standing to sue on First Amendment grounds and dismissed his case for lack of ripeness. It cited the Supreme Court’s precedent in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985), as requiring Grand to get a final zoning board decision before pursuing his claim. The Sixth Circuit upheld the lower court's decision.

The question accepted by the Supreme Court is whether “a credible government threat that deters the exercise of fundamental rights” is displaced by Williamson County’s land-use finality requirement when a plaintiff alleges that government threats both before and after a Planning Commission meeting chilled his religious exercise, worship, and assembly.

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

On October 5, the justices will hear arguments in Suncor Energy (U.S.A.) Inc. v. Commissioners of Boulder County (25-170), which it added to its docket in February 2026.

Energy giants Suncor Energy and Exxon Mobil Corporation have appealed a divided ruling from the Colorado Supreme Court in favor of the City of Boulder and Boulder County, Colorado. Boulder sued under state common law over claims relating to the local negative effects of greenhouse-gas emissions on their governments. Suncor Energy is arguing that federal precedents prevent Boulder from suing over damage caused by emissions from outside of the region.

The justices are considering two questions. First, whether the Court has statutory and Article III standing to consider the case. And second, 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.

The arguments will be closely watched with numerous similar environmental lawsuits in progress against energy producers from state and local governments making similar claims. Suncor stated that at least 60 state and local governments had brought similar lawsuits as of August 2025.

The Lawsuits from Boulder and the State Supreme Court

The legal fight from Boulder started in 2018 when Boulder brought various claims under Colorado law, alleging that Suncor’s worldwide conduct led to global climate change, which also caused a variety of negative effects in Colorado. Suncorp countered that the federal Clean Air Act (CAA) and federal common law precluded Boulder’s claims.

The case first went through the federal legal system. In 2021, the Supreme Court remanded the case to settle jurisdictional questions, and it then denied the case in 2023 over the objections of Justice Brett Kavanaugh, allowing it to proceed in state court.

On May 12, 2025, the divided Colorado state supreme court ruled in favor of Boulder. Judge Richard L. Gabriel wrote for the five-justice majority that Boulder could pursue its damages claims at state district court.

“Boulder asserts claims for public and private nuisance, trespass, unjust enrichment, and civil conspiracy, and it seeks damages for the role that defendants’ production, promotion, refining, marketing, and sale of fossil fuels has allegedly played in exacerbating climate change, which, in turn, has purportedly caused harm to Boulder’s property and residents,” Gabriel wrote. “Boulder’s claims are not preempted by either federal common law or the CAA. In so concluding, we are not persuaded by defendants’ myriad arguments to the contrary.”

Judge Carlos Samour, joined by Judge Brian Boatright, dissented. “Because state law remains incompetent to regulate interstate and international air pollution, I disagree that Boulder can prosecute its claims. Unlike the Blue Fairy that brought Pinocchio to life, the CAA did not magically breathe life into state-law tort claims that had been as lifeless as a wooden puppet,” he said. “I’m concerned that this decision will contribute to a patchwork of inconsistent local standards that will beget regulatory chaos.”

The Arguments at the Supreme Court

In its petition to the Supreme Court, Suncorp made several basic arguments under the Constitution’s Supremacy Cause, Article VI, Clause 2, which states, in releqant part, “[T]his 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, anything in the Constitution or laws of any State to the contrary notwithstanding.”

“The {Supreme} Court has recognized for over a century, the structure of our constitutional system does not permit a State to provide relief under state law for injuries allegedly caused by pollution emanating from outside the State,” Suncorp said.

Suncorp also asked the Court to consider the widespread impact of the case. “There are few, if any, more consequential questions pending in the lower courts concerning the relationship between state and federal law,” it argued. Upholding the Colorado supreme court ruling would allow “state-law claims asserted by dozens of States and municipalities can [to] proceed—and to do so before the energy industry is threatened with potentially enormous judgments.”

Suncorp also cited the state court decision as affecting the federal government’s foreign-policy powers, and that the Supreme Court had final jurisdiction over the case.

In its initial response brief, Boulder supported the Colorado supreme court ruling and made several counterarguments. It pointed out the state court’s decision was correct and that the Supreme Court’s precedents barred the Clean Air Act from pre-empting the state’s legal jurisdiction over the dispute.

Boulder also argued that because courts had once created federal common law to regulate interstate air pollution, the Constitution required questions to be governed “exclusively” by a uniform rule of federal law. But none of their cases cited by Suncorp addressed what happened when Congress displaced a federal common law with a statute, as it did with the Clean Air Act, Boulder claimed.

After the Supreme Court accepted the case, Boulder made several other arguments and insisted the case should be dismissed for lack of jurisdiction. “How to allocate the cost of climate alteration is a matter of genuine debate. The structure of our Constitution assigns responsibility for resolving that debate to the states and the political branches of the federal government,” it reasoned, and not the Supreme Court at this time.

Boulder also said the case was not at the Court at the right time: “The Colorado Supreme Court has yet to resolve petitioners’ contention that respondents fail to state a claim, or even which state’s law answers that question.”

In its final brief to the Court, Suncorp insisted that state supreme court’s decision represented an overreach of powers and the Supreme Court had the power to hear arguments under Cox Broadcasting v. Cohn (1975).

Suncorp also labeled the Boulder lawsuit as novel: “This litigation is unlike any other in American history—with climate-change advocates seeking to bypass the political process and achieve sweeping policy objectives through state-law causes of action against arbitrary groups of defendants in handpicked forums.”

Deputy Solicitor General Sarah M. Harris also filed a brief in support of Suncorp and will take part in arguments. Harris argues that “state-law claims contravene the Constitution’s territorial limits on state authority and the federal government’s exclusive role over foreign affairs.”

Given the large financial stakes and the broad constitutional questions involved, Suncorp Energy v. Boulder should receive considerable attention as the first arguments in another active Supreme Court term.

On Sept. 28, 2026, Scott S. Harris, the clerk of the Supreme Court, said Justice Samuel Alito would not participate in the case.

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

Distilled spirits are alcoholic beverages produced by heating and condensing a fermented liquid to increase its alcohol percentage, as compared with beer and wine, which is produced using fermentation with a lower alcohol content.

Two petitions filed in recent months at the Supreme Court seek to settle the question of the ability of Congress to ban the home production of distilled spirits, while allowing people to make their own beer, wine, cider, and lower alcohol-content drinks and beverages for their own consumption.

The home-distilling ban is based on federal tax laws from 1866 and 1868 that amended an existing excise tax on distilled spirits to prohibit their production “in any dwelling-house” or areas located on the same home property like sheds. Since then, Congress has enacted other laws to regulate the location of all distillate plants, including large operations.

In Ream v. Department of the Treasury, petitioner John Ream of Ohio is a former home brewer and current brewpub owner who took legal action in 2024 against the federal government ban on home distilling. Ream wishes to make whiskey at home to sample, and he will pay any federal taxes on it. A federal district court initially ruled against Ream. On April 21, 2026, the U.S. Court of Appeals for the Sixth Circuit also ruled in favor of the government.

Just 11 days earlier, the U.S. Court of Appeals for the Fifth Circuit came to a different conclusion. In Department of Justice v. McNutt, four members of the Hobby Distillers Association, including Scott McNutt, sued in the United States District Court for the Northern District of Texas over the same question. The court decided only McNutt had standing to pursue legal action. It then ruled in favor of McNutt, saying the congressional tax statutes did not apply in his case. The Fifth Circuit reinstated the other three plaintiffs and held that Congress’s power under the Constitution’s Necessary and Proper Clause didn’t extend to the home distillers such as McNutt.

Petitions from both cases will now be considered by the Supreme Court on October 9, 2026, in private conference.

The Founding, Reconstruction, and Taxing Spirits

In its petition to the Supreme Court, the Justice Department notes that the federal power to tax distillates goes back to the First Congress. Treasury Secretary Alexander Hamilton urged the “expediency” of taxing distilled spirits by the federal government. The department brief cites a quote from historian Gallus Thomann in 1885 that during the Founding era “nearly every farmer distilled his own whiskey and deemed it his inalienable right to evade the tax and resist the collector.”

Congress passed several statutes taxing liquor, leading to the Whiskey Rebellion of 1794. Among the biggest opponents to Hamilton’s taxes was Thomas Jefferson, who told James Madison in 1794 that “the excise law is an infernal one. The first error was to admit it by the Constitution; the 2d., to act on that admission; the 3d & last will be, to make it the instrument of dismembering the Union, & setting us all afloat to chuse which part of it we will adhere to.”

Over time, the federal government taxed distilled spirits in different ways including a brief repeal. During Reconstruction, Congress saw the need to crack down on widespread evasion of liquor-production taxes. The separate tax laws from 1866 and 1868 form the basis for the current tax laws that set taxes on distilled spirits the moment they are produced in all locations.

Under 26 U.S.C. 5178(a)(1)(B), the distilling of spirits is prohibited in locations including “any dwelling house, in any shed, yard, or inclosure connected with any dwelling house, or on board any vessel or boat, or on premises where beer or wine is made or produced, or liquors of any description are retailed, or on premises where any other business is carried on (except when authorized under subsection (b)).” The subsection allows the government to approve production that “will not jeopardize the revenue.”

Comparing the Two Cases

At the heart of both petitions to the Supreme Court is the Necessary and Proper Clause in Article 1, Section 8, of the Constitution. It is the final clause in Section 8, which lists (or enumerates) powers directly granted to Congress. The clause empowers Congress “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

The Justice Department is asking the Supreme Court to affirm that the tax laws about home distilling are “necessary and proper for carrying into execution Congress’s enumerated power to lay and collect taxes.”

The department cites the landmark case, McCulloch v. Maryland (1819), as supporting its argument. Under McCulloch, Chief Justice John Marshall ruled that “a law is necessary and proper if it is ‘convenient’ or ‘useful’ for carrying an enumerated power into effect, and ‘plainly adapted’ to that legitimate end,” the department argues.

“Under McCulloch and its progeny, courts may not second-guess Congress’s reasonable judgment that the increased ability to collect taxes from those complying with the restrictions would offset any reduction in the tax base from others who would forgo distilling altogether. And because the location restrictions were enacted only after lengthy experience with tax evasion, upholding those restrictions would not open the door to hypothetical laws restricting other conduct lacking that history,” it concludes.

The department also finds fault with the Fifth Circuit ruling in favor of the home distillers, which it says, “departs from this Court’s precedents and imperils Congress’s legislative power.”

In their petition in Ream, the home distillers make differing arguments. Their attorneys state that the home distilling ban is “a relic of Reconstruction-era politics.” They also believe the punishment for violations under the tax laws are excessive. “Federal law also makes it a crime—punishable by five years’ imprisonment, a $10,000 fine, and forfeiture of the offender’s home—to produce distilled spirits in that home.”

Their main argument finds fault with the Justice Department’s interpretation of the Necessary and Proper Clause as permitting the home distilling ban. “Asked which enumerated power authorizes that prohibition, the government answered: the power to tax the very conduct it prohibits. Banning the taxed activity, on this theory, is a ‘necessary and proper’ means of taxing it.”

They note the clear split between the two federal appeals courts. “The Sixth Circuit accepted that theory and upheld the prohibition. And it did so eleven days after the Fifth Circuit, in a materially identical challenge to the same prohibition, rejected the same theory and held the prohibition unconstitutional.”

Ream’s attorneys also ask the Supreme Court to consider the appeal in the context of the Constitution’s Commerce Clause in conjunction with its precedent in Gonzales v. Raich (2005). In Raich, a divided Court said Congress could prohibit marijuana use for any purpose in states under its Commerce Clause powers, including those states that had legalized its use for medical purposes.

The cases seem likely to be seriously considered at conference for a grant of certiorari by the Supreme Court for several reasons. The two federal appeals courts present clearly conflicting decisions. Both sides want the cases heard by the Court. However, the Justice Department does not view the cases as supporting an attempt to reconsider the Raich precedent.

It will take four justices to accept the case for arguments at the Court. One key question for Court watchers is whether the Court adds a second question about whether to reconsider Raich if it accepts the case.

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

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.

Editor’s Note: Blog posts written by contributors reflect the analysis and opinions of the authors, and do not represent the opinions or positions of the National Constitution Center.

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.