Last Wednesday, the Supreme Court’s Republican majority effectively repealed a 1982 amendment to the Voting Rights Act that required some states to draw a minimum number of majority-Black or majority-Latino legislative districts. The GOP justices’ decision has already kicked off another round of skirmishes in the gerrymandering wars. 

Louisiana suspended its US House elections until new maps can be drawn that will elect more white Republicans. Mississippi’s legislature will hold a special session where it could draw similar maps. Tennessee and Alabama also appear likely to draw whiter and more Republican maps before the upcoming midterm elections.

Meanwhile, lefty groups are already plotting to overcome rigged Republican maps with equally rigged Democratic ones. Fair Fight Action, an advocacy group founded by former Democratic Georgia gubernatorial candidate Stacey Abrams, has a plan to turn 10 US House seats blue right away — and to turn as many as 22 districts into gerrymandered Democratic seats if Democrats pick up enough seats in the right state legislatures.

This latest round of gerrymandering, moreover, builds on the previous year’s worth of redistricting fights in Texas, California, Virginia, and Florida. And the Supreme Court also deserves the lion’s share of the blame for those gerrymanders. In Rucho v. Common Cause (2019), the Court’s Republican majority ruled that federal courts may never, ever intervene to block a partisan gerrymander. So gerrymaxxing lawmakers no longer need to worry if their maps are constitutional or not.

That said, it’s not like the United States had particularly robust safeguards against gerrymandering before Rucho came along. In Davis v. Bandemer (1986), the Supreme Court said that a sufficiently partisan gerrymander could violate the Constitution, but it didn’t actually strike down the Indiana maps at issue in that case. The Court reached a similar result in Vieth v. Jubelirer (2004), which upheld a Pennsylvania congressional map even as a majority of the justices warned that they might intervene in a future case.

For more than three decades, in other words, the Court maintained a kind of strategic ambiguity. It never struck down a map drawn to give an unfair advantage to one political party or the other. But it also kept open the possibility that it might strike down a truly egregious gerrymander in the future. And that strategic ambiguity mattered.

Before Rucho, state lawmakers drew plenty of gerrymandered maps, but they typically only did so every 10 years. (The Constitution requires each state to update its maps following a new US Census.) And even when lawmakers did draw biased maps, they did not always squeeze every drop of partisan juice out of their states. After the 2010 Census, for example, Texas Republicans drew a map that gave them two-thirds of the state’s congressional districts in an election when Republicans earned about 58 percent of the vote. 

Texas’s newest map, by contrast, was drawn to give Republicans 30 of the state’s 38 US House seats — nearly 80 percent of the state’s congressional delegation.

Nor is Rucho an isolated case. The Roberts Court has a penchant for giving bad actors explicit license to engage in anti-social behavior, when the Court had previously kept the law more ambiguous.

The Court’s decision in Citizens United v. FEC (2010), for example, explicitly held that corporations could spend unlimited amounts of money to influence elections, and it triggered a massive spike in election spending. But Citizens United didn’t actually change the law all that significantly. Before it was handed down, corporations could already spend unlimited sums of money to influence elections.

What Citizens United did accomplish is it sent a loud signal to politically minded billionaires and corporations that the Court wouldn’t interfere if they flooded every contested election in a tsunami of cash.

Similarly, while Trump’s first-term Justice Department was hardly a model of nonpartisan rectitude, it typically drew a line against prosecuting people solely because Donald Trump perceived them as an enemy. It wasn’t until the Supreme Court held, in Trump v. United States (2024), that Trump may order the DOJ to target people “for an improper purpose” that political prosecutions took off.

Sometimes, in other words, the best thing that the Court can do is say nothing at all. It could have continued to uphold individual gerrymanders without stating definitively that there are no rules. It could have similarly held its tongue in Citizens United. And it certainly didn’t have to give Trump explicit permission to weaponize the DOJ.

A quiet Court can be democracy’s best friend

Of these three cases — Rucho, Citizens United, and Trump — the second is the most explicable. The majority opinion in Citizens United did not simply endorse corporate spending on elections; it spoke of money in politics as if it were an affirmative moral good.

“A substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors,” Justice Anthony Kennedy wrote for himself and four other Republicans. “Democracy,” he concluded, “is premised on responsiveness.”

Odd as this belief may be, it makes sense that a justice who thinks that campaign spending is the soul of democracy would want to abolish limits on it, even the informal limits that arose out of donors being uncertain whether the Supreme Court might spank them if they exerted too much influence over elections. But the same thing cannot be said about at least some of the justices who joined the Court’s gerrymandering decision in Rucho.

Rather than claiming that gerrymandering should be celebrated, Chief Justice John Roberts’s majority opinion in Rucho says that partisan redistricting “leads to results that reasonably seem unjust,” and that are “incompatible with democratic principles,” even though he ultimately concludes that federal courts should play no role in stopping it. 

At a superficial level, neither Citizens United nor Rucho significantly changed the Court’s approach to election disputes. The Court has never actually struck down a map because it was drawn to benefit one political party or the other (although the Court did sometimes strike down gerrymanders that disempowered voters of a particular race). And campaign finance rules prior to Citizens United were almost as hands-off as the rules that exist today.

Before Citizens United, both wealthy individuals and corporations could give unlimited amounts of money to “527s,” organizations named after Section 527 of the Internal Revenue Code, which could do nearly everything that post-Citizens United groups such as super PACs can now do to influence elections.

The primary difference between a pre-Citizens United 527 and a modern-day super PAC is that 527s could not engage in explicit advocacy for the election or defeat of a candidate for federal office. A 527’s political ads could lay out all the reasons why its donors want voters to replace Senator Jones with Challenger Smith. But instead of ending the ad with an explicit call to “vote for Smith,” as post-Citizens United groups may now do, the old 527s would end with a line like “Call Senator Jones and tell her to stop wasting your tax dollars.”

Still, while Citizens United (and a follow-up case that is widely credited for enabling modern-day super PACs) did little more than allow advocacy groups to remove a fig leaf from their political ads, spending on federal elections skyrocketed after Citizens United was handed down. Presidential elections are typically far more expensive than midterm elections, but spending by political groups that were unaffiliated with a campaign in 2010 was almost as high as spending during the 2008 presidential election.

As the campaign finance tracking group Open Secrets documents, spending on federal elections has been on a steep upward trajectory ever since: “During the 2008 election cycle, the last presidential campaign before the floodgates opened, outside spending totaled $574 million. Four years later, in 2012, that amount more than doubled — to nearly $1.3 billion. By 2020, outside spending reached $3.3 billion and came close to $4.5 billion in 2024.”

Rucho, meanwhile, is a more recent decision than Citizens United, so we are only beginning to see the fallout from the Court’s explicitly hands-off approach to gerrymandering. But it’s undeniable that Rucho — along with the Court’s very new racial gerrymandering decision in Louisiana v. Callais (2026) — has emboldened state lawmakers to engage in maximalist gerrymandering that did not exist a decade ago.

Though mid-cycle redistricting — laws that redraw a state’s maps outside the 10-year cycle required by the Constitution — wasn’t entirely unheard of before Rucho, it was quite rare. Now there is an arms race where states throughout the country are drawing mid-cycle gerrymanders. States like California or Virginia that previously banned gerrymandering are bypassing those bans to participate in this arms race. 

Unless the Supreme Court changes course, it now seems inevitable that those bans will be permanently repealed, and that every state will redraw its maps whenever control of the state government changes hands — assuming that such a thing is still possible in an era when state lawmakers can redraw their own maps to lock themselves in power.

Like the explosion of campaign spending, this arms race did not begin because the Supreme Court suddenly stopped policing partisan gerrymanders. Again, the Court has never actually struck down a map because it was drawn for partisan reasons. What changed is that the Supreme Court previously held out the possibility that it might strike down such a map in the future, and then suddenly it said that it never would.

That was enough to kick off the Great Gerrymandering War of 2026.

The single most reckless line in any modern Supreme Court decision

“IF YOU GO AFTER ME, I’M COMING AFTER YOU!” then-candidate Trump wrote in a 2023 post on his personal social media site. Trump pledged to “APPOINT A REAL SPECIAL ‘PROSECUTOR’” to go after then-President Joe Biden. He suggested that his former chair of the Joint Chiefs of Staff, Gen. Mark Milley, should be punished with “DEATH.” And he labeled then-Rep. Adam Schiff (D-CA) and former House Speaker Nancy Pelosi as “enem[ies] from within.”

Meanwhile, as Trump campaigned on promises to use the criminal justice system to target his political opponents and perceived enemies, Trump’s fellow Republicans on the Supreme Court gave him explicit license to do so.

The Supreme Court’s instantly anti-canonical decision in Trump v. United States (2024) held that Trump could use the powers of the presidency to commit crimes. But it also went much further than that. In a three-page section arguing that “investigation and prosecution of crimes is a quintessentially executive function,” and thus under the full control of the president, all six Republican justices concluded that, if reelected, Trump could order the Justice Department to target his enemies even if “the requested investigations were ‘sham[s]’ or proposed for an improper purpose.”

Since his reelection, Trump and his administration has enthusiastically wielded the power these six Republicans gave him. Trump’s Justice Department has indicted former FBI Director James Comey twice, apparently to punish Comey for opening an investigation into Trump a decade ago. It brought similarly dubious charges against New York state Attorney General Letitia James.

A federal law enforcement agent was caught on video saying that Trump’s former personal lawyer (and now acting Attorney General) Todd Blanche ordered him and his fellow officers to arrest Newark Mayor Ras Baraka, a Democrat, when Baraka showed up at an ICE detention facility in his city and asked to tour it. When those charges fell apart, Trump’s Justice Department filed new charges against a Democratic US representative who was also at the facility, Rep. LaMonica McIver.

Though Trump’s Justice Department has yet to file charges against Schiff, he seemed to order former Attorney General Pam Bondi to bring such charges in a social media post last September. Trump appears to have fired Bondi because she was not successful in targeting many of his political opponents.

Though Trump’s first-term Justice Department often ran interference for the big boss, it was far more restrained in who it chose to prosecute. But that, of course, was before the Supreme Court gave Trump the explicit power to order the DOJ to prosecute people for an “improper purpose.”

None of this needed to happen

There’s no gentle way to put this. The Roberts Court needs to learn that sometimes, it’s best to shut up. 

The silent threat of Supreme Court intervention — even without the intervention itself — was enough to check bad actors who wanted to behave badly. By explicitly stating that these actors can do whatever they want without consequence, the justices have unleashed anarchy on campaign spending and electoral maps, and they’ve transformed the Department of Justice into a tool for tyrants.

It was perfectly possible to write an opinion in Citizens United that reached the same result, without triggering an avalanche of election spending. The Court could have decided Rucho the same way it decided Davis and Vieth, upholding a gerrymander while leaving the door open to a future decision that went the other way. And it certainly didn’t need to give Trump explicit permission to target his political opponents, even in an opinion that held that Trump is above the law.

Chief Justice Roberts once wrote that “if it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” He was right when he wrote that, and he should have followed that advice when he decided Citizens United, Rucho, and Trump. His colleagues should have done so as well. 

One important reason the Court has historically avoided deciding more than is necessary is because sweeping decisions can have unpredictable consequences. Perhaps the justices did not see today’s free-for-all of partisan gerrymandering coming when they handed down Rucho. But a more restrained Court would have avoided that outcome by following the wiser path the Court charted in Davis and Veith.

American democracy is now in turmoil because of the Republican justices’ big mouths.

On Friday evening, the far-right United States Court of Appeals for the Fifth Circuit attempted to cut off access to the abortion drug mifepristone. If you’re experiencing déjà vu, you should be, because in 2023, the far-right United States Court of Appeals for the Fifth Circuit also attempted to cut off access to the abortion drug mifepristone.

Almost immediately after the Fifth Circuit issued its second decision, two pharmaceutical companies that make the drug asked the Supreme Court to intervene. The two largely identical cases now before the justices are known as Danco Laboratories v. Louisiana and GenBioPro v. Louisiana. 

The Fifth Circuit’s reasoning the first time around was so weak that the Supreme Court unanimously rejected it, holding that federal courts did not even have jurisdiction to hear the case in the first place. This time around, most of the legal issues are identical to the ones that were before the Court in FDA v. Alliance for Hippocratic Medicine (2024), the first mifepristone case. The Court should resolve Danco the same way it resolved the Alliance case, in a unanimous opinion holding that no federal court has jurisdiction to hear this challenge.

Notably, Justice Samuel Alito, who typically has the first crack at emergency appeals arising out of the Fifth Circuit, issued a temporary order blocking the circuit court’s decision until May 11. That’s a very hopeful sign for abortion providers.

That said, abortion providers and their patients have some reason to fear that this Court may not follow its decision in Alliance. While the Court did block the previous effort to ban mifepristone, Alliance is the only significant victory that abortion rights advocates have won in the Supreme Court since the Republican Party gained a supermajority on that Court. 

The Court’s Republican majority frequently hands down anti-abortion decisions that are inconsistent with their previous precedents, including very recently decided cases. In Medina v. Planned Parenthood (2025), for example, the Republican justices appeared to overrule a two-year-old decision in order to cut off Medicaid funding to abortion providers. 

Similarly, in Whole Woman’s Health v. Jackson (2021), five of the Court’s Republicans handed down an opinion that, if taken seriously, would allow any state to abolish any constitutional right by sending bounty hunters after anyone who exercises that right.

So, while the drug companies’ arguments in Danco are about as strong as a legal argument can possibly be, it remains to be seen whether this Court will follow its own precedent in Alliance.

The Fifth Circuit’s decision in Danco threatens to eliminate access to mifepristone

Before we get into the legal details of the Danco case, it’s important to understand why the Fifth Circuit’s decision in that case threatens all patients’ ability to obtain mifepristone, in every state, even though the Fifth Circuit claims that its decision is more modest.

Prior to 2021, patients who wished to terminate their pregnancies via medication had to make an in-person visit to their doctor’s office and pick up the drug in person. But in December 2021, the Food and Drug Administration relaxed those rules, permitting patients to consult with a doctor via telemedicine and then obtain the drug through the mail.

Technically, the Fifth Circuit’s decision in Danco only blocks these five-year-old changes to the FDA’s mifepristone protocol. As a practical matter, however, any court-ordered change to that protocol risks suspending patients’ access to mifepristone indefinitely.

The reason why is that the FDA only allows mifepristone to be dispensed under the protocol that the FDA itself laid out, which in this case is known as a “risk evaluation and mitigation strategy” or “REMS.” When the Fifth Circuit struck down the REMS that permits mifepristone to be distributed by mail, on Friday, it didn’t replace it with anything. So it’s far from clear that mifepristone may be prescribed at all until the FDA replaces the old REMS with a new one.

That process typically takes months. As Danco Laboratories explained the last time mifepristone was before the Court, it must “revise product labels, packaging, and promotional materials; recertify providers; and amend its supplier-and-distributor contracts and policies” to comply with whatever the new REMS requires. And that assumes that the Trump administration, which currently controls the FDA, is even willing to issue a new REMS.

In fairness, it is uncertain what, exactly, is supposed to happen if the Fifth Circuit’s decision remains in effect. As Danco explains in its most recent brief to the justices, “there has never been a court-enjoined REMS,” so drug companies and pharmacists have no idea what their legal obligations are right now. They do not know which actions could lead to “civil and criminal penalties,” and thus are likely to proceed with extreme caution, because they cannot know whether distributing mifepristone under any protocol will expose them to “potentially huge liability” or worse.

Unless the Supreme Court reverses the Fifth Circuit, in other words, the lower court’s decision could have the same effect as an explicit ban on mifepristone.

The Fifth Circuit’s decision is egregiously wrong

There are probably at least a half-dozen legal errors in the Fifth Circuit’s brief Danco opinion. The most glaring errors involve a legal doctrine known as “standing” which was also front-and-center in the Alliance case.

No plaintiff may bring a federal case challenging a law or policy unless they’ve been injured in some way by that law or policy. 

In Alliance, the plaintiffs were anti-abortion doctors who, as the Court explained, “do not prescribe or use mifepristone.” Nevertheless, these doctors claimed that they were injured by the fact that mifepristone is legal because a patient might take mifepristone. That patient might then experience a complication that requires a doctor to complete the patient’s abortion. Then, one of the plaintiff doctors might be working in an emergency room when that patient arrives. And that doctor might be forced to perform this abortion, presumably because no other doctor was available to do so.

The Supreme Court rejected this chain of mights as “too speculative or too attenuated” to permit those plaintiffs to sue.

The plaintiff in Danco is the state of Louisiana. It claims that it has standing to sue because, if a Medicaid patient takes mifepristone, experiences a complication, and goes to the emergency room for treatment, then the state may have to pay for that treatment through its Medicaid program. But this claim is even more attenuated than the plaintiffs’ claim in Alliance. Under the Fifth Circuit’s theory, a patient might take the drug, might have a complication, might seek care at a Louisiana emergency room, and might then have that care paid for by Medicaid. That’s still far too many mights.

(Louisiana does claim that it has previously paid for two Medicaid patients who sought care after taking mifepristone. But, even if this is true, it is irrelevant because, in City of Los Angeles v. Lyons (1983), the Supreme Court held that anyone seeking an injunction must show they are likely to be injured in the future by whichever policy they are challenging.)

Alternatively, the Fifth Circuit also claimed that Louisiana has standing because its law is different than federal law: Louisiana bans mifepristone, while the FDA permits it and even allows the drug to be mailed. But the Supreme Court rejected the argument that a state may sue the federal government because federal law is different from state law in Haaland v. Brackeen (2023), and for good reason. “Were it otherwise,” the Court explained, “a State would always have standing to bring constitutional challenges.”

There are other likely errors in the Fifth Circuit’s Danco decision. Among other things, Louisiana may have forfeited its right to sue because it didn’t first petition the FDA to change its policy. And the Fifth Circuit faulted the FDA for applying the same rules governing how it monitors drugs to make sure they aren’t injuring patients that it applies to most other drugs. But the Fifth Circuit’s refusal to follow Alliance’s approach to standing is the most egregious error, and the one that is most likely to trouble the justices, because the Supreme Court ordinarily expects lower courts to follow its recent decisions.

Why hasn’t a Republican Supreme Court gone all in on banning mifepristone?

One mystery looming over both the Alliance and the Danco case is why this Court, which is normally hostile toward abortion, has thus far rejected the Fifth Circuit’s attempts to ban mifepristone.

One possible explanation is that the Republican justices are simply following their party’s lead. In his second term, President Donald Trump repeatedly disappointed anti-abortion activists. Anti-abortion groups, for example, lobbied Trump to name Roger Severino, a prominent social conservative who served in Trump’s first administration, as deputy secretary of Health and Human Services. But Trump’s transition team rejected this request, reportedly “over concerns that [Severino’s] strident anti-abortion views would prove too controversial.”

Similarly, Trump has not ordered the FDA to ban mifepristone. And his Justice Department has not brought any prosecutions under the Comstock Act, a defunct-but-never-repealed 1873 law that bans a simply astonishing array of things related to sex, abortion, or erotica.

The Republican Party, in other words, appears concerned that moving too aggressively on abortion could backfire on them — politically or otherwise — and the Republican justices may have adjusted their behavior accordingly.

Another possibility is that some of the Republican justices may have a principled commitment to the view that states should get to decide their own abortion policy. In Medina, the Court permitted South Carolina to defund Planned Parenthood, and in Jackson, the Court upheld a Texas state law that allowed bounty hunters to collect money from abortion providers. Both cases, in other words, permitted red states to do what they wanted to do.

The mifepristone question, by contrast, impacts all states — including blue states that support abortion rights. If the Fifth Circuit’s approach to mifepristone were embraced by the Supreme Court, the drug would be restricted — or even completely unavailable — in states where abortion is legal. So it is possible that the justices are upholding abortion restrictions enacted by red states, while treading more cautiously around rulings that could limit abortion in states where it is legal.

 Whatever its reasoning, the Court has thus far protected mifepristone access even as it has otherwise been consistently anti-abortion. But the Danco case is still in its early stages at the Supreme Court, so it remains to be seen whether Alito’s temporary order actually transforms into something more permanent. 

If I’d only listened to the first half of the Supreme Court’s Monday argument in Chatrie v. United States, a case asking when police can use cellphone data to determine who was present near the site of a crime, I would be convinced that the Court is about to drastically limit Americans’ right to privacy.

Most of the justices’ questions to Adam Unikowsky, the lawyer for a criminal defendant who was convicted of robbing a bank, appeared skeptical of Unikowsky’s claims that the Constitution places strict limits on the government’s ability to track people through their cellphones. Some of the justices even appeared likely to neutralize Carpenter v. United States (2018), a landmark case suggesting that police must obtain a warrant before they obtain cell phone data revealing where a person has been in the past.

But in the second half of the argument, after Justice Department lawyer Eric Feigin took the podium, most of the justices appeared even more concerned about some of the implications of Feigin’s arguments. 

As Chief Justice John Roberts noted shortly after Feigin began his argument, if the government has too much ability to track people using their cellphones, it could potentially learn the identity of everyone who attended a particular religious service, or everyone who attended a particular political meeting. Meanwhile, several other justices appeared worried that the government lawyer’s arguments would permit police to comb through many people’s emails, or their personal calendar and photos, without first obtaining a warrant.

In light of these concerns raised by the justices, it appears likely that the Court will hand down a cautious decision in Chatrie — one that reads Carpenter to require police to always obtain a warrant before they attempt to track someone using their cellphone. That said, the police in Chatrie did, in fact, obtain a warrant. And the Court may very well rule that the warrant in this case complied with the Constitution.

Chatrie, in other words, is likely to be a fairly narrow decision. The Court appears likely to maintain existing privacy protections against police searches, but most likely will not extend them in any significant way.

“Geofence” warrants, briefly explained

The specific legal question in Chatrie involves “geofence” warrants, which are warrants permitting the government to learn who was in a particular location at a particular time. Typically, it is possible for police to discover this information because both cell phone companies and software vendors such as Google often track the location of individuals’ phones. 

In Chatrie, police obtained a warrant requiring Google to turn over information about who was present near a bank in Midlothian, Virginia, within an hour of a robbery at that bank. The warrant drew a 150-meter radius around the crime site that included both the bank and a nearby church. Google had this information about some of its users because of an optional feature known as “location history,” which can be used to pinpoint users’ location with extraordinary precision – but only for users who have opted into this service.

The warrant also laid out a three-step process that limited how much information police could obtain about each individual cell phone user who was inside this geofence. At the first stage, Google provided anonymized information on 19 individuals who were present near the bank during the relevant period. Police sought additional location information on nine of these individuals and, after reviewing that additional information, sought and received the identity of three of these people. One of the three was Chatrie.

So this warrant did place meaningful restrictions on what information could be obtained by police. The data was anonymized until the final stage of the investigation, and police only learned the identity of a small percentage of the total number of people who were present near the robbery.

At the same time, the warrant did not require a judge or magistrate to determine whether the police were justified in narrowing the original 19 individuals down to nine, or down to the three whose identities were ultimately revealed. Google was responsible for determining whether it would turn over this additional information. At least some of the justices appeared bothered by this fact on Monday, and they may rule that this warrant only would have been permissible if police had been required to go back to the judge and get permission to narrow the search.

Three ways the Court could decide Chatrie

Broadly speaking, the Court appeared to fracture into three factions in Chatrie. The most pro-police faction, which included Justices Clarence Thomas and Samuel Alito, seemed eager to diminish Carpenter and make it much easier for the government to track people without first obtaining a warrant.

As Alito noted, Carpenter involved a similar search, but one that was technologically distinct from the one at issue in Chatrie. In Carpenter, police determined a suspect’s location by tracking which cell phone towers or other “cell sites” their phone was communicating with at various times. This information is less precise than the GPS-tracking data that Google possessed in Chatrie, but it is also information that, in Alito’s words, a cellphone user has “no choice but to disclose.”

Alito’s argument was that Chatrie could have turned off the feature in many of Google’s apps that allowed Google to track his location, but no cell phone user can prevent their phone from communicating with cell sites unless they turn off the phone altogether. Carpenter, under Alito’s framework, would only require a warrant if police want to obtain information that a cell phone user cannot opt out of revealing.

As a practical matter, this would mean that the government would have virtually limitless ability to track people’s movements, so long as it relied entirely on services such as Google Maps or Uber, where users can prevent the service from tracking their precise location.

Shortly after Feigin began his argument, however, several key justices signaled that they do not buy Alito’s argument. Roberts raised his concern about police learning the identities of everyone who attends a particular church. Justice Neil Gorsuch pointed out that people also sometimes voluntarily share their emails, photos, and personal calendars with Google, and he expressed concern that the government’s legal arguments would allow police to access that information without a warrant as well. 

Justice Amy Coney Barrett, who also asked some questions that seemed sympathetic to the government’s position, seemed to recoil when she realized that the Justice Department’s argument would not only permit the police to track when someone enters a private residence, but also specifically whether someone entered that residence’s bedroom.

That said, it seems unlikely that the Court will place sweeping restrictions on the government’s ability to obtain geolocation data provided that they first obtain a warrant. Justice Ketanji Brown Jackson, a former public defender who is often sympathetic to the rights of criminal defendants, said fairly explicitly that she does not see a problem with a warrant permitting police to learn which 19 individuals were near the bank robbery — although she likely would support additional restrictions once police seek more information on some of these individuals.

Justice Brett Kavanaugh, meanwhile, suggested that a geofence warrant is valid so long as it places “reasonable geographic and temporal” limits on the search. Police, in other words, can learn who was in a fairly narrowly defined location within a brief period of time, but the Constitution might not permit a sprawling search of, say, everyone at a political protest that encompassed many city blocks and that lasted an entire day.

All of which is a long way of saying that the Court’s decision in Chatrie is likely to be fairly nuanced, and it is unlikely to significantly disturb existing law. Police will still need to obtain a warrant before they can discover where someone was at a particular time in the past, but the Court is unlikely to place particularly strict restrictions on what that warrant should say.

Whether those restrictions are strict enough to prevent the government from identifying political dissidents and similar groups is unclear, and the question may remain open until a future case.

The facts underlying Hencely v. Fluor Corporation, a case the Supreme Court handed down on Wednesday, are horrible and tragic.

During a 2016 Veterans Day celebration on Bagram Airfield, a US military base in Afghanistan, a suicide bomber named Ahmad Nayeb detonated an explosion that killed five people and wounded 17 more. One of the wounded was Army Specialist Winston Hencely, who confronted the bomber and attempted to question him — causing Nayeb to set off his suicide vest shortly after Hencely approached him.

The Army believes that Hencely’s actions “likely prevent[ed] a far greater tragedy,” because the soldier stopped Nayeb from triggering the explosion in a location where it could have killed more people. Hencely is now permanently disabled from skull and brain injuries suffered during the bombing.

The legal issue in Hencely involves “preemption,” a constitutional principle dictating that, when federal law and state law are at odds with each other, the federal law prevails and will often displace the state law entirely. After the bombing, Hencely sued Fluor Corporation, a military contractor that employed Nayeb, claiming that Fluor violated South Carolina law by failing to adequately supervise Nayeb. Fluor has two subsidiaries in South Carolina.

In Hencely, six justices concluded that the wounded soldier’s lawsuit is not preempted, and thus does not need to be dismissed before any court determines if Fluor should be liable. While all three of the Court’s Democrats sided with Hencely, the case cleaved the Republican justices straight down the middle (and not in the way that the Republican justices ordinarily split when they split down the middle). Justice Clarence Thomas wrote the majority opinion, which was also joined by Republican Justices Neil Gorsuch and Amy Coney Barrett. Justice Samuel Alito wrote the dissent, joined by Chief Justice John Roberts and Justice Brett Kavanaugh.

The question of when a particular state law is preempted by federal law does not always divide the justices along familiar political lines. An expansive approach to preemption sometimes yields results that liberals will celebrate, and other times, benefits right-leaning policymakers. In Wyeth v. Levine (2009), for example, Thomas also took a narrow view of when federal laws should be read to preempt a state law, and thus ruled against a pharmaceutical company whose drug caused a woman to lose her arm. But advocates for immigrants also frequently argue that state laws targeting their clients are preempted by federal law.

So the Hencely case is significant because it reveals how each of the current justices tends to view preemption cases. Thomas has long questioned many of the Court’s previous cases, taking a broad view of preemption, and it now appears that Gorsuch and Barrett share some of his skepticism. The other three Republicans, by contrast, appear much more sympathetic to arguments that the federal government should have exclusive control over some areas of US policy.

So what was the specific legal dispute in Hencely?

The Constitution provides that federal law “shall be the supreme Law of the Land,” and state law must yield to it. But determining whether a specific state law is preempted by a federal law is not always a simple task.

The easiest cases involve “express” presumption, when Congress enacts a law that explicitly invalidates particular kinds of state laws. Imagine, for example, that South Carolina had a law requiring all T-shirts to be made with 100% yellow fabric. If Congress passed a law saying that “no state may regulate the color of T-shirts,” that federal law would expressly preempt South Carolina’s yellow shirt law.

Other relatively easy cases involve “impossibility” preemption, which occurs when it is impossible for someone to simultaneously comply with a state law and a different federal law. If Congress passed a law requiring all T-shirts to be made with 100% red fabric, for example, the hypothetical yellow shirt law would also be preempted because a shirt cannot be entirely red and entirely yellow at the same time.

The hardest preemption cases, meanwhile, involve state laws that may undercut a federal policy or undermine the goals of a federal law, but that do not present such a clear conflict with a federal law that it is impossible to comply with both laws. In Hines v. Davidowitz (1941), for example, the Supreme Court struck down a Pennsylvania law requiring noncitizens to register with the state, even though no federal law explicitly prohibited Pennsylvania from enacting such a registration regime.

The Court reasoned that Congress had passed “a broad and comprehensive plan describing the terms and conditions upon which aliens may enter this country, how they may acquire citizenship, and the manner in which they may be deported,” and that this plan fully established the rights and obligations of noncitizens within the United States. If Pennsylvania were allowed to supplement this federal plan with additional regulation, that would stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Hencely involved a dispute that more closely resembles Hines than it does the more clear cut hypotheticals involving yellow T-shirts. On the one hand, Nayeb had a job at Bagram because of a US military program called “Afghan First,” which, as Thomas explains in his opinion, “sought to stimulate the local economy and stabilize the Afghan Government by requiring contractors to hire Afghans ‘to the maximum extent possible.’”

Thus, as Alito wrote in dissent, the military had apparently decided that these “long-term foreign policy and defense objectives” justified the risk that an Afghan national might find work on a US military facility, and then use their limited access to that facility in order to commit a terrorist attack. 

In other words, much as the Pennsylvania immigrant registration law undercut the federal government’s broader goals of providing a certain level of civil liberties to noncitizens, Alito argued that allowing Hencely to sue a military contractor who complied with the federal government’s policy of giving jobs to Afghan nationals would undermine that policy.

Thomas, meanwhile, concluded that, while Fluor may have hired Nayeb in order to comply with a federal directive, it allegedly did not comply with all of its obligations to the federal government. Though Nayeb was allowed on the base, he was a “red-badge holder” and thus was supposed to be closely monitored and often escorted through the base by Fluor. 

An Army report, Thomas writes, concluded that “Fluor’s lax supervision … allowed Nayeb to check out tools that he did not need for his job and that he used to make the bomb inside Bagram.” It also found that Fluor failed to escort Nayeb off the base at the end of his shift.

Ultimately, Thomas disagrees with Alito that a state law can be preempted merely because it undercuts the military’s Afghan First policy in some oblique way. In Thomas’s view, preemption is only justified when “the government has directed a contractor to do the very thing” that is forbidden by state law. Hencely did not sue Fluor for hiring Nayeb; he sued Fluor for failing to adequately supervise Nayeb, and the federal government did, indeed, direct Fluor to monitor and escort red-badge-holding Afghan nationals.

Thomas’s opinion in Hencely is consistent with his behavior in some previous preemption cases

Thomas’s opinion in Hencely won’t surprise anyone familiar with his opinion concurring in the judgment in Wyeth, the case ruling in favor of the woman who lost her arm due to a drug’s side effect. In that case, Thomas wrote that “I have become increasingly skeptical of this Court’s ‘purposes and objectives’ pre-emption jurisprudence,” which allows courts to invalidate “state laws based on perceived conflicts with broad federal policy objectives … that are not embodied within the text of federal law.”

Justice Thomas, in other words, appears to reject cases like Hines, which hold that federal law can sometimes displace state laws even when there isn’t an unavoidable conflict between the two laws. The fact that Gorsuch and Barrett joined his opinion in Hencely suggests that these two relatively new justices, who weren’t on the Court when Wyeth was decided, may share Thomas’s views.

As a practical matter, that’s good news for consumers and for consumer rights lawyers. Cases like Wyeth, where the manufacturer of a potentially dangerous product claims that state lawsuits arising out of that product are preempted by federal law, are fairly common. Hencely suggests that at least three of the Court’s Republicans will not support these preemption claims, at least when federal law does not clearly conflict with a state law.

At the same time, immigrants and immigration advocates will likely look upon Hencely with trepidation, as it suggests that this three-justice bloc may also seek to overrule Hines, a seminal precedent establishing that states typically may not impose restrictions on immigrants that cannot be found in federal law. 

Preemption is not an issue that always favors the left or the right. Sometimes a state law benefits traditionally liberal causes, and sometimes it tries to advance a more right-wing goal. But Hencely suggests that the current Court will be more cautious about preemption claims generally, regardless of who benefits from that decision.

Imagine that you are a foreign national vacationing in New York when a civil war breaks out in your home country. Political dissidents, as well as bystanders who are unfortunate enough to get in the way of the warring factions, are being killed by the thousands. Meanwhile, the tourist visa allowing you to remain in the United States will expire soon, and returning home could mean a death sentence.

A 1990 federal law offers humanitarian relief to many foreign nationals who face this kind of dilemma. Under the law, the Department of Homeland Security (DHS) may offer “temporary protected status” to noncitizens who are already present in the United States during an “armed conflict” in their home nation, or if a natural disaster or some other catastrophe has made their home country unsafe. (Prior to 1990, foreign nationals in these circumstances could sometimes remain in the US under a program called “extended voluntary departure.” The 1990 law formalized the process that determines who may stay.)

As the program’s name suggests, temporary protected status (TPS) is temporary. DHS is supposed to periodically review the list of countries whose nationals may seek this status, and to remove countries from the list once the humanitarian crisis abates. TPS holders must register, and they are ineligible if they have a felony conviction, more than one misdemeanor conviction, or if they have ties to drug trafficking or terrorism. People with TPS status may work in the United States during their temporary residence.

The Trump administration, as part of its harsh overarching approach to immigration, is hostile to the TPS program. On his first day back in office, President Donald Trump issued an executive order with the hyperbolic title “Protecting the American People Against Invasion.” Among other things, Trump ordered his Cabinet to ensure that TPS designations “are appropriately limited in scope and made for only so long as may be necessary to fulfill the textual requirements of that statute.”

Since then, Trump’s administration terminated TPS designations for all 13 countries whose designations were due for a review. In some cases, it did so before the review was supposed to occur, and before the country’s previous designation had expired. (The full list of 13 countries includes Yemen, Somalia, Ethiopia, Haiti, Burma, South Sudan, Syria, Venezuela, Honduras, Nicaragua, Nepal, Cameroon, and Afghanistan.)

And that brings us to Mullin v. Doe and Trump v. Miot, two Supreme Court cases asking whether Trump’s apparent decision to cancel the TPS program is lawful. Doe concerns the Trump administration’s decision to strip TPS designation from Syria, a country that was recently in a civil war and that ousted its president in 2024. Miot involves Haitian nationals who fear returning to a country without a stable government, and where much of the country is controlled by criminal gangs. Both cases will be argued on April 29.

Realistically, both cases are likely to end badly for Syrian and Haitian nationals (and for other TPS beneficiaries). The Supreme Court has already blocked other lower court orders protecting TPS holders on its “shadow docket,” cases that the Court decides on an expedited basis, and the Trump administration is correct that federal law strictly limits the judiciary’s power to interfere with its decisions regarding TPS policy. (Although, as Linda Greenhouse points out, the Court has not yet blocked the lower court decisions benefiting Haitians and Syrians, so that is a point in the Doe and Miot plaintiffs’ favor.)

As the lawyers representing Syrian nationals write in their brief, federal law “forecloses challenges asserting that TPS must be extended because a country remains unsafe.” Nevertheless, they also argue that the Trump administration did not comply with “procedural mandates” that are written into federal immigration law, and that these mandates may be enforced by the courts.

Even if the Supreme Court agrees that these procedural mandates may be enforced, however, that will merely delay a reckoning over TPS. If the justices rule that Trump or his subordinates must jump through certain procedural hoops before they strip TPS protections from citizens of a particular country, the Trump administration can always just jump through those hoops.

Still, a procedural delay isn’t nothing. In the best-case scenario for Syrians and Haitians who rely on TPS, such a delay could allow them to run down the clock on the Trump administration, in the hopes that the next president will be less hostile toward immigrants and other foreign nationals in the United States. And, even if they can’t secure such a long delay, every day that TPS is in effect is a day when they won’t be deported to a place where they could be killed.

Doe and Miot are likely to turn on a federal law that forbids the courts from hearing many cases involving TPS

The Trump administration’s brief relies heavily on a federal law which provides that “there is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation” that a particular nation’s citizens are eligible for TPS. Trump’s lawyers argue that this statute prohibits the courts from hearing Doe and Miot altogether.

The plaintiffs, meanwhile, argue that this bar on judicial review is less total that it initially seems. Their primary argument is that the word “determination” appears multiple times in the TPS statute, and that it means only the DHS secretary’s conclusion that a particular country is or is not safe enough to allow citizens of that nation who are in the United States to return is forbidden from judicial review. Thus, they argue that other provisions of the TPS statute — including provisions that require the Trump administration to comply with certain procedures before it removes anyone’s eligibility for TPS — may be enforced by federal courts.

The plaintiffs also point to a handful of previous Supreme Court decisions, including McNary v. Haitian Refugee Center (1991), which read similarly worded bars to judicial review narrowly.

Although this argument persuaded many lower courts, it is far from clear that it will prevail in the Supreme Court. Again, the Court has already blocked lower court decisions that sought to extend the TPS program against the Trump administration’s wishes on its shadow docket, though some of those decisions were joined only by the Court’s Republican majority.

That said, the Doe plaintiffs also raise a policy argument that might convince some of the Republican justices that a total bar on lawsuits challenging the federal government’s TPS decisions would be undesirable. If no TPS-related decision by the Trump administration may be reviewed by the courts, that should also mean that a future administration could falsely claim that, say, Mexico has become so dangerous that its nationals should be eligible for TPS, and that it could do so “explicitly to accomplish mass legalization.” 

So let’s assume that the TPS plaintiffs do prevail on this jurisdictional argument, and win the right to argue that the Trump administration must comply with certain procedures before it takes away anyone’s TPS status. What happens then? Even in the best reasonable case for these plaintiffs, they probably only gain a short-lived reprieve.

The Trump administration’s process for rolling back TPS does appear to have been sloppy

Assuming that the Doe and Miot plaintiffs do convince the Supreme Court to consider their procedural arguments, those plaintiffs raise several objections to the process this administration used to slash the TPS program. 

The TPS statute, for example, requires the DHS secretary to consult “with appropriate agencies of the Government” before it determines whether a country should be removed from the list of nations whose citizens may claim TPS status. But, according to the plaintiffs, the Trump administration’s consultation process was extremely truncated, and seems to consist of a single email exchange between a DHS official and a State Department official, where State said in a one-paragraph email that it has “no foreign policy concerns” about rolling back TPS.

The plaintiffs also fault then-Secretary Kristi Noem for claiming that America’s “national interest” required rolling back TPS, even regarding countries that remain dangerous. While the TPS statute does require the DHS secretary to consider “the national interest of the United States” in its initial decision to designate a particular country for TPS, once a nation is on the list, the secretary is not supposed to consider this factor.

As the Miot plaintiffs argue, “it makes sense that Congress would give the Secretary discretion when making an initial designation but limit her discretion to terminate an existing designation” because, once someone has been given TPS status, they develop a “reliance interest.” It’s one thing for the United States to tell someone that it will not provide them with shelter in the first place. It’s far crueler to give them shelter, allow them to spend years building a life in the United States, then abruptly order them to resettle to another country or face deportation to a war zone.

Finally, the plaintiffs argue that Noem did not “base her decision on ‘a good-faith and objective review of country conditions,’” and that the real reason why she terminated so many people’s eligibility for TPS status was political. When Noem first announced that she was reducing the TPS program, she said that she was “getting direction” from Trump, and that “he is pausing this program.”

Rooting her decision in political conditions, the plaintiffs argue, violates the TPS statute, which required her to only consider whether “the conditions in the foreign state” still justify maintaining TPS status — that is, whether the country remains too dangerous to allow its citizens to return there.

There is one precedent where the Supreme Court sided with immigrants against the Trump administration, due to a procedural error by Trump and his subordinates. In Department of Homeland Security v. Regents of the University of California (2020), the Court reinstated the Deferred Action for Childhood Arrivals (DACA) program — which allows hundreds of thousands of noncitizens to live and work in the United States — thanks to a paperwork error by the Trump administration.

But Regents was also a 5-4 decision, with Chief Justice John Roberts joining the Court’s four Democrats. One of those Democrats, Justice Ruth Bader Ginsburg, died later that year and was replaced by Republican Justice Amy Coney Barrett. So it’s unclear whether Regents would come down the same way if it were decided today.

And even if the Court does reach an outcome similar to Regents in the Doe and Miot cases, now-DHS Secretary Markwayne Mullin could cure Noem’s procedural errors by running the TPS terminations through whatever process the Supreme Court deems adequate. And, unlike Regents, which was handed down in the final year of the first Trump administration, Trump currently has more than two years remaining in his term. So it is unlikely that TPS beneficiaries can run out the clock.

Again, a Supreme Court decision against Trump would still be a victory for Syrians and Haitians in the United States — and potentially for all TPS beneficiaries — because it would likely mean several months of safety while Mullin cures Noem’s procedural errors. But the law in this space does give Mullin a fair amount of authority that can’t be challenged in court. 

No matter what the Supreme Court does, in other words, the future is probably very grim for many foreign nationals who have taken refuge in the United States.

On Friday, a federal appeals court struck down a nearly 160-year-old federal law prohibiting people from distilling liquor in their own home. 

That’s a fairly momentous event in its own right — any claim that a law that’s been on the books since Reconstruction is unconstitutional should be greeted with a heaping spoonful of skepticism. But the United States Court of Appeals for the Fifth Circuit’s decision in McNutt v. US Department of Justice is particularly significant because it is all but certain to be heard by the Supreme Court, and this case may tempt the Court’s Republican majority to impose restrictions on federal power that have not existed since the early stages of the New Deal.

Although the justices normally get to choose which cases they wish to hear, the Court almost always agrees to hear a case “when a lower court has invalidated a federal statute.”

McNutt potentially raises a question that the Supreme Court resolved in the Franklin D. Roosevelt administration, but that many right-leaning lawyers and legal scholars have wanted to reopen for many decades. These Roosevelt-era decisions permit Congress to regulate the American workplace, such as by banning child labor or establishing a minimum wage. They also allow many federal regulations of private businesses to exist, including nationwide bans on whites-only lunch counters and other forms of discrimination.

The Constitution gives Congress sweeping authority over the national economy. But, for a period of several decades beginning in the late 19th century, the Supreme Court strictly limited the federal government’s power to regulate commercial activity that occurs entirely within one state. In Hammer v. Dagenhart (1918), for example, the Court struck down a federal law that sought to ban child labor, on the theory that most child workers’ jobs do not require them to cross state lines.

The Court abandoned this strict divide between national and local economic activity during the New Deal era — Hammer was overruled in 1941. But many prominent conservative legal thinkers, including Justices Clarence Thomas and Neil Gorsuch, have called for a return to the more limited approach to federal power that drove the Hammer decision.

McNutt tees up a potential Supreme Court showdown over Congress’s ability to regulate economic activity that occurs within a single state because the new case challenges a ban on alcohol distilling within the home. Most people’s houses do not cross state lines.

That said, there is a wrinkle in the McNutt case that may make it more difficult for justices who want to relitigate the New Deal to do so in this case. For reasons that aren’t entirely clear, the Justice Department, which is defending the ban in court, decided not to make its strongest legal argument on appeal — the argument that the ban on home distilling fits within Congress’s broad authority to regulate the national economy. So, if there are five justices who want to overrule some of the Roosevelt-era decisions establishing that Congress’s power over the economy is very broad, they will have to do so despite the fact that the DOJ seems to want to avoid this issue.

But that doesn’t change the fact that the best legal argument for the law at issue in McNutt is that Congress has the power to regulate local distilling under the New Deal decisions. So, if the Supreme Court wants to declare the law unconstitutional, it will be difficult for the justices to ignore that fact. 

McNutt is a hugely important case because it involves Congress’s two most consequential powers: the power to regulate the national economy, and the power to tax. Post-New Deal decisions defining these powers are the reason why a wide range of federal laws, including the minimum wage, the federal law guaranteeing that every American can obtain health insurance, and most federal laws barring discrimination, are able to exist. So the stakes are simply enormous every single time the Supreme Court decides to play with these federal powers.

Congress’s power to regulate production, briefly explained

The Constitution contains a laundry list of powers that Congress is allowed to exercise, such as the power to raise armies and the power to establish post offices. A federal law is unconstitutional if it does not fit within one of the powers specifically given to Congress by the Constitution.

That said, many of these powers are extremely broad. Congress’s lawful authority includes the power to tax, the power to spend these tax dollars to “provide for the common Defence and general Welfare of the United States,” and the power to “regulate Commerce…among the several States.” The Constitution also includes a somewhat vague provision permitting Congress to “make all Laws which shall be necessary and proper for carrying into Execution” laws enacted pursuant to its other powers.

When the Constitution was drafted way back in 1787, its provision allowing Congress to regulate commerce “among the several States” was understood to draw a line between the entire nation’s economy and purely local commerce. In the pre-industrial United States, a farmer located in, say, Iowa, might grow his crops on Iowa land, then transport them to a nearby Iowa town where they were purchased exclusively by other Iowans. Because none of this farmer’s behavior impacted more than one state, it was generally understood to be beyond Congress’s power to regulate.

But all of that changed after the construction of the railroads. In the post-industrial United States, this same farmer’s crops would be shipped to Chicago via the railways, where it would mix with similar grain grown by farmers throughout the Midwest. Then it might be shipped to consumers in many other states, or even overseas.

For about four decades in the late 19th and early 20th century, the Supreme Court tried to maintain a rigid divide between economic activities that were local in character, and those that impacted the entire nation’s economy. Hammer, for example, claimed that the production of goods for sale in an interstate or international market was beyond the reach of Congress, because factory workers typically do not cross state lines while they are producing those goods.

But this distinction proved unworkable. Even if Congress couldn’t regulate factory work directly, for example, its power to regulate the transit of goods across more than one state should allow it to ban any goods that are produced by child workers from traveling across state lines. So the Court largely stopped trying to draw a distinction between commerce that impacts the national economy and commerce that does not during the Roosevelt administration.

In Wickard v. Filburn (1942), the Supreme Court held that Congress’s power to regulate the production of goods includes the power to regulate all goods that are produced in the United States, even if some of those goods are never sold to anyone. Wickard rested on a modern understanding that all economic activity is connected, and that goods are often fungible. If a farmer grows wheat that only they and their family consume, the Court reasoned, that still increases the overall supply of wheat, which makes the overall price of wheat throughout the United States cheaper. 

More recently, in Gonzales v. Raich (2005), the Court applied this logic to marijuana. Congress, Raich held, could ban all marijuana production throughout the United States, including marijuana growth by individual producers who consume their own supply, because otherwise local growers would undercut the federal government’s goal of eliminating the nationwide market for marijuana altogether.

Wickard, in other words, established that Congress’s power to regulate the national marketplace for wheat includes the power to regulate all wheat produced in the United States, and Raich reached a similar conclusion regarding marijuana. So it should follow that, in the McNutt case, Congress’s power to regulate distilled liquors includes the power to regulate all distilled liquors, including those that are produced inside the home.

The Justice Department inexplicably did not rely on Wickard and Raich in its brief defending the ban on home distilling

Despite all of this legal history, the Justice Department cites neither Wickard nor Raich in its Fifth Circuit brief in the McNutt case. So, rather than analyzing whether the ban on home distilling is constitutional under those two cases, the Fifth Circuit’s opinion includes a short footnote indicating that the government “forfeited” any claim that Congress may ban home distilling under its broad power to regulate commerce.

Notably, the Justice Department filed its brief in October 2024, when President Joe Biden was in office. So the DOJ’s decision not to raise its strongest legal argument cannot be blamed on the fact that the Trump Justice Department is staffed with many lawyers who share Thomas and Gorsuch’s belief that huge swaths of federal laws regulating private businesses are unconstitutional.

Instead, the Justice Department made a less intuitive argument that Congress may ban home distilling to prevent local distillers from undermining Congress’s ability to tax alcohol.

In fairness, this argument is less silly than it sounds at first blush. As the DOJ argued in its brief, the ban on home distilling was originally enacted in 1868 “shortly after a congressional committee detailed rampant evasion of the spirits tax, including by home distillers.” The law was intended to force liquor producers to create their products openly, in distilleries that could be easily identified by the government and thus taxed.

Recall that the Constitution does not simply permit Congress to levy taxes; it also permits it to “make all Laws which shall be necessary and proper for carrying into Execution” those tax laws. In Felsenheld v. United States (1902), the Supreme Court indicated that this power to make laws incidental to taxation is quite broad — writing that “in the rules and regulations for the manufacture and handling of goods which are subjected to an internal revenue tax, Congress may prescribe any rule or regulation which is not, in itself, unreasonable.”

Still, Felsenheld is a very old case. And it is far from clear that a majority of the current Court, which often appears eager to shrink the government’s power to regulate private businesses, would deem an outright ban on home distilling to be a “reasonable” way to ensure that federal liquor taxes are collected — even though this ban has been around for more than a century and a half.

The Fifth Circuit, for what it is worth, did include a single sentence in its opinion explaining how a law that’s been around for nearly 160 years could suddenly become unconstitutional. It claimed that “the economics and practicality of at-home distilling today are much different than they were in the nineteenth century, and so is the government’s ability to investigate such activity.” So maybe the fact that the government has more ability to track down home distillers in 2026 than it did in 1868 could allow the Supreme Court to write a narrow opinion striking this law down because the law is no longer needed to serve its original purpose.

But that argument only works if you ignore Wickard and Raich, which permit the government to regulate all alcohol production anywhere in the United States, including within the home.

So how is this case likely to play out?

Again, it’s overwhelmingly likely that the Supreme Court will hear McNutt. The Court almost always reviews federal appeals court decisions that declare a federal statute unconstitutional.

To the extent that the Biden Justice Department wanted to avoid a showdown over whether Wickard and Raich should remain good law by simply ignoring those cases in its Fifth Circuit brief, this strategy is unlikely to work for very long. If the Supreme Court strikes down the home distilling ban on the narrow grounds that it’s not necessary to ensure that liquor is taxed, the federal government could revive the ban at any time by claiming that it’s lawful under Wickard and Raich — and then the courts would have no choice but to consider that argument.

Once McNutt reaches the Supreme Court, moreover, it’s likely that many of the justices will be eager to reconsider Wickard and Raich. Both decisions are very unpopular in Republican legal circles. And two justices, Thomas and Gorsuch, are so hostile to the post-New Deal understanding of federal power that they’ve endorsed the same legal framework that the Court once used to strike down child labor laws.

The question is just how far this Court will go if it does reconsider those two decisions. Again, the New Deal-era insight that Congress may regulate the entire chain of commerce, from the production of goods to their eventual sale to a local consumer, forms the basis for countless federal laws. It is the reason why Congress may regulate the workplace, bar restaurants from refusing to sell to Black customers, or require businesses to construct wheelchair ramps or other accommodations which ensure they are accessible to everyone. 

Wickard and similar cases all stand for the proposition that it is so hard for the courts to draw a principled line separating the national economy from local commerce that any attempt to do so will make a hash of the entire project, and require the courts to strike down federal laws for completely arbitrary reasons. If a majority of the justices decide to reconsider those cases, we can only hope that they find some way to limit the scope of their decision.