Notes Archives – Southern California Law Review

Congress’s Power to Investigate Local Prosecutors

September 2026September 2026Emily Berman*

Prompted by the unprecedented 2023 congressional investigation into Manhattan District Attorney Alvin Bragg’s prosecution of Donald Trump, this Article is the first to examine the constitutional tension between Congress’s investigative authority and state sovereignty in the context of congressional inquiries into local prosecutions. The urgency of addressing this undertheorized issue is underscored by the increasing frequency of conflicts between federally controlled institutions and state or local governments dominated by opposing political parties.

As partisan tensions persist, congressional investigations into state and local law enforcement actions could become increasingly common, raising profound questions about the balance of power within the United States’ federalist system. This Article argues that while Congress possesses broad investigative authority to fulfill its legislative functions, this power is not unlimited, particularly when it encroaches on states’ sovereign control over local law enforcement.

By analyzing structural constitutional constraints, individual rights guarantees, and pragmatic considerations that shape congressional investigations, the Article distills a set of guiding principles that courts, commentators, and political actors can apply to congressional efforts to investigate state or local prosecutorial decisions. These principles will help ensure that congressional oversight respects state autonomy and preserves the foundational balance of power between the states and the federal government.

Introduction

In 2023, Manhattan District Attorney (“DA”) Alvin Bragg indicted Donald Trump on thirty-four counts of falsifying business records to conceal hush money payments to adult film actress Stormy Daniels.¹ Depending on who you ask, this was either a righteous prosecution to protect the citizens of New York from fraudulent business practices² or a politically motivated “abuse of prosecutorial authority”³ that constituted a “disgrace to the judicial system.”⁴ Alleging that it was the latter, several legislative committees launched an investigation into Bragg’s office, demanding access to communications between and among current and former employees of the Manhattan DA’s office and the Justice Department, as well as information relating to the DA’s use of federal funds.⁵ Despite Bragg’s characterization of Congress’s investigation into his prosecutorial decisions as an “unconstitutional attempt to undermine” an active investigation and an impermissible invasion of state sovereignty,⁶ similar inquiries were launched into both New York State Attorney General Leticia James and Fulton County, Georgia District Attorney Fani Willis.⁷

These investigations raise undertheorized constitutional questions about the interaction between Congress’s investigative powers and principles of state sovereignty. As all first-year Constitutional Law students learn, the United States has a federalist structure in which individual states remain sovereign in all areas not governed by the powers delegated to the federal government.⁸ State and local criminal law enforcement have long been viewed as quintessential realms of state and local authority.⁹

At the same time, Congress enjoys broad investigative powers, grounded in the Constitution, for the purpose of carrying out its functions of legislation and oversight.¹⁰ And there are some exercises of state criminal law enforcement power that could legitimately be subject to congressional investigation. This is perhaps most evident in situations in which the investigation involves a state or locality’s use of federal funds: any time Congress appropriates money to the states, it is entitled to know how that money is spent. In addition, Congress regularly conducts investigations regarding state compliance with federal laws, and it needs to gather information regarding state action—including state prosecutorial action—when contemplating the exercise of its enforcement powers under the Thirteenth, Fourteenth, or Fifteenth Amendments.¹¹ The Bragg investigation, however, raises none of these issues. Rather, it is a congressional investigation into a local prosecutor’s use of state law, state rules, and state procedures to punish and deter crime taking place within his jurisdiction.

This Article attempts to answer the question of how to address conflicts between these two fundamental constitutional principles—Congress’s investigative power and state sovereignty—in the context of local law enforcement. It is an undertheorized question, in part, because such investigations are unusual.¹² While the Supreme Court has issued numerous decisions delimiting the boundaries of Congress’s investigative powers,¹³ none has addressed Congress’s power to investigate state and local law enforcement. Similarly, debates over the scope of states’ rights usually center around questions such as whether a particular federal statute or policy exceeds constitutional bounds and thus infringes on state authority,¹⁴ or whether the federal government is stepping on states’ constitutional toes by requiring them to enact or enforce federal policy.¹⁵ The House of Representatives’ recent investigations into state and local law enforcement offices therefore raise a new question about the relationship between federal and local authorities: whether and when congressional investigations of specific state or local law enforcement actions are constitutionally justified, and when, if ever, they represent an impermissible encroachment into state sovereignty.

This question is not merely theoretical. While this type of investigation might have been novel when the investigation into Bragg’s office was launched in 2023, it may not be the last of its kind. More and more frequently, we are seeing states or localities controlled by one political party square off against a federal government controlled by the other party; this phenomenon can be found in the context of sanctuary cities (whether for immigration or for guns), environmental policy, school funding, deployment of National Guard troops, and more. While most of these conflicts arise through challenges to federal laws or executive policies, legislators are not blind to the significant rewards—in the form of both fundraising and reputational benefits—that redound to political actors who place themselves on the front lines of fights over controversial issues of the day. In particular, the ongoing debate over whether and when the institutions of government have been “weaponized” against political opponents means that local prosecutions can be cast as battles in the ongoing cultural wars.¹⁶ As a result, investigations into local prosecutions provide members of Congress with opportunities to reap these benefits, and we can expect them to do so. This will be particularly true in times of unified control over the federal government. When Congress is controlled by the same party as the White House, investigations into executive activities are much less likely to occur. Legislators seeking credit for furthering their party’s platform through investigative activities, therefore, might turn their critical eyes to what state officials are doing.

Trump v. United States, which held that presidents are largely immune from prosecution for actions taken in their official capacity,¹⁷ does not eliminate the possibility that there will be state prosecutions for Congress to investigate. The holding in Trump v. United States does not apply to unofficial acts, which are acts taken outside the scope of the president’s official duties.¹⁸ So, it does not preclude the kind of prosecution that Bragg pursued—prosecution for purely private, unlawful action taken before the president entered the White House—nor does it preclude state investigation into the activities of federal officials (other than the president) who do not enjoy immunity as broad as the president’s.

Thus, thinking more deeply about whether and when Congress is entitled to access information about any given state or local prosecution remains a valuable exercise. This Article concludes that the question does not lend itself to an easily implemented, formulaic answer. Instead, it requires case-specific analysis of the facts at issue, the interests at stake on either side of the equation, and recognition of what Justice Jackson described in the Steel Seizure case as “contemporary imponderables”—the contextual, shifting, and unpredictable political realities against which the conflict plays out.¹⁹ Nevertheless, this Article argues that there are several principles that developed in challenges to other types of congressional investigations that can provide guidance for resolving information disputes between Congress and local prosecutors. It examines several of these principles in detail and identifies how they could apply to congressional investigations of local prosecutions.

The Article proceeds in three parts. Part I will set out in more detail the competing constitutional principles that congressional investigations of state law enforcement officials implicate and how the House of Representatives’ recent investigations into local law enforcement bring those interests into conflict with one another. Part II will then explore how the limits of congressional investigative authority have been determined in other contexts. Part III then returns to each of the contexts discussed in Part II and seeks to apply their lessons to the dispute over the investigation into Bragg’s office. This exercise reveals several concrete principles that should guide evaluation of the legitimacy of any congressional investigation into state or local law enforcement entities. The Article then briefly concludes.

I. Competing Constitutional Principles

Nearly a century ago, the Supreme Court recognized that Congress must possess broad, robust investigative authority to effectively perform its constitutional functions.²⁰ At least as fundamental to the constitutional structure, however, is the principle of federalism, which guarantees the states sovereignty over their local affairs²¹—and law enforcement has long been deemed a quintessentially local affair.²² This Part will explore the contours of each of these principles to lay the foundation for the discussion that follows. It will then detail how the House’s recent investigations into local law enforcement activities bring those principles into conflict.

A. Congress’s Power to Investigate

Congress’s investigative authority dates back to the earliest days of the Republic.²³ The seminal 1927 Supreme Court opinion of McGrain v. Daugherty recognized that each house of Congress possesses “not only such powers as are expressly granted to them by the Constitution, but such auxiliary powers as are necessary and appropriate to make the express powers effective.”²⁴ It went on to identify “the power of inquiry—with process to enforce it” as “an essential and appropriate auxiliary to the legislative function.”²⁵ The Court explained that no legislative body can legislate wisely or effectively in the absence of information respecting the conditions that the legislation is intended to affect or change; and when the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it.²⁶

In other words, Congress’s investigative powers exist to enable Congress to seek and acquire the information it needs to carry out its constitutional responsibilities.²⁷ Subsequent cases confirmed this view of the nature of Congress’s investigative authority—that it is rooted in the Constitution because it is “inherent in the legislative process.”²⁸ While many of the relevant precedents are decades old, the Roberts Court explicitly reaffirmed this premise in 2020 when it held that Congress has the power to subpoena the private records of sitting presidents.²⁹

In addition to being constitutionally grounded, Congress’s investigative authority is broad. One formulation explains that it encompasses “inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes[;] surveys of defects in our social, economic or political system;” and “probes into departments of the Federal Government to expose corruption, inefficiency[,] or waste.”³⁰ Another Supreme Court opinion noted that Congress’s investigative authority is “as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”³¹

Broad as Congress’s investigative powers are, they are not unlimited. For example, Congress has no “general power of inflicting punishment” (beyond punishing its own members), nor may it “inquir[e] into the private affairs of the citizen.”³² Also off limits are exposure for its own sake³³ and investigations “solely for the personal aggrandizement of the investigators.”³⁴ Instead, “the power actually possessed is limited to inquiries relating to matters of which the particular house ‘has jurisdiction’ and in respect of which it rightfully may take other action.”³⁵ Thus, to be permissible, an investigation must fall within the investigating committee’s jurisdiction and must be “related to, and in furtherance of, a legitimate task of the Congress.”³⁶

When it comes to identifying the purpose of a congressional investigation—and thus assessing whether that purpose is legitimate—courts have declined to look behind the motives provided by investigators to determine whether those motives are sincere or pretextual. Historically, so long as the investigation objectively serves a legitimate legislative purpose, courts have generally deemed that sufficient.³⁷ The executive branch, by contrast, has at times asserted the right to assess for itself whether legislative inquiries into executive branch activities serve legitimate legislative interests.³⁸

Finally, there are limits even on investigations whose legitimacy is unquestioned. As an initial matter, recipients of congressional subpoenas may assert constitutional rights—such as the right not to incriminate oneself.³⁹ In the case of information held by the executive branch, those limits also include things like executive privilege.⁴⁰ In addition, the specific information or testimony Congress seeks must be pertinent to the investigative purpose. In Wilkinson v. United States, the Supreme Court articulated a three-prong test to determine the legal sufficiency of a congressional subpoena: (1) the Committee’s investigation of the broad subject matter area must be “authorized by Congress”; (2) the investigation must be pursuant to “a valid legislative purpose”; and (3) the specific inquiries involved must be “pertinent” to the broad subject matter areas that have been authorized by Congress.⁴¹ The test laid out in Wilkinson rises to the level of a constitutional due process requirement when the request comes in the form of a congressional subpoena, with which noncompliance can lead to criminal prosecution for contempt of Congress.⁴² Of course, all congressional requests for information or testimony bring with them an implicit (or sometimes explicit) threat of subpoena for noncompliance. Therefore, the rules applicable to subpoenas also shape the scope of any congressional information request.

The upshot of the relevant case law is that Congress enjoys expansive powers of investigation so long as the investigating committee has jurisdiction over the issue and Congress as a whole has a legitimate interest in the information being sought.

B. State Sovereignty

“The powers delegated by [the Constitution] to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”⁴³ While much has changed since James Madison wrote those words in Federalist No. 45, the idea that individual states remain sovereign entities empowered to govern as they see fit in arenas beyond federal control remains a foundational one.⁴⁴ Indeed, the Tenth Amendment ensures as much when it provides that “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.”⁴⁵ As recently as 1990, the Supreme Court described as an “axiom” the idea “that, under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause.”⁴⁶ The Constitution preserves the sovereign status of states by dictating that they retain the trappings of traditional sovereignty—the primacy of the authority within their respective spheres—rather than relegating them to “the role of mere provinces or political corporations.”⁴⁷

Perhaps foremost among the justifications for the United States’ federalist structure is the check it places on potential abuses of government power.⁴⁸ Where the separation of powers prevents any one branch of the federal government from accumulating too much power, federalism sets up the state and federal governments as checks on one another.⁴⁹ As Justice Kennedy once put it, “[t]he Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.”⁵⁰

Cases and commentators have identified numerous additional potential benefits of federalism, including “increasing opportunities for political participation; maximizing choice and utility through state or local government competition and citizens’ rights of exit; maintaining opportunities for creation or preservation of diverse cultures; providing opportunities for experiment and beneficial innovation; . . . and enhancing personal and group liberty or empowerment, by providing multiple layers of government to which citizens may appeal.”⁵¹

Despite broad consensus that federalism can play an important role in the constitutional scheme, how the principle should be operationalized is a topic of long-standing debate. Heather K. Gerken has categorized three types of institutional arrangements that scholars have identified, through which states can vindicate their sovereign interests and realize the boons of federalism: (1) states as autonomous sovereigns, (2) federalism as process, and (3) cooperative federalism.⁵² The sovereignty-as-autonomy theory⁵³ posits that states, as sovereigns, must “enjoy the power to rule without interference in a policymaking domain of their own”—and that courts should ensure that the federal government does not interfere in such domains.⁵⁴ Process theorists share the view that federalism preserves for states the ability to engage in policymaking separate and apart from the federal government, but they reject a role for the courts in policing the line between state and federal authority.⁵⁵ Instead, they argue, the political process itself contains within it the tools that states need to vindicate their own interests.⁵⁶ Finally, cooperative federalism stresses the ability of states to satisfy local policy preferences through their administration of federal programs.⁵⁷ Because so many federal regimes—environmental law, health care, and others—are implemented on the ground by state administrators, these state bureaucrats have power to shape the policy through the way they implement it. These three means of operationalizing federalism principles are not mutually exclusive. Indeed, some scholars concede that each of these different models may be appropriate depending on the context at issue.⁵⁸

Regardless of what theory of federalism’s implementation one favors, however, each of them represents recognition of a zone of authority in which the state is the ultimate sovereign. The challenge is that it is notoriously difficult to identify precisely the line between state and federal power. In the words of one Supreme Court Justice, “The task is to identify a mode of analysis that allows Congress to regulate more than nothing . . . and less than everything . . . .”⁵⁹ Indeed, the Supreme Court has engaged in a series of trial and error in this regard.⁶⁰ Nevertheless, there remain some substantive areas of law more commonly associated with state and local government than with the federal government. And as the Supreme Court recently recognized, “the clearest example of traditional state authority is the punishment of local criminal activity.”⁶¹ This is not to say that the federal government has no role here; indeed, the increase in federal criminal regulation has been well-documented,⁶² and local jurisdictions frequently work hand in glove with the feds to enforce federal laws.⁶³ Federal intervention in the criminal law arena, however, tends to represent exercises of concurrent authority, not preemptive authority. In other words, despite Congress’s expansion of criminalization at the federal level, federal action does not displace state authority to develop and implement its own laws, policies, and priorities. So, while there are numerous contexts in which state and federal authorities implement criminal law in a “cooperative federalism” fashion, criminal law remains one of the primary areas of quintessentially local control.

C. A Conflict Between Congress’s Power to Investigate and State Sovereignty

In recent years, Congress’s expansive investigative powers and the constitutional commitment to state sovereignty came into conflict when committees of the House of Representatives launched investigations into several local law enforcement offices, each of which had (coincidentally?) initiated civil or criminal enforcement actions against then-former President Trump.⁶⁴ The Judiciary Committee’s investigation into Bragg’s prosecution of Trump is the investigation in which the opposing parties’ various arguments are most well-developed and thus allow the most rigorous examination. As a result, this Section will focus on that investigation. It will first briefly describe the facts of the investigation. It will then set out the interests that Congress asserted to justify that investigation as well as the Manhattan DA’s objections to them, demonstrating the ways in which the investigation brought competing constitutional interests—Congress’s investigative authority and state sovereignty—into conflict.

The Bragg Investigation

The prospect of initiating an investigation into local law enforcement initially arose when social media reports announced that a Manhattan grand jury was on the cusp of returning an indictment against Trump for falsifying business records in violation of New York law.⁶⁵ In the wake of these reports, Trump’s lawyers sent a letter to Representative Jim Jordan, Chair of the House Judiciary and House Oversight Committees, urging him to initiate an investigation into what the letter called an “egregious abuse of [Bragg’s] power.”⁶⁶

On March 20, 2023, the chairmen of three congressional committees jointly launched an investigation into Bragg’s “decision to pursue such a politically motivated prosecution.”⁶⁷ The committees demanded that Bragg provide testimony, as well as several categories of documents—any communications between his office and the U.S. Department of Justice (“DOJ”) relating to the investigation of Trump, any communications involving former Manhattan DA employees Carey Dunne and Mark Pomerantz relating to Trump, and any documents or communications regarding the office’s receipt and use of federal funds.⁶⁸ Two days later, letters went directly to Dunne and Pomerantz, both of whom had worked on investigations into Trump, requesting the same categories of information.⁶⁹

In its response, Bragg’s office characterized the committees’ request as “an unprecedent[ed] inquiry into a pending local prosecution,” a “transparent campaign to intimidate and attack” the DA, and “an unlawful incursion into New York’s sovereignty”; it added that compliance with the request “would interfere with law enforcement.”⁷⁰ It did offer, however, to provide information about its use of federal funds (in a subsequent letter, the DA’s office indicated that it did not spend any funds received through federal grant programs on the Trump matter).⁷¹ Bragg also sent letters to Dunne and Pomerantz, instructing them to decline to respond to the legislators’ requests because they “raise[d] significant concerns about federalism, state sovereignty, the limits on congressional power, and the purpose and legality of the inquiry.”⁷²

After Bragg’s office unsealed an indictment against Trump, the House Judiciary Committee subpoenaed Pomerantz, instructing him to appear for a deposition before the Committee.⁷³ It also sought documents and testimony from Matthew Colangelo—a former employee of the Office of the New York State Attorney General and previously employed as Senior Counsel in Bragg’s office.⁷⁴ Colangelo had worked on previous investigations into Trump before Bragg hired him to participate in the prosecution of Trump for falsification of business records.⁷⁵ The letter to Colangelo demanded documents and communications between Colangelo and anyone else (including the DA’s office prior to his employment there) about either his prospective employment or Trump.⁷⁶

On April 11, 2023, Bragg’s office sued in federal court to block enforcement of the subpoena served on Pomerantz on the grounds that it lacked a legitimate legislative purpose.⁷⁷ In the alternative, if the court determined there was a legitimate legislative purpose for the Committee’s investigation, the complaint asked that it declare the subpoena unenforceable because it sought privileged material and secret grand jury material.⁷⁸ Southern District of New York District Judge Vyskocil rejected Bragg’s arguments. While “mindful of potential federalism concerns” raised by the case, she concluded that the Committee had legitimate legislative purposes justifying both the investigation itself and the Pomerantz subpoena.⁷⁹ Notably, she observed that a court’s role in assessing the validity of “a congressional subpoena is strictly limited to determining only whether the subpoena is ‘plainly incompetent or irrelevant to any lawful purpose.’ ”⁸⁰ Therefore, while Bragg described the Committee’s stated interests as pretextual, the judge explained that courts are “required to presume that a congressional committee’s stated legislative object is ‘the real object’ ” of the investigation.⁸¹

In the wake of the district court’s decision, Bragg and the Committee reached an agreement for Pomerantz to testify at a closed-door session of the House Judiciary Committee; but, at that meeting, Pomerantz invoked his Fifth Amendment right against self-incrimination and declined to provide substantive answers.⁸² In addition, after Trump had been tried and convicted on all counts brought against him by the Manhattan DA, Bragg and Colangelo agreed to testify before Congress after Trump’s sentencing.⁸³ Meanwhile, Representative Jordan also sought information about Colangelo’s role in investigating Trump from several of Colangelo’s former employers, including the federal Justice Department and the Office of the New York State Attorney General.⁸⁴ Indeed, Representative Jordan threatened to subpoena New York Attorney General James if she did not voluntarily provide that information.⁸⁵

Congress’s Interests

Identifying the interest behind committee investigations is critical to determining their lawfulness.⁸⁶ As noted above, congressional investigations must be within the jurisdictional scope of the investigating committee’s charge and must serve legitimate legislative interests. Moreover, a specific subpoena is enforceable only if the materials it seeks are “pertinent to the matter under inquiry.”⁸⁷ In its letters seeking information from local law enforcement offices, the Judiciary Committee provided several different—and arguably evolving—justifications for its investigation. As discussed in Section III.B, at least some of the justifications identified here likely qualify as legitimate legislative purposes for the investigation as a whole, though it is possible that a subpoena of all of the information the Committee requested would be overbroad.

At the outset, the Committee explicitly described its investigation as an effort to “conduct[] oversight of politically motivated prosecutions by state and local officials.”⁸⁸ Representative Jordan wanted Bragg to “ ‘explain’ himself” and threatened “that the House of Representatives will ‘hold Alvin Bragg . . . to account’ for indicting Mr. Trump.”⁸⁹ Similarly, the Committee sought information that would “shed substantial light on the underlying motives for [Bragg’s] investigation into and indictment of President Trump”⁹⁰ because, in its view, existing information raised questions regarding the DA’s office’s “commitment to evenhanded justice.”⁹¹ Subsequently, the Committee argued that it was concerned about the potentially political nature of the prosecution not because they disagreed with it, but because it “could have a profound impact on how Presidents choose to exercise their official duties while in office.”⁹²

While the politics of local prosecutors may not provide a compelling interest for congressional investigation, the Committee subsequently asserted additional justifications for its investigation that address more traditional congressional concerns. First, it asserted that the prosecutions raised the question of whether Congress should “draft legislative reforms to, among other things, protect former and current Presidents from” such prosecutions.⁹³ One legislative proposal would have allowed former and current presidents and vice presidents to remove their cases from state to federal courts.⁹⁴ The law already allows removal for actions filed in state courts against federal officers acting within the scope of their official duties.⁹⁵ Second, the Committee identified the question of whether Congress should clarify the preemptive effect of the Federal Election Campaign Act (“FECA”), the violation of which was one factor underlying Trump’s felony convictions.⁹⁶ Third, the Committee stated that it wanted to study whether to amend “the authorities of special counsels [to] better delineate their relationships with other prosecuting entities” (because the facts on which Bragg’s indictment was based were originally discovered by Special Counsel Robert Mueller in his investigation into Russian interference in the 2016 presidential election).⁹⁷ Finally, the Committee raised the use of federal funds as a justification for its investigation of Bragg. Again, concrete legislative proposals were based on this justification: proposed legislation would have excluded the Manhattan DA’s office from any award of federal funds and barred state and local law enforcement agencies from using funds or property seized through asset forfeiture to investigate or prosecute a president, vice president, or presidential candidate.⁹⁸ The Committee also raised the possibility of using Congress’s spending power to combat what it viewed as political prosecutions. It suggested, for example, tying “federal funds to improved public safety metrics” to dissuade local prosecutors from focusing on “apparent political prosecutions over commonsense public safety measures,”⁹⁹ or to impose conditions “to ensure that [federal] funds are not used to engage in discrimination on the basis of partisan affiliation or political beliefs.”¹⁰⁰

As Bragg’s office pointed out, these asserted federal interests in federal funding conditions or statutory amendments are likely only part of the investigations’ motivations. Recall that numerous supporters of former-President Trump weighed in publicly with their views regarding Bragg’s prosecution, calling it an abuse of his office¹⁰¹ and prosecutorial misconduct,¹⁰² and pledged to “hold [him] to account.”¹⁰³ In other words, the investigation was at least in part motivated by the desire to attack the validity of the prosecution itself; any desire for legislative reforms or inquiries into spending federal funds were likely secondary. Of course, as Section I.A makes plain, legislative motive is not something courts typically consider when assessing the legitimacy of a congressional investigation. Whether local law enforcement offices should adopt that same rule when considering whether and how to respond to congressional subpoenas is, of course, a different question.

New York’s Interests

Some of Bragg’s objections to the Committee’s information demands relied on the argument that Congress had overstepped its authority. Due to what the DA’s office characterized as investigators’ “constantly shifting purported legislative interests and purposes that supposedly justify the Committee’s unwarranted ‘incursion’ into a state criminal case,” for example, it argued that no legitimate legislative purpose supported the investigation.¹⁰⁴ Moreover, the DA argued that the investigation was initiated “for the personal aggrandizement of the investigators or to ‘punish’ those investigated”—neither of which is a permissible justification for congressional inquiries.¹⁰⁵

Other objections were grounded explicitly in federalism. Pointing to Supreme Court cases such as United States v. Lopez¹⁰⁶ and NFIB v. Sebelius,¹⁰⁷ Bragg articulated an argument based purely on state sovereignty: the Committee “has no power under the Constitution to oversee state and local criminal matters.”¹⁰⁸ Locally elected state officials followed the laws and procedures of the State of New York and handed down an indictment issued by a grand jury made up of citizens of New York. With respect to the subpoena to Colangelo, Bragg described requests for information about “the ‘circumstances and chain of events that led to [Mr. Colangelo’s] hiring by the New York County District Attorney’s Office’ ” as a congressional effort to conduct “ ‘oversight’ of the District Attorney’s personnel decisions.”¹⁰⁹ As noted above, congressional efforts to second-guess the DA’s decision to pursue a lawful prosecution—at best through the use of the bully pulpit, at worst through threats and intimidation¹¹⁰—exceed the scope of Congress’s powers.

Bragg also presented arguments that would justify withholding at least some of the requested information on a more granular basis. New York law, for example, requires that grand jury information remain secret.¹¹¹ This law might permit—or require—withholding that type of information from congressional committees, even if it was responsive to a valid subpoena. In addition, the Rules of Professional Conduct bar prosecutors from making extrajudicial statements during criminal prosecutions.¹¹² Any current employee of the DA’s office would therefore be bound by those rules, though they may not apply to former prosecutors like Pomerantz. Bragg’s office also pointed out that the information the Committee sought might be subject to various privileges, such as deliberative process, work product, and confidential investigative material.¹¹³

In dismissing Bragg’s complaint, the district court rejected these arguments out of hand. Once the judge determined that the Committee had articulated a legitimate legislative purpose for its investigation—she pointed to the desire to investigate the use of federal funds—that was the end of her inquiry. There was no effort to balance the sovereign interests of New York with the power of Congress. Nevertheless, these state objections raise nontrivial constitutional questions in their own right. Any mechanism for resolving such disputes ought to account for the interests asserted on both sides of the equation, rather than mechanically deferring to Congress.

***

This Section demonstrates that, while not every congressional justification for its inquiry into Bragg’s prosecution of Trump had a legitimate basis, some did. Some of those legitimate justifications—even if at least partially pretextual—arguably empowered Congress to engage in investigations that threaten to infringe on New York’s state sovereignty. The challenge therefore is determining how to honor Congress’s constitutional role while protecting the states’ sovereign interests. The next Part begins to address this question by exploring some of the ways in which congressional investigative power is balanced against competing interests in other contexts.

II. Constraints on Congressional Investigations

Recognizing that both Congress and local officials have legitimate interests at stake in these disputes, the challenge becomes finding a way to balance them. As with any effort to balance competing interests, there is no silver bullet. There are, however, places to look for some guidance. This Part first looks at three contexts in which congressional investigative authority runs up against competing interests to consider how those interests are accommodated and what those accommodations might teach us about resolving congressional–state disputes. Two of these contexts involve the separation of powers. First, there are disputes over congressional access to federal law enforcement information. Second, there are disputes over the valid scope of congressional investigations outside the law enforcement context that raise separation-of-powers concerns. Third, there are disputes between Congress and individual witnesses when congressional investigations risk infringing on individual constitutional rights. Finally, this Part considers some of the constraints Congress faces in accessing information due to practical, rather than legal or theoretical, limits. To be sure, the contexts discussed in this Part raise questions different from those implicated in congressional investigations of state and local law enforcement. Nevertheless, as we will see in Part III, they provide useful lenses through which to look at competing federalism and congressional interests in the context of investigations into state or local law enforcement activity.

A. Federal Law Enforcement and the Separation of Powers

While the investigation into Bragg’s prosecution of former-President Trump is an anomaly, debates over congressional access to law enforcement information at the federal level are long-standing. In fact, disputes over congressional requests to the Justice Department regarding law enforcement activity form their own unique subset of interbranch information disputes—and are often particularly contentious.¹¹⁴ This Section will highlight how these separation-of-powers disputes balance congressional and executive interests.

In the words of the Justice Department’s Office of Legal Counsel (“OLC”),¹¹⁵ “it has been the policy of the Executive Branch throughout this Nation’s history generally to decline to provide committees of Congress with access to or copies of law enforcement files except in the most extraordinary circumstances.”¹¹⁶ The Justice Department has articulated numerous reasons for this policy,¹¹⁷ but one concern grounded in the separation of powers features particularly prominently in their arguments: concerns about Congress exerting undue influence over prosecutorial decisions.¹¹⁸ As one OLC memo put it, keeping “a congressional committee[] fully apprised of all details of an investigation as the investigation proceeds,”¹¹⁹ would turn Congress into “a partner in the investigation . . . [raising] a substantial danger that congressional pressures will influence the course of the investigation.”¹²⁰

As Todd David Peterson has emphasized, the value of preserving executive independence in prosecutorial decision-making lies “not simply upon the idea that the executive branch must have freedom in order to perform its job properly, but, more fundamentally, upon the perception that giving either the judicial or legislative branches influence over the decision to prosecute would concentrate too much authority in the hands of one branch.”¹²¹ The authority that writes the laws should not also be involved in enforcing or adjudicating them. Thus, OLC views any judicial or legislative interference with the executive’s prosecutorial discretion regarding any individual as an unconstitutional encroachment on the executive’s authority to execute the laws.¹²² Congressional involvement in prosecutorial decisions, in other words, poses a threat to liberty by breaking down the boundaries between the branches of the federal government.

At the same time, the executive recognizes that not all congressional requests for law enforcement information are created equal. Concerns about improper congressional involvement are at their height when an investigation remains open—particularly pre-indictment—when such involvement might influence the course of DOJ’s actions.¹²³ Moreover, according to DOJ, Congress’s lack of law enforcement responsibilities means that its need to access information about open investigations is “generally limited.”¹²⁴ By contrast, executive branch lawyers acknowledge that once an investigation has been closed, objections to providing Congress access to investigative files fade.¹²⁵ While such disclosure should generally withhold materials that include “unpublished details of allegations against particular individuals” or “details that would reveal confidential sources[]

and investigative techniques and methods,”¹²⁶ providing summaries or redacted versions of documents can often resolve this concern.¹²⁷

The executive branch has long conceded, however, that Congress has “a legitimate legislative interest in overseeing the Department’s enforcement of . . . [relevant statutes] and in determining whether legislative revisions” should be made.¹²⁸ These inquiries require information not about specific investigations but rather about the executive branch’s policies regarding implementation of criminal statutes more generally. The bottom line is that open file requests should be regarded with skepticism, while disclosing information about closed investigations or enforcement policy more generally raises fewer red flags.¹²⁹

By contrast, Congress’s official view is that law enforcement information is the same as any other executive branch information. Thus, congressional investigators maintain that, as long as the committee has jurisdiction over the subject matter of the investigation and the request for information is supported by a legitimate legislative purpose, that should suffice.¹³⁰ At the same time, however, Congress also acknowledges that “law enforcement information” is a category encompassing numerous kinds of information. So, while Congress concedes that it “cannot dictate prosecutorial policy or decisions in particular cases,”¹³¹ it maintains that it may legislate regarding prosecutorial policy generally. Thus, rather than distinguishing between open and closed investigations, Congress focuses on whether the inquiry targets DOJ decision-making in a particular case as opposed to more general questions relating to DOJ’s enforcement of the laws.¹³² In Congress’s view, the question should be whether the investigation “prevents the executive branch from accomplishing its assigned functions” and, if so, “whether that impact is justified by an overriding need to promote objectives within the congressional authority of Congress.”¹³³

Despite these very different articulations of the appropriate rules, Peterson’s historical inquiry into actual past practices reveals that “Congress seems generally to have been respectful of the need to protect material contained in open criminal investigative files. There is almost no precedent for Congress attempting to subpoena such material, and even fewer examples of the DOJ actually producing such documents.”¹³⁴ Congress has, however, succeeded in obtaining materials from closed files, except for grand jury materials that the government is obligated to keep confidential.¹³⁵ Congress’s own research arm has reached similar conclusions.¹³⁶

In summary, both Congress and the executive branch recognize constitutionally significant distinctions among requests for law enforcement information. DOJ’s objections to disclosure are particularly forceful when Congress is inquiring about an ongoing, open investigation—a context with significant separation-of-powers implications. At the same time, other inquiries—those related to closed investigations, examinations of DOJ’s enforcement policies, and alleged wrongdoing within the DOJ—raise fewer structural constitutional concerns.¹³⁷ While the executive branch and Congress may discuss this topic using very different language, their disparate reasoning seems to have resulted in similar ultimate conclusions regarding what information appropriately can be shared with congressional inquiries. In practice, therefore, it seems that Congress has largely acquiesced in the understanding that its access to information regarding ongoing law enforcement activities is particularly sensitive, and it is unlikely to press for such information in the absence of an urgent need.

B. The Scope of Congress’s Authority

Another point of interbranch dispute over congressional access stems from the requirement that congressional investigations serve a legitimate legislative purpose. Recall that all congressional investigations must be “related to, and in furtherance of, a legitimate task of the Congress.”¹³⁸ Executive officials have raised objections both to the substance of an investigation—arguing that there is no legitimate legislative purpose justifying the investigation—and to the motivation behind an investigation—that idea that the legitimate justification congressional investigators have offered is not actually motivating the inquiry. As noted above, the courts typically decline to entertain challenges to legislators’ subjective motives; but in interbranch disputes, the executive branch continues to raise them. These disputes between Congress and the executive over whether a congressional investigation exceeds Congress’s powers offer another context in which to think about managing information disputes that implicate structural constitutional principles.

Challenges to congressional investigations based on executive branch assessments of legislative purpose are not new, but they proliferated during Trump’s first administration. Trump’s OLC articulated a robust role for the executive itself in assessing the validity of Congress’s investigations, asserting that the executive had not only the authority but also the responsibility to independently confirm “the legitimacy of an investigative request.”¹³⁹ This view arguably reversed what had been the default rule—broad deference to congressional determinations of its own information needs, similar to the courts’ approach—into one in which the executive claimed the power to deny access to any information unless Congress could convince the executive branch of the legitimacy of its inquiry.¹⁴⁰ Trump’s DOJ challenged congressional investigations on these grounds in several instances. For example, in a 2019 OLC memo considering whether House committees had a legitimate legislative interest in the tax returns of then-President Trump and several of his businesses, DOJ rejected the validity of the congressional request. It opined that “[t]he Committee’s asserted purpose—to consider legislation regarding the IRS’s practices in auditing presidential tax filings—was implausible,” and that in rejecting the request, the Department of the Treasury had “ ‘reasonably and correctly’ concluded that the Committee’s stated purpose was pretextual[,] and its actual purpose” for the request “was simply to provide a means for public disclosure of the President’s tax returns.”¹⁴¹ It went on to argue that while courts are bound to apply deference to Congress’s statements of purpose, the executive need not do so.¹⁴² Indeed, it averred, the executive should “engage in searching inquiries about congressional motivation.”¹⁴³

When the Biden OLC revisited this question, it disagreed. It replaced the 2019 memo with a memo of its own, concluding that OLC had gone “astray” when it determined “that the Executive Branch should closely scrutinize the Committee’s stated justifications for its requests in a manner that fail[s] to accord the respect and deference due a coordinate branch of government.”¹⁴⁴ Instead, it concluded that, like courts, “Executive Branch officials must apply a presumption that Legislative Branch officials act in good faith and in furtherance of legitimate objectives.”¹⁴⁵ This is so even if there are members of Congress motivated by a desire to act solely “for the sake of exposure”¹⁴⁶ and despite the fact that some legislators might be motivated, at least in part, by political considerations.¹⁴⁷ The Biden OLC conceded that the presumption of regularity to which Congress is entitled can be overcome, but in order to do so, “ ‘it must be obvious’ that a congressional committee’s investigation has exceeded the bounds of legislative power.”¹⁴⁸ The Biden administration’s clarification of the executive branch’s views on this subject echoed the conclusion of most of the courts that reached the question during the first Trump administration.¹⁴⁹ With Trump’s return to the Oval Office, we can expect to see OLC about-face once again and return to the theory articulated in the 2019 memo.

One of the many battles over information between Congress and the first Trump administration yielded a Supreme Court opinion that seems to have staked out a middle ground between the Trump and Biden OLC positions, at least when the information at stake implicates the separation of powers. In Trump v. Mazars, the House Oversight Committee issued a subpoena to then-President Trump’s bank and accounting firms for personal financial and business records.¹⁵⁰ The President sued to enjoin enforcement of the subpoena on the grounds that it was not supported by a legitimate legislative purpose.¹⁵¹ The Supreme Court was neither willing to reject Congress’s proffered justifications for the subpoena nor to unconditionally support Congress’s request. Splitting the difference, the Court both affirmed the broad scope and importance of congressional investigative authority and held that the level of deference afforded to congressional committees might differ when the information requested involves a sitting president.¹⁵² This caution came from the Court’s concern that congressional requests for information from the president, even when those requests involve only personal information, “may aim to harass the [p]resident or render him ‘complaisan[t] to the humors of the Legislature,’ ” and thereby “ ‘exert an imperious controul’ over the Executive Branch.”¹⁵³ In other words, it stressed that the inquiry, despite asking for information unrelated to the president’s official duties, raised separation-of-powers concerns that had to be taken into account.

To accommodate these separation-of-powers concerns, the Supreme Court announced that, when “assessing whether a subpoena directed at the President’s personal information” is a legitimate subject of a congressional subpoena, “courts must perform a careful analysis that takes adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the ‘unique position’ of the President.”¹⁵⁴ This analysis requires judges reviewing such requests to take into account four factors: first, “courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers”; second, “courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective”; third, “courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose”; and finally, “courts should be careful to assess the burdens imposed on the President by a subpoena.”¹⁵⁵ Note, however, that the Court indicated that other considerations “may be pertinent as well” because “one case every two centuries does not afford enough experience” for the Court to develop “an exhaustive list.”¹⁵⁶

The case does not set any particular standard that Congress must meet to establish the legitimacy of its purpose, but it arguably places Congress on “a far shorter leash,” as one pair of commentators put it, when the information it seeks belongs to the president.¹⁵⁷ In doing so, the Court decides that while the courts should accept as legitimate Congress’s stated motives, they should also more closely examine the fit between those stated motives and the information it requests. It thus seems to acknowledge that sometimes Congress’s information demands go beyond what its stated motivations actually require, and it is the judiciary’s role to narrow such overbroad requests.¹⁵⁸

Congress seems to have taken the Mazars Court’s message to heart when establishing the Select Committee to Investigate the January 6th Attack on the United States Capitol—an investigation Congress knew would face strong resistance from Trump and his allies. That Committee’s charge explicitly empowered it to make “legislative recommendations” and propose “changes in law, policy, procedures, rules, or regulations” both to “prevent future acts” of such violence and to “improve the security posture of the United States Capitol Complex.”¹⁵⁹ By clearly articulating this mandate—which is both broad and explicitly targeted at future legislative action—it provided both the executive and any courts examining its requests for information with a clear legislative purpose, rendering it less vulnerable to charges of seeking information for the impermissible purposes of inflicting punishment, exposure for its own sake, or aggrandizement of the investigators. When the committee involved is a standing committee with broad responsibilities, such as the House Judiciary Committee, having such a clearly defined mandate is less likely. Legislators could, however, specify in their information requests and subpoenas exactly what legislative purpose the inquiry seeks to further. And, as discussed below, subpoena recipients should insist that they do so.

C. Congressional Investigations and Individual Rights

Structural constitutional concerns such as separation of powers are not the only limits on congressional investigative authority: individual rights are also relevant, because like any other state actor, “Congress . . . must exercise its powers subject to . . . the relevant limitations of the Bill of Rights.”¹⁶⁰ Thus, congressional witnesses enjoy, inter alia, the right to not incriminate themselves;¹⁶¹ the right to due process;¹⁶² and the rights to expression, assembly, and free exercise of religion as protected by the First Amendment.¹⁶³ In honoring these rights in the context of congressional

investigations, the Supreme Court has laid down some principles that serve to limit congress’s investigative power.

In Watkins v. United States, the Supreme Court explored the relationship between individual rights and legislative purpose, opining that the courts “cannot simply assume . . . that every congressional investigation is justified by a public need that overbalances any private rights affected.”¹⁶⁴ In this case, John Watkins was convicted of contempt of Congress for refusing to answer certain questions from a subcommittee of the House Committee on Un-American Activities.¹⁶⁵ While testifying freely regarding his own past behavior, he declined to answer questions regarding the past political activities of acquaintances. Such questions, he argued, were irrelevant to the Committee’s work and thus beyond the scope of Congress’s authority.¹⁶⁶

The Watkins Court announced two individual rights–based limits on the power of a committee to compel witness testimony. These limits are grounded in the fact that congressional interest “in demanding disclosures from an unwilling witness”¹⁶⁷ is based in the committee’s role as an agent of Congress.¹⁶⁸ Committees are thus “restricted to the missions delegated to them . . . to acquire certain data to be used by the House or the Senate in coping with a problem that falls within its legislative sphere. No witness can be compelled to make disclosures on matters outside that area.”¹⁶⁹ As the Court recognized, despite the best of intentions, legislative inquiries untethered to a designated investigative purpose can “lead to ruthless exposure of private lives in order to gather data that is neither desired by the Congress nor useful to it.”¹⁷⁰ So, one safeguard of individual rights comes from the requirement that a committee pursue only the information relevant to the identified purpose of the authorized investigation.

A related safeguard comes from the requirement that the purpose of the authorized investigation is identified with sufficient specificity to allow witnesses to determine whether a question posed to them is pertinent to that inquiry.¹⁷¹ Indeed, when it comes to subpoenas for compulsory testimony—the defiance of which can result in criminal prosecution¹⁷²—the due process requirement of notice requires the investigating committee to provide that level of specificity.¹⁷³ So, while Congress is free to define a committee’s investigative authority as it sees fit, individual rights “should not be placed in danger in the absence of a clear determination by the House or the Senate that a particular inquiry is justified by a specific legislative need.”¹⁷⁴ Ultimately, in Watkins, the Court opined that the charter for the House Committee on Un-American Activities—to investigate all questions related to subversive and un-American propaganda activities in the United States¹⁷⁵—even when combined with statements from the Committee Chair and the context in which the proceedings took place, was so broad as to prevent anyone from deducing exactly what “kind of investigation that the Committee was directed to make.”¹⁷⁶ In other words, the Court determined that the stated purpose of the investigation was sufficiently vague that it raised due process concerns. It then used the principle of constitutional avoidance—a legislative inquiry that risks trenching on individual constitutional rights should be interpreted to do so only if there is no other interpretation of the relevant committee’s charge—to hold that Watkins’s conviction could not be upheld.¹⁷⁷

The Court had reached a similar result in United States v. Rumely, in which a defendant charged with contempt of Congress raised First Amendment objections to his conviction. In that case, the Court determined that a congressional mandate to investigate “lobbying activities” did not authorize a House committee to require a witness to disclose the names of individuals who bought his “politically tendentious[]” books.¹⁷⁸ Such an interpretation, the Court noted, would essentially authorize a committee to “inquire into all efforts of private individuals to influence public opinion through books and periodicals, however remote the radiations of influence which they may exert upon the ultimate legislative process,” an outcome that raised doubts about the constitutionality of the inquiry under the First Amendment.¹⁷⁹ The upshot of Watkins and Rumely is essentially a clear statement rule: courts should not interpret a vague statement of the scope of a congressional inquiry to threaten individual constitutional rights unless “Congress has demonstrated its full awareness of what is at stake by unequivocally authorizing an inquiry of dubious limits.”¹⁸⁰

Unlike the challenges to the scope of congressional authority discussed in Section II.B, these individual rights claims operate not at the macro level of whether an investigation has a legitimate legislative purpose; rather, they allow the recipients of subpoenas to raise more granular objections to particular lines of inquiry. Thus, even affording great deference to Congress’s right to define its own legislative priorities and information needs, the targets of congressional investigations have grounds on which to resist specific inquiries or demands that do not clearly further the legislative purpose that congressional investigators identified.

D. Practical Constraints on Congressional Investigations

As I and others have detailed elsewhere, federal interbranch disputes over congressional information requests are usually resolved in the political arena through negotiations between Congress and the executive branch,¹⁸¹ at least in part because both Congress and the executive branch have tools at their disposal that allow them to pursue their institutional interests through self-help.¹⁸² Congress can, for example, decline to confirm executive branch appointments or curb appropriations if the executive does not comply with investigative requests.¹⁸³ The executive, meanwhile, enjoys the benefit of preferring the status quo—if Congress cannot force it to disclose information

in its possession, it wins¹⁸⁴—as well as doctrinal tools like executive privilege, which has proven to be immensely effective in thwarting congressional information access.¹⁸⁵

When we view these disputes between the branches of the federal government as the political battles that they are (though often waged in the language of law), it becomes clear that their course will be dictated, at least in part, by the prevailing political dynamics. These dynamics can either facilitate congressional access to executive branch information or impose significant practical limits on that access. When, for example, Congress lacks sufficient political capital to force the executive branch to turn over information, the executive may feel free to reject Congress’s information requests. By contrast, investigations focused on high-profile scandals or related to clear evidence of executive misconduct—instances in which Congress often enjoys significant political support for its investigation from the public and the executive branch expects to pay a political cost for refusing to cooperate—can succeed in dislodging relevant information from the executive.

In recent decades, however, the executive branch has become more and more successful at stonewalling Congress entirely.¹⁸⁶ There are multiple reasons for this, but a significant factor are the mechanics of enforcing the terms of congressional subpoenas. If an executive branch official defies a congressional subpoena and interbranch negotiations fail to yield a compromise, the traditional means of enforcing compliance has been to hold (or threaten to hold) the official in contempt of Congress. Over the past several presidential administrations, however, contempt of Congress charges have been revealed as toothless because Congress has no effective means of enforcing them. Efforts at enforcement can follow one of three paths. First, Congress can exercise its inherent contempt power, arrest the contemnor, and detain them until they comply with the subpoena or until that congressional session ends. For pragmatic reasons, Congress has not availed itself of this option since 1934¹⁸⁷ and is unlikely to do so today.¹⁸⁸

The second enforcement option is to refer a finding of congressional contempt to the Justice Department, as envisioned by 2 U.S.C. § 192, which criminalized noncompliance with a congressional subpoena as a federal misdemeanor in 1857.¹⁸⁹ When a committee reports to the full House or Senate that a witness has defied a subpoena, “it shall be the duty” of the President of the Senate or the Speaker of the House to “certify” the contempt to the U.S. attorney, who “shall” bring the matter to a grand jury.¹⁹⁰ Despite this mandatory language, the Justice Department has determined that it retains discretion regarding whether to pursue contempt of Congress charges.¹⁹¹ Moreover, its view is that when a contemnor has declined to comply with a subpoena at the president’s direction, prosecution is inappropriate.¹⁹² As a result, contempt of Congress prosecutions of either current or former executive branch officials are vanishingly rare.¹⁹³

Because these first two options are ineffective, Congress has recently resorted to filing civil suits to enforce its subpoenas on several occasions.¹⁹⁴ Such suits, however, have met with limited success as well, in part because the pace of litigation guarantees that any definitive judicial order requiring compliance with a subpoena will not come until long after the Congress that initiated the investigation has ended.¹⁹⁵

Another reason subpoena enforcement has proved difficult may be that, while the investigating committee is eager to press the issue, the full House or Senate might not be similarly enthusiastic. If initial interbranch negotiations fail, threats of holding the witness in contempt might be more effective in prompting further executive branch concessions if it was clear that there would be consequences for defiance—consequences with respect to executive branch appointments or budget requests, for example. However, so long as a committee’s requests are not backstopped by broad congressional willingness to press the issue, the best a committee can do is to resort to the ineffective contempt-of-Congress tool. Thus, absent strong public support or voluntary cooperation by the executive branch officials in possession of the information, Congress’s ability to force disclosure is limited, even through the use of valid subpoenas.

III. Implications for Investigations of State and Local Law Enforcement

This Part extracts some principles that have emerged from the constraints on congressional investigations discussed above and considers whether and to what extent they provide guidance on thinking about when investigations of state and local law enforcement activities might be appropriate generally, as well as how they might apply to the investigation into Bragg in particular. Section A returns to the specific structural concerns raised in the context of law enforcement information; Section B examines the limits on the scope of congressional investigative authority more broadly; Section C reviews the role of individual rights; and Section D discusses practical constraints.

A. Local Law Enforcement and Federalism

The Justice Department argues that separation-of-powers principles that disallow Congress from engaging in prosecutorial activity render any inquiry into individual prosecutorial decisions, particularly in open investigations, inherently suspect. Bragg’s argument that the congressional inquiry into his prosecution of former President Trump violates the principles of federalism is a similar argument—an argument grounded in the Constitution’s structure. The Supreme Court itself has articulated this analogy: “[j]ust as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”¹⁹⁶

To the extent that the DOJ’s arguments about congressional access to federal law enforcement information based in the separation of powers are persuasive—a question on which I do not take a position here—federalism raises similar red flags when Congress demands information about local law enforcement investigations. Any conception of federalism that requires the preservation of states’ “power to rule without interference in a policymaking domain of their own”¹⁹⁷ seems to render impermissible federal intervention into state or local prosecutions that influences the course of the investigation. The Supreme Court has explicitly stated that, even in seeking to vindicate federal interests, the federal government should “always endeavor[] to do so in ways that will not unduly interfere with the legitimate activities of the States.”¹⁹⁸

Congressional actions that exert political influence over state and local law enforcement decisions undermine state autonomy in the same way that efforts to exert political influence over federal law enforcement undermines executive autonomy. If federal prosecutors must be free from congressional influence when determining whether to indict under criminal laws passed by Congress, surely state and local prosecutors have at least as much discretion in implementing state laws—laws whose passage included no role for Congress. Indeed, even inquiries deemed relatively innocuous in the federal context—general inquiries into the Justice Department’s policies regarding the implementation of criminal statutes¹⁹⁹—would be problematic if directed at state and local prosecutors, unless those prosecutors were violating federal law or misusing federal funds.²⁰⁰ Congress does not—and should not—have any role in regulating state and local law enforcement policies or priorities regarding the implementation of purely state criminal law.

Thus, the principles of federalism and prosecutorial independence both militate against congressional scrutiny of local law enforcement actions, whereas at the federal level, only the latter is implicated. Structural constitutional concerns, therefore, supply a legitimate argument that state and local prosecutors should resist congressional inquiries. As with their federal counterparts, the law-enforcement nature of the information does not mean that Congress should be automatically denied access. What it does mean is that safeguards for prosecutorial independence are equally as important regardless of whether that prosecutor is a federal or state actor. So, while a tentative consensus has developed at the federal level that inquiries into specific, ongoing investigations should be viewed with some skepticism, and, as a general rule, information about such investigations should not be shared outside the prosecutor’s office, that principle should apply even more forcefully in the state and local context.

This concern over improper external influence was particularly salient in the Bragg investigation. To be sure, the high-profile nature of the case ensured that, even in the absence of congressional action, it would attract significant attention and strong opinions, both in favor of and against the prosecution.²⁰¹ However, the inevitable pressure that public notoriety attracts poses far less of a threat to prosecutorial independence than scrutiny coming from another government institution, especially one with a federal megaphone (and control of the federal treasury). Indeed, the congressional investigators’ actions seemed designed not necessarily to glean information from Bragg’s office, but rather to maximize external criticism of its prosecutorial decisions. First, as Bragg himself pointed out in his district court complaint, the Committee’s rationale for investigating shifted over time. What explicitly started as an effort to “hold Alvin Bragg to account” morphed into an inquiry into matters more amenable to congressional action once the investigation faced pushback from the DA’s office.²⁰² Second, the House Judiciary Committee held a rare “field hearing” in New York, purportedly to draw attention to high crime rates in New York City. Given, however, that it was the only such hearing the Judiciary Committee held and that Committee Chairman Jordan’s Ohio district had a murder rate three times that of New York City at the time,²⁰³ the hearing seemed designed more to disparage Bragg’s performance than to actually address the very real problem of violent crime.

In the end, the Bragg investigation seems to have ended up in the same place as many federal law enforcement investigations do: Bragg offered up information clearly within the scope of legitimate congressional inquiry—

information about how his office spent federal funds—but declined to provide specific information about the Trump investigation until after the prosecution was completed and the defendant was sentenced.²⁰⁴

The Scope of Congress’s Authority

As laid out in Section I.C.2, over the short course of the Bragg investigation, congressional investigators articulated no less than five distinct legislative purposes behind their information demands. This Section will look at each of these purposes in turn and assess whether they articulate a legitimate legislative purpose. Spoiler alert: some do, and some do not. It will then consider how Congress’s articulation of its investigative purposes should impact the information requests issued to Bragg and other local prosecutors.

At the very outset of the dispute, legislators failed to articulate a legitimate legislative purpose. The initial motivations congressional investigators expressed arose from their view that Trump’s prosecution was political in nature.²⁰⁵ As such, the Committee sought to require Bragg to identify his motives for bringing the prosecution and to “hold [him] to account” for the prosecution.²⁰⁶ Thus, at least initially, the investigation was justified solely as an attempt to second-guess the basis of Bragg’s decision to launch an investigation and prosecution with which the Committee’s majority members disagreed. Probing or regulating the motivation behind local law enforcement’s exercise of prosecutorial discretion, however, does not fall within the scope of either the Judiciary Committee’s mandate or Congress’s constitutional role.

Moreover, the very fact that local prosecutors tend to be elected officials—a fact that the Committee cites in support of its characterization of the Bragg investigation as political—argues against the propriety of congressional involvement. Local district attorneys’ electoral success relies on winning their constituents’ support for their priorities and policies. The Supreme Court has insisted that federal policy not swamp state governments’ ability to remain both “responsive to the local electorate’s preferences . . . [and] accountable to the people.”²⁰⁷ Indeed, one commonly cited benefit of our federalist system is that the states provide additional opportunities for political participation and expression of views that may not be represented at the federal level.²⁰⁸ The exercise of an elected prosecutor’s prosecutorial discretion is therefore part and parcel of sovereign states’ ability to set local policy free from federal control.

Next, the Committee expressed concern that the alleged political nature of the prosecution “could have a profound impact on how Presidents choose to exercise their official duties while in office.”²⁰⁹ This justification was of dubious legitimacy even when it was first articulated. Any prosecution can be challenged in the normal course of litigation as a vindictive or politically motivated prosecution. Evaluating that charge is the role of a judge, not the role of Congress. Thus, sitting presidents have always known that, should they be targeted for politically motivated prosecution, there is an avenue for raising such a challenge. The assumption that such a concern would affect a president’s official actions is therefore speculative at best. The justification became even less forceful a rationale after the Supreme Court’s decision in Trump v. United States.²¹⁰ That case conferred on the president criminal immunity for any official acts, rendering the Committee’s concern about the impact of prosecution on such acts irrelevant. Since there cannot be any criminal prosecution for the way “Presidents choose to exercise their official duties while in office,” Congress need not worry about state or local prosecutors pursuing such prosecutions. Thus, the mere concern about the political nature of a local prosecution never justified a legislative inquiry and certainly does not do so post-Trump v. United States.

Subsequently, the Committee provided justifications that are plausibly within the realm of valid legislative inquiry as well as within the scope of the Judiciary Committee’s jurisdiction—several related to potential legislation and one related to Congress’s spending power. The first piece of potential legislative change was the idea that it might be wise to empower former and current presidents and vice presidents to remove any case against them from state court to federal court.²¹¹ This remedy is already available in civil or criminal cases against the United States, a federal agency, or a person holding federal office, if the case relates to acts taken “under color of such office.”²¹² This type of legislative reform is clearly related to the Judiciary Committee’s jurisdiction over the judiciary and judicial proceedings, federal courts and judges, and revision and codification of federal statutes.²¹³ And since Congress controls the jurisdiction of the federal courts,²¹⁴ any investigation into whether to allow removal of local prosecutions to the federal courts has a legitimate legislative purpose. Whether that ability to remove should be extended to cases against someone holding federal office in cases unrelated to their official actions is a legitimate question for Congress to explore.

The Committee provided two additional legislation-related motives for its investigation. The first is consideration of whether Congress should clarify the preemptive effect of the FECA; the second is consideration of whether to amend “the authorities of special counsels [to] better delineate their relationships with other prosecuting entities.”²¹⁵ As with removal statutes, any amendment of federal legislation, such as FECA, is fair game for congressional action—as is legislation concerning the Justice Department’s use of special prosecutors. Finally, the inquiry cited the states’ use of federal funds as an underlying rationale for investigating. Congress is well within its rights to require any state or federal agency to account for the ways in which it is spending federal funds. That is, after all, a primary purpose of congressional oversight and, arguably, inherent in the responsible exercise of the appropriations power. So, to the extent that these proposals would modify Justice Department programs that supply federal funds to state and local law enforcement, these proposals, too, fall within the scope of the Committee’s jurisdiction and Congress’s authority.²¹⁶ In short, whatever one believes about the true motivations of congressional leaders and Jordan in pursuing the investigation of Bragg and other local law enforcement officials, the Committee articulated justifications that arguably bring the investigation writ large within both Congress’s power as a whole and the Committee’s mandate in particular.

Articulating a legitimate legislative purpose, however, does not alone determine the validity of a legislative information request or subpoena. If, as posited above, the structural constitutional requirements of federalism are equally as integral to effective functioning of government institutions as the separation-of-powers doctrine, concerns that the Supreme Court articulated in Mazars might also justify imposing some judicial safeguards on congressional subpoenas seeking information from state and local prosecutors. When congressional investigations implicate the separation of powers, the Mazars Court noted, courts must “be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose.”²¹⁷ If congressional information requests “may aim to harass the President or render him ‘complaisan[t] to the humors of the Legislature,’ ” and thereby “exert an imperious controul” over the president, those same risks exist in the context of local law enforcement.²¹⁸ In essence, the Mazars Court determined that while the information Congress sought was private financial information, Congress’s pursuit of that information had sufficient implications for executive branch autonomy such that some additional scrutiny of congressional purposes was in order.

In the Bragg investigation, the information at issue is not information about an executive official’s private life; rather, it is information about a state executive officer’s performance of official duties.²¹⁹ Nevertheless, as discussed above, such requests threaten state autonomy in the same way that Congress’s inquiry into the president’s personal life threatened executive autonomy (and thus the separation of powers). Indeed, Bragg’s office plainly viewed the investigation as one intended to influence the exercise of its powers—to, in the Supreme Court’s words, “exert an imperious controul” over prosecutorial decisions.²²⁰ In its complaint seeking to enjoin the congressional subpoena issued to Pomerantz, Bragg’s office explicitly invoked the Mazars factors in arguing that the subpoenas should be quashed.²²¹ The district court rejected the Mazars analogy, however, because the subpoena being challenged was not the president’s private papers, but rather a subpoena to a private individual who had written a book about the subject on which Congress sought information.²²² Reasonable minds can disagree as to whether that was the right outcome in that particular case. One can argue that burdening a former employee cannot have an effect on current staff in the office. On the other hand, such burdens send an ominous message to those employees, indicating that even after their public service has ended, they could be subjected to congressional inquiries into the way that they performed their job. As the Supreme Court argued in its recent case about presidential criminal immunity, concern over future consequences such as these can chill a government official’s behavior.²²³ And while congressional investigation is not as severe a consequence as criminal prosecution, it does come with hefty legal bills, significant disruption of daily life, and a great deal of anxiety.

Regardless of the appropriate answer in the context of former law enforcement officials, the argument for a Mazars-like inquiry into whether a subpoena to the current district attorney or their staff is justified is compelling. Again, this argument relies on the analogy between separation of powers and federalism concerns articulated above. However, if the Mazars safeguards are necessary to protect structural constitutional protections for the executive, it seems logical to require them when protecting structural constitutional protections for state sovereignty as well.

C. Congressional Investigations of Local Law Enforcement and Individual Rights

The individual rights cases regarding congressional subpoena enforcement foreground the idea that a subpoena must not only be issued pursuant to a legitimate legislative investigation within the scope of the relevant committee’s jurisdiction, but also seek information that is pertinent to that legislative inquiry.²²⁴ Moreover, the legislative interest must be defined at a level of specificity that allows the targets of subpoenas to assess the pertinence of the information they are being asked to provide.²²⁵ To be sure, Watkins made it plain that witnesses must look broadly to ascertain legislative purpose in order to determine the pertinence of specific information. This means reviewing not only a committee’s charter, but also the subpoenas themselves, the committee chair’s statements, and even the context of the investigation as a whole.²²⁶ Congress thus has significant leeway in establishing its need for particular information. Nevertheless, viewed through this framework, it is not enough to say that a particular committee had a valid legislative purpose. It must also state that purpose clearly, and the information it demands must be pertinent to that purpose.

So how did the Judiciary Committee’s subpoenas and other information requests fare under these rules? Recall that the Committee asked Bragg’s office as well as two former employees for: (1) documents and communications between or among the DA and the Justice Department regarding the DA’s investigation of Trump; (2) documents and communications involving Dunne and Pomerantz referring to Trump; and (3) documents and communications relating to the DA’s use of federal funds. Some of these demands for information ran afoul of the individual rights protections afforded to the subject of congressional subpoenas.

Consider first the question whether presidents and vice presidents should be empowered to remove their cases from state court to federal court and whether the information the Judiciary Committee sought from Bragg, Dunne, Pomerantz, and Colangelo is pertinent to this inquiry. Any pertinent information would have to be from the first or second category of requested information, because it is not clear why any communications about the use of federal funds would be pertinent to the question of removal. It is a closer question, however, whether communications between and among the DA, the Justice Department, and former prosecutors would be pertinent. Imagine, for example, such communications indicated that the prosecution was in fact unsupported by probable cause or admissible evidence but that Bragg and his assistants chose to press forward nonetheless. Such communications might be viewed as evidence that Trump could not receive fair treatment from Bragg. However, the fairness concerns justifying removal are fairness of the venue, not prosecutorial fairness writ large. Indeed, even if the case were to be removed to federal court, Bragg would remain the prosecutor and the charges would remain the same state law charges.²²⁷ So in the end, the communications the Committee sought seem unrelated to the question whether the defendants in such cases should be able to remove their proceedings to federal court.

With respect to amending FECA to expand its preemptive effect, the Judiciary Committee is on stronger footing. Because Bragg alleged that a violation of FECA was one of the underlying crimes that Trump’s falsification of business records was alleged to have furthered,²²⁸ the DA’s office necessarily had to interpret what FECA permitted and what it did not permit. It is thus likely that communications among the employees of the DA’s office would include interpretations of FECA and arguments as to why they applied to the facts alleged against Trump. If the Judiciary Committee’s concern was that state or local prosecutors were misinterpreting or abusing FECA such that its enforcement needed to be limited to federal officials, information about how that law was interpreted by Bragg’s office was certainly pertinent. Of course, in those circumstances, only documents or communications that dealt with the meaning and application of FECA would be pertinent to Congress’s inquiry, not any and all communications regarding the investigation. As written, the requests for all documents and information referring to Trump are overbroad if premised on the potential need for FECA amendments.

Similarly, one can imagine communications in the first two categories of information that are pertinent to Congress’s legitimate consideration of whether and how to modify the rules surrounding special counsels. As with the FECA amendment, however, such information and communications would be limited to any that include information about the relationship between the special counsel and Bragg’s office, not all information related to the prosecution of Trump.

Finally, Congress is well within its rights to require any state or federal agency to provide information about the ways in which it is spending federal funds. From the outset, Bragg’s office expressed a willingness to meet and discuss how to provide Congress what it needed in this regard.²²⁹ The Committee declined, however, to take the DA’s office up on this offer. When Congress and the executive clash over congressional information requests, the courts have said that the branches have a constitutional obligation to seek to resolve their dispute through a process of mutual accommodation and negotiation.²³⁰ It seems unlikely, therefore, that courts would be willing to enforce a subpoena that Congress issued before it had made any effort to reach an accommodation with the subpoena’s target.

Note, however, that even if the Judiciary Committee’s information requests were overbroad given the stated reasons for the legislative inquiries, this does not invalidate the subpoena in its entirety or vitiate its recipients’ obligations to comply with it. Rather, it provides the subpoena’s targets with reasons to resist providing certain information or answering certain questions. What that may mean in practice is that witnesses must appear to give testimony or turn over some communications, but they may refuse to answer nonpertinent questions or turn over nonpertinent documents. If the concern is that Congress is exerting improper influence over local prosecutors’ decision-making, requiring witnesses to appear at all may constitute the harm, regardless of whether they must answer all questions posed to them. After all, testifying before Congress is incredibly burdensome. Preparation for such testimony takes time that could then not be spent on the ongoing prosecutions, and it takes resources, as most unwilling congressional witnesses would be wise to retain counsel to help them prepare.

As with all witnesses, state law enforcement officials are protected by the limits on congressional subpoena enforcement imposed by individual rights. In addition, such officials might also have numerous nonconstitutional objections to providing certain information. Issues such as the preservation of grand jury secrecy, the professional obligation not to discuss ongoing matters outside of court, and claims of deliberative process or attorney-client privilege all might provide additional grounds on which state officials could resist information disclosure to Congress. As with individual rights claims, however, these bases for objection would apply to particular pieces of information, rather than to the entire investigation.

D. Practical Constraints on Congressional Investigations of Local Law Enforcement

Finally, as noted above, the relative absence of binding doctrine regarding congressional–executive information disputes derives from the sense that these are political battles and that each branch has sufficient means at its disposal to defend its institutional interests. It is therefore worth considering the extent to which state and local prosecutors have the tools at their disposal to safeguard state autonomy from congressional overreach. In other words, in the language of federalism theory, Is this an instance in which process theory—which argues that states have sufficient tools available to them in the political arena to protect their own sovereign interests—applies, or is some other enforcement mechanism necessary?²³¹ As noted above, the executive has been relatively successful, particularly recently, in resisting congressional efforts to access executive branch information. The question then becomes whether state and local prosecutors will be more or less able than the executive branch to push back on legislative information requests.

The federal political branches’ ability to impose their will on one another depends on numerous circumstantial factors—the level of public support for their position, their relative political capital, historical precedent, and how committed to acquiring the information Congress is versus how adamantly the executive insists on nondisclosure, among others.²³² In some ways, state and local prosecutors have an advantage over the federal executive in resisting congressional information requests. First, while the federal executive must consider the views of an ideologically heterogeneous nationwide constituency, state and local law enforcement officers are most often elected by their local constituency, whose preferences are likely to align with their own. In other words, Bragg is unlikely to face adverse electoral consequences or blowback in the public arena for resisting congressional inquiries into his office’s activities—indeed, the opposite is likely true. After all, this is one aspect of federalism that is often lauded—the ability for states and localities to be responsive to the local population and to reflect regional political and policy differences. Second, local prosecutors do not rely on the federal legislature to confirm their personnel appointments, to fund their operations, or to define the scope of their authorities. So, in that sense, Congress has fewer levers to pull in order to exert pressure on these offices.

On the other hand, to the extent that state and local law enforcement agencies rely on federal funding, supplies, and training, Congress does in fact have significant leverage over them. State and local law enforcement agencies are the beneficiaries of billions of federal dollars each year.²³³ These funds support a wide range of programs, including money to hire additional law enforcement personnel, provide victims’ services, receive training and technical assistance, and more²³⁴—benefits that district attorneys would not want to jeopardize by antagonizing congressional investigators. That said, just as states rely heavily on federal funding, federal law enforcement leans heavily on state and local officials to enforce the vast majority of criminal law. In that way, this is a symbiotic relationship, like the one between the federal legislative and executive branches, in which each side has incentives to retain good relationships. So, on the purely political dynamics, states are probably at least as well suited to resist congressional overreach as the federal executive.

One complication in this story, however, is that local prosecutors are not themselves sovereign states. They are one component of a larger sovereign entity, and that sovereign entity may be of more than one mind regarding any given prosecutor’s decisions. Indeed, recent years have seen state governments dominated by one political party pressuring local prosecutors from the other political party to take (or not take) certain investigative or prosecutorial steps.²³⁵ So if a local prosecutor’s state government does not support the prosecutor’s actions, that is another potential source of pressure to cooperate with a congressional investigation that the federal executive need never worry about. Different local prosecutors are quite differently situated from one another with respect to the degree of homogeneity of prosecutorial priorities within their state. As a result, some offices may be less able to resist congressional information requests than others. Each will depend on the particular political dynamics within their state. In the case of Bragg, the state government in Albany did not step into the conflict. In fact, the state Attorney General’s office was pursuing its own investigation into Trump’s alleged private misdeeds and thus was rowing in the same direction as Bragg. However, that convergence of interests is by no means guaranteed.

Another tool that state prosecutors lack is the protection of executive privilege, which has proved a powerful tool for resisting congressional subpoenas of executive officials. Not only does this deprive them of a means of resisting congressional inquiries that has proved quite effective at the federal level, but it also renders state officials more likely to be vulnerable to prosecution for contempt of Congress. As noted above, the executive branch has determined that executive officials cannot be prosecuted for contempt if they resist disclosure to Congress on the president’s instructions.²³⁶ State and local officials lack this shield. And while it is unclear whether the Justice Department would prosecute a state official for contempt of Congress, one can imagine a DOJ controlled by the same party whose members are spearheading the relevant investigation doing so.²³⁷

Should a state or local law enforcement office lack the ability to resist congressional interference through pragmatic, practical means, it might need to rely on judicial intervention to resist congressional encroachment, as some scholars advocate in the federal context as well.²³⁸ Here, local prosecutors have an advantage over Congress. Their timeline is likely longer than the two-year countdown congressional investigators face upon assuming office. In Bragg’s case, he sought judicial intervention to prevent Pomerantz from complying with a subpoena, not to avoid complying with his own. The district court found the Pomerantz case to be an easy question.²³⁹ However, because that subpoena was issued to a private citizen rather than a state official, the court was able to sidestep the difficult state autonomy questions discussed above. As a result, it is difficult to predict how courts might treat suits pitting local prosecutors against congressional committees.

***

The above analysis suggests numerous principles that should apply when Congress investigates local prosecutors. First, as with investigations into federal law enforcement, open, ongoing investigations should be presumptively off limits. If there are indications that state or local law enforcement are violating individual rights or misusing federal funds, Congress should certainly pursue such concerns. However, rarely will such investigations need immediate access to information about open investigations.

Second, investigators’ proffered justifications—and the extent to which the information they seek is pertinent to or necessary for a valid legislative inquiry—should be examined to ensure that both legislative and state sovereign interests are accommodated. The Supreme Court in Mazars identified four factors in this inquiry: first, courts should undertake a careful assessment of “whether the asserted legislative purpose warrants the significant step of” involving a local law enforcement office; second, subpoenas should be “no broader than reasonably necessary to support Congress’s legislative objective”; third, “the nature of the evidence offered by Congress” must “establish that a subpoena advances a valid legislative purpose”; and finally, the burdens imposed on the president—or in this case, the local law enforcement office—must be considered.²⁴⁰

Given the federalism implications, I would add a fifth requirement here: a clear statement rule. In numerous circumstances, the Supreme Court has held that, if the federal government intends to wade into an area traditionally reserved for state action, it must make a clear statement to that effect.²⁴¹ In the absence of such a clear statement, courts should assume that Congress did not intend to upset the federal–state balance. Thus, Congress or the investigating committee should have to articulate a clear statement of legislative purpose that explains why it must entangle itself in what are usually purely state or local matters. Further, that clearly stated purpose should be articulated in ways that allow the recipients of congressional information requests to ascertain whether the requested information is pertinent. Recall that clear statement rules and constitutional avoidance apply in the face of vague or ambiguous statements of congressional purpose in order to avoid infringing on witnesses’ First Amendment or due process rights when faced with specific questions.²⁴² Local law enforcement should not have to read tea leaves or scour legislators’ public statements to discern the purpose of any given inquiry or to determine what specific information is pertinent to that inquiry.

Finally, the same constitutional obligation to seek to accommodate one another’s interests that applies in the context of congressional–executive information disputes should apply in congressional–local information disputes. This means that congressional committees must be willing to engage in good-faith negotiations to explain their legitimate information needs and to respect local law enforcement’s sovereign autonomy.

Conclusion

The central puzzle at the heart of delimiting Congress’s investigative powers is how to enable valid investigations and discourage fishing expeditions, overreach, and investigations with no true legislative purpose behind them. This line-drawing exercise is destined to fail, because what constitutes a fishing expedition is often in the eye of the beholder. The very same elected officials who decry investigations launched by their political rivals as abuses of power are the ones launching aggressive investigations when given the opportunity. This long-standing dilemma has only been exacerbated by the extreme partisan polarization and mutual disdain between partisans that are the hallmark of this particular political moment. In such an environment, political actors need only please their most avid supporters and can afford to alienate large blocs of the electorate. Partisan actions are rewarded with attention and fundraising windfalls, while compromise risks inspiring a primary challenge in the next election. In such an environment, we must recognize that politicians—including congressional investigators—have strong incentives to pursue investigations designed to mobilize partisans rather than to improve the function of government. And, as Justice Roberts admonished in Mazars, we cannot ignore the prevailing dynamics.²⁴³ At the same time, Congress does have a critical role to play. Particularly in an era of breathtakingly expansive claims of executive power, it is important to ensure that Congress can, when it decides to do so, successfully investigate legitimate questions underlying effective oversight and legislation. It is thus important to build a legal regime that provides tools for resisting inquiries justified by pretextual reasons while satisfying compliance with legitimate information needs. This Article sought to explore what that regime might look like in the context of congressional investigations of state and local prosecutions. It demonstrated that, as in purely federal disputes over information, there is no easy means of differentiating between valid congressional requests and congressional overreach. However, those federal disputes also provide some guidance regarding how to think about how clashes between Congress and local law enforcement should be analyzed and resolved.

99 S. Cal. L. Rev. 777

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Emily Berman*

* Professor of Law and William B. Bates Distinguished Chair in Law, University of Houston Law Center. Thanks to participants in the 2024 Constitutional Law Colloquium and University of Houston Law Center faculty works-in-progress series.

Judicial Regrets

September 2026September 2026Yuvraj Joshi*

U.S. Supreme Court Justices have often expressed regret about their most consequential rulings and opinions. Chief Justice Warren lamented his 1955 Brown v. Board of Education opinion ordering desegregation “with all deliberate speed”—ambiguous phrasing that enabled delays in integration. Justice Powell recanted his 1986 opinion in Bowers v. Hardwick, which upheld a Georgia law criminalizing same-sex intimacy. Justice O’Connor predicted in Grutter v. Bollinger that affirmative action policies would no longer be needed within twenty-five years—a prediction she later acknowledged was mistaken. These examples, among others discussed in this Article, illustrate that judicial regret is frequent and poignant, spanning several areas of law.

Judicial regret influences legal development by shaping judicial behavior, informing legislative reform, and empowering social movements. Despite this significance, it remains largely unexplored in U.S. legal scholarship. This Article provides the first systematic analysis of judicial regret by drawing on multidisciplinary research on regret, previously unpublished judicial survey data, and judicial case studies. It examines how the law might better account for judicial regret and underscores insights about law and judging that stem from deeper understandings of it. Because such regret can catalyze legal reforms and rectify past harms, this Article proposes ways to incorporate it into legal interpretation and the treatment of precedent. By contemplating the legal and normative significance of this neglected judicial emotion, this Article aims to help the legal community avoid collectively discounting regret.

Introduction

In 2003, Justice O’Connor famously predicted in Grutter v. Bollinger that race-conscious affirmative action policies would become unnecessary in twenty-five years.¹ In 2023, Supreme Court Justices in Students for Fair Admissions (SFFA) v. Harvard invoked this prediction in striking down affirmative action programs at Harvard College and the University of North Carolina, departing from a half-century of precedent and reshaping educational opportunity for millions.²

What the Court ignored was that Justice O’Connor herself appeared to regret her prediction.³ After retiring, she publicly acknowledged that her Grutter timeline was unrealistic⁴ and that any predetermined sunset for affirmative action was misguided.⁵ Yet this regret played no explicit role in the Court’s analysis. Instead, some Justices elevated her acknowledged error to constitutional doctrine while disregarding her own repudiation of it.⁶

Justice O’Connor was not the only Justice to later express misgivings about a landmark equality or liberty opinion. Justice Douglas expressed regret about sanctioning Japanese American internment during World War II in Korematsu v. United States.⁷ Chief Justice Warren lamented his 1955 opinion in Brown v. Board of Education that ordered desegregation of schools “with all deliberate speed.”⁸ This ambiguous phrasing enabled delays in integration.⁹ Justice Powell recanted his 1986 opinion in Bowers v. Hardwick upholding a Georgia law criminalizing same-sex intimacy,¹⁰ as well as his 1987 opinion in McCleskey v. Kemp upholding the death penalty.¹¹ Such instances of judicial second-guessing underscore the inherent challenges of legal interpretation and the near inevitability of regret. How should the legal system respond when judges later regret their own opinions?

This Article demonstrates how engaging with judicial regret can strengthen our legal system. A system that learns from judges’ regrets offers advantages over one in which judges suppress their misgivings or where others disregard them. Accordingly, we should cultivate an environment in which judges feel empowered to acknowledge errors and express regret, rather than discourage these practices. By examining regret, we can gain fresh insights into judicial rulings and decision-making processes, as well as into the background conditions that lead judges to regret their opinions. Judicial regret can reinforce existing calls for legal and structural reforms and highlight overlooked areas requiring attention.

Regret has attracted significant interest across various fields. Psychologists define regret as a “state of feeling sorry for losses, transgressions, shortcomings, or mistakes,” studying it as a complex cognitive and emotional phenomenon influenced by multiple factors.¹² Philosophers have categorized types of regret, evaluated when it is justified, and described its role in moral decision-making.¹³ Economists have incorporated regret into decision-making models through concepts like regret aversion.¹⁴ Sociologists have explored how experiences and expressions of regret are socially constructed, shaped by cultural norms.¹⁵ Historians have analyzed societal regret, identifying practices once deemed acceptable that are later recognized as harmful.¹⁶

Despite this broad interest in regret, scholarship specifically examining judicial regret remains scarce.¹⁷ While some work has thoughtfully analyzed isolated instances of judicial regret,¹⁸ only one brief U.S. law review piece has examined it as a general phenomenon,¹⁹ offering a descriptive account without exploring its broader significance.²⁰ Legal scholarship has focused much more on regret experienced by non-judicial actors in areas like contract law,²¹ criminal sentencing,²² abortion,²³ and gender-affirming health care.²⁴ Law-and-emotion scholars have demonstrated the importance of emotions in legal analysis, touching on regret but not specifically among judges.²⁵

Thus, while previous scholarship has documented instances of regret in specific cases²⁶ and occasionally across areas of law,²⁷ no U.S. legal research has analyzed the broader normative and legal significance of judicial regrets.²⁸ This inattention is understandable given norms that prize judicial certainty and discourage second-guessing past rulings.²⁹ Nonetheless, this gap in legal literature—and the accompanying discounting of regret in the formal practice of law—warrants closer attention for at least four reasons.

First, judicial regret already shapes legal practice, whether formally acknowledged or not. Regret influences judicial behavior and decision-making and even the selection of future judges. Litigants, legislators, and advocates already invoke judicial regrets in their work. Ignoring this reality does not eliminate regret’s influence, but merely ensures that the legal system engages with it unsystematically and without clear frameworks for evaluation.

Second, regretted judicial actions have had far-reaching and devastating consequences. Three of the seven Supreme Court Justices who upheld the death penalty in 1976, paving the way for over 1,550 executions,³⁰ later conveyed regret about their opinions.³¹ When decisions that judges themselves come to rue become the foundation for taking human lives, legal scholarship—and the legal system itself—cannot afford to treat such regrets as mere personal sentiments. If judicial regret reveals that foundational precedents rest on reasoning their own authors repudiated, the legal system must take notice.

Third, judicial regrets can shed light on systemic failures that produce erroneous decisions. Patterns of regret may draw attention to structural problems such as inadequate representation, insufficient time for judicial deliberation, institutional pressures toward premature certainty, and cognitive biases in decision-making.³² Acknowledging judicial regrets also challenges the presumption of judicial infallibility and makes judicial reasoning more transparent and therefore more democratically contestable.³³

Finally, judicial regrets serve important instrumental functions. Congress can invoke judicial acknowledgments of error to justify corrective legislation, as it did when Justice Douglas’s Korematsu regret informed the Civil Liberties Act providing reparations for Japanese American internment.³⁴ Courts can consider judicial regret as evidence that a precedent’s justificatory force has weakened or collapsed.³⁵ Advocates can cite judicial regrets to demonstrate that even the decisionmakers who developed particular doctrines recognize them as problematic, strengthening arguments for legal reform.³⁶

Against this backdrop, this Article argues that judicial regret that reflects failures of legal reasoning might provide probative evidence that precedent has lost justificatory force. While regret alone cannot override precedent, it serves as a valuable signal for courts evaluating whether to reconsider doctrine, for legislatures considering remedial measures, and for scholars assessing judicial reasoning. This Article does not contend that all expressions of regret merit equal weight, nor that judges’ personal feelings should displace institutional judgments. Rather, it distinguishes regret that illuminates genuine failures in legal reasoning from regret that merely reflects preference change or strategic reputation management. The Article develops evaluative criteria for making these distinctions systematically, with the aim of bringing regret’s existing influence into the open where it can be assessed and channeled toward a more self-corrective and just legal system.

While regret is salient in several areas of law,³⁷ this Article concentrates on Supreme Court cases concerning equality and liberty to highlight how neglecting judicial regret can harm marginalized groups.³⁸ These cases most vividly illustrate regret’s significance, as they shape constitutional doctrine for generations and involve judgments about human dignity and fundamental rights in which misjudgments carry profound moral weight. Accounting for

regret becomes especially important when judges revisit decisions affecting marginalized communities, as doing so can help address historical and ongoing injustices.³⁹

This Article proceeds in three Parts. Part I introduces readers to the landscape of judicial regret. Section I.A analyzes responses from the only known survey of judges’ experiences with regret: a 2018 National Judicial College survey in which nearly 80% of responses reported regret over at least one ruling.⁴⁰ While methodological limitations counsel caution in generalizing from these findings, the survey provides rare qualitative insights into how judges conceptualize regret and how it influences their approaches to judging.⁴¹ Section I.B examines instances in which Supreme Court Justices later conveyed regret over landmark equality and liberty opinions, including cases involving Japanese American internment, school integration, capital punishment, LGBTQ+ rights, and affirmative action.⁴²

Drawing on these survey responses and case studies, Part II examines the anatomy of judicial regret. Section II.A provides a brief primer on regret generally, centering scientific studies that explore its impact on decision-making. Because research specifically addressing judicial regret remains scarce,⁴³ this broader regret literature provides valuable insights for analyzing both particular instances and the general phenomenon of judicial regret.

Section II.B then advances an analytical framework for distinguishing three dimensions of judicial regret: what judges feel (experiential), what they say (expressive), and how others perceive their regret (perceptual). It further examines how regret influences judicial behavior, how it varies across court hierarchies, interpretive philosophies, and social identities, and how it challenges professional norms that prize judicial consistency and certainty.

Part III proposes applications of judicial regret. Section III.A develops an evaluative framework for distinguishing regret that illuminates genuine reasoning failure from regret that merely reflects preference change or strategic calculation. Section III.B examines regret’s doctrinal applications in legal interpretation and in precedent analysis, demonstrating how judicial regret can provide probative evidence that a decision has lost justificatory force. Section III.C then explores extra-doctrinal applications including legislative reform, legal advocacy, scholarly analysis, and democratic engagement. Section III.D considers regret’s systemic implications for judicial decision-making and institutional reform. Finally, Section III.E examines limitations and risks that shape what judicial regret can realistically accomplish. These limitations counsel careful engagement with regret rather than ignoring it altogether.

I. The Landscape of Judicial Regret

Part I documents judicial regret at both the lower court and Supreme Court levels through survey data and case studies, establishing the foundation for this Article’s analysis. This context informs the broader examination of judicial regret undertaken in Parts II and III.

A. Lower Courts

In 2018, the National Judicial College (“NJC”)⁴⁴ conducted the only known survey of judges’ self-reported experiences of regret, with 392 of the 496 responses indicating regret over at least one ruling.⁴⁵ Initially sharing the survey results in a blog post,⁴⁶ the NJC has now made the full set of judges’ anonymous responses available for this Article.⁴⁷ While the methodological limitations discussed below counsel caution in generalizing from these findings, the survey provides rare qualitative insights into how judges conceptualize regret. Section I.A analyzes these responses to explore how self-reported regret can affect judges’ perceptions of past rulings, their approaches to future ones, and their understandings of judging and law.

Lower Court Judges’ Encounters with Regret

Criminal cases, particularly sentencing decisions, were a frequent site of reported regret due to their unintended consequences and the weight of personal responsibility such decisions carry. One judge observed that “judges are required to essentially predict the future” in such cases, adding, “[o]bviously, when events turn out differently than expected, I regret my error.”⁴⁸

Judges described regretting both harsh and lenient sentences, though the sources of their regrets differed.⁴⁹ Some reported regretting harsh sentences, particularly when they had been swayed by prosecutorial recommendations or emotional arguments, and especially in cases involving young defendants whose punishments led to lifelong hardships.⁵⁰ Others expressed regret over lenient sentences when defendants later harmed others or themselves.⁵¹ Judges indicated that past regrets influenced their future decisions, sometimes creating conflicting impulses.⁵² As one judge poignantly expressed, “I have released an individual on bail who shortly thereafter committed a homicide, and I have declined to release an individual on bail who shortly thereafter committed suicide in the jail.”⁵³

Family-related cases, especially custody decisions, were another commonly reported site of regret due to their complex and far-reaching consequences on children and families.⁵⁴ As one judge admitted, “My hope for a positive outcome and healthy future relationship was not realized. The parties and their family would have been better helped had I ruled the other way.”⁵⁵ Judges described experiencing regret over custody arrangements that seemed appropriate at the time but were later perceived to have harmed children.⁵⁶ The challenge of determining a child’s best interests, coupled with incorrect credibility assessments or unforeseen consequences, reportedly led to deeply felt regret.⁵⁷

Evidentiary challenges and inadequate advocacy complicated family cases, producing custody arrangements that judges later regretted. When domestic violence evidence was inadmissible⁵⁸ or uncontested statements later proved misleading,⁵⁹ judges sometimes regretted the resulting custody decisions. Long-distance parenting arrangements and out-of-jurisdiction visitations sometimes severely impacted parent-child relationships or created jurisdictional disputes, prompting regret.⁶⁰

Incomplete or inaccurate case information also produced regretted decisions.⁶¹ One judge expressed regret after learning that crucial information had been unavailable due to a litigant’s lack of legal representation.⁶² Multiple judges described experiencing regret after acting on misleading statements by witnesses, litigants, or lawyers, with one recalling how an assistant prosecutor’s misrepresentations led to an unjustified arrest warrant.⁶³

New scientific or social scientific information sometimes prompted judicial regret. One judge described regretting following sentencing guidelines during the 1980s crack epidemic after understanding their disproportionate impact on Black defendants.⁶⁴ Another reported regretting a prison sentence for a minor after learning about adolescent brain development research,⁶⁵ noting that they would have allowed for earlier parole given this information.⁶⁶ These examples suggest that data-driven

conclusions can inform judicial decision-making by provoking regret and associated avoidance behaviors.⁶⁷

Judges attributed regrets not only to informational and systemic issues, but also to personal lapses.⁶⁸ Multiple judges recounted decisions driven by emotions rather than reason, admitting they “should have waited to sentence when [they were] not emotional”⁶⁹ and acknowledging how “the unruly attitude of the accused caused anger in [them].”⁷⁰ One judge, after discovering a critical precedent that they had overlooked when ruling, wrote that they “[a]lways wanted to find the fellow and pay him out of [their] pocket the money he forfeited. It’s hard when you get it wrong and someone else suffers.”⁷¹ Another judge had dismissed a defense counsel’s argument about road conditions affecting their client’s driving, only to later drive on the same road and realize the argument’s merit.⁷² Some judges focused less on case outcomes and more on the manner in which they delivered their decisions,⁷³ with one reflecting, “[a]lthough the outcome was correct, it could have been written more thoughtfully. . . . I could have been more kind.”⁷⁴

How Lower Court Judges Process and Respond to Regret

Beyond identifying sources of regret, the survey responses illuminate how judges personally process and respond to regretted decisions. Judges described the sometimes profound personal impact of such decisions, with one recalling: “[I] [l]ost sleep, walked the living room late at night, slept on the sofa, for 2 decisions I made over a 25-year period.”⁷⁵ This response highlights how even a small number of regrets over a lengthy judicial career can deeply affect some judges.⁷⁶

Regret was said to both improve and inhibit judicial decision-making.⁷⁷ One judge explained that recurring thoughts of regret compelled them to examine cases more thoroughly: “Each time I think about a poor decision it forces me to examine facts and the law closer—a good thing.”⁷⁸ However, this introspection occasionally led to delays in time-sensitive situations.⁷⁹

The tension between law and justice emerged as a recurring theme. Several judges associated regret with a fundamental “law v. justice dilemma”—feeling compelled to follow the law even when it leads to an unjust outcome.⁸⁰ This tension was exemplified by responses like “I had to follow the law and the law yielded the wrong result” and “sometimes by following the law, we enable an injustice.”⁸¹ However, some judges described avoiding feelings of regret by accepting that the law does not require them to do justice, stating, “I have never regretted making a ruling that was in accord with the law.”⁸² One minority judge described avoiding regret by actively accounting for how people are differently situated: “As a minority, I have never had the luxury of contentment that leads to cookie cutter decisions that disregard the person standing before the court.”⁸³ This response suggests that a judge’s own experiences with structural inequality may shape how they approach decisions and whether they experience regret.⁸⁴

Judges often viewed regretted decisions as valuable learning opportunities.⁸⁵ “A good judge should be haunted by his mistakes on the bench and should strive to learn from them,” one stated, while another reflected, “I learn from the mistake or misjudgment. I move on, but never forget the lesson.”⁸⁶ Some described how regrets had led to concrete procedural changes, such as revising release protocols after a released defendant committed a murder.⁸⁷

Acknowledging mistakes and regrets was widely viewed as essential for judicial growth. Some judges expressed concern about colleagues who claimed to have never regretted a decision, with one asserting, “If the ‘yes’ response does not receive 100% of the vote, I will be disappointed . . . with any judge who lacks the humility to accept that he or she has screwed up at least once.”⁸⁸ However, others emphasized the importance of moving on. One judge advised, “Never look back. You do your best to do the right thing.”⁸⁹ Another said pragmatically, “Make the decision and put the file away. There are three people (or more) at the statehouse who are more than willing to review your work.”⁹⁰

***

The preceding analysis suggests some patterns in how lower court judges describe experiencing and responding to regret. Such feelings were especially evident in areas of significant judicial discretion,⁹¹ such as criminal sentencing and child custody,⁹² in which judges later became aware of adverse consequences.⁹³ Judges attributed these regrets to factors including incomplete information, unforeseen outcomes, emotional decision-making, and tension between legal requirements and perceived justice. Many described regret as prompting learning and change, though some emphasized moving forward rather than dwelling on past decisions.

These patterns should be understood as suggestive rather than definitive, given the survey’s methodological limitations. The 496 responses represent a small percentage of those contacted, raising selection bias concerns: judges who experienced memorable regrets may be more likely to respond,⁹⁴ and NJC alumni, having sought continuing education, may not represent the broader judiciary.⁹⁵ Moreover, the survey captures only what judges chose to report, which may differ from what they experienced.⁹⁶ Self-reporting faces well-documented limitations.⁹⁷ These constraints mean that the data cannot establish the prevalence of regret among judges generally and that findings should be treated as hypothesis-generating rather than conclusive.

What the survey does provide is a rare window into how judges themselves report making sense of regret.⁹⁸ These qualitative insights suggest that judicial regret is a promising area for future research with potential implications for reform.

While examining lower court judges’ experiences of regret is especially important for understanding the law’s impact on everyday lives, regret takes on heightened doctrinal significance when U.S. Supreme Court Justices later reconsider equality and liberty opinions that have shaped legal doctrine for decades. Highlighting these regrets at the highest level of the judiciary is the focus of the next Section.

B. Supreme Court

U.S. Supreme Court Justices have often conveyed regret over landmark rulings and opinions. While certain expressions have garnered widespread attention,⁹⁹ legal scholars have yet to explore connections between these instances.¹⁰⁰ Section I.B describes five contexts in which Justices have expressed misgivings over their equality and liberty opinions, laying essential groundwork for the analysis that follows in Parts II and III.

Japanese American Internment—Justice Douglas in Korematsu v. United States

In 1944, a 6-3 Supreme Court upheld Japanese American internment during World War II in Korematsu v. United States.¹⁰¹ Justice Hugo Black ruled that this practice was a valid exercise of the government’s war powers, justified by military necessity.¹⁰² As a result, over 120,000 people were forcibly relocated to detention camps based solely on their ancestry.¹⁰³ Despite the lack of evidence of widespread disloyalty among Japanese Americans,¹⁰⁴ Justice Black remained publicly unrepentant about his role in the case.¹⁰⁵ In a 1967 interview, he stated, “I would do precisely the same thing today.”¹⁰⁶

Unlike Justice Black, Justice Douglas came to express deep regret over his vote.¹⁰⁷ In his 1980 memoir, Douglas recognized that Korematsu was “the product of fear”¹⁰⁸ and that the dissenters had been right.¹⁰⁹ He lamented that “grave injustices had been committed” and “[f]ine American citizens had been robbed of their properties by racists—crimes that might not have happened if the Court had not followed the Pentagon so literally.”¹¹⁰ Reflecting on his role, he wrote, “my vote to affirm was one of my mistakes,”¹¹¹ and “[t]he evacuation case . . . was ever on my conscience.”¹¹²

Justice Douglas’s regret was particularly poignant because the path to a better outcome could be easily imagined.¹¹³ Three separate dissents in Korematsu had condemned the decision as an endorsement of legalized racism.¹¹⁴ Douglas himself had initially planned to write an opinion that would have allowed the President to displace citizens during an emergency, but not to imprison them.¹¹⁵ However, Douglas later claimed that Justice Black, Douglas’s ally, and Justice Frankfurter, whom Douglas respected, dissuaded him from writing a separate opinion.¹¹⁶ In hindsight, Douglas speculated that Korematsu “would never have been sustained except in the climate of war,” though this did not alleviate his personal regret.¹¹⁷

Racial Integration—Chief Justice Warren in Brown v. Board of Education II

In 1954, Brown v. Board of Education (Brown) rejected Plessy v. Ferguson’s separate-but-equal doctrine, declaring racial segregation in public education unconstitutional.¹¹⁸ Faced with significant opposition to school integration, the Court’s subsequent 1955 Brown v. Board of Education (Brown II) decision called for desegregation to be implemented “with all deliberate speed.”¹¹⁹ This language reflected an approach of gradual integration, essentially allowing desegregation to proceed slowly with no firm timeline.¹²⁰

During arguments, then-NAACP lawyer Thurgood Marshall had argued for a different approach: “immediate desegregation” within no more than a year.¹²¹ The NAACP understood that some delays were inevitable given the realities of the South, but believed that the Court should mandate immediate desegregation, subject only to administrative delays.¹²² However, Justice Frankfurter persuaded his colleagues that the “deep South [would] yield . . . without [] violent resistance” to “step-by-step” desegregation.¹²³

Chief Justice Warren’s biography reports that he came to believe he “had been sold a bill of goods” in accepting Justice Frankfurter’s argument and the “all deliberate speed” language.¹²⁴ As the pace of desegregation proved frustratingly slow and opposition intense, Warren seemed to believe he had been misled.¹²⁵ He opined that ordering immediate desegregation would have avoided “much of the defiance” that occurred, as the South interpreted the phrasing to countenance “indefinite delay.”¹²⁶ This may reflect Warren’s regret not only about the ruling’s consequences, but also about choosing Frankfurter’s approach over Marshall’s.¹²⁷

Critics of Brown II argue that the ruling allowed violent resistance to intensify¹²⁸ and subtler forms of opposition to undermine Brown’s promise.¹²⁹ By 1964, a decade after the original Brown decision, Southern defiance had resulted in only two percent of Southern Black students attending majority-white schools.¹³⁰ Thus, when the Supreme Court considered the one-person-one-vote principle in legislative apportionment that same year,¹³¹ Chief Justice Warren urged immediate enforcement, perhaps learning from his experience with and regret over “all deliberate speed.”¹³²

Death Penalty—Justices Stevens, Blackmun, and Powell

Belated regrets have emerged most prominently in the Supreme Court’s death penalty jurisprudence. In the 1976 Gregg v. Georgia decision, the Court upheld, 7-2, capital punishment statutes that provided certain guidance to juries.¹³³ Three of those seven Justices—Stevens, Blackmun, and Powell—later reversed their positions and conveyed regret over issuing opinions supporting capital punishment.¹³⁴

After three decades of implementing the death penalty at the Supreme Court, Justice Stevens renounced it in his 2008 concurrence in Baze v. Rees.¹³⁵ He concluded that capital punishment was unconstitutional, citing the “real risk of error” and the “irrevocable nature” of executions.¹³⁶ Moreover, he argued that the procedure for obtaining a “death qualified jury” effectively created a jury predisposed toward conviction.¹³⁷

In his autobiography, Justice Stevens specifically regretted his 1976 decision in Jurek v. Texas,¹³⁸ which upheld a statute that “played an important role in authorizing so many death penalty sentences in that state.”¹³⁹ Justice Stevens admitted to delegating review of the case’s facts to a law clerk rather than examining them closely himself.¹⁴⁰ “[I]f I had carefully stated the facts in Jurek v. Texas, I might well have changed my vote in that case,” he wrote.¹⁴¹ “My law clerk George Rutherglen urged me to change my vote in that case and I have lived to regret my failure to do so.”¹⁴²

Like Justice Stevens, Justice Blackmun later altered his stance on capital punishment.¹⁴³ Though Justice Blackmun never explicitly expressed regret over a specific death penalty case, his declaration to “no longer tinker with the machinery of death” has been widely interpreted as regret.¹⁴⁴

The seeds of Justice Blackmun’s regret likely took root before he even joined the Court in 1970.¹⁴⁵ As a circuit judge in 1967, he had included a comment questioning capital punishment in a draft opinion.¹⁴⁶ When colleagues deemed his comment “gratuitous,” he defended it as reflecting “sincerity and conviction.”¹⁴⁷ Though he ultimately removed it, his regret over this incident stayed with him.¹⁴⁸ Months later, he wrote to his friend Warren Burger: “I continue to kick myself for withdrawing my comment about capital punishment. . . . I was right about it and one never should compromise when one is right.”¹⁴⁹

On the Court, Justice Blackmun initially tried to develop constitutional rules to regulate capital punishment.¹⁵⁰ Despite his personal opposition to the death penalty, he dissented in Furman v. Georgia in 1972 when the Court struck down existing death penalty laws,¹⁵¹ and then voted in Gregg to uphold a revised statute.¹⁵² In Furman, he expressed his “distaste, antipathy, and indeed abhorrence, for the death penalty” while maintaining that personal beliefs should not guide judicial decision-making.¹⁵³

Justice Blackmun’s disillusionment with the death penalty grew over time.¹⁵⁴ In 1987, he dissented forcefully in McCleskey v. Kemp, arguing that racial discrimination in the justice system should invalidate a conviction.¹⁵⁵ However, he did not reject the death penalty outright, still believing that appropriate guidelines could address its flaws.¹⁵⁶ As protections like habeas review eroded, Justice Blackmun began questioning the death penalty’s

constitutionality itself.¹⁵⁷ By 1994, he told his clerks he was ready to renounce the death penalty entirely.¹⁵⁸

In that year’s Callins v. Collins decision, Justice Blackmun declared that the “death penalty experiment has failed” and he would “no longer [] tinker with the machinery of death.”¹⁵⁹ He concluded that “no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.”¹⁶⁰ However, by then, the Court’s strongest death penalty opponents had retired, leaving Justice Blackmun alone in his opposition.¹⁶¹ From that point forward, his dissent to every death penalty opinion warned that “the death penalty cannot be imposed fairly within the constraints of the Constitution.”¹⁶²

Justice Powell, another member of the Gregg Court, later renounced his opinions supporting the death penalty.¹⁶³ His biographer called it “the most profound irony in Justice Powell’s service on the Supreme Court that the 1976 death penalty cases were a victory he came to regret.”¹⁶⁴

Justice Powell’s regret came after the 1987 case of McCleskey v. Kemp, which presented powerful statistical evidence revealing racial disparities in Georgia’s administration of the death penalty.¹⁶⁵ Research by David Baldus showed that, even accounting for hundreds of non-racial factors, defendants convicted of killing white victims were four to eleven times more likely to receive death sentences than those whose victims were Black.¹⁶⁶ Warren McCleskey, a Black man sentenced to death for killing a white police officer,

challenged Georgia’s capital punishment system as racially discriminatory, citing the Baldus study’s findings.¹⁶⁷

Justice Powell’s biography reveals he was “uneasy” with such statistical evidence, admitting his “limited to zero” understanding of statistical analysis.¹⁶⁸ He struggled to understand how differential treatment of defendants based on the victims’ race could amount to race discrimination against defendants.¹⁶⁹ From what Justice Powell did grasp of the Baldus study, he concluded that “the system operates rationally as a general matter,” viewing some outcome variation as an inevitable aspect of discretion rather than latent racism.¹⁷⁰

Writing for a 5-4 majority, Justice Powell acknowledged that the study showed a “risk that the factor of race entered into some capital sentencing decisions,” but maintained that it failed to prove racial influence in McCleskey’s specific case.¹⁷¹ Justice Powell reasoned that general statistical patterns, without proof of intentional discrimination in the particular case, could not establish an equal protection violation.¹⁷² This set an almost unattainable bar for using statistics and large datasets to challenge racial bias in charging and sentencing decisions.¹⁷³

Just four years after McCleskey, Justice Powell confided to his biographer that he regretted his vote, having “come to think that capital punishment should be abolished.”¹⁷⁴ He said that he would “vote the other way in any capital case,” including McCleskey, and commented elsewhere that “if I were in the state legislature, I would vote against capital punishment.”¹⁷⁵

His reversal stemmed not from moral qualms about racial inequity, but from pragmatic concerns about death penalty litigation’s “unnecessary repetition and delay.”¹⁷⁶ This reflects what scholars call “intellectual regret” rather than “moral regret”—recognition that a decision was procedurally unworkable rather than fundamentally unjust.¹⁷⁷ Capital litigation had proved “personally costly” for Justice Powell, who had to handle “more than his share of last-minute requests for stays of execution” as Circuit Justice for Georgia and Florida.¹⁷⁸ His frustration with “excessively repetitious” capital litigation despite attempted judicial fixes suggests that McCleskey may have been a tipping point in his doubts about the Court’s ability to resolve the death penalty’s systemic flaws.¹⁷⁹

Queer Rights—Justice Powell in Bowers v. Hardwick

Justice Powell’s regrets extended beyond capital punishment. In 1986, amid the AIDS moral panic,¹⁸⁰ his decisive vote in Bowers v. Hardwick saved Georgia’s sodomy law.¹⁸¹ At the private conference following oral arguments, Justice Powell initially cast the decisive fifth vote to strike down Georgia’s law, concerned that its severe penalties might constitute cruel and unusual punishment prohibited by the Eighth Amendment.¹⁸² However, he reversed course just days later, ultimately voting to uphold the law.¹⁸³

Justice Powell’s private papers reveal that while he accepted Roe v. Wade’s constitutional right to privacy, he struggled to identify a limiting principle that would decriminalize same-sex acts without also invalidating laws against other private practices he viewed as legitimately prohibited, such as sex work.¹⁸⁴ Justice Powell also questioned whether the plaintiff Michael Hardwick, who was never prosecuted, had suffered a genuine harm from the law’s enforcement, and whether a civil lawsuit was the appropriate vehicle for the challenge.¹⁸⁵

Justice Powell’s opinion was probably shaped by the internal dynamics of his chambers, including a Mormon clerk’s advocacy for Georgia’s sodomy law.¹⁸⁶ Justice Powell’s claimed unfamiliarity with LGBTQ+ people may have further complicated matters. During private Court discussions, Justice Powell remarked that he had never known a gay person, a statement that astonished Justice Blackmun, who was aware that one of Justice Powell’s current clerks was gay.¹⁸⁷ However, Justice Blackmun chose not to disclose this to Justice Powell.¹⁸⁸

While Justice Powell appears to have seen little practical impact from rarely-enforced sodomy laws, the mere existence of such laws stigmatized queer people as a “criminal class,” exposing them to heightened risks of harassment and discrimination.¹⁸⁹ Bowers was also invoked to reject equal protection claims based on sexual orientation,¹⁹⁰ effectively sanctioning discrimination against LGBTQ+ people for seventeen years, until the Court reversed it in 2003.¹⁹¹

Four years after Bowers, the retired Justice Powell conveyed regret about his decisive vote while speaking to NYU law students.¹⁹² “I think I probably made a mistake in that one,” he admitted.¹⁹³ Though he never fully explained his change of heart, he acknowledged that the dissenting arguments had been stronger and his own Bowers vote “inconsistent” with Roe v. Wade.¹⁹⁴

Justice Powell’s statements suggest he may have lacked a full grasp of the case’s real-world impact, dismissing it as “not a major case” and a “frivolous” test suit.¹⁹⁵ He claimed that he had not “devoted half an hour” of further thought to the case since casting his vote.¹⁹⁶ Despite the equivocal nature of his regret, his second thoughts undermined the moral authority of the majority opinion in Bowers.¹⁹⁷ As Laurence Tribe predicted, “future generations” would view the decision as flawed based on the admission of its own essential fifth vote.¹⁹⁸

Affirmative Action—Justice O’Connor in Grutter v. Bollinger

Finally, we return to the case that opened this Article.¹⁹⁹ Justice O’Connor’s 2003 majority opinion in Grutter v. Bollinger allowed some consideration of race in college admissions, but maintained that such reliance “must be limited in time.”²⁰⁰ Justice O’Connor acknowledged that race-sensitive admissions policies were still needed due to serious racial disparities in education.²⁰¹ Based on the progress she perceived over the previous twenty-five years, she predicted that “25 years from now, the use of racial preferences will no longer be necessary,” without specifying the kinds of changes that would be required to make that prediction a reality.²⁰²

After retiring, Justice O’Connor admitted her timeline “may have been a misjudgment.”²⁰³ Reflecting on her Grutter opinion in a Harvard Law School lecture in 2008, she remarked: “In today’s America, I’m inclined to think that race still matters in painful ways.”²⁰⁴ She added, “I frankly haven’t seen enormous changes in this country in the last five years,”²⁰⁵ noting that state bans on affirmative action had hindered progress and highlighting the need for greater equality in childhood education.²⁰⁶ When asked years later to predict how long affirmative action would be necessary, she told her biographer: “There’s no timetable. You just don’t know.”²⁰⁷

Justice O’Connor’s remarks suggest that she regretted not only specifying a twenty-five-year timeline, but also proposing any timeline at all. This admission was especially remarkable given that she generally resisted reconsidering her legal opinions. For a Justice who discouraged “second thoughts”²⁰⁸ and actively taught the value of non-regret to colleagues and clerks²⁰⁹ to repeatedly express regret about Grutter suggests that her prediction weighed on her. Yet, the damage was done, and despite Justice O’Connor’s later remarks, her Grutter timeline became a staple argument used by affirmative action opponents.²¹⁰

In SFFA v. Harvard, these opponents recast Justice O’Connor’s timeline as a declaration of when affirmative action must be terminated, as opposed to a prediction of when it would no longer be necessary as a result of the elimination of racial disparities.²¹¹ This recharacterization belied both Justice O’Connor’s original reasoning and her later disavowal of arbitrary deadlines,²¹² treating her initial speculation as inviolable precedent despite her regret about having made it.²¹³

Ultimately, Chief Justice Roberts’s majority opinion elevated Justice O’Connor’s passing remark into a purported legal mandate, demanding a definitive endpoint that Grutter never prescribed.²¹⁴ Justice Kavanaugh’s concurrence similarly characterized Grutter as definitively settling the timeline issue, despite Justice O’Connor’s own later acknowledgment that she could not foresee when such policies would no longer be necessary in light of enduring racial disparities.²¹⁵

***

The preceding survey responses and case studies demonstrate judicial regret as both a personal experience and a sociolegal phenomenon.²¹⁶ The NJC survey data illustrates how lower court judges process regret in areas like criminal sentencing and child custody. The Supreme Court case studies demonstrate how even the most carefully considered equality and liberty opinions can become sources of profound regret as factual predicates collapse and social understandings evolve. But what exactly is judicial regret? How does it function? And how is it shaped by, and how might it in turn shape, the broader legal culture? Part II takes up these questions.

II. The Anatomy of Judicial Regret

Waste no time on . . . regret . . . .

—Justice O’Connor’s advice to Justice Ginsburg²¹⁷

Over 18 years, there has been more than one decision I have regretted, most often attributed to insufficient facts, but there have been some caused simply by poor judgment on my part. And I wonder how many more there have been—there must be many more. We’re told to forget and move on, but that’s not easy to do.

—Anonymous judge²¹⁸

Though we would like to live without regrets, and sometimes proudly insist that we have none, this is not really possible, if only because we are mortal.

—James Baldwin²¹⁹

Part II provides a deeper exploration of judicial regret than previous scholarship, which has primarily focused on documenting individual instances without analyzing their collective significance.²²⁰ Section II.A explores regret as a psychological phenomenon and examines how it influences decision-making, providing essential context for understanding judicial regret specifically. Section II.B then develops a framework for analyzing judicial regret by distinguishing three dimensions: what judges feel (experiential), what they say (expressive), and what others perceive (perceptual). It further examines how regret influences judicial behavior, how it varies across court hierarchies, judicial philosophies, and social identities, and how it challenges conventional professional norms that prize judicial consistency and certainty.

A. Regret Generally

Psychological research characterizes regret as a “cognitive/affective state of feeling sorry for losses, transgressions, shortcomings, or mistakes,”²²¹ typically arising from recognition that a different action could have led to a better outcome.²²² Although direct research on judicial regret is limited,²²³ broader regret research offers insights that can help us understand how judges may experience regret.²²⁴

Regret often involves feeling responsible for a decision and believing that “one should have known better.”²²⁵ Different types of regret stem from different loci of perceived failure. “Outcome regret” occurs when one evaluates the consequences of a chosen course of action against unchosen alternatives, expected outcomes, the pre-existing status quo, or others’ outcomes.²²⁶ “Self-blame regret” occurs when one impugns their own decision-making process, such as believing a decision was made in haste or with insufficient information.²²⁷ Both of these types of regret can arise in judicial contexts, for instance, when a judge fails to anticipate certain practical implications or adequately engage with certain arguments.²²⁸

People can experience regret from action or inaction, but these forms of regret differ in important ways.²²⁹ The “action effect” describes regret over actions taken, whereas the “inaction effect” refers to regret over forgone opportunities.²³⁰ While action-driven regret predominates in the short-term, inaction-driven regret becomes more prominent over time, as people ruminate over paths not taken.²³¹ As this Article’s case studies illustrate, judges may regret not merely their actual votes or opinions,²³² but also instances in which they considered departing from precedent, voting differently, or writing separately, but ultimately did not—resulting in decisions they later deemed incorrect.²³³

Regret exerts a powerful influence on subsequent behavior and decision-making through mechanisms including behavioral undoing, whereby individuals seek to resolve or compensate for perceived mistakes;²³⁴ emotion management, whereby they alter future conduct to reduce the likelihood of similar regrets;²³⁵ and decision avoidance, whereby anticipated regret causes people to delay or evade decisions altogether.²³⁶ These mechanisms do not depend on outward expressions of regret.²³⁷ Even privately experienced regret can profoundly shape how judges view their prior rulings and approach future ones.²³⁸

While often viewed as a negative emotion, regret can serve productive purposes.²³⁹ It can provide valuable context around past events, facilitate learning and better social relations, yield self-awareness about one’s limitations and dispositions, and enable better preparation for future decisions and avoidance of similar mistakes.²⁴⁰ By revealing significant unchosen alternatives, regret can help people better understand their own values, potentially leading to more value-consistent decisions in the future.²⁴¹ Part III explores various constructive applications of judicial regret.²⁴² But before examining those applications, we must first understand how judicial regret manifests and operates in practice.

B. Judicial Regret Specifically

Building on the preceding research on regret in general, this Section examines judicial regret specifically. Understanding judicial regret requires first identifying how it manifests across three key dimensions, then examining its behavioral consequences, and finally exploring the contextual factors that shape its occurrence and expression.

Dimensions of Regret

Judicial regret manifests across three dimensions: experiential, expressive, and perceptual. The experiential dimension describes judges’ internal feelings of regret. The expressive dimension describes judges’ outward expressions of regret. The perceptual dimension concerns how others interpret judges’ actions and statements as regret. Attending to all three dimensions shows that judicial regret operates beyond judges’ inner lives, shaping legal doctrine and culture as well as public understanding of judicial authority.

i. Experiential Regret

Experiential regret—what judges feel internally about their past decisions—can be prompted by several distinct sources. While judges often render decisions based on the record and their background assumptions, additional information that later comes to light can undermine the basis for their original ruling, prompting regret.²⁴³ Such new information can take the form of changing social feedback, as shifts in public opinion render once-accepted legal perspectives outdated or biased.²⁴⁴ For instance, shifts in societal views concerning racial discrimination likely contributed to Justice Douglas’s regret over Korematsu.²⁴⁵

At times, judicial opinions are based on expectations that turn out to be false, causing feelings of regret.²⁴⁶ Justice O’Connor’s expectation that the United States would achieve educational equity within a generation proved misguided,²⁴⁷ as did Justice Blackmun’s hope that formulating appropriate guidelines could address problems with the death penalty.²⁴⁸ In other instances, unforeseen implications or long-term consequences of court rulings can cause regret.²⁴⁹ Chief Justice Warren lamented using “all deliberate speed” in Brown II once it became clear that the South interpreted this phrase as permission to indefinitely delay integration.²⁵⁰

The internal dynamics of a court can help shape opinions that judges later come to regret.²⁵¹ Both Justice Douglas and Chief Justice Warren cited Justice Frankfurter’s influence in shaping their approaches to Korematsu²⁵² and Brown II,²⁵³ respectively—decisions they ultimately lamented. As judges evolve personally and professionally over their tenures, they may come to view their earlier opinions through new perspectives.²⁵⁴ For Warren, his regret over Brown II may have been intertwined with his earlier regret over supporting Japanese American internment,²⁵⁵ and it may have deepened by his increasingly assertive stance on equality rights and his strained relationship with Frankfurter.²⁵⁶ Similarly, as Douglas evolved into a staunch civil libertarian,²⁵⁷ his early ruling in Korematsu likely became a source of mounting regret and embarrassment.

Authoring the majority opinion or casting the deciding vote can heighten a judge’s sense of responsibility and regret over a case’s outcome.²⁵⁸ Such regrets can be further amplified by compelling dissents, as seen in Korematsu²⁵⁹ and Bowers,²⁶⁰ which reveal alternative paths the judge could have followed²⁶¹ and add poignancy to later admissions that they “should have known better.”²⁶²

Not all judges experience regret when confronted with new information and shifting societal values.²⁶³ Individual and structural factors can shield judges from experiencing regret over past opinions. On an individual level, a lack of internal regret could signal “one’s refusal to honestly engage with one’s past” or an “inability to do so.”²⁶⁴ It might reflect a reluctance to be guided by moral principles or empathy, a moral worldview that absolves certain actions from regret, a belief that one’s decisions were natural and thus undeserving of regret, or a disregard for those adversely affected by those decisions.²⁶⁵ Additionally, some judges may—like Edith Piaf’s famous song on non-regret²⁶⁶—view past mistakes as authentic reflections of their former selves, acknowledging them as part of personal growth.²⁶⁷

Structurally, legal formalism allows judges to attribute the law’s harms to legal rules and principles, rather than their own interpretive acts.²⁶⁸ Formalism holds that a judge’s “job is to apply the law, not make it, and that if the law is unjust or unfair, it is the legislature’s job to fix it.”²⁶⁹ Since regret is associated with feelings of responsibility and self-blame,²⁷⁰ judges adhering to this formalist perspective may not feel personally responsible for enforcing laws they did not create.²⁷¹ For some, as Justice O’Connor implied in the epigraph above, regret may seem a “waste” of time that hinders performing judicial duties.²⁷² Valuing the separation of reason and emotion, such judges may regard regret “as a mistake in itself.”²⁷³ As discussed below, certain judicial dispositions and jurisprudential commitments, including a

lack of humility and strict originalism or textualism, can further reduce judges’ propensity to experience regret.²⁷⁴

i. Expressive Regret

Expressive regret—what judges say publicly or privately about their past decisions—can diverge from what they feel internally. It encompasses both straightforward forms—publicly expressed regret in autobiographies or speeches,²⁷⁵ privately admitted regret in surveys or conversations²⁷⁶—and more complex manifestations, including insincere expressions without genuine feeling,²⁷⁷ strategic displays for personal gain,²⁷⁸ and indirect expressions where direct acknowledgement is constrained.²⁷⁹ This taxonomy illustrates the multifaceted nature of judicial regret, highlighting how it can be internal or external, genuine or performative, and direct or indirect.

Judges’ public expressions of regret vary in time, place, and manner. Some judges express regret relatively quickly, such as Justice Powell reconsidering Bowers after just four years, having apparently been persuaded by the dissenting opinions,²⁸⁰ or Justice O’Connor expressing misgivings about her Grutter timeline within five years, observing little progress in racial conditions.²⁸¹ In other instances, regrets may accumulate gradually, as may have happened with Justice Douglas voicing regret over Korematsu after nearly four decades.²⁸² Research suggests that regret from inaction can linger longer than regret from action²⁸³—a dynamic that might have been relevant for Douglas, who considered writing separately in Korematsu but was dissuaded by colleagues.²⁸⁴

Some judges express regret only after retiring,²⁸⁵ possibly due to a gradual buildup of regret over time,²⁸⁶ biographical reflection in later life,²⁸⁷ or reduced consequences for expressing regret.²⁸⁸ Mark Graber suggests that political pressures constrain Justices’ perspectives while on the bench.²⁸⁹ He echoes Alexander Bickel that only after leaving the bench do Justices gain the “‘leisure . . . and the insulation’ necessary ‘to follow the ways of the scholar in pursuing the ends of government.’”²⁹⁰

The venues in which judges reveal regrets often encourage such candor. When Justice Powell recanted Bowers during a conversation with NYU law students in 1990, he may have anticipated a receptive audience for his contrition, as Bowers had faced heavy scholarly criticism.²⁹¹ A year earlier, Yale law students had protested Justice Powell’s graduation speech due to the “egregious misalignment in values” of having the decisive vote in Bowers speak about “justice, the courts, and the role of the legal profession.”²⁹² While it is impossible to pinpoint when and how Justice Powell’s regret emerged, it is plausible that the feedback on his decision and the informal academic setting facilitated his expression of regret.

Yet such moments of candor remain the exception rather than the norm. Professional norms and institutional constraints discourage judges from expressing regret.²⁹³ As discussed below, legal culture generally prizes judicial consistency and certainty over acknowledgment of error, a dynamic that creates powerful barriers to expressing regret even when it is experienced.²⁹⁴ Moreover, judges’ social identities and positions within power structures can create additional barriers, as gendered and racialized expectations shape the willingness to express regret and how such expressions are received.²⁹⁵

iii. Perceptual Regret

Perceptual regret—how others interpret a judge’s statements and actions as regret—can exist independently of what the judge feels or intends to communicate. Subtle cues in a judge’s statements or actions can generate perceptions of regret even when the judge did not directly express it. Conversely, even explicit statements of regret may be received as insincere or strategic. These perceptions can shape understandings of judging and law, regardless of whether they align with the judge’s actual emotional state or outward expressions.

A historical example illustrates how perceptions of regret can shift dramatically over time. In the landmark 1829 North Carolina Supreme Court case of State v. Mann,²⁹⁶ Justice Ruffin’s ruling, which granted enslavers “absolute” authority over enslaved people and immunity from prosecution for violence against them, was accompanied by expressions of personal regret.²⁹⁷ Ruffin wrote of the “severe” struggle between his feelings as a man and his duty as a magistrate, lamenting the necessity of such judgments.²⁹⁸ While commentators sometimes treated Ruffin’s words as sincere “statements of regret,” later scholars have interpreted them as a calculated rhetorical performance to cast him in a favorable light and shield him from responsibility for the system he helped enforce.²⁹⁹ This shifting perception of Ruffin’s professed regret has invited a broader reassessment of his life and legacy.³⁰⁰

***

Distinguishing between experiential, expressive, and perceptual regret is important, as each operates differently and demands different responses. Experiential regret suggests that judges’ personal feelings of regret can influence judicial behavior, necessitating an understanding of how the legal system should respond to such regret. Expressive regret involves judges conveying messages through their words and actions, requiring careful consideration of the meaning and sincerity of these communications. Perceptual regret involves stakeholders interpreting and responding to perceived regret, which in turn shapes understandings of law and judging.

The relationship between experiential, expressive, and perceptual regret is complex. The experience of regret does not always lead to its expression, expressed regret may not reflect genuine feelings, and perceived regret can diverge from both experienced and expressed regret. Neglecting any one of them would yield an incomplete account of how judicial regret operates in the legal system. Having established how judicial regret manifests across

these three dimensions, we are now better equipped to examine how it operates in practice.

Regret’s Influence on Judicial Behavior and Decision-Making

Regret can influence judicial behavior and decision-making in ways that reflect the broader patterns identified in regret research.³⁰¹ It can shape how judges view their past rulings and how they approach future ones. Consider Justices Stevens and Blackmun, who developed misgivings about previously upholding capital punishment and later repudiated it in subsequent opinions, though too late to shift established doctrine.³⁰² Regret can also prompt deeper reflection on the circumstances behind regretted decisions, as when Justice Douglas speculated that Korematsu “would never have been sustained except in the climate of war.”³⁰³

Public expressions of regret can serve as an instrument for social learning within the judiciary. When one judge candidly acknowledges regret, it can influence how other jurists approach decision-making and understand their judicial role. Inspired by Justice Blackmun’s vow to “no longer tinker” with capital punishment, Judge Lewis observed that while lower courts must apply Supreme Court precedent, judges should “reflect upon the law” and express “genuine and unfeigned” views.³⁰⁴ He added that Justice Blackmun’s “plaintive voice . . . truly crying in the wilderness” should “haunt and remind us that ‘the desired level of fairness has [not] been achieved.’ ”³⁰⁵ Judges giving voice to regret can shape how their peers view their responsibilities, potentially encouraging more candid reflection on whether the laws they uphold are truly fair or even constitutional.³⁰⁶ Conversely, when judicial regret goes unexpressed, this silence may allow errors and injustices to continue in the name of following established norms of judicial restraint and can deprive courts of the learning that accompanies the acknowledgment of regrets.³⁰⁷

Private expressions of regret can be equally consequential, even if less observable. Occurring in chambers, conference rooms, and conversations with colleagues and confidantes, such regret can profoundly influence legal opinions and approaches.³⁰⁸ Justice O’Connor’s advice to Justice Ginsburg in the epigraph above exemplifies how judges privately discuss regret and learn from each others’ experiences.³⁰⁹ Judges may share their understandings of regret with trusted law clerks and mentees, who carry these lessons into their own careers in legal practice, academia, and the judiciary. As Judge Friedland learned from her mentor, Justice O’Connor: “[T]here is room for deep reflection, but not for regret.”³¹⁰ These private exchanges create a ripple effect of learning that extends beyond the immediate circle of judges.

Even unexpressed regret can shape future judicial decisions by motivating judges to avoid similar errors.³¹¹ This regret-avoidance can have both beneficial and detrimental effects on judicial decision-making.³¹² On the productive side, judges may engage in private counterfactual thinking to improve future performance.³¹³ Less productively, anticipation of regret might lead to second-best decisions to avoid the personal emotional pain of regret.³¹⁴ Judges may also avoid seeking information about their rulings’ real-world impacts or how different opinions might have prevented unintended consequences, stymieing their professional growth.³¹⁵ The mere anticipation of regret is likely weighed as a cost of a particular action, and judges may adjust decision-making and evidence gathering to circumvent feeling regret. Thus, judicial regret’s reach extends far beyond public admissions, permeating private discussions, mentor-mentee relationships, and personal introspection in ways difficult to quantify but nonetheless significant.

Contextual Variations in Judicial Regret

How regret is experienced, expressed, and perceived—and whether it surfaces at all—is context dependent on various factors.³¹⁶ This Section highlights four particularly important sources of variation: regret’s origins, its manifestation across judicial hierarchies, its relationship to interpretive philosophies, and the influence of judges’ social backgrounds and positions.

i. Origins of Regret

Judicial regret stems from at least five distinct origins. Some regrets arise from predictive errors—as when Justice O’Connor’s Grutter timeline³¹⁷ or Justice Blackmun’s faith in capital punishment guidelines³¹⁸ proved misguided—highlighting judges’ inherent limitations in forecasting social and legal change. Others stem from incomplete or misleading information due to inadequate representation, evidentiary constraints, or the limited facts available at the time of decision.³¹⁹ Another source involves cognitive biases and constraints, as Justice Powell’s difficulty understanding statistical evidence in McCleskey illustrates.³²⁰ Regrets can emerge from changed circumstances that render once-accepted decisions problematic, as Justice Douglas later recognized when societal evolution made Korematsu’s injustices impossible to ignore.³²¹ Finally, regret may arise from institutional dynamics that produce decisions judges come to rue, exemplified by Chief Justice Warren’s and Justice Douglas’s later regrets about decisions shaped by Justice Frankfurter’s persuasive influence.³²²

Failing to distinguish between these drivers risks treating all judicial regret identically and missing opportunities for targeted responses. For instance, a judge who regrets a decision shaped by cognitive bias may require different institutional supports than one who regrets a predictive failure.³²³

ii. Variations Across Court Hierarchies

Judicial regret manifests differently across levels of the judiciary. Lower court judges may experience regret most immediately and personally. Because they decide cases individually, they may face intense individual responsibility and attendant feelings of regret.³²⁴ These judges often confront the consequences of their rulings most directly, seeing how decisions affected lives and receiving feedback unavailable to appellate judges insulated from outcomes. Where they retain ongoing jurisdiction, lower court judges may also have greater opportunities for behavioral undoing than appellate judges.³²⁵

For intermediate appellate judges, deciding collegially in panels requires compromises that can produce lasting regret, as Justice Blackmun’s appellate experience illustrates.³²⁶ Their regrets may also remain hidden, as intermediate appellate decisions receive less scrutiny than Supreme Court decisions and judges often lack the public platforms available to Justices.

Supreme Court Justices’ regret carries particular weight and visibility. The Court’s position as final arbiter amplifies the consequences of decisions and the significance of regrets about them. When Justice Powell recanted Bowers and McCleskey, he acknowledged errors in precedents binding all courts and affecting millions.³²⁷ This higher profile may create reticence about expressing regret while also making such expressions more influential. Supreme Court Justices’ unique platforms, particularly post-retirement when constraints on expression diminish,³²⁸ allow their regrets to shape public understanding far beyond legal audiences, as Justices’ statements about the death penalty demonstrated.³²⁹

iii. The Role of Judicial Philosophy

A judge’s judicial philosophy affects what counts as valid grounds for regret. Living constitutionalists, who embrace evolving legal interpretations, remain structurally open to the emerging information and changing social understandings that typically prompt regret.³³⁰ Originalists and textualists

are less amenable to these sources of reconsideration, though they are not immune to regret entirely.³³¹

Justice Powell’s experience illustrates how judicial philosophy shapes the conditions under which regret becomes possible. According to his biographer, Justice Powell believed that the U.S. Constitution “plainly contemplated” capital punishment and he never altered his view on constitutional text and history.³³² Nevertheless, he conveyed regret about upholding capital punishment in McCleskey because “[b]y 1991 the intent of the Framers seemed no longer decisive and not nearly so important as the actual experience under the new law of capital punishment.”³³³ Justice Powell’s growing willingness to credit empirical evidence over fixed historical meaning appears to have enabled him to recognize flaws in the death penalty system and ultimately convey regret about McCleskey.³³⁴

Judicial philosophy shapes not only whether judges experience regret but also whether they credit the regrets of others. For example, in Compassion in Dying v. Washington, Judge Reinhardt cited Justice Powell’s regret over Bowers v. Hardwick to support an “evolving” substantive due process doctrine.³³⁵ However, an originalist dissent dismissed Justice Powell’s regret as “irrelevant,” focusing solely on the Fourteenth Amendment’s original meaning.³³⁶ For an originalist, Justice Powell’s regret was not just unpersuasive but categorically outside the bounds of relevant legal argument.

These methodological commitments have also influenced judicial appointment strategies. Originalist methodology limits the relevance of the kinds of evolving social facts that prompted regret in earlier Justices,³³⁷ and this resistance to societal evolution has become a deliberate feature of conservative appointment strategies. The evolution of Republican appointees like Justices Souter, O’Connor, Stevens, and Powell disappointed conservative legal elites and contributed to calls for nominees with staunch methodological commitments.³³⁸ These strategies favor judges who are less responsive to societal change and less likely to evolve in their own methodological commitments, reducing the likelihood of the kinds of regrets that emerged among earlier Justices. In Justice Thomas’s words, they seek judges who “ain’t evolving.”³³⁹

Whether originalist philosophy can insulate judges from outcome-based regret remains an open empirical question. The Court’s recent high-profile decisions, particularly Dobbs,³⁴⁰ may eventually test whether even some methodologically committed judges acknowledge regret when confronted with adverse consequences.³⁴¹

The causal relationship between judicial philosophy and regret may also run in the opposite direction. Judges temperamentally less inclined to reconsider their decisions may be drawn to originalist philosophy because it legitimizes a resistance to the evolution that might otherwise prompt regret. This would be a case of judicial philosophy chosen to fit an existing disposition rather than disposition shaped by philosophy.³⁴²

iv. Gender and Race in Judicial Regret

Judicial regret is also shaped by a judge’s social identities and positions within structures of power.³⁴³ Gendered expectations can shape whether judges view expressing regret as appropriate³⁴⁴ and how others receive those expressions.³⁴⁵ Research has shown that female leaders are often viewed as more emotional than their male counterparts³⁴⁶ and face harsher criticism for displaying “negative” emotions, such as remorse.³⁴⁷ This creates “emotional landmines” for women in leadership roles, where expressing certain emotions carries different consequences depending on the leader’s gender.³⁴⁸ Legal culture may likewise apply gendered expectations to judicial regret, praising it as intellectual courage in male judges while viewing it as weakness or uncertainty in female judges.³⁴⁹ If the same expression of regret enhances a male judge’s reputation while undermining a female judge’s authority, the effect is to systematically discourage certain judges from the kinds of introspection this Article argues has value.

Racialized experiences may shape judicial regret in related but distinct ways.³⁵⁰ One survey respondent, identifying as a minority judge, noted: “As a minority, I have never had the luxury of contentment that leads to cookie cutter decisions that disregard the person standing before the court.”³⁵¹ For judges with experiences of marginalization, the gap between law as articulated in doctrine and law as experienced in communities may be more viscerally apparent, heightening the stakes of each decision and the potential for regret when doctrine falls short.

Legal Culture and the Normative Status of Regret

Judges and scholars often prize judicial consistency,³⁵² believing it “increases confidence in the judicial system” and lends legitimacy to judicial decisions.³⁵³ Significant departures from prior rulings must be justified³⁵⁴ and judges are expected to ground their reasoning in “neutral” legal principles³⁵⁵ rather than sentiments like empathy. Judges who reverse course risk criticism for yielding to public pressure, undermining stare decisis, or revealing that earlier convictions were less settled than they appeared.³⁵⁶ Consistency also helps cultivate a recognizable jurisprudential “brand” that signals independence, steadiness, and professional discipline.³⁵⁷ This culture of valuing consistency and certainty was aptly captured by Justice O’Connor’s famous pillow inscription: “Maybe in error but never in doubt.”³⁵⁸ In such a culture, judicial regret—which can motivate or accompany changes in previously held positions—might appear undesirable.

Yet regret can result in beneficial forms of inconsistency.³⁵⁹ Justin Driver cites Justice Blackmun’s evolving stance against capital punishment as a noble instance of judicial inconsistency.³⁶⁰ While consistency holds value, he argues, overvaluing it can “constrain our constitutional understanding.”³⁶¹ A degree of inconsistency through regret and evolved perspectives allows constitutional interpretations to progress.³⁶² The willingness to regret and reevaluate, so often treated as weakness, becomes on this view a form of intellectual courage.³⁶³

That intellectual courage is closely related to judicial humility. While humility is often associated with judicial deference and restraint,³⁶⁴ scholars have proposed broader definitions³⁶⁵ that encompass realistic self-assessment and recognizing “one’s errors in judgment.”³⁶⁶ Sherry Colb notes that judges sometimes forget the potential for error—and its potential outsized effect—that accompanies their power.³⁶⁷ Voicing regret might help counter judicial arrogance that can arise when a judge’s immense power outstrips their ability to discern truth.³⁶⁸ From this lens, Justice O’Connor’s regret-filled statements about her affirmative action timeline might be seen as a humble, if ineffective, corrective to the arrogance of her original prediction.³⁶⁹

The notion of regret as a judicial virtue is reinforced by the way some judges’ regrets positively shaped their legacies. In several prominent examples, male Justices did not lose legitimacy for voicing regret and were even praised for it. Justice Powell was commended for his “courage and candor” for acknowledging errors in Bowers³⁷⁰ and McCleskey.³⁷¹ Tributes to Justice Stevens celebrated that “he wasn’t shy about expressing remorse and regret” and named “his ability to recognize his errors” as “one of his many strengths.”³⁷² Justice Blackmun’s vow to cease to “tinker with the machinery of death” was “perhaps the most widely praised” statement of his career.³⁷³ (Reflecting potentially gendered dynamics in how judicial regret is received,³⁷⁴ tributes to Justice O’Connor highlighted her relative lack of regret or repentance,³⁷⁵ with some regarding this as an admirable quality for other women to emulate.³⁷⁶)

How legal culture perceives judicial regret thus shapes not only whether judges express it, but also whether it is understood as intellectual courage or professional failure. The praise lavished on Justices Powell, Stevens, and Blackmun suggests that legal culture can embrace regret as a virtue. Yet the broader legal-cultural resistance to acknowledging error, combined with potentially gendered expectations about emotional expression, means that the path from experiencing regret, to expressing it, to having that expression positively received remains fraught with barriers.

A legal culture that equates authority with unwavering consistency and decisiveness may ultimately undermine the legitimacy it seeks to protect. Courts claim authority based partly on reasoned judgment and careful analysis, yet institutional resistance to acknowledging when that judgment proves mistaken can suggest either claimed infallibility or intransigence, neither of which bolsters legitimate authority. When legal culture treats acknowledgment of error as weakness, judges may defensively maintain positions even while recognizing their flaws, perpetuating mistakes rather than correcting them, and projecting false certainty rather than the honest reasoning on which legitimate judicial authority depends.³⁷⁷

***

These observations about how judicial regret functions underscore why systematic engagement with it is necessary. When judges lose sleep over decisions,³⁷⁸ when Justice Blackmun’s renunciation of capital punishment energizes reform movements,³⁷⁹ and when Justice O’Connor’s advice to avoid regret informs others’ approaches to judging,³⁸⁰ judicial regret is already operating as a force in law. This Article therefore aims to bring regret’s existing influence into the open, where it can be evaluated and channeled productively. Part III develops a framework for evaluating which expressions of judicial regret warrant serious legal consideration and demonstrates applications across doctrinal and extra-doctrinal contexts.

III. Applications of Judicial Regret

Korematsu has not been overruled . . . but each part of the decision . . . has been discredited or abandoned.

—Congressional Commission on Wartime Relocation and Internment of Civilians, invoking Justice Douglas’ regret over Korematsu³⁸¹

This Court firmly believes that McCleskey was wrongly decided . . . .

—Chief Judge Castillo, citing Justice Powell’s regret about McCleskey³⁸²

Part III explores practical applications of judicial regret for courts, legislators, advocates, and scholars. Section III.A develops an evaluative framework for distinguishing regret that illuminates genuine failures in reasoning from regret reflecting strategic calculation or preference change. Building on that framework, Section III.B examines regret’s doctrinal applications in legal interpretation and precedent analysis, while Section III.C explores extra-doctrinal applications including legislative reform, advocacy, scholarly analysis, and democratic engagement. Section III.D considers systemic implications for judicial decision-making and institutional reform, and Section III.E examines the significant limitations and risks that shape what judicial regret can accomplish.

A. Evaluating Judicial Regret

Not all instances of judicial regret warrant the same attention. This Section develops a framework for identifying the forms of judicial regret that may matter most in legal deliberations, while recognizing that scholars working from different theoretical commitments may draw the line elsewhere. The framework distinguishes between regret that reflects mere preference change and regret that reflects recognition of reasoning failure—an acknowledgment by a decision’s own participant that its justificatory premises did not hold.³⁸³ When Justice Blackmun concluded that “the death penalty experiment has failed,” he was acknowledging that his own attempts to cabin arbitrary capital punishment through procedures had not succeeded.³⁸⁴ It is this insider recognition of justificatory collapse, from a participant uniquely positioned to assess whether the decision’s reasoning proved sound, that gives judicial regret its legal relevance. The framework proceeds in two steps.

Step 1: Substantive Threshold—Does the Regret Address Justificatory Failure?

Step 1 asks whether judicial regret concerns a failure of reasoning that bears on legal analysis. The following four categories identify common forms of regret that may satisfy this threshold, though they are suggestive rather than exhaustive, and other forms of regret may qualify depending on context. These four categories are recognition of error, acknowledgment of failed expectation, recognition of changed understanding, and acknowledgment of unjustified harm.

Recognition of error occurs when a judge acknowledges that facts central to the decision were misunderstood, law was misapplied, or critical information was unconsidered at the time of decision. Justice Stevens stated in his autobiography that he failed to examine facts carefully in Jurek v. Texas, delegating review to a clerk, and would have voted differently had he scrutinized the record himself.³⁸⁵ This represents recognition that the decision-making process was flawed from the outset.

Acknowledgment of failed expectation involves recognizing that predictions or expectancies essential to an opinion’s justification did not materialize. Justice O’Connor’s Grutter timeline presumed racial disparities in education would diminish sufficiently within twenty-five years to render affirmative action unnecessary.³⁸⁶ When she later acknowledged “there’s no timetable,” she recognized that her predictive premise had failed.³⁸⁷

Recognition of changed understanding means acknowledging that facts, circumstances, or social meanings have evolved such that the earlier decision appears problematic in ways not fully appreciated at the time. Justice Douglas’s regret over Korematsu likely reflected both his personal evolution and society’s growing recognition of the injustice of Japanese American internment.³⁸⁸ His acknowledgment that “grave injustices had been committed” suggested that the decision looked fundamentally different with that evolved understanding.³⁸⁹

Acknowledgment of unjustified harm involves recognizing that the decision inflicted harms that were not justified even under the decision’s own articulated logic or values. Justice Blackmun’s renunciation of capital punishment acknowledged that despite attempting to create guidelines ensuring fair administration, the death penalty caused unjustified harm in practice.³⁹⁰

These four categories each identify regret concerning justificatory failure rather than mere preference change or strategic calculation. When a judge expresses regret falling within these categories, the regret provides information about whether the original decision’s reasoning has held up. Conversely, certain regrets falling outside these categories—such as discomfort with a decision’s political reception or purely philosophical evolution unconnected to the specific legal analysis—may provide little or no evidence relevant to evaluating the soundness of the original decision’s reasoning.

Step 2: Evidentiary Assessment—How Much Weight Should Regret Receive?

Satisfying Step 1’s threshold question is necessary but not sufficient. A regret that clears Step 1 may still warrant different evidentiary weight depending on whether it is isolated, vague, or grounded in considerations other than genuine recognition of error. Step 2 therefore asks how much weight the regret deserves as evidence. It identifies three evaluative criteria—pattern, specificity, and basis—as a starting point for analysis rather than an exhaustive checklist; other factors may be relevant depending on context.

Pattern analysis asks whether a judge’s regret represents an isolated statement or whether multiple judges reached similar conclusions independently. Regret expressed by multiple judges may provide stronger evidence of justificatory failure than one judge’s statement, though isolated regrets can also be probative. In death penalty jurisprudence, three of the seven Justices in the Gregg majority—Stevens, Blackmun, and Powell—independently came to renounce capital punishment.³⁹¹ This pattern suggests systematic problems with the Gregg line of cases rather than idiosyncratic second thoughts.

Specificity assessment evaluates whether the regret includes an explanation of what went wrong and why, or is vague and general. Specific identification of reasoning failures provides greater probative value than abstract expressions of discomfort. Justice Blackmun’s Callins dissent did not merely state he had changed his mind about capital punishment. He explained why “no combination of procedural rules or substantial regulations ever can save the death penalty from its inherent constitutional deficiencies,” detailing exactly how and why the regulatory approach failed.³⁹²

Basis evaluation considers whether the regret reflects genuine recognition of error grounded in evidence and experience or suggests strategic reputation management or other problematic influences. Justice Powell’s regret about McCleskey came after years as Circuit Justice handling “more than his share of last-minute requests for stays of execution,”³⁹³ suggesting pragmatic learning from direct experience. However, it also came post-retirement when it could enhance his image without constraining his judicial role, raising the possibility of strategic legacy management.³⁹⁴ Mixed motivations of this kind do not automatically disqualify regret, but they do raise questions about how much it reflects reasoned learning rather than strategic positioning. A regret that is partly strategic but also grounded in genuine experiential learning may still provide useful evidence of justificatory failure.

Judicial regret exhibiting a strong pattern, detailed specificity, and a sound basis provides greater probative evidence than its weaker counterparts. These criteria exist along continua, with stronger showings on each dimension increasing the regret’s evidentiary value. This two-step evaluative framework favors identification of specific reasoning failures over mere expression of discomfort. And it treats regret as probative evidence rather than dispositive authority, meaning regret that passes both steps warrants serious consideration without automatically overriding other legal considerations. Ultimately, the framework is designed to encourage systematic engagement with judicial regret rather than its suppression or inadvertent influence. Regret already influences law covertly, as the NJC survey revealed, so bringing it into the light enables evaluation and intervention rather than hidden operation.

B. Doctrinal Applications

Judicial regret has applications in legal interpretation and, through existing stare decisis doctrine, in precedent analysis.

Legal Interpretation

Courts are not strangers to regret as a legally relevant consideration, though their engagement with it has been uneven and at times analytically confused. In Gonzales v. Carhart, for example, the Supreme Court invoked potential regret by women to restrict abortion rights.³⁹⁵ Chris Guthrie has criticized this ruling for misunderstanding regret,³⁹⁶ while Susan Appleton argues that it exemplifies courts’ gendered use of regret.³⁹⁷ If regret warrants legal consideration at all, then regret grounded in a judge’s own assessment of whether their reasoning held up rests on firmer analytical footing.³⁹⁸

When judges regret reasoning failures in landmark decisions, their regret can produce interpretive insights in subsequent cases. Justice O’Connor’s Grutter regret illustrates why this form of regret can matter for legal interpretation. Unlike the regret attributed to abortion patients in Carhart, Justice O’Connor’s regret arose from her own assessment of whether her reasoning has held up. Her regret identified a specific justificatory failure: her expectation that twenty-five years would suffice to eliminate racial disparities requiring affirmative action proved incorrect. It was also specific about what had gone wrong (her prediction of racial progress), was reiterated in multiple contexts (Harvard lecture, biographical interviews), and appeared grounded in observation of empirical reality (continuing racial disparities) rather than mere strategic calculation. These features of Justice O’Connor’s regret strengthen its probative value for understanding what she meant by the twenty-five-year timeline in Grutter.

Given the evidentiary weight of Justice O’Connor’s regret, its absence in the arguments in SFFA v. Harvard is especially notable, and symptomatic of the broader discounting of judicial regret this Article documents.³⁹⁹ Affirmative action advocates could have invoked Justice O’Connor’s regret both defensively, to rebut arguments that recast her timeline as a mandate rather than a prediction she herself later disavowed, and affirmatively, to demonstrate that even Grutter’s author recognized affirmative action’s continued necessity.⁴⁰⁰

The Court’s analysis suffered from the same omission. Incorporating Justice O’Connor’s regret would have strengthened SFFA v. Harvard’s legal analysis in three ways. First, it would have prevented the misleading presentation of her original timeline as her definitive view.⁴⁰¹ Second, it would have clarified the timeline’s nature: not as a mandate for when affirmative action must end, but as a prediction of when it might become unnecessary, based on an assumption about diminishing racial disparities that she later acknowledged as overly optimistic.⁴⁰² Third, acknowledging her regret would have better aligned the case with affirmative action jurisprudence’s fundamental rationale: that race-conscious measures are necessary tools for transitioning to a society in which race no longer matters.⁴⁰³ While Grutter recognized the need for such measures during this transition period,⁴⁰⁴ Justice O’Connor’s later regret powerfully underscored that Justices cannot reliably predetermine a timeline for this transition.⁴⁰⁵ The Court’s analysis would have been more robust had it engaged with the logic of both Justice O’Connor’s initial prediction and her subsequent regret. Overlooking her well-documented regret robs SFFA v. Harvard of an important source of legal insight and of the air of careful legal reasoning.

While judicial regret can inform legal interpretation in individual cases, its most significant doctrinal application may lie in precedent analysis.

Precedent Analysis

Regret’s relationship to precedent has long been hinted at in legal scholarship. Nearly 50 years ago, Ronald Dworkin observed that a precedent’s “gravitational force” could be diminished when that decision has been “recanted or in some other way taken as a matter of institutional regret.”⁴⁰⁶ Richard Posner has similarly noted that the Supreme Court can overrule its own precedents partly because “[r]igid adherence to precedent would magnify the consequences of a mistaken or deeply regretted decision enthroned as a precedent.”⁴⁰⁷ These observations suggest that when judicial regret reflects reasoning failure, it bears on a precedent’s continuing justificatory force.

Despite these insights, the relationship between judicial regret and legal precedent remains underexplored in the literature and in doctrine. Building on Dworkin and Posner’s observations, this Article explores how judicial regret can be integrated into precedent analysis through existing stare decisis doctrine.

In Planned Parenthood v. Casey, the Supreme Court articulated considerations for evaluating whether to overrule precedent.⁴⁰⁸ Among the factors courts must consider is whether changed facts or perspectives have “robbed the old rule of significant application or justification.”⁴⁰⁹ This Article proposes that judicial regret—when assessed through the framework developed in Section III.A—provides probative evidence that precedent has lost justificatory force.⁴¹⁰ Stare decisis does not require the Court’s adherence to decisions whose justificatory premises have collapsed, and judicial regret, properly considered, is one means of establishing that such collapse has occurred. The framework’s operation becomes clearer through application to two case studies.

Applying the framework to death penalty jurisprudence, Gregg’s central premise was that “guided discretion” statutes could channel prosecutorial and jury decision-making to prevent the arbitrary and capricious application condemned in Furman.⁴¹¹ Three of the seven Justices who provided the decisive votes in Gregg later acknowledged that this central premise had failed, indicating that their regret reflected recognition of justificatory failure rather than a mere change in preference. The regret also exhibited strong evidentiary markers: pattern (multiple Justices reached similar conclusions independently, suggesting recognition of a broader systemic problem rather than idiosyncratic second thoughts), specificity (especially Justice Blackmun’s Callins dissent detailing why procedural fixes failed), and sound basis (the regret reflected experiential learning from direct engagement with capital cases).

Applying the framework to the LGBTQ+ rights context, Justice Powell’s regret about Bowers acknowledged that the decision was “inconsistent” with established privacy jurisprudence and that he had been persuaded by the Bowers dissenting arguments that he initially rejected. While Mark Tushnet suggests that Justice Powell’s regret may have reflected an effort to shape his legacy,⁴¹² the regret was also grounded in an internal critique of Bowers’ doctrinal reasoning and thus retained evidentiary value as to the decision’s lack of justificatory force. When the Court overruled Bowers seventeen years later in Lawrence, it was entitled to consider this evidence that even the decision’s decisive vote had come to regard its reasoning as unsound.⁴¹³

C. Extra-Doctrinal Applications

Beyond doctrinal applications, judicial regret can catalyze legal reform, strengthen advocacy, enrich scholarship, and empower democratic engagement. These applications are typically forward-looking, and often operate through democratic rather than judicial processes, thereby sidestepping many of the stare decisis and rule-of-law concerns that attend direct invocation in precedent analysis. While the evaluative framework developed in Section III.A remains relevant here, the stakes of applying it are lower when regret is considered through political rather than adjudicative channels.

Legislative Reform

Judicial regret can provide legislative actors with the impetus and the legitimacy to correct what courts themselves will not. After Justice Douglas expressed regret over Korematsu in his autobiography, his words became a basis for securing that decision’s “anticanon” status and redressing its harms.⁴¹⁴ The 1983 report Personal Justice Denied by the Commission on Wartime Relocation and Internment of Civilians expressly cited Justice Douglas’ regret to demonstrate how Korematsu’s legal principles, though not overruled, had been “discredited or abandoned.”⁴¹⁵ Echoing Justice Douglas’s words,⁴¹⁶ the Commission concluded that Japanese American internment during World War II was a “grave injustice” and recommended legislative remedies.⁴¹⁷ In response, Congress passed the 1988 Civil Liberties Act, which apologized and paid reparations to over 82,200 Japanese Americans.⁴¹⁸ Even as Justice Black remained unrepentant about his role in Korematsu, Justice Douglas’ contrition helped repair some of the ruling’s harm.

Legislative bodies can incorporate judicial regret both retrospectively and prospectively. Ex post responses to regret mitigate the consequences of past decisions, as when the Civil Liberties Act provided reparations to internment victims following recognition of the injustices in Korematsu. Ex ante measures aim to reduce the incidence of regret-worthy rulings by addressing the systemic conditions that produce them. For example, patterns of regret over inadequate representation in capital cases may support legislation designed to ensure more effective capital defense, while regret tied to incomplete information can support procedural reforms that promote fuller fact development. Regret arising from cognitive bias can, in turn, bolster judicial training programs or decision-making protocols. By learning from judges’ regrets, legislatures can translate judicial experiences into structural reforms that reduce the likelihood of similar errors.⁴¹⁹

Legal Advocacy

Judicial regret already serves as a basis for advocacy and argumentation by litigants, commentators, and courts.⁴²⁰ The New York Times relied on Justice Powell’s regret over McCleskey v. Kemp in endorsing the proposed 1994 Racial Justice Act,⁴²¹ and the NAACP Legal Defense Fund has invoked Justice Powell’s regret in death penalty litigation.⁴²² Law professors have similarly cited Justice Powell’s McCleskey regret in amicus briefs and scholarship,⁴²³ and in 2018, a district court relied on that regret in asserting that McCleskey was wrongly decided.⁴²⁴ Beyond McCleskey, Justice Powell’s repudiation of Bowers v. Hardwick may also have contributed to its “anticanon” status while limiting its deleterious reach.⁴²⁵ In 1993, when Bowers was still good law, a Florida district court cited Justice Powell’s regret while upholding same-sex adoption rights.⁴²⁶

Practitioners invoke judicial regret through at least three types of arguments. Defensive arguments rebut opponents’ reliance on precedent by emphasizing that even a judge who joined the decision later questioned its reasoning, as affirmative action advocates could have done to rebut the weaponization of Justice O’Connor’s timeline.⁴²⁷ Affirmative arguments use judicial regret to demonstrate that a precedent has lost justificatory force and should therefore be reconsidered or narrowed, as the NAACP Legal Defense Fund has done in invoking Justice Powell’s McCleskey regret.⁴²⁸ Finally, remedial arguments support legislative or executive action by demonstrating that a judge later acknowledged an error requiring remediation, as Douglas’s Korematsu regret supported the case for reparations legislation.⁴²⁹

Responsible invocation of judicial regret requires careful contextualization. Advocates should aim to identify the precise object of regret, what prompted the judge’s reassessment, whether other judges expressed similar concerns, and whether the judge’s subsequent behavior reflected learning from the regret. Such contextualization helps guard against opportunistic invocation of regret while preserving its genuine insights.

Scholarly Analysis

Scholarly engagement with judicial regret can generate fresh insights into doctrinal development and judicial behavior. Regrets can be used to examine a judge’s approach⁴³⁰ and expectations⁴³¹ in rendering particular decisions.⁴³² They can shed light on specific legal cases and areas as well as broader ideas and debates, such as the role of dissents in prompting majority contrition,⁴³³ the conditions under which precedents become matters of “institutional regret,”⁴³⁴ and the relationship between judicial philosophy and willingness to learn from experience.

Recognizing judicial regret opens rich avenues for legal and interdisciplinary research. Doctrinal scholars could examine how judicial regret illuminates doctrinal development across cases and bodies of law. Empirical scholars could study regret’s prevalence and patterns across courts and jurisdictions. Interdisciplinary research could explore connections between judicial regret and related phenomena studied in psychology and sociology. Comparative scholars could examine how different legal systems address judicial error and regret. Beyond the judiciary, future work might

examine how different institutional contexts shape how regret arises and operates, for instance, by extending the framework to “legislative regrets” over enacted statutes or “administrative regrets” over agency decisions.

These lines of scholarly inquiry extend naturally into pedagogy. Law professors could incorporate judicial regrets into the classroom by analyzing expressions of regret alongside subsequent treatments of landmark cases. By exposing the human fallibility underlying even the highest court’s most consequential rulings, this approach may encourage students to engage with legal opinions more critically, rather than assuming that majority opinions are inherently correct.⁴³⁵

Democratic Engagement

Even absent broader institutional change, a judge’s expression of regret can deeply affect those impacted by a legal decision. When Justice Douglas admitted Korematsu was “ever on [his] conscience,” he lent validation to decades of civil rights activism challenging that decision’s legitimacy.⁴³⁶ When Justice Blackmun vowed to “no longer . . . tinker with the machinery of death,” he energized abolition movements and prompted Bruce Callins—on whose case Justice Blackmun wrote⁴³⁷—to thank him for addressing “the unfairness of how the death penalty is being applied.”⁴³⁸ When Justice Powell acknowledged error in Bowers,⁴³⁹ he strengthened the arguments of LGBTQ+ rights advocates fighting discrimination,⁴⁴⁰ even as Michael Hardwick himself died feeling bitter about his case.⁴⁴¹ As the Supreme Court increasingly resists structural accounts of inequality⁴⁴² and sidelines communities most affected by it,⁴⁴³ judicial expressions of regret can validate the experiences and perspectives of communities confronting systemic inequality.⁴⁴⁴

Lani Guinier coined the phrase “demosprudence through dissent” to describe how judges’ dissents could “expand the audience for judicial decisionmaking” and “engage that audience in democratic deliberation.”⁴⁴⁵ Similarly, this Article proposes a demosprudence through regret. Judges’ expressions of regret can advance democratic engagement by inspiring people to pursue social and legal change through other forums.⁴⁴⁶ These regrets can demystify the Court’s veneer of infallibility and empower people to exercise democratic control over judicial power.⁴⁴⁷ This demosprudential approach extends the audience for judicial regrets beyond lawyers and legal scholars to affected communities and society at large.⁴⁴⁸

In sum, judicial expressions of regret have significance beyond legal doctrine, as they can shape public discourse, validate lived experiences, empower social movements, and remind citizens that judicial decisions are not inevitable or infallible. As discussed below, such expressions can also serve crucial democratic functions by piercing the Court’s aura of untouchable authority and reminding people that they, not nine Justices, are the ultimate source of constitutional meaning.

D. Systemic Implications

Judicial regret illuminates the human dimension of judging, challenging Chief Justice Roberts’s claim that judges merely “call balls and strikes” when deciding cases.⁴⁴⁹ It highlights how judges’ inner lives shape their decision-making in ways the law’s official narrative obscures.⁴⁵⁰ It challenges the assumption that judges rarely err, and that when they do, such errors are inconsequential or easily remedied through appeals.⁴⁵¹ Justice Robert Jackson’s famous quip that the Supreme Court is “infallible only because we are final” takes on new meaning when viewed through the lens of judicial regret.⁴⁵² Judicial regret exposes the paradox of a system that projects certainty and finality while being composed of fallible human beings capable of error and change.⁴⁵³

At a time when the Court faces criticism for perceived hubris,⁴⁵⁴ judicial regret serves as a powerful reminder of its fallibility.⁴⁵⁵ When multiple Gregg Justices later renounced their positions on capital punishment, they acknowledged that even carefully reasoned constitutional judgments can prove fundamentally flawed. When Justice O’Connor renounced her Grutter timeline, she demonstrated that confident predictions about social progress may reflect a situated perspective rather than objective analysis. Such acknowledgments carry particular importance in a legal culture that often venerates judges to the point of stifling humility and discouraging admissions of error.⁴⁵⁶ By embracing regret as a normal aspect of judging, we might foster a legal culture that values humility and accountability.⁴⁵⁷

Recognizing judicial acknowledgments of error does not transfer interpretive authority to retired Justices. Instead, it undermines the Court’s claims to infallibility in ways that open space for democratic actors to contest legal meaning. When Justice Douglas admitted that Korematsu was “ever on [his] conscience,” he gave Japanese American communities and ultimately Congress an additional basis to pursue reparations through the Civil Liberties Act.⁴⁵⁸ When Justice Powell recanted Bowers, his acknowledgment of error strengthened the arguments of the advocacy communities already challenging that precedent.⁴⁵⁹ Regret, properly considered, disperses rather than concentrates interpretive power.

In addition to challenging infallibility, judicial regret can catalyze reforms by highlighting the complexity of problems and the contingent nature of judicial solutions. Regret may reveal judges’ awareness of better, potentially non-juridical alternatives.⁴⁶⁰ Moreover, though court rulings typically project an image of legal continuity,⁴⁶¹ regret shows that judges’ willingness to defend their opinions can change dramatically with new circumstances and insights. By revealing the contingency of judicial judgments, regret can demonstrate that existing legal arrangements may not be necessary or defensible, opening space for legal reform.⁴⁶²

Recognition of the fallibility and contingency that regret makes visible can inform specific institutional reforms. If judges themselves acknowledge that even carefully considered constitutional judgments can prove mistaken, this recognition supports structural measures designed to limit the consequences of judicial error.⁴⁶³ For example, supermajority requirements could create higher thresholds for courts to invalidate democratic decisions given judges’ acknowledged capacity for error.⁴⁶⁴ Likewise, judicial selection processes could incorporate assessment of candidates’ capacity for intellectual humility and willingness to acknowledge error.⁴⁶⁵ While no institutional design can eliminate judicial fallibility, reforms informed by patterns of regret might reduce the incidence and severity of such errors.

Because courts can be slow to repudiate problematic precedents, decisions like Korematsu may not be formally overruled until long after society deems them unjust.⁴⁶⁶ Individual judges’ regret, like Justice Douglas’s about Korematsu,⁴⁶⁷ can presage and reflect societal change before the full Court catches up. When multiple judges regret previously supported opinions, as three Justices did with respect to capital punishment,⁴⁶⁸ this provides strong normative grounds to reassess those precedents’ legitimacy. Regret concentrated in particular areas may signal systematic problems requiring institutional responses rather than case-by-case correction. Courts might also use judicial regret to recognize “evolving standards” in relevant doctrinal contexts, with regret signaling broader societal shifts in perception.⁴⁶⁹

These systemic implications are particularly important when the regret concerns decisions that inflicted injustice on marginalized communities. Korematsu underscores how legal rationales rooted in dominant ideas of morality, safety, or security can enable injustice,⁴⁷⁰ and how the dangers of those rationales may become visible to judges only after they confront the full scope of the harms inflicted.⁴⁷¹ What judges initially perceive as justified may depend in part on their own social position. Russell Robinson explains that discrimination is perceived differently by “insiders” and “outsiders,” and argues that a judge’s ingroup or outgroup status similarly shapes judicial perspectives.⁴⁷² These insights might help explain Justice O’Connor’s ill-fated prediction that another generation would resolve centuries of racial subordination,⁴⁷³ and Justice Powell’s failure to perceive queer people’s plight.⁴⁷⁴ Both instances of regret arguably reflected the systematic limitations of dominant perspectives rather than an isolated individual error.

When judges initially fail to comprehend marginalized claims to equality and later develop deeper understandings, their regret carries significant normative weight. Recognizing this kind of regret is one step toward legal doctrine that takes seriously what dominant perspectives have historically failed to perceive, though, as Section III.E explains, regret alone cannot accomplish that transformation.

E. Limitations and Risks

While Sections III.B through III.D explored judicial regret’s applications and implications, this Section turns to its limits. These constraints arise from the risk of unintended consequences and the structural limits of relying on individual judges’ regrets to address systemic issues.

Unintended Consequences

Incorporating judicial regret into legal practice could alter incentives for a range of actors, including judges themselves. If judicial regret is routinely invoked in legal and political discourse, some judges may become more cautious about expressing it, or suppress it altogether, to avoid having others strategically invoke their regrets. These dynamics risk undermining the candor and intellectual humility this Article seeks to promote.

Judges might also strategically express regret themselves, for instance, as a form of self-exculpation rather than genuine reflection.⁴⁷⁵ Regret can reflect “a self-indulgent attitude” of “unburdening oneself” or “a manipulative, egocentric” way of “demanding attention and forgiveness.”⁴⁷⁶ Distinguishing genuine from performative regret is difficult.⁴⁷⁷ Justice Powell’s post-retirement regrets about Bowers and McCleskey, for instance, came when they could enhance his image without constraining his judicial role—a timing that Mark Tushnet suggests may have reflected a desire to be viewed favorably by history.⁴⁷⁸ Some scholars similarly view Justice Ruffin’s regret over State v. Mann as self-interested, noting that his expressions of anguish about enforcing slavery may have softened the decision’s reception while deflecting moral responsibility.⁴⁷⁹

These risks create challenges for incorporating judicial regret into legal decision-making. The two-step framework can identify expressions meriting serious consideration versus those warranting skepticism, but it cannot definitively separate genuine regret from strategically expressed regret. The possibility of strategic expression therefore counsels careful evaluation, but it does not negate regret’s potential value. Even when regret is strategically expressed, it may still validate those harmed by judicial actions and empower reform efforts.

Similar incentive distortions could affect legislators and lawyers. Legislatures hostile to particular rights might invoke judicial regret to justify restricting those rights, just as litigants might invoke it to attack precedents they dislike. In an era of aggressive precedent-overruling,⁴⁸⁰ judicial regret could be weaponized to cloak motivated reasoning in the language of self-correction.

Structural Limits

Judicial regret faces structural limits that no framework for its use can fully overcome. First, judges often recognize error only after it is too late to remedy the worst consequences. For those whose lives were diminished or destroyed by a decision, the judge’s later recognition offers cold comfort.⁴⁸¹ The human cost of delayed recognition becomes vivid in individual stories. Warren McCleskey was executed on September 25, 1991, just months after Justice Powell told his biographer he had been wrong in McCleskey.⁴⁸² Michael Hardwick died of AIDS in 1995, still bitter over the outcome in his case, five years after Justice Powell recanted Bowers.⁴⁸³ These individual tragedies underscore that judicial regret, however valuable for future doctrinal and democratic change, cannot undo harms already inflicted.

Second, even when timing permits prospective benefits, regret alone cannot transform institutions. Jean Stefancic and Richard Delgado argue against the “empathic fallacy” in law, the assumption that revealing cruelty or injustice through new narratives will naturally produce reflection and reform.⁴⁸⁴ Meaningful change, they argue, requires collective reckoning with the harms that law perpetuates.⁴⁸⁵ Individual expressions of regret may illuminate injustices, but they cannot by themselves secure such reckoning.⁴⁸⁶ Indeed, focusing on a judge’s change of heart risks obscuring the structural conditions that produce regret-worthy decisions in the first place.⁴⁸⁷

Third, expressed regret is not always epistemically reliable. A judge’s evolved view may reflect new misjudgments rather than deeper wisdom.⁴⁸⁸ For example, a lower court judge reported regretting a ruling after discovering a lawyer’s misrepresentation, but then overgeneralized from this experience that “liberal professors” were teaching dishonesty.⁴⁸⁹ While judicial regret may reflect genuine insight, individual reflections should not be uncritically treated as superior reasoning.

Finally, judicial regret does not inherently advance justice or stronger protections for marginalized groups. Judges may express regret over rulings that proved more transformative or emancipatory than anticipated, or that faced significant pushback from dominant groups.⁴⁹⁰ Such regret may become an impetus for retrenchment rather than progress.

Despite these limitations, judicial regret remains essential for understanding adjudication. Recognizing that judging is a deeply human practice shaped by regret reveals dimensions of legal decision-making that a purely technical account obscures. Even those who would limit regret’s role in formal doctrine must confront the ways it already informs judicial reasoning. The question, then, is not whether to engage with judicial regret, but how.

Conclusion

Judicial regret, though significant, has remained largely unexamined. This neglect has allowed errors and injustices to persist while forfeiting opportunities for institutional learning and growth. This Article has shown that engaging with judicial regret can strengthen legal reasoning and the legal system more broadly. The frameworks developed here provide a basis for moving from ad hoc treatment of judicial regret to a more systematic approach to assessing its legal significance.

The absence of regret can be as revealing as its presence. Justice Thomas’s declaration that he “ain’t evolving”⁴⁹¹ exemplifies a resistance to the kinds of introspection that produced regrets in earlier eras. Whether decisions like Dobbs will eventually prompt acknowledgment of regret as their consequences unfold remains to be seen. What is clear is that when courts foreclose self-correction, the burden of reckoning with judicial error falls on legislatures, advocates, scholars, and the communities most affected by it.

Judicial regret gives each of these actors something to work with. Law professors and students can use it to develop fresh perspectives on jurisprudence and to engage more critically with legal opinions. Congress and state legislatures can invoke regret when exercising their authority to remedy perceived judicial errors, as they did when Justice Douglas’s Korematsu regret informed the Civil Liberties Act. Reformers can leverage expressed regrets to advance legal reinterpretation, as when the NAACP Legal Defense Fund cited Justice Powell’s McCleskey regret in death penalty cases. And those affected by judicial decisions can derive meaning from judges’ admissions of regret, as when Justice Blackmun’s renunciation of capital punishment energized abolition movements and validated Bruce Callins’s experience of injustice.

Warren McCleskey’s execution months after Justice Powell reconsidered McCleskey reminds us that regret cannot undo injustice already inflicted, and that legal change requires far more than individual judges’ retrospective acknowledgments of error. But such limitations counsel careful engagement with judicial regret rather than ignoring it altogether. The question is whether a legal system that learns from its judges’ regrets is better equipped to self-correct than one that suppresses or ignores them. This Article has argued that it is, provided such engagement remains disciplined by evaluative frameworks and aimed at structural reforms.

By examining judicial regret, this Article has opened a conversation about an under-studied yet consequential aspect of U.S. legal culture. Future research can build on this foundation by examining regret within and across doctrinal areas and tracing its influence on legal development. Whatever one’s normative stance on judicial regret, understanding it remains essential for understanding how judges reason and how a legal system committed to justice should respond when its own participants acknowledge they got it wrong.

99 S. Cal. L. Rev. 829

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Yuvraj Joshi*

* Dean’s Research Scholar and Associate Professor, Brooklyn Law School; Research Scholar, UC Berkeley Miller Institute of Global Challenges and the Law; J.S.D., Yale Law School. This Article benefited from workshops at Brooklyn Law School, Cardozo Law School, Cornell Law School, University of Illinois College of Law, UC Irvine School of Law, and the Law and Society Association, as well as from conversations with Chris Beauchamp, Michael Bronstein, Michael Dorf, Danieli Evans, Chris Havasy, Osamudia James, Lucas Janes, Jordan Laris Cohen, Sam Moyn, Alice Ristroph, Reva Siegel, Jocelyn Simonson, Susan Sturm, and Mark Tushnet, among many others. Many thanks to the National Judicial College for providing the unreleased survey data analyzed herein, to Olivia Hayes, Kylie Schatz, and Ravi Rosen for excellent research and editorial assistance, and to the editors of the Southern California Law Review for their conscientious efforts.

Goods’ Nationalities

September 2026September 2026Trang (Mae) Nguyen*

Products’ nationalities are at the frontier of our rapidly evolving geoeconomic order. Trade measures, import and export controls, sanctions, and a wide array of other foreign policy instruments often hinge on where a product is deemed “from.” In today’s global economy, however, determining whether a product is “American,” “Chinese,” or of any other nationality presents a complex and often contested question. Trade law’s traditional frameworks for resolving this inquiry are already under significant strain. As trade becomes increasingly entwined with national security and human rights imperatives, the designation of product nationality carries even higher stakes.

This Article reexamines how goods acquire their designated nationalities at a time when such designation matters well beyond traditional commerce. It advances two main arguments. First, a product’s nationality is not fixed; rather, it is malleable and can vary depending on the substantive legal regime under which the good is regulated—once predominantly trade law but now increasingly through a trade–security nexus and a trade–human rights nexus. Second, such malleability occurs through what I call an “attribute selection” process. In effect, each legal regime pivots the nationality analysis on certain “attributes” of a product, swapping and switching them to suit underlying interests and policy goals. The construction of product nationality thus occurs through mapping two separate sets of variables: first, the bundle of attributes of a product, and second, the “prisms” through which laws place significance on these attributes.

This Article makes several contributions. First, descriptively, it charts an updated account of product nationality’s expanded use, particularly in trade law’s nexus with national security and human rights. Second, conceptually, building on this updated descriptive account, it advances a novel framework to unpack the making of product nationality. Third, normatively, it underscores how the need to use product nationality as a proxy fits uneasily with the reality of global production, and how efforts to move away from nationality-based rules are likely vulnerable to similar challenges. Ultimately, the Article makes clear that the concept of nationality is doing heavy lifting across various legal fields. It reflects on the risk that using nationality as a proxy may inflame geopolitical anxieties and invites a more comparative and holistic approach.

Introduction

Like humans, physical products can have a complex relationship with their origins.¹ Amid looming trade wars, restructured supply chains, and the return of geopolitics, a product’s designated nationality carries weighty implications. President Trump’s unprecedented use of tariff measures, including the reciprocal tariffs since struck down by the U.S. Supreme Court, hinges entirely on where a product is deemed “from.”² Other trade tools, including sanctions, export-import controls, antidumping, and countervailing duties, likewise key on a product’s designated homeland. In today’s global economy, however, determining whether a product is “American,” “Chinese,” or of any other nationality presents a complex and often contested question.

This Article reexamines how goods acquire their designated nationalities at a time when such designation matters well beyond traditional commerce.³ It makes two main arguments. First, a product’s nationality is not fixed; rather, it is malleable and can vary depending on the legal regime under which the good is regulated—once predominantly trade law but now intersecting with other fields, most notably national security and human rights. Second, such malleability occurs because each legal regime targets selective “attributes” of the concerned product, swapping in and out features that it deems relevant to advance certain underlying interests and policy goals.

To understand products’ nationalities thus requires mapping two separate sets of variables: first, the ecosystem of relevant attributes of a product, and second, the “prisms” through which laws place significance on these attributes.⁴ In today’s U.S. trade regime, at least three prisms are prominent: commerce, rights, and security.⁵ A “commerce prism” views a product largely for its commercial value; a “rights prism” focuses primarily on the socioeconomic and sustainability impacts of trade; and a “security prism” scrutinizes how a product may affect, promote, or undermine national security interests. In optical physics, a physical prism receives a ray of sunlight and, depending on its angle of tilt, refracts the light into a different visible spectrum of a rainbow.⁶ Analogously, depending on the prism and the angle from which one chooses to view the good, the nationality of the concerned product can project differently to befit underlying goals.⁷

To see how the concepts of policy prisms and product attributes interact, consider a hypothetical example of an electric vehicle (“EV”) made by Build Your Dreams Company Limited (“BYD”). A prominent Chinese automobile manufacturer, BYD is the world’s largest producer of electric cars.⁸ Suppose that BYD has manufacturing plants in Mexico.⁹ Under the current United States-Mexico-Canada trade agreement (“USMCA”), a BYD sedan made in Guadalajara would qualify as “made in Mexico” or “made in North America” for preferential tariffs so long as it meets a legal standard called the rules of origin.¹⁰ The USMCA’s automotive rule of origin requires that a certain percentage of the car’s value and other important inputs must come from North America.¹¹ The agreement further imposes a wage requirement for a portion of labor in the car’s supply chain.¹² If we were to think about this EV as not a fully formed product but as a bundle of attributes and features that led to the car’s creation, the attributes that matter for the USMCA are several. Chief among them are the car’s inputs and component parts, specifically how much value they contribute to the final product. Uniquely, the USMCA also regulates wages—a policy designed to eliminate Mexico’s low-wage advantage and return jobs to the United States.¹³ The USMCA operates under what I call a commerce prism: it evaluates a product primarily for its commercial value and impact, whether positive (e.g., economic gains associated with trade liberalization) or negative (e.g., effect on domestic jobs and industries). The EV’s designated nationality—whether it should qualify as “North American-made” and therefore qualify for more favorable import duties—thus turns on the balance of these commerce-focused goals: free trade and its virtues on the one hand, protectionist inclines on the other.

The analysis takes a different turn if one evaluates the BYD car not for its commercial value but for its potential threat. Under the final rule promulgated by the U.S. Department of Commerce, vehicles with integrated software and hardware systems “designed, developed, manufactured, or supplied by” Chinese entities are prohibited for sale or import into the United States without prior authorization.¹⁴ To U.S. regulators concerned with risks posed by Chinese firms and the Chinese government,¹⁵ the percentage of local parts and wage levels are not the point. Under a security prism, which evaluates a product on how it may affect national security interests, it is the nationality of the technology and, more broadly, of control and ownership that matters.

As a result, the same BYD car may be “North American-made” for commercial purposes and “China-made” for national security purposes. This multi-identity occurs through what I call the “attribute selection” process, whereby different prisms pick and choose pertinent attributes out of the product’s bundle.¹⁶ A commerce prism, due to its trade-value focus, tends to select for “supply-side attributes”—that is, the inputs and processes necessary to produce goods. For the BYD car, these attributes are reflected in the USMCA’s selection of critical inputs (steel and aluminum), labor, and overall component values. A security prism, by contrast, seeks to identify security vulnerabilities. Such vulnerabilities can occur in the supply chains as well as in how a product is used and by whom. It thus scrutinizes certain supply-side attributes—for example, the technology and the brand, as noted in the BYD example above. It also scrutinizes what I call a product’s “demand-side attributes”—that is, who can potentially use the product and for what purposes.¹⁷ For BYD cars, as highlighted above, U.S. regulators are concerned with the risk of data breach and remote manipulation by the People’s Republic of China (China or “PRC”).¹⁸ Finally, a rights prism is concerned with how a product or its production may advance or impede certain values such as labor rights, human rights, and sustainability. It thus selects for attributes that tend to affect those rights, including labor, inputs, and production processes (supply side), as well as socially conscious end users (demand side). To complete the example, if the battery within a BYD electric car contains critical minerals extracted from the Xinjiang Autonomous region of China,¹⁹ a rights prism such as the Uyghur Forced Labor Prevention Act would focus on those inputs and the labor attribute of the car’s supply chain, as opposed to its many other attributes.²⁰

In sum, depending on the angle and prism one chooses, the nationality of goods projects differently—a North American car for commerce, a Chinese car for national security threats. As with a physical prism, tilting a policy prism can produce a different product nationality that, in turn, affects the legal treatment for the same good.

Several important notes are due. First, laws and policies often seek to advance multiple goals and thus can operate through multiple prisms. Separating these lenses, however, helps disentangle why a legal regime may target certain attributes of a product and not others. This, in turn, can assist in the evaluation of whether such decisions are analytically sound and whether they effectively advance the stated policy goals.

Second, that a product may have multiple nationalities depending on what it is being judged for may complicate trade regimes but, in my view, is not a normative bug. After all, each of the many legal regimes governing foreign products can have distinct, legitimate policy goals that drive the nationality analysis. The question, then, is twofold: (1) For what goals is product nationality used? And (2) Are these legitimate goals?

Finally, this Article is limited by its lack of comparative perspectives. The bulk of the analysis focuses on the United States’ approach to product nationality. The commerce-rights-security prisms are inductive patterns that reflect the United States’ pressing concerns with the rise of China.²¹ Other countries and regions may, and do, adopt different approaches.²² Though a more extensive comparative study lies beyond the scope of this Article, I note, for now, some alternate prisms that may offer a more holistic perspective on foreign products, including cultural, historical, and socioeconomic prisms, to name just a few.²³ A, let’s say, hexagonal prism with more perspectives may help move our collective thinking beyond the current moment, so heavily affected by a backlash to globalization and great power rivalries.²⁴

This Article contributes to literatures at the intersection of international economic law, business law, and national security. The expanding scope of product nationality regulations dovetails with a burgeoning scholarship at the intersection of trade and security²⁵ and, more recently, on the impact of security and geopolitics on business law and corporate governance.²⁶ On the international economic law side, this Article adds to the robust literature on rules of origin but moves beyond the deadlock in existing debates about the pressing need to reform these rules,²⁷ instead zooming out to provide a macro framework. On the national security side, the Article contextualizes some of the recent legislative responses on national security in supply chains, including the Entity Lists (import control), Foreign Entity of Concern (federal incentives), and Foreign Direct Product Rule (sanctions). It demonstrates how they, too, operate under the prism-attribute selection framework and are faced with some of the difficulties identified under the framework.²⁸ On the corporate and business law side, the Article highlights the limits of corporate law standards such as corporate personhood in seeking to pinpoint the nationality of highly mobile attributes such as control and investment.²⁹

This Article proceeds in five parts. Part I outlines how goods’ nationalities have traditionally been used and constructed—mostly in trade law through a legal device called the rules of origin. Part II lays out the Article’s descriptive contribution by substantiating the claim that goods’ nationalities now matter well beyond trade. This occurs partly because of the expansive nature of global supply chains and partly because trade itself has become entwined in other substantive issues, most prominently security and human rights. Part III is the Article’s core conceptual contribution. It offers a novel framework on the construction of product nationality, explaining the two sets of variables that drive the nationality analysis: product attributes (supply-side and demand-side) and the policy prisms that pick and choose these attributes (commerce, rights, and security). Part IV turns to a normative evaluation, underlining the difficulty in assigning any particular nationality or origin to many attributes (for example, capital or ownership) and how the need to use nationality as a proxy fits uneasily with the reality of the modern global economy. It then investigates a shift from product-based to entity- and geography-based regulations, often used in combination, to allow for a broader reach. Part V reflects on the danger of weaponizing product nationality, highlighting the racialized animosity that can accompany economic nationalism, and invites a more holistic approach that moves beyond the current moment of intensifying geopolitical rivalries.

I. Traditional Prism: Goods’ Nationalities in Trade

This Part sets the stage by providing a brief historical and political backdrop on how the concept of product nationality emerged. It starts with an examination of how rules of origin were first a “dual use” legal tool for both mercantilist and protectionist policies, then tracks their rise from domestic laws to a linchpin of multilateral trade frameworks. It ends by probing the challenges of determining product origins in an era of complex supply chains.

Before proceeding further, a note on terminology is due. This Article uses the terms nationality and origin to refer to a product’s designated home country, though the terms differ analytically in their usage. Origin is the preferred technical term in law and business literature (for example, the rules of origin in trade law and the “country-of-origin effect” in business scholarship). It denotes a geographical location from which a product is deemed to originate thanks to certain business or economic arrangements.³⁰ Nationality, by contrast, indicates the legal status of belonging to a nation-state.³¹ When it comes to products, while origin is the more familiar technical term, nationality captures the tenuous bond between the notion of nation-state and global production that strikes at the core arguments of this Article. Thus, throughout the text, I use origin as a legal term of art when referring to extant legal standards such as the rules of origin, but I use nationality to refer to the broader regime of how goods come to acquire the legal status of belonging to any particular nation-state.

A. Rules of Origin: Local Laws, International Significance

Rules of origin (“RoOs”) are a system of rules and standards commonly found in trade agreements that determine the “economic nationality” or the “economic passport” of foreign goods.³² Just as with humans, such nationality determines how a good is treated once it crosses borders. Most relevant to commercial parties, such nationality determines which tariff applies.³³ This important function aside, RoOs also play key roles in other areas of trade law, such as antidumping duties and safeguard measures,³⁴ and in domestic regulations, such as labeling and marking laws.³⁵ Beyond commerce-related issues, RoOs feature in other important governance uses. Governments need to know where goods come from to gather statistics, calculate revenues, balance budgets, craft foreign partnerships, and gauge outside states’ relative powers.³⁶ Because RoOs impact economic calculations and what “made in” labels can be put on foreign products, these rules also profoundly affect business and consumer decision-making. For manufacturers and industries, RoOs can shape supply chain architecture and production decisions.³⁷ For consumers, RoOs function as a disclosure tool, providing information about a product’s origin to support informed purchase decisions, whether nationalistic, moral, or otherwise.³⁸ Indeed, marks of origin can have a powerful effect on consumption choices—a phenomenon well documented in business literature as the “country-of-origin effect.”³⁹

Rules of origin historically surfaced in two strands—origin marking and trade differentiation, the latter of which encompassed both trade preference and restriction. During the time of empires, trade preference was a way for the mother state to boost her own economy and strengthen economic integration with her colonies, while raising market access costs for the rest.⁴⁰ Britain, for example, had long maintained a system of preferences for empire trade, eventually formalizing it into the British Imperial Preferences in the interwar period as a response to the United States’ enactment of the highly protectionist Smoot-Hawley Bill.⁴¹ Touting the slogan, “Home producers first, empire producers second, and foreign producers last,” the preference system culminated in a series of bilateral agreements with colonies that privileged British- and Commonwealth-produced goods over those originating elsewhere.⁴² With the creation of the General Agreement on Tariffs and Trade (“GATT”) and decolonization movements, imperial preferences slowly lost their relevance and were eventually eliminated.⁴³ But preferential trade policies—and the accompanying importance of distinguishing trade origins—lived on through the GATT and the proliferation of free trade agreements that would come decades later.⁴⁴

RoOs’ second strand, origin marking, was rooted in similar concerns regarding foreign goods. During a period known as the first wave of globalization, from about 1870 up to World War I, a boom in cross-border trade among industrialized nations spurred concerns over fraud and competition.⁴⁵ The United Kingdom’s Merchandise Marks Act of 1887, often cited as the first law to require an indication of a country of origin, imposed fines, jail time, and hard labor for falsely marking lower-cost foreign goods (primarily from Germany at the time) as British-made products.⁴⁶ The policy quickly spread: France, Germany, and Spain followed suit,⁴⁷ and British colonies around the world, from Australia to India to Myanmar (then Burma), were urged to, and did, adopt harmonizing laws.⁴⁸ In the United States, the McKinley Tariff Act of 1890, known for its protectionist measures, was the first to require that goods destined for the United States be “plainly marked” with their countries of origin, or otherwise risk inadmissibility.⁴⁹ Because slavery had been abolished, U.S. domestic manufacturers were concerned about goods made with cheap labor from abroad.⁵⁰ Another provision of the Act thus prohibited the import of “merchandise manufactured wholly or in part in any foreign country by convict labor.”⁵¹ As we shall see later on, this provision, later expanded on in the Tariff Act of 1930,⁵² became the genesis for U.S. laws against forced labor in supply chains today.⁵³

After World War II, as countries convened at Bretton Woods to rebuild the world’s economy, RoOs were incorporated into multilateral frameworks. In the early days of the GATT, perhaps somewhat shadowed by lively debates around the novel most-favored nation (“MFN”) principle,⁵⁴ countries mainly discussed RoOs in connection with the Generalized System of Preferences—a regime in which developed countries agreed to eliminate tariffs for certain goods originating from developing and least-developed nations in order to accelerate industrialization and economic growth in the Global South.⁵⁵ Similar to the British Imperial Preferences regime, because preferences are granted only to beneficiary countries, RoOs acted as a differentiation mechanism to determine which products qualify for benefits and to prevent trade deflection.⁵⁶

RoOs’ function as a differentiation and enforcement mechanism became even more relevant as preferential trade agreements proliferated, slowly at first, then quickly at the end of the Cold War.⁵⁷ Today, there are over 350 preferential trade agreements in force, each with its own RoOs regime.⁵⁸ Despite decades-long efforts, no uniform or harmonized system of RoOs exists.⁵⁹ As such, parties to trade agreements negotiate bespoke RoOs regimes, and each country is free to apply its own RoOs. These webs of individualized RoOs suffer from what critics term the “spaghetti bowl” effect: confusing, hard-to-disentangle rules that are problematic at both practical and normative levels.⁶⁰ At the implementation level, this leads to confusion and inconsistencies, high implementation costs, low utilization rates, and exposure to manipulation.⁶¹ At the normative level, RoOs’ technical complexity can mask protectionist motivations that would otherwise violate the importing state’s World Trade Organization (“WTO”) commitments.⁶² Indeed, RoOs, while critical for the functioning of free trade

agreements, are widely known for their proxy use as protectionist instruments (as well as other less well-known objectives).⁶³ Untangling these motives is no small task.

This Article does not rehash the above critiques. Rather, the goal is to recognize that while RoOs are critical for global trade, the current methodology has been under stress both in concept and implementation. The next Section zooms in on how RoOs operate to concretize why they struggle to reconcile with the transnational reality of global production.

B. Regulating Origins in the Age of Supply Chains

Given the vast difference in tariffs that can result based solely on product origins, it comes as no surprise that trade actors want to obtain the most advantageous nationality for their products. This business imperative dovetails with the reality of dispersed production propelled by the internationalization of economic activities, outsourcing trends, and the rise of multinational corporations.⁶⁴ As supply chains have grown in sophistication and complexity, the majority of final products in modern-day commerce are now made not in one country, but around the world.⁶⁵ Thus, for the majority of products, there exists no single correct nationality but many possibilities.

To appreciate why product nationality matters a great deal for trade, it first helps to understand how RoOs operate. Consider the fact that the same exact product heading to the United States can be subject to three different customs duties depending solely on its designated nationality.⁶⁶ These three tariff treatments, from lowest to highest, are preferential, non-preferential, and statutory rates.⁶⁷ A preferential rate, which is highly favorable and often zero, applies to products deemed originating from a preferred trade partner.⁶⁸ Qualified fabrics from Mexico and Canada heading to the United States, for example, would benefit from zero tariff thanks to the USMCA (at least for now).⁶⁹ A non-preferential rate, also called a most-favored nation rate, applies to trade with WTO members and with countries who have MFN status with the United States.⁷⁰ Most-favored nation is an antidiscrimination principle in trade law that requires WTO members to treat one another equally, such that extending a trade benefit to one, say, lowering tariffs, thus requires extending the same benefits to all.⁷¹ The term “most favored” is somewhat misleading, as MFN rates (for “common” trade partners, if you will) are generally higher than preferential rates (for “preferred” trade partners). To continue with the previous example, without a trade agreement like the USMCA, the same exact fabrics from Mexico would be taxed at an MFN rate of 16.5%—one of the more restrictive rates that the United States imposes on fellow WTO states.⁷² While MFN is an integral principle of the WTO, trading nations can also grant MFN status to non-WTO states (as the United States did with a post-Soviet Russia in 1992) or revoke MFN status despite WTO membership (as the United States did with Russia in 2022 following its invasion of Ukraine).⁷³ Thus, today, Russian goods that were not already sanctioned would fall under the third category—a statutory rate reserved for non-WTO members and countries without MFN status.⁷⁴ To complete the example, fabrics heading to the United States that would be taxed at 0% if from Mexico (or other preferred trade partners) and 16.5% if from other WTO members (or other countries with MFN status), would otherwise generate a statutory rate of nearly 70%.⁷⁵

The ability to distinguish among product origins is thus key to implement both positive trade treatments (e.g., preferential tariffs) and negative ones (e.g., heightened tariffs or sanctions).⁷⁶ That insight, in turn, begs the question of how to acquire an advantageous economic passport for one’s products (and, by extension, avoid a bad one). For goods that are wholly made within a single location, the answer is straightforward: to be certified as, say, of Mexican origin, the good must be grown, harvested, extracted, or manufactured wholly within that territory.⁷⁷ The answer is more complicated for a good manufactured or assembled in multiple countries or made with materials originating in more than one country—as is the case with most modern products. At least four different methods exist: (1) the “substantial transformation” test, (2) the value-added test, (3) a specified process test, and (4) a change in tariff classification test.⁷⁸ Each method aims at preventing simple assembly and packaging operations from achieving an origin—a practice known as trade deflection.⁷⁹ Drawing from a robust literature,⁸⁰ this Article briefly canvases each test to highlight the challenges of designing origin rules within the context of dynamic global supply chains.

Of the four methods, the substantial transformation test, unlike the others, is a standard rather than a bright-line rule. Under this standard, a good is deemed to originate in the last country where substantial transformation occurred.⁸¹ This requires more than just a cursory change; instead, the product must be transformed into a “new and different article” with a “distinctive name, character, or use.”⁸² The standard reflects the essence of what RoOs strive to achieve—that is, to be “of” any particular place, the product must have a meaningful connection and presence there. The substantial transformation standard offers flexibility, allowing it to be applied across products and industries while adapting to technological and manufacturing advancements. But as with any standard, this flexibility can lead to uncertainty in interpretation and inconsistency in application.⁸³ Among the more infamous examples, processing whole fish into fish fillets qualified as substantial transformation because changing the fish’s shape and size altered its “character,” whereas peeling, deveining, cooking, and freezing shrimp did not because the process did not alter the size, quality, or use of the shrimp.⁸⁴ The lack of clarity and consistency can lead to increased compliance costs as well as the potential for exploitation, as firms may structure their processing to meet existing rulings that otherwise add little value.

The other three tests—value-added, specified process, and change in tariff classification—are bright-line rules. First, the value-added test defines the degree of transformation required based on a minimum percentage of value, whether overall or of certain inputs, that must come from the originating country or trade region.⁸⁵ The USMCA’s automotive RoOs, for example, require that 75% of the car’s value originate from the region (up from the North American Free Trade Agreement’s (“NAFTA”) 62.5%), as must 70% of the car’s steel and aluminum inputs.⁸⁶ The stringent (i.e., higher) value requirements incentivize the reshoring of supply chains to USMCA countries, while a separate wage requirement seeks to eliminate Mexico’s low-wage advantage and drive jobs back to the United States.⁸⁷ The value-added test, while adding clarity, can generate substantial compliance costs as it requires extensive inventory and tracking of input values—a challenge especially in complex manufacturing. It is also not immune to manipulation, as firms and suppliers can attempt to artificially inflate local costs of components, labor, and processing to meet the value-added threshold (or, on the flip side, undervalue the cost of foreign components). This practice is particularly feasible in non-arm’s-length transactions or intrafirm trade involving transfer pricing—for example, a parent company may set different internal prices for the transfer of assets to its subsidiaries.⁸⁸

Second, the specified process tests of origin, also referred to as technical tests, prescribe certain production or sourcing processes that may confer originating status.⁸⁹ These rules can be highly idiosyncratic. For example, textiles and apparel products typically follow a “yarn forward” origin rule.⁹⁰ This means that for a product to be considered originating from a specific country or region, the yarn used to create the fabric must be produced within that geography, and all subsequent manufacturing processes like weaving, knitting, dyeing, and sewing must also occur there.⁹¹ The yarn forward rule first emerged in NAFTA as a way to ensure preference for North American yarn and protect U.S. domestic textile industries against cheaper imports.⁹² Indeed, the technical tests, purportedly to ensure substantial transformation through certain manufacturing processes, have a history of acting as protectionist policies by creating a “cut-off” point in supply chains.⁹³ If the origin creation point is yarn forward in textiles, it becomes “upper closed” in footwear and “melted and poured” for steel and metal products, to name just a few examples.⁹⁴

Finally, the change in tariff classification method, also called tariff shift, determines origin by specifying a tariff change based on a system called the Harmonized System of Tariff Nomenclature.⁹⁵ An internationally standardized system to classify products, the Harmonized System has been adopted by over 200 countries and serves as the foundation for the United States’ Harmonized Tariff Schedule.⁹⁶ While it plays a cornerstone role in determining tariffs, the Harmonized System was not designed to detect meaningful manufacturing transformation. As a general rule, the tariff-shift test states that a change in the product’s origin will take place in the country where, because of manufacturing or other processing, the tariff classification of the article changes from one category of the Harmonized System to another.⁹⁷ Under the Harmonized System, minor processing, such as simple assembly, can at times bring about a change in the tariff category. In such a case, a change of origin should not be acknowledged, but that would require substantial resources from customs agencies to scrutinize and detect.⁹⁸

In sum, globalization and complex supply chains continue to pose significant challenges for regulating product origins. The substantial transformation rule, while flexible and adaptive, can lead to lack of clarity and inconsistent application. Bright-line tests such as the value-added, specified process, and tariff shift tests are often praised for precision but can incur high costs, both in compliance and in enforcement. Furthermore, each test presents strategic opportunities for shaping product nationality, as enterprising firms and logistics professionals can structure product pricing, processes, and, in some cases, entire supply chains to meet the rule’s prerequisites.⁹⁹

II. Goods’ Nationalities in the New Geopolitics

This Part canvases the expanded use of goods’ nationalities in today’s new geopolitics, characterized in large part by several intertwined forces: a backlash against globalization, rising economic nationalism, increased securitization of trade and economic issues, and sustained tensions between the United States and the PRC. Whereas product nationality remains a staple concept in trade policies, today its use has expanded considerably as trade increasingly intersects with two areas: national security and human rights.

A. Trade and National Security

Trade law, including RoOs, now squarely intersects with national security, particularly in the context of geopolitical rivalries, economic security, and supply chain resiliency.¹⁰⁰ Both the Trump and Biden administrations have declared that trade is vital to U.S. national security.¹⁰¹ As a result, RoOs are increasingly seen not just as technical rules, but as strategic tools for advancing national interests.¹⁰²

The fusion of trade and security is evident in critical supply chains. Efforts to “de-risk” from China’s dominance have spurred a host of laws and regulations to restructure critical industries, from import and export controls to tariffs and sanctions. In semiconductors, for example, the United States imposed export controls on advanced nanochips and chipmaking equipment in an effort to curb the PRC’s access.¹⁰³ Notably, these rules target not only the end products (i.e., advanced chips) but also the commercial items in these products’ supply chains (e.g., lithography equipment), thus creating a more comprehensive export control regime than previously utilized.¹⁰⁴ In response, China enacted retaliatory laws banning U.S. chip companies from its market and imposing export controls on critical minerals, among other measures.¹⁰⁵

Tariffs likewise have become a centerpiece geopolitical tool under the second Trump administration. President Trump’s “Liberation Day” reciprocal tariffs imposed country-specific duty rates on foreign products, effectively rejecting the WTO’s bedrock principle of nondiscrimination.¹⁰⁶ The USMCA notwithstanding, the current administration also announced additional tariffs on Canada and Mexico (together with China) on the ground that these countries undermined U.S. national security by failing to deter illegal immigration and opioid flows into the United States.¹⁰⁷ By now, the two most powerful countries are entrenched in a standoff, while tariff rates remain highly uncertain.¹⁰⁸ More drastically, the U.S. House Select Committee on the Chinese Communist Party—a bipartisan committee set up to coordinate U.S. policies on China—has proposed legislation to revoke altogether China’s most-favored nation status.¹⁰⁹ If passed, this would relegate China to Russia’s current non-MFN status and carry significant economic, legal, and geopolitical consequences.¹¹⁰

These measures have accelerated the restructuring of global supply chains. In the semiconductor industry, incentives from the United States as well as Europe and Australia have motivated companies to open fabrication plants in these jurisdictions.¹¹¹ By the end of the Biden administration, the Commerce Department had awarded $33 billion out of the $39 billion earmarked for CHIPS Act funding.¹¹² By early 2025, the Taiwan Semiconductor Manufacturing Company had broken ground on its third plant in Arizona alone, signaling its commitment to significantly ramping up production in the United States.¹¹³ To hedge against unstable geopolitics and legal uncertainties, other industries and manufacturing segments are also actively seeking contingencies. Apple, for example, has announced plans to diversify some of its core production away from China, triggering its “Big Three” suppliers—Foxconn, LuxShare, and Goertek—to set up subsidiaries, secure land leases, and announce construction plans in alternate destinations.¹¹⁴

In sum, trade is increasingly wielded in the service of security, through measures such as tariffs, export controls, and import restrictions. The credibility and effectiveness of these policies rest on the ability to accurately determine the origin of goods—further underscoring the importance of product nationality.

B. Trade and Human Rights

Human rights and labor rights issues are likewise deeply entangled with trade, even as they sometimes overlap with security interests. Consider, for example, the PRC’s Xinjiang issue. Concerns about the Chinese government’s modern slavery and human rights abuse against the Uyghur ethnic minorities in the region prompted the United States to enact import sanctions on Xinjiang-originating products. Significantly, the Uyghur Forced Labor Prevention Act (“UFLPA”) creates a rebuttable presumption that imports from Xinjiang are made with forced labor unless importers can produce “clear and convincing” evidence demonstrating otherwise.¹¹⁵ U.S. Customs and Border Protection implements this Act by issuing “withhold release orders” to detain products suspected of being “tainted” with Xinjiang labor, including major inputs such as cotton and solar components.¹¹⁶ Anchored through these sanctions is the importance of supply chain traceability and transparency, governed by a system of origin certifications that track and document product nationalities.¹¹⁷ Both the Xinjiang withhold release orders and the UFLPA hinge on U.S. importers’ ability to produce evidence demonstrating the products’ origins.¹¹⁸ At a minimum, this complex documentation regime necessarily involves cooperation from suppliers, whose control over and proximity to the production process reasonably enable a firmer grasp on supply chain traceability.¹¹⁹

In response to the uncertainties created by a plethora of trade restrictions from the United States, China, and elsewhere, companies have sought to mitigate risks through supply chain reconfiguration. This development, however, does not necessarily lead to better human rights and labor rights practices. One reason often spotlighted is deliberate trade diversion. That is, firms can circumvent these regulations by routing the “tainted” materials to a different region or factory outpost to gain a Xinjiang-free certification or even a different product nationality altogether.¹²⁰ The UFLPA’s rebuttable presumption mechanism was designed precisely to shift compliance costs to importers and to incentivize careful supply chain due diligence.¹²¹ Furthermore, the elimination of the de minimis exception means that a good with Xinjiang-origin inputs, no matter how minimal, can be denied entry into the United States, even if routed through another country.¹²² These safeguards act together to curb trade diversion and preempt efforts to “manufacture” a Xinjiang-tainted product’s origin. But even assuming the Act’s successful implementation, the economic organization of supply chains can still challenge its effectiveness for two reasons, outlined below.

First, firms can adopt a strategy of “regulatory fragmentation” to split production lines in order to selectively comply with stringent standards only when required. This strategy of “supply chain splitting” hinges on a supplier’s ability to control manufacturing sites and has been well documented in the footwear and solar industries.¹²³ In footwear, Yue Yuen (a major supplier to Nike and other brands) organizes its production lines based on specific merchandisers, such that Nike’s comparatively more stringent labor standards were effectively “quarantined” within its own production line.¹²⁴ In solar, Jinko Solar (a manufacturer of solar panel components) established dedicated “clean” production lines at its Vietnam factories—that is, lines clearly free of Xinjiang inputs—slated for export to the United States, while maintaining its other production lines unchanged.¹²⁵ Meeting the more stringent requirements, whether required by a private customer like Nike or incentivized by a government entity like the United States, does not necessarily result in positive spillover effects on a supplier’s other operations. This strategy of “regulatory fragmentation” thus enables selective compliance and helps explain some of the persistent challenges to the limited reach of law in global supply chains. Suppliers’ ability to separate production based on legal standards can curb a law’s effectiveness and limit its impact—a counter story to the “race to the top” phenomenon of the “Brussels effect” and “California effect.”¹²⁶

Second, without deliberate and careful design, supply chain restructuring can itself create human and labor rights issues. Take, for example, the textile and apparel industries. Because Xinjiang accounts for about 85% of China’s cotton production and 20% of cotton production globally, Xinjiang-related trade restrictions have prompted brands to seek out an alternative cotton source.¹²⁷ This effectively spurred demand for labor and plantations in other cotton-producing countries such as Pakistan, Bangladesh, and India.¹²⁸ This shift can create new economic opportunities but also risks replicating and amplifying problematic labor practices already present in those countries’ supply chains.¹²⁹

As with the trade–national security nexus, the trade–human rights nexus also hinges on U.S. customs’ ability to accurately determine the origin of goods, highlighting yet again the linchpin role of product nationality.

III. Constructing Goods’ Nationalities

This Part unpacks the Article’s conceptual arguments—first, that a product’s nationality is malleable, and second, that such malleability occurs through an attribute selection process. The first point has long existed as a phenomenon in trade.¹³⁰ But the expanded relevance of product nationality, as detailed in Part II,¹³¹ means that the traditional levers to tinker with (for example, components and parts) now make up just a subset of a broader selection of what I call a product’s “attributes.” Nationality malleability occurs because each legal regime targets selective attributes of a product through its own prism in order to advance certain underlying interests and policy goals. I first explain the concepts of attributes and prisms, then turn to the attribute-selection process.

A. Goods’ Attributes

The conceptualization of product attributes draws initial inspiration from economic scholarship on factors of production—that is, the resources needed to produce goods.¹³² Economist David Ricardo’s theory of comparative advantage famously started with a single production factor: labor.¹³³ Labor, indeed, is just one attribute related to one facet of a product’s life cycle (production). This Article defines attributes as features of a product that are relevant to its two major life “events”: production and consumption. These two life events, in turn, serve to organize product attributes into two categories: supply-side and demand-side (see Figure 1).

Figure 1. Products’ Attributes

Supply Side

A product’s supply-side attributes pertain to the inputs, resources, and entities involved in its creation. The mapping of these attributes must necessarily be industry sensitive, but in broad strokes includes the following categories: (1) the material aspects of production: raw materials, equipment, labor, and physical infrastructure; (2) the intangible aspects of production: technology, know-how, funding, and investment; and (3) the business actors involved in the production scheme: the main producing firm, its first-tier suppliers, and other firms in the supplying networks.

In classical economic theories, the traditional three factors of production are material: land, labor, and (physical) capital.¹³⁴ Land represents the land itself, as well as raw materials extracted from the earth such as oil, critical minerals, and other natural resources.¹³⁵ Labor represents human efforts.¹³⁶ Capital (here, physical capital) denotes the physical assets used in the production process such as tools, equipment, buildings, and infrastructure.¹³⁷ A fourth factor—entrepreneurship—was later added to recognize the importance of technology, innovation, know-how (and relatedly, intellectual property rights) in their ability to organize and transform the other factors to achieve increased productivity.¹³⁸

Globalization and global supply chains have changed the factors of production analysis in several notable ways. First, thanks to an ecosystem of dispersed manufacturing, each production factor can be optimized at the global level—not only components and parts, but also people, investment, and firms—each of which can originate from different parts of the world.¹³⁹ Second, a new crop of corporate powers—first-tier transnational suppliers—have emerged as the true quarterbacks of global supply chains, coordinating and overseeing a global supply base.¹⁴⁰ The cast of business actors who participate in global production has thus expanded considerably, not only in the number of entities but also in their size and scale, geography, and specialized functions across supply chains. Finally, the nature of the goods that move across supply chains themselves has changed. By a recent estimate, almost half of global trade is now in intermediate goods rather than final goods.¹⁴¹ The exercise of origin determination now involves not only discrete production factors but also intermediate products and their relative contributions to the final commodities.¹⁴²

As a result, the supply-side attributes of any given product, while drawing inspiration from the classic production factors, now account for many more features beyond material inputs. Notably, these attributes also include the specific firms and business networks involved in production and the manufacturing processes that relate intermediate goods to the final products.

Demand Side

Demand-side attributes comprise a shorter list: a product’s end user(s) and its purported end use(s)—though this short list is certainly not short on complexity. While supply-side attributes focus on the “who, what, where, and how” of manufacturing, demand-side attributes pertain to how a product is consumed—who its end users are and how it is ultimately used. These attributes can shape, and sometimes alter, a product’s nationality.

First, consider two potential end users—the U.S. federal government and a socially conscious consumer. Product nationality matters a great deal for both. For the U.S. government, federal laws impose specific restrictions on the origin of products in procurement. The Buy American Act of 1933, for example, requires that items acquired for public use be manufactured in the United States and comprise “substantially all [] articles, materials, or supplies mined, produced, or manufactured in the United States.”¹⁴³ The “substantially all” standard, in turn, mandates a threshold of 65% of component costs—meaning that at least 65% of the purchasing or manufacturing costs have to come from materials and inputs originating from the United States.¹⁴⁴ As a result, a product that may qualify as “made in America” for private consumption might not qualify as American-made when the end consumer is the federal government. Businesses seeking public procurement contracts must thus separately ensure compliance with Buy American Act rules, even if the product may qualify as U.S.-originating under customs determination or can be marketed with a “Made in USA” label pursuant to Federal Trade Commission regulations.¹⁴⁵

For the socially conscious consumer (in fact, for all consumers), product nationality can significantly shape purchasing decisions. Historically, product origin, much like the brand, served as a marker of quality and a means of differentiation from competitors.¹⁴⁶ Geographical associations such as Swiss watches, German cars, Thai silk, or Ethiopian coffee evoke perceptions of quality and craftsmanship, thus acting to confer commercial advantage on such products.¹⁴⁷ Business and marketing literature has long recognized this phenomenon as the country-of-origin effect—how consumers’ perceptions of a country can influence their assessment of product quality, which, in turn, can shape purchasing decisions and price sensitivity.¹⁴⁸ Known also as “product country image,” the country-of-origin effect acts through at least three venues: cognitive, affective, and normative processing.¹⁴⁹ Cognitive effects emphasize the role of general impressions and perceived matching strengths (or weaknesses) between the country of production and certain aspects of the product—for example, Germany for high-quality engineering; Scandinavia for sustainability; South and Southeast Asia for poor labor conditions.¹⁵⁰ Perhaps unsurprisingly, these cognitive effects often reflect widely shared cultural stereotypes.¹⁵¹ Once formed, such reputational associations tend to be sticky, persisting even after consumers learn contrary facts or have experiences at odds with the initial expectations.¹⁵²

Affective and normative cues operate at an even deeper level, impacting consumers’ emotional attachments and moral impulses.¹⁵³ Affective effects refer to a product’s ability to evoke emotions, identity, and pride in buyers, thus conferring symbolic and emotive meanings on their purchasing decisions.¹⁵⁴ Normative effects reflect consumers’ beliefs about the moral responsibilities associated with their consumption choices.¹⁵⁵ Consumer boycotts are among the clearest examples of such an effect. Recent and distant examples include consumer protests urging U.S. brands such as Walmart to stop buying apparel made in Bangladesh after the Rana Plaza garment factory tragedy,¹⁵⁶ and a global call to reject Russian goods in protest of Russia’s invasion of Ukraine.¹⁵⁷

Like end users, a product’s end use can similarly impact its nationality analysis. Consider, for example, the Foreign Direct Product Rule (“FDPR”), a sanctions rule that subjects foreign-produced items to U.S. jurisdiction if U.S.-origin technology, plants, or equipment were used in their production.¹⁵⁸ Enacted during the Cold War, the FDPR was aimed at preventing the Soviet Union and other communist countries from obtaining U.S. technology and know-how, particularly those with dual uses—that is, can be used for both civilian and military ends.¹⁵⁹ After a relatively dormant period, the FDPR was revived in the 2020 to 2022 period to target Chinese tech giant Huawei Technologies and its affiliates on the U.S. Department of Commerce’s Entity List.¹⁶⁰ In effect, the FDPR extends the extraterritorial reach of U.S. export controls by banning the sale of products to Huawei, regardless of where they were produced and by what firm, so long as these products utilized U.S.-origin equipment or technology. The products that U.S. regulators had in mind were of course microchips.¹⁶¹ While East Asia dominates in microchip fabrication, the United States leads in microchip design thanks to established names like Broadcom, Qualcomm, and NVIDIA.¹⁶² As a result, the most advanced microchips likely contain, in some way or another, U.S.-origin design, technology, or know-how.¹⁶³ The FDPR effectively blocks firms around the world, including non-U.S. firms, from supplying chips to Huawei, or else face hefty fines, market restrictions, and even criminal prosecution.¹⁶⁴ A microchip can thus be fabricated wholly in Taiwan, yet still deemed to be of U.S. origin for the purposes of the FDPR based on its purported end user, here a U.S.-sanctioned entity such as Huawei.

B. Laws’ Prisms

This Section explains how the foregoing discussion on product attributes relates to the concept of prisms and the attribute-selection process that underpins the construction of product nationality. As developed above, I focus on three primary prisms—commerce, security, and rights—reflecting trade’s traditional aim as well as its increasing overlaps with the latter two domains.¹⁶⁵ These prisms mirror the current preoccupation of U.S. trade law, though they need not be exhaustive or determinative.¹⁶⁶

Commerce

A commerce prism views a product largely for its commercial value. As such, its selection of attributes closely reflects the standards articulated in trade agreements. The attributes that matter include the traditional factors of production (land, labor, physical capital, and technology), as well as supply chain–induced factors such as the production process, the identity of the producing firm, and the supplier networks (see Figure 2). To return to the BYD hypothetical that opens this Article, the USMCA’s automotive origin rule hinges on the value of the car’s several inputs, from critical materials to overall content to wage requirements.¹⁶⁷ This automotive rule reflects the rules of origin value-added test, here in the context of a preferential trade agreement.¹⁶⁸ The other three tests—substantial transformation, tariff shift, and technical test—likewise all hinge on supply-side attributes, with particular emphasis on the manufacturing process.¹⁶⁹

Figure 2. Prisms’ Selection of Attributes

One of the purposes of rules of origin is to provide consumers with information to support informed consumption choices.¹⁷⁰ As detailed above, geographical associations have long served as signals to potential buyers to convey information about a product’s quality and workmanship.¹⁷¹ The disclosure function of RoOs can thus be seen as a demand side of the commerce prism.

Rights

A rights prism focuses primarily on the socioeconomic and sustainability impacts of trade. It emphasizes how a product or its production process may advance or impede values such as labor and human rights, corporate accountability, and sustainability, whether at home or abroad.¹⁷² Accordingly, it tends to select for supply-side attributes such as inputs, labor, and production process (see Figure 2). A rights prism concerned with labor and human rights would scrutinize the labor attribute to query whether goods are produced using exploitative labor practices, such as forced or child labor.¹⁷³ A rights prism concerned with corporate accountability would evaluate labor as well as inputs and production processes to examine whether the manufacturing corporation and its suppliers act responsibly along supply chains.¹⁷⁴ Likewise, concerns with sustainability would lead to focusing on attributes such as the production processes and the firms involved, to the extent that either might impact sustainability issues, such as environmental externalities.¹⁷⁵

On the demand side, a rights prism can target both end users and end uses. A socially conscious end user, as detailed above, may care deeply about where the product originates, thanks to what business scholars call the affective and normative effects—how the country of origin can evoke emotions and beliefs about the moral responsibilities associated with consumption choices.¹⁷⁶ Governments, too, can be socially conscious, or at least socially aware, consumers. The European Union’s (“EU”) Green Deal, for example, encourages EU member states to set sustainability and environmentally conscious criteria in public purchases.¹⁷⁷ While this framework is nonbinding, a number of EU member states have incorporated mandatory sustainability criteria into domestic law.¹⁷⁸

Security

Finally, as extensively explored above, a security prism scrutinizes how a product may affect, promote, or undermine national security interests.¹⁷⁹ It thus seeks to identify security vulnerabilities. Such vulnerabilities can occur in the supply chains—for example, dependence on certain critical minerals, technology, or foreign control. Equally relevant are a product’s demand-side attributes: who can potentially use the product and for what purposes.

C. The Attribute-Selection Framework

In optical physics, a prism disperses light through a process called refraction, whereby a ray of light enters the prism’s transparent surface and exits as an array of colors.¹⁸⁰ This phenomenon occurs because of a change in medium. As light passes from air (a low-density medium) into glass or another transparent material (a high-density medium), its traveling speed

changes, causing it to bend.¹⁸¹ As a result, depending on the angle of the prism, different projections of colors can result.

The attribute-selection process operates in a somewhat analogous manner (see Figure 3). Imagine a triangular prism with each side representing the commerce, rights, and security perspectives. Depending on the prism and the angle from which one chooses to view the good, the nationality of the concerned good projects differently. This occurs through the selection of specific attributes of the good, as conceptualized above.¹⁸²

It is important to note here that laws and policies often seek to advance multiple goals and thus can operate through multiple prisms (or policy directives). As a result, as the examples above demonstrate, the same product can be tagged for different nationalities, or more than one nationality, depending on the prism through which it is viewed. Separating the relevant prisms, however, helps disentangle why a legal regime may target certain attributes of a product and not others. This, in turn, can assist in the evaluation of whether such decisions are analytically sound and whether they effectively advance the stated policy goals.

Figure 3. Prisms of Product Nationality

A separate question remains as to whether viewing (and regulating) products through a particular prism violates international trade rules, including a state’s WTO obligations, and whether states’ increased use of WTO exceptions to justify such restrictions is legitimate. After all, trade restrictions imposed in the name of nontrade issues, whether national security, the environment, or human rights, often coincide with the interests of domestic groups who stand to benefit from these restrictions. Legal scholar Tim Meyer called this issue “mixed motives” in trade law’s policymaking.¹⁸³ Similar to the challenges posed in domestic law (e.g., employment), trying to figure out which motive principally animated the conduct at play requires a contextual, fact-intensive inquiry.¹⁸⁴ At the ex-post stage of adjudication, Meyer proposed a “predominant motive” test to detect whether the concerned policy was dominated by an impermissible motive.¹⁸⁵ While this Article is primarily concerned with the ex-ante stage of regulation and supply chain design, disentangling a product into attributes and homing in on the relevant attributes can potentially be helpful in the ex-post stage as well.

IV. The Limits of Nationality

A. Nationality as a Proxy

So far, I have argued for the utility of seeing product nationality through the prism framework. Such utility has purchase only so far as the concept of nationality itself remains useful. This Section contemplates this very question. It starts with an evaluation of product nationality’s use as a proxy to advance policy goals, ultimately highlighting the limits of nationality-based regulations when applied to a product’s highly mobile attributes such as capital or ownership.¹⁸⁶ As detailed below, such limits are particularly salient when regulating through the trade–security or trade–human rights nexus.

For an illustrative example, consider the saga of TikTok. Although TikTok is not a physical product, U.S. regulators’ characterization of the platform as Chinese, and therefore justifying its use as a national security risk, bears directly on this Article’s argument. Many of the debates around TikTok’s divest-or-ban regulation and subsequent lawsuits have centered on the tension between the state’s national security interests and individuals’ First Amendment rights.¹⁸⁷ The state’s security stake, in turn, fixated on TikTok’s Chinese-ness.¹⁸⁸ But as legal scholars Curtis Milhaupt, Mariana Pargendler, and Dan Puchniak astutely question: What exactly makes TikTok “Chinese”?¹⁸⁹ As they meticulously point out, TikTok Inc., its parent company, TikTok Ltd., and that company’s parent company, ByteDance Ltd., are all incorporated in either California or the Cayman Islands.¹⁹⁰ ByteDance, the ultimate parent company, is controlled by its founder, Zhang Yiming (20% equity), while the other 80% of shares are owned by employees and global institutional investors, including well-known U.S. firms such as Sequoia and KKR.¹⁹¹ Data generated by TikTok Inc. is stored in the United States, Singapore, and Malaysia; none of its senior executives are Chinese nationals, and neither TikTok Inc. nor its parent company operates in China.¹⁹² In other words, the only link that TikTok Inc. has to the PRC is the nationality of the controlling shareholder of its ultimate parent company, ByteDance. From a corporate law perspective, such a tenuous connection would not have been enough to confer corporate nationality, whether under common law or civil law traditions.¹⁹³

But of course, such a connection, while inapposite to corporate law, is highly relevant for the security prism. ByteDance Ltd.—TikTok Inc.’s ultimate parent company—also owns Douyin, a video streaming platform that is TikTok’s analog for the China market.¹⁹⁴ Unlike TikTok, Douyin has extensive links with Chinese investors and state actors, including the presence of an internal Chinese Communist Party committee, as required under China’s Company Law.¹⁹⁵ While TikTok, by virtue of being a foreign company in China, is governed under a separate body of law and is not subject to the same requirement, its common lineage with Douyin raises enough risk from a security perspective.¹⁹⁶ To put this within the attribute-selection framework, U.S. regulators viewed TikTok through the security prism and, in that process, selected ownership and control as the key attributes by which to determine its corporate nationality (and, by inference, its allegiance).¹⁹⁷

Consider a similar challenge in tracing the nationality of ownership and control through supply chains. Recall that the UFLPA, enacted in 2021, imposes a ban on the import of products originating from the PRC’s Xinjiang region.¹⁹⁸ After the UFLPA went into effect, investigative reports discovered that Xinjiang-made red dates, also known as jujube, were widely available at markets and retailers nationwide.¹⁹⁹ Red dates, the third major export from Xinjiang (behind cotton and tomatoes), are often intercropped with cotton, thus increasing the likelihood that, like cotton, these crops are also tainted with forced labor.²⁰⁰ It was, however, no easy task to trace the red dates on American grocers’ shelves back to the region, thanks to their supply chains’ opaque corporate and contract networks. On the contract side, a Xinjiang-based company can simply contract with a middleman, a non-Xinjiang shipper, to mask the products’ origin.²⁰¹ This type of origin masking is precisely what the UFLPA targets with its burden-shifting framework. By shifting the burden of proof to importers to show by “clear and convincing evidence” that the imported products are not tainted with Xinjiang labor, the Act incentivizes importers to demand transparency and careful documentation from producers and suppliers.²⁰²

While the UFLPA is carefully designed to preempt manipulations through contracting networks, it is less clear how the Act can detect manipulations through corporate maneuvers. The entity responsible for the majority of production in Xinjiang—and its labor problems—is the Xinjiang Production and Construction Corps (“XPCC”), a unique part-military, part-corporation, part-bureaucracy entity squarely under the control of the PRC’s party-state.²⁰³ It has 14 divisions and, by one estimate, is the majority owner of close to 3,000 subsidiaries, both local (that is, outside of Xinjiang) and foreign.²⁰⁴ Routing products through an out-of-province subsidiary would likewise have the effect of masking the Xinjiang origin, though, here, done through an in-house mechanism.²⁰⁵ Not only that, the Xinjiang-based parent company may later transfer its shares of ownership to a third, unrelated company located outside of Xinjiang, and this subsidiary may also change its name.²⁰⁶ In fact, these tactics—using a “do-nothing” shipper, routing through a subsidiary, ownership divestment, and name change—can be used together to create layers of opaqueness, exactly what happened in the red dates case.²⁰⁷

In a world of nimble corporate forms and complex supply chains, the limits of product nationality are apparent. In particular, corporate law doctrines such as corporate personhood and corporate identity, developed to solve very different problems,²⁰⁸ are ill-equipped to deal with policymakers’ current focus on national security, human rights, and geopolitics. As the target of regulation shifts, the means of regulation likewise have to change. Indeed, U.S. laws have now paired product-based regulations with at least two other vehicles: entity-based and geography-based restrictions. The next Section turns to these developments.

B. From Products to Entity- and Geography-Based Regulations

The limits of product nationality as a regulatory tool—its complexities, imperfect fit with corporate practice and manufacturing reality, and susceptibility to manipulation—have prompted policymakers to experiment with alternative approaches. Two options are prominent: entity-based regulations and geography-based restrictions. This Section examines these alternatives through two recent developments in U.S. law: the Entity Lists (relating to trade restrictions) and the designation of Foreign Entities of Concern (relating to federal funding). As we will see below, each combines the nationality approach with both entity- and geography-based regulations for a more comprehensive reach.

The Entity Lists

Consider first the Entity Lists, which come in at least two versions: a general Entity List maintained by the U.S. Department of Commerce’s Bureau of Industry and Security, and a UFLPA Entity List maintained by the Department of Homeland Security—targeting national security and human rights concerns, respectively.²⁰⁹ The former “identifies entities reasonably believed to be involved, or pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States” and imposes license requirements for “exports, reexports, and transfers (in-country)” to listed entities.²¹⁰ In effect, U.S. actors cannot sell to firms on the Entity List unless they first obtain a license to do so. The Commerce Department added Huawei and its worldwide affiliates to the list in 2019; it has since expanded it to cover entities deemed acting at the behest of Russia, Egypt, and other countries.²¹¹

The UFLPA Entity List operates in an analogous manner, in the context of enforcing the UFLPA. It attempts to capture the Xinjiang Production and Construction Corps’ economic reach by identifying its extensive network of subsidiaries and partners along Xinjiang-origin supply chains. Blacklisted entities include those “in Xinjiang that mine, produce, or manufacture wholly or in part any goods, wares, articles, and merchandise with forced labor,” “entities working with the government of Xinjiang to recruit, transport, transfer, harbor or receive forced labor,” as well as entities that assist in the export of Xinjiang products or source materials from the region.²¹²

One way to think about the two Entity Lists is that they, in essence, formalize the selection of entity-based product attributes: on the supply side, manufacturing firms and supplier networks; on the demand side, the product’s end user. The UFLPA Entity List, consistent with the rights prism, targets entities that manufacture or are otherwise involved in the distribution and export of Xinjiang products. The Commerce Entity List, as we see above in the analysis of the security prism, targets a product’s end user—whether corporate entities (such as Huawei or its affiliates) or the ultimate state actors who stand to benefit (China, Russia, and Egypt, among other countries named on the list).

In broadening the target of regulations from product attributes to entities, this approach minimizes the ability to evade regulations by covering the corporate and contracting networks themselves. Yet, this approach is not without flaws. From an implementation perspective, it requires constantly keeping up with the target entity’s economic networks and changing corporate forms, including sometimes thousands of subsidiaries (as with the XPCC). Because these firms are often foreign companies, acquiring this kind of information requires intelligence that may be unavailable, difficult to obtain, or difficult to verify. From a regulatory perspective, the Entity Lists can lead to overreach by including companies or individuals with only a tenuous connection to problematic activities and products, potentially harming legitimate businesses and broader commerce flows. This, together with a lack of transparency on how to get on and off the lists, has led to ongoing lawsuits challenging Entity List inclusions.²¹³ Finally, from a trade perspective, the Entity Lists have the effect of hastening a regulatory race. The PRC, for example, enacted a law called the “Unreliable Entity List,” among a host of other retaliatory measures, that targets U.S. companies deemed to be engaged in discriminatory business practices in China.²¹⁴

Foreign Entities of Concern

If the Entity Lists operate by “blacklisting” firms to block their access to U.S. markets, the designation of a “foreign entity of concern” (“FEOC”) provides a broad definition keyed on control and ownership. The FEOC designation emerged as part of U.S. regulators’ turn to industrial policy and appears across all three of the Biden administration’s major laws in this area: the Infrastructure Investment and Jobs Act (regarding battery grant programs);²¹⁵ the CHIPS and Science Act (relating to semiconductor funding);²¹⁶ and the Inflation Reduction Act (as applied to clean vehicle tax credit).²¹⁷ FEOC is broadly defined as a foreign entity “owned by, controlled by, or subject to the jurisdiction or direction of a government of a foreign country that is a covered nation.”²¹⁸ Covered nations, in turn, include the PRC, Russia, North Korea, and Iran.²¹⁹

Under each of the three laws, a potential recipient is disqualified from receiving benefits if the qualifying act involves an FEOC. Specifically, the Infrastructure Investment and Jobs Act provides funding to support domestic battery processing and manufacturing and directs its implementing agency, the Department of Energy, to prioritize applicants who (1) will not use material supplied by or originating from an FEOC or (2) will not export critical materials to an FEOC.²²⁰ The Inflation Reduction Act similarly targets FEOCs in the context of the critical mineral supply chains. It provides businesses and consumers with a clean vehicle tax credit for new EV purchases provided that a certain percentage of the critical minerals contained in the EV’s battery were “extracted or processed . . . in the United States” or its free trade partners.²²¹ Such a credit is eliminated, however, if the EV’s battery contains any critical minerals “extracted, processed, or recycled” by an FEOC.²²² Considering that the global EV industry is dominated by Chinese firms, this provision thus raises the price of EVs that contain Chinese component parts or critical mineral inputs, thereby incentivizing brands to switch to U.S. or allied products.²²³ The CHIPS and Science Act, on the other hand, is designed to prevent the transfer of U.S. technology to suspicious foreign entities. It excludes FEOCs from receiving CHIPS funding, whether directly as an applicant or indirectly through collaboration or technology licensing with another firm.²²⁴ A “technology clawback” provision further allows for the recovery of funds if the recipient is found to engage in joint research or technology licensing with an FEOC during the term of the award.²²⁵

Unlike the Entity Lists, which rely on the positive identification of companies and individuals of concern, the FEOC regime uses a broad definition, allowing for flexibility and wide coverage. But, like the Entity Lists, this can lead to over-inclusiveness, here due to the broad definition of ownership, control, and influence. Control, for example, is set at a relatively low threshold of 25% and applies to equity interests, voting rights, and board seats.²²⁶ Effective control also counts, though the term is not well defined in the various Acts or in subsequent guidance from the respective implementing agencies.²²⁷ The implementing agencies themselves—the Department of Energy for the battery and critical minerals supply chains, and the Department of Commerce for semiconductors—have issued diverging guidelines on what needs to be established for control, justified by the different purposes of the statutes.²²⁸

Like the Entity Lists, the FEOC standard incentivizes companies to inspect their supply chains and business partners closely. But the FEOC’s complex requirements mean that a great deal of information gathering and tracking is needed, likely inducing high compliance costs and legal uncertainty.

***

These examples illustrate a broader trend: entity- and geography-based regulations seek to transcend the limitations of product nationality by targeting firms or territories directly, often in combination. The Entity Lists and the FEOC designation pivot to firms’ identities or affiliations, aiming at firms’ relations with nation-states or subnational foreign entities that are deemed concerning to U.S. national security or human rights interests. In doing so, they address some of the shortcomings of product nationality regulations, in particular the latter’s susceptibility to supply chain manipulation and failure to capture intangible and tenuous attributes like control.

Yet, as we see above, these innovations are not panaceas. They inherit familiar challenges, such as high compliance costs and enforcement complexity, and introduce new ones, such as cross-agency inconsistency and overreach. The Entity Lists’ focus on specific firms requires constant updating as entities adapt, while FEOC’s broad brush may deter legitimate investment. Moreover, these approaches are often layered atop nationality-based rules rather than replacing them, as seen in the interplay between tariffs and export controls. This further amplifies regulatory complexity and legal uncertainties, leaving it to businesses to navigate and courts to reconcile these overlapping frameworks.

V. Concerns and Possibilities

A. Concerns

If one thing is clear, it is that differentiation lies at the heart of trade. Even as the WTO was founded on the principle of nondiscrimination, our modern international economic order cannot function without effective ways to distinguish products by nationality.

But even though nationality differentiation has always mattered, there is something disquieting about the current heightened scrutiny. Nationality-based rules, even if for inanimate products and for legitimate reasons, risk being co-opted into a larger narrative that can perpetuate stereotypes, exacerbate discriminatory practices, or even incite violence against certain national and ethnic groups.²²⁹ As history has shown, economic nationalism, if left unchecked, can quickly morph into dangerous racialized animosity. During the 1980s, as the United States and Japan were embroiled in trade wars over automobiles and steel, anti-Japanese sentiment surged in the United States.²³⁰ Japanese Americans faced increased hostility and harassment.²³¹ To the dismay of a congressional caucus, one congressman was quoted as referring to Honda executives as “little yellow people”;²³² another congressman, even more shockingly, opined that the United States should have dropped four bombs.²³³ In 1982, Vincent Chin, a Chinese American man, was brutally killed when his attackers mistakenly believed he was Japanese and blamed him for the decline of the American auto industry.²³⁴ Chin’s murder and the subsequent disappointing legal process sparked outrage and galvanized a pan-Asian civil rights movement, uniting previously fragmented Asian communities.²³⁵

This historical backdrop offers a cautionary note on the growing scope of “adverse nationality”—which, as outlined above, can span from product attributes to business entities to entire nations. Current U.S.-China tensions have already begun to replicate some of the pathologies of past economic nationalism.²³⁶ Balancing national security imperatives while setting up guardrails against these dangerous tendencies is a thorny but critical task for the preservation of American democratic values. As legal scholar Mark Jia astutely warned, “[e]fforts to compete with China may unwittingly lead us to emulate it.”²³⁷

B. Possibilities

This Article’s focus on the United States invites reflection on other possibilities. Here, the commerce-rights-security prisms are inductive patterns that prominently reflect the United States’ pressing concerns with the rise of China. They reveal the current preoccupations of U.S. trade law, though they need not be exhaustive or determinative.

Imagine, for example, a hexagonal prism with more sides than a triangular one. One may consider prisms relating to a product’s cultural heritage, socioeconomic issues, historical developments, and regionalism, to name just a few.²³⁸ A cultural prism, for example, might investigate the importance placed on “made in” labels and certifications that has become a global trend. A socioeconomic prism may be concerned with the distributive effects of attributes such as intellectual property, the reshuffling of labor, and dispossession of land for industrial zones. A prism trained on regionalism and historical context may help illuminate some of the diverging rules of origin in Europe, Asia, and Africa.

Having these kinds of additional perspectives may help move our collective thinking beyond the currents of the present moment, so heavily pulled by a backlash to globalization and great power rivalries.²³⁹

Conclusion

In an era of unstable U.S. trade policy, product nationality bears an ever-heavier legal load. This Article’s main contributions are both descriptive and conceptual. Descriptively, it charts the transformation of product nationality from a trade law instrument to a critical lever across broader domains, in particular the trade–security and trade–human rights nexus. Conceptually, it offers a novel attribute selection framework to unpack how this transformation occurred. This framework operates by disaggregating a product into discrete supply-side and demand-side attributes and investigates how different legal prisms select for these attributes.

At the heart of these dynamics lies a paradox. While globalization purports to erase national economic boundaries, it simultaneously sharpens their significance, amplified by the proliferation of origin rules and fierce competition among states and firms vying for a position within global supply chains. For physical goods, product nationality is where the proverbial rubber hits the road. The regulatory frameworks governing product nationality and its underlying attributes are in a state of considerable flux and innovation. Existing legal standards such as rules of origin, the Entity Lists, and the foreign direct product rule are being retooled to address new geopolitical developments, while new ones such as the foreign entity of concern designation are still being developed and refined.

For businesses navigating an intricate maze of regulations, this Article underscores the need for heightened supply chain due diligence and compliance foresight. As the stakes get higher—penalties for violations range from hefty fines to the revocation of market access²⁴⁰—firms that invest in transparency and build flexible, resilient supply chains will be better positioned to navigate today’s complex trade environment. Beyond the ongoing shifts toward onshoring and friend-shoring, high-cost, high-reward regulations may further splinter global supply chains into networks of “trusted business partnerships,” especially in lucrative yet heavily scrutinized sectors such as defense, critical minerals, semiconductors, and electric vehicles.

For policymakers, regulatory underreach poses a serious problem, but so can regulatory overreach. As well documented elsewhere, vague and expansive rules leave room for arbitrary interpretation and enforcement, creating legal uncertainty for businesses and discouraging legitimate economic cooperation.²⁴¹ Even more concerning, as the experience of the U.S.-Japan trade wars showed, judgments based on the nationality of products can spill over to people, resulting in racialized violence and backlash against hard-won rights and liberties.²⁴²

Finally, as scholars of globalization well recognize, complex challenges demand informed, nuanced, and multifaceted approaches.²⁴³ This Article pulls together threads from trade, security, and human rights in one such effort, but the analysis here is limited in its focus on the United States. The commerce-rights-security prisms examined here reflect the preoccupations of the United States in a moment defined by domestic backlash and the rise of China. Other countries and regions, informed by different priorities and historical experiences, are likely to adopt different approaches. Alternate prisms—cultural, historical, socioeconomic, and many more—may offer more holistic perspectives on foreign products and, in turn, help move our collective imagination beyond the contours of the present moment.

99 S. Cal. L. Rev. 895

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Trang (Mae) Nguyen*

* Associate Professor of Law, Temple University Beasley School of Law; Affiliated Scholar, New York University School of Law, U.S.-Asia Law Institute. This Article is the third in a series that explores the legal architecture of global production. For their helpful insights throughout the development of this paper, I am grateful to Karen Alter, Gilat Bachar, Edith Beerdsen, Kathleen Claussen, Harlan Cohen, Jeff Dunoff, Nate Ela, Pamela Foohey, Paul Gugliuzza, J. Benton Heath, Virginia Harper Ho, Duncan Hollis, Mark Jia, Jed Kroncke, Joanna Langille, Desirée LeClercq, Jen Lee, Ji Li, Tom C.W. Lin, Liu Sida, Rachel López, Salil Mehra, Meghan Morris, Guy Mundlak, Kish Parella, Rafael Porrata-Doria, Julia Qin, Jacob Schuman, Greg Shaffer, and Hila Shamir. Earlier drafts or draft portions benefited from presentations at Brooklyn Law School, Temple Law, University of Georgia School of Law, University of Hong Kong Faculty of Law, the 2024 American Society of International Law (“ASIL”) Midyear Meeting at the University of Chicago Law School, the ASIL Biennial Conference in International Economic Law at the University of Michigan School of Law, the Berle XVII Symposium at Seattle University School of Law, the University of Trento’s series on Sustainability & Governance of Global Supply Chains, and Tel-Aviv University’s The Law of Global Value Chains workshops. The University of Hong Kong Faculty of Law provided a welcoming and stimulating research environment during the early conceptualization of this project. Finally, my gratitude is to Andrew Alcala, Dara Chase, Xing Li, and Temple Law’s librarian Charlie Perkins for their excellent research support, and to the entire editorial staff at the Southern California Law Review, in particular Bennett Bay, Maryanne Koussa, Rachel Liang, Andrew Lu, and Kelcey Sholl, for their thoughtful editing. All errors are mine.

Adding Insult to Injury? An Evaluation of the Current State of the Discovery Rule in the Copyright Statute of Limitations

September 2026September 2026Michele Danigelis*

This Note evaluates the appropriate scope of application of the discovery rule to the Copyright Act’s statute of limitations through an analysis of legislative intent and statute of limitations precedent across different bodies of law. The 2024 Supreme Court decision in Warner Chappell Music, Inc. v. Nealy left open the question of whether the Copyright Act’s three-year statute of limitations applies, as a default, the injury-occurrence or discovery rule of accrual. Widespread application of the discovery rule in copyright law by the lower federal courts exists in contrast to other bodies of law in which the Supreme Court has strongly articulated that the injury rule should be used as the default method of accrual for statutes of limitations. This Note attempts to reconcile such differences by proposing that the injury rule default, when complemented by common law equitable exceptions that employ a discovery rule in limited contexts, creates a middle ground between Supreme Court statute of limitations jurisprudence and extensive copyright case precedent. By placing the copyright statute of limitations injury versus discovery rule debate in a broader legal context, this Note weighs important policy considerations that accompany the unique demands of copyrightable works and explores the potential impact on other bodies of law.

INTRODUCTION

Imagine that an American photographer takes a series of photos of a public figure’s countryside estate in France.¹ Four years later, the public figure decides to sell the property. In anticipation of the sale, a major magazine publication contacts the public figure to do a cover story in its upcoming architecture issue. The public figure hates the images taken by the magazine’s photojournalist and instead sends the publication the photo series from four years prior. The magazine editor also prefers the earlier photo series and under the impression that the public figure owns the work, publishes several of the photographer’s images online and in print to accompany the article, including on the cover. It becomes the magazine’s best-selling print issue. At the time of publication, the photographer is off-the-grid working on another project, without access to the internet. The photographer only discovers the magazine’s use of her photos over two years after publication. One year later, the photographer brings a lawsuit for copyright infringement against the magazine to recover damages generated from its use of her works. The magazine files a motion to dismiss on the grounds that the relevant three-year statute of limitations period for copyright has lapsed. Is the photographer barred from recovery even though she filed suit soon after learning about the infringement? Should the magazine be held liable despite its lack of awareness as to the dubious ownership? Although imperfect, this hypothetical identifies that at least one key consideration for answering these questions depends on whether statute of limitations in copyright allows for application of a “discovery rule,” which would enable a copyright owner to sue after learning of the infringement, and if so, on its appropriate scope of application.

A statute of limitations is a type of legal gatekeeper, intended to prevent unfair legal process against defendants that results from stale claims brought after an extensive passage of time. The more time that passes between an alleged injury and the commencement of litigation, the greater the risk of lost evidence, uncertainty, and reliance investments—such as in copyright cases, if a party were to continue to profit from an infringing work or even create new works derived from the infringing work. The relevant statute of limitations period in copyright law is three years from the time at which a claim accrues.² The precise definition of the point of accrual—being either the time at which the infringement occurs or the time at which the plaintiff knew or should have known of the infringement—historically lacks uniform application across jurisdictions.³ The first approach, which measures accrual from the point at which the infringing act occurs, is known as the incident of injury or injury-occurrence rule and is the so-called default interpretation according to the Supreme Court.⁴ The second definition, which measures accrual from the point at which the plaintiff knew or should have known of the infringement, is known as the discovery rule.

The discovery rule steps in to protect the interest of a diligent plaintiff who could not have otherwise known of the injury. This underlying policy tension requires weighing copyright holders’ interests in enforcing their legal rights against protecting parties, who rely in good faith on the belief that they hold copyright ownership, from unknown claims. There are relatively few, but nonetheless notable, bodies of law that automatically apply a discovery rule, favoring a diligent, yet unaware, plaintiff over the timely commencement of an action.⁵ For these bodies of law, either the legislature specifies a discovery rule or the judiciary finds that the legislature intended to allow for application of the discovery rule.⁶ The discovery rule is typically applied in one of two ways: (1) generally, to any action in which the plaintiff did not and could not have reasonably known of the infringement, or (2) limited, to cases in which equity demands application due to fraud or concealment by the infringing party. Within copyright disputes, nearly all federal appellate courts currently allow for use of the discovery rule, but each do so with a varied scope of application.⁷

The Supreme Court’s most recent clarification regarding the statute of limitations in copyright actions resolved a split between the Second and Ninth Circuit Courts over whether damages for a continuous infringement that were incurred more than three years before an action commenced were recoverable under the Copyright Act.⁸ The case, Warner Chappell Music, Inc. v. Nealy, was brought by music producer Sherman Nealy in 2018, alleging that an interpolation of his work “Jam the Box” in Flo Rida’s 2008 hit song “In the Ayer” infringed on his rights, and claiming that he did not become aware of the infringing activity until his release from prison in 2015.⁹ Nealy sought damages and profits from Warner Chappell Music’s licensing activities related to “In the Ayer” dating back to 2008.¹⁰ Upon granting certiorari, the Court limited the question presented to the issue of damages in lieu of addressing the broader discovery rule versus injury rule question head-on because defendant-appellant Warner Chappell did not challenge the lower court’s application of the discovery rule.¹¹ Despite this, counsel for the petitioner focused considerable time during oral argument on whether the Copyright Act allows for a discovery rule at all.¹² The dissenting Justices gave consideration to this “antecedent” discovery rule question in their written opinion.¹³

In turn, this Note closely examines the dissent’s proposition that the Copyright Act “certainly does not tolerate a discovery rule” by analyzing legislative and judicial history to gain insight into whether the decision in Warner Chappell is destined to become a “dead letter.”¹⁴ This Note adds to existing literature regarding the copyright statute of limitations through an in-depth exploration of current frameworks used across different bodies of law to determine the discovery rule’s appropriate scope of application, placing the copyright statute of limitations injury versus discovery rule debate in a broader legal context and exploring copyright’s potential impacts on other bodies of law. In turn, this Note will evaluate the policy considerations surrounding the discovery rule and analyze the impact of the Warner Chappell decision regarding damages on the broader question of the discovery rule’s appropriate scope of application in copyright litigation.

This Note seeks to reconcile the widespread application of the discovery rule in copyright law by the lower federal courts with other bodies of law in which the Supreme Court has strongly articulated that the injury rule should be used as the default method of accrual for statutes of limitation. Further, this Note attempts to demonstrate that the injury rule default, when complemented by equitable exceptions that employ a discovery rule in limited contexts, creates a middle ground between Supreme Court statute of limitations jurisprudence and extensive copyright case precedent. This approach strikes a balance to simultaneously protect the rights of copyright holders and preserve stable expectations against surprise litigation for defendants.

Part I details the origins and policy considerations behind the three-year statute of limitations period for copyright actions, including a discussion of copyright infringement, recoverable damages, and legislative history. Part II closely examines the injury and discovery rules in a broader legal context, drawing upon the well-developed case law regarding a statute of limitations’ point of accrual in other bodies of law, which provides a framework and point of comparison for copyright litigation. Part III highlights the tension between Supreme Court jurisprudence and application of a discovery rule by lower courts, demonstrating that the Warner Chappell decision contributes to an existing, implied authorization of a broadly defined discovery rule in copyright actions, likely contrary to Supreme Court precedent and legislative intent.

I. BACKGROUND: COPYRIGHT, DAMAGES, AND THE Three-YEAR STATUTE OF LIMITATIONS PERIOD

A. An Overview of Copyright

Within the intellectual property umbrella, copyright is a body of law involving the legal protection of “original works of authorship fixed in any tangible medium of expression.”¹⁵ The primary purpose of this scope of protection is to promote the production of works of authorship, which are creative in nature such as visual art, literature, music, film, photography, and architecture.¹⁶ This objective fits into the constitutional power of Congress “[t]o promote the Progress of Science and useful Arts” for a limited period of time, also known as the Intellectual Property Clause.¹⁷ In other words, copyright law is an incentive for the authors of creative works to produce and share their works with the public by providing a protected mechanism for earning a profit. Copyright owners retain the exclusive rights to reproduce, perform publicly, display publicly, prepare derivatives¹⁸ of, and distribute copies or phonographs of the copyrighted work.¹⁹ The copyright owner also holds the exclusive right to authorize these uses.²⁰ The author of a work of visual art has the rights of attribution and integrity, subject to certain limitations.²¹

Further, ownership automatically vests in the author(s) of the work, unless the work was made for hire,²² and in such case the work belongs to the author’s employer by default.²³ Ownership may be transferred either partially through a license or in its entirety through assignment of copyright.²⁴ Thus, the original creator of a work is not always the copyright holder. Many musical artists, for instance, may agree to sign all or parts of their copyright ownership over to a publisher such as a record label. These different groups of stakeholders have unique authorial and commercial interests that impact their motivation for bringing copyright infringement actions.

The Copyright Act does not require formal registration with the U.S. Copyright Office or official publication to protect these rights²⁵—they are inherent to the author who creates the work once the work is fixed in a tangible medium.²⁶ Copyright historically values the interests of individual authors, distinct from a purely economic or utilitarian public interest approach, dating back to the 1710 British Statute of Anne.²⁷ The Constitution’s Intellectual Property Clause refers to rights of “Authors and Inventors,” which adopts the authorial approach to copyright reflected in the Statute of Anne.²⁸ In eliminating registration and renewal requirements for works created during or after 1978, the Copyright Act automatically vests the associated rights in a work’s author. Congress again implemented this change when the United States joined the Berne Convention in 1989, further harmonizing the American system with European copyright law and allowing authors who fail to register, provide proper notice, or pay associated fees to enforce their rights.²⁹

However, copyright registration or preregistration is a prerequisite for bringing a civil action to recover for infringement and is effectively still a requirement to enforce the rights provided under the Copyright Act.³⁰ To collect actual damages and profits, a plaintiff must properly register the copyright generally at any time before commencing the action.³¹ Failure to timely register a work can lead to other limitations. Specifically, a copyright owner can only recover statutory damages and attorney’s fees if the registration predates the alleged infringement or if the work is registered “within 3 months after the first publication of the work” or “1 month after the copyright owner has learned of the infringement.”³² This minimal recognition of inherent authorial interests for U.S. copyright owners indicates that a higher value is placed in the commercial market and promoting public access.³³ These considerations are at the core of the Copyright Act and contextualize policy arguments regarding the appropriate point of accrual for the statute of limitations.

The relevant cause of action for a violation of rights held by copyright owners and enumerated in the Copyright Act is infringement. In an infringement action, a copyright holder must establish (1) valid ownership and (2) violation of an exclusive right. For instance, to prove unauthorized copying, the plaintiff would need to first establish they hold a valid copyright, then show that the defendant both had access to copyrighted material and that the works are substantially similar.³⁴ As noted above, the duration of copyright protection is intentionally limited to strike a balance between incentivizing creation of works and allowing for entry into the public domain. The rationale behind these somewhat competing interests is to benefit the public. The current duration of copyright protection for a work created on or after January 1, 1978, is the life of the author plus seventy years.³⁵ Additionally, if the author is unknown or created the work for hire, and thus the work is owned by a business entity or employer, the appropriate copyright term is either 95 years from the year in which a work is first published or 120 years from its creation, whichever comes first.³⁶ During this period, the copyright owner is entitled to bring a civil claim of infringement so long as the action commences within the three-year statute of limitations window provided by 17 U.S.C. § 507 (“section 507”).³⁷

B. The Role of Damages

Understanding the stakes of bringing a civil action for infringement requires a brief discussion of the types of damages recoverable under the Copyright Act. Courts may grant temporary and final injunctions to prevent or restrain infringement³⁸ and may order the impoundment, destruction, or disposition of copies and sources for the reproduction of the infringed work.³⁹ The monetary damages at stake in a copyright action can be substantial.⁴⁰ A successful plaintiff is entitled to recover either “actual damages and any additional profits of the infringer” or statutory damages.⁴¹ Copyright owners may choose to recover statutory damages because the statute does not require proof of actual damages, making it easier for the plaintiff to prevail. Statutory damages can range from $200 to $150,000 depending upon the facts of the case, including whether the infringement was “committed willfully.”⁴² Actual damages, depending on the scale of the infringement, may far exceed the amount recoverable from statutory damages, even though the probative burden of proof is higher.

As stated above, statutory damages are only available to copyrights properly registered within three months of publication or one month of discovery of the infringement. Because damages include profits that can accumulate substantially over time, the statute of limitations acts as an equalizer to incentivize timely filing of an action against alleged infringers. The court may also, in its discretion, allow the recovery of full costs or reasonable attorney’s fees incurred during litigation.⁴³ Rejection of a bar on a plaintiff’s ability to retroactively recover damages for a continuing infringement that occurred partly outside the statute of limitations period was the focal point of Warner Chappell Music, Inc. v. Nealy, which will be discussed further in Part III.

Moreover, the costs associated with civil infringement litigation are vast and may include attorney’s fees, payment for expert witnesses, lengthy discovery, negotiation and settlement, and potentially a trial.⁴⁴ The American Intellectual Property Law Association’s 2023 Report of the Economic Survey estimates that the average cost of litigating a copyright case through trial is $1.4 million.⁴⁵ Both parties stand to incur substantial costs from litigating infringement cases through the trial phase. As a result, many litigants opt to reach out-of-court settlements as an alternative, oftentimes for large sums.⁴⁶ Plaintiff’s attorneys may choose to work on a contingency basis, mitigating to some extent the burden of litigation costs.

C. The Copyright Act Statute of Limitations: Legislative History and Intent

To encourage efficiency of legal process and promote fairness, the ability to sue for infringement and recover respective damages has its own time-bar. Section 507(b) of the Copyright Act imposes a three-year statute of limitations on enforcing copyright through civil actions.⁴⁷ Copyright infringement bears a similarity to tort and breach of contract actions. To place the three-year copyright limitations period in context, state limitation periods for tort actions are typically between two and four years, while contract actions range from three to ten years.⁴⁸ There is significant debate over how to interpret this code section. Examination of the legislative history behind what became section 507(b) is necessary to understand the context of the current statute of limitations period.

Prior to 1958, there was no federal statute of limitations for bringing copyright infringement actions.⁴⁹ Many courts would apply state statute-of-limitations periods governing civil tort actions, or some other cause of action, including breach of contract or conversion.⁵⁰ The diversity in length of time to file suit between jurisdictions created a forum shopping problem that establishing a uniform statute of limitations period would directly resolve.⁵¹ Congress amended then–section 115 of Title 17, United States Code, to include a three-year statute of limitations period for civil actions—identical to the existing period for criminal proceedings.⁵² The three-year bar on civil claims is well established in copyright law. The Copyright Act of 1976 converted the existing formulation of the statute of limitations into section 507.⁵³ The House of Representatives indicated that the language adopted by the 1957 iteration of the copyright statute of limitations represented a “reconciliation of views” regarding the appropriate statute of limitations period for civil copyright actions.⁵⁴ Subsequent statutory amendments to section 507 by Congress since 1976 have only altered the language of subsection (a) regarding limitations on criminal actions, leaving the civil three-year limitation period unchanged.⁵⁵

Contextualizing policy arguments surrounding application of the discovery rule requires a discussion of the legislative intent behind section 507(b) of the Copyright Act, in addition to a brief exploration of its history. The question of legislative intent is pertinent to finding an appropriate point of accrual within the three-year civil statute of limitations period. The 1957 Committee on the Judiciary, which amended Title 17 to provide for a civil statute of limitations, was concerned with the lack of uniformity that incentivized “forum shopping.”⁵⁶ Two broadly construed interest groups were identified, noting that publishers typically have an interest in shorter periods while owners desire longer periods, which also promoted a variance in triable claims across jurisdictions depending on the scale of industry involving copyrighted works in those areas.⁵⁷ In other words, jurisdictions with significant markets for copyrighted works, such as California—being the epicenter of the film industry—may have imposed shorter limitations periods than jurisdictions in which owners were less likely to bring an action for infringement.⁵⁸

The Senate Committee addressed two primary questions when drafting the statute: (1) what constituted the “most equitable” limitations period given the competing interests of different groups, and (2) whether the statute set out “specific equitable considerations” regarding tolling.⁵⁹ Tolling is a legal doctrine that pauses the running of the allotted statute of limitations period.⁶⁰ The Library of Congress advised that the 1957 statute should suspend the limitations period due to “the absence of the defendant from the United States, or during such time as the person entitled to the cause of action is under legal disability, or during the interval, not to exceed six months, between the death of either party and the appointment of an executor or administrator.”⁶¹ These are equitable considerations that prioritize fairness for a plaintiff seeking to enforce the rights afforded by copyright. Additionally, fraudulent concealment occurs when a party intentionally hides an infringing act from the copyright owner to defraud or deceive.⁶² The same letter from the Library of Congress noted it was “unnecessary or unwise” to include an exception for fraudulent concealment because very few cases in copyright feature this as a “material problem.”⁶³

Despite these concerns, the statute as amended specifies no equitable considerations because the House Judiciary Committee concluded that “[f]ederal district courts, generally, recognize these equitable defenses anyway.”⁶⁴ The Senate Report, as advised by the Library of Congress, also included statements to indicate the intent of the amendment was a “limitation based upon the remedy” and not “upon the substantive right.”⁶⁵ Each of these reports indicates the legislative intent behind the three-year statute of limitations period and any accompanying language in the statute. Congress has made no substantive changes to the limitation on civil actions even though it has amended the Copyright Act nearly eighty times since 1976.⁶⁶

II. DEFINING “ACCRUAL”: THE INJURY VS. DISCOVERY BATTLE

A. General Purpose of Statutes of Limitation

Statutes of limitation are embedded in state and federal law, the lengths of which are specific to the relevant body of law and determined by the legislature and courts across different jurisdictions. Statutes of limitation are historically recognized as an important means of regulating litigation. They are characterized as “rules demanded by the soundest principles of public policy”⁶⁷ and “vital to the welfare of society.”⁶⁸ The judicial role in forming the law around statutes of limitation is “less important than and subordinate to the role played by the legislature.”⁶⁹ However, the courts examine how the law should apply in each unique case or context, and best determine the scope of equitable considerations given existing precedent and legislative intent. Statutes of limitation aim “to prevent fraudulent and stale actions from springing up after a great lapse of time.”⁷⁰ Statutes of limitations are typically raised and asserted as either an affirmative defense to a plaintiff’s claim or a doctrine of equitable tolling.

Statutes of limitation are embedded in state and federal law and are inherently context-specific; therefore, any comparison between different bodies of the law is imperfect but nonetheless informative. As stated above, the copyright statute of limitations period bars civil actions brought more than three years after the claim accrued.⁷¹ For any cause of action based on federal law, such as copyright, the limitations period stops running when a complaint is properly filed.⁷² Accordingly, determining the point from which to run the limitations period is important to adhering to the policy judgements made and considered during the creation of the statute of limitations. Exploring the unique frameworks available to copyright in a broader civil procedure context informs the direction that Congress or the Supreme Court will take in defining the applicability of the discovery rule to copyright litigation.

The Supreme Court has distinguished statutes of limitations from statutes of repose—which bar claims brought after passage of time from a specific event, regardless of whether the cause of action is complete—by emphasizing that a statute of limitation is a “procedural bar to recovery that does not affect the validity of the underlying right.”⁷³ Plainly stated, statutes of limitation dictate the time frame within which an action must be brought in order to enforce the right violated, but they are not “canceling the obligation” to respect the right itself.⁷⁴ In comparing statutes of limitations, the Court clarified that a statute of repose “puts an outer limit on the right to bring a civil action. That limit is measured not from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant.”⁷⁵ This distinction matters in copyright cases involving multiple instances of infringing acts. The difference between statutes of limitations and statutes of repose highlights the more flexible purpose behind statutes of limitation, indicating an intentional ambiguity regarding the appropriate point of accrual. The treatise, Moore’s Manual: Federal Practice and Procedure, states that “unless Congress has expressly stated to the contrary, a statute of limitations is not jurisdictional, and is subject to equitable principles such as equitable tolling.”⁷⁶

B. Two (or Three) Competing Frameworks: Defining “Accrual” in a Broader Civil Procedure Context

If statutes of limitation are by their nature subject to equitable principles, in what contexts do principles such as equitable tolling and the discovery rule come into consideration? Various substantive bodies of law, through judicial interpretation, have adopted unique frameworks for defining the statutory point of accrual. At the core of this discussion regarding frameworks for accrual lies the existing debate between the incident of injury and discovery rules. There is a general trend in legislation and in the courts towards a preference for the discovery rule.⁷⁷ However, the discovery rule itself has competing definitions and contexts that limit its own applicability to a range of statutes of limitations.

The Injury Rule “Default”

The incident of injury rule dictates that the statute of limitations period commences on the same day that the injury occurs. Therefore, this rule defines the point of accrual as when the plaintiff has a “ ‘complete and present cause of action.’ ”⁷⁸ This phrasing on its face eliminates the possibility of a subjective standard. If the point of accrual is to be an objective standard, it is determined by the moment at which the final element that makes up the relevant cause of action is satisfied. Furthermore, some bodies of law differentiate the injury-causing act from the occurrence of the resulting injury itself.⁷⁹ Both of these definitions fall within the scope of a subjective injury rule, and the latter simply requires actual harm before the cause of action is said to be complete. For example, the Administrative Procedure Act (“APA”) requires a plaintiff to have suffered an injury before bringing the action, so the statute of limitations will not begin to accrue until the injury occurs, even if that injury did not materialize until many years after the act.⁸⁰ The injury rule has also been held to apply to recovery of damages for claims alleging federal antitrust violations.⁸¹

Existing scholarship identifies several policies in favor of placing time limitations on civil actions that are, for the most part, arguments focused on and in favor of the injury rule for accrual. These policies are based in pragmatic considerations for procedural risks, including minimizing deterioration of evidence, reducing the volume of litigation, and avoiding “retrospective application” of newer legal standards.⁸² The policies also draw upon equitable considerations such as reducing uncertainty, encouraging diligence, and allowing for peace of mind.⁸³ By enacting and interpreting statutes of limitation, the courts and legislatures prioritize these procedural and pragmatic considerations for defendants by foregoing potential recovery in some otherwise meritorious cases. Proponents of the injury rule emphasize the importance of strictly adhering to these policy considerations.

The decisions in several Supreme Court cases this century have strongly articulated that the injury rule is the default method for defining the point of “accrual” in an action, some of which are worth examining to situate the conversation with respect to copyright actions. Foremost, in TRW Inc. v. Andrews, the majority noted that, outside of the historically recognized exception for lawsuits dealing with fraud, the Court has only “recognized a prevailing discovery rule” for latent disease and medical malpractice suits.⁸⁴ The “discovery rule” in this case refers to a broad application of the discovery rule, beyond contexts of fraud or concealment. In his concurring opinion, Justice Scalia referred to the discovery rule as “bad wine of recent vintage,” and pointed to the uniquely “humane” legislation at issue in medical malpractice cases, finding it to be aligned with congressional intent to allow application of a general discovery rule.⁸⁵

Additionally, the majority stated that the Fair Credit Reporting Act (“FCRA”) “does not govern an area of the law that cries out for application of a discovery rule” and the statute specifically provides for the discovery rule in contexts of misrepresentation by the defendant.⁸⁶ Further, the Court’s majority opinion held that the statute itself intended to preclude judicial implication of the discovery rule.⁸⁷ The policy argument in favor of imposing a broad discovery rule on the FCRA—protecting the interests of a consumer who is unaware of an improper credit disclosure and therefore does not bring an action—is not unique enough to outweigh the general, traditional rule of running the limitations period from the point of injury. The Court effectively implied, as Justice Scalia argued, that the discovery rule is an exception to the general incident of injury rule. Absent clear congressional approval in the actual text of the statute, the courts are to assume that the injury rule is the default—the appropriate rule for accrual unless the statute’s text provides otherwise.

The Supreme Court has since emphasized that the injury rule of accrual should be applied as a default to statutes of limitation. In 2013, the Court’s majority opinion in Gabelli v. SEC quoted an 1889 case to argue that a discovery rule should only be applied in limited areas of the law: “[T]he cases in which ‘a statute of limitation may be suspended by causes not mentioned in the statute itself . . . are very limited in character, and are to be admitted with great caution; otherwise the court would make the law instead of administering it.’ ”⁸⁸ In 2019, the Court’s majority opinion in Rotkiske v. Klemm, written by Justice Thomas, quotes Justice Scalia’s concurrence in TRW: “This expansive approach to the discovery rule is a ‘bad wine of recent vintage.’ ”⁸⁹ The statute at issue, the Fair Debt Collection Practices Act (“FDCPA”), included a “violation occurs” provision and did not mention any discovery rule exception.⁹⁰ Like in TRW, the statute did not actually include a discovery rule in its textual language, nor was Congress silent on the definition of an accrual point.

Furthermore, occurrence of an injury gives a plaintiff the ability to sue because it is an essential element of a cause of action in many bodies of law. This principle was explored further in another 2024 Supreme Court decision in Corner Post, Inc. v. Board of Governors of the Federal Reserve System.⁹¹ This case held that a cause of action under the APA does not accrue until the plaintiff suffers an injury, and not simply when an agency action is final.⁹² The Court quoted Rotkiske in stating it is “particularly inappropriate” to read language into a statute of limitations if Congress has, in other statutes, adopted the language that was omitted.⁹³ Corner Post echoes Supreme Court precedent that repeatedly refused to assume interpretations other than an incident of injury default rule when the text of the statute at issue is otherwise silent and the legislative intent does not clearly support an alternative reading, even when lower courts historically held otherwise.⁹⁴

The Discovery Rule

The general discovery rule in statutes of limitation states that a cause of action does not begin to accrue until the party knows or reasonably should have known of the injury. It follows that, under a discovery rule, the statute of limitations does not begin to run until the plaintiff is put on notice regarding the complete and present cause of action. If a party affirmatively knows the cause of action is complete, that party has actual notice. Arguably encompassed in the “reasonably should have known” language is when a plaintiff is charged with having inquiry or constructive notice of the claim. Inquiry notice is imputed on a party when “the information would lead an ordinarily prudent person to investigate the matter further.”⁹⁵ The Supreme Court has referred to this broadly defined discovery rule as a “principle of statutory interpretation.”⁹⁶ The Court will allow for a broad discovery rule when the statute that creates the cause of action explicitly or impliedly calls for its application. For example, the statute of limitations for civil actions provided in the text of the Defend Trade Secrets Act (“DTSA”) is three years from which the misappropriation of a trade secret “is discovered or by the exercise of reasonable diligence should have been discovered.”⁹⁷ The legislature expressly provided for the discovery rule’s application under the DTSA and even clarified that “continuing misappropriation constitutes a single claim of misappropriation.”⁹⁸

Policies that disfavor imposing statutes of limitations share common ground with policies that favor a broader application of the discovery rule, including to promote the adjudication of claims on their merits and to provide recourse for meritorious claims.⁹⁹ There is a general sense of justice that is furthered by a discovery rule that enables a party to enforce their rights upon finding out about the injury or violation of right. If a party does not and cannot discover the injury, plaintiffs are inclined to argue they should still be entitled to a judgment on the merits and recovery. However, because relying on a plaintiff’s individualized circumstances delays the point of accrual, widespread allowance of a discovery rule has the potential to undermine the original intent behind statutes of limitation.

The first bodies of law in which the discovery rule was recognized by the Court as necessary for the statute of limitations are latent disease and medical malpractice. In Urie v. Thompson, the Supreme Court noted that “the afflicted employee can be held to be ‘injured’ only when the accumulated effects of the deleterious substance manifest themselves” and emphasized the injustice in barring a claim under the Federal Employers’ Liability Act through a comparison to latent disease discovered in a workers compensation claim.¹⁰⁰ The discovery rule, working in its best intended purpose, allows relief for an injured party whose injury did not “manifest” within the statute of limitations period. The Court recognized that legislation, “humane” by nature, would not have intended to bar recovery because of “blameless ignorance.”¹⁰¹ However, once armed with the “critical facts that he has been hurt and who has inflicted the injury,” the plaintiff is responsible for promptly bringing the action.¹⁰² Therefore, even in a medical malpractice context, the plaintiff must be reasonably diligent in pursuing the cause of action once the injury can be known.

Distinguishing between harm and the point of injury is useful in such context. In a latent injury or medical malpractice case, the injury-causing event could take place at any period of time before the harm physically presents itself. Additionally, under Quinton v. United States, a medical malpractice claim brought under the Federal Tort Claims Act “[could] be maintained within two years after the claimant discovered, or in the exercise of reasonable diligence should have discovered, the existence of the acts of malpractice upon which his claim is based.”¹⁰³ Noting that states have carved out their own exceptions to statutes of limitation for medical malpractice cases, the Fifth Circuit recognized a need for uniformity under this federal act to align with congressional intent.¹⁰⁴ Relying heavily on the reasoning in Urie, the Fifth Circuit concluded that the plaintiff could not have known of the medical negligence at the time it occurred.¹⁰⁵ In these cases, it would be against public policy to prevent recovery when a plaintiff could not have reasonably discovered the complete cause of action. On one hand, policy considerations demanding a discovery rule specifically when a harm has not yet manifested itself could be distinguished from a case in which the harm and point of injury are one and the same, but the plaintiff remains blamelessly ignorant until the statute of limitations period has lapsed. On the other hand, if harm is defined as an essential element to the relevant cause of action, there is no need to separate the two concepts.

Outside of medical injury contexts, courts look to statutory interpretation and legislative intent when deciding whether to imply a broad discovery rule in distinct bodies of law. The Supreme Court has stated that “[w]e must enforce plain and unambiguous statutory language.”¹⁰⁶ Under the Employee Retirement Income Security Act (“ERISA”), an employee with “actual knowledge” must bring suit “within three years of gaining that knowledge.”¹⁰⁷ In such case, the ERISA statute itself defines the scope of the discovery rule to preclude even the limitations that come with inquiry notice. The Court determined that “actual knowledge” could not be met through proof of sufficient disclosure.¹⁰⁸ Clear congressional intent, gleaned through the language of the ERISA statute indicates that arguments stating a party “should have known” are insufficient. When Congress recognizes a discovery rule through the language of a statute, unless explicitly construed otherwise, the courts acknowledge that the discovery rule encompasses “not only once a plaintiff actually discovers the facts, but also when a hypothetical reasonably diligent plaintiff would have discovered” the facts constituting the cause of action.¹⁰⁹ In Merck & Co. v. Reynolds, the Court clarified the general definition of “discovery” for securities fraud cases—a cause of action in which the statute’s language specifically calls for a discovery rule—includes the point at which “the facts would lead a reasonably diligent plaintiff to investigate.”¹¹⁰ The Supreme Court is generally reluctant to read a broad discovery rule into a statute outside of contexts in which the rule is explicit in the text or obviously intended by the legislature, such as in actions arising from an ERISA violation, medical malpractice, or latent disease.

Limiting the Discovery Rule to an Equitable Tolling Exception

While a broad discovery rule is most commonly limited to contexts in which legislative intent or statutory language clearly calls for its application, there is longstanding consensus in support of applying the discovery rule to situations involving equitable concerns such as fraud or concealment. Thus, the Supreme Court has characterized this application of the discovery rule standard as “an equitable doctrine” as opposed to a matter of statutory interpretation.¹¹¹ The Supreme Court has distinguished fraud cases from “traditional equitable tolling”¹¹² and “has repeatedly characterized these decisions as applying an equity-based doctrine.”¹¹³ Because the fraudulent concealment exception is so important to maintaining equity for a plaintiff’s ability to bring a cause of action, it is essentially a component of the default incident of injury rule. However, the Supreme Court has distinguished between “equitable tolling” and a “fraud-based discovery rule,” noting that tolling is an extraordinary exception that temporarily pauses a limitations period after it commences while the fraud-based discovery rule “sets the time at which a claim accrues.”¹¹⁴

For lawsuits involving fraud, the Supreme Court has long held that the statute of limitations commences upon discovery.¹¹⁵ In a case from 1946, the Supreme Court recognized use of the discovery rule in cases involving injury from fraud in which a plaintiff was unaware “without any fault or want of diligence or care on his part,” stating that “the bar of the statute does not begin to run until the fraud is discovered.”¹¹⁶ The Court further noted that “[t]his equitable doctrine is read into every federal statute of limitation.”¹¹⁷ The Court has since reiterated the presumption that a discovery rule applies in cases of fraud or concealment.¹¹⁸ Beyond textual arguments, courts weigh context-specific policy considerations in determining whether application of a discovery rule expanded beyond fraud or concealment is appropriate. In Wolk v. Olson, the Pennsylvania Eastern District Court, drawing upon reasoning from a number of jurisdictions, held that there is no place for a discovery rule in the statute of limitations period for mass-media defamation actions.¹¹⁹ The court noted that a discovery rule is intended for cases in which the plaintiff’s injury “ ‘is not immediately ascertainable.’ ”¹²⁰ By its very nature, mass-media defamation is public and highly unlikely to be hidden from the prospective plaintiff beyond the legislatively determined limitations period. Ultimately, adopting an expansive use of the discovery rule, beyond fraud or concealment, requires explicit or implied statutory authorization that aligns with relevant policy considerations.

Additionally, courts have also limited the scope of a fraud-based discovery rule when appropriate to maintaining the purpose of the limitations period. In Rotella v. Wood, the Supreme Court rejected a “pattern discovery” rule in civil actions arising under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), while still acknowledging that “federal statutes of limitations are generally subject to equitable principles of tolling.”¹²¹ Because “RICO patterns will involve fraud in many cases,” the Court determined that discovery in this context would undermine the congressional objective to encourage swift, timely actions.¹²² The Court drew a helpful comparison to their reasoning for limiting the discovery rule in medical malpractice cases: “[W]e have been at pains to explain that discovery of the injury, not discovery of the other elements of a claim, is what starts the clock.”¹²³ Courts take extreme caution to not expand the discovery rule in a way that would undermine the core intended purpose of a given statute of limitation.

Beyond fraud or concealment, some courts have also recognized a limited, equity-based discovery rule in cases that involve incapacitation. In Clifford v. United States, an action under the Federal Tort Claims Act alleging that the plaintiff had fallen into a permanent coma was not barred by statute of limitations because “the very negligence alleged in the complaint has kept plaintiff from even knowing of his injury.”¹²⁴ The limitations period did not begin to run in this case until the plaintiff was appointed a legal guardian.¹²⁵ This limited-scope discovery rule operates with the same function as the fraud-discovery rule because a defendant is allegedly at fault for a plaintiff’s inability to assert his claim. Similarly, the Tenth Circuit noted the importance of determining whether a plaintiff’s lack of awareness resulted from the government doctor’s malpractice before allowing application of the discovery rule.¹²⁶ These cases, each within the federal medical malpractice context, denote an understanding that incapacitation resulting by fault of the defendant creates an appropriate context for employing the discovery rule. Additionally, the First Circuit took care to note that, in Title VII actions, “there is no absolute rule that would require tolling whenever there is mental disability.”¹²⁷

Courts also have not extended the discovery rule to cases in which parents are already required to act on behalf of their minor children, distinguishing appointment of a guardian as an appropriate point of accrual when the plaintiff could not otherwise know of their injury.¹²⁸ This reiterates the cautious approach courts use when establishing appropriateness for discovery-based tolling, even in limited equity-based contexts.

III. DISCUSSION: WHEN DOES A CLAIM ACCRUE UNDER THE COPYRIGHT ACT?

A. The Well-Established Copyright Discovery Rule

The federal district courts and courts of appeal, and arguably the United States Congress, have authorized the continued application of the discovery rule to the copyright statute of limitations. But what is the appropriate scope of its application to copyright disputes: an expansive, general approach derived from judicial precedent or a limited, equity-based exception to the default incident of injury rule?

Courts are widely and increasingly recognizing a place for the discovery rule in copyright litigation. During oral argument for Warner Chappell Music, Inc. v. Nealy, respondents noted that the Circuit courts of appeal have found a discovery rule exists in copyright “for forty years,” and in that time, Congress amended the Copyright Act seventy-nine times.¹²⁹ Because courts have continued to apply a discovery rule, some argue that Congress’s intent can be inferred from their lack of action taken to prevent application of the rule.

In 2004, the Ninth Circuit formally adopted application of the discovery rule to the Copyright Act in Polar Bear Productions v. Timex Corp., interpreting the definition of “accrue” to state that “the three-year clock begins upon discovery of the infringement,” granted that the plaintiff was unaware of the infringement and “that lack of knowledge was reasonable under the circumstances.”¹³⁰ Notably, Polar Bear was decided after the Supreme Court decided TRW, another case out of the Ninth Circuit, which rejected any default application of a general discovery rule to the FCRA and actions arising under a statute that is otherwise silent.¹³¹ The Third Circuit in William A. Graham Co. v. Haughey concluded that “use of the discovery rule comports with the text, structure, legislative history and underlying policies of the Copyright Act.”¹³² In Graham Co., the court noted that at the time eight “sister courts of appeals” had applied the discovery rule to civil copyright actions.¹³³ Since then, the circuit courts have further acknowledged, to some extent, the existence of a discovery rule in copyright.¹³⁴ The Seventh Circuit in Chicago Building Design, P.C. v. Mongolian House, Inc. stated that “in copyright cases the discovery rule is a common-law gloss.”¹³⁵ This case acknowledged TRW and other Supreme Court cases outside of copyright by characterizing the incident of injury rule as the traditional default. Moreover, Nimmer on Copyright—the authoritative treatise on American copyright law—indicates consensus among appellate courts regarding an equity-based discovery rule in copyright cases of fraud or concealment: “[T]here is no doubt that the copyright statute of limitations is tolled by ‘fraudulent concealment’ of the infringement.”¹³⁶

In contrast, within the Second Circuit is a 2004 case, Auscape International v. National Geographic Society, which closely examined the discovery versus injury rule debate in a post-TRW context.¹³⁷ This case has largely not been relied upon outside of the Southern District of New York and lies in contrast with courts that have applied the discovery rule to copyright including the Second Circuit, but its strong textualist argument against a general discovery rule aligns closely with Supreme Court opinions regarding statutes of limitation in other bodies of law. Operating under the rule from TRW that “the starting point in construing a statute must be the text,” Judge Kaplan examined legislative history, statutory language, policy considerations, and case law in determining that the injury rule governs the copyright statute of limitations.¹³⁸ The decision did acknowledge that, unlike the FCRA in TRW, section 507(b) is “not so illuminating as to Congress’ intent.”¹³⁹ Judge Kaplan concluded, based on hearings conducted at the time at which the language of section 507(b) was adopted by Congress, that the limitations period was intended to “accrue” beginning on the date of the infringement.¹⁴⁰ The decision relied partly on the fact that Congress considered whether to adopt equity-based exceptions to the injury rule such as for fraud or concealment.¹⁴¹ Similarly, the House Judiciary Committee’s decision to not outline equitable exceptions in the statute because “[f]ederal district courts, generally, recognize these equitable defenses anyway,” is arguably supportive of the conclusion in Auscape.¹⁴² If Congress did intend the basic rule of accrual to be a discovery rule, considering equitable exceptions would have been unnecessary and redundant.

Largely ignoring the reasoning in Auscape, the Second Circuit held in Psihoyos v. John Wiley & Sons, Inc. that the discovery rule should be used in civil copyright actions.¹⁴³ Drawing upon reasoning of “sister Circuits,” the court in Psihoyos distinguished copyright from FCRA actions in TRW: “[T]he text and structure of the Copyright Act, unlike the FCRA, evince Congress’s intent to employ the discovery rule, not the injury rule.”¹⁴⁴ Therefore, the federal circuit and district courts widely approve of the discovery rule for accrual in copyright, creating a stark contrast with Supreme Court reasoning on the same topic in other bodies of law.¹⁴⁵

Special Considerations for Continuous Infringement

Oftentimes in the copyright context, infringement and the injuries resulting from an act of infringement are not confined to a singular identifiable moment in time. For example, if an image that infringes on someone’s copyright is published by a news company in multiple online articles at different times, it would constitute a continued infringement. Cases of continuous infringement further complicate attempts to define the period of accrual through questions regarding what acts can be included and are recoverable as damages. There were initially two methods of measuring the three-year statutory period: the “continuing wrong” and the “separate-accrual” rules.¹⁴⁶

Under a continuing wrong approach, the moment of injury up until the final act of infringement is treated as a single, undivided whole, recoverable in its entirety if timely. In Taylor v. Meirick, the Seventh Circuit articulated the continuing wrong approach: “[T]he statute of limitations does not begin to run on a continuing wrong till the wrong is over and done with.”¹⁴⁷ This approach is notably problematic because it encourages plaintiffs who are aware that their copyright has been infringed upon to wait toward the end of the limitations period in an effort to maximize recoverable damages. Although this is not applicable to all cases, generally as more time passes, a continuing infringer accumulates a larger benefit, thus increasing actual damages and profits. This incentive is contrary to the legislative purposes articulated by Congress when enacting the copyright civil statute of limitations in 1957.¹⁴⁸ A factual comparison denoting this problematic implication was not present in Taylor because the case involved intentional concealment and called for application of the discovery rule.¹⁴⁹ The courts over time disfavored the continuing wrong approach in causes of action for infringement,¹⁵⁰ and by 2014 the Supreme Court embraced the separate accrual rule.¹⁵¹

The separate accrual rule treats each unique act of infringement as distinct points of accrual, creating a rolling look back period of three years from the date the complaint is filed. This approach to continuing infringement cases was adopted in Roley v. New World Pictures, Ltd., in which the Ninth Circuit held that “an action may be brought for all acts that accrued within the three years preceding the filing of the suit.”¹⁵² Because a statute of limitations period is a restriction on the remedy, not the right, the limitations period in a continuous infringement ought to run from the last instance of that infringing conduct, not the first. In other words, the separate accrual approach does not preclude an entire action if its initial infringing act falls outside of the time limitation period. Accrual in copyright looks back from the point at which a complaint is filed.

B. Supreme Court Weigh-In: Pushback or Silent Authorization?

The Supreme Court has specifically clarified the copyright statute of limitations in two cases: Petrella v. Metro-Goldwyn-Mayer, Inc.¹⁵³ and Warner Chappell Music, Inc. v. Nealy.¹⁵⁴ Both cases have declined to directly answer the question of whether an injury rule or discovery rule governs the statute of limitations in a basic cause of action—one without an obvious demand to account for equitable considerations—under the Copyright Act. This silence, or lack of clarification, on the issue has impliedly authorized appellate courts to apply the discovery rule beyond the traditional equity-based tolling contexts.

Axing the Doctrine of Laches: Petrella v. Metro-Goldwyn-Mayer, Inc.

In a 6–3 decision for the petitioner and majority opinion authored by Justice Ginsburg, the Court held that laches “cannot be invoked to preclude adjudication of a claim for damages brought within the three-year window.”¹⁵⁵ Laches is an equitable doctrine that allows a defendant to argue that the plaintiff unfairly delayed in bringing the action and the court should refuse to grant relief.¹⁵⁶ The Court went further to state that “[a]s to equitable relief, in extraordinary circumstances, laches may bar at the very threshold the particular relief requested by the plaintiff.”¹⁵⁷ The question presented in Petrella is adjacent to the ultimate discovery rule question, and was partially clarified by Warner Chappell.

The facts of this case are essential to contextualizing the scope of its holding. The case centers around the film “Raging Bull” directed by Martin Scorsese, depicting the life of boxer Jake LaMotta.¹⁵⁸ LaMotta worked with his friend Frank Petrella to create two screenplays and a book telling his life story.¹⁵⁹ In 1978, a subsidiary of Metro-Goldwyn-Mayer, Inc. (“MGM”) acquired motion picture rights to both screenplays and the book and subsequently released Raging Bull in 1980, which became widely successful.¹⁶⁰ Frank Petrella died the following year, and his “renewal rights reverted to his heirs, who could renew the copyrights unburdened by any assignment previously made by the author.”¹⁶¹ As stated above, the right to renew a copyright only applies to works created prior to the 1976 Copyright Act, which eliminated the renewal requirement and made the copyright protection a bit more author-friendly.

The petitioner in the case was Paula Petrella, Frank Petrella’s daughter, who remained the sole owner of the copyright in the 1963 screenplay following a timely renewal in 1991.¹⁶² Years later, Petrella informed MGM that “[e]xploitation of any derivative work” infringed on the copyright, and MGM denied the validity of these claims.¹⁶³ In 2009, Petrella filed suit in the U.S. District Court for the Central District of California, alleging MGM infringed and continued to infringe on her copyright by “using, producing, and distributing Raging Bull,” a derivative work.¹⁶⁴ Petrella, recognizing the statute of limitations three-year look-back period, only sought relief for infringing acts since January 6, 2006.¹⁶⁵ MGM then moved for summary judgement on grounds that included the equitable doctrine of laches due to “Petrella’s 18-year delay, from the 1991 renewal of the copyright on which she relied, until 2009, when she commenced suit.”¹⁶⁶ Both the district court and the Ninth Circuit dismissed the case under the doctrine of laches due to unfair expectations-based prejudice on the defendant who, in those 18 years, “made significant investments in exploiting the film.”¹⁶⁷

In evaluating this question of whether laches may be invoked to bar remedies in a copyright infringement action, the Supreme Court stated that the doctrine of laches was originally used in state statutes of limitations prior to the 1957 amendment to the copyright statute of limitations, noting that such doctrine was “ ‘merely filling a legislative hole’ ” and Congress “filled the hole” with the three-year look-back limitations period.¹⁶⁸ The majority then defined the point of accrual: “A copyright claim thus arises or ‘accrue[s]’ when an infringing act occurs.”¹⁶⁹ The majority then employed the “widely recognized” separate-accrual rule to demonstrate that “each infringing act starts a new limitations period.”¹⁷⁰ For instances of continuing infringement, the Court stated that the limitations period allows plaintiffs to, during the copyright term, “gain retrospective relief running only three years back from the date the complaint was filed.”¹⁷¹ The majority opinion did not fault a plaintiff for deferring suit “until she [could] estimate whether litigation is worth the candle,” noting that the right to challenge infringement under the separate-accrual rule does not demand complete immediacy.¹⁷² In rejecting reasoning for laches due to potential evidentiary prejudice, the Court cited to the fact that Congress intended to allow copyright renewal rights to pass to heirs and “must have been aware that the passage of time and the author’s death could cause a loss or dilution of evidence.”¹⁷³

In 2017, the Supreme Court evaluated the doctrine of laches in the context of the patent statute of limitations.¹⁷⁴ The Court drew upon its reasoning in Petrella in holding that the equitable doctrine of laches cannot be invoked in an action brought under the United States Patent Act because Congress elected to enact a specific statute of limitations period.¹⁷⁵ This case noted that Petrella spoke to a separation of powers issue due to the fact that Congress provided for a definitive rule when an action may be considered timely.¹⁷⁶ The Court’s reasoning regarding the doctrine of laches as applied to the copyright statute of limitations had a direct impact on the availability of the laches defense for patents—a similar, but distinct body of law—based on the language of the statute.

Beyond the doctrine of laches context, Petrella calls into question cases involving continuing infringement in which the discovery rule is present. Petrella left open the question of whether a blamelessly ignorant plaintiff who satisfies the discovery rule could recover for damages incurred more than three years before the date of filing suit. On its face, the answer appears to be in the negative. The Court clarified that the trigger for infringement is “an infringing act committed three years back from the commencement of suit,” not the initial act of infringement itself.¹⁷⁷ However, the discovery rule question was and could not have been answered by the facts presented in Petrella because the plaintiff was not seeking to recover under the discovery rule. Ten years later, a new case provided some clarity regarding Petrella’s somewhat perplexing ruling.

Removing the Separate Damages Bar: Warner Chappell Music, Inc. v. Nealy

In a 6–3 decision with a majority opinion authored by Justice Kagan, the Supreme Court held that there is no separate bar to recovery of damages for an otherwise timely infringement action.¹⁷⁸ The Court “assume[d] without deciding” that a copyright claim is timely if it meets the discovery rule.¹⁷⁹ Despite the Court limiting the scope of the question presented to a purely damages-based issue, the oral arguments and amicus curiae briefs submitted in support of the parties focused heavily on the discovery rule question.¹⁸⁰ For instance, counsel for petitioner noted that “there is no consensus in the courts of appeals about the scope of the discovery rule,” but there “is consensus about the existence of a discovery rule.”¹⁸¹ Additionally, amicus curiae briefs addressed multiple sides of the debate: a petition by the National Society of Entertainment and Arts Lawyers argued in favor of a general discovery rule,¹⁸² the Recording Industry Association of America articulated the circuit split and requested resolution of the conflict,¹⁸³ and the United States Chamber of Commerce argued that precedent and policy considerations weigh against the injury rule.¹⁸⁴ The decision regarding damages and the brief dissenting opinion’s ultimate focus on the discovery rule question nonetheless have implications for determining the appropriate point of accrual.

The facts of the case begin in 1983 when plaintiff-respondent Sherman Nealy formed a “short-lived music venture” called Music Specialist, Inc. with Tony Butler in which the two collaborators recorded and released the works at issue.¹⁸⁵ The venture dissolved and Nealy subsequently went to prison for drug-related offenses, serving two separate terms from 1989 to 2008 and then from 2012 to 2015.¹⁸⁶ During Nealy’s incarceration and without his knowledge, Butler entered an agreement to license works from the Music Specialist catalogue with defendant-petitioner Warner Chappell Music, Inc.¹⁸⁷ For example, one song from the catalogue was interpolated in the song “In the Ayer” by Flo Rida, a commercially successful release that reached the top ten of the Billboard chart, sold “millions of copies,” and was licensed to several television shows.¹⁸⁸ After his release from prison in 2015, Nealy filed this lawsuit against Warner Chappell in 2018, seeking damages and profits for infringing conduct dating back to 2008.¹⁸⁹ Warner Chappell did not challenge Nealy’s assertion that the discovery rule governed his infringement claims, but the label instead argued he could only recover for damages occurring in the three years prior to filing suit.¹⁹⁰ For this reason, the validity of the discovery rule to copyright actions did not fall within the scope of the question presented to the Supreme Court.

The district court in Florida sided with Nealy, relying on the Second Circuit decision in Sohm v. Scholastic, Inc., creating a separate damages bar for old, timely infringement actions.¹⁹¹ The Eleventh Circuit, assuming Nealy’s claims were timely under the discovery rule, reversed the district court and “reject[ed] the notion of a three-year damages bar on a timely claim,” noting that this reasoning “would gut the discovery rule by eliminating any meaningful relief.”¹⁹² On appeal, the Eleventh Circuit relied instead on a Ninth Circuit decision, Starz Entertainment, LLC v. MGM Domestic Television Distribution, LLC, which stated that a timely claim under the discovery rule may obtain retrospective relief even if it occurred more than three years prior to the filing of the lawsuit.¹⁹³ The Supreme Court in Warner Chappell resolved the Sohm-Starz circuit split by adopting the Ninth Circuit’s approach.¹⁹⁴ The Court reasoned that “[i]f any time limit on damages exists, it must come from the Act’s remedial sections. But those provisions likewise do not aid a long-ago infringer.”¹⁹⁵ Because no statutory language existed that limited monetary recovery, a timely copyright owner is free to seek actual damages and profits.¹⁹⁶ The Court criticized the Second Circuit’s reasoning for imposing a damages bar as “self-defeating” because that circuit recognizes a discovery rule but essentially takes away any meaningful value from it.¹⁹⁷ Thus, current law regarding damages recoverable under the Copyright Act for continuing infringement can extend beyond the three-year lookback period, but only if the discovery rule applies within the facts of the case and is properly satisfied when the action commences.

Perhaps the most confusing aspect of Warner Chappell is that it, on the surface, appears to contradict copyright precedent favoring the separate-accrual rule in cases of continuing infringement. Both Petrella and Warner Chappell effectively adopt a rolling approach to continuing infringement.¹⁹⁸ The damages bar created in Sohm took the Petrella holding “out of context,” by applying it beyond a situation in which the plaintiff had “no timely claims for infringing acts more than three years old.”¹⁹⁹ However, the Court read Warner Chappell in harmony with Petrella through the assumption that the discovery rule did in fact apply.

Implicit Authorization

The current state of the copyright statute of limitations appears to implicitly authorize application of the discovery rule. The dissenting opinion in Warner Chappell, authored by Justice Gorsuch and joined by Justice Thomas and Justice Alito, provides an interesting window into the potential direction the Court may go if it decides to take up the direct question regarding the role of the general statutory-based discovery rule application in copyright actions. The dissent argued that the entire decision in Warner Chappell is a “dead letter” due to the failure of the Court to address the “logically antecedent question” of whether the general discovery rule has any proper place in the Copyright Act.²⁰⁰ Justice Gorsuch stated that “the [Copyright] Act almost certainly does not tolerate a discovery rule,” and that he would have dismissed the case as “improvidently granted.”²⁰¹ In citing another part of the Petrella decision, the dissent pointed out that the Supreme Court “ordinarily” states that the point of accrual is when “a plaintiff has a complete and present cause of action,” equating this to “when the plaintiff can file suit and obtain relief.”²⁰² The dissenting opinion further stated, citing to Rotkiske and TRW, that the incident of injury rule is the “ ‘standard rule’ ” for interpreting statutes of limitation, and “[u]nless the statute at hand directs otherwise,” the discovery rule should be restricted to cases of fraud or concealment.²⁰³ The dissent argued that the Court has explicitly stated the discovery rule is not “ ‘applicable across all contexts’ ” and has “long warned lower courts” against expansive application of the discovery rule.²⁰⁴ This dissenting opinion sharply criticizes any further entertainment of the general discovery rule in copyright, finding it unsupported by Supreme Court precedent regarding statutes of limitations and unsupported by the language and intent of the Copyright Act.

While Warner Chappell was being decided, the Supreme Court was presented directly with this “logically antecedent” discovery rule question. A case arising out of the Fifth Circuit, Martinelli v. Hearst Newspapers, LLC, presented the question of “whether the Copyright Act’s statute of limitations for civil claims incorporates a so-called ‘discovery rule’ that does not appear in the statute.”²⁰⁵ On May 20, 2024, just eleven days following the Warner Chappell decision, the Supreme Court denied certiorari in Martinelli.²⁰⁶ The Fifth Circuit formally recognized that the discovery rule governs accrual in copyright actions in Graper v. Mid-Continent Casualty Co. in 2014.²⁰⁷ The Martinelli case centers around seven photographs taken by plaintiff-respondent Antonio Martinelli of Lugalla, Ireland, also known as the “Guinness Castle,” which were commissioned by Sotheby’s International Realty when the property was listed for sale in 2015.²⁰⁸ Defendant-petitioner Hearst Newspapers used the photographs in a 2017 web-only article, published on several news websites.²⁰⁹ Martinelli did not immediately discover the use of his photographs—his earliest discovery was in 2018—and Hearst stipulated that he could not have discovered the infringing use with reasonable diligence at any earlier point in time.²¹⁰ Martinelli brought suit in 2021, “within three years of discovering the infringements but more than three years after the infringements occurred.”²¹¹ Based on Graper, the Fifth Circuit affirmed the district court decision that concluded Martinelli’s claims were timely brought.²¹² Further, the Fifth Circuit reasoned that Petrella and Rotkiske did not “unequivocally overrule” their use of the discovery rule in copyright cases because they were restricted to the specific contexts of the case and statute at issue.²¹³

Similarly, the Supreme Court recently denied certiorari in Michael Grecco Productions, Inc. v. RADesign, Inc. on June 16, 2025.²¹⁴ Plaintiff Michael Grecco Productions alleged that defendant Ruthie Davis used copyrighted photos without authorization in connection with her designer shoe business.²¹⁵ The district court refused to apply the discovery rule based on the plaintiff’s “sophistication,” concluding that they should have discovered the infringement.²¹⁶ The Second Circuit reversed and rejected the “ ‘sophisticated plaintiff’ exception to the discovery rule,” and the Supreme Court subsequently declined to review the case.²¹⁷ Like in Martinelli, petitioners in this case sought clarification from the Court on whether the discovery rule applies in copyright statutes of limitations. This additional reluctance of the court to take up the direct discovery rule question indicates that the Justices may want to see how the lower courts approach the issue following Warner Chappell. Further, there may be disagreement among the Justices as to whether continued allowance of the discovery rule to be applied as currently done by lower courts is an issue at all, which suggests insufficient support by members of the Court to grant certiorari.²¹⁸

Because the Supreme Court has chosen not to decide the issue of the discovery rule in copyright, despite opportunity to do so, the Court has effectively silently authorized application of the discovery rule, at least for the time being. Some practitioners speculate that the decision in Warner Chappell will encourage more copyright actions to be brought under the discovery rule due to the availability of unlimited retroactive recovery if successful.²¹⁹ In the meantime, Warner Chappell put an end to an immediate concern for forum shopping and incentivized infringement that was a consequence of the damages-based circuit split under Sohm.²²⁰ Because this

question remains unanswered, practitioners also point to the value of preserving all defenses to copyright infringement actions for clients.²²¹

C. Proposing a Framework for Copyright: Why the Supreme Court Should Not Answer the Discovery Rule Question

A Marriage of Precedents

The only interpretation of “accrual” that balances the existing divide in judicial opinion between the Supreme Court and Circuit Courts is narrowing the scope of the discovery rule to the equity-based framework applicable to limited contexts such as fraud or concealment.²²² This framework proposes a middle ground between Supreme Court pushback against expansive application of the discovery rule and the longstanding, more than forty years,²²³ of approval for application of the discovery rule by federal appellate courts in copyright cases. Should the Supreme Court decide to take this issue head-on, as advocated by Justice Gorsuch in his dissent to Warner Chappell, they are unlikely to find that a statutory-based general discovery rule exists under the Copyright Act due to an absence of (1) “plain and unambiguous statutory language”²²⁴ or (2) clear legislative intent.²²⁵ When looking exclusively at Supreme Court jurisprudence regarding the discovery rule in general, support for an injury rule default is even stronger. Statutory language and Supreme Court precedent point toward the discovery rule as “an equitable doctrine,” as defined in Rotkiske, indicating its appropriate role is and should be limited to equitable contexts like fraud or concealment.²²⁶ As an example, the Court stated that “the most natural reading” of 42 U.S.C. § 2462—which defines its statute of limitations “from the date when the claim first accrued” much like the language in the Copyright Act’s section 507(b)—is to define accrual from the point at which the conduct occurs.²²⁷

The language that stipulates the civil copyright limitations period specifies that it begins to run “after the claim accrued,” which, when placed next to the language used in section 507(a) for criminal actions—“after the cause of action arose”—creates a distinction.²²⁸ The assumption that the Copyright Act tolerates a discovery rule in civil actions is reasonable when compared to the statute of limitations for criminal copyright actions in which Congress clearly intended the time bar to run from the point of infringement, the moment when the copyright owner was injured. On one hand, this difference in language reflects the prioritization of finality and certainty in criminal cases. On the other, Congress’s failure to define accrual may leave room for the courts to read in a broad- or equity-based interpretation of the discovery rule. The district court decision in Auscape utilized this reasoning to reach the opposite conclusion,²²⁹ but the Second Circuit remained unconvinced.²³⁰

Moving to legislative intent, the congressional weigh-in at the time that the three-year period was adopted reflects a desire to allow a discovery rule in cases that demand traditional equitable principles, namely fraud and concealment. Thus, the Warner Chappell dissenting opinion, broadly stating that the Copyright Act “almost certainly does not tolerate a discovery rule,” likely intended to limit its scope of application to traditional equitable tolling contexts.²³¹ Congress specifically addressed this question in 1957 when drafting the civil statute of limitations. The Senate and House agreed that plaintiffs will expect to have available to them the equitable considerations of their local district court.²³² However, the intentional silence in the statute’s text and discussion of “equitable” considerations is supportive of a conclusion that the incident of injury rule governs, subject to a limited discovery rule in cases of fraud or concealment. The House Judiciary Committee specifically identified fraud or concealment as a minimal problem in copyright.²³³ This acknowledgement lends support to the assumption that any leeway available for a discovery rule at the time was intended for only equity-based situations.

Unlike with the FCRA in TRW, the Copyright Act does not mention any specific equitable scenarios that would authorize or dispose of a discovery rule. Because the 1957 Senate and House Reports both have language indicating that the limitations period is subject to equitable considerations, the statutory intent was likely to establish an injury rule, subject to those considerations. Allowing for equitable tolling while also imposing the discovery rule is redundant, because the existence of a general discovery rule renders the inclusion of such equitable exceptions obsolete. Perhaps Congress did not want to exclude tolling in situations outside of fraud or concealment if necessary for fairness. However, Congress also assumed that people have an expectation that “equitable consideration[s] of the locality” will apply in court when declining to enumerate applicable equitable situations in the statute.²³⁴

Moreover, the Supreme Court does not allow for a discovery rule to be read into a statute that is otherwise completely silent on the issue, outside of cases where “humane” policy considerations demand it such as medical malpractice or latent disease.²³⁵ The Court has previously disregarded lower court’s application of the discovery rule when a statue is silent on the issue, specifically to civil RICO actions.²³⁶ The Court, due to its clear precedent in several other bodies of law, may either articulate a limited scope, fraud-based discovery rule or plainly state that the incident of injury rule governs because equitable considerations of fraud or concealment are “read into every federal statute of limitation.”²³⁷ This is an alternative explanation for Congress’s decision to not specify equitable considerations in the copyright statute of limitations. While limiting the discovery rule to equitable exceptions is not sufficient to account for copyright owners who are blamelessly ignorant of their claims, to say that copyright is of the bodies of law better suited to a general discovery rule because it cannot appropriately compensate plaintiffs is not wholly convincing and lacks support from both the statute itself and from Supreme Court reasoning. However, closer examination of the policies underlying such an argument provides necessary insight.

Fitting the Unique Demands of Copyrightable Works

Drawing upon language from TRW, does copyright infringement “ ‘cry for a discovery rule’ ”²³⁸ in a similar enough way to other bodies of law such as medical malpractice? Copyright and its policy considerations are arguably not unique enough to demand divergence from the injury rule default present in most other legal contexts. Copyright, however, protects distinct rights that serve the specific ends of promoting creation of original and artistic works. The intent of copyright protection is to encourage creation of expressive works for the greater public benefit, which has authorial and utilitarian considerations. History of copyright stemming from the Statute of Anne emphasizes artist rights and protections, but the American approach also

places much of its value in a utilitarian economic perspective focused on the public domain and limiting monopolies.

Disincentivizing copyright infringement in the creative industries is not a black and white issue, and costly claims of infringement can be counterintuitive to this aim. Limiting the scope of the discovery rule is not necessarily anti-creator. For example, creators can be on both sides of an infringement litigation, like Warner Chappell in which both the plaintiff and defendant represented interests of a musical artist.²³⁹ However, because this body of law recognizes the intrinsic importance of protecting rights of individual authors, some authors would greatly benefit from a discovery default, such as independent authors who operate without publishers that ensure proper registration and policing of a work’s copyright interest.²⁴⁰ These interests create a gray area, and neither a prohibition nor a general application of the discovery rule may properly suit copyright law. The injury rule default, subject to equitable exceptions, serves as an effective mechanism to prevent surprise litigation while promoting fairness in extenuating circumstances.

To address the argument that the demands of copyright law are better suited to a discovery rule due to the difficulties owners face in identifying infringement, it is necessary to place policy arguments within the context of other bodies of law. Like the petitioner in Warner Chappell, who was incarcerated during the time at which he did not discover the infringement, many facts reveal imperfections with limiting the discovery rule to equitable exceptions for fraud and concealment. Some bodies of law have grappled with incapacitation as an additional exception for tolling,²⁴¹ but there remains reluctance to expand for this and for alike contexts. Copyright is not an area of law where “humane” considerations demand tolling like that of life-threatening illnesses that manifested sometime after the occurrence of an injury-causing event.²⁴²

Furthermore, the idea that copyright infringement is an inherently public act could also support an argument for allowing continued application of the discovery rule. The modern media landscape has dramatically changed beyond what was conceivable in 1957. The internet, streaming services, and social networking platforms have made information extremely accessible. It is arguably easier than ever both for a copyright owner to know of infringements of their works and for infringers to engage in unauthorized uses of such works. The modern communication landscape similarly makes it easier for a copyright owner to discover an infringing act. However, trade-offs remain because it has become far more challenging to monitor for infringement as a result of the sheer volume of online content. The case, Wolk v. Olson, and the inherently public nature of defamation adds to the argument that discovery-based accrual is reserved for contexts in which a plaintiff’s injury “ ‘is not immediately ascertainable.’ ”²⁴³ Copyright infringement is not inherently public to the same extent as defamation, but infringement is largely ascertainable, which was acknowledged by Congress at the time it adopted the three-year limitations period.²⁴⁴ However, as recognized in Graham Co., Congress could have intended to leave space for application of the discovery rule for cases in which infringement was not public by asking “whether the injured party has ‘reasonably prompt notice’ of infringement.”²⁴⁵ Further, the violation may not be so public for claims of copyright ownership. In some circuit courts, application of the discovery rule has evolved differently for copyright ownership or authorship disputes and copyright infringement disputes.²⁴⁶

The type of notice a copyright owner is charged with is also relevant in some jurisdictions for defining the scope of the discovery rule. Interestingly, the Second Circuit decision in Michael Grecco rejected the idea that the discovery rule is unavailable to “sophisticated” plaintiffs.²⁴⁷ Citing Psihoyos and Warner Chappell, which both authorize the discovery rule of accrual, the Second Circuit in Michael Grecco reasoned that regardless of a party’s experience with copyright litigation, they are entitled to application of the discovery rule if it applies to their claim.²⁴⁸ This decision is dependent upon the circuit’s general discovery rule, arguing that placing a limitation on the discovery rule is only appropriate in bodies of law that view discovery as an equitable exception, instead of a general, default rule of accrual.²⁴⁹ The Second Circuit in Michael Grecco was operating under a default discovery rule and evaluated whether it was appropriate to charge a uniquely situated plaintiff with a different standard of inquiry in its efforts to discover an infringing act based on their experience as a copyright litigant. Although the Supreme Court declined to take up this case, the sophisticated plaintiff exception to the discovery rule is not available in the Second Circuit. However, the opinion’s language appears to confirm the position that the discovery rule applies in all copyright claims within the Second Circuit.

To reiterate a basic policy consideration, statutes of limitations are essential if the purpose of protecting any form of intellectual property is to “promote the Progress of Science and useful Arts.”²⁵⁰ The discovery rule is entirely pro-copyright owner, but it is not necessarily always pro-artist or pro-creative. The phrases “art inspires art” and “nothing comes from nothing” are gimmicky articulations of the very policy arguments that highlight some of the hypocrisy that results from certain infringement actions that may stand to hinder creative expression, which nonetheless are valuable considerations in the discovery rule debate. It is notable that individuals often choose to settle a case with questionable merits due to the costs of litigation, and statutes of limitation are one bar to actions that may be unduly burdensome.²⁵¹ The music industry is a prime example of an area of copyright where an injury rule default better accords to policy demands.²⁵² While the merits of infringement disputes are beyond the scope of this Note, this issue is a small component of the larger statute of limitations conversation. Therefore, depending on the case, scope, and context, the discovery rule of accrual can be both pro-alleged infringer and pro-copyright owner.

Implications for Other Bodies of Law

Cases decided by the Supreme Court regarding statutes of limitations draw upon one another through shared reasoning and language, leaving the potential for any expansion of the discovery rule to spread outside of the statute at issue in the specific case’s question presented. In Rotkiske, a case about the FDCPA, Justice Thomas’s majority opinion quoted language from Justice Scalia’s concurring opinion in TRW, a case about the FCRA’s statute of limitations period, to state that “[t]his expansive approach to the discovery rule is a ‘bad wine of recent vintage,’ ” holding that the injury-occurrence rule governs.²⁵³ The holdings in Kubrick and Urie that recognize application of the discovery rule in the special contexts of medical malpractice and latent disease have been cited in multiple decisions that involve determining a statute of limitations point of accrual.²⁵⁴ Additionally, the Supreme Court in Holmberg, a case that involved a suit in equity, held that the statute of limitations does not begin to run in cases involving fraud until the fraud is discovered, which drew upon the reasoning in an old bankruptcy case.²⁵⁵ Further, the decision in Petrella that the doctrine of laches cannot bar claims under the Copyright Act because Congress had enacted a statute of limitations was subsequently applied to the Patent Act in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC.²⁵⁶

The Supreme Court may choose to narrowly articulate its decisions regarding statutes of limitations to make clear the holding should apply to only the specific facts at issue, but as demonstrated throughout these cases, the Court is generally consistent in its reasoning across different bodies of law. In a concurring opinion, Judge Murphy of the Sixth Circuit contemplated the unanswered discovery rule question in a case involving a First Amendment retaliation claim and stated, “Although our court has recited the discovery rule in many § 1983 cases, I have my doubts about our approach.”²⁵⁷ The First Amendment and copyright are different bodies of law, but as explored above, the Supreme Court reasoning regarding the discovery rule may impact both.

Additionally, recent cases involving the copyright statute of limitations disputes following the Warner Chappell decision continue to consider application of the discovery rule. In Foss v. Eastern States Exposition, the First Circuit declined to toll the limitations period due to the plaintiff’s failure to diligently register her copyright.²⁵⁸ The Seventh Circuit has stated that the Warner Chappell decision “did not overturn this circuit’s settled adoption of the discovery rule in copyright cases.”²⁵⁹

The Supreme Court has no immediate need to address the copyright statute of limitations injury versus discovery rule question due to the general consensus among the circuit courts regarding the discovery rule’s application to copyright. Following the Warner Chappell decision’s resolution of the circuit split regarding a bar on damages caused by infringement occurring outside of the three-year statute of limitations period, the risk of forum shopping by plaintiffs has lessened. The current state of affairs provides flexibility to litigants whose claims may rely on application of a discovery rule beyond traditional equitable tolling contexts of fraud or concealment. Addressing the question directly could either force foreclosure of the discovery rule beyond these limited contexts, or risk that an expansion of the discovery rule may impact bodies of law outside of copyright.

CONCLUSION

The appropriate point of accrual under the Copyright Act’s three-year statute of limitations period is undefined by the Supreme Court and the statute itself. On one hand, appellate courts have a well-established history applying the discovery rule to copyright actions. On the other hand, when a statute’s text or clear congressional intent does not provide for a discovery rule, the Supreme Court has repeatedly held that the injury rule is the only appropriate method of accrual outside of equitable tolling contexts such as fraud or concealment. This stark contrast between copyright cases and jurisprudence surrounding statutes of limitation in other bodies of law makes the future role of the discovery rule in copyright difficult to predict.

The recent decision in Warner Chappell Music, Inc. v. Nealy reduced the risk of forum shopping by allowing retroactive recovery for claims that satisfy the discovery rule and heightening the stakes for damages available to plaintiffs. Currently, every federal appellate court allows for application of the discovery rule, which in turn places the burden on the parties to argue whether their specific claim should fall within its scope. Many lower courts will likely interpret this ruling as a continued implied authorization of a general copyright discovery rule. Other interpretations may continue to push back against copyright precedent to align with Supreme Court reasoning in other bodies of law, risking creation of another circuit split down the line.

Regardless, copyright litigation will continue to create cases ripe for review by the Supreme Court that fall squarely within Justice Gorsuch’s idea of an “antecedent” discovery versus injury rule question.²⁶⁰ Whether the Court grants certiorari in such a case is yet to be determined. In the meantime, copyright owners who can satisfy the discovery rule are entitled to collect damages dating all the way back to the initial infringing act. A Supreme Court majority may instead be in favor of adopting a general discovery rule in copyright actions, but reasonable concerns for wider implications arise if the rule is not carefully articulated to only apply in the copyright context.

Both the Copyright Act’s text and statute-of-limitations precedent in other bodies of law are supportive of an injury rule method of accrual in copyright litigation, subject to equitable tolling exceptions. Recall the hypothetical from the Introduction: the injury rule framework, subject to equitable tolling, would bar the photographer from recovery because the action was brought over three years after the infringing act occurred. The magazine that relied in good faith on the public figure’s dubious ownership of the photos would prevail over the original author of the works, prioritizing policy interests that protect against surprise litigation. This fictional fact pattern is a reminder of the unsatisfying consequences that are inherent to statutes of limitation. However, this framework aligns with congressional intent and avoids the potential for an overly restrictive construction of the discovery rule. It simultaneously prevents unintended consequences on bodies of law outside of copyright, striking a balance between the “bad wine” and the unique demands of copyright law.

Copyright cases have continued to wear away at the injury rule default. Maintaining the status quo for the copyright statute of limitations point of accrual allows lower courts to continue to rely on a general discovery rule, which enables copyright owners to pursue their claims with more leniency. Although contrary to the Supreme Court’s injury rule default articulated in other bodies of law, this trend is helpful to plaintiffs operating within the modern media landscape and comports with historical application of the general discovery rule to copyright actions by lower courts. The lack of clarification by the Supreme Court provides some flexibility to litigants that would not otherwise be available if the court rejected general application of the discovery rule. Lack of Supreme Court intervention on the matter also can maintain stability for statutes of limitations in other bodies of law, avoiding impact from formal expansion or rejection of the discovery rule.

99 S. Cal. L. Rev. 945

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Michele Danigelis*

* Articles Editor, Southern California Law Review, Volume 99; J.D. Candidate 2026, University of Southern California Gould School of Law; B.A. 2023, Villanova University. Thank you to Professor Jonathan Barnett, for his guidance and suggestions, and to the editors of the Southern California Law Review for their thoughtful and dedicated work on this Note.

A Dual Approach to Competition: China’s Selective Mercantilist Application of Antitrust in Semiconductor Mergers

September 2026September 2026Ian Wang*

In 2016, Qualcomm announced a $47 billion acquisition of Dutch chipmaker NXP Semiconductors to diversify Qualcomm’s portfolio beyond the slowing smartphone market. While regulators worldwide approved the deal, China’s antitrust agency stalled, ultimately forcing Qualcomm to abandon the merger in 2018, sparking widespread speculation that China was willing to weaponize its merger review process in the semiconductor industry, a key battleground in the escalating U.S.-China tech rivalry. Nearly a decade later, with the second Trump administration in office and tensions continuing to escalate, this Note examines China’s merger review enforcement in the semiconductor industry through three landmark decisions: Qualcomm’s attempted acquisition of NXP Semiconductors, SK Hynix’s acquisition of Intel’s NAND memory chip business, and Intel’s attempted acquisition of Tower Semiconductor. This Note finds that China employs a dual approach under its Anti-Monopoly Law (“AML”)—while most merger reviews reflect increasing standardization and efficiency, cases in sensitive industries like semiconductors are driven by mercantilist policies rather than antitrust principles, subjecting transactions to prolonged delays, stringent conditions, and opaque decision-making enabled by China’s unique political-legal structure. This Note further argues that China’s mercantilist use of the AML is evolving beyond a purely reactive tool, as China’s State Administration for Market Regulation has begun deploying merger review as an affirmative instrument of industrial policy, selectively targeting foreign firms from countries perceived as lacking sufficient geopolitical influence to retaliate. As U.S.-China tensions show no signs of abating, China’s selective mercantilist application of the AML will persist—and likely expand—leaving foreign semiconductor firms to navigate an increasingly weaponized regulatory landscape.

Introduction

In 2016, Qualcomm, a leading American chipmaker, announced its $47 billion acquisition of NXP Semiconductors, a Dutch company specializing in automotive and Internet of Things (“IoT”) semiconductors—technologies connecting everyday devices such as watches, home electronics, and industrial equipment to the Internet.¹ With this deal, Qualcomm, traditionally dominant in the cell phone–chip market, sought to diversify its portfolio as competition in the smartphone sector intensified and demand stagnated.² By expanding into high-growth markets like automotive and IoT technologies, Qualcomm aimed to secure a stronger foothold in the future of connected devices.³ The market responded positively to the announcement, with Qualcomm’s stock rising over 3% immediately following the news.⁴

The transaction received swift approvals from regulators in the United States, the European Union (“EU”), and several other jurisdictions, leaving China as the final antitrust hurdle.⁵ To some degree, China’s holdout was unexpected.⁶ Since China’s enactment of its Anti-Monopoly Law (“AML”) in 2008, which established its merger review regime, Chinese enforcement had largely followed the lead of other major antitrust jurisdictions, particularly the EU.⁷ However, the deal faced significant resistance from China’s State Administration for Market Regulation (“SAMR”), which oversees merger reviews.⁸ After more than ten months of review, SAMR failed to issue a ruling before the deal’s deadline, forcing Qualcomm to abandon the transaction in 2018 and effectively blocking the merger.⁹

SAMR’s handling of the Qualcomm–NXP merger sent shockwaves across global markets.¹⁰ Many commentators, including U.S. officials and the CEOs of both Qualcomm and NXP, argued that the decision was politically motivated, reflecting the escalating U.S.-China trade tensions at the time, rather than being grounded in traditional antitrust concerns.¹¹ Since then, China’s antitrust authority has shown an increased appetite to act separately and independently in semiconductor cases. For instance, in 2020, South Korea–based SK Hynix was required to facilitate the entry of an unnamed local competitor as a condition for acquiring Intel’s NAND memory (a type of nonvolatile flash memory widely used in solid-state drives and consumer electronics) and storage business.¹² In 2023, U.S.–based Intel terminated its acquisition of Israeli foundry, Tower Semiconductor, again due to China’s failure to approve the deal.¹³ Most recently, in 2024, China launched an investigation into U.S.–based company Nvidia for allegedly violating commitments made during its acquisition of

Israeli chip designer Mellanox Technologies¹⁴—a deal that had been cleared unconditionally in both the United States and the EU.¹⁵

These decisions by SAMR in the semiconductor industry illustrate China’s uneven application of the merger review process under the AML. On the one hand, broader trends highlight increasing standardization and efficiency in most merger reviews, as China positions itself as one of the largest consumer markets in the world and one of the three major antitrust jurisdictions alongside the United States and the EU.¹⁶ In 2023, SAMR closed 797 merger review cases in total.¹⁷ Of these, 782 (approximately 98%) received unconditional approval.¹⁸ Generally, SAMR took an average of three weeks to close a case.¹⁹ On the other hand, cases in sensitive industries like semiconductors stand out as exceptions. In such cases, transactions are subject to protracted delays, stringent conditions, and opaque decision-making processes.²⁰ These decisions appear to deviate from traditional antitrust norms and are motivated by mercantilist policies rather than antitrust principles.²¹ Such outcomes reflect SAMR’s strategic use of merger reviews to align with the economic and national security priorities of the party-state, particularly in industries critical to China’s industrial and geopolitical ambitions.

This dual approach is also consistent with China’s broader dual political-legal system under Chinese President Xi Jinping’s leadership. While the body of law is becoming sophisticated and is aligning with global legal norms, most cases are now handled with greater standardization and efficiency, and matters deemed sensitive are consistently handled outside the legal framework to advance the party-state’s interests.²² This dual system seemingly allows China to leverage its antitrust regime both as a means of maintaining competition, protecting consumers, and promoting innovation, as well as a mercantilist tool to advance the economic and national security interests of the party-state, creating a unique and unpredictable regulatory environment for foreign companies.

This Note is organized as follows: Part I examines the unique political-legal system in China, where weak judicial agencies defer heavily to administrative agencies within their domains. In this context, it provides an overview of China’s merger review regime under the AML, tracing its evolution and progression toward greater efficiency and standardization under SAMR. Part II explores China’s state interests and its long tradition of leveraging mercantilist economic policies to advance these interests. With this foundation, I then analyze the intersection of Chinese State priorities and the semiconductor industry, highlighting the economic and national security concerns that shape China’s regulatory decisions. Part III analyzes key semiconductor merger cases reviewed under the AML to evaluate whether SAMR’s decisions in these cases were driven by traditional antitrust concerns or by mercantilist objectives aimed at advancing China’s economic and national interests. This Part then compares the patterns revealed in these semiconductor cases to the broader trends in AML enforcement and assesses the potential long-term effects of China’s uneven application of its antitrust regime. Part IV predicts the future of AML merger enforcement in sensitive industries like semiconductors, arguing that the mercantilist dual application of the law will continue but will be constrained within a selective number of cases.

I. Anti-Monopoly Law and China’s Merger Control Regime

A. China’s Judicial System and the State Administration for Market Regulation

1. The Preeminence of the State Power and the Chinese Political-Legal System

Unlike most Western democracies, in which the government is divided into coequal legislative, judicial, and executive branches, the Chinese State government is a single, unified political-legal system known as zhengfa xitong (政法系统).²³ Within that system, there are legislative bodies, administrative and regulatory organs, courts, prosecutors, and police, each of which exercises often overlapping legislative, judicial, and administrative powers.²⁴ Further, China’s vast state bureaucracy operates under a unique system in which competing government organs control distinct domains of authority, allowing legislative, administrative, and judicial bodies to each enact rules and policies within their respective areas.²⁵ As a result, although China formally has one main legislative body, the National People’s Congress, the State Council—a cabinet-like body—and the numerous ministries, commissions, administrations, bureaus, departments, and offices under its authority, all possess legislative power to enact rules and policies within their respective domains.²⁶

Among the government organs, three are considered judicial bodies: the courts, procuratorates, and public security bureaus. Collectively, they are referred to as gongjianfa (公检法).²⁷ The hierarchical court system begins with the People’s Courts at the local level, followed by the Intermediate People’s Courts, High People’s Courts, and, at the top, the Supreme People’s Court.²⁸ The courts work closely with the public security bureaus and the procuratorates, which conduct criminal prosecutions and investigations on behalf of the State.²⁹

The Chinese Communist Party (“CCP”) maintains de facto control over all aspects of the Chinese political-legal system.³⁰ De jure, there is a separation between the CCP and the Chinese State as the Constitution of the People’s Republic of China vests power and authority in the political and administrative structures that form the lawful government of China.³¹ In reality, however, the CCP and the State government operate as one, with the CCP exerting control through informal mechanisms, such as issuing policy directives, and formal mechanisms, such as appointing and removing government officials at all levels and across all functions of government bodies.³²

Since Xi assumed power as the CCP’s general secretary in 2012, he has emphasized the priority of “law-based governance” (依法治国).³³ In response, CCP-led reforms have increased standardization across political and legal institutions, allowing them to efficiently handle complex matters daily to ensure social stability and economic growth.³⁴ It is important to note that Xi’s concept of the “rule of law” differs significantly from the Western liberal tradition and aligns more closely with the “rule by law” principles of traditional Chinese Legalism.³⁵ Xi, who frequently references Legalist scholars such as Han Fei and Shang Yang with admiration, intends to use law as an instrument to strengthen governance rather than to limit state power.³⁶ While Xi’s law-based governance seeks to apply his power more equitably and uniformly, its purpose is not to constrain the CCP’s authority.³⁷ The party-state thus adopts a dual political-legal system: while the majority of legal cases are adjudicated under an increasingly sophisticated body of law, matters deemed sensitive are consistently handled outside the legal framework to advance the party-state’s interests.³⁸

2. Key Actors in China’s Merger Control Regime

Before 2018, AML enforcement was carried out by three main agencies: the Price Supervision and Anti-Monopoly Bureau of the National Development and Reform Commission (“NDRC”), the Anti-Monopoly and Unfair Competition Enforcement Bureau of the former State Administration for Industry and Commerce (“SAIC”), and the Anti-Monopoly Bureau of the Ministry of Commerce (“MOFCOM”). The Price Supervision and Anti-Monopoly Bureau of the NDRC was responsible for enforcing price supervision, addressing price violations and monopolies, and managing appeals related to price infractions.³⁹ The Anti-Monopoly and Unfair Competition Enforcement Bureau of the former SAIC oversaw enforcement related to nonprice abuses of dominant market positions and monopoly agreements involving nonprice coordination.⁴⁰ MOFCOM was responsible for merger review and control.⁴¹

In March 2018, China’s State Council announced the creation of a unified market regulator, the State Administration for Market Regulation.⁴² SAMR consolidated the functions of the three previous enforcement authorities and became responsible for all antitrust enforcement in China.⁴³ Since then, SAMR has strengthened the overall enforcement of the AML, with a particular focus on merger control.⁴⁴

B. Overview of the Anti-Monopoly Law

1. History and Scope of the AML

Although efforts to reform and initiate the drafting of anti-monopoly legislation started in 1994, it took thirteen years for the AML to be finalized, marking the longest drafting process for any law in modern Chinese history.⁴⁵ Enacted on August 1, 2008, the AML covers monopoly agreements, abuse of market dominance, anticompetitive mergers, and administrative monopolies.⁴⁶ Articles 13 and 14 of the AML prohibit price fixing, output restrictions, market division, and specific vertical agreements like fixing or setting minimum resale prices.⁴⁷ Article 6 restricts dominant businesses from engaging in six types of abusive practices, including unfair pricing and discriminatory dealings.⁴⁸ Articles 20 and 31 state that mergers and acquisitions must undergo competition review, especially those involving foreign parties.⁴⁹ Article 8 forbids public authorities from abusing their administrative powers to limit competition.⁵⁰ Penalties for violations include fines of up to 10% of the previous year’s turnover, confiscation of illegal gains, and invalidation of unlawful agreements.⁵¹

On August 1, 2022, after two initial drafts by SAMR, China finalized and implemented amendments to the AML.⁵² These amendments introduced significant changes, including imposing higher penalties for antitrust violations, cautioning dominant technology firms against market abuse through digital tools such as algorithms, enabling public prosecutors to initiate civil public interest litigation against monopolies harming social welfare, and simplifying judicial proceedings by allowing enforcement agency findings of monopolistic conduct to serve as sufficient evidence in civil litigations.⁵³ For the merger review process, the amended AML permits SAMR to suspend the review period if (1) filing parties fail to provide essential materials; (2) new situations arise requiring further investigation; or (3) filing parties request a suspension to assess potential remedies.⁵⁴ Following these amendments, SAMR introduced a series of rules and guidelines in 2023 to clarify and enforce the revised AML.⁵⁵ Among them, key merger control provisions include higher notification thresholds and a focus on “killer acquisitions,” mandating filings if an acquirer with annual revenues over RMB 100 billion (approximately $14.6 billion) acquires a company with a market capitalization of at least RMB 0.8 billion (approximately $117 million) and if the acquired company’s Chinese revenue constitutes over one-third of its global revenue.⁵⁶

2. Merger Review Process Under the AML

Under the AML, if a transaction is deemed to be a “concentration” and the turnover threshold is met, an obligation to submit antitrust notification to SAMR is triggered.⁵⁷ “[C]oncentration” includes the following: (1) mergers between undertakings; (2) acquiring control of other undertakings through the acquisition of shares or assets; and (3) acquiring control of other undertakings, or the ability to exercise decisive influence over other undertakings, by contract or other means.⁵⁸ The AML does not provide an explicit definition for control or decisive influence.⁵⁹ The 2018 Business Operators Guiding Opinions and the updated 2023 Provisions made some clarifications. The 2018 Opinions introduced a “decisive influence” test, considering factors such as transaction documents, articles of association, and other legal or factual elements indicating control.⁶⁰ The 2023 Provisions build on this, adding criteria for determining control, including the transaction’s purpose, the target company’s shareholding structure, voting mechanisms, board composition, appointment of senior management, and other strategic factors that could indicate influence over the target company’s operations.⁶¹ It is worth noting that these documents, while important for assessing control, are not viewed as exclusive criteria. In practice, SAMR has broad discretion to interpret these terms and direct parties to file.⁶² The turnover threshold, as noted previously, had been updated in the 2022 amendments to reflect economic growth.⁶³ Currently, undertakings must seek merger clearance from SAMR if their combined global turnover exceeds RMB 12 billion (approximately $1.7 billion) with each of at least two parties generating over RMB 800 million (approximately $113.5 million) in China, or if their combined Chinese turnover exceeds RMB 4 billion (approximately $568 million) with each of two parties exceeding RMB 800 million.⁶⁴

If a transaction triggers an antitrust notification, the parties must obtain clearance from SAMR or wait for the 180 calendar day–review period to expire without objection or a request for further information.⁶⁵ The clearance process consists of two stages: (1) the pre-consultation phase, during which the parties can arrange an informal meeting with regulators to discuss major issues regarding the transaction; and (2) the formal review phase, which starts once the regulator deems the notification complete.⁶⁶ While the regulator is statutorily required to complete the review phase within a total of 180 calendar days, there is no statutory deadline for the pre-consultation phase.⁶⁷ Therefore, the period between the parties’ antitrust notification and the start of the formal review procedure is unpredictable and ranges from a few days to several months.⁶⁸

Once the formal review process starts, the regulator may initiate an in-depth “phase II” investigation for another ninety calendar days, with the option to extend for another sixty days under special circumstances, or with the parties’ consent, if it considers the transaction has, or may have, the effect of eliminating or restricting competition.⁶⁹ The 2022 amendments also enable SAMR to suspend the merger review process and extend the timeline when reviewing complex transactions, in particular those involving remedy negotiations.⁷⁰ Considering this is a lengthy process, SAMR offers a “simplified procedure” for smaller transactions, in which the parties’ combined market shares are below 15% and their individual shares in related markets are below 25%.⁷¹ Overseas joint ventures with no operations in China also qualify for this fast track–review process.⁷² The vast majority of merger reviews seem to be closed under the simplified procedure.

As noted above, according to SAMR, in 2023 it closed 797 merger review cases in total.⁷³ Of these, 782 (approximately 98%) received unconditional approval, 4 received conditional clearance, and 11 were withdrawn by the filing parties after SAMR’s acceptance of their case.⁷⁴ Overall, SAMR took an average of three weeks to close a case.⁷⁵ However, for conditional clearances, SAMR took an average of 309 days to complete.⁷⁶

During the merger review process, SAMR conducts conventional competition analyses by examining transactions between competitors, assessing combined market shares, and evaluating the risk that a transaction could raise consumer prices or stifle innovation.⁷⁷ It is worth noting that, besides competition concerns, AML also requires SAMR to consider the impact of a transaction on China’s “national economic development,” including whether it conflicts with China’s industrial policies or domestic interests.⁷⁸ This means SAMR must consult a wide range of Chinese stakeholders, in both public and private sectors, before making any determination.⁷⁹

If SAMR decides that transactions raise significant concerns, it may block them or grant conditional approvals subject to remedies, such as rights and licensing grants, agreement modifications, or divestment.⁸⁰ In some rare cases, SAMR can also delay the review process for so long that parties decide to abandon the transaction.⁸¹ However, if parties fail to notify a transaction or complete a transaction before regulatory approval, SAMR can (1) order the transaction to be undone; (2) fine up to RMB 5 million (approximately $0.7 million) for cases without competition concerns or up to 10% of the notifying party’s prior-year turnover for anticompetitive mergers; and (3) require measures to restore pre-transaction market conditions, such as asset divestitures.⁸² Fines may increase up to 5 times if a violation is “particularly serious,” potentially reaching 50% of the notifying party’s turnover.⁸³

II. China’s National Economic Interests and the Semiconductor Industry

A. China’s Unique Economic Structure and Interests

The “effect on China’s national economy” is a special consideration in merger review under the AML.⁸⁴ This requirement may seem redundant, as traditional merger review criteria—such as preventing market concentration and maintaining competition—naturally improve economic performance. Conversely, if a transaction leads to market concentration, its impact on the economy is obviously harmful, which will typically warrant prohibition under conventional merger review criteria. So, why does the AML include this specific language? Understanding this requires examining the unique structure of the Chinese economy.

The Role of Nonmarket Institutions in the Chinese Economy

A key feature of the Chinese economy is its substantial nonmarket components. Since the start of its market reforms in 1978, China has achieved unparalleled economic growth, increasing its economic output by more than 3,000% and becoming the second-largest market by gross domestic product.⁸⁵ However, despite this impressive growth, the CCP has maintained its socialist roots and has never fully adopted market economy policies.⁸⁶ Instead, CCP leaders have pursued a gradualist approach, slowly reducing the industrial output of state-owned enterprises (“SOEs”) and lifting restrictions on private businesses and foreign investments while still retaining significant control over the economy.⁸⁷

Two schools of thought have emerged regarding the role of nonmarket institutions in China’s economy: the experimentalist and convergence schools.⁸⁸ The experimentalists believe that China has been attempting, with considerable success, to invent a unique Chinese economic model.⁸⁹ And in the Chinese model, the nonmarket institutions play important roles in easing social conflicts and ensuring national economic stability.⁹⁰ The convergence scholars argue that China has achieved economic success despite gradualism and that the nonmarket aspects are dragging China back from unleashing its full potential.⁹¹ They believe that, in the end, the Chinese economy will converge with those of nonsocialist–market economies, especially those in East Asia.⁹²

Under Xi’s leadership, however, the CCP has tightened its grip on private businesses as economic growth slows.⁹³ It demands businesses to strictly conform to the aims of the CCP, cracking down on entrepreneurs who dare to challenge the state prerogatives.⁹⁴ It also tightens the regulatory pressure on financial activities, such as borrowing and seeking initial public offerings overseas while SOEs—called “an important pillar and strength for our party” by Xi—were largely insulated.⁹⁵ It seems to suggest that the nonmarket institutions are not only here to stay but also to play an increasingly dominant role in the Chinese economy.

China’s Mercantilist Economic Policy

Many scholars attribute the authoritarian CCP regime’s legitimacy to its appeal to nationalism and its success in achieving sustained economic growth.⁹⁶ Under conventional wisdom, economic growth would challenge the CCP’s one-party rule, as satisfying material needs could lead to demands for nonmaterial needs, such as political participation and pluralism, while social inequalities might fuel a sense of injustice.⁹⁷ Consequently, China’s economic policies are closely linked with nationalism.⁹⁸ For decades, under the CCP’s leadership, China has followed a mercantilist economic strategy, using government regulations to boost exports and thus sustain growth.⁹⁹ As Justin Yifu Lin, an influential Chinese economist under Xi’s leadership,¹⁰⁰ remarked, China’s success in generating immense wealth through massive exports is not only an economic achievement but also a vindication of its “century of humiliation”—a period from 1839 to 1949 when China lost control of large territories to foreign powers—and a testament to Chinese leaders’ resolve to prevent a recurrence.¹⁰¹

This is not to say that mercantilism is unique to China. Following the 2008 global financial crisis, many commentators have observed a paradigm shift in Western nations toward mercantilist economic policies.¹⁰² Under the leadership of President Trump from 2016 to 2020, the United States imposed punitive trade sanctions in the form of heavy tariffs against China and its other trading partners.¹⁰³ Some commentators viewed these measures as attempts to coerce trade concessions,¹⁰⁴ while others defended them as justified responses to China’s unfair trade practices, such as forced technology transfer, cyber-enabled theft of U.S. intellectual property and trade secrets, discriminatory licensing practices, and state-funded strategic acquisitions of U.S. assets.¹⁰⁵ Ultimately, the Trump administration, as Trump himself wrote in a tweet,¹⁰⁶ believed these policies would increase U.S. wealth and contribute to its “great economic results.” The Biden administration largely kept Trump’s measures in place, even expanding tariffs on steel, electric vehicles, solar panels, and other goods imported from China.¹⁰⁷

However, unlike the United States, which primarily focuses on trade policies to boost exports and economic growth,¹⁰⁸ China uses laws and industrial policies to regulate its internal economy in order to increase its exports while erecting barriers for foreign goods.¹⁰⁹ For instance, China has used its Foreign Investment Law (prior to 2020) and its “Made in China 2025” initiative to subsidize and encourage mandatory technology transfers to SOEs to turn them into “national champions” to compete with multinational corporations on the world stage.¹¹⁰ Hence, the language of the AML, which requires considering a transaction’s “effect on China’s national economy,”¹¹¹ should also be interpreted under this context, in which the regulators are instructed to prohibit mergers that are adverse to China’s mercantilist economic policy.

China’s “Core Interests”

China’s economic interests are also closely tied to several domestic and foreign priorities that the CCP deems nonnegotiable.¹¹² They are termed “core interests” or hexin liyi (核心利益) in state media and official statements.¹¹³ In 2009, State Councilor Dai Bingguo defined China’s core interests in three aspects: (1) fundamental system and state security; (2) state sovereignty and territorial integrity; and (3) stable economic and social development.¹¹⁴ A 2011 white paper from the State Council added “peaceful development” and “national reunification” to this list.¹¹⁵

Since Xi’s ascension to power in 2012, the concept of core interests has been increasingly invoked, reflecting China’s growing strength and confidence.¹¹⁶ Xi stated, “[China] will never give up our legitimate rights and will never sacrifice our national core interests. No country should presume that we will engage in trade involving our core interests or that we will swallow the ‘bitter fruit’ of harming our sovereignty, security or development interests.”¹¹⁷ During the recent trade war with the United States, Chinese State media reinforced that core interests are nonnegotiable and will not be compromised.¹¹⁸

B. The Politics of the Semiconductor Industry

Semiconductors are the lifeblood of the digital economy.¹¹⁹ They make vital components for most modern electronics that are essential to people’s daily lives, including consumer electronics, computers, telecommunication equipment, automobiles, and machine tools.¹²⁰ In addition, semiconductors have high military importance as they improve the military system through artificial intelligence (“AI”).¹²¹ As a testament to its significance, the global semiconductor industry has totaled $526.8 billion in 2023,¹²² and some project the industry to reach trillion-dollar sales per year by 2030.¹²³

Because of the essential economic and national security roles semiconductors play in global geopolitics, the global semiconductor market has transformed into a battlefield in which major powers, such as the United States and China, struggle to establish their leadership in the industry.¹²⁴ The United States established itself early as a global leader in the semiconductor industry through technological innovations.¹²⁵ In 1947, Bell Telephone’s invention of the transistor launched the microchip era, followed by Jack Kilby of Texas Instruments and Robert Noyce of Intel, who propelled the industry forward with the integrated circuit in the late 1950s.¹²⁶ In 1970, Intel introduced the dynamic random access memory (“DRAM”), a crucial component for computers and electronics.¹²⁷ In the following decades, American companies led global semiconductor production, dominating 98% of the U.S. market and 70% internationally by the mid-1970s.¹²⁸ While there was a brief period in the 1980s in which Japan overtook the United States as the largest semiconductor market, especially in memory chips and microprocessors, the United States quickly restored its market leadership in the 1990s.¹²⁹ The dominance continues today as the U.S. semiconductor sector generated a whopping $70.1 billion in total export values in 2024.¹³⁰

In recent decades, however, the United States’ share in global semiconductor production has shrunk to 12% in 2021, down from 37% in 1990.¹³¹ This decline is partly attributable to the rise of the semiconductor industries in Taiwan and South Korea. Taiwan has established itself as the global leader in advanced semiconductor manufacturing,¹³² while South Korea is home to some of the world’s largest chip producers, including Samsung and SK Hynix.¹³³ These nations capitalized on U.S.-Japan trade tensions in the 1980s, leveraging generous government subsidies and a supply of skilled, affordable labor to achieve semiconductor “leapfrogging” over subsequent decades.¹³⁴ In recent decades, the emergence of China as a major chip producer further exacerbated the weakening of U.S. semiconductor production.¹³⁵ In 2015, China launched Made in China 2025, an industrial policy aimed at reducing dependence on foreign technology and establishing dominance in global high-tech manufacturing.¹³⁶ The policy set ambitious targets: By 2025, China aimed for 70% self-sufficiency in high-tech industries, with the goal of global leadership by 2049, the centennial of the People’s Republic of China.¹³⁷ In the semiconductor sector, the policy aimed to increase domestic chip production to 40% by 2020 and 70% by 2025.¹³⁸

To achieve these objectives, China established three substantial state-backed investment funds, totaling RMB 138.7 billion (approximately $21 billion) in 2019, RMB 204 billion (approximately $31.6 billion) in 2021, and RMB 344 billion (approximately $47.5 billion) in 2024, which subsidized domestic chip producers and drove SOEs to acquire foreign intellectual property.¹³⁹ This policy has yielded substantial results: China now holds nearly a quarter of global 300mm chip manufacturing capacity, up from 12% in 2014, as domestic producers increasingly displaced multinational operations.¹⁴⁰ Semiconductor Manufacturing International Corporation, China’s leading chip foundry, has tripled its revenue and doubled its capacity, making it the world’s third-largest foundry.¹⁴¹ In general, China has also built up an impressive memory chip industry from nothing and now has a competitive range of fabless chip designers producing advanced AI chips, microcontrollers for industrial applications, and power management chips for electric vehicles.¹⁴²

The rapid growth of China’s semiconductor industry has triggered significant geopolitical resistance, particularly from the United States.¹⁴³ In October 2022, the Biden administration introduced export controls to restrict China’s access to advanced U.S. semiconductors and technology.¹⁴⁴ These controls were further tightened in 2023 and 2024, banning the export of the latest chip production equipment to China, leaving Chinese manufacturers two to three generations behind their counterparts in Taiwan, South Korea, and the United States in producing leading edge–logic chips.¹⁴⁵ Some of China’s state owned–memory chip makers, such as Yangtze Memory Technologies Co. (“YMTC”), have also been hit with damaging sanctions that have cut off their ability to serve global markets.¹⁴⁶

In addition to sanctions and export controls, the Biden administration enacted the CHIPS and Science Act of 2022, aimed at boosting U.S. competitiveness in semiconductor manufacturing through government investment.¹⁴⁷ The Act provides $50.3 billion over five years, plus $550 million annually from fiscal years 2023–2027, to enhance U.S. leadership in semiconductor production and to fund broader scientific and technological research.¹⁴⁸ Currently, while the United States continues to dominate global semiconductor industry revenues—largely due to its leadership in advanced chip research, design, and equipment production—approximately 75% of global chip manufacturing capacity is concentrated in Taiwan, South Korea, China, and Japan. Five major companies—Samsung (South Korea, 19%), Taiwan Semiconductor Manufacturing Company (“TSMC”) (Taiwan, 13%), Micron (United States, 10%), SK Hynix (South Korea, 9%), and Kioxia/Western Digital (Japan, 6%)—together control 57% of global manufacturing capacity.¹⁴⁹ Taiwan, in particular, accounts for 92% of the world’s fabrication capacity for the most advanced logic chips, while South Korea leads with 44% of memory chip production capacity.¹⁵⁰ While the CHIPS and Science Act’s impact has yet to be fully seen, it underscores the U.S. government’s commitment to bolstering its semiconductor industry, especially in manufacturing, to address geopolitical risks, safeguard national security, and build economic resilience by reducing reliance on vulnerable global supply chains and promoting domestic production through substantial subsidies.¹⁵¹

Figure 1. Share of Global Semiconductor Value Chains by Activity, 2021

III. Comparative Studies on Key Decisions in The Semiconductor Industry under THE AML

As discussed above, China employs a dual political-legal system, in which an increasingly sophisticated body of law is applied with efficiency and standardization across most sectors, but cases deemed sensitive to the party-state’s interests remain susceptible to political and economic considerations.¹⁵² The semiconductor industry, as highlighted in the previous Section, is a sector of paramount importance to the Chinese State, given its strategic role in national security and economic development.¹⁵³ This Part examines key merger cases in the semiconductor industry, including Qualcomm and NXP, SK Hynix and Intel NAND, and Intel and Tower Semiconductor, in which SAMR’s decisions diverge notably from those of regulators in other major jurisdictions, such as the United States and the EU. Through these cases, I assess whether SAMR’s enforcement of the AML reflects the same dual system in which merger reviews in sensitive industries are influenced by broader state interests rather than traditional antitrust principles.

A. Qualcomm’s Acquisition of NXP

In October 2016, Qualcomm announced its agreement to acquire NXP Semiconductors for $110 per share in cash, valuing the deal at approximately $47 billion.¹⁵⁴ At the time, the demand for chips in the IoT sector—enabling connectivity for devices such as watches, automobiles, and home electronics—was rapidly increasing while demand for smartphones and personal computers was slowing.¹⁵⁵ This shift triggered a wave of mergers as traditional chipmakers sought to expand into the IoT market by acquiring companies with established success in the field.¹⁵⁶ Qualcomm, an American chipmaker based in San Diego known primarily for its smartphone chips, pursued this transaction to achieve the same objective.¹⁵⁷ NXP, with a strong foothold in automotive, industrial, and consumer IoT chips and a global customer base of over 25,000, presented an opportunity for Qualcomm to diversify and enter high-growth industries.¹⁵⁸

Qualcomm and NXP, to some level, operated in overlapping semiconductor markets, particularly in automotive semiconductors and communication technologies, which heightened the risk of market concentration.¹⁵⁹ In communication technology, Qualcomm held a dominant position as a primary innovator behind 3G and 4G/LTE standards, owning a significant share of standard-essential patents (“SEPs”), meaning that patents were required to follow the recognized technical standards critical to these technologies.¹⁶⁰ Qualcomm’s licensing model, requiring manufacturers to pay royalties for using its patented technologies, has drawn regulatory scrutiny in the past.¹⁶¹ In 2015, following an investigation launched in 2013, China’s NDRC found that Qualcomm violated the AML by leveraging its patents to maintain its dominance in the upstream chip design market.¹⁶² Qualcomm settled with the Chinese authorities, agreeing to pay a $975 million fine and implement changes to its patent licensing practices in China.¹⁶³ Some commentators viewed China’s action as having been motivated at least partially by mercantilist objectives to favor domestic chip and device producers.¹⁶⁴ In 2017, the Federal Trade Commission (“FTC”) sued Qualcomm for anticompetitive practices, alleging that its “no license, no chips” policy—which forced device manufacturers to license its patents at allegedly unfair rates as a condition for purchasing its chips—constituted anticompetitive behavior.¹⁶⁵ A district court ruled against Qualcomm, finding its practice to be anticompetitive, although the decision was later reversed by the Ninth Circuit Court of Appeals.¹⁶⁶

NXP also had a strong presence in the communication chip market, offering products such as 5G connected–communication infrastructure and radio frequency (“RF”) components for wireless and wired networking.¹⁶⁷ Its portfolio included proprietary technologies in mobile payments and Vehicle-to-Everything (“V2X”) communication, areas of significant growth potential.¹⁶⁸ The merger raised concerns that Qualcomm could exploit its aggressive royalty-based business model to extend its dominance into these markets, potentially leading to increased market concentration and anticompetitive practices in sectors like mobile payment solutions and automotive communication technologies.

The deal was approved without a second request—the process by which agencies request additional information when a transaction raises potential anticompetitive concerns—by the FTC on April 27, 2018.¹⁶⁹ Although the FTC did not provide an official explanation, it is likely that the agency determined that the market efficiencies resulting from the merger outweighed any concerns about market concentration. As discussed, Qualcomm and NXP had complementary strengths in different sectors of the semiconductor market. Qualcomm excelled in wireless communication technologies, particularly 3G, 4G/LTE, and emerging 5G, and dominated the market for mobile processors and modem chips, which are critical for smartphones and other wireless devices.¹⁷⁰ Its revenue primarily depended on licensing royalties from its extensive SEPs portfolio and selling chips for mobile devices.¹⁷¹ In contrast, NXP was a leader in automotive semiconductors, IoT communication chips, and secure connectivity solutions.¹⁷² Its significant markets included V2X technologies, embedded secure elements, and industrial IoT applications.¹⁷³ NXP’s revenue was largely derived from automotive and IoT applications rather than mobile processors or modems.¹⁷⁴ These differences resulted in Qualcomm and NXP serving distinct client bases: Qualcomm primarily catered to smartphone manufacturers while NXP served industrial IoT developers and secure payment providers. Even within the communication chips market, in which their operations potentially overlapped, Qualcomm focused on modem technologies for mobile networks and relied heavily on patent licensing, while NXP specialized in localized communication solutions like near-field communication (“NFC”), Bluetooth, and automotive-specific communication, earning revenue through chip manufacturing. Given their distinct verticals, a detailed Herfindahl-Hirschman Index analysis would likely indicate minimal market overlap.

Figure 2. Qualcomm’s Total Revenue vs. Licensing Revenue, 2016–2020

Figure 3. NXP’s Revenue Breakdown, Q3 2023–Q3 2024

The merger was expected to enhance market efficiency and drive innovation by combining Qualcomm’s expertise in wireless communication technology with NXP’s capabilities in V2X technology and IoT chip manufacturing.¹⁷⁵ This synergy had the potential to create secure, high-performance IoT devices and seamless vehicle communication systems, enabling smart home and vehicle solutions. Additionally, the merger would allow both companies to streamline supply chains, optimize manufacturing and distribution networks, and reduce dependency on any single supplier. These efficiencies were anticipated to improve the companies’ financial health, lower production costs, and ultimately benefit customers.¹⁷⁶ As for the concern that Qualcomm might extend its aggressive licensing model to NXP’s standard essential patents, empirical studies suggested that Qualcomm’s licensing practices did not result in excessive consumer costs.¹⁷⁷ On the contrary, consumers enjoyed rapid technological advancements and decreasing adjusted prices for wireless communication devices.¹⁷⁸ Hence, even if Qualcomm had extended its model to NXP’s SEPs, it would not have raised any anticompetitive concerns.

The EU’s regulators identified competition concerns related to Qualcomm’s baseband chipsets and NXP’s NFC and secure element (“SE”) chips, MIFARE technology (a proprietary, contactless smart card technology widely used in transit and access control systems), and NFC patents.¹⁷⁹ To address these concerns, Qualcomm agreed to several behavioral remedies, including licensing NXP’s MIFARE technology on favorable terms for eight years, ensuring interoperability between Qualcomm’s chipsets and rival NFC and SE products, refraining from acquiring NXP’s standard essential NFC patents and certain nonstandard patents, transferring them to a third party for royalty-free licensing, and granting royalty-free licenses for retained nonstandard NFC patents.¹⁸⁰ After imposing these remedies, the European Commission concluded that the competition concerns were adequately addressed and approved the deal.¹⁸¹ Six other jurisdictions also approved the deal.¹⁸²

The deal, however, faced significant resistance from Chinese regulators.¹⁸³ MOFCOM, China’s merger review authority at the time, expressed unspecified antitrust concerns regarding the deal.¹⁸⁴ In an effort to address these concerns, Qualcomm withdrew and refiled its acquisition notice in April 2018 at MOFCOM’s request, hoping to reach a last-minute resolution to secure approval before the deadline set by the parties.¹⁸⁵ The review process stretched over twenty months, effectively blocking the merger.¹⁸⁶ In a statement issued on July 27, 2018, SAMR, which had taken over antitrust responsibilities from MOFCOM earlier that year, noted that Qualcomm’s proposed remedies had not sufficiently addressed its competition concerns and expressed regret that the deal had been terminated.¹⁸⁷

The Chinese authority’s decision to delay approval of the Qualcomm–NXP merger, effectively blocking the transaction, was widely perceived—including by Qualcomm’s then-CEO Steve Mollenkopf and U.S. Treasury Secretary Steve Mnuchin—as collateral damage in the U.S.-China trade war initiated by the Trump administration.¹⁸⁸ Although SAMR stated that its actions were based solely on antitrust concerns, the European Commission’s decision potentially showed that any potential competition issues raised by the merger appeared resolvable through remedies.¹⁸⁹ Public reports also indicated that Qualcomm was open to accepting behavioral remedies to address SAMR’s concerns.¹⁹⁰ However, after the Trump administration threatened to impose significant tariffs on Chinese products in early-July 2018, the review of the Qualcomm–NXP merger stalled and ultimately went unresolved.¹⁹¹ In December 2018, after meeting with Xi at the G20 Summit in Buenos Aires, Trump told reporters that Xi had expressed a willingness to reconsider China’s decision to withhold approval of the merger.¹⁹² Although China’s official statements did not confirm Xi’s willingness to revisit the deal¹⁹³—and even if he had instructed SAMR to approve it, it was too late as the deal had already been terminated¹⁹⁴—the timing and context lend further credence to the view that the stalled review was not, at least, purely antitrust driven but a retaliation for the broader U.S.-China trade hostilities.

More importantly, perhaps, this deal also marked a significant change in China’s merger control practice, at least in the semiconductor field. Prior to this, China had generally followed the lead of other major antitrust regulators, particularly the EU, in the merger review process.¹⁹⁵ Where the EU and United States antitrust regulators have imposed remedies, China has often imposed similar remedies, although the remedies might be uniquely designed specifically for the Chinese market.¹⁹⁶ This divergence suggests a shift in China’s approach to merger reviews, potentially influenced by broader geopolitical tensions rather than purely economic or competition-based considerations.

B. SK Hynix’s Acquisition of Intel’s NAND Memory Chip Business

In October 2020, SK Hynix, one of the largest chip producers in South Korea, announced its acquisition of Intel’s NAND memory and storage business, including a manufacturing plant in Dalian, China, to bolster its NAND flash solutions’ competitiveness.¹⁹⁷ The deal positioned SK Hynix as the second-largest NAND memory producer globally, behind only Samsung.¹⁹⁸ Several competition authorities reviewed the transaction, granting unconditional approval, including those in the United States, the EU, the United Kingdom (“UK”), South Korea, Taiwan, Singapore, and Brazil.¹⁹⁹

The FTC approved the SK Hynix–Intel merger without issuing a second request or commenting on its decision.²⁰⁰ The primary concentration concern likely stemmed from the small number of major players in the NAND memory chip market, which was dominated by Samsung, Kioxia, Western Digital, Intel, SK Hynix, Micron, and YMTC.²⁰¹ Together, Samsung, SK Hynix, and Micron accounted for roughly 67% of global NAND revenue.²⁰² By acquiring Intel’s NAND business, SK Hynix could potentially have consolidated the market further, raising concerns about increased concentration and reduced competition. However, despite their significant presence in the NAND market, Intel and SK Hynix had complementary product focuses and client bases. Intel specialized in high-performance SSDs for enterprise and data center markets²⁰³ while SK Hynix had strengths in DRAM and consumer NAND products.²⁰⁴ This complementarity suggested that the merger could promote innovation by combining Intel’s NAND technology with SK Hynix’s DRAM expertise, enabling the development of better hybrid memory solutions and mitigating anticompetitive concerns. The merger also allowed SK Hynix to leverage Intel’s Dalian facility, improving its supply network and expanding production capacity to meet growing global demand for NAND products. Most importantly, even after the merger, SK Hynix’s combined market share with Intel’s NAND business would remain significantly lower than that of Samsung, the market leader.²⁰⁵ This substantially alleviated concentration concerns and, in fact, suggested that the merger could enhance competition by increasing pressure on the dominant market leader.

These points were supported by the UK’s Competition and Markets Authority, which provided insight into why it found the deal unproblematic. It reasoned that the global NAND and SSD markets were highly competitive, and customers were “constantly demanding lower prices with larger memory.”²⁰⁶ The deal would increase SK Hynix’s share to about 22.1% for NAND²⁰⁷ and to about 37% for SSDs,²⁰⁸ while Samsung, the largest producer, still held approximately 36.9% of the NAND flash memory market as of the second quarter of 2024.²⁰⁹ Such an increase in concentration within a highly competitive market with multiple producers typically does not raise significant concerns among competition authorities. Such transactions could enhance market competitiveness by enabling companies like SK Hynix “to invest in innovation and compete more aggressively.”²¹⁰

Chinese regulators took a different stance as SAMR served as the final antitrust hurdle for the deal.²¹¹ After a year-long review, SAMR approved the transaction but imposed a series of behavioral conditions to address competition concerns and ensure supply security, meaning that the merger could not undermine a stable, reliable, and uninterrupted supply of NAND memory products to the Chinese consumers.²¹² SK Hynix was required to continue to supply all products in China on fair, reasonable, and nondiscriminatory (“FRAND”) terms and to increase its output of peripheral component interconnect express and serial advanced technology attachment enterprise-class solid-state drive products.²¹³ Additionally, SAMR noted the high market–entry barriers in these markets, stating that enterprise-class SSDs are primarily used in data center servers, in which customers demand exceptional product quality and stability.²¹⁴ New entrants face significant financial and customer-recognition challenges.²¹⁵ To address these barriers, SK Hynix was asked to facilitate entry of an unnamed local third-party competitor into relevant markets.²¹⁶

Although SAMR’s concerns regarding supply security and high-entry barriers were reasonable, the “market entry assistance” remedy imposed lacked a clear justification. If the concern was eliminating a competitor in the market, which was brought up a few times in the decision,²¹⁷ mandatory licensing agreements on FRAND terms would have been a more logical approach. Such agreements would provide local firms with access to critical technologies, thereby lowering entry barriers. However, the decision does not explain why the market-entry assistance remedy was chosen or clarify the circumstances under which such a remedy would be appropriate.²¹⁸ The language of the remedy as it is written is equally vague. The term assistance has not been defined and, thus, can potentially encompass not only financial support or loans, but also the transfer or licensing of intellectual property rights, such as patents, trademarks, and trade secrets. Likewise, entry could mean a one-time action, like patent licensing, or a sustained effort, like assisting in building production capacity.

Many commentators rightfully considered the remedy radical because it effectively opened the doors for Chinese competitors, including potential national champions such as YMTC, to penetrate the market.²¹⁹ They argued that this is another example of China using its “so-called antitrust measures to bolster its domestic technological ecosystem.”²²⁰ They went on to argue that the Committee on Foreign Investment in the United States (“CFIUS”), which reviews foreign acquisitions to assess their impact on U.S. national security, should have reconsidered its initial decision not to intervene.²²¹ Given that SAMR’s remedies were undisclosed at the time, and that the deal involved the transfer of sensitive U.S.–based intellectual property to a foreign firm, commentators suggested that CFIUS should further scrutinize the transaction.²²² “China plays both offense and defense in its regulatory reviews where the U.S. tends just to play defense,” they wrote, “the U.S. approach to antitrust only undermines its major tech players.”²²³

C. Intel’s Acquisition of Tower Semiconductor

Facing increasingly stiff competition in its traditional markets for personal computer (“PC”) and server processors in recent decades, Intel announced its Integrated Device Manufacturer 2.0 strategy in 2021.²²⁴ The strategy focuses on three goals: (1) expanding manufacturing with cutting-edge technology; (2) utilizing third-party semiconductor manufacturing facilities, also known as foundries, for internal needs; and (3) becoming a top-tier foundry, aiming for the second spot globally by 2030.²²⁵ As part of this strategy to shift Intel into the third-party foundry market, it announced in February 2022 its agreement to acquire Tower Semiconductor, a successful analog semiconductor foundry known for securing custom chip contracts, for $53 per share in cash, valuing the deal at $5.4 billion.²²⁶ With this acquisition, Intel sought to integrate Tower’s specialty technologies, including radio frequency, power, and silicon germanium, along with its client base, to enhance its less advanced foundry services and expand into lucrative markets such as the automotive sector.²²⁷

The transaction was swiftly approved unconditionally by regulators from multiple jurisdictions, including the United States, as antitrust concerns appeared minimal²²⁸—unsurprisingly so, given that the global foundry industry is highly competitive and driven by ever-increasing demand.²²⁹ In the third quarter of 2023, the top 10 foundries collectively reported revenues of approximately $28.29 billion, a 7.9% increase from the previous quarter.²³⁰ TSMC dominated the market with a 58% share, followed by Samsung at a distant second with 11.7%.²³¹ In contrast, Intel Foundry Service and Tower held much smaller shares, at 1% and 1.2%, respectively.²³² While domestic market shares in each jurisdiction may differ slightly from global figures, the small scale and limited scope of this transaction relative to the robust market and intense competition made it unlikely to raise concentration concerns. Moreover, there was minimal overlap between the core markets of Intel Foundry Service and Tower. As noted above, Intel’s traditional market was in PC and server processors. As it attempted to enter the third-party foundry market, it focused primarily on advanced logic-chip manufacturing and general-purpose foundry services.²³³

Tower, on the other hand, was a well-established foundry that specialized in analog chips, catering to industries such as automotive, medical devices, industrial equipment, and IoT.²³⁴ Tower’s emphasis on mature technology nodes and specialty applications—such as RF, power management, and silicon photonics—contrasted with Intel’s focus on cutting-edge technologies.²³⁵ Therefore, it was unlikely that the transaction would lessen competition in any single market. On the contrary, the acquisition of Tower would complement Intel Foundry Service by enabling Intel to diversify its offerings, particularly in analog chips, and better compete with dominant players like Samsung and TSMC. Regulators in most jurisdictions likely recognized these factors, viewing the transaction as a move that would enhance global competition in the foundry market, particularly in mature and specialty nodes, rather than stifling it.

However, SAMR dragged its feet in the approval process.²³⁶ After six weeks of review, SAMR invoked the “stop-the-clock” mechanism introduced under the amended AML to pause its review and discuss unspecified “regulatory concerns” with the parties.²³⁷ The delay persisted for months, effectively derailing the transaction.²³⁸ In August 2023, Intel announced it had “mutually agreed” with Tower to terminate the planned merger after failing to secure a ruling from SAMR before the deadline stipulated in the merger agreement.²³⁹ SAMR did not issue any public statements explaining its delay or detailing its regulatory concerns. Intel did not elaborate on its discussion with the Chinese regulators besides stating that its termination of the deal was “due to the inability to obtain in a timely manner the regulatory approvals required under the merger agreement.”²⁴⁰ Intel’s reticence is understandable given its substantial presence in China, where it employs over 12,000 people and generates more than $17 billion in revenue, accounting for approximately 27% of its global total.²⁴¹ Any statements that deviated from the CCP’s expectations could have exposed the company to significant retaliatory actions.²⁴²

Many commentators speculate that SAMR’s decision to delay approval of the Intel–Tower Semiconductor merger was another instance of China leveraging its antitrust review process to advance national policy objectives.²⁴³ Economically, SAMR’s stance is difficult to justify. As noted, Intel and Tower were complementary in their assets and similar mergers involving larger chipmakers—such as Intel’s $16.7 billion buyout of Altera,²⁴⁴ Avago Technologies’ $37 billion purchase of Broadcom,²⁴⁵ and an $11.8 billion takeover of Freescale Semiconductor by NXP²⁴⁶—had previously been approved by Chinese regulators with little resistance.

However, the deal occurred amidst escalating U.S.-China tensions, particularly in the semiconductor sector.²⁴⁷ Earlier that year, the Biden administration secured agreements with Japan and the Netherlands to join sweeping export controls introduced in October 2022, restricting China’s access to advanced semiconductor manufacturing equipment and technology.²⁴⁸ Just a week before Intel announced the abandonment of the merger, President Biden signed an executive order limiting U.S. investment in critical sectors in China, including semiconductors, microelectronics, quantum information technologies, and AI.²⁴⁹

Given this context, it is highly likely that Chinese regulators targeted Intel, a prominent American chipmaker, as a countermeasure in the ongoing trade and technology conflict. This aligns with other transactions analyzed above, showing a broader pattern of China using merger review in recent years to advance its economic and political interests.

D. General Trend in Chinese Merger Review Enforcements Under the AML

On the surface, Chinese merger reviews under the AML appear to be trending toward greater efficiency and standardization. Between 2008, when the AML was enacted, and the first quarter of 2018, when AML enforcement agencies were consolidated, a total of 2,151 merger filings were made.²⁵⁰ Of these, 2,052 were approved unconditionally, 36 were approved with conditions, and only 2 were rejected outright.²⁵¹ Over the years, the number of merger reviews completed steadily increased, from 80 in 2009 to 337 in 2017.²⁵² International transactions accounted for the vast majority of these cases, with 80–90% involving at least one international party.²⁵³ The Chinese authorities also seemed to be handling the increased caseloads with great efficiency, especially after the introduction of the simplified procedure in 2014.²⁵⁴ By May 23, 2018, 750 cases had been filed under this procedure, reducing clearance times to approximately one month after acceptance.²⁵⁵ This trend has continued post-consolidation. As noted above, in 2023, SAMR closed 797 merger review cases, with 782 (approximately 98%) receiving unconditional approval, 4 receiving conditional clearance, and 11 being withdrawn by the filing parties after case acceptance.²⁵⁶ Approximately 90% of cases were reviewed under the simplified procedure, and the average time to close a case was just over three weeks.²⁵⁷

Beneath the façade of increased sophistication in the body of law and the growing volume of enforcement actions lies a persistent lack of transparency in AML enforcement. Unlike in the United States, where merger review agencies routinely publish detailed decisions and analyses, Chinese regulators issue sparse and often generalized public statements.²⁵⁸ This opacity is further exacerbated by China’s weak judicial system, which heavily defers to government organs in their respective domains.²⁵⁹ As a result, there are often no clear, publicly available criteria or established precedents for assessing mergers or antitrust violations. The AML, like many other bodies of law in China, still operates in the dual political-legal system mentioned above.

By analyzing the cases above and comparing the actions taken by SAMR with the U.S. actors, this Note finds that the AML operates within the dual political-legal system described earlier, specifically in the merger review enforcements in the semiconductor industry. While the majority of merger cases might be reviewed with high efficiency and standardization under the AML, cases in sensitive industries—such as semiconductors—that affect the CCP’s mercantilist economic policies or involve companies from nations with strained diplomatic relations are consistently handled outside the formal legal framework. These transactions are subjected to lengthy delays or onerous conditions, not solely based on antitrust considerations but to advance the broader interests of the party-state.

These analyses of SAMR’s merger review actions in the semiconductor industry align with broader patterns observed in how the AML has been applied by Chinese authorities. A 2014 study examined 7,275 cross-border acquisitions reviewed by Chinese regulators between 1985 and 2010.²⁶⁰ The study found that industries deemed critical to national security—such as telecommunications, energy, biotechnology, aviation, and other high-tech sectors—faced significantly stricter scrutiny, resulting in lower approval rates for foreign acquisitions compared with nonstrategic industries.²⁶¹ Conversely, industries considered nonsensitive, such as consumer goods, had much higher approval rates.²⁶² The study also revealed that acquisitions involving SOEs, which are often regarded as having greater national security significance due to their status as national assets, were less likely to be approved.²⁶³ Furthermore, acquisitions by foreign companies from countries with strained diplomatic relationships, such as Japan and the United States, had lower odds of approval compared with average transactions.²⁶⁴

SAMR’s selective handling of sensitive cases—particularly in the semiconductor industry—to advance the party-state’s mercantilist interests undermines the fundamental principles of antitrust enforcement and the purpose of the merger review process itself. Extensive antitrust literature underscores the importance of transparency as a cornerstone of a robust competition law regime.²⁶⁵ A transparent merger review process requires public access to administrative or judicial decisions, especially in cases in which transactions are denied, delayed significantly, or subjected to special conditions.²⁶⁶ These decisions must include detailed reasoning, and the discretion exercised by agencies should be testable and publicly defined.²⁶⁷ Using merger reviews to further mercantilist objectives stifles competition. Behavioral remedies driven by mercantilism, such as the mandatory market entry assistance, disproportionately favor large domestic players—often SOEs—while raising entry barriers for other local competitors.²⁶⁸ Similarly, challenging complementary mergers due to geopolitical concerns not only reduces global competition but also harms consumers by diminishing market efficiency and innovation.²⁶⁹

The implications of these practices for foreign companies, particularly in the semiconductor industry, remain uncertain. China’s vast market makes it unlikely, at least in the short term, for foreign companies to bypass the SAMR review process, given the risk of being barred from the world’s largest market. However, the lack of transparency and resulting opaque and unequal application of the law fosters favoritism and unfairness, making it easier for competition laws to protect competitors rather than competition itself.²⁷⁰ In the long run, this unpredictability risks stifling innovation, discouraging foreign investment, and hampering market growth. To address these concerns, Chinese regulators should focus on reforms that enhance transparency. These reforms should include publishing detailed and consistent decisions, establishing clear and publicly accessible merger review criteria, and ensuring equal treatment of domestic and foreign entities. Additionally, strengthening judicial oversight and fostering collaboration with global antitrust authorities would enhance the credibility, fairness, and predictability of China’s merger review process, ultimately benefiting both domestic and international markets.

IV. THE Future of Semiconductor Merger Reviews Under THE AML: Fighting a Limited War

As discussed above, for China to foster a competitive and innovative market in the long term, it must build a stronger antitrust regime under the AML by enhancing transparency, establishing clear and consistent merger review criteria, and strengthening judicial oversight. However, both external and internal factors make immediate reform highly unlikely. On the external front, Trump, recently inaugurated for his second term, has continued his aggressive stance against China, imposing hefty tariffs on Chinese products.²⁷¹ Internally, China’s leadership has doubled down on its industrial policy goals and economic self-sufficiency, particularly in high-tech industries.²⁷² One might reasonably wonder how the AML will be applied in future merger cases, particularly in the semiconductor industry and other sectors deemed critical to state interests. This Part seeks to answer this question.

Existing literature argues that China’s mercantilist AML enforcement has largely focused on its use as a reactive tool deployed in response to foreign pressures.²⁷³ From a folk-theorem perspective in game theory, China employs the AML as part of a “tit-for-tat” strategy, retaliating against Western sanctions—particularly those imposed by the United States—on Chinese technology firms or other acts perceived as geopolitical aggression.²⁷⁴ In a theoretically perfect scenario, this tit-for-tat dynamic should lead to an equilibrium, in which both sides recognize that mutual cooperation is the optimal strategy.²⁷⁵ However, in practice, Western leaders often take aggressive actions against China for short-term political or economic gains, prompting China to retaliate by imposing costs on adversaries and reinforcing the credibility of its threats.²⁷⁶ Hence, China is constantly compelled to deploy the AML as a retaliatory tool to deter future acts of aggression from foreign adversaries.²⁷⁷

The cases analyzed in this Note, especially SAMR’s actions in SK Hynix’s acquisition of Intel’s NAND memory chip business, suggest that China’s mercantilist use of the merger review process under the AML has evolved beyond mere retaliation and into a more proactive industrial policy tool. Under the reactive framework, AML enforcement functions primarily as a deterrent, requiring a clear link between foreign aggression and China’s countermeasures.²⁷⁸ This ensures that adversaries understand AML enforcement as a direct response to their actions. At the same time, when deploying the AML under the dual system, SAMR must carefully maintain opacity to avoid alarming global markets, discouraging foreign investment, or triggering capital flight. This balancing act results in a tactical approach, in which SAMR times its retaliatory antitrust decisions to closely follow foreign “aggressions”—sending a clear signal to geopolitical actors while maintaining plausible deniability in the economic and legal spheres.

However, SAMR’s actions in SK Hynix’s acquisition of Intel’s NAND memory business diverge from this pattern. Unlike past cases, this transaction lacked a clear act of hostility from foreign adversaries, yet SAMR still imposed behavioral remedies requiring SK Hynix to facilitate the entry of a local competitor into the market.²⁷⁹ It remains unclear why and how China chose to strike first. One possible explanation is that SK Hynix, being a South Korean company, was viewed as a lower-risk target for regulatory intervention.²⁸⁰ China may have calculated that South Korea, lacking the geopolitical weight of the United States or the EU, would be less likely to retaliate or escalate trade tensions in response to SAMR’s intervention.²⁸¹ But regardless of motivation, this case demonstrates that China’s use of AML enforcement is not purely reactive. Instead, SAMR will also deploy proactive industrial policy measures aimed at strengthening China’s domestic semiconductor industry.

This evolution may indicate a limited expansion of China’s mercantilist approach to AML merger reviews within its dual legal system. While most merger cases will continue to be handled with efficiency and standardization,²⁸² and selective cases will still be used for geopolitical retaliation following foreign aggression,²⁸³ proactive interventions aimed at strengthening key domestic industries may become more frequent. This trend will likely be particularly pronounced when the merging parties come from countries that China perceives as lacking geopolitical influence. By selectively targeting foreign firms from smaller economies, China can impose industrial, policy-driven merger conditions with minimal risk of diplomatic or economic retaliation.

In summary, while SAMR’s mercantilist use of AML merger reviews remains economically constrained, its increasing willingness to intervene in transactions absent any clear foreign provocation suggests that China’s antitrust enforcement is becoming more deeply intertwined with its broader economic and industrial strategy. Multinational corporations, particularly those in sensitive industries like semiconductors or from countries with less geopolitical influence, must navigate AML merger reviews with heightened caution.

Conclusion

SAMR’s merger review decisions in the semiconductor industry illustrate China’s application of the AML within a dual legal system. While the AML ostensibly aims to prevent anticompetitive behavior and protect market efficiency, transactions in this sensitive sector are often reviewed outside the traditional legal framework, shaped by mercantilist policies advancing China’s national economic interests. This uneven application stems from China’s unique political-legal structure, in which a weak judiciary defers to administrative agencies like SAMR, which ultimately operate under party-state control. Within this dual system, SAMR must balance China’s need to adhere to global antitrust norms—ensuring competitiveness, consumer protection, and market efficiency—with its political mandate to prioritize state interests in strategic industries.

However, this opaque and selective enforcement of antitrust law risks undermining the credibility of China’s competition regime. Favoritism and political interference may stifle innovation, deter foreign investment, and hinder market growth. While reforms—such as enhancing transparency, establishing clear merger review criteria, and strengthening judicial oversight—would create a more predictable and robust antitrust framework, they are unlikely. China is doubling down on industrial policy and economic self-sufficiency in high-tech sectors, a trend further reinforced by escalating tensions with the new Trump administration. Consequently, China’s mercantilist approach to AML merger reviews will likely persist as a limited but strategic tool, both to retaliate against perceived foreign aggression and to promote domestic industrial policy goals.

99 S. Cal. L. Rev. 989

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Ian Wang*

* Articles Editor, Southern California Law Review, Volume 99; J.D. Candidate 2026, University of Southern California Gould School of Law; M.A. 2023, John Jay College of Criminal Justice; B.A. 2020, University of Michigan. I am grateful to Professor Jonathan Barnett and Professor Angela Zhang for their invaluable guidance. I also thank Rachel Liang, Yoann Huang, Kevin Zhang, and the rest of the staff of the Southern California Law Review for their thoughtful comments and dedicated edits in bringing this Note to publication.

Bridging the Gap: Modernizing Civil Rights Laws Through Transgender Healthcare Statutes

April 2026May 2026Sahna Das*

The past few years have seen record-breaking numbers of anti-transgender bills introduced and passed in state legislatures, many of which restrict transgender healthcare. In light of these bills, the varying outcomes from trans rights litigation in the courts, and President Trump’s anti-trans executive actions, it is worth reevaluating the state of trans healthcare protections. The majority of scholarship on trans rights discusses if and how sex discrimination doctrine can be leveraged to secure trans rights, including access to gender-affirming care. However, the complex and mosaic-like nature of sex discrimination doctrine leaves gaps within which judges holding anti-trans bias can insert their own agendas. This Note suggests a different path: rather than leaving trans rights up to the whims and biases of judges or letting the executive branch encroach upon the legislative branch’s authority to regulate commerce and healthcare, Congress should pass new civil rights statutes establishing LGBTQ+ status as a basis for discrimination claims. In particular, Congress should pass a healthcare statute prohibiting discrimination on the basis of transgender or nonbinary status in the coverage and administration of healthcare services. Such a law would provide an additional or alternate cause of action in trans healthcare cases where judges misapply or fail to apply sex discrimination analysis.

INTRODUCTION

For transgender people in the United States, daily life is becoming increasingly fraught with danger. The past decade has seen the growing recognition and visibility of transgender identity, the passage of state-level protections of trans rights, and historic victories for LGBTQ+ equality in both state and federal courts. However, the tide is now turning, and transgender people have become the center of a burgeoning culture war—they have been marked as a social contagion,¹ accused of grooming children,² scapegoated for violence,³ and characterized as a domestic terrorist threat.⁴

Since 2020, the proliferation of anti-trans legislation at the state level has dramatically escalated, particularly in the area of trans healthcare.⁵ The states have been even further emboldened by the Supreme Court’s 2025 decision in U.S. v. Skrmetti,⁶ which upheld a Tennessee law restricting gender-affirming care for trans minors. As the anti-trans moral panic reaches a fever pitch, the attack on trans healthcare has moved from the states to the federal level under President Trump’s second administration.⁷ This Note thus discusses the current war on trans rights, focusing on the stripping of access to trans healthcare.

This Note will use the terms “trans healthcare” and “gender-affirming care” (“GAC”), which “refers to health services that support a person in living in alignment with their gender identity when their gender identity differs from their sex assigned at birth.”⁸ These “treatments are considered evidence-based and typically follow standardized practice protocols”⁹ and are widely supported by medical consensus.¹⁰ Limiting such care can and will have disastrous consequences.¹¹

Access to gender-affirming care is frequently litigated under sex discrimination doctrine, a strategy that has achieved great success. However, this success relies upon judges who apply sex discrimination doctrine in a principled manner. This Note suggests that, in light of the second Trump administration’s actions, the varying results of GAC litigation, and the Supreme Court’s troubling foray into the debate,¹² current law and sex discrimination doctrine are not enough to protect trans healthcare, and new strategies must be pursued.

This Note proceeds in three parts. Part I provides background on the sharp spike in anti-trans legislation in recent years and discusses how the overreach of executive power under President Trump’s second administration has fanned the flames of a growing anti-trans movement in the United States. Part II examines the role of the judiciary in addressing trans rights, exploring how the courts have expanded these civil liberties through principled interpretations of current federal law and sex discrimination analysis. This Part then argues that, despite these victories, the viability of these arguments is narrowing, and the limits of sex discrimination doctrine cannot be overcome through reliance on the courts. Part III argues that, given the risks of leaving this issue up to the executive or judicial branch, Congress is best suited to protect gender-affirming care. This Part proposes that Congress pass new federal legislation to cement LGBTQ+ status as a basis of discrimination, specifically passing a healthcare statute prohibiting discrimination on the basis of transgender or nonbinary status. This Part will also discuss how Congress can tailor this statutory scheme to overcome to the implications of the Court’s ruling in Skrmetti.

Given the current makeup of Congress, this Note does not pretend to suggest that such legislation will be passed in the foreseeable future. It does suggest, however, that the status quo is dangerous, unstable, and will cause irreparable damage to trans people, their loved ones, and anyone who pushes the boundaries of free expression. As this Note will demonstrate, Congress is the branch best suited for the action necessary to protect trans rights. If—and when—a Congress with the political will to protect trans rights emerges, the question is what path it will take to do so. This Note offers one such path.

I. ANTI-GENDER IDEOLOGY AND THE NEW SCOPE OF EXECUTIVE POWER

A. The International Growth of “Anti-Gender Ideology”

Opponents of trans rights often cite “gender ideology” as the catalyst for the increasing visibility of trans people in social and political life. This Note refers to the “social movements mobilizing opposition to what they call ‘gender ideology,’ ‘gender theory’ or ‘genderism’ ”¹³ as “anti-gender ideology movements.” Such movements have gathered power over the past few decades, opposing various concepts that they view as undermining “ ‘traditional’ ” social units—including “the rights of LGBTQ+ people, ‘reproductive rights, sexuality and gender-sensitive education in schools, and the very notion of gender.’ ”¹⁴ Across the world, “the attack on ‘gender ideology’ is as much an attack on feminism, especially reproductive freedom, as it is on trans rights, gay marriage, and sex education.”¹⁵ The United States is materially implicated in the global anti-gender network, as “US-based anti-gender groups such as Alliance Defending Freedom, the Federalist Society, the Cato Institute, and the Heritage Foundation pump millions of dollars into global campaigns” against so-called gender ideology.¹⁶

Trans people constitute a tiny minority; in the U.S., only one percent of the population identifies as trans.¹⁷ Given the small number of trans people, why is gender such a galvanizing force? Judith Butler argues that “ ‘gender’ absorbs an array of fears and becomes a catchall phantasm for the contemporary Right,” creating a moral panic and manifesting as an existential threat.¹⁸ After all, the “very existence of transgender and non-binary individuals poses a threat to the traditional (fixed, binary, hierarchical) gender order.”¹⁹ The panic over trans people becomes a funnel for “a broader backlash against LGBTQ equality and an assault on many of the feminist gains wrought by the women’s movement since the 1960s and ’70s.”²⁰ Such reactionary sentiment is not new—“backlash politics and jurisprudence have emerged as a response to the gains of different marginalized social groups at various points in time, including women, people of color, and sexual and gender minorities.”²¹

The trans rights issue has become a way for conservative lawmakers to rile up their base, “perform opposition to the ‘woke left’ and ensure evangelical voters show up to vote,”²² especially now that the question of same-sex marriage and gay relationships has largely faded as a hot button political issue.²³ For example, many state bills banning trans girls from women’s sports “are the product of national right-wing strategists, having found that this particular issue has traction to elect and empower Republicans in electoral politics.”²⁴

Anti-gender ideology is not, however, limited to traditional conservatives. The moral panic has been fueled by both mainstream conservative and liberal media outlets, which have “reinforced the anti-trans movement’s unscientific ‘child protection’ claims, sensationalized them, and profited from the resulting panic.”²⁵ A re-fashioned narrative of sexual deviancy—echoing decades of anti-LGBTQ+ propaganda—has emerged,²⁶ often obscured under a politically neutral veneer of protecting children’s health and women’s safety. In recent years, “a relatively small but vocal group of self-proclaimed ‘gender-critical feminists’ (who are sometimes called trans-exclusionary radical feminists, or ‘TERFs’ for short) eschew transgender legal rights that they perceive as potentially threatening to the rights of cisgender women.”²⁷ The debate between the faction of gender-critical feminists and the majority of feminists—who see trans rights as a necessary component of the feminist project²⁸—goes back decades, to “the height of the second-wave feminist movement.”²⁹ With the increasing visibility of trans people and the rising prominence of high-profile trans-exclusionary feminists like author J.K. Rowling,³⁰ the debate “has become a matter of intense public conflict.”³¹

A deep dive into the extent of the debate between gender-critical feminists and gender-inclusive feminists is beyond the scope of this Note. Nonetheless, this debate is vital to acknowledge because it has significant political and legal consequences that have contributed to the rise in anti-trans sentiment and policy.³² Gender-critical feminists center biology as the sole determinant of sex and believe that “as a result, transgender women are really men ‘who should not be allowed to use women’s facilities’ ” because they will assault cis women in these facilities.³³ Such narratives feed into the “bathroom predator myth,” perpetuating the false claim that trans women are a threat to cisgender women in sex-segregated spaces like public restrooms.³⁴ This myth echoes the “fears of sexual predation” that have been historically invoked to paint gays, Black men, and Jewish people as violent threats to women and children.³⁵ Moreover, it belies the reality that there is “no evidence of increased harms to people who are not transgender when transgender people are allowed to use restrooms and other gendered facilities

according to their gender identity,” but “it is a consistent finding across studies and over time that transgender people report . . . experiencing verbal harassment and physical assault from others in these spaces.”³⁶

These myths also harm gender non-conforming cisgender women who are “harassed in bathrooms because of anti-transgender hysteria,”³⁷ as in the case of eighteen-year-old Gerika Mudra, a cisgender girl who was followed into a restaurant by a server who accused her of being a man.³⁸ Mudra felt compelled “to prove to the server that she is a woman, so she unzipped her hoodie to show she has breasts.”³⁹ Gender-critical feminists seem to overlook these incidents, which exemplify how trans people and feminists share common concerns and principles such as the right to bodily autonomy and expression outside of traditional gender norms.⁴⁰ Gender-critical feminism feeds into the anti-gender movements pushed by the Right by calling such principles into question. This rhetoric provides fodder for right-wing critiques of “gender ideology,” which push similar narratives of a spectral threat to women and children’s safety as a shield for limiting both transgender and cisgender people’s right to self-determination.

This phenomenon is not merely rhetoric. The growth of gender critical feminism and anti-gender ideology reflect shifting public opinion in the United States. Within just the past four years, “Americans have become more supportive of laws that limit protections for trans people—and less supportive of laws aimed at safeguarding them.”⁴¹ This sentiment is reflected in the recent wave of anti-trans legislation passed at the state level.

B. Trans Rights at the State Level

Several hundred anti-trans laws have been proposed in states across the country in recent years. Journalists in 2022 noted that “[s]chools [had] emerged as the front line for anti-trans legislation,” with several states successfully passing bans on trans children in sports, parental disclosure laws, and curriculum restrictions.⁴² Bathroom bills, which were thought to have lost steam after North Carolina’s failed 2016 attempt to ban trans people from public restrooms that do not correspond with the sex listed on their birth certificate, have made a comeback.⁴³ In the years since, states have restricted discussion of gender and personal pronouns in schools,⁴⁴ prohibited or placed significant restrictions on the ability to change gender markers on ID documents,⁴⁵ and passed restraints on free expression through drag bans.⁴⁶

The rate of these attacks is accelerating. The ACLU tracked 616 anti-LGBTQ+ bills in 2025,⁴⁷ up from 533 in 2024,⁴⁸ and 510 in 2023.⁴⁹ Other advocates focusing specifically on anti-trans legislation have found that 2025 was the sixth consecutive record-breaking year in anti-trans bills considered across the country, with trans healthcare becoming an increasingly targeted category.⁵⁰ The majority of anti-trans bills do not become law, but “each year, Republicans introduce more and more bills. And each year, those bills become broader and more extreme, as politicians look for new ways to enforce a binary definition of gender—and that escalation is turning up in the bills that do pass.”⁵¹

One of the main targets of these bills has been gender-affirming care. In 2024, state legislators introduced 189 bills targeting these services, a slight increase from 2023 (in which there were “more bills targeting gender-affirming healthcare . . . than the last 5 years combined”).⁵² Most of these bills are targeted towards transgender and nonbinary minors. As of August 2025, “27 states have enacted laws/policies limiting youth access to GAC.”⁵³ As a result, “40% of trans youth (ages 13–17) live in a state that has enacted a law/policy limiting access to GAC.”⁵⁴

These bills “are devastating. They force trans kids and their families to leave entire states and regions of the country. They exacerbate trans kids’ already alarmingly high suicide rates by withholding necessary medical interventions from them.”⁵⁵ Researchers have found that these bills have inflicted severe psychological harm on trans youth. In states where anti-trans laws were passed, trans and nonbinary young people “experienced statistically significant increases in both the number of past-year suicide attempts and the reporting [of] at least [one] past-year suicide attempt, especially [one] and [two] years after anti-transgender law enactment.”⁵⁶

These bills do not stop at children—a troubling development is the shift towards limiting this healthcare for adults.⁵⁷ The primary means of doing so is through bills that block the use of state Medicaid funds for coverage of gender-affirming care services.⁵⁸ By the beginning of 2025, “[t]en states — Arizona, Florida, Idaho, Kentucky, Missouri, Nebraska, Ohio, South Carolina, Tennessee and Texas—[had] enacted policies that explicitly prohibit Medicaid coverage of gender-affirming care for all ages.”⁵⁹

These state bills have already sowed chaos and confusion among transgender and nonbinary people as well as their families. Under the second Trump administration, such chaos and confusion have now moved beyond the state level to the federal.

C. The Executive Branch and Federal Intervention

Legal scholars and journalists have already noted that President Trump’s actions in his second administration have generated questions about the bounds of executive power. The President has issued “numerous executive orders that pushed at the generally understood limits of presidential power, fired numerous officials and dismantled an agency in clear violation of statutory limits, and frozen spending authorized by Congress without clear authority.”⁶⁰

Among the spate of executive orders, several are directly aimed at erasing trans people from public life. Echoing the anti-gender ideology movement, the executive orders repeatedly invoke “gender ideology” as an enemy to be conquered.⁶¹ Executive Order 14168 declares that it is now “the policy of the United States to recognize two sexes, male and female.”⁶² In line with this reasoning, this Order forces incarcerated trans women to be housed in men’s prisons,⁶³ exposing them to severe risk of sexual assault and abuse.⁶⁴ In addition, the Order prevents trans people from changing the gender marker on their identification documents,⁶⁵ increasing the likelihood of harassment, denial of services, and assault for trans people whose ID lists a name or gender that does not match their gender presentation,⁶⁶ and creating complications for intersex Americans.⁶⁷ Such policies effectively remove trans, nonbinary, and intersex people from legal recognition. The President has also furthered attempts to remove trans people from public life through executive orders banning trans people from the military⁶⁸ and prohibiting participation of trans women in women’s sports.⁶⁹

Of particular significance to this Note is Executive Order 14187, which bans gender-affirming care for trans youth under the age of nineteen.⁷⁰ The order characterizes gender-affirming care as “maiming” children,⁷¹ resulting in “chemical and surgical mutilation” through puberty blockers, hormone therapy, and surgical procedures.⁷² Through this Order, the President promotes false claims⁷³ that trans people who receive gender-affirming care will be “trapped with lifelong medical complications, a losing war with their own bodies, and, tragically, sterilization.”⁷⁴

The President’s authority to issue this order has not been established, and there are serious constitutional questions raised by his attempt to usurp Congress’s commerce powers⁷⁵ to threaten to cut off federal funding to medical institutions that study and provide gender-affirming care.⁷⁶ Nevertheless, some medical institutions have already begun cutting off treatment for trans youth, even if they are located in “sanctuary states” for gender-affirming care.⁷⁷ This preemptive compliance “with Trump’s executive order stand[s] in direct contradiction to state healthcare policies designed to protect access to care. This is a textbook case of institutions surrendering before a fight even begins, bowing to political pressure despite the lack of any immediate enforcement mechanism.”⁷⁸

Despite the disappointing acquiescence of these institutions, legal advocates have not hesitated to push back against this executive overreach—hundreds of lawsuits have already been filed challenging the Trump administration’s executive orders throughout his second term,⁷⁹ including suits challenging Executive Order 14187. Soon after the Order was issued, attorneys general of three states (Washington, Minnesota, and Oregon), joined by three doctors who provide gender-affirming care within these states, sued for declaratory and injunctive relief.⁸⁰ The lawsuit alleges violations of the Tenth Amendment and the Fifth Amendment’s Equal Protection Clause, arguing that the Order discriminates on the bases of transgender status and sex.⁸¹ Moreover, the complaint draws attention to the drastic overreach of executive power effectuated in the Executive Order, noting that the

Order also violates constitutional Separation of Powers by usurping Congress’s legislative powers and exclusive power of the purse. None of the federal funding that medical institutions . . . receive is conditioned on a promise by the institutions that they would deny gender-affirming care to their patients under [nineteen] years of age. Congress has never imposed such a condition, and it is unconstitutional for the President to do so via executive fiat.⁸²

The district court issued a preliminary injunction, and litigation is ongoing.⁸³ More recently, sixteen state attorneys general, joined by Pennsylvania Governor Josh Shapiro (in lieu of Pennsylvania’s Republican attorney general),⁸⁴ brought suit against the Order.⁸⁵ The Complaint argues that the Order violates states’ Tenth Amendment right “to regulate the practice of medicine within their States,”⁸⁶ and “coerce[s] hospitals, individual providers, and others to potentially violate Plaintiff States’ antidiscrimination and age-of-majority state laws.”⁸⁷

Whether the Executive Order survives the legal battle to follow is uncertain. What is certain is that the President has decided to use the force

of the Executive Branch to vilify and erase a small, already vulnerable minority. This erasure is not merely rhetorical—as Butler notes,

when the law names you in a certain way, cornering you into a box, then the force of language actually does create a new situation: a legal status is conferred. In these contexts, a performative use of language brings about the reality that it names. . . . Indeed, when one is called male when one is a woman, or called female when one is a man, the calling is an effacement of what one is. That effacement is an actual effect, a modification of reality, and its own specific form of violence.⁸⁸

The mere existence of trans people is already seen as grounds for violence: research indicates that “[t]ransgender people are over four times more likely than cisgender people to experience violent victimization, including rape, sexual assault, and aggravated or simple assault.”⁸⁹ In addition, among the already high rates of sexual abuse among LGBTQ+ youth, trans children report even more disproportionately high rates.⁹⁰

The inflammatory rhetoric that contributes to high rates of victimization is only escalating under this administration as it takes on the mantle of the anti-trans culture war. Trump has used this issue as a partisan wedge, claiming that Democrats “want transgender for everybody, everybody transgender.”⁹¹ Nonsensical phrasing aside, the core of this framing is dangerous, especially as it is borne out in executive policy considerations. The Trump DOJ has latched onto claims that trans people are a security threat and has considered measures to ban trans people in the United States from owning guns in response to false narratives of an epidemic of trans mass shooters,⁹² a move so extreme that the NRA has publicly expressed

opposition to it.⁹³ Reporting also indicates that the FBI “is preparing to designate transgender people as ‘violent extremists’ in the wake of Charlie Kirk’s murder.”⁹⁴ After Kirk’s killing, Attorney General Pam Bondi claimed that the left is “ ‘putting this crazy ideology in our schools,’ echoing the growing view of many in Trump’s inner circle that a ‘cult of gender ideology’ is behind an explosion of violence by some as yet unidentified ‘radical left,’ ”⁹⁵ despite the complete lack of evidence for such conspiracy theories. As trans people become an increasingly common scapegoat, the United States becomes an increasingly terrifying place for trans people to live.

Regardless of one’s personal beliefs about trans people, it is obvious that the anti-trans moral panic has no basis in reality but plays an outsized role in American politics and culture. Moreover, legal scholars should recognize that the Trump administration’s actions—issuing executive orders that intrude into domains of power relegated to Congress and threatening the constitutional rights of a minority group with no real justification—have significant constitutional implications. As it stands, the Executive Branch poses a significant threat to the lives of trans people, usurping legislative power to do so.

II. THE LIMITS—AND RISKS—OF JUDICIAL INTERVENTION

This Part will analyze the role of another branch of the federal government in the battle over trans rights: the judiciary. Much of the legal scholarship on trans rights thus far has focused on leveraging existing law and utilizing the courts as the main tool to secure protections. This Part will evaluate those arguments and discuss how these protections are at risk of being gutted under the current Trump administration, significantly limiting the courts’ ability to protect trans healthcare. This Part will also discuss the limits of sex discrimination doctrine in achieving large-scale trans rights victories.

A. The Limits of Existing Federal Protections

Two major federal statutory schemes have been utilized to argue for trans healthcare protections: Medicaid and the Affordable Care Act.

Medicaid

Medicaid⁹⁶ is a “system of ‘cooperative federalism,’ ”⁹⁷ jointly funded by the federal government and the states to provide healthcare services to the indigent.⁹⁸ Medicaid requires states to cover medically necessary care. Within the Medicaid Act itself, “[t]he principal statutory basis for the contention that states cannot eliminate coverage for medically necessary services is the general purpose clause,”⁹⁹ which allows Congressional appropriations of funding to enable

each State, as far as practicable under the conditions in such State, to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or self-care.¹⁰⁰

Beyond the statute, federal regulations require state Medicaid programs to cover certain services for Medicaid recipients. While states cannot “arbitrarily deny or reduce the amount, duration, and scope of a required service . . . solely because of the diagnosis, type of illness, or condition” of the beneficiary,¹⁰¹ states do retain a certain level of discretion. State agencies “may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures.”¹⁰²

This “medical necessity” criterion has never been officially defined at the federal level for the purposes of Medicaid. Nevertheless, medical necessity “has become a judicially accepted component of the federal legislative scheme.”¹⁰³ The Supreme Court has acknowledged that “serious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage.”¹⁰⁴ As a result, “the medical necessity of the procedure is the touchstone for evaluating the reasonableness of standards in state Medicaid plans.”¹⁰⁵ This could serve as an extremely powerful tool in GAC litigation for Medicaid recipients because the data is overwhelming and certain—GAC is medically necessary.¹⁰⁶ As there are an estimated 276,000 transgender adults enrolled in Medicaid, Medicaid coverage of GAC would be life-saving for a significant number of people.¹⁰⁷

The debate over the merits of this argument goes back decades. For example, in 1980, the Fifth and Eighth Circuits came to opposing conclusions on state Medicaid coverage of gender-affirming care. In Pinneke v. Preisser,¹⁰⁸ the Eighth Circuit held that gender-affirming care could be found to be medically necessary for a Medicaid recipient, and “[t]he decision of whether or not certain treatment or a particular type of surgery is ‘medically necessary’ rests with the individual recipient’s physician and not with clerical personnel or government officials.”¹⁰⁹ The Fifth Circuit came to a seemingly opposite conclusion in Rush v. Parham.¹¹⁰ The court in Rush noted that, although the physician has “the primary responsibility of determining what treatment should be made available to his patients . . . the physician is required to operate within such reasonable limitations as the state may impose.”¹¹¹ This ruling upheld a Florida law that limited physicians’ power by denying coverage for gender-affirming care (which the state believed to be “experimental”), even when the physician approved the treatment.¹¹² The reason for the differing outcomes essentially came down to the question of whether states could provide evidence that these services were experimental, demonstrating the weight of state discretion in Medicaid cases.¹¹³

In the following decades, successful arguments for Medicaid coverage of GAC have often rested on the fact that there is broad medical consensus in favor of GAC, and these services should thus be considered medically necessary. Some have even recognized that past decisions denying coverage for gender-affirming care lacked the medical knowledge now available.¹¹⁴ These cases demonstrate that an understanding of medical necessity that incorporates medical consensus is vital to protecting gender-affirming care.

However, not all courts have this understanding. Because of the weight of a state’s discretion in defining medical necessity, a state’s characterization of GAC services as “experimental” could sink the justification for Medicaid coverage of GAC, especially in front of judges who do not recognize the stakes of treating gender dysphoria. At least eleven states have instituted policies excluding trans healthcare for all ages from their Medicaid policies,¹¹⁵ indicating that deference to state discretion is becoming increasingly risky. So, while the “medical necessity” argument has been successful in securing GAC in many cases, it is not a surefire solution to protecting Medicaid coverage of these services.

This is especially true under the new Trump administration and its influence on Congress. Precedent set by the Supreme Court in Harris v. McRae weakens the medical necessity argument.¹¹⁶ There, the Court considered whether state Medicaid programs were required to cover the cost of medically necessary abortions when the state would not receive federal reimbursements due to the Hyde Amendment, which prohibited the use of federal funds to pay for abortion services.¹¹⁷ The Court ruled that states had no such obligation, despite the plaintiffs’ argument that that the state’s refusal to pay for medically necessary abortions violated the Medicaid statute as well as their Due Process rights under Roe v. Wade.¹¹⁸ Rejecting these arguments, the Court held that “absent an indication of contrary legislative intent by a subsequent Congress, Title XIX does not obligate a participating state to pay for those medical services for which federal reimbursement is unavailable,” so the exclusion of coverage for even medically necessary abortions did not violate Medicaid regulations.¹¹⁹

Members of Congress are exploring the possibility of creating an equivalent of the Hyde Amendment for trans healthcare. The House Appropriations Committee’s proposed Fiscal Year 2026 bill for the Labor, Health and Human Services, Education, and Related Agencies Subcommittee included language blocking the use of funds for “for any social, psychological, behavioral, or medical intervention performed for the purposes of intentionally changing the body of an individual (including by disrupting the body’s development, inhibiting its natural functions, or modifying its appearance) to no longer correspond to the individual’s biological sex.”¹²⁰ The scope of this provision is wide-ranging, and “[r]ead broadly, the provision could shutter entire hospital programs that serve transgender patients and, at minimum, severely disrupt care for adults who rely on Medicaid, Medicare, and other federally funded services.”¹²¹ Should a provision like this pass, states will be free to argue that they are not obligated to cover GAC services under Harris.

President Trump has wielded his influence on this matter, using anti-trans provisions as a key point in his messaging on government funding debates in Congress.¹²² Another issue is posed by President Trump’s Executive Order restricting GAC for transgender youth.¹²³ The Executive Order is also analogous to the Hyde Amendment in that it seeks to halt federal funding for GAC.¹²⁴ Whether this element of President Trump’s Executive Order will stand in the coming years is another unanswered question, especially because the President does not have Congress’s Commerce Clause authority. Nonetheless, in an era where the Supreme Court is expanding the Executive’s power beyond its traditionally understood limits,¹²⁵ the Order could very well survive and foreclose the medical necessity argument for trans healthcare in Medicaid litigation.

The Affordable Care Act

Another major federal legislative scheme that has been used to strike down bans on GAC is the Affordable Care Act (“ACA”).¹²⁶ It has been argued that GAC bans violate Section 1557, the anti-discrimination provision of the Affordable Care Act. This provision states that:

Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 794 of Title 29 [(The Rehabilitation Act)], be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments). The enforcement mechanisms provided for and available under such title VI, title IX, section 794, or such Age Discrimination Act shall apply for purposes of violations of this subsection.¹²⁷

Section 1557 thus incorporates the protections of other anti-discrimination laws, including Title IX and its prohibition on sex discrimination.¹²⁸ Prior to President Trump’s second term, there had already been significant back and forth over the definition of sex discrimination under this provision. Under the Biden administration, the Department of Health and Human Services (“HHS”) in 2024 issued a rule “codifying that Section 1557’s prohibition against discrimination based on sex includes LGTBQI+ patients.”¹²⁹ This HHS action sought to reinstate and expound upon an Obama-era HHS rule that included gender identity under the umbrella of sex discrimination,¹³⁰ but was removed in 2020 by the HHS under the Trump administration.¹³¹ Three federal courts postponed the effective date of the provisions or prohibited the full implementation of the 2024 rule.¹³²

It follows that federal agencies cannot be relied upon as a stable protector of healthcare rights. Although agencies are a function of the power-sharing system between Congress and the President, as part of the executive branch, they are subject to the priorities and agendas of any given president. The trend towards the weakening of federal agencies¹³³ is further indication that, when important rights are at stake, waiting for an agency to create and implement protections—which could be easily upended when a new president comes into office—is a precarious strategy.

Irrespective of HHS guidelines, the ACA has been successfully used to secure trans rights in litigation, namely as a result of the 2020 Supreme Court decision in Bostock v. Clayton County.¹³⁴

B. The Shifting Borders of Sex Discrimination Law: Bostock and the ACA

Bostock v. Clayton County has sparked national debate over the relationship between LGBTQ+ rights and protections against sex discrimination.¹³⁵ Bostock was a sex discrimination case under Title VII of the Civil Rights Act of 1964, which bans discrimination in employment.¹³⁶ In this case, gay and trans employees brought suit when they were fired after their respective employers learned of the employees’ sexual orientation or transgender status.¹³⁷ The Court held that firing an employee for being gay

or transgender constitutes sex discrimination and thereby violates Title VII.¹³⁸

The Bostock majority opinion focuses on a purely textualist, “formal, sterile, individualistic concept of ‘but-for’ causation,”¹³⁹ never touching explicitly upon gender identity per se. The opinion—written, unexpectedly, by Justice Gorsuch—notes that there is a dispute between the parties as to whether the term “sex” “reach[es] at least some norms concerning gender identity and sexual orientation. But . . . we proceed on the assumption that ‘sex’ . . . refer[s] only to biological distinctions between male and female.”¹⁴⁰ The majority thus operates on a binary definition of sex, choosing not to directly address the term “gender identity.”

It is vital to note that Bostock did not materialize from thin air—there is a body of caselaw considering disparate treatment for gender-nonconformity as a form of sex-stereotyping, and, therefore, as sex discrimination. In the 1989 case Price Waterhouse v. Hopkins, the Supreme Court found that sex-stereotyping is a form of sex discrimination,¹⁴¹ establishing “[s]ex equality’s crown jewel,”¹⁴² the anti-stereotyping principle, which asserts the “idea that sex classifications are illegal when they force people to conform to sex roles, like the homemaker wife or the breadwinning husband.”¹⁴³ The Court noted, for example, that “[i]n the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”¹⁴⁴ Here, as Justice Brennan observed, basing a decision—in this case, a hiring decision—on perceived flaws in the performance of gender is sex discrimination. As a district court later explained, “Price Waterhouse shows that gender-stereotyping discrimination is sex discrimination per se.”¹⁴⁵

The implications for transgender people are apparent in a number of Title VII cases that arose from Price Waterhouse.¹⁴⁶ In 2016, a federal district court judge evaluated some of these cases (including decisions from the Ninth, Sixth, and Eleventh Circuits),¹⁴⁷ ultimately concluding that,

In some usages, the word “sex” can . . . mean the distinction between male and female, or the property or characteristic (or group of properties or characteristics) by which individuals may be so distinguished. Discrimination “because of sex,” therefore, is not only discrimination because of maleness and discrimination because of femaleness, but also discrimination because of the distinction between male and female or discrimination because of the properties or characteristics by which individuals may be classified as male or female.¹⁴⁸

“Sex stereotyping arguments rooted in Price Waterhouse and its progeny have thus far played the most significant doctrinal role in convincing courts to recognize transgender discrimination as sex discrimination.”¹⁴⁹ Bostock follows this line of cases,¹⁵⁰ bringing an undercurrent in sex discrimination law up to the surface: discrimination on the basis of gender non-conformity is a facet of sex discrimination. Regardless of its normative implications, the ruling was clear: “discrimination based on . . . transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”¹⁵¹

The next consideration, then, is whether Bostock’s understanding of sex discrimination applies to the ACA. For now, this is an open question. In Skrmetti, the Court declined to extend the Bostock analysis to the interpretation of a Tennessee statute banning gender-affirming care for trans minors and deferred the question of the scope of Bostock’s reasoning to a later date.¹⁵² Nevertheless, many courts have extended Bostock’s logic, and there are obvious reasons for doing so, as discussed below. The majority in Bostock itself clarifies that questions beyond hiring decisions “are questions for future cases, not these,” which has does nothing to bar courts from applying the analysis thus far.¹⁵³

However, the application of Bostock outside of the Title VII context has been a major point of contention between the lower courts, and the analysis of these approaches is imperative to understanding the current state of federal trans healthcare protections. As stated by the Western District of Washington,

[A] plaintiff states a viable claim for sex discrimination under Title IX, and by extension the ACA’s anti-sex discrimination provision, by plausibly alleging: (1) the defendant is a healthcare program that receives federal financial assistance, contracts or credits; (2) the plaintiff was excluded from participation in, denied the benefits of, or subjected to discrimination in the provision of healthcare services; and (3) the latter occurred on the basis of sex.¹⁵⁴

Because the ACA incorporates Title IX protections, the link between Title VII jurisprudence and the ACA is neither tenuous nor novel. “The entire legal theory of sexual harassment,” one of the most significant strands of sex discrimination law,¹⁵⁵ “has been developed in the context of Title VII,” originating in the issue of quid pro quo sexual harassment in hiring and firing decisions.¹⁵⁶ Federal courts have long used the abundance of sex discrimination case law under Title VII in assessing Title IX claims,¹⁵⁷ including federal appellate courts. For example, the Tenth Circuit reasoned in 1987 that, “[b]ecause Title VII prohibits the identical conduct prohibited

by Title IX, i.e., sex discrimination, we regard it as the most appropriate analogue when defining Title IX’s substantive standards.”¹⁵⁸

Continuing this trend, several courts have extended Bostock’s Title VII analysis of sex discrimination to various contexts, such as Title IX, Equal Protection, and Due Process claims,¹⁵⁹ including appellate courts. The Tenth Circuit has used “Bostock’s commonsense explanation for how to detect a sex-based classification” in evaluating Equal Protection and Due Process claims against an Oklahoma law that prevented transgender individuals for changing the sex listed on their birth certificates.¹⁶⁰ The court found no issue with Bostock’s narrow holding, reasoning that the Bostock “Court’s focus on Title VII and the issue before it suggests a proper exercise of judicial restraint, not a silent directive that its reasoning about the link between homosexual or transgender status and sex was restricted to Title VII.”¹⁶¹ Four circuit courts have mirrored the Tenth Circuit’s reasoning in various Title IX cases: the Fourth Circuit stated in 2020 that “[a]lthough Bostock interprets Title VII of the Civil Rights Act of 1964, . . . it guides our evaluation of claims under Title IX.”¹⁶² Since 2020, the Seventh, Eighth, and Ninth circuits have also approved the use of Bostock’s sex discrimination analysis in evaluating Title IX claims.¹⁶³

Can this analysis be applied to the Affordable Care Act? So far, the only federal appellate court that has done so is the Fourth Circuit; in Kadel v. Folwell, a case from April 2024, the Fourth Circuit held that state health programs must provide coverage for gender-affirming surgeries.¹⁶⁴ The

court directly stated that Bostock provides the appropriate standard, observing that “there is nothing in Bostock to suggest the holding was that narrow” so as to only apply to employment.¹⁶⁵

The Kadel court employed an analogy Justice Gorsuch used in Bostock, a thought experiment in which an interviewer requires the applicant to tick a box on the application indicating whether they are gay or transgender, redacting any indication of the applicant’s sex. In this scenario, even when the employer does not know what the applicant’s sex is, there is still sex discrimination because

There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex . . . . Likewise, . . . [b]y discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.¹⁶⁶

The Fourth Circuit reshaped this analogy and applied it to the healthcare context. At issue in Kadel is North Carolina’s health program, which covers surgical procedures for cisgender people, but does not cover those same procedures for transgender people.¹⁶⁷ The court gave various examples, including that of a patient seeking vaginoplasty, a situation in which the patient’s sex is not readily apparent because the procedure is used by both transgender and cisgender people.¹⁶⁸ Under the state’s policy, the coverage decision cannot be made “without knowing whether the vaginoplasty is to treat gender dysphoria—in other words, whether the patient was assigned male at birth.”¹⁶⁹ The decision, like the interviewer’s decision in Justice Gorsuch’s thought experiment, hinges on the person’s sex. Ultimately, the state law at issue

is textbook sex discrimination, for two reasons. For one, we can determine whether some patients will be eliminated from candidacy for these surgeries solely from knowing their sex assigned at birth. And two, conditioning access to these surgeries based on a patient’s sex assigned at birth stems from gender stereotypes about how men or women should present.¹⁷⁰

While Kadel can serve as a model for courts to use Bostock’s understanding of sex discrimination in ACA cases, the Supreme Court has thrown a wrench in the works by vacating and remanding the case back to the Fourth Circuit in light of its ruling in Skrmetti.¹⁷¹ The Fourth Circuit could very well come to the same conclusion as its original ruling, but uncertainty remains. Nevertheless, Kadel is, in many ways, the culmination of decades of evolving interpretations of sex discrimination law, trending towards the recognition—whether intentional or not—of the role of gender identity in sex discrimination. When we interpret the ACA’s prohibition on sex discrimination to include discrimination on the basis of gender identity and transgender status, many of the legal arguments for gender-affirming care bans collapse. However, the key issue here is just that—interpretation. It comes down to individual judges and justices to interpret sex discrimination law in this manner, and this has led to a significant variation of outcomes in gender-affirming care litigation.

Not every court has applied Bostock in trans rights cases. The Eleventh Circuit, for example, argued that Bostock should not apply in a Title IX case regarding the exclusion of transgender students from school bathrooms that aligned with their gender identity.¹⁷² The court did not interpret Bostock’s ruling as equating sex with gender identity, as “the Supreme Court in Bostock actually ‘proceed[ed] on the assumption’ that the term ‘sex,’ as used in Title VII, ‘refer[ed] only to biological distinctions between male and female.’ ”¹⁷³ The majority even characterizes “reading ‘sex’ to include ‘gender identity’ ” as detrimental to Title IX litigation, claiming that it “would result in situations where an entity would be prohibited from installing or enforcing the otherwise permissible sex-based carve-outs when the carve-outs come into conflict with a transgender person’s gender identity.”¹⁷⁴

The argument that Bostock’s conception of sex does not extend to gender identity is unconvincing. The crux of the argument for linking transgender status to sex discrimination is the choice to fire someone “for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”¹⁷⁵ For example, if “an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine . . . in both cases the employer fires an individual in part because of sex.”¹⁷⁶ Discrimination on the basis of gender non-conformity is thus an inherent aspect of sex discrimination, reflecting the long-established anti-stereotyping principle in sex discrimination doctrine.

Interestingly, the dissenters in Bostock seemed to base their arguments on the belief that the majority is equating transgender status with gender identity. Justice Alito, for example, mentioned the term “gender identity” forty-eight times in his dissent, repeatedly characterizing the majority’s opinion as extending Title VII to gender identity.¹⁷⁷ Such catastrophizing indicates the fear—and understanding—that the Court has recognized gender identity as a facet of sex.

Nonetheless, the Eleventh Circuit has repeatedly insisted that Bostock applies only to Title VII and the employment context. In a 2023 case brought against Alabama for its ban on gender-affirming care for minors, the Eleventh Circuit declined to extend the Bostock analysis to the plaintiffs’ Equal Protection claims.¹⁷⁸ In doing so, the court referenced the Sixth Circuit’s decision earlier that year in L.W. ex rel. Williams v. Skrmetti, which upheld Tennessee’s ban on gender-affirming care for minors.¹⁷⁹ The Sixth Circuit explicitly stated that Bostock’s “reasoning applies only to Title VII.”¹⁸⁰ The Sixth Circuit had already established this position in 2021¹⁸¹ and reiterated it in 2024.¹⁸² It seemed the Eleventh Circuit almost had a change of heart in 2024 when it used Bostock to rule against the exclusion of gender-affirming care from insurance coverage, but this case was granted rehearing en banc, and the original decision was subsequently vacated.¹⁸³

Aligning with the Sixth and Eleventh Circuits, several district courts have declined to extend Bostock beyond the Title VII context.¹⁸⁴ This was also a major component of the reasoning behind delaying the 2024 HHS rule that would have included gender identity under sex discrimination.¹⁸⁵ For example, a Florida district court granted an injunction against the HHS Rule, stating that the “Eleventh Circuit has spoken on this point, clearly: Title IX does not address discrimination on the basis of gender identity.”¹⁸⁶ Whether the Supreme Court will validate these arguments is uncertain. Given the Supreme Court’s ambivalence on Bostock and its affirming of the Sixth Circuit’s ruling in Skrmetti,¹⁸⁷ it could very well refuse to extend its reasoning to the ACA. However, this refusal would be inconsistent with the crux of Bostock’s reasoning: a textualist approach to Title VII.

Common criticisms of expanding the scope of Bostock fall away when considering the ACA context. As discussed above, the link between Title VII and Title IX analysis is well-established, and the ACA explicitly incorporates Title IX’s prohibition on sex discrimination. Justice Thomas’s contention in his Skrmetti concurrence that Bostock cannot be applied to constitutional questions¹⁸⁸ is irrelevant: interpreting the ACA is a matter of statutory analysis, not Fifth or Fourteenth Amendment equal protection doctrine. Justice Gorsuch’s purely textualist approach can just as easily be applied to Title IX as it can to Title VII. The question of whether sex encompasses gender identity are equivalent is also irrelevant: under a but-for causation standard, sex assigned at birth is enough to satisfy the analysis.

Nevertheless, in light of the current legal landscape, arguments under the ACA could be weakened or potentially shut down altogether. While both the ACA and Medicaid have historically been used to secure trans healthcare protections—and could very well be used to do so in the future—these paths are increasingly narrowing.

C. Is Sex Equality Enough? Trans Rights Under Equal Protection

Much of the existing scholarship on trans rights focuses on establishing that LGBTQ+ discrimination is sex discrimination, and rightfully so. Sex discrimination jurisprudence is an already existing framework doctrinally consistent with LGBTQ+ equality, with precedent favorable to trans rights cases, as seen in the above discussion on Bostock. However, as the previous Section demonstrates, there is significant room for judges to inject their own biases in deciding to apply Bostock. For advocates bringing constitutional claims, there is even further risk of anti-trans animus to poison the legal reasoning. This Section discusses how sex discrimination doctrine under an Equal Protection framework can be misapplied or outright ignored in trans rights cases, underscoring the limits of sex equality doctrine in protecting trans rights.

When Is Sex Discrimination Doctrine (Mis)applied?

In assessing how courts deploy sex discrimination analysis, it is worth discussing the definitional debates over the term “sex.” One of President Trump’s recent Executive Orders, for example, states that sex is defined by “an individual’s immutable biological classification as either male or female,” and states that the government will only “recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality.”¹⁸⁹

Biologists, medical professionals, and historians, however, dispute this aforementioned “fundamental and incontrovertible reality.” The Executive Order fails to take into account the existence of intersex people, who have “innate bodily traits that . . . cause a person’s chromosomes, gonads or other internal reproductive organs, genitals, and/or hormone function to differ from characteristics that are ‘typically’ male or female.”¹⁹⁰ The manifestations of intersex conditions vary widely¹⁹¹ and are not always obvious or consistently apparent. For example, “[s]ome intersex traits—such as atypical external genitalia—are apparent at birth. Others—such as gonads or chromosomes that do not match the expectations of the assigned sex—manifest later in life, such as around puberty.”¹⁹² Intersex people constitute around 1.7% of the population, although some estimates place the number closer to 4%—because components of sex such as chromosomes, genes, and hormones cannot be evaluated unless testing occurs, many do not realize they are intersex unless they seek such testing as a part of other medical treatment, so the number of intersex people may be significantly undercounted.¹⁹³ While some see intersex people as “statistical outliers” that have no bearing on how we conceptualize sex categories,¹⁹⁴ this framing is inaccurate—rather than being fringe cases, intersex people exemplify the spectrum upon which sex is constructed for everyone. Nor is intersex simply a “third” box to neatly funnel “outliers” into. The vast variation in intersex conditions and the physical manifestations of these conditions indicate that “intersex is not a discrete biological category.”¹⁹⁵

Intersex people are often cited as an indication that sex is socially constructed because the definition of intersex itself is socially constructed. The medical field views intersex as “variations in congenital sex anatomy that are considered atypical for females or males. The definition of intersex is thus context specific. What counts as an intersex phallus, for example, depends on local standards for penises and clitorises.”¹⁹⁶ The treatment of intersex people demonstrates that sex categories are informed by beliefs and norms. However, asserting “that sex is ‘socially constructed’ does not mean that biological sex differences do not exist or do not matter. It simply conveys that our definition of sex, and the way that we categorize people into sexes, is determined by society and our assumptions about how the world works.”¹⁹⁷

It is, of course, unlikely that most politicians and judges are interested in sitting down and carefully pondering the social construction of sex. The purpose of this discussion is to demonstrate that, regardless of normative claims, both objective science and historical reality show that efforts to pin down a definition of “biological sex” are inherently messy, misguided, and inaccurate. Moreover, these messy, misguided, and inaccurate efforts have material consequences in how they are applied and interpreted in the law.

The next question, then, is how sex is or should be defined in the law. Should we define sex based on paperwork? Many states do: twenty-two states and Washington, D.C. allow “residents to mark M, F, or X on their driver’s license,” and sixteen states and Washington, D.C. allow “residents to mark M, F, or X on their birth certificates.”¹⁹⁸ These states promote the idea that gender identity is “the primary indicator of legal sex.”¹⁹⁹ However, not all states agree—some focus on binary, biological indicators of sex. Definitions based in biological sex that identify specific physical traits are deeply misguided, as biologists do not think there is “ ‘one biological parameter that takes over every other parameter.’ ”²⁰⁰ Nevertheless, many state “laws regulate gender and define sex as only male or female, typically based on a person’s presumed reproductive anatomy, chromosomes, hormones, or other physical characteristics at birth.”²⁰¹ At least twelve states regulate sex under these laws, creating “dangerous implications for transgender people when it comes to bathrooms, identity documents, and other areas of law or policy.”²⁰² Laura Lane-Steele identifies the contours of such “ ‘sex defining laws,’ ” which

are a product of state legislatures and school boards, among other legal actors, codifying what they understand to be the true meaning of sex. For the most part, these laws define sex based on some combination of sex assigned at birth (SAAB), genitalia, chromosomes, and reproductive anatomy. Under these laws, people assigned male at birth (AMAB), who have penises, testes, and XY chromosomes are male, while people assigned female at birth (AFAB), who have vaginas, ovaries, uteruses, and XX chromosomes are female. These definitions are deployed to determine if someone is male (M) or female (F) for bathroom access, participation on single-sex sports teams, and eligibility for sex marker changes, among other things.²⁰³

Such laws are not necessarily a barrier to favorable rulings. In bathroom bill cases involving these laws, for example, courts have ruled that trans-exclusionary bathroom policies discriminate on the basis of sex.²⁰⁴ Yet, Lane-Steele points out that although these courts came to the right conclusions, they failed to explain why the state’s definition of sex does not comport with the state’s purported justification for the exclusion.²⁰⁵ As a result, “they are of limited use in future sex-defining equal protection cases.”²⁰⁶

To remedy this, Lane-Steele argues that courts should apply “a contextual approach to sex applied to an equal protection challenge to a sex-defining law” in which “a court would identify the precise model of sex the state is using . . . . Once the court has identified how exactly the state is defining sex, it can then square up the question presented, using the state’s exact definition of sex as the relevant means” to determine whether the state law substantially relates to the state’s interest and should survive intermediate scrutiny.²⁰⁷ However, Lane-Steele also acknowledges that, because the decision to apply a contextual approach requires “rejection of naturalized and pre-legal definitions of sex . . . some conservative judges will not adopt it.”²⁰⁸ As she puts it, “[a] contextual sex analysis is off the table for those committed to certain pre-existing and inflexible views about sex and who cannot suspend their gender ideologies when doing their jobs. Indeed, most, if not all pro-trans arguments are probably off the table for these judges.”²⁰⁹ Judges, then, cannot be fully relied upon to accurately identify and evaluate how states are deploying definitions of sex in sex discrimination claims brought by trans people. Absent such evaluation, equal protection arguments could easily be struck down.

Another issue is that sex discrimination cases depend on which thread of sex equality doctrine the judge chooses to follow. Jessica Clarke identifies an “ascendant”²¹⁰ trend of “sex discrimination formalism” in which judges tend to apply one of

three distinct types of formal rules when it comes to intentional sex discrimination: (1) but-for causation, which asks whether mistreatment would have befallen an individual if their sex were different; (2) anticlassification rules, also referred to as “blindness,” which ask whether a decision-maker acted pursuant to an explicit or implicit policy that considers sex; and (3) “similarly situated” rules, which forbid decision-makers from treating individuals of different sexes who are alike in all relevant respects differently.²¹¹

While Clarke maps this typology in great detail, this Subsection will briefly discuss one of these rules as an example of the judicial malleability of certain aspects of sex discrimination doctrine—the “similarly situated” inquiry, which “has been particularly prominent in transgender rights litigation.”²¹²

In this inquiry, it is necessary to identify which groups are being compared and evaluate whether they are truly similarly situated. Yet, what is the point of comparison? Take, for example, trans inclusion in sports. Satisfying the similarly situated inquiry “requires recognizing gender identity as the relevant point of comparison—that is, that a transgender girl excluded from girls’ sports is being treated worse than other similarly situated girls whose gender identity (when aligned with their ‘biological sex’) is being respected.”²¹³ In other words, the court must understand gender identity as the indicator of sex, rather than “biological sex.” If the court chooses to define sex as “biological sex,” this argument could fail, as the court might find that a transgender girl who is excluded from girls’ sports is being treated the same as other students assigned to teams based on their “ ‘biological sex’ (e.g., male students).”²¹⁴ The definitional debate over sex is thus always running in the background.

Additional complications arise for nonbinary people. While many material concerns of trans people and nonbinary people overlap (such as access to gender-affirming care), other concerns are thought to be in contradiction. For example, “plaintiffs in transgender bathroom cases (ostensibly) are fine with sex separatism in restrooms; their disagreement is with the sex category into which they have been assigned. The same holds true for plaintiffs in transgender-sports litigation: theirs is an issue of sex assignment, not sex separatism.”²¹⁵ Annie Schuver reminds us that for nonbinary people, the re-entrenchment of sex separatism is not the goal; rather, many nonbinary people seek sex-neutral spaces, such as all-gender bathrooms.²¹⁶

How do sex discrimination claims for nonbinary people play out? In analyzing the application of but-for rules to nonbinary cases, Schuver poses the hypothetical of “two students, both assigned female at birth. They are identical in all significant respects, except one identifies as nonbinary and the other does not. The aforementioned bathroom policy requires both students to use the girls’ bathroom because it aligns with their sex assigned at birth.”²¹⁷

What happens if a judge uses the “similarly situated” route? Similar to the but-for inquiry, if the point of comparison is assigned sex at birth, the argument fails—both students are of the “same” sex, and they were treated equally.²¹⁸ The difficulty here is coming up with an alternate point of comparison. A transgender boy could argue that he was “treated worse than other boys because he was not permitted to use restrooms consistent with his gender identity.”²¹⁹ This argument does not work for nonbinary students. If gender identity is an indicator of sex, then no nonbinary student is being treated worse than any other nonbinary student—none of them have access to all-gender bathrooms, so they are all being treated the same. The judge in this case might hesitate to deviate from this formalistic reasoning because “[a]part from ideology, courts are unlikely to explicitly adopt principles directed at systemic injustice, stereotypes, or balancing of interests as controlling inquiries due to concerns about institutional competence.”²²⁰ So, if a judge chooses to use the similarly situated inquiry in a case of this nature, the nonbinary plaintiff will likely fail.

The success of trans and nonbinary plaintiffs can hinge on the judge’s choices in selecting from a menu of definitions of sex and formal rules of evaluating sex discrimination. There is thus a significant amount of room for personal anti-trans biases to slip into the analysis. Ultimately, “[j]udges with ideological reasons for upholding laws that target transgender people will find grounds for doing so, even if they acknowledge that those laws classify on the basis of sex and therefore trigger heightened scrutiny.”²²¹

When Is Sex Discrimination Doctrine Not Applied At All?

The most consequential recent development in trans rights cases has been the Supreme Court’s 2025 decision in U.S. v. Skrmetti.²²² At issue in this case was a Tennessee law—referred to as SB1—that banned gender-affirming care for transgender minors. The operative word here is “transgender”—the same procedures are permissible

to treat a minor’s congenital defect, precocious (or early) puberty, disease, or physical injury. . . . The law defines the term “[c]ongenital defect” to include an “abnormality present in a minor that is inconsistent with the normal development of a human being of the minor’s sex,” . . . but excludes from the definitions of “[c]ongenital defect” and “disease” “gender dysphoria, gender identity disorder, [and] gender incongruence.”²²³

In other words, cisgender children can receive these treatments, but healthcare providers are prohibited from administering the same treatments to transgender children. Three transgender minors, their parents, and a medical provider were joined by the United States government under President Joe Biden’s administration in bringing suit against the law, alleging that it violated equal protection.²²⁴

Unlike the above discussion on the misapplication of sex discrimination doctrine, the majority—written by Chief Justice Roberts—sidestepped the application altogether, holding that SB1 classifies on the basis of age and on the basis of medical use, neither of which “turn[] on sex. Rather, SB1 prohibits healthcare providers from administering puberty blockers and hormones to minors for certain medical uses, regardless of a minor’s sex.”²²⁵ To establish SB1’s classification on the basis of medical use, Roberts used the example of a transgender boy who takes puberty blockers to treat his gender dysphoria and a cisgender boy who uses the same treatment for precocious puberty.²²⁶ According to Roberts, SB1 simply “restricts which of these medical treatments are available to minors,”²²⁷ and “[t]he application of that prohibition does not turn on sex.”²²⁸

Nor does SB1, according to the Court, “mask sex-based classifications” because

the law does not prohibit conduct for one sex that it permits for the other. Under SB1, no minor may be administered puberty blockers or hormones to treat gender dysphoria, gender identity disorder, or gender incongruence; minors of any sex may be administered puberty blockers or hormones for other purposes.²²⁹

Chief Justice Roberts also rejected the Plaintiffs’ argument that SB1 constitutes impermissible sex-stereotyping through somewhat circular logic, asserting that there is no sex-stereotyping because the law does not classify on the basis of sex.²³⁰

The opinion also dodged the question of whether transgender individuals constitute a suspect or quasi suspect class, asserting that the question is immaterial in this case because “SB1 does not classify on the basis of transgender status.”²³¹ In reaching this conclusion, the majority resurrects a case that had “long been largely moribund as a precedent”²³² in Supreme Court equal protection doctrine since it was handed down in 1974—Geduldig v. Aiello.²³³ In Geduldig, the Court upheld a California insurance program that excluded pregnancy-related disabilities from coverage, ruling that the policy did not discriminate on the basis of sex.²³⁴ The Court “explained that the program did not exclude any individual from benefit eligibility because of the individual’s sex but rather ‘remove[d] one physical condition—pregnancy—from the list of compensable disabilities.’ ”²³⁵ Furthermore, there was no sex discrimination because the program “divided potential recipients into two groups: ‘pregnant women and nonpregnant persons,’ ” and “[b]ecause women fell into both groups, the program did not discriminate against women as a class.”²³⁶ This case established that “a State does not trigger heightened constitutional scrutiny by regulating a medical procedure that only one sex can undergo unless the regulation is a mere pretext for invidious sex discrimination.”²³⁷

Chief Justice Roberts analogized SB1 to the insurance program at issue in Geduldig. SB1

removes one set of diagnoses—gender dysphoria, gender identity disorder, and gender incongruence—from the range of treatable conditions. SB1 divides minors into two groups: those who might seek puberty blockers or hormones to treat the excluded diagnoses, and those who might seek puberty blockers or hormones to treat other conditions . . . . Because only transgender individuals seek puberty blockers and hormones for the excluded diagnoses, the first group includes only transgender individuals; the second group, in contrast, encompasses both transgender and nontransgender individuals.²³⁸

This logic, coupled with the lack of showing that “SB1’s prohibitions are mere pretexts designed to effect an invidious discrimination against transgender individuals,” led the Court to reject a finding of discrimination on the basis of transgender status.²³⁹

Because the Court found no sex-based classification and no suspect or quasi-suspect class status for trans people, it did not apply heightened scrutiny.²⁴⁰ Instead, under a rational basis review standard, the Court upheld SB1. Echoing Tennessee’s misleading claims about the supposed experimental nature of gender-affirming care and its threat to the mental and physical wellbeing of minors, the Court found SB1 to be rationally related to the state’s purported “interests in ‘encouraging minors to appreciate their sex’ and in prohibiting medical care ‘that might encourage minors to become disdainful of their sex.’ ”²⁴¹

Justice Sotomayor laid out a powerful critique of the majority’s unconvincing reasoning in her dissent, pointing out that which is obvious—SB1 facially classifies on the basis of sex and on the basis of transgender status. The majority’s assertion that the law does not classify on the basis of transgender status (an assertion so dubious that even Justice Alito rejected it in his concurrence)²⁴² does not hold water. Justice Sotomayor observed that the law “prohibits Tennessee physicians from offering hormones and puberty blockers to allow a minor to ‘identify with’ a gender identity inconsistent with her sex.”²⁴³ However, “[d]esiring to ‘identify with’ a gender identity inconsistent with sex is, of course, exactly what it means to be transgender. The two are wholly coextensive.”²⁴⁴

Even more salient for the purposes of this Note is Justice Sotomayor’s argument that SB1 does classify on the basis of sex. The law establishes that “sex determines access to the covered medication.”²⁴⁵ To illustrate, Justice Sotomayor used the example of a “mother who contacts a Tennessee doctor, concerned that her adolescent child has begun growing unwanted facial hair. This hair growth, the mother reports, has spurred significant distress because it makes her child look unduly masculine.”²⁴⁶ The physician’s course of action “depends on the adolescent’s sex. If the patient was identified as female at birth, SB1 allows the physician to alleviate her distress. . . . What if the adolescent was identified male at birth, however? SB1 precludes the patient from receiving the same medicine.”²⁴⁷

Justice Sotomayor identified a key point that is completely glossed over by the majority—the treatments at issue are used by both transgender and cisgender children for gender-affirming purposes. Medical providers

may prescribe these same medicines to adolescents whose physical appearance does not align with what one might expect from their sex identified at birth. An adolescent female, for example, might receive testosterone suppressors and hormonal birth control to reduce the growth of unwanted hair on her face or body (sometimes called male-pattern hair growth or hirsutism). . . . [and] [a]n adolescent male may also receive hormones to address a benign but atypical increase in breast gland tissue (known as gynecomastia), sometimes resulting from below-average testosterone levels. Like any medical treatment, hormones and puberty blockers come with the potential for side effects. . . . Yet patients and their parents may decide to proceed with treatment on the advice of a physician, despite the accompanying medical risks.²⁴⁸

This passage highlights that cisgender children, like transgender children, may have an interest in potentially altering even physically “benign” characteristics to alleviate psychological distress about their gender presentation. Under SB1, cisgender children and their parents are allowed to make informed decisions about their treatment in conjunction with their doctors. Transgender children, seeking the same care with the same informed consent standards and for the same purpose, do not have the same right.

Such a policy is, contrary to the majority’s circular logic, rooted in sex-stereotyping. After all, “[m]ale (but not female) adolescents can receive medicines that help them look like boys, and female (but not male) adolescents can receive medicines that help them look like girls,”²⁴⁹ cementing expectations of gender presentation within the law.

This becomes especially clear when considering SB1’s built-in exception for intersex children. SB1, like virtually all state bans on gender-affirming care, provides a carve out for “gender-normalizing surgeries, which are performed on intersex infants to conform their bodies to socially constructed expectations about the male/female binary.”²⁵⁰ In SB1’s case, this is reflected in allowance for the use of these treatments to treat a “ ‘[c]ongenital defect,’ ” which is defined as “an ‘abnormality present in a minor that is inconsistent with the normal development of a human being of the minor’s sex.’ ”²⁵¹ Significant “research has demonstrated that intersex surgeries often produce a range of harms that can include sterilization (sometimes triggering the need for lifelong hormone therapy), loss of sexual sensation, physical scarring, ongoing pain, and a host of psychological ailments.”²⁵² Moreover, “[t]he irreversibility of these surgeries and the inability of infants to consent are abundantly clear.”²⁵³

How can these procedures be squared with GAC bans? The contradiction is glaring—“[t]he very concerns cited to justify the bans—medical harm, irreversibility, and lack of informed consent—are even more pronounced in the context of intersex surgeries.”²⁵⁴ However, “intersex exceptions are, in fact, consistent with sentiments behind bans on gender-affirming care: a deep-seated fear of and discomfort with children who do not conform to traditional sex stereotypes.”²⁵⁵ Tennessee’s concern that minors “appreciate their sex” seems to fall away when it considers intersex children, whose physical characteristics at birth can “challenge cultural understandings about the fixedness of biological sex characteristics.”²⁵⁶ By allowing for exceptions for intersex and cisgender children, the law reflects the state’s commitment to enforcing sex stereotypes. The majority’s sanctioning of such a law threatens and “implicates the core concern of the Supreme Court’s sex discrimination jurisprudence—that the state should not use its laws to force individuals to conform to a stereotyped view of how members of one sex should act.”²⁵⁷

Even if we put aside these contradictions and assume that Tennessee is operating out of a good faith concern for protecting the health and wellbeing of minors, the fundamental calculus does not change. Deference to the state in its policy decisions may be valid and necessary in some contexts, but Justice Sotomayor reminds us that the role of the legislature “does not change the Court’s obligation, as mandated by our precedents, to determine whether the challenged sex classification in SB1’s categorical ban is tailored to protecting minors’ health and welfare, or instead rests on unlawful stereotypes about how boys and girls should look and act.”²⁵⁸ The core question here is not a finding of fact regarding the medical efficacy of GAC procedures to the treat gender dysphoria—the question is whether the law is subject to heightened scrutiny, and thereby, whether the law is sufficiently tailored to the state’s purported interest. Had the majority applied sex discrimination analysis and heightened scrutiny, it could have formed a far more principled analysis of SB1.

The long-term implications of Skrmetti are yet to be seen. While “ ‘[t]he Court left undisturbed Supreme Court and lower court precedent that other examples of discrimination against transgender people are unlawful,’ ”²⁵⁹ Skrmetti “offers cover for the courts, including the Supreme Court, to simply deny reality and refuse to see sex or gender identify classifications. If there was no such classification in Skrmetti, then perhaps there are also no such classifications in laws banning transgender people from the military, excluding them from sports, or banning them from gender-identity-congruent restrooms.”²⁶⁰

The Supreme Court seems open to such outcomes, vacating and remanding major favorable trans rights cases back to the circuit courts: Kadel v. Folwell²⁶¹ and its companion case Anderson v. Crouch²⁶² in the Fourth Circuit, as well as Fowler v. Stitt²⁶³ in the Tenth Circuit. While Kadel and Anderson concerned GAC coverage, Fowler had nothing to do with trans healthcare; the state law at issue involved gender markers on identity documents.²⁶⁴ Despite Skrmetti’s apparent silence on issues outside trans healthcare for minors, it seems that the Court is willing to wield its influence on the lower courts on other trans rights issues. This influence is far reaching—even cases untouched by the Court are now being reconsidered. For example, the Seventh Circuit has decided sua sponte to vacate and reopen D.P. v. Mukwonago Area School District (a trans bathroom case in which the court ruled in favor of the transgender plaintiff) in light of Skrmetti.²⁶⁵

Skrmetti is a prime example of how, even when there is obvious sex discrimination at play in a trans healthcare case, the courts—including the highest court in the land—can simply ignore it. While the battle for trans rights is ongoing and unresolved, the case poses a significant danger to trans healthcare—and the future of the Court’s equal protection doctrine.

III. CONGRESSIONAL ACTION: MODERNIZING CIVIL RIGHTS LAW

This Part argues that Congress should pass new civil rights legislation specific to LGBTQ+ equality. This Part then proposes that, as a part of this legislation, Congress pass a new healthcare statute prohibiting “discrimination on the basis of transgender or nonbinary status.”

A. Reframing LGBTQ+ Equality

Through the courts, the category of “sex” in discrimination claims has broadened to include trans people. As the previous Part demonstrates, however, current sex equality jurisprudence has its limitations in that judges retain a certain amount of ideological leeway. This Section proposes reframing LGBTQ+ discrimination as its own category within civil rights law. If broadly applied, this additional categorization would carve out explicit protections for LGBTQ+ people in the same areas as other civil rights laws, such as in employment and education.

On a macro level, there are various reasons for this proposed change. Directly naming LGBTQ+ status as a basis for protection against discrimination codifies a cultural recognition of LGBTQ+ people—in other words, it makes us socially and legally legible. This legibility is especially vital in this current moment, where efforts to erase trans people from public life are on the rise. This change would also acknowledge that LGBTQ+ people face specific challenges that must be addressed and rectified at the national level.

Beyond signaling a new cultural understanding, this change would also significantly simplify the legal analysis. Many judges are ill-equipped to sort through the nuances of sexuality and gender. Instead of bumbling through normative questions into which they can inject their own biases, judges could

focus their decision on a clear question: was this person discriminated against on the basis of their LGBTQ+ status?

B. A Brief Note on Feminism

Some feminists and trans rights advocates may ask that, in a moment where anti-gender ideology and trans-exclusionary feminism is on the rise, does separating LGBTQ+ equality from sex equality concede that the concerns of trans people have no place in questions of women’s rights? For example, does such distinction cement the idea that trans women are not “real women” because their concerns are not the same as cis women?²⁶⁶ Does this not feed directly into the rhetoric of TERFs and the anti-gender ideology movement?²⁶⁷

Not at all—this proposal does not in any way suggest that LGBTQ+ rights should be severed from principles of sex equality. As Courtney Cahill notes, “sex equality and LGBTQ equality are overlapping and interdependent . . . Historically, the social and political movements for sex equality and LGBTQ equality were intertwined—at least for a time—based on their shared commitment to eradicating sex-role stereotypes”²⁶⁸ Just as many “American feminists are far from trans-exclusionary and have long been among the most supportive groups of LGBTQ equality,” many “transgender women and men have long and fully participated in all factions of feminist activism.”²⁶⁹ LGBTQ+ equality and sex equality are inextricably linked, and this Note does not advocate for severing this tie.²⁷⁰

The implementation of this Note’s proposal would not preclude queer and trans people from bringing sex discrimination claims. Regardless of the Supreme Court’s decision in Skrmetti, the Court has made clear that LGBTQ+ discrimination falls under sex discrimination in at least some contexts, indicating that these two forms of discrimination are not mutually exclusive, and decades of sex equality jurisprudence support this understanding.²⁷¹

Activists and advocates have no reason to abandon the implications of this hard-fought victory. The legislation proposed in this Note is based in large part on practicality—creating a new category of discrimination law specific to LGBTQ+ status provides an additional or alternate cause of action when judges misapply sex equality doctrine and avails LBGTQ+ people to a more concrete layer of protection. This Note, therefore, encourages advocates to fight for this legislation in addition to promoting arguments based on sex equality.

C. Legislating New Trans Healthcare Policy

As the central focus of this Note is trans healthcare, I specifically propose that, in conjunction with this reframing of LGBTQ+ equality law, Congress pass a new healthcare statute explicitly prohibiting “discrimination on the basis of transgender or nonbinary status” in the coverage and administration of healthcare services. Congress can use its power of the purse to enforce this law on all institutions receiving federal funding.²⁷²

This proposed legislation is narrow and straightforward. It is predicated on the idea that transgender and nonbinary people should have access to the same treatments available to cisgender people. As discussed in Part II, a core aspect of gender-affirming care bans is that they do not ban this care for cisgender people.²⁷³ The discrimination question—whether it be on the basis of sex or on the basis of transgender status—disappears if legislatures categorically ban GAC for everyone.²⁷⁴ However, legislatures will not do this, “likely because nontransgender people require health care for purposes indistinguishable from gender affirmation,”²⁷⁵ and routinely access this care already. In reality, “most gender-affirming care is in fact provided to cisgender patients—that is, persons whose sex assigned at birth matches their gender identity. Puberty blockers, hormone replacement therapy, and surgery are interventions provided for cisgender and TGD [(transgender and gender-diverse)] patients alike to affect their embodiment of gender.”²⁷⁶

There are also significant disparities in how such care is accessed. For example, among the millions of cisgender men taking off-label testosterone to affirm their masculinity, studies demonstrate that these men “tend to initiate conversations about the treatment, do their own research at home, and see their role in decision making as that of self-advocacy.”²⁷⁷ In contrast, when trans patients pursue hormone therapy, they are “criticized by prescribers for doing their own research, asking about interventions ‘out of turn,’ and advocating for access to gender-affirming care.”²⁷⁸ Both cisgender and transgender people “may engage in the same behaviors that facilitate cisgender access to the hormone but experience very different judgments from some clinicians.”²⁷⁹

These disparities are not just seen in attempts to seek hormone therapy, but also in attempts to receive gender-affirming surgery. Research has shown that while gender-affirming surgeries are incredibly rare for trans minors, “cisgender minors and adults had substantially higher utilization of analogous gender-affirming surgeries than their [transgender and gender-diverse] counterparts.”²⁸⁰ For example, “[d]espite affecting analogous anatomical structures and sharing evaluation criteria, the legitimacy of cisgender postmastectomy surgery has been protected in law, whereas the legality of chest surgery for TGD people is being undermined in many states.”²⁸¹ Prohibiting discrimination on the basis of transgender and nonbinary status would help reduce these disparities and increase fairness in the administration of healthcare.

Has Skrmetti foreclosed the efficacy of such a statute by holding that a ban on GAC for minors does not discriminate on the basis of transgender status? Not necessarily. Skmetti’s reliance on Geduldig²⁸² is actually instructive here. As Reva Siegel explains, the Supreme Court applied its Geduldig reasoning to General Electric Co. v. Gilbert,²⁸³ a pregnancy discrimination case brought under Title VII, “[b]ut Congress soon repudiated the Court’s efforts. Within two years, it enacted the Pregnancy Discrimination Act of 1978 (“PDA”), which defined discrimination on the basis of pregnancy as discrimination on the basis of sex under the nation’s employment discrimination law.”²⁸⁴

The PDA contains specific language rejecting the Supreme Court’s holdings, clarifying that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.”²⁸⁵ An analogous provision could be implemented in the context of trans healthcare. The statute could prohibit “discrimination on the basis of transgender status” in the administration of healthcare, with the added provision that “the terms ‘because of transgender status’ or ‘on the basis of transgender status’ include, but are not limited to, because of or on the basis of diagnosis of gender dysphoria, gender incongruence, or related medical conditions.” Like the PDA’s rejection of Geduldig and Gilbert, this proposed provision would reject Skrmetti and overcome its negative implications for trans healthcare protections.

D. Notes on Partisanship and Political Responsibility

While I acknowledge that this Note’s proposed legislation cannot come to fruition in the near future, it is worth addressing the politics of protecting trans rights. Some think it is a simple question of partisanship—once Democrats are back in power, they will surely endeavor to protect trans rights. However, it would be a mistake to assume that a Democratic majority in Congress is the direct answer. Many non-cisgender people—the author included—feel that the Democratic Party has abdicated responsibility in protecting trans rights and is headed in a dangerous direction. Of course, Democrats have endeavored to protect trans rights, from President Biden’s administration’s attempts to effectuate trans healthcare protections via HHS guidelines²⁸⁶ and arguments against gender-affirming care bans in front of the Supreme Court,²⁸⁷ to attorneys general of Democrat-led states challenging President Trump’s anti-trans executive orders.²⁸⁸

However, it has been disheartening to see some Democrats and liberals shift away from trans rights as the anti-trans moral panic intensifies. Some Democrats, including high-profile Party figures like California Governor Gavin Newsom, have taken the bait, “ceding ground on trans rights—particularly when it comes to sports—following Trump’s re-election.”²⁸⁹ Some are now parroting Republican talking points about the “dangers” of trans people’s participation in sports and ignoring any sort of scientific nuance on the issue,²⁹⁰ despite the negligible number of trans girls and women in girls’ and women’s sports.²⁹¹ Giving in to these distractions diverts attention from the real, material harms currently affecting trans people and only serves to perpetuate fear of trans people.

Trans people are not only scapegoated for society’s ills by conservatives²⁹² but also scapegoated for the Democratic Party’s own failures. Some blame support for trans rights as a factor in former Vice President Harris’s loss in the 2024 presidential election, despite the fact that “Harris largely avoided the issue on the trail and in interviews and it was notably absent from [that] year’s Democratic National Convention.”²⁹³ There was virtually no response to Trump’s anti-trans advertising, and “reports have emerged indicating that some Democratic strategists [were] shaken by the anti-trans ad blitz and are getting cold feet around anti-trans advertising.”²⁹⁴ The last election’s postmortem need not be reopened, but these points are important to acknowledge because they indicate that, to many, trans people are now an “issue” to be debated and cast aside when politically expedient. This is especially obvious as the Party debates how to appeal to voters²⁹⁵ in the midst of a “new discomfort on the issue from a party that has long seen itself as a champion of L.G.B.T.Q. Americans.”²⁹⁶ This Note urges Democrats—and for that matter, Republicans—to remember that trans people are ordinary Americans and to not let partisanship interfere with protecting civil rights.

CONCLUSION

This Note has endeavored to outline the current state of trans rights in the United States and to suggest that advocates, lawyers, and policymakers pursue a new strategy to promote trans equality. Passing civil rights legislation specific to trans people will provide protections while limiting both executive overreach and the power of ideologically driven judges, creating a concrete basis upon which trans people can bring discrimination claims.

It will certainly be an uphill battle to reach a point where enactment is feasible. However, it is clear that neither the executive branch nor the judiciary can be relied upon to establish protections for trans people, especially in the realm of healthcare. Nor is it necessarily within their jurisdiction to do so. Congress is the branch that decides how federal funds are spent.²⁹⁷ Congress is the branch that establishes national standards in healthcare policy.²⁹⁸ Congress is the branch that enacts federal civil rights law and provides means of enforcing it.²⁹⁹ Establishing clear standards and protections in the area of trans rights and trans healthcare is thus the responsibility of Congress. Protecting and engaging with the democratic process will therefore be a vital component of the American LGBTQ+ equality movement.

Trans people will continue to exist. As will nonbinary people, intersex people, and gender non-conforming people. How many will be able to survive unscathed by the current legal and cultural assault on our existence is an open question. What is clear, however, is that absent a principled approach to equality, the clock will continue to turn back on civil rights.

99 S. Cal. L. Rev. 677

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Sahna Das*

* Executive Postscript Editor, Southern California Law Review, Volume 99; J.D. Candidate 2026, University of Southern California Gould School of Law; B.A. 2022, University of California, Berkeley. I am deeply grateful to Professor Jessica Clarke for her expertise and guidance in crafting this Note; the editors and staff of the Southern California Law Review for their hard work and thoughtful suggestions; and the millions of transgender, nonbinary, and gender-nonconforming people across the United States who continue to persevere against all odds.

To Defer or Not to Defer: Squaring the Administrative Procedure Act’s “Substantial Evidence” Standard of Review with the Demise of Agency Deference

April 2026May 2026Lindsey Kate Miller*

While the 2024 Supreme Court decision overruling the Chevron doctrine, Loper Bright Enterprises v. Raimondo, held that Article III courts cannot defer to agencies’ findings of law, it was silent on whether judicial deference is owed to agencies’ findings of fact. In reaching this decision, the Court interpreted language from the Administrative Procedure Act (“APA”), a comprehensive legislative scheme that governs administrative agencies’ rulemaking and adjudicative processes and prescribes the applicable standards of review for such actions, to mean that courts must review agencies’ findings of law de novo. Given this holding, one could infer that the APA, which says that courts should apply the deferential “substantial evidence” standard of review to formal agency adjudications, should be interpreted to mean that Article III courts ought to defer to agencies’ findings of fact. However, scholars have, on occasion, argued that this standard of review is unconstitutional. For these scholars, it violates the Constitution’s separation of powers principle, especially in cases involving private rights, in which Article III courts must adjudicate matters from start to end. However, Loper Bright and another 2024 Court case SEC v. Jarkesy both implicitly acknowledged and responded to some of these scholars’ concerns.

This Note builds on these developments. Specifically, it identifies one implication of the Loper Bright holding: Congress has discretion to set standards of review for agency decisions, meaning the substantial evidence standard is lawful in some cases. Additionally, it explores Jarkesy’s revival of the public/private rights distinction, in which public rights cases may be freely adjudicated by agency tribunals. This Note concludes that this distinction is crucial. Under Jarkesy, the APA’s substantial evidence standard attaches to judicial review in public rights cases and implicitly excludes cases that implicate the Seventh Amendment and private rights, since agency tribunals cannot decide Seventh Amendment, private rights cases in the first place. By clarifying the constitutional limits of the APA’s substantial evidence standard, this Note provides courts and litigators with guidance on navigating administrative law challenges in a post–Loper Bright landscape.

INTRODUCTION

It would take roughly 6,500 Supreme Courts to handle the caseload of one of the busiest federal administrative agencies¹ alone.² For many legal commentators, agencies’ significant role in defining and protecting individuals’ rights by adjudicating hundreds of thousands of cases annually is reason to grant extensive powers to these agencies.³ For others, agencies are constitutionally defective, and dangerously so, given how much influence agencies have over our daily lives.⁴ The Supreme Court has recently weighed in on this debate, giving indications that it may fall into the latter camp.⁵ Among its recent criticisms of administrative law, the Supreme Court has derided judicial deference to agencies’ interpretations of law.⁶ What the Supreme Court has yet to conclusively decide, among other issues, is whether this concept of judicial independence extends to agencies’ findings of fact.⁷

The Administrative Procedure Act (“APA”) provides a comprehensive scheme for conducting and reviewing adjudications by federal agencies, including setting the standards of judicial review for different types of findings made by agencies.⁸ When Article III courts⁹ review agencies’ decisions made pursuant to “formal” hearings prescribed by the APA, they generally examine agencies’ findings of fact under a deferential “substantial evidence” standard.¹⁰ One who reads the 2024 Supreme Court case overturning the Chevron deference doctrine, Loper Bright Enterprises v. Raimondo, may conclude that the APA’s substantial evidence standard of review passes constitutional muster: there, Chief Justice Roberts noted that section 706(2)(E) of the APA (which codified the substantial evidence standard of review) did mandate deferential judicial review of agencies’ findings of fact.¹¹ Yet, this decision did not explicitly answer whether the APA’s substantial evidence standard itself is constitutional. Rather, the Court merely asserted that Congress intended Article III courts, in applying section 706(2)(E) of the APA to reviews of formal agency adjudications, to defer to agencies’ findings of fact.¹²

In contrast, in interpreting another clause from section 706 of the APA, which says that a “reviewing court shall decide all relevant questions of law” and “interpret constitutional and statutory provisions,”¹³ the Loper Bright Court read in a “de novo” standard of review.¹⁴ This holding stands in stark contrast to decades of judicial deference to agencies’ interpretations of law.¹⁵ Furthermore, this holding brings into relief the fact that the Supreme Court can, and will, interpret the APA to meet constitutional demands. Finally, this holding begs the question: Is the substantial evidence standard of review as applied to formal agency adjudications constitutional?

Some scholars believe it is not. According to these critics, judicial deference to agencies’ findings of fact offends the Constitution’s separation of powers principle, including the judicial branch’s historical primacy, if not exclusivity, over resolving private disputes.¹⁶ However, much of this criticism came before Loper Bright and another Supreme Court case Jarkesy v. SEC¹⁷ were decided, which, taken together, shed light on these issues and contextualize these critics’ arguments.

In Jarkesy, the Supreme Court recognized that the Seventh Amendment right to a jury trial attaches when the cause of action litigated before an administrative tribunal sounds in “common law,” or is analogous to a common law claim, and the case does not involve resolution of a “public right[].”¹⁸ By implication, this allows the executive and legislative branches to freely adjudicate public rights. Consequently, in having the power to regulate public rights, Congress may also limit its power. This is supported by the Court’s finding in Loper Bright that when Congress exercises its discretionary powers, its findings in court are conclusive.¹⁹ One way Congress may limit its power is through setting the applicable standard of review for its findings of fact. Here, Congress creates agencies, meaning it can delegate to agency tribunals the power to make findings of fact and tell courts to scrutinize these findings according to the applicable standard of review.

This Note’s conclusion draws support from recent Supreme Court decisions that have, broadly speaking, cut the power of administrative agencies to make legal determinations while also yielding to agency tribunals’ findings of fact. Part I first explores background constitutional principles, including the separation of powers doctrine and scholarly criticisms of administrative law. In reviewing this material, this Part explains one of the rationales behind the APA—to bring administrative law in conformity with these constitutional principles. It also explores whether the APA, according to some scholars, fails to fully vindicate these constitutional concerns because it codifies the appellate review model,²⁰ or the idea that agency tribunals engage in initial fact-finding and law-finding, the former of which is treated deferentially by reviewing courts.²¹ After defining the substantial evidence standard of review in Part I, this Note then proceeds, in Part II, to compare Supreme Court jurisprudence on agencies’ quasi-legislative²² and quasi-judicial power,²³ concluding that, while the Roberts Court has curtailed agency power in many respects, it has spoken little on the issue of whether agency tribunals can make findings of fact, which Article III courts then deferentially review. Then, Part III synthesizes the Court’s holdings in Loper Bright and Jarkesy and concludes that, given the Court’s current formulation of permissible agency adjudication, the APA’s substantial evidence standard of review is constitutional in public rights cases.

I. BACKGROUND

A. Separation of Powers, Checks and Balances, and the Administrative State

In recent discussions of administrative powers, the Supreme Court has often invoked the Framers’ belief in a government that is divided into three branches, each possessing purely legislative, executive, or judicial powers with the ability to “check and balance” the other branches’ excesses.²⁴ According to the Court, administrative agencies, which fall under the purview of the chief executive, challenge this framework, especially when agencies exercise “quasi-legislative” and “quasi-judicial power.”²⁵

Under the separation of powers theory, the division of power between three branches of government serves two purposes: (1) it promotes each branch’s integrity through denying each branch the ability to wield the other branches’ powers, and (2) it uplifts individual liberty through curtailing government overreach.²⁶ As to the first point, the separation of powers principle “preserve[s] the integrity of” the judicial branch, for example, because it affords “judicial Power” to this branch and denies such power to the legislative and executive branches, which gives the courts and their acts credibility.²⁷ In other words, the judiciary as an institution would lose all meaning if Congress or the president could simply do what a court does. Hayburn’s Case makes this clear.²⁸ In that case, the Supreme Court took up the issue of whether Article III courts could, pursuant to a congressional act, hold hearings to determine injured veterans’ eligibility for certain government benefits.²⁹ It answered in the negative.³⁰ There, the Court noted that “the business directed by” Congress was “not of a judicial nature,” meaning that courts had no “constitutional authority” to conduct such hearings.³¹ As Mark Chenoweth noted, the holding of Hayburn’s Case “applied equally to all of the branches”: “No branch could exercise a type of power other than that vested in it by the Constitution.”³²

Additionally, the Founders recognized that when “the power of judging [was] not separated from the legislative and executive powers,” there would be “no liberty.”³³ If Congress or the president could offer their input on “Cases” and “Controversies,”³⁴ the risk of arbitrary decision-making grew. Congress and the president were political actors who were susceptible to temporary “passions” that did not necessarily promote individual rights;³⁵ meanwhile, judges had an office of “judgment,” meaning they were supposed to be independent arbiters in search of the law.³⁶ According to the Founders, separation of powers insulated courts from the political branches and their susceptibility to public pressure, such that judges could exercise their independent judgment and promote individual liberty.³⁷

Separation of powers works in tandem with the checks and balances principle, which further enhances individual liberty. In arriving at this conclusion, the Founders looked to the English court system in which judges had no tenure or salary protections, which created arbitrary decision-making marked by executive pressure on judges.³⁸ Thus, the Founders surmised that these constitutional guarantees, in addition to other structural checks and balances such as executive and legislative involvement in the selection of Article III judges, would reduce the risk of each branch wielding power without limit.³⁹ Meanwhile, Philip Hamburger, an administrative law skeptic, argues that the separation of powers and checks and balances system promotes individual liberty because liberty can be “constrain[ed]” only in certain situations: here, an individual’s liberty is constrained inasmuch as Congress can pass legislation and judges can issue judgments determining what they can and cannot lawfully do.⁴⁰ Furthermore, the executive branch binds individuals only in the sense that it implements congressional acts, such as disbursing government benefits, or seeks enforcement of the laws in the courts.⁴¹

The Three Branches of Government

The Constitution incorporates the separation of powers and checks and balances principles by vesting “legislative Powers” in Congress, “executive Power . . . in a President,” and “judicial Power” in “one supreme Court[] and . . . inferior Courts as . . . [prescribed by] Congress,”⁴² and enumerates some of these “Powers.”⁴³ Yet, the Constitution is relatively short and somewhat vague regarding the three branches’ functions, which has resulted in gap-filling by the courts to define the precise contours of legislative, executive, and judicial powers.⁴⁴

For the legislative branch, the “intelligible principle” doctrine has informed much of what Congress can do. Here, Congress’s ability to implement laws depends on telling the president what to execute.⁴⁵ However, given that laws require the vote of a majority of members of Congress to enact, sometimes have technical aspects that Congress is ill-equipped to handle, and often entail unforeseen consequences, Congress may not necessarily write laws with clarity and may leave the details to the executive to hash out.⁴⁶ So, when the executive fills in statutory gaps, they may be engaging in lawmaking power in contravention of the separation of powers principle.⁴⁷ In response to this concern, the Supreme Court in J.W. Hampton, Jr., & Co. v. United States held that not all delegations were unconstitutional; only when Congress failed to provide sufficient instructions to the executive branch, or what the Court called an “intelligible principle,” did the president impermissibly engage in lawmaking.⁴⁸ This was because an intelligible principle authorized the executive branch to do no more than act as a “mere agent of the law-making department to ascertain and declare the event upon which [Congress’s] expressed will” or policy “was to take effect.”⁴⁹ Notwithstanding recent attacks on the intelligible principle doctrine,⁵⁰ this constraint on congressional power has helped determine what legislative power is and the executive branch’s role in it.

As J.W. Hampton suggested, executive power often depends on whether Congress has given the executive branch any laws to execute. In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court held that President Truman’s executive order, which directed the secretary of commerce to seize steel mills in order to stave off a potential strike, was unlawful because no congressional act permitted him to do so.⁵¹ Yet, presidents are not completely reliant on Congress in order to exercise executive power. As Justice Jackson noted in his influential concurrence, in some situations, the president may be able to act without congressional authorization, such as in the foreign affairs realm, because the Constitution granted the president sole discretion over this realm.⁵² In the case of a steel mill seizure, however, the Constitution did not give the president sole authority to act.⁵³

Finally, the 1803 Supreme Court case Marbury v. Madison established the core of judicial power, in which Chief Justice Marshall declared that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”⁵⁴ For the Marbury Court, this “duty” meant courts had to resolve the laws in favor of the Constitution.⁵⁵ So, while Congress prevents unlawful exercises of legislative power by the executive branch by supplying it intelligible principles, courts also constrain executive action by serving as the final arbiter of the laws’ meaning.⁵⁶ This means the executive branch is necessarily constrained by courts’ definition of (1) the laws the executive branch is charged with carrying out and (2) its own executive power.

Since Marbury, the Supreme Court has continued to refine its definitions of legislative, executive, and judicial power. Yet, perhaps the most enduring theme in these cases is Marbury’s framing of judicial power as a responsibility—one that may not be abdicated⁵⁷—that courts independently resolve “[C]ases” and “[C]ontroversies.”⁵⁸ While the intelligible principle doctrine may authorize some quasi-legislative actions by the executive branch, courts’ continued insistence on this judicial duty to decide Cases and Controversies, coupled with the Supreme Court’s attacks on agencies’ rulemaking powers in Loper Bright,⁵⁹ sits uncomfortably with the idea of administrative agencies that are empowered to adjudicate individual rights.

Administrative Agencies: A Fourth Branch of Government?

As James Madison warned in 1787, “where the whole power of one department is exercised by the same hands which possess the whole power of another . . . , the fundamental principles of a free constitution[] are subverted.”⁶⁰ Many critics of agency power argue that the rapid creation and expansion of agencies, or what they call the administrative state, during the New Deal in the twentieth century embodies this risk because many modern-day agencies (arguably) perform legislative, executive, and judicial powers in contravention of the Constitution.⁶¹

However, in the same passage, Madison observed that there was “not a single instance” in state constitutions in which the branches were “absolutely separate and distinct”; in fact, he encouraged some overlapping functions between the three branches of government.⁶² Indeed, agencies have been around since our nation’s founding, which may be indicative of the Founders’ understanding of constitutionally permissible distribution of powers. For example, the First Congress authorized executive officers to decide matters such as those relating to taxation and foreign commerce.⁶³ While many administrative state opponents concede this point, they note that such categories fall within the ambit of executive discretion and were never contemplated by the Founders as unconstitutionally encroaching on the legislative or judicial branches.⁶⁴

On the other hand, proponents of agency power maintain that agencies are perfectly consistent with the Constitution because agencies actually promote the two concerns addressed by the separation of powers and checks and balances principles. To this end, such proponents argue that agencies help carry out Congress’s will (given that Congress creates agencies in the first place) while also promoting the president’s interests (through presidential appointment of agency heads).⁶⁵ Furthermore, agencies may enhance individual liberty through making “reasonable . . . judgments about the common good and the general welfare.”⁶⁶ For example, agencies oversee programs intended to prevent or curtail “subordinat[ion] [caused] by market exploitation” and harm caused by “ill health, poverty, pollution, and old age.”⁶⁷

Hamburger rejects the agency power proponents’ arguments and posits that agencies unconstitutionally “exercise . . . binding legislative and judicial powers,” given that the Constitution implicitly rejected government structures from medieval England and eighteenth-century America, which were marked by decision-making bodies that wielded legislative, executive, and judicial powers.⁶⁸ For Hamburger, agencies become unconstitutional when they have “absolute” power, or power that is (1) “extralegal,” meaning it “runs outside the law”; (2) “supralegal,” meaning that agencies rely on “judicial deference” for legitimacy; and (3) “consolidat[ed],” meaning powers that are supposed to be split between three branches are housed in one.⁶⁹ As Hamburger contends, the Founders’ beliefs were informed by English pushback against the Crown’s “prerogative” legislation, called proclamations, and “prerogative courts,” such as the Star Chamber and High Commission.⁷⁰ The Star Chamber, for example, could bind parties and prosecute crimes arising under Crown-issued proclamations.⁷¹ The Star Chamber was authorized to do so because Parliament recognized the Star Chamber’s many advantages, including its ability to dispose of cases swiftly without interference from juries that could be bribed and prosecutors who could be scared off from prosecuting.⁷² Against this backdrop, English courts, unlike the Star Chamber, refused to limit their review of prerogative actions on account of their “office of judgment, in which” judges recognized and adhered to their “duty to follow the law of the land.”⁷³ Eventually, Parliament abolished these prerogative courts in response to public criticism over such courts’ unchecked, extralegal nature and in recognition of the fact that such courts contravened the Magna Carta’s decree that “no one was to be deprived of his liberty or property, other than by the judgment of his peers or the law of the land.”⁷⁴

The Constitution corrected these unchecked dangers, Hamburger argues, through housing judicial power in Article III courts, guaranteeing juries, and providing tenure and salary to judges, among other structural protections.⁷⁵ However, agencies may threaten to undo this constitutional balance by binding people through executive-made legislation and adjudication.⁷⁶ Hamburger’s worry lies partly in the fact that, like the prerogative actors of medieval England, executive officers lack structural protections that promote independent judgment and often opt to work for the president because of personal precommitments favoring the government.⁷⁷

Cass R. Sunstein and Adrian Vermeule contest Hamburger’s version of events. Sunstein and Vermeule argue that administrative state critics like Hamburger focus too narrowly on the risk of executive overreach that they fail to recognize the Founders had other goals in mind when creating a national government.⁷⁸ For Sunstein and Vermeule, the Constitution struck a balance between checking “official abuse” and promoting “public participation and accountability, . . . efficiency in government, . . . rational and coordinated policymaking[,] and . . . the common good and overall welfare.”⁷⁹ The Founders recognized that the executive was well suited to promote these latter goals, which is why they created a powerful executive branch.⁸⁰ While recognizing that some limits to agency power are important, Sunstein and Vermeule oppose eliminating administrative agencies wholesale on constitutional grounds.⁸¹ They argue that too much judicial interference in the realm of administrative law harms individual liberty because it risks the possibility that Article III judges will weigh in on matters

that they are ill-suited to resolve, such as those involving “technocratic expertise and political accountability.”⁸²

Some Supreme Court Justices echo Hamburger’s concerns and question agencies’ constitutionality,⁸³ and the Court as a whole has a “fraught” relationship regarding its view of executive power.⁸⁴ However, as it currently stands, agencies may permissibly wield some power.⁸⁵ To what extent, including whether agencies may conclusively determine facts in some adjudications, remains to be seen.

B. The Administrative Procedure Act and the Standards of Judicial Review

The APA embodies the “appellate review model” in which agencies, much like trial-level courts, hold initial adjudicatory proceedings that courts review using different levels of deference depending on whether agencies’ findings of fact or law are at issue: in the former case, courts grant moderate deference to agencies’ findings, whereas in the latter case, no deference is given.⁸⁶ The appellate review model predates the APA and arose to prominence in the early twentieth century;⁸⁷ it also shaped “widespread demand for legislation to settle and regulate . . . administrative law and procedure” in the 1930s and 1940s.⁸⁸

The Origins of the APA

As Evan D. Bernick, a critic of judicial deference to agency fact-finding, notes, from the nation’s founding until the early twentieth century, “judicial review of governmental action was both narrow and deep”: “It was narrow in that complaints about governmental activity often did not entitle individuals to judicial review”; and “[i]t was deep in that, if individuals did have a complaint that triggered judicial review, that complaint was adjudicated in an especially rigorous way.”⁸⁹ Individuals were precluded from judicial interference unless they could trace government action “upon core private rights.”⁹⁰ This was because the Magna Carta, which in turn inspired the Constitution, held that if the government sought to deprive an individual of certain rights—that is, the private rights of “life, liberty, or property”—it could only do so in accordance with due process considerations and “the law[s] of the land.”⁹¹ In other words, potential deprivation of one’s private rights triggered court intervention that followed certain procedural requirements,⁹² including an obligation to “interpret[] . . . the relevant law,” which was performed by judges, and to “determin[e] . . . the relevant facts,” which was a jury task.⁹³ Congress could not run around these requirements by creating “entities called ‘courts’ ” that could not otherwise exercise judicial power or did not follow these procedural requirements.⁹⁴

Thus, when the executive branch sought to affect an individual’s private rights, it had to do so through an Article III court; it could not bind the individual pursuant to agency proceedings.⁹⁵ Once in an Article III court, any findings of fact made by the executive beforehand were treated as “merely the records of one of the parties in the case” rather than “records at law” with “presumptive verity or validity.”⁹⁶ An 1843 Supreme Court case United States v. Irving⁹⁷ is one such time in which the government had to litigate individuals’ private rights through an Article III court. In that case, the government sought to recover a federal customs collector’s “debt[s] from” the collector’s “sureties” after he had fled the country.⁹⁸ Here, the Court held that the United States Treasury’s various factual findings, including a transcript it created describing the customs collector’s account, were to be treated as “prima facie evidence,” that is, such determinations could be rebutted by other evidence and weighed by juries.⁹⁹ In other words, because the Treasury’s transcript had no “presumptive effect [like] a court record”—notwithstanding it being “an executive record . . . kept by officers who,” like the court, “were expected to exercise judgment rather than will”—the jury was free to determine the transcript’s validity and persuasiveness.¹⁰⁰

Meanwhile, the executive branch could freely adjudicate matters concerning “public rights and quasi-private privileges.”¹⁰¹ This was because “disposition of those legal interests did not require the use of ‘judicial’ power.”¹⁰² The Supreme Court “has not ‘definitively explained’ the distinction between public and private rights,”¹⁰³ but precedent has generally included among the category of public rights “claims that were understood to be held by the people as a whole,” such as

(1) proprietary rights held by government on behalf of the people, such as the title to public lands or the ownership of funds in the public treasury; (2) servitudes that every member of the body politic could use but that the law treated as being collectively held, such as rights to sail on public waters or to use public roads; and (3) less tangible rights to compliance with the laws established by public authority “for the government and tranquility of the whole.”¹⁰⁴

Privileges were created by Congress to “carry out public ends[,] . . . ‘originat[ing] with the state rather than the individual.’ ”¹⁰⁵

In 2018, the Supreme Court in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC affirmed the significance of the public/private rights distinction but essentially collapsed rights held by the people as a whole and quasi-private privileges into the umbrella of public rights.¹⁰⁶ In that case, the Court considered a challenge to the Leahy-Smith America Invents Act, which created an “inter partes” review process.¹⁰⁷ Through the inter partes review process, an individual could petition the United States Patent and Trademark Office to cancel a patent’s claims without needing to resort to a jury trial.¹⁰⁸ “[P]ublic rights,” the Court confirmed, “cover[ed] matters ‘which ar[ose] between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.’ ”¹⁰⁹ There, the Court held that the granting of—and therefore revocation of—a patent constituted a public right because patents (1) were “ ‘public franchises’ that the Government,” and therefore the public, “grant[ed] ‘to the inventors of new and useful improvements’ ”;¹¹⁰ and (2) could be granted by the executive or legislative branches “without ‘judicial determination.’ ”¹¹¹ Therefore, like all other public rights, the granting and revocation of a patent through the inter partes review process could be adjudicated by any branch of government.¹¹²

Historically, when individuals wanted to challenge agencies’ decisions in public rights cases, they had to bring separate lawsuits—rather than appeal the decisions within the agencies—in Article III courts where they would be entitled to “damages or other remedies against wayward executive officers.”¹¹³ However, as Hamburger points out, litigants had to show injury in order to recover.¹¹⁴ Once they demonstrated harm “such as distraint or payment under protest,” then courts would, like in private rights cases, treat the agencies’ findings of fact as prima facie evidence.¹¹⁵ This was because the “judicial proceedings were not extensions of the executive proceedings.”¹¹⁶ Meanwhile, judicial deference, if any were given, applied to the agencies’ findings of law. But Hamburger argues deference is too strong a term since what the courts were doing was “defer[ring] to the law,” which gave the executive discretion to determine public rights, not the agencies themselves.¹¹⁷ The 1840 decision Decatur v. Paulding illustrates this point.¹¹⁸ There, the secretary of the navy, interpreting two statutes, refused to grant a widow two pensions even though the statutes apparently required payment of both.¹¹⁹ As the pensions fell under the public rights doctrine, the executive branch had authority to regulate their disbursement.¹²⁰ Although the Supreme Court recognized it had authority to invalidate an agency’s construction of a statute, the relevant statutes permitted the secretary to interpret them.¹²¹ Thus, the Court merely deferred to the law when it upheld the secretary’s interpretation because the law said the secretary could exercise discretion in disbursing pensions.¹²²

Around the turn of the twentieth century, the appellate review model began to take shape, ushering in an era of judicial deference to agencies’ findings of fact.¹²³ In 1906, Congress passed the Hepburn Act, which modified the process by which the Interstate Commerce Commission (“ICC”) prescribed rate orders.¹²⁴ Before the Hepburn Act, the ICC had to file bills of equity in appellate-level courts for its rate orders to have binding force; afterwards, its rate orders were self-executing thirty days after their issuance.¹²⁵ Another aspect of ICC rate orders that the Hepburn Act changed was how courts reviewed challenges to such orders. Although appellate courts had previously reviewed ICC orders under a de novo standard of review, the Hepburn Act failed to prescribe the applicable standard of review for self-executing ICC rate orders.¹²⁶ In a series of Supreme Court cases following passage of the Hepburn Act, the Court, borrowing from the standard of review that courts applied to jury findings of facts, effectively read in a substantial evidence standard for reviewing self-executing ICC rate orders.¹²⁷ Under this standard, reviewing courts independently analyzed the ICC’s legal findings but deferred to its findings of fact.¹²⁸ This contrasted with decades of precedent in which courts had treated the ICC’s findings of fact as merely prima facie evidence.¹²⁹ For the Court, the substantial evidence standard made sense because the Hepburn Act, in making ICC orders self-executing, “endowed the [ICC] ‘with large administrative functions,’ ”¹³⁰ that is, the ICC had the “institutional competence to determine ‘whether [its] administrative power ha[d] been wisely exercised.’ ”¹³¹

In 1932, the Court assessed the constitutionality of a statute that required reviewing courts to defer to an agency’s findings of fact involving two private parties.¹³² In Crowell v. Benson, an employer challenged the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), which authorized the United States Employees’ Compensation Commission to issue workers’ compensation awards against employers for employee injuries occurring on navigable waters.¹³³ According to the employer, the LHWCA violated the Fifth and Seventh Amendments’ due process and jury trial rights.¹³⁴ The Crowell Court found that the LHWCA’s requirement that reviewing courts defer to an agency’s findings of fact in workers’ compensation matters was “constitutionally unproblematic” because “[t]o hold otherwise would be to defeat the obvious purpose of the legislation to furnish a prompt, continuous, expert and inexpensive method for dealing with a class of questions of fact which are peculiarly suited to examination and determination by an administrative agency.”¹³⁵ Thus, Crowell expanded an agency’s power by permitting it to adjudicate matters involving private rights with at least some binding effect (inasmuch as an agency’s findings of fact were supported by substantial evidence).¹³⁶ Yet, the Court noted that it still had an obligation to independently review (1) an agency’s findings of law as well as to (2) determine “jurisdictional” facts, or facts that had to exist for an agency to not exceed its statutory authority, and “constitutional” facts, or facts that had to exist if a challenged action was to be upheld as constitutional.¹³⁷ This, according to Chief Justice Hughes, was because in private rights cases, “the ‘essential attributes’ of the judicial decision [had to] remain in an [A]rticle III enforcement court,” which courts ensured through reviewing issues of law as well as jurisdictional and constitutional facts de novo.¹³⁸ Yet, the Court’s distinct treatment of jurisdictional and constitutional facts would not last; today, most courts do not review jurisdictional and constitutional facts de novo.¹³⁹

Around the time that the Court decided Crowell, scholars, lawmakers, and interested parties began calling for administrative reform.¹⁴⁰ Although contemporary scholars debate the driving force behind this movement,¹⁴¹ they agree that this movement coincided with a rapid expansion of administrative agencies and an agency-friendly Supreme Court as exemplified by the Crowell decision.¹⁴² For many reformers, Congress could ensure agencies acted lawfully by creating a comprehensive body of law to guide their actions while also correcting potential constitutional violations that they perceived existed in agencies.¹⁴³ One potential violation of prime importance to these reformers was some agencies’ tendency to act as “prosecutor, judge, jury, and executioner” in making the rules and enforcing them.¹⁴⁴ Thus, what would become the APA emerged as a solution to the issue of unchecked administrative power.¹⁴⁵

One thing the APA did to ensure that agencies did not exceed their constitutional limits was to distinguish formal from informal adjudication.¹⁴⁶ It subjected proceedings of the former type to stringent requirements, reflecting the idea that such cases typically needed more than objective tests, measurements, or standards to resolve, and implicated agencies’ executive and quasi-judicial powers.¹⁴⁷

Sections 554, 556, and 557 of the APA governed formal adjudications.¹⁴⁸ Under these sections, agencies conducted “trial-type, adversarial hearing[s]” that were overseen by impartial decisionmakers, typically administrative law judges (“ALJs”).¹⁴⁹ Parties had certain procedural rights in formal adjudications, including the opportunity to appear with counsel, present evidence, and cross-examine adverse parties and witnesses.¹⁵⁰ In enforcing ALJs’ independence, the APA prohibited prosecuting officers from supervising ALJs when they were involved in the same matters, and required that ALJs only communicate with interested parties “openly and upon notice” or on “[e]x parte matters authorized by law.”¹⁵¹ ALJs had other duties under the APA, such as administering oaths, issuing subpoenas, receiving and weighing evidence, and making initial or recommended decisions.¹⁵² An agency was required to conduct formal adjudications when a statute either “explicitly state[d]” that its hearings would be held “on the record” or that the agency would follow the procedures outlined by sections 554, 556, and 557 of the APA.¹⁵³

The APA also provided for judicial review of agencies’ actions.¹⁵⁴ Under the APA, an individual who suffered a legal wrong that was caused by an agency action or as authorized by statute had a right of appeal.¹⁵⁵ Often, these individuals were required to exhaust their administrative remedies before they could obtain judicial review, such as appealing an ALJ’s decision within the agency.¹⁵⁶ Once a case came before an Article III court for review, the court was required to examine the administrative record according to certain standards of review.¹⁵⁷ Per section 706 of the APA, “the reviewing court” was required to “decide all relevant questions of law, interpret constitutional and statutory provisions, . . . determine the meaning or applicability of the terms of an agency action,” and “hold unlawful and set aside agency action, findings, and conclusions” that were

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of th[e] [APA] or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.¹⁵⁸

Under the APA, a reviewing court could apply more than one standard of review depending on the issues that came before it.¹⁵⁹ For example, while the “arbitrary and capricious” standard applied to appeals of all agency actions, an Article III court only applied the substantial evidence standard when it reviewed agency decisions made pursuant to formal agency adjudications or otherwise required by statute.¹⁶⁰ This meant the level of judicial deference afforded to agency actions turned on the issues before Article III courts, in which a court applying de novo review engaged in a more searching examination of the record than a court applying the arbitrary and capricious standard of review.¹⁶¹

The Substantial Evidence Standard of Review

The APA did not actually define the substantial evidence standard of review beyond instructing courts to apply it when reviewing formal adjudications.¹⁶² Despite the APA’s minimal guidance to reviewing courts, legislative history offers some, albeit conflicting, clues on the meaning of this standard of review. As the Senate Judiciary Committee exalted in reporting the bill to the full Senate for consideration, “[t]he ‘substantial evidence’ rule . . . [was] exceedingly important” in the context of judicial review of agency decisions and administrative law generally because this standard embodied many of the concerns underlying the APA, such as ensuring a separation of an agency’s investigatory division from its adjudicatory division, streamlining agency procedures, and promoting fairness to all parties.¹⁶³ Per this view, the substantial evidence standard of review had some constitutional significance (especially as it related to separation of powers concerns) and was meant to make clear to courts that it was “the[ir] duty . . . to determine in the final analysis and in the exercise of their independent judgment[] whether[,] on the whole record[,] the evidence in a given instance [was] sufficiently substantial to support a[n agency] finding, conclusion, or other . . . action as a matter of law.”¹⁶⁴

Yet, the committee’s emphasis on independent judgment seemed to contradict courts,¹⁶⁵ scholars, and even some parts of the Senate Report’s view of the substantial evidence standard, who argued it (1) required a considerable degree of judicial deference to agencies and (2) applied in limited circumstances, namely, to judicial review of agencies’ findings of facts.¹⁶⁶ A prominent proponent of this view was then-Attorney General Tom C. Clark, who wrote a letter in 1945 interpreting some of the APA’s provisions. Tellingly, his letter was appended to the official Senate Report, which complicates the idea that the substantial evidence standard accomplished the “important” goals articulated by the APA’s drafters, such as ensuring separation of powers through judges exercising independent judgment.¹⁶⁷

In his letter, the attorney general argued the substantial evidence standard was “intended to embody” common law, defining it as “more than a mere scintilla[,] [that is,] . . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”¹⁶⁸ In other words, the attorney general treated the substantial evidence standard of review for agency decisions as a corollary to the substantial evidence standard of review that appellate courts applied in evaluating jury determinations of fact.¹⁶⁹

In the jury context, the substantial evidence standard was a “highly deferential” one in which “[t]he verdict [would] stand unless [an] appellant c[ould] show that there [was] no substantial evidence to support it, considering the evidence in the light most favorable to the verdict and with all reasonable inferences deducible from the evidence drawn in support of the verdict.”¹⁷⁰ Judicial review of jury findings of fact was deferential given the Constitution expressly guaranteed resolution of civil and criminal disputes by juries.¹⁷¹ For the Founders, juries “protecte[d] American liberty” because they represented common interests, “guarding against arbitrary rule” marked by judges who could be prone to “develop[ing]” biases “in favor of government.”¹⁷² Thus, the substantial evidence standard, in the jury context, preserved the Constitution’s respect for the jury’s unique, unbiased position. Moreover, judicial deference to juries’ findings of fact was warranted given that juries were closer to the evidence.¹⁷³

Yet, if the APA codified the latter view, then the APA requires courts to apply a standard of review that might not necessarily reap the benefits or address the constitutional concerns the substantial evidence standard was designed to create or resolve, respectively. Perhaps a different standard would be warranted to capitalize on agencies’ unique, often technical, expertise or address the separation of powers concerns that agency adjudication may raise. For administrative law critics like Hamburger, the fact that “an administrative agency is not a jury” is another reason why agencies may be constitutionally defective.¹⁷⁴ Whereas juries do not “have . . . precommitments” to the government, ALJs often do.¹⁷⁵ Therefore, as agency skeptics’ theory goes, ALJs can actually threaten, rather than protect or promote, individual liberty. Other scholars counter Hamburger’s fears because, like juries, ALJs are close to the evidence that parties present.¹⁷⁶ Also, ALJs often have specialized knowledge and expertise that make them particularly suited to resolve the matters that come before them.¹⁷⁷ Meanwhile, a jury, which is comprised of laypersons, is less likely to understand the facts that come before agency tribunals.¹⁷⁸ Thus, a jury may misinterpret technical facts, passing misguided (that is, biased) judgment.

No matter the concerns the latter view may raise, the attorney general’s characterization of the substantial evidence standard has won the day.¹⁷⁹ Indeed, for several decades after the APA’s passage, “agencies proceeded as if” the law had not “change[d] much of anything.”¹⁸⁰ Around the 1960s, as agencies began to rely more heavily on an informal rulemaking procedure created by the APA called “notice-and-comment” rulemaking, courts began to develop common law doctrines to constrain this power.¹⁸¹ On the other hand, courts seldom addressed agencies’ adjudicatory powers, including clarifying what the substantial evidence standard required, given the trend toward notice-and-comment rulemaking.¹⁸²

Universal Camera Corp. v. NLRB¹⁸³ and Allentown Mack Sales & Service, Inc. v. NLRB¹⁸⁴ are two such cases that interpreted the APA’s substantial evidence standard of review. In both, the Supreme Court characterized the standard as akin to the standard applicable to jury findings of facts.

In Universal Camera, the Court reviewed a National Labor Relations Board (“NLRB”) order that had found an employer’s dismissal of an employee was not retaliatory even though the dismissal followed the employee testifying against his employer in a collective bargaining matter.¹⁸⁵ The relevant statute, the Wagner Act, merely said that reviewing courts were to treat the NLRB’s findings of fact as conclusive “if supported by evidence.” Although the words substantial evidence were absent from the Wagner Act, the Court, citing precedent, nevertheless determined this language meant that the relevant standard of review for NLRB orders was the substantial evidence standard of review.¹⁸⁶ To this end, the Court characterized substantial evidence as meaning “more than a mere scintilla. It mean[t] such relevant evidence as a reasonable mind m[ay] accept as adequate to support a conclusion.”¹⁸⁷ This characterization of the substantial evidence standard of review tracked with the substantial evidence standard used in jury trials, in which courts also treated it as a “reasonableness test.”¹⁸⁸ To be sure, the Court went on to explain that substantial evidence meant, regarding judicial review of agencies’ findings of facts, as

[doing] more than creat[ing] a suspicion of the existence of the fact[s] to be established. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.¹⁸⁹

Yet, because section 706 of the APA required reviewing courts to analyze the whole record, the Court determined that Congress intended to reverse common law only with respect to the fact that “substantiality [had to] be determined in . . . light of” the whole record.¹⁹⁰ This meant reviewing courts had to “take into account whatever in the record fairly detract[ed] from its weight.”¹⁹¹

This rule was probably not much different from the substantial evidence standard in the jury trial context. Under the latter standard, courts had to draw “all reasonable inferences” in favor of the jury.¹⁹² Similarly, as noted above, the Universal Camera Court used the term “fairly detracting from its weight” in defining the substantiality test.¹⁹³ This suggests courts may not adopt the agencies’ findings of fact if doing so means ignoring relevant context. After all, drawing reasonable inferences requires courts to consider the validity of facts in light of other facts.¹⁹⁴ Also, Universal Camera did not require courts to draw inferences against the jury, only that courts must take conflicting facts into account.¹⁹⁵

Allentown Mack, decided forty years after Universal Camera, similarly suggested the APA’s substantial evidence standard operated like the substantial evidence standard applicable to jury findings of fact. In that case, a union successfully argued before the NLRB that a factory’s decision to no longer recognize the union after the factory conducted a poll gauging employee support for the union constituted an “unfair labor practice.”¹⁹⁶ The Court reviewed the NLRB’s order under the substantial evidence standard of review and held that the substantial evidence standard was an “objective test.”¹⁹⁷ As an objective test, a reviewing court employing the substantial evidence standard of review had “no room” to afford “deference to an agency’s eccentric view of what a reasonable factfinder ought to demand.”¹⁹⁸ Despite this limitation, Justice Scalia noted that the substantial evidence test still required considerable deference to an agency’s findings of fact: a court’s role was merely “to ensure” that an agency “achieve[d] minimal compliance with [its] obligation” to “draw all those inferences that the evidence fairly demand[ed] . . . , which [was] the foundation of all honest and legitimate adjudication.”¹⁹⁹ Using the same “fairly” language used in the Universal Camera decision, Allentown Mack confirmed that the substantial evidence standard of review was a reasonableness test.

Yet, Allentown Mack concluded that the NLRB’s findings of fact were not supported by substantial evidence.²⁰⁰ For Justice Scalia, the NLRB improperly ignored some evidence before it, including an employee’s statement to the factory that he was not being adequately represented “for the [union dues that] he was paying.”²⁰¹ Taken together, these facts constituted “reasonable, good-faith grounds” on the factory’s part to doubt union support and therefore supported its decision to survey employee support of the union and revoke its recognition of the union.²⁰² Allentown Mack’s holding that the factory’s decision to revoke its recognition of the union did not constitute an unfair labor practice, contrary to the NLRB’s finding, fits uncomfortably with the Court’s description of the substantial evidence standard of review.²⁰³ This suggests the Court may actually apply the standard less deferentially than it claims it should. This holding may also represent a growing trend toward judicial scrutiny of agency power, or it may simply embody a typical application of the substantial evidence standard of review. Whatever proposition Allentown Mack may stand for, however, is beyond the scope of this Note; what is clear is that the Court continues to recognize a duty to give agencies’ findings of fact some “benefit of the doubt” and that the substantial evidence standard of review largely mirrors the standard for reviewing jury findings of fact.²⁰⁴ In fact, as Justice Breyer argued in a separate opinion in Allentown Mack, the majority’s holding effectively changed the standard of review to one that “look[ed] like an ordinary jury standard that . . . reflect[ed] not an agency’s specialized knowledge of the workplace, but a court’s common understanding of human psychology.”²⁰⁵

Agency skeptics have responded to Universal Camera and Allentown Mack’s endorsements of the deferential substantial evidence standard by raising several constitutional concerns. For one, agency skeptics worry that agency fact-finding may be limited since agencies have discretion over whether to permit discovery.²⁰⁶ Furthermore, even when agencies grant discovery, they argue that discovery may be nominal, inequitable, or less effective as compared with discovery in Article III adjudications: in agency proceedings, although private parties “can ask an agency to issue a subpoena,” they have no guarantee that it will “be answered until the hearing”; meanwhile, an agency “can demand testimony and documents long before any hearing—even before [it] brings charges.”²⁰⁷ This stands in contrast to Article III adjudication, in which civil litigants have “equal access to discovery,” and criminal prosecutors have a duty to share information with the defendants.²⁰⁸ Additionally, unlike federal courts, critics suggest that agencies are not required to adhere to federal rules of evidence or procedure, and can “make up certain rules as they go.”²⁰⁹ For example, the Securities and Exchange Commission (“SEC”) has a “Commission[] Rules of Practice, [in which] hearsay is generally permitted, depositions are limited, discovery is generally not permitted,” and ALJs must make initial decisions within “aggressive timelines.”²¹⁰ This is particularly alarming for these agency skeptics, since the purpose of evidence rules, for example, is to regulate the fact-finding process and improve its reliability.²¹¹ Compounding the issue is that parties might not have control over what agencies include in the factual record or be able to supplement it on appeal.²¹² This could be concerning because Article III courts’ review of agencies’ findings of facts are based on the administrative record.²¹³ Moreover, parties often have no opportunity for de novo review at any time in the appeals process, including during intermediate appeals at the agency level, since “many agencies operate under a presumption that . . . [its] internal appellate authority . . . will adopt the ALJ’s ruling.”²¹⁴ Lastly, this process may be circular because “agencies have a vested interest in protecting their power”; as agency skeptics charge, anyone who challenges agencies’ procedures may be out of luck because “no agency is going to rule that its procedures or structure are unconstitutional.”²¹⁵

Since the rise of the appellate review model, the Supreme Court largely ignored these concerns and had instead actually expanded agency power in several respects. That all changed in 2024 when the Court first overruled a landmark 1984 decision that had held that courts had to defer to agencies’ findings of law in certain circumstances,²¹⁶ and then revived the public/private rights doctrine, finding that claims involving private rights must be resolved by a jury in an Article III court.²¹⁷ The next Part explores these developments.

II. THE SUPREME COURT ON ADMINISTRATIVE DEFERENCE

The Supreme Court’s jurisprudence on administrative law tends to fall into one of two categories depending on whether an agency’s actions can be characterized as quasi-legislative or quasi-judicial in nature. This tracks the APA’s distinction of agency rulemaking from adjudication.²¹⁸ While this Note is primarily interested in quasi-judicial power, given that appeals of formal adjudications under the APA trigger the substantial evidence standard of review,²¹⁹ a line of cases dealing with judicial deference to agencies’ quasi-legislative power suggests constitutional limits to agencies’ fact-finding. Section II.A analyzes three deference doctrines that the Supreme Court has applied to judicial review of agencies’ findings of law and has subsequently refined or dismantled entirely. Section II.B then reviews recent quasi-judicial decisions that pave the way for this Note’s conclusion, that the APA’s substantial evidence standard of review is constitutional.

A. Quasi-Legislative Decisions

Skidmore v. Swift & Co., which was decided while Congress debated the merits of administrative reform like the APA, was the first of three forms of deference²²⁰ to agencies’ findings of law that the Court has recognized.²²¹ It is also the most enduring common law deference doctrine as it continues to be cited and applied by the Court today.²²² The other deference doctrines include Chevron deference, which was overruled in Loper Bright, and Auer deference, which the Court may also discard if one takes Loper Bright’s logic to its natural limit.²²³ At their most basic level, Skidmore, Chevron, and Auer deference doctrines answer the question of whether and when courts should take into account agencies’ interpretations of ambiguous statutes and how much weight such interpretations should hold.²²⁴

Skidmore Deference

Skidmore involved a challenge to the meaning of “overtime” as set out by the Fair Labor Standards Act (“FLSA”).²²⁵ Here, the plaintiffs worked at a packing plant as daytime firefighters but also agreed to work several nights to respond to fire alarms.²²⁶ Although the plaintiffs were paid each time they answered alarms, the alarms seldom went off; this meant the plaintiffs spent hours at the plant without compensation.²²⁷ The plaintiffs alleged this nighttime work qualified as “overtime,” and thus they were entitled to compensation for both waiting for and responding to fire alarms.²²⁸ Although the FLSA did not define overtime in this context, the Court looked to an interpretive bulletin promulgated by the administrator of the Department of Labor’s Wage and Hour Division for guidance.²²⁹ According to the administrator, whether waiting time counted as working time (and therefore counted toward overtime compensation) depended “upon the degree to which [an] employee [was] free to engage in personal activities during periods of idleness when he [was] subject to call and the number of consecutive hours that the employee [was] subject to call without being required to perform active work.”²³⁰ The Court held this interpretation was “entitled to respect” given the administrator’s “policies [were] made in pursuance of official duty,” one in which the administrator had much more extensive knowledge of labor issues than would “likely . . . come to a judge in a particular case.”²³¹ However, the Skidmore Court recognized that judicial deference to an agency’s “interpretations and opinions” had limits: deference could be understood as a sliding scale, depending on a number of factors including (1) the “thoroughness evident in [an agency’s] consideration”; (2) the “validity of [an agency’s] reasoning”; (3) an interpretation or opinion’s “consistency with earlier and later pronouncements”; and (4) “all those factors which give [an interpretation or opinion] power to persuade, if lacking power to control.”²³²

Chevron Deference and the Loper Bright Response

Forty years later, the Court revisited the question of judicial deference to agency interpretations of the law in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. In what would become known as Chevron deference, the Court dramatically increased agencies’ power to expound on the meaning of ambiguous statutes by mandating that reviewing courts adopt agencies’ reasonable interpretations of such statutes when agencies defined the statutes through regulations.²³³ Whereas Skidmore deference was narrow (applying to nonbinding agency materials that interpreted ambiguous statutes) and flexible (giving courts discretion over how much weight they could afford agency interpretations), Chevron deference was wide (applying to agency regulations and orders) and inflexible (requiring courts to adopt agency interpretations of ambiguous statutes).²³⁴

Chevron dealt with a 1977 amendment to the Clean Air Act (“CAA”).²³⁵ Under the CAA, “ ‘nonattainment’ States,” or states that had not fulfilled certain air quality requirements set by a previous statute, could authorize “ ‘new or modified major stationary sources’ of air pollution” only in certain situations.²³⁶ In enforcing the CAA, the Environmental Protection Agency (“EPA”) eventually promulgated a regulation that interpreted the meaning of a “stationary source” under the statute.²³⁷ In Chevron, the Supreme Court recognized the term stationary source as used in the CAA was ambiguous and thus answered whether the EPA could validly interpret such term through its regulation that would be binding on permit applicants.²³⁸ The Court concluded in the affirmative.²³⁹ Specifically, the Court held that regulations interpreting statutes “control[ed]” if two conditions were met: (1) Congress did not unambiguously express its intent regarding how a statute was to be construed, and (2) an agency’s construction of a statutory term was reasonable.²⁴⁰ In arriving at this conclusion, the Court pointed to a history of judicial deference to agencies’ interpretations of statutes in cases involving technical knowledge and competing policy interests.²⁴¹ Like precedent, the CAA involved complex subject matter that agencies were uniquely qualified to address; the Court suggested that Congress may not have had the requisite expertise to adequately define stationary sources and wanted to delegate this task to a more knowledgeable body, the EPA.²⁴² Moreover, in enacting the CAA, Congress sought to balance economic and environmental interests.²⁴³ Congress may not have had the time, foresight, or votes to sort out minute details of contested legislation and so either intentionally or unintentionally left this gap to the EPA to fill.²⁴⁴ Given these considerations, the EPA reasonably interpreted an ambiguous term because it promulgated the regulation pursuant to extensive agency studies and was consistent with a concern for “economic growth.”²⁴⁵ Thus, the Court upheld the regulation.²⁴⁶

Shortly after Chevron, Justice Breyer and Justice Scalia further clarified the Court’s holding. According to the Justices, Chevron deference was not motivated by separation of powers concerns, or the idea that judicial deference to agencies’ interpretations of statutory ambiguities “guard[ed] against judicial displacement of political judgments.”²⁴⁷ Rather, “Chevron . . . rest[ed] on [one] simple idea: Courts defer[red] to agenc[ies’] interpretations of law when, and because, Congress has told them to do so. . . . [In other words,] the national legislature retain[ed] control of the deference question.”²⁴⁸

Around the turn of the twenty-first century, the Supreme Court revisited the Chevron doctrine and created what would be known as Chevron “[s]tep [z]ero.”²⁴⁹ Step zero of the Chevron doctrine required that, for an agency interpretation to be entitled to judicial deference, such interpretation needed to “carry the force of law.”²⁵⁰ In United States v. Mead Corp., the Court explained that, as Congress authorized agencies to carry out specific but complex procedures, such as notice-and-comment rulemaking, it followed that Congress probably did not intend that agencies could also conclusively bind individuals through less specific or simpler procedures, such as “policy statements, . . . manuals, and enforcement guidelines,” too.²⁵¹ Instead, these kinds of agency actions should be analyzed through the less deferential Skidmore lens.²⁵²

Although Mead appeared to set the stage for overturning Chevron deference, the Court’s 2005 decision in National Cable & Telecommunications Ass’n v. Brand X Internet Services actually reinforced and expanded it, marking the doctrine’s high-water mark. In Brand X, the Supreme Court held that courts must always apply the Chevron analysis to agencies’ interpretation of statutes—even if prior court holdings interpreted the same statutes—unless prior courts found the relevant statutory terms were unambiguous.²⁵³ Justice Scalia dissented, arguing Brand X’s holding was “bizarre,” if not “unconstitutional,” in light of Mead.²⁵⁴ Justice Scalia noted that if an agency, for example, interpreted an ambiguous statute in a manual, but the Supreme Court rejected this interpretation because it lacked the force of law, this holding would not have stare decisis effect.²⁵⁵ This was because the agency could simply issue a subsequent regulation or order (that is, an act that carried the force of law) interpreting the statute the same way, and a subsequent court applying the Chevron analysis would uphold it if the interpretation was reasonable, notwithstanding the fact that the Supreme Court previously held that same interpretation was unlawful.²⁵⁶

Justice Scalia’s dissent was a sign of future Chevron criticisms. Future decisions chipped away at the Chevron doctrine²⁵⁷ until it was finally overruled in Loper Bright.²⁵⁸ In Loper Bright, the Court decided whether regional fishery management councils under the National Marine Fisheries Service (“NMFS”) could require Atlantic herring fishermen to have observers aboard their vessels and to bear these costs.²⁵⁹ Although the Magnuson-Stevens Fishery Conservation and Management Act governed this situation because it enumerated certain situations in which the management counsels could impose observer-related costs on vessels, it was silent as to whether this option extended to Atlantic herring fishing operations.²⁶⁰ Rather than determine whether the NMFS reasonably interpreted an ambiguous statute, the Court threw out the Chevron analysis altogether. “Article III . . . assign[ed] to the Federal Judiciary the responsibility and power to adjudicate ‘Cases’ and ‘Controversies,’ ” Chief Justice Roberts declared.²⁶¹ This duty extended to interpreting the laws.²⁶² The APA “incorporate[d] th[is] traditional understanding of the judicial function” because it codified that courts decided “all relevant questions of law, interpret[ed] constitutional and statutory provisions, and determine[d] the meaning or applicability of the terms of . . . agency action[s].”²⁶³ That statutes were sometimes ambiguous did not mean agencies had the authority to clarify them.²⁶⁴ Indeed, the Framers recognized that, although laws were thoroughly deliberated with “the greatest technical skill,” they would still contain ambiguities.²⁶⁵ To address this, Article III of the Constitution vested courts with the authority—affirmed in Marbury and the APA—to serve as the final arbiter of the laws’ meaning.²⁶⁶ To the Court, Chevron deference subverted the Constitution and the APA’s directives by requiring courts to abdicate their responsibility to interpret the laws.²⁶⁷ In effect, the Constitution and the APA required courts to uncover a statute’s “best” meaning rather than one of many “reasonable” meanings.²⁶⁸

Loper Bright did not prohibit judicial deference to agencies’ interpretations of law wholesale. It suggested Congress could still enact statutes delegating authority to agencies to “exercise [some] discretion.”²⁶⁹ In such a case, “the best reading of a statute” was that an agency had statutory authority to determine what certain statutory terms meant.²⁷⁰ Ultimately, a court still determined what a statute meant: it just decided in that scenario that a statute delegated discretionary power to agencies to carry out the laws.²⁷¹ While reaching a different outcome, the Loper Bright Court ostensibly endorsed the justification offered in favor of Chevron deference by Justice Breyer and Justice Scalia, that is, that Congress created legislation telling courts that they were to defer to agencies’ interpretations of statutes; here, the APA told reviewing courts that they were not to defer to agencies’ findings of law. Thus, Congress had power to create statutes, including modifying the APA, so that it delegated to agencies the responsibility to define statutory terms.²⁷² Finally, the Court clarified that Skidmore deference was still good law since agencies’ interpretations and opinions “constitute[d] a body of experience and informed judgment” that could guide a court’s analysis of ambiguous statutes.²⁷³

Auer Deference

While Loper Bright clarified the limits of Chevron and Skidmore deference, it did not discuss the fate of Auer deference. Creating a third form of judicial deference to agencies’ interpretations of law, Auer v. Robbins held that an agency’s interpretation of an ambiguous regulation was “controlling unless [it was] ‘plainly erroneous or inconsistent with the regulation.’ ”²⁷⁴ Arguably, Auer deference is still good law since the Supreme Court had the opportunity to overrule Auer in the 2019 case Kisor v. Wilkie but declined to do so.²⁷⁵ Rather, Kisor supplied a limiting principle to Auer deference, noting that a court could defer to an agency’s interpretation of an ambiguous regulation only after concluding the regulation was “genuinely ambiguous.”²⁷⁶ A regulation was genuinely ambiguous if a court “exhaust[ed] all [its] ‘traditional tools’ of construction” to no avail.²⁷⁷

On the other hand, Auer deference could be on its way out if one considers Chief Justice Roberts’s reasons for overruling Chevron deference in Loper Bright. Whereas, for the Roberts Court, Chevron deference contravenes the APA’s command that courts independently determine questions of law, Auer deference also seems to contradict the APA because the APA “directs courts to ‘determine the meaning or applicability of the terms of . . . agency action[s],’ which includes regulations.”²⁷⁸ Another issue with Auer deference, like Chevron deference, involves separation of powers concerns. Justice Scalia questioned Auer deference because it “arrogat[ed]” executive power by enabling agencies to “write . . . law[s] and . . . interpret” such laws.²⁷⁹ Similarly, Chevron deference interfered with “judges[’] [ability] to exercise . . . judgment independent of influence from the political branches.”²⁸⁰ This could explain why Justice Breyer and Justice Scalia did not defend Chevron deference on separation of powers grounds.

B. Quasi-Judicial Decisions

Loper Bright represents the Roberts Court’s view that, regarding agencies’ quasi-legislative powers, agencies have little power to say what the law is. Meanwhile, as to agencies’ quasi-judicial powers, the Court tends to posit that agencies have little power to say who the law applies to: in Axon Enterprise, Inc. v. FTC, the Court held that agencies’ ability to channel certain claims through agency tribunals—in which ALJs promulgate orders subject to review by intra-agency appeals boards—before these claims are entitled to Article III review is limited in certain circumstances;²⁸¹ SEC v. Jarkesy then found that the Seventh Amendment sometimes forbade agencies from binding individuals altogether.²⁸²

Axon Enterprise and Exhaustion of Administrative Remedies

Axon Enterprise traces its holding to Thunder Basin Coal Co. v. Reich.²⁸³ In Thunder Basin, the Court considered a coal company’s challenge to a regulation under the Mine Act, which required mine operators to “post . . . information” indicating whom miners had selected to represent them during required site “safety inspections.”²⁸⁴ Initially, the coal company asked the Mine Safety and Health Administration (“MSHA”) to find that the miners representative requirement violated the National Labor Relations Act’s collective-bargaining provisions, but the MSHA declined.²⁸⁵ Before the secretary of labor sought enforcement of the regulation, the company sought injunctive relief in a district court.²⁸⁶ Additionally, the company argued that the Mine Act’s judicial review scheme—in which ALJs under the Federal Mine Safety and Health Review Commission were supposed to resolve mine operators’ complaints, subject to review by the full Commission, before employers could seek review by Article III appeals courts—violated its Fifth Amendment due process rights.²⁸⁷ Once before the Supreme Court, the Court held that Congress could channel certain claims through agency tribunals and preclude Article III jurisdiction until agencies had issued final orders.²⁸⁸ In so holding, the Court articulated three factors that should aid courts’ inquiry in determining whether Congress “inten[ded]” to preclude review: (1) whether “a finding of preclusion [would] foreclose all meaningful judicial review”; (2) whether a party’s “claims were ‘wholly collateral’ to a statute’s review provisions”; and (3) whether these “claims were ‘outside [an] agency’s expertise.’ ”²⁸⁹

Here, circumstances indicated that Congress intended the Mine Act to preclude district court jurisdiction.²⁹⁰ For one, the Mine Act’s comprehensive review scheme applied to all Mine Act violations and did not “distinguish between pre-enforcement and post-enforcement challenges.”²⁹¹ That the Mine Act provided for appellate court review suggested that the coal company, even if forced to bring its claim to the Commission first, could eventually obtain meaningful judicial review.²⁹² Although the Commission probably could not resolve the company’s constitutional claim, the Court was satisfied that the company had recourse given the Mine Act’s appellate review provision.²⁹³ After all, Congress created the Commission to resolve all claims that fell under the Mine Act and, as such, had requisite jurisdiction and experience to handle the company’s miners representative’s claim.²⁹⁴ This meant that the company’s purpose for filing its suit in the district court, to ask a court to declare that they did not need to post information regarding the miners’ representative, meant it brought a claim that fell within the Mine Act’s review provisions and implicated the Commission’s expertise.²⁹⁵

Axon Enterprise found the Thunder Basin factors counseled in favor of finding initial district court jurisdiction when individuals alleged the SEC and Federal Trade Commission (“FTC”) were structurally defective or that any intra-agency proceedings brought against them were unlawful.²⁹⁶ In this case, the Court handled claims brought by Michelle Cochran, whom the SEC charged with “fail[ure] to comply with” statutory “auditing standards,” and Axon Enterprise, which the FTC alleged violated its “ban on unfair methods of competition.”²⁹⁷ After the SEC and FTC initiated agency proceedings against Cochran and Axon Enterprise, Cochran and Axon Enterprise each brought lawsuits in federal district court alleging the agencies’ double-for-cause removal tenure protections for ALJs meant ALJs were unconstitutionally “insulate[d] . . . from presidential supervision.”²⁹⁸ Axon Enterprise also argued that the FTC’s dual “prosecutorial and adjudicative functions” violated the separation of powers principle as well.²⁹⁹

The Court explained that 28 U.S.C. § 1331, which codified federal question jurisdiction, gave federal district courts jurisdiction to hear parties’ challenges to agency actions, and Congress could take away jurisdiction in whole or in part.³⁰⁰ It thus explained that Thunder Basin was actually a two-step process in which courts first asked whether Congress created a “comprehensive review process” that deprived ordinary district courts of jurisdiction, and, if so, whether the claims brought before them were “of the type[s that] Congress intended to be reviewed within” such scheme.³⁰¹ It was during this second step that courts would apply the Thunder Basin factors.³⁰²

The Court analyzed Cochran and Axon Enterprise’s claims by comparing its findings in Thunder Basin and other cases, Elgin v. Department of the Treasury³⁰³ and Free Enterprise Fund v. Public Co. Accounting Oversight Board.³⁰⁴ Unlike Thunder Basin and Elgin, in which the parties challenged agencies’ “specific substantive decision[s],” such as fining a company or firing an employee, here, Cochran and Axon Enterprise made generalized claims about the validity of the SEC and FTC’s “structure or very existence.”³⁰⁵ Thus, the Court reasoned Cochran and Axon Enterprise’s double-for-cause removal claim (and Axon Enterprise’s prosecutor-and-adjudicator claim) were likely not those that Congress sought to filter through the agencies’ tribunal systems.³⁰⁶

To be sure, the Court applied the Thunder Basin factors and arrived at the same conclusion. Unlike Thunder Basin and Elgin, in which appeals courts could effectively reverse the harm suffered by the coal company and the discharged government employee in Elgin, Michael Elgin, by revoking the company’s fine or reinstating Elgin, here, an appeals court could not undo Cochran and Axon Enterprise’s harm of “having to appear in [potentially unlawful] proceedings.”³⁰⁷ In other words, the Court found that Cochran and Axon Enterprise’s “here-and-now injury” precluded any meaningful review of their constitutional claims.³⁰⁸ Moreover, like Free Enterprise, in which Free Enterprise challenged a tribunal’s existence, Cochran and Axon Enterprise’s constitutional claims were wholly collateral to the SEC and FTC’s proceedings because Congress established these agencies’ tribunals to merely adjudicate claims relating to auditing practices and business mergers, not constitutional issues.³⁰⁹ Finally, Cochran and Axon Enterprise’s claims “raise[d] ‘standard questions of administrative’ and constitutional law, detached from ‘considerations of agency policy,’ ” meaning such claims did not implicate the SEC or FTC’s expertise.³¹⁰ This was unlike Thunder Basin and Elgin, in which the coal company’s and employee’s claims were “intertwined with . . . matters on which the [agencies were] expert.”³¹¹

The Axon Enterprise majority opinion did not actually rule on the merits of the constitutional claims brought by Cochran or Axon Enterprise. In fact, Justice Kagan expressly avoided answering whether the SEC or FTC tribunal structures violated the Constitution’s separation of powers principles.³¹² However, Justice Thomas did address this issue in a concurring opinion.³¹³ For Justice Thomas, Congress impermissibly encroached on Article III courts’ judicial power when it channeled adjudication of certain claims through administrative tribunals with deferential judicial review on the back end.³¹⁴ Whether Congress could empower agencies to conduct hearings that would result in the “impos[ition of] orders and penalties on private parties” hinged on the types of rights it sought to regulate.³¹⁵ The types of rights Congress implicated when it empowered the SEC and FTC to adjudicate claims like those the agencies brought against Cochran and Axon Enterprise were private in nature, and therefore the only way such claims could be resolved was by complete Article III adjudication.³¹⁶ Like Hamburger and Bernick, Justice Thomas looked to history for his analysis.³¹⁷ As Justice Thomas explained, courts historically adjudicated private rights, or rights invoking the Constitution’s guarantees of “life, liberty, and property,” from start to end; meanwhile, agencies could resolve matters involving public rights, or those “belong[ing] to the people at large.”³¹⁸ “[M]onetary fines,” including those that the SEC and FTC sought to impose on Cochran and Axon Enterprise, were historically regarded by courts as “property” interests; accordingly, “[a] civil penalty was a type of remedy at common law that could only be enforced in court[].”³¹⁹ That the APA codified the appellate review model did not mean courts no longer had a duty to resolve claims involving private rights.³²⁰ Rather, the Constitution obligated Article III courts to resolve these claims; Article II tribunals had no role in such proceedings.³²¹ This meant that deferential judicial review of agencies’ findings of fact in these cases was constitutionally questionable because it asked judges to exercise independent judgment in only some respects, that is, only as to matters of law.³²² Yet, as Justice Thomas argued, the Constitution “treat[ed] factfinding [no] differently from deciding questions of law” because Article III explicitly granted appellate jurisdiction to the Supreme Court on matters of fact and law.³²³ This suggested courts, like their eighteenth- and nineteenth-century predecessors, should not “defer to the executive record[s] or the facts supposedly established by it” in cases involving private rights.³²⁴

2. Jarkesy and the Seventh Amendment

Jarkesy responded to some of Justice Thomas’s concerns regarding agencies’ power to adjudicate claims involving private rights.³²⁵ In Jarkesy, the Supreme Court assessed the constitutionality of the Dodd-Frank Act, which gave the SEC the choice to adjudicate an “enforcement action” within the agency or “in federal court.”³²⁶ In this case, the SEC opted to resolve securities fraud charges it brought against George Jarkesy, Jr. and Patriot28, LLC within the SEC.³²⁷ The Court concluded that the SEC could not choose where it adjudicated securities fraud claims because these claims clearly implicated the Seventh Amendment and its guarantee of “trial[s] by jury” in Article III courts.³²⁸

The Court noted that agencies could sometimes adjudicate claims in executive branch tribunals.³²⁹ Specifically, agencies could adjudicate claims it brought against third parties (and vice versa) if (1) such claims did not “implicate the Seventh Amendment” or, (2) if such claims did implicate the Seventh Amendment, such claims fell under the “ ‘public rights’ exception.”³³⁰ The Court explained the Seventh Amendment covered “[s]uits at common law,” which meant a claim implicated the Constitution’s

guarantee of a jury trial if the suit was “not of equity or admiralty jurisdiction.”³³¹

Scholars have noted that “suits at common law” refers to the types of cases that courts heard at the time of the Seventh Amendment’s enactment, with the Federal Judiciary Act of 1789 serving as a key reference point.³³² Section 9 of the Federal Judiciary Act of 1789 gave district courts jurisdiction over “all suits for penalties and forfeitures incurred,” and that “trial of issues in fact . . . in all causes except civil causes of admiralty and maritime jurisdiction[] shall be by jury.”³³³ As John Gibbons pointed out, that “the Framers considered it appropriate for cases involving ‘penalties and forfeitures incurred . . . ’ to be heard by civil juries [was] powerful evidence that the common law presumption was that such cases would be brought in common law courts, rather than equity courts.”³³⁴

In addition to common law claims, the Jarkesy Court found that “statutory claim[s]” that were “legal in nature” also implicated the Seventh Amendment.³³⁵ A statutory claim was legal in nature if the cause of action and remedy, much like common law claims, “sound[ed] in . . . law.”³³⁶ A claim’s remedy was the “ ‘more important’ consideration,” since some causes of action sounded in both law and equity.³³⁷ In Jarkesy, the statutorily created cause of action, securities fraud, resembled common law fraud since “[b]oth target[ed] . . . misrepresent[ation] or conceal[ment of] material facts” and also used similar terms, such as “fraud.”³³⁸ Moreover, the SEC sought money damages against Jarkesy and Patriot28, which was a “common law remedy” because it served to “punish culpable individuals,” rather than to restore parties to the “status quo.”³³⁹ Indeed, the relevant laws, the Securities Act, the Securities Exchange Act, and the Investment Advisers Act, “establish[ed] three ‘tiers’ of civil penalties” in securities fraud cases, in which each tier was a function of how culpable a defendant was.³⁴⁰ Thus, given that the securities fraud charges brought against Jarkesy and Patriot28 were punitive, the Court concluded that these claims implicated the Seventh Amendment.³⁴¹

Since the SEC’s claims implicated the Seventh Amendment, the Court turned to its analysis of the public rights exception.³⁴² The Court noted the public rights exception was narrow and historically applied in cases involving “the collection of revenue[,] . . . foreign commerce[,] . . . immigration[,] . . . relations with [Native American] tribes, . . . the administration of public lands, . . . and the granting of public benefits such as payment to veterans, . . . pensions, . . . and patent rights.”³⁴³ Typically, public rights traced their origins to some “government[] prerogative[]”; for example, in the context of tariffs, the political branches “traditionally held exclusive power over” whether to impose tariffs on other governments.³⁴⁴ In effect, the Court adopted Oil States’ definition of public rights as those rights that belonged to the public at large along with other privileges given to individuals for public policy reasons.³⁴⁵ Here, the SEC’s claim did not implicate this definition because it sought to “target the same basic conduct as common law fraud,” rather than regulate some matter implicating the legislature or executive’s prerogative powers.³⁴⁶ Thus, the Court held that the SEC was required to bring its claims against Jarkesy and Patriot28 in an Article III court lest it violate their Seventh Amendment right to a jury trial.³⁴⁷

Importantly, this holding brought the Supreme Court’s understanding of Article II adjudication in line with pre-twentieth-century courts’ understanding, at least when Seventh Amendment interests are involved: when a claim implicates one’s private rights, an agency cannot adjudicate it. Only an Article III court can.

III. MAPPING THE LIMITS OF THE APA’S SUBSTANTIAL EVIDENCE STANDARD OF REVIEW

If Jarkesy held that claims that invoke the Seventh Amendment and involve private rights must be adjudicated by Article III courts, does that mean agency tribunals can hear claims that involve public rights? If agency tribunals have power to adjudicate at least some claims, can Article III courts hear appeals to such tribunals’ decisions? Moreover, how much deference should these courts accord these tribunals’ findings of fact? This Note argues that Jarkesy and Loper Bright, taken together, affirmatively resolve these questions: agencies may freely adjudicate matters involving public rights and their decisions are subject to review using the APA’s substantial evidence standard of review.

A. Resolution of Public Rights Claims by Agency Tribunals

Taking Jarkesy’s holding to its natural limit, it is clear that agencies may continue to adjudicate public rights claims. As Jarkesy recognized that the public rights exception attaches when Congress or the president have prerogative to act or bind individuals, such as in the tariffs realm,³⁴⁸ it follows that such cases can be resolved by the executive or legislative branches since they have the requisite power to resolve them. For example, Oil States’s holding that a patent is a public right—and therefore, that the executive branch can freely grant or revoke it—fits nicely within this framework.³⁴⁹ As the Constitution granted Congress the power to issue patents, and Congress in turn passed legislation enabling executive officers to issue and revoke patents within certain statutorily defined limits, it follows that the inter partes review process constitutes a government prerogative.³⁵⁰ Here, an Article III court need not involve itself in the inter partes review process because the executive branch has the necessary powers to determine whether to revoke a patent.

Not only may agency tribunals adjudicate claims involving public rights without violating the Constitution, but practical considerations also support this conclusion. The Social Security Administration, for example, handles over 650,000 social security benefits claims a year, meaning that it would be challenging for federal district courts to suddenly take on this caseload.³⁵¹ Additionally, transferring this caseload to Article III courts could harm litigants, since agency adjudication tends to promote consistency among decisions and leads to quicker and more affordable resolution of claims.³⁵² Fortunately, social security benefits claims properly fall under the category of public rights since they are “public benefits.”³⁵³ Therefore, for Jarkesy to stand for the proposition that agency tribunals could not resolve these types of claims would be to create an unmanageable situation in Article III courts.

B. To Review or Not to Review: Agency Tribunals’ Findings of Fact in Public Rights Cases

Since agency tribunals can adjudicate public rights cases, the logical follow-up question is whether Article III courts can hear appeals to decisions made by agency tribunals. It is clear that these courts can. After all, the Supreme Court routinely weighs in on agencies’ decisions, including those made by agency tribunals, suggesting that it considers its jurisdiction over these matters a given.³⁵⁴ Consider the Thunder Basin line of cases: in determining whether Congress intended to deprive Article III courts of jurisdiction over certain claims, courts must consider whether preclusion would foreclose all meaningful judicial review.³⁵⁵ This makes it clear that Article III courts must have some power to hear or review cases that agencies may also have an interest in resolving, especially when important constitutional issues are involved. After all, the Axon Enterprise and Free Enterprise Courts permitted original district court jurisdiction when the parties’ claims involved interpreting constitutional and statutory text to determine the validity of agencies’ structures and existences. Likewise, Thunder Basin assumed that Article III courts would have appellate jurisdiction over the coal company’s constitutional claims.³⁵⁶

Also, it would make little sense for courts to abdicate this kind of responsibility to review agency tribunals’ decisions, especially given the Court’s recent skepticism toward agency power. A more pressing question—with broader implications—is the extent to which reviewing courts should defer to agency tribunals’ findings of fact. This Section argues the APA’s substantial evidence standard of review, in light of the Court’s recent administrative law jurisprudence, should apply to claims involving public rights; otherwise, claims should be handled by Article III courts in the first instance, rendering the APA’s substantial evidence irrelevant in such cases.

Revisiting the Appellate Review Model

As some scholars point out, before the twentieth century, courts treated agencies’ findings of fact as rebuttable, prima facie evidence, even in public rights cases.³⁵⁷ This indicates that, if history accurately describes constitutional limits, Congress cannot relax the applicable standard of review. In other words, if the agency skeptics’ argument is true, then the APA’s substantial evidence standard of review may be unlawful.

However, Loper Bright likely neutralizes this argument. In Loper Bright, to determine whether the Chevron doctrine could be reconciled with the Constitution, the Court surveyed judicial treatment of questions of fact and law during the New Deal era.³⁵⁸ This implies that, at least in the Court’s mind, the New Deal era faithfully adhered to and administered the Constitution regarding judicial review of agency decisions, and so how courts reviewed agency decisions then is how courts should review such decisions today.³⁵⁹ Specifically, the Court noted that, even amid relatively significant government expansion, New Deal–era courts reviewed questions of law de novo and questions of fact as “binding on the courts, provided that there was ‘[substantial] evidence to support the findings.’ ”³⁶⁰ Of course, this describes the appellate review model, which, as many agency skeptics posited, was not the model used by courts at the time of the Constitution’s adoption. So, perhaps the Court is incorrect. Perhaps the pre–appellate review model era, rather than the New Deal era, more faithfully adhered to the Constitution. But what matters is not history but the Court’s version of the law since it is its job to say what the law is.

More precisely, the “law,” as conceived by the Court, might be best captured by Crowell. To see how this may be true, it is important to note that Justice Roberts cited the 1936 decision St. Joseph Stock Yards Co. v. United States for his proposition that New Deal–era courts did (and should) apply the substantial evidence test to questions of fact. In St. Joseph Stock Yards, the Supreme Court contemplated the issue of whether the secretary of agriculture effected an unconstitutional deprivation of property in “prescrib[ing] maximum charges for” a stock yard’s services.³⁶¹ In answering this question in the negative,³⁶² the Court distinguished ordinary fact-finding from constitutional fact-finding: whereas courts could defer to agencies’ findings of fact made pursuant to agencies’ lawfully delegated quasi-legislative power, courts had to independently assess agencies’ findings of fact when “constitutional rights . . . [were] involved.”³⁶³ This harkens back to Crowell, in which the Supreme Court concluded, four years earlier in 1932, that courts had to independently assess what facts had to exist for an agency action to be upheld as constitutional.³⁶⁴ Loper Bright’s reference to St. Joseph Stock Yards thus suggests that the appellate review model, specifically that envisioned by Crowell and applied in St. Joseph Stock Yards, offers the appropriate analysis.³⁶⁵ Although Loper Bright did not explicitly distinguish ordinary facts from jurisdictional and constitutional facts (which may bolster scholars’ claim that de novo review of constitutional and jurisdictional facts is no more), its reference to St. Joseph Stock Yards, its suggestion that New Deal–era courts applied the appropriate standards of review to agencies’ findings of fact, and its general embrace of the substantial evidence standard challenges the view expressed by some scholars and Supreme Court Justices that agencies’ findings of fact cannot be accorded deference.

Congress’s Power to Prescribe the Applicable Standard of Review

Elsewhere in the Loper Bright decision, the Court pointed out that when Congress exercised its discretionary powers, “its determinations” were “conclusive” in court proceedings.³⁶⁶ One area in which the government has discretion to act, as Jarkesy made clear, is in public rights cases. So, when Congress creates, limits, or revokes public rights, its determinations are controlling.³⁶⁷ But while discretion implies a right to do whatever one pleases, it also implies a right to constrain one’s own actions, delegate this power to constrain to others, and determine the extent to which oneself or one’s agent will be constrained.

Loper Bright took for granted that Congress can delegate its discretionary powers to agencies.³⁶⁸ So, when Congress delegates its discretionary powers to agencies, it can also decide how much agencies will be constrained.³⁶⁹

Setting the standard of judicial review is one way Congress can constrain agencies’ actions. To understand how this works, suppose Congress wants to create a social assistance program and passes a law that establishes an agency and intra-agency tribunal to regulate these benefits. As social benefits would fall under the public rights doctrine, the political branches would have discretion to police them. Therefore, Congress could instruct courts to review agency tribunals’ findings of fact under the substantial evidence test since it has the power to constrain itself, via the agency’s actions. Here, a reviewing court merely “defers to the law,” to use Hamburger’s words (and the idea espoused by Justice Breyer and Justice Scalia in defending Chevron deference, for that matter), when it analyzes the agency’s findings of fact for substantial evidence because that is what the statute tells it to do.³⁷⁰

Of course, this is exactly what the APA does: it constrains Congress’s discretionary authority. Indeed, as Loper Bright explained, under the APA, courts decide “all relevant questions of law, interpret[ations of] constitutional and statutory provisions, and determin[ations of] the meaning or applicability of the terms of an agency action.”³⁷¹ If Congress wanted agencies to have more or less authority to declare what the facts were in public rights cases with little interference from reviewing courts, it could. Apparently, the APA’s drafters opted to give agencies moderate discretion to find facts by holding that reviewing courts were to uphold such facts if supported by substantial evidence.

That the substantial evidence standard has its roots in judicial review of jury findings of fact is of no consequence here given that Congress has wide discretion to prescribe the applicable standard of review when it has discretionary power to act, such as in public rights cases. Thus, the substantial evidence standard of review can apply in public rights cases because Congress, through agencies, may regulate public rights and tell courts that the law is to review its findings of fact made pursuant to formal agency adjudications for substantial evidence. This remains true no matter how impractical this standard of review may be in the eyes of agency critics.³⁷²

On the other hand, if a claim implicates the Seventh Amendment and involves a private right, an agency has no power to decide it. This means that the APA’s substantial evidence standard of review would not apply in Seventh Amendment, private rights cases since appellate review would necessarily follow resolution by an Article III court, the only body capable of resolving such matters. In other words, the APA’s substantial evidence standard is triggered by review of an agency’s formal adjudication, but an agency cannot even formally adjudicate cases implicating the Seventh Amendment and private rights in the first place.

As for when the Seventh Amendment is not implicated but one’s private rights are involved, the current Supreme Court does not definitively answer the constitutionality issue. On one hand, Loper Bright could be interpreted to authorize review of agencies’ findings of fact for substantial evidence because (1) Loper Bright assumed St. Joseph Stock Yards correctly states the law, (2) St. Joseph Stock Yards relied on Crowell’s distinction of ordinary from jurisdictional and constitutional fact-finding, and (3) Crowell itself did not implicate the Seventh Amendment as it was an admiralty case and permitted agency adjudication of private rights.³⁷³ Other support for this position comes from Justice Breyer’s concurrence in Oil States: in that case, Justice Breyer noted that precedent, such as Stern v. Marshall, “should not be read to say that matters involving private rights may never be adjudicated other than by Article III courts.”³⁷⁴ But, on the other hand, the majority in Oil States pointed out that, “[w]hen determining whether a proceeding involves an exercise of Article III judicial power, this Court’s precedents have distinguished between ‘public rights’ and ‘private rights,’ ” which could be read to either say the existence of private rights (1) is dispositive in determining whether agencies may adjudicate a matter or (2) merely a factor to consider.³⁷⁵ Considering that Oil States permitted agency adjudication of patent cancellations because this involved public rights, (1) seems to be the more plausible reading. While this Note does not purport to answer this question in particular, it is clear that, at least in public rights cases, the APA’s substantial evidence standard of review is constitutional.

CONCLUSION

Judicial deference to agencies’ findings of law has been on the retreat since Loper Bright sounded the death knell on Chevron deference. However, the Supreme Court has not exhibited a similar level of distrust toward agencies’ findings of fact. Indeed, since the early days of the APA, the Court has maintained that courts are to uphold agencies’ findings of fact so long “as a reasonable mind might accept [these findings] as adequate to support a conclusion.”³⁷⁶ Yet, an important constitutional issue arises when courts defer to agencies’ findings of fact when both the Seventh Amendment and private rights are implicated. In these cases, agencies have no authority to find facts because a jury must find such facts. Meanwhile, agencies may freely adjudicate public rights cases.

Therefore, when an agency adjudicates claims implicating individuals’ public rights, its findings of fact are entitled to some judicial deference because Congress has somewhat curtailed its discretionary powers through requiring reviewing courts, applying the APA, to analyze these findings according to the substantial evidence test. To the extent that Jarkesy nullified the APA’s substantial evidence standard, it did so when agencies adjudicated matters implicating the Seventh Amendment and private rights. This is because there can be no lawful agency proceeding to review. So, while the APA’s substantial evidence standard of review raises important constitutional questions, any concerns are probably limited to application of the standard in Seventh Amendment, private rights cases. The substantial evidence standard may also raise concerns in non-Seventh Amendment, private rights cases too. Otherwise, the substantial evidence standard of review is constitutional.

99 S. Cal. L. Rev. 725

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Lindsey Kate Miller*

* Executive Senior Editor, Southern California Law Review, Volume 99; J.D. Candidate 2026, University of Southern California Gould School of Law; B.A. Political Science 2021, University of California, Los Angeles. Many thanks to my Note Advisor, Professor Jonathan Barnett, for his thoughtful suggestions and encouragement throughout the process. I am also grateful to the members of the Southern California Law Review for their helpful comments and care in preparing this Note for publication. To my family, thank you for your love and support, and for always believing in me.

PI + 9: A Modest Proposal to Protect Americans’ Individual Rights

March 2026March 2026Lincoln Son Currie*

INTRODUCTION

Civil liberties deserve better protection than the dubious doctrine of substantive due process. Fortunately, an underappreciated, yet significant, development is ripening within the Supreme Court’s jurisprudence surrounding the incorporation of the Bill of Rights. At least two Supreme Court Justices¹ are willing to consider opening the Privileges or Immunities Clause door to incorporation that the Slaughter-House Cases slammed shut.² What if three more Justices changed their minds and that door swung open?

This Note provides a new methodology called the “PI + 9 Framework.” The PI + 9 Framework combines the Fourteenth Amendment’s Privileges or Immunities Clause (“PI”) with the Ninth Amendment (“9”) to apply the Bill of Rights to the states in a more efficient, clear, and sturdy way. This proposition is a bold, yet modest, means by which to incorporate the Bill of Rights against the states while securing unenumerated rights. The Framework is faithful to the original public meaning and original intent of the Privileges or Immunities Clause. The PI + 9 Framework focuses on the procedures by which substantive rights are secured rather than seeking untested answers that could destabilize manifold areas of law. Instead, the PI + 9 Framework seeks to ground the Bill of Rights, including unenumerated rights, in something more robust than substantive due process. The emphasis on a proper mechanism addresses justified concerns about the Privileges or Immunities Clause and the Ninth Amendment becoming a Pandora’s box.

This Note will begin by examining the only appropriate means for incorporating the Bill of Rights against the states: the Privileges or Immunities Clause. Part I conducts an in-depth textual analysis of the meaning of privileges and immunities in the context of the Privileges or Immunities Clause. Part II analyzes the case law surrounding the Clause, with a particular focus on the Slaughter-House Cases and some pertinent concurrences and dissents by Justice Black and Justice Thomas, respectively. Part III makes the case for overruling Slaughter-House based on the Supreme Court’s recent application of stare decisis factors. This Part goes factor-by-factor to argue why stare decisis should not prevent Slaughter-House from being overruled. Part IV argues for an end to substantive due process due to its poor reasoning and inability to adequately secure rights. Part V discusses how the Court should recognize unenumerated rights and considers which Ninth Amendment methodology would best identify and secure those rights. Part VI applies the PI + 9 Framework to two hypothetical fact patterns—one involving an enumerated right and the other involving an unenumerated right. A helpful chart of the Framework is included in that Part. Part VII lays out the advantages the PI + 9 Framework has over the current substantive due process regime. This Note gives the Supreme Court a guide for replacing substantive due process while preserving incorporation of the Bill of Rights and protecting the unenumerated rights that the Court is anxious about safeguarding.

I. TEXTUAL ANALYSIS OF THE PRIVILEGES OR IMMUNITIES CLAUSE

Before analyzing the Privileges or Immunities Clause’s case law, the meaning of privileges and immunities—and the meaning of those words when used alongside one another—is worth examining.

A. Interpreting Privileges and Immunities in Historical Context

The meaning of privileges and immunities is best explored by looking at the words’ meanings at the time of the Fourteenth Amendment’s ratification—while also keeping in mind the historical usage of those words in the Anglo-American legal tradition.

A Few Meanings of Privilege

The meaning of privilege at the time of the Fourteenth Amendment’s ratification, 1868,³ offers a guide that may be considered independently or alongside the Framers’ intent when interpreting the Privileges or Immunities Clause. A leading dictionary from around the time of ratification provided three definitions of privilege: (1) “[a] particular and peculiar benefit or advantage enjoyed by a person, company, or society, beyond the common advantages of other citizens”; (2) “[a]ny peculiar benefit or advantage, not common to others of the human race”; (3) “[a]dvantage; favor; benefit.”⁴ The first and second definitions are plausible, but the third is too vague to offer meaningful guidance toward understanding the Privileges or Immunities Clause in context. The first two definitions are more precise. Additionally, the third definition does not contradict the preceding definitions; thus, its interpretive value diminishes. Therefore, two definitions of privilege remain.

Privilege As a Benefit Beyond Those Held by Common Citizens

The first definition of privilege does not suit the Privileges or Immunities Clause and is better understood in the mode that privilege is used in the Speech and Debate Clause found in Article I, Section 4 of the Constitution.⁵ The Speech and Debate Clause guarantees that “Senators and Representatives” shall “be privileged from Arrest” during legislative sessions and when coming from and going to those sessions—except in cases of “Treason, Felony and Breach of the Peace.”⁶ This fits the first definition of privilege because the privilege granted to Senators and Representatives is not granted to common American citizens, who enjoy no such privilege.

Anglo-American jurists such as William Blackstone, Matthew Hale, and James Kent all occasionally used privilege to mean a benefit beyond those held by common citizens. For example, Blackstone described the “privilege of letters”⁷ that allowed members of parliament to send and receive letters free of postage.⁸ Hale wrote about bishops and abbots who “had special privileges granted to them to have mints.”⁹ Kent mentioned the privileges consuls are entitled to, “such as for safe conduct.”¹⁰ However, interpreting privilege in that manner in the context of the Privileges or Immunities Clause creates an incongruity. Under this inappropriate definition of privilege, the Privileges or Immunities Clause would guarantee that states could not abridge the benefits that citizens of the United States enjoyed beyond the benefits enjoyed by citizens of the United States. Inserting the first definition of privilege creates a contradiction. This preposterous result proves that privilege in the Privileges or Immunities Clause should not be interpreted as an advantage enjoyed beyond those enjoyed by common citizens.

Privilege As a Peculiar Benefit or Advantage Not Common to Others of the Human Race

To determine whether a “peculiar benefit or advantage not common to others of the human race”¹¹ is within the Clause’s scope, the Court would need to consider which benefits or advantages of citizens of the United States fall within the Clause’s scope. Americans enjoy manifold privileges as citizens of a prosperous nation. However, regarding the Privileges or Immunities Clause, the legal privileges are the most suitable for judges to ascertain.

The writings of prominent Anglo-American jurists suggest that the second definition of privilege, as a peculiar benefit or advantage, encompasses rights. Anglo-American jurists sometimes used privilege interchangeably with rights. For example, Blackstone described “those civil privileges”¹² as part of what constitutes a right found in “the declaration of our rights and liberties.”¹³ Kent mentioned the “right of trial by jury”¹⁴ in suits at common law, which the Seventh Amendment secures.¹⁵ Elsewhere, Kent referred to the jury trial right as a privilege. For example, Kent described some of “the inherent rights and liberties of English subjects, of which the most essential were the exclusive power to tax themselves, and the privilege of trial by jury.”¹⁶

Founding-era historical evidence offers additional proof that privilege’s second definition is the most appropriate one. At the time of the American Revolution, “[t]he words rights, liberties, privileges, and immunities, seem to have been used interchangeably.”¹⁷ Indeed, as evidenced by Blackstone’s invocation of privilege and historical examples that predate or coincide with the American Revolution, the interchangeability of privilege and right is well-founded.¹⁸

Viewing privilege as interchangeable with right, advantage, benefit, or immunity results in an interpretation aligned with privilege’s original public meaning at the time of the Fourteenth Amendment’s ratification. Under that definition, the Privileges or Immunities Clause would be understood to protect “the [rights, benefits, advantages] or [I]mmunities of citizens of the United States” from state abridgment.¹⁹

A Few Meanings of Immunity

Around the time of the Fourteenth Amendment’s ratification, a leading American dictionary listed three definitions for immunity: (1) “[f]reedom or exemption from obligation”; (2) “[e]xemption from any charge, duty, office, tax, or imposition; a particular privilege or prerogative”; and (3) “[f]reedom.”²⁰ Like the three definitions of privilege, the first two are plausible on their faces, but the third is too vague. Moreover, like the third definition of privilege,²¹ the third definition of immunity does not contradict the first or second definition. Thus, two definitions are ripe for examination.

The Broader Immunity Definition Is the Best Match

The first definition of immunity is an incomplete match for how immunities is used in the Privileges or Immunities Clause.²² The second and more capacious definition of immunities—“[e]xemption from any charge, duty, office, tax, or imposition; a particular privilege or prerogative”²³—fits more naturally with other constitutional protections that existed at the time of the Fourteenth Amendment’s ratification. One example precedes the Bill of Rights.

Before the ratification of the Bill of Rights, Americans enjoyed an important immunity that remains in force. Article III, Section 3 of the Constitution grants Congress the power to decide how treason is punished but provides that “no Attainder of Treason shall work Corruption of Blood.”²⁴ The Constitution does not define the prohibition of Corruption of Blood as punishment for treason as a right, immunity, or anything else. The punishment is simply prohibited. Any attempt by Congress to make treason punishable by Corruption of Blood would be voided due to its conflict with the Constitution.²⁵ Thus, Article III, Section 3 of the Constitution could reasonably be interpreted as providing immunity to American citizens from Corruption of Blood as a punishment for treason.

In a similar way, several provisions in the Bill of Rights provide for exemptions against certain charges and impositions. The Fifth Amendment prohibits double jeopardy and thus exempts a person from any charge of which they were already acquitted.²⁶ The Eighth Amendment exempts or immunizes Americans from the imposition of excessive fines.²⁷ Even if the word rights were not synonymous with immunities, some provisions of the Bill of Rights could reasonably be interpreted as immunities.

B. Rights, Privileges, and Immunities

Rights, privileges, and immunities were interchangeable words at the time of the Fourteenth Amendment’s ratification.²⁸ One needs to look no further than a dictionary to see that privilege and immunity were words used to define the word right.²⁹ Justice Thomas recognized this reality in his concurrence in McDonald v. City of Chicago.³⁰ Absent a showing that the Privileges or Immunities Clause means something other than what it says, the plain meaning appears to cover at least those rights enumerated in the Constitution at the time of the Fourteenth Amendment’s ratification, namely those in the Bill of Rights.³¹ The Bill of Rights originally established a baseline of rights that only applied to the federal government.³² Despite the rights being limited to protection against federal government infringement, all citizens of the United States still nonetheless enjoyed those rights, albeit with application being limited to the federal government and not state governments.

The plain meaning of privileges and immunities in the Privileges or Immunities Clause is not ambiguous, but construing the Clause is trickier. Given that rights, privileges, and immunities were synonymous at the time of the Fourteenth Amendment’s ratification, one would need to determine whether the Bill of Rights is within the scope of rights enjoyed by citizens of the United States that no state shall abridge.

C. “Citizens of the United States” Sets an Appropriate Limit on the Constitution’s Abridgment of State Power

Although several interpretations of the Privileges or Immunities Clause are reasonable,³³ the Clause must answer two questions. First, Are citizens of the United States the only persons whose privileges or immunities are protected from state abridgment? Second, Are states prohibited from infringing on those privileges or immunities that citizens of the United States hold? The first question asks who gets protected by the Privileges or Immunities Clause. The second question asks which rights are protected.

Justice Thomas answered the first question satisfactorily in his concurrence in McDonald v. City of Chicago.³⁴ One need not search outside the same section in which one finds the Privileges or Immunities Clause to find another that operates as a more natural and efficacious anti-discrimination provision: the Fourteenth Amendment’s Equal Protection Clause.³⁵ The Supreme Court occasionally used the Equal Protection Clause to strike down discriminatory laws shortly after Slaughter-House was decided.³⁶ Furthermore, suppose a state passed a law that only abridged the rights of noncitizens. Such abridgment may violate the Fourteenth Amendment’s commandment that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”³⁷ The Privileges or Immunities Clause is read more naturally as a clause that establishes a “minimum baseline of federal rights” that states may not abridge.³⁸ Such a reading answers the aforementioned second question in the affirmative.

II. PRIVILEGES OR IMMUNITIES CLAUSE CASE LAW

Any examination of the jurisprudence surrounding the Privileges or Immunities Clause must begin with the Slaughter-House Cases.³⁹ The majority opinion and dissents illuminate Reconstruction Era views of the Clause. Since the Court decided Slaughter-House, the few Justices who have conducted extensive historical analysis of the Clause’s legislative history have arrived at a more expansive view of the Clause.⁴⁰

A. Slaughter-House Shuts One Door for Incorporating the Bill of Rights

In 1873, the Supreme Court in Slaughter-House held that the Privileges or Immunities Clause did not incorporate the Bill of Rights against the states.⁴¹ Since then, the Privileges or Immunities Clause has been relegated to obsolescence.⁴² Once, in Saenz v. Roe, the Court used the Clause to recognize a right to travel⁴³ by striking down a California law⁴⁴ limiting welfare benefits for new California residents.⁴⁵ In his Saenz dissent, Chief Justice Rehnquist lamented the Court’s revival of the Clause, in part because the Clause had been dormant for so long.⁴⁶ Eleven years after Saenz, the Court in McDonald v. City of Chicago reluctantly affirmed, or at least refused to revisit, Slaughter-House’s narrow construction of the Privileges or Immunities Clause.⁴⁷ The reluctant affirmation of a questionable precedent was unwarranted in light of the developments after Slaughter-House. Federalism concerns pervaded the majority opinion’s reasoning in Slaughter-House. The Court worried that the Constitution—and the Court expounding it—would become a “perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.”⁴⁸

Nevertheless, the Supreme Court has incorporated most of the Bill of Rights against the states. The remaining unincorporated enumerated rights are the seldom-litigated Third Amendment,⁴⁹ the Fifth Amendment’s Grand Jury Clause,⁵⁰ and the Seventh Amendment right to a trial by jury in suits at common law.⁵¹ The resultant beefing up of the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause has achieved an effect rivaling the censor that the Slaughter-House majority feared.⁵²

Although the Privileges or Immunities Clause’s construction in Slaughter-House stands as good law today, the dissenters’ views shed some light on other views of the Privileges or Immunities Clause around the time of the Fourteenth Amendment’s ratification. Four Justices dissented in Slaughter-House.⁵³ Justice Field—joined by Chief Justice Chase, Justice Swayne, and Justice Bradley—dissented and wrote that if the Fourteenth Amendment’s Privileges or Immunities Clause were interpreted as narrowly as the majority interpreted it, then the Privileges or Immunities Clause “was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.”⁵⁴ Justice Field foresaw the superfluity of the new Clause if it were read so narrowly and wrote, “With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference.”⁵⁵ Justice Field’s prediction has but one blemish more than 150 years after the Court decided Slaughter-House: Saenz v. Roe.⁵⁶ Although Justice Field’s prediction proved prescient, Justice Bradley and Justice Swayne wrote broader dissents that explicitly advocated incorporating the Bill of Rights against the states via the Privileges or Immunities Clause.

Justice Bradley criticized the majority’s decision by averring that “the Constitution itself” contains “some of the most important privileges and immunities of citizens of the United States.”⁵⁷ One problem with narrowly construing the Privileges or Immunities Clause is that it denigrates the rights set forth in the Bill of Rights as not fundamental or less fundamental. A judge’s place is not to decide which rights in the Bill of Rights are essential and which are not.⁵⁸ Those who ratified the amendments comprising the Bill of Rights thought each was important enough to become part of the nation’s founding document. The people’s will, as expressed through their passage of the amendments, ought to be dispositive on the issue of whether a right in the Bill of Rights is fundamental. Justice Bradley grasped this flaw when he wrote that other rights, privileges, and immunities “of the greatest consequence were enumerated, although they were only secured, in express terms, from invasion by the Federal government.”⁵⁹ The Fourteenth Amendment changed the equation by protecting the privileges or immunities of citizens of the United States from state abridgment.⁶⁰

Justice Swayne wrote a separate dissent and believed that the Reconstruction Amendments “may be said to rise to the dignity of a new Magna Charta.”⁶¹ Justice Swayne also thought the majority’s analysis served to obfuscate rather than clarify.⁶² Justice Swayne believed the Privileges or Immunities Clause was clear and wrote, “Elaboration may obscure, but cannot make clearer, the intent and purpose sought to be carried out.”⁶³ Justice Swayne believed the Privileges or Immunities Clause concerned, “among other things, the fundamental rights of life, liberty, and property, and also the rights which pertain to him by reason of his membership of the Nation.”⁶⁴ This formulation would almost certainly cover each enumerated provision of the Bill of Rights and perhaps some rights not enumerated in the Constitution. After all, even the narrowly construed Privileges or Immunities Clause has already been held to protect at least one unenumerated right: the right to travel.⁶⁵ Justice Swayne acknowledged the objection that “the power conferred is novel and large.”⁶⁶ Justice Swayne had a simple answer to the objection:

The answer is that the novelty was known and the measure deliberately adopted. The power is beneficent in its nature, and cannot be abused. It is such as should exist in every well-ordered system of polity. Where could it be more appropriately lodged than in the hands to which it is confided? It is necessary to enable the government of the nation to secure to every one within its jurisdiction the rights and privileges enumerated, which, according to the plainest considerations of reason and justice and the fundamental principles of the social compact, all are entitled to enjoy. Without such authority any government claiming to be national is glaringly defective.⁶⁷

Justice Swayne ended his dissent by expressing hope that the consequences of the majority’s decision would be “less serious and far-reaching than the minority fear they will be.”⁶⁸ Justice Swayne’s fear was partially realized. On the one hand, most of the Bill of Rights is now incorporated.⁶⁹ On the other hand, incorporation of the Bill of Rights against the states proceeded tardily.⁷⁰ The majority failed to create a precedent that provided a bulwark against the specter of the “perpetual censor”⁷¹ of which the majority expressed great trepidation.⁷² However, the majority succeeded in crafting a precedent that dissuaded most future jurists from pursuing incorporation of the Bill of Rights via the Privileges or Immunities Clause.

B. The Privileges or Immunities Clause’s Post-Slaughter-House Champions

Following Slaughter-House, few Justices have dared to broaden the construction of the Privileges or Immunities Clause. The two most significant proponents of such a construction are Justice Black and Justice Thomas.

Justice Black’s “Eminently Reasonable” Method of Incorporating the Bill of Rights Against the States

In 1947, Justice Black, an early practitioner of constitutional originalism,⁷³ concluded in his dissent in Adamson v. California that the Privileges or Immunities Clause was intended to apply the first eight amendments of the Bill of Rights to the states.⁷⁴ In 1968, Justice Black, in a concurrence joined by Justice Douglas,⁷⁵ doubled down on his Adamson dissent. Justice Black once again concluded that the Privileges or Immunities Clause “seem[ed] to [him] an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the states.”⁷⁶

Experience as a prominent legislator guided Justice Black’s view of the Privileges or Immunities Clause.⁷⁷ Justice Black’s historical analysis of the Privileges or Immunities Clause—and the wholesale incorporation view that resulted therefrom—has value because of his decade-long experience as a United States senator.⁷⁸ Although Justice Black’s opinions regarding incorporation lack the force of law, his experience as a legislator may guide current and future Justices in evaluating the Privileges or Immunities Clause’s legislative history. Regarding the value of prior opinions, Justice Gorsuch wrote, “Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.”⁷⁹ The wisdom of former legislators who served as Justices can only be found in the past. No current Supreme Court Justice was ever a legislator. Justice O’Connor was the most recent Justice with any legislative experience,⁸⁰ and Justice Black was the last member of Congress to serve on the Court.⁸¹ Justice Black’s perspective regarding the Privileges or Immunities Clause aids the argument that views the legislative history of the Privileges or Immunities Clause as intending a full incorporation of the Bill of Rights.

Some have lamented when a judge heavily relies on history,⁸² but Justice Black’s opinions offer helpful surveys of the Fourteenth Amendment’s legislative history. The lived experience of a decade as a United States senator adds weight to his opinions regarding the Privileges or Immunities Clause’s legislative history. The fact that no current Justice on the Supreme Court has any experience as a legislator would be a problem if the Court had no previous opinion from a former legislator from which to draw. This is not the case. Justice Black passed down his learning about the Privileges or Immunities Clause’s meaning through his opinions in cases such as Adamson v. California⁸³ and Duncan v. Louisiana.⁸⁴ No judge ought to be required to follow Justice Black’s jurisprudence on every matter that touches legislative history on account of his experience. However, his legislative experience and pioneering originalism lend a unique perspective to any jurist seeking the original meaning of the Privileges or Immunities Clause.

Justice Thomas’s Revival of Privileges or Immunities in McDonald v. City of Chicago

In the past twenty years, Justice Thomas has led the charge for a potent Privileges or Immunities Clause in concurring opinions when a case arises in which the incorporation of a provision of the Bill of Rights is at issue.⁸⁵ Justice Thomas’s interpretation of the Constitution centers around a search for the Constitution’s original meaning.⁸⁶ Justice Thomas employed this interpretive method in his concurring opinion in McDonald v. City of Chicago.⁸⁷ In McDonald, Justice Thomas concluded that the Second Amendment’s right to keep and bear arms applied to the states via the Fourteenth Amendment’s Privileges or Immunities Clause.⁸⁸ After a detailed treatment of the Fourteenth Amendment’s text and history,⁸⁹ Justice Thomas wrote the following about the Privileges or Immunities Clause as it relates to incorporating the Bill of Rights:

This evidence plainly shows that the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. As the Court demonstrates, there can be no doubt that § 1 was understood to enforce the Second Amendment against the States. In my view, this is because the right to keep and bear arms was understood to be a privilege of American citizenship guaranteed by the Privileges or Immunities Clause.⁹⁰

Justice Thomas recognized that the legislative history surrounding the Clause was “less than crystal clear.”⁹¹ He also acknowledged the difficulties that interpreting the once-dormant Clause may pose. Still, he argued that interpretation of the Privileges or Immunities Clause was “far more likely to yield discernible answers[ ]than the substantive due process questions the Court has for years created on its own, with neither textual nor historical support.”⁹²

In McDonald, Justice Thomas was alone in his interpretation of the Privileges or Immunities Clause. The plurality opinion stated that it “saw no need to reconsider” Slaughter-House and “therefore decline[d] to disturb the Slaughter-House holding.”⁹³ The phrasing in that sentence is crucial. The plurality did not reject Justice Thomas’s view on the merits or defend Slaughter-House on the merits. Instead, they saw another path to incorporation—substantive due process. Because that path remained open, the plurality believed it was merely unnecessary—though perhaps not improper—to revisit Slaughter-House.

The dissents rejected Justice Thomas’s view for similar reasons. In his dissent, Justice Stevens acknowledged the “impressive amount of historical evidence”⁹⁴ that the petitioners compiled in support of their position that Slaughter-House’s narrow reading of the Privileges or Immunities Clause was erroneous. Yet, Justice Stevens believed the original meaning of the Clause was “not nearly as clear as it would need to be to dislodge 137 years of precedent.”⁹⁵ In a separate dissent joined by Justice Ginsburg and Justice Sotomayor, Justice Breyer declined to defend Slaughter-House on the merits and instead wrote only that “the plurality today properly declines to revisit our interpretation of the Privileges or Immunities Clause.”⁹⁶ The refusal to substantively engage with Justice Thomas’s opinion or to defend Slaughter-House on the merits is at least some evidence of the weak footing on which opposition to Justice Thomas’s conclusion rests. A maxim from Chief Justice Marshall is enough to support Justice Thomas’s conclusion and defeat Slaughter-House’s construction of the Privileges or Immunities Clause, such that the only justification for upholding Slaughter-House is stare decisis. In Marbury v. Madison, Chief Justice Marshall wrote, “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.”⁹⁷ The words of the Privileges or Immunities Clause do not require such a narrow construction. Slaughter-House ought to be overruled unless stare decisis justifies upholding the precedent.

The Post-McDonald Future of the Privileges or Immunities Clause

Although Justice Thomas was unsuccessful in reviving the Privileges or Immunities Clause in McDonald, he has continued to defend his interpretation of the Clause. In Timbs v. Indiana, Justice Thomas would have applied the Eighth Amendment’s prohibition of excessive fines to the states via the Privileges or Immunities Clause—not the Due Process Clause.⁹⁸ In Dobbs v. Jackson Women’s Health Organization, Justice Thomas argued for reconsidering every substantive due process precedent and deciding whether the rights protected by those precedents are protected by the Privileges or Immunities Clause.⁹⁹ Since McDonald, Justice Thomas has found one potential ally to support his view of the Privileges or Immunities Clause. In 2019, Justice Gorsuch has emerged as a possible proponent of incorporation via the Privileges or Immunities Clause, a position he contemplated in Timbs.¹⁰⁰

III. STARE DECISIS FACTORS POINT TO OVERRULING SLAUGHTER-HOUSE

Stare decisis is not an “inexorable command.”¹⁰¹ However, the rule of law rests on a measure of stability. Justice Brandeis was prudent to say, “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.”¹⁰² Nevertheless, the oft-wise policy is weakest when the Supreme Court interprets the Constitution because changing a constitutional precedent can only be accomplished via constitutional amendment—an arduous process—or by overruling the precedent.¹⁰³

The Slaughter-House majority’s interpretation of the Privileges or Immunities Clause is wrong and should be overruled. To overrule it, the Court would need to find that stare decisis factors weigh in favor of overruling the case. The Court tends to rely on six stare decisis factors: (1) nature of the error; (2) quality of the reasoning; (3) workability of the rule established; (4) disruptive effect on other areas of law; (5) developments since the case was decided; and (6) reliance interests.¹⁰⁴ All but one particular factor is either neutral or weighs in favor of overruling Slaughter-House. The factors as a whole weigh strongly in favor of overruling Slaughter-House and interpreting the Fourteenth Amendment’s Privileges or Immunities Clause as fully incorporating the Bill of Rights.

A. The Nature of the Slaughter-House Majority’s Error

The first factor focuses on the degree of wrongness and the damaging effects of the decision rather than the reasoning itself.¹⁰⁵

The Slaughter-House majority’s opinion constituted the type of egregious and deleterious error¹⁰⁶ that makes the first stare decisis factor weigh in favor of overruling Slaughter-House. Suppose that each provision of the Constitution were interpreted as narrowly as the Privileges or Immunities Clause. If each constitutional provision were interpreted so narrowly as to be famous for having little or no effect,¹⁰⁷ what purpose would the Constitution serve? The judicial nullification of the Privileges or Immunities Clause is repugnant to a democratic people and disrespects the ratifiers of the Fourteenth Amendment. The majority’s decision in Slaughter-House was nothing more than the “exercise of raw judicial power,”¹⁰⁸ which in effect nullified part of the Fourteenth Amendment.

Decisions that invent “principles or values that cannot fairly be read into [the Constitution] usurp the people’s authority.”¹⁰⁹ Here, the Slaughter-House majority did the inverse of what the Dobbs majority criticized Roe v. Wade¹¹⁰ and Planned Parenthood of Southeastern Pennsylvania v. Casey¹¹¹ for doing. The Dobbs majority believed that Roe and Casey improvidently took a decision not yet made by the American people and made it for them via judicial pronouncement;¹¹² the Slaughter-House majority took a decision already made by the American people, through the ratification of the Fourteenth Amendment, and revoked it via an impermissibly narrow interpretation¹¹³ of the Privileges or Immunities Clause that sapped the Clause of all might.

B. The Quality of the Slaughter-House Majority’s Reasoning

Silence and evasion cry out for criticism. When nobody stands to defend a precedent’s reasoning, the quality of the reasoning is weaker.¹¹⁴ In 2020, a plurality of the Court in Ramos v. Louisiana found the quality of the reasoning factor to weigh in favor of overruling a precedent, partly because “no Member of the Court today defend[ed] [the precedent] as rightly decided.”¹¹⁵ Justices from across the spectrum have attacked the Slaughter-House majority’s reasoning by refusing to defend the merits of Slaughter-House’s interpretation of the Privileges or Immunities Clause.¹¹⁶ The Justices were right to refuse to defend the opinion on the merits because doing so is almost impossible. The consensus of constitutional scholars is that the Slaughter-House majority’s interpretation of the Privileges or Immunities Clause was wrong.¹¹⁷

The reasoning in Slaughter-House was “exceptionally weak.”¹¹⁸ The reasons for the narrow construction were (1) a bald, results-based conclusion and (2) an absurd reading that ignores text and legislative history.

A Bald, Results-Based Conclusion

Beginning with the bald conclusion, the Court stated, “There can be little question that the purpose of both [Article IV’s Privileges and Immunities Clause and the Fourteenth Amendment’s Privileges or Immunities Clause] is the same, and that the privileges and immunities intended are the same in each.”¹¹⁹ In clear language, the Court admitted its result-oriented construction was “not always the most conclusive” argument.¹²⁰ Nevertheless, the Court made its choice out of fear of a theory that “radically change[d]” the relationship between state and federal governments and about concerns that the Court would become a “perpetual censor” over state legislatures.¹²¹ The Court’s reasoning depended on avoiding a purportedly undesirable outcome, but that feared result has already been achieved.¹²² The reasoning undergirding Slaughter-House’s results-based conclusion has crumbled as substantive due process has grown.¹²³

To overcome its concerns about a radical change to the constitutional order, the Court asked for “language which expresse[d] such a purpose too clearly to admit of doubt.”¹²⁴ The Court adopted something akin to a beyond-reasonable-doubt standard for interpretation that had no basis in constitutional interpretation. The total concoction of a novel standard for constitutional interpretation is further evidence of an egregiously wrong opinion.

An Absurd Reading That Ignores Text and Legislative History

In the majority opinion, Justice Miller set forth an anti-textual reading of the Fourteenth Amendment that distinguished between the privileges or immunities of citizens of a state and the privileges or immunities of citizens of the United States.¹²⁵ According to Justice Miller, the privileges and immunities of the citizen of a state “embrace[] nearly every civil right for the establishment and protection of which organized government is instituted.”¹²⁶ Conversely, the privileges and immunities of the citizen of the United States were limited to things like the right to travel to and from the seat of government and access to seaports.¹²⁷ The dichotomy between state citizens’ rights and United States citizens’ rights is difficult to square with Justice Miller’s belief that the purpose and effect of the Fourteenth Amendment should be to protect Black Americans.¹²⁸ The plain language of the Privileges or Immunities Clause seems to desire some nationwide baseline for individual rights. If that baseline was as paltry as Justice Miller suggested, then the enactment truly was “vain and idle.”¹²⁹

Regarding legislative intent, Justice Miller did not believe that a broad Privileges or Immunities Clause was intended. Justice Miller summarily concluded that he was “convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.”¹³⁰ Justice Miller failed to conduct even a cursory survey of the legislative history. If he had done so, he would have found that leading Republicans in the Congress that passed the Fourteenth Amendment believed the capacious definition of privileges and immunities was appropriate for the federal government to prevent state infringement of the same.¹³¹ Adding to the case against Justice Miller’s reading of the legislative history is the fact that Representative John Bingham, the Privileges or Immunities Clause’s primary draftsman, stated in a speech in Congress that the purpose of the Clause was to apply the Bill of Rights to the states.¹³² The quality of the Slaughter-House majority’s reasoning was abysmal because it failed to heed the Privileges or Immunities Clause’s plain text or legislative history.

For the above reasons and many more, “[v]irtually no serious modern scholar—left, right, and center—thinks that [the majority’s reading] is a plausible reading of the Amendment.”¹³³ The quality of the majority’s reasoning surpasses an excusable “garden-variety error”¹³⁴ and makes the quality of the reasoning factor weigh strongly in favor of overruling the precedent.

C. The Workability of the Rules Imposed on the Country

The workability factor asks whether the rule “can be understood and applied in a consistent and predictable manner.”¹³⁵ To laud Slaughter-House for creating a workable rule would be a mistake. The opinion created a bright-line rule that refused to incorporate any provision of the Bill of Rights.¹³⁶ This rule is easy for lower courts to apply in the same way that the following absurd, bright-line interpretation would be easy to apply: Suppose the Court held that “Speech” in the First Amendment¹³⁷ context must be construed in the same manner as “Speech” described in Article I’s Speech and Debate Clause.¹³⁸ That construction would be easy for lower courts to apply due to the narrow circumstances in which Speech and Debate Clause issues arise. However, workability through absurdity should not suffice.¹³⁹

D. The Disruptive Effect on Other Areas of Law

A precedent that has distorted other legal doctrines is more suitable for overruling.¹⁴⁰ Although achieving substantially similar results, the closing off of incorporation via the Privileges or Immunities Clause caused jurists who did not want to overrule Slaughter-House to distort the Fourteenth Amendment’s Due Process Clause in order to incorporate the Bill of Rights against the states.¹⁴¹ Due Process Clause distortion caused two nasty ailments.

First, the incrementalist incorporation route required Justices to inquire whether a provision of the Bill of Rights was “fundamental to our scheme of ordered liberty” with “dee[p] root[s] in [our] history and tradition.”¹⁴² Part of the rationale for Constitution-related precedent being weaker is the high bar for amending the Constitution.¹⁴³ When a provision of the Constitution enumerates a right, it is self-evident that a great majority of American voters considered the provision sufficiently fundamental to make it part of the nation’s foundational legal document. Judicial inquiry into whether a provision is important enough to be elevated to fundamental status is improper. The entire Bill of Rights is fundamental to liberty. The Anti-Federalists who pressed for a bill of rights in the Constitution did so partly because they believed some liberties were so fundamental that their inclusion in the nation’s founding document was necessary.¹⁴⁴

Second, the absorption of unenumerated-rights analysis into substantive due process¹⁴⁵ let the Ninth Amendment wither on the vine. Justices rarely refer to the Amendment. In Griswold v. Connecticut, Justice Goldberg penned a concurrence that examined the Ninth Amendment at length.¹⁴⁶ But aside from this single concurrence and occasional fleeting references,¹⁴⁷ the Court has ignored a provision of the Constitution that is no less deserving of interpretation and application than any other.¹⁴⁸ The absence of the Ninth Amendment in the Court’s unenumerated-rights jurisprudence is a consequence of the growth of substantive due process and neglect of the Privileges or Immunities Clause.¹⁴⁹

In sum, Slaughter-House has had the disruptive effect of implicitly disparaging some provisions of the Bill of Rights as nonfundamental while stunting the growth of Ninth Amendment jurisprudence. Those two consequences have damaged the Constitution and counsel in favor of overruling Slaughter-House.

E. Developments Since the Case Was Decided

A precedent is significantly weakened when the grounds for the decision have been “eroded” by the Court’s subsequent decisions.¹⁵⁰ A crucial aspect of the reasoning in Slaughter-House was its result-oriented approach that did not want incorporation to transform the Constitution into a “perpetual censor”¹⁵¹ of state legislatures.¹⁵² However, the majority’s fear has already been realized due to substantive due process’s subsequent metastasis. The vast majority of the Bill of Rights is already incorporated against the states.¹⁵³ At the 2018 oral argument for Timbs, Justice Gorsuch and Justice Kavanaugh were incredulous that Indiana’s solicitor general was contesting incorporation of any part of the Bill of Rights.¹⁵⁴ The subsequent legal developments of near-total incorporation have obliterated the result-oriented reasoning that grounded the Slaughter-House majority opinion. The ensuing legal developments counsel strongly in favor of overruling Slaughter-House.

F. The Absence of Concrete Reliance

People have concrete reliance on the rights that substantive due process preserves, but this reliance is separate from reliance on the procedural mechanism itself. Their reliance would only be concrete if abrogating substantive due process would also mean that the Bill of Rights was not incorporated against the states. Adoption of the PI + 9 Framework would avoid such issues.

The primary concrete reliance interests that would be upset by Slaughter-House being overruled would be those that rely on the unincorporated parts of the Bill of Rights remaining unincorporated. Today, the Third Amendment, the Fifth Amendment’s Grand Jury Clause, and the Seventh Amendment are the only enumerated rights that remain unincorporated.¹⁵⁵

The Third and Seventh Amendment present inconsequential reliance interests. The Third Amendment’s incorporation would be the least substantial because situations that lead to Third Amendment litigation are exceedingly rare.¹⁵⁶ Similarly, the Seventh Amendment’s incorporation would change little. Only three states lack a right to a civil jury trial in their state constitutions: Colorado, Louisiana, and Wyoming.¹⁵⁷ However, the right to a civil jury trial can be found elsewhere in those three states. The rules of civil procedure for Colorado,¹⁵⁸ Louisiana,¹⁵⁹ and Wyoming¹⁶⁰ allow a party to demand a jury trial. Accordingly, incorporating the Third and Seventh Amendment would change little for states or private parties.

Incorporating the Fifth Amendment’s Grand Jury Clause presents the greatest reliance-interest issues of the amendments that prescribe enumerated rights. States without a grand jury requirement have reliance interests in preserving the finality of criminal judgments and avoiding the costs associated with implementing an institution for criminal prosecutions—the grand jury.¹⁶¹

The finality of criminal judgments in state courts would likely remain intact despite incorporation of the Grand Jury Clause. In Edwards v. Vannoy, the Supreme Court refused to retroactively apply the Ramos jury-unanimity rule on federal collateral review.¹⁶² Given the refusal in Edwards to retroactively apply the unanimous jury verdict requirement from Ramos on federal collateral review,¹⁶³ it seems unlikely that the Court would rule differently if the Grand Jury Clause were incorporated. To apply the requirement retroactively, the Court would need to apply a rare exception that it described as “moribund” in 2021.¹⁶⁴

A state’s reliance interest in avoiding the costs associated with grand juries is the most significant reliance interest jeopardized by total incorporation of the Bill of Rights. However, reliance-interests analysis usually concerns the costs borne by private parties, not the government.¹⁶⁵ All but two states, Pennsylvania and Connecticut, still have grand jury indictment as part of their criminal procedure scheme—even if twenty-eight states do not require a grand jury indictment.¹⁶⁶ The familiarity with the grand jury as an institution and the existence of the institution in all but two states limit the extent to which incorporating the Grand Jury Clause would upset reliance interests. Moreover, the Court has repeatedly incorporated procedural protections against states despite the attendant costs.¹⁶⁷ Such decisions evince a belief in the relative unimportance of a state’s reliance interest in maintaining criminal laws and procedures that are inconsistent with the Constitution. As Justice Gorsuch wrote in Ramos, the most essential reliance interests are “the reliance interests of the American people.”¹⁶⁸ Given the relatively meager reliance interests that would be affected by overruling Slaughter-House, the reliance interests factor weighs only slightly against overruling the precedent.

Weighing the stare decisis factors as a whole in a manner consistent with the Court’s recent application of those factors, Slaughter-House should be overruled. Accordingly, the Fourteenth Amendment’s Privileges or Immunities Clause should incorporate every right in the Bill of Rights against the states.

IV. SUBSTANTIVE DUE PROCESS MUST END

Substantive due process is a doctrine with severe flaws. As will be explained below, the doctrine cannot justify itself with anything but a result-oriented conclusion. However, even that justification is unsatisfying because substantive due process is not the best means to protect individual liberties against state infringement—the Privileges or Immunities Clause is. The result is a disjointed Fourteenth Amendment and an ineffectual Ninth Amendment.

A. Substantive Due Process Fails to Justify Itself with Reason and Impedes a Harmonious Fourteenth Amendment

The Fourteenth Amendment’s Due Process Clause seems, on its text’s face,¹⁶⁹ to be an inapt mechanism to incorporate the Bill of Rights against the states. After all, the Due Process Clause describes process, not substance.¹⁷⁰ Over the years, several Supreme Court Justices have recognized the contradiction in terms for the folly that it is.¹⁷¹ Other Supreme Court Justices have employed substantive due process without defending the mechanism itself.¹⁷² Stranger yet, however, is when Justices who have openly expressed their distaste for substantive due process have nonetheless approved its use in applying the Bill of Rights to the states.¹⁷³

Despite substantive due process’s status as the favored means to incorporate the Bill of Rights against the states, the method has failed to justify itself by any means other than a result-oriented approach. This approach would be more understandable if a more apt provision of the Constitution could not accomplish the same objectives. The Privileges or Immunities Clause can achieve those objectives and would do so with greater force, clarity, and efficiency.

Furthermore, revitalizing the Privileges or Immunities Clause while curtailing substantive due process would harmonize the Fourteenth Amendment’s Due Process Clause, Equal Protection Clause, and Privileges or Immunities Clause. The Due Process Clause would consider only “procedural fairness.”¹⁷⁴ The Equal Protection Clause would address equality alone.¹⁷⁵ The Privileges or Immunities Clause would set a baseline of substantive rights that no state may abridge.¹⁷⁶ The failure to harmonize the three above-mentioned Fourteenth Amendment clauses puts rights on weaker footing.

B. Substantive Due Process Shortchanges the Ninth Amendment

Any construction that renders a constitutional provision superfluous is “inadmissible, unless the words require it.”¹⁷⁷ Chief Justice Marshall’s proscription against superfluous constructions was farsighted, and its logic extends to the wounds substantive due process has inflicted on the Ninth Amendment. The established doctrine the Court employs to evaluate whether the Constitution protects an unenumerated right is substantive due process.¹⁷⁸ The repeated¹⁷⁹ resort to the Due Process Clause to achieve purposes for which it was never intended,¹⁸⁰ and to which it is ill-suited, shortchanges the Ninth Amendment and renders it superfluous.¹⁸¹ Furthermore, to render the Ninth Amendment superfluous does more than flout one of Chief Justice Marshall’s memorable axioms. The failure to ground unenumerated-rights jurisprudence in the constitutional provision most suited to that purpose puts jealously guarded individual liberties at risk.

The Ninth Amendment offers the protection that unenumerated rights deserve. Regarding one such precious unenumerated right, Chief Justice Warren wrote for a unanimous Court that, “[u]nder our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state.”¹⁸² The right to interracial marriage is one of many precious unenumerated rights that deserves better protection than what a procedural clause can offer. The Ninth Amendment can secure those rights better than substantive due process. Any defense of substantive due process to defend an unenumerated right disserves the very rights the doctrine purports to protect. Substantive due process must be abrogated so that Ninth Amendment jurisprudence can become the sentinel of unenumerated rights.

V. UNENUMERATED RIGHTS: THE ELEPHANT IN THE ROOM

The biggest challenge to adopting an expansive construction of the Privileges or Immunities Clause may be getting Justices to agree on a test for whether the Constitution protects a particular unenumerated right. Fortunately, there is a consensus about protecting some unenumerated rights.¹⁸³ This Part argues that the Ninth Amendment should protect unenumerated rights and considers which test is appropriate for accomplishing that objective.

A. Justices Across the Spectrum Want to Protect Unenumerated Rights

The Dobbs v. Jackson Women’s Health Organization majority was quick to emphasize that its elimination of an unenumerated constitutional right to abortion should not “be understood to cast doubt on precedents that do not concern abortion.”¹⁸⁴ In his concurring opinion in Dobbs, Justice Kavanaugh expressed support for Supreme Court precedents concerning marriage and contraception.¹⁸⁵ The Dobbs dissenters believed that it was not possible to decouple the precedents concerning marriage and contraception from the precedents concerning abortion.¹⁸⁶ The fact that both sides agreed in Dobbs that at least some unenumerated rights were protected by the Fourteenth Amendment’s Due Process Clause is some evidence of the broad support for constitutional recognition of some unenumerated rights.

B. The Ninth Amendment Is the Best Means to Protect Unenumerated Rights

The Ninth Amendment shares at least two things in common with the Privileges or Immunities Clause. First, both have been mostly read out of the Constitution.¹⁸⁷ Second, substantive due process has haphazardly achieved some of each’s overarching goals.¹⁸⁸

There is a broad consensus that the Constitution protects some unenumerated rights.¹⁸⁹ And if the Constitution protects unenumerated rights, those rights ought to be safeguarded by a framework sturdier than the flimsy, contradictory substantive due process approach. Substantive due process’s embrace of unenumerated-rights jurisprudence would be more understandable if no part of the Constitution dealt explicitly with the issue of unenumerated rights. Fortunately, this is not the case. A provision that discusses unenumerated rights exists, and that provision is the Ninth Amendment, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”¹⁹⁰

The decision to craft a jurisprudence about unenumerated substantive rights in a procedural clause is confounding in light of the Ninth Amendment. The Supreme Court has traditionally declined to hold that the Ninth Amendment is the source of substantive rights.¹⁹¹ Indeed, the Ninth Amendment does not specify which rights were retained by the people. The only body with the power and qualifications necessary to decide which rights are retained by the people is the federal judiciary. The “province and duty of the judicial department to say what the law is”¹⁹² extends to expounding and interpreting which rights are “retained by the people”¹⁹³ under the Ninth Amendment.

C. Finding the Right Test for Identifying Protected Unenumerated Rights

The Supreme Court must choose a proper, workable rule of law for lower courts to apply when deciding Ninth Amendment cases if the Court were to adopt the PI + 9 Framework. The Ninth Amendment seems so open to interpretation that it could create Pandora’s box concerns that may produce workability problems.¹⁹⁴ Indeed, the Court has recently cited unworkability in both constitutional¹⁹⁵ and statutory¹⁹⁶ cases as a key reason for overruling precedents. However, substantive due process raises the same Pandora’s box predicaments,¹⁹⁷ yet the Court has had little trouble applying substantive due process in recent years.¹⁹⁸ Indeed, when the Court overruled Roe and Casey, the Court insisted on being guided by “history and tradition” in order to avoid the “freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York.”¹⁹⁹

However, if the Court were to hand down a landmark Ninth Amendment decision, it would have ultimate authority to say what the law is and could choose any test it desired. The Court ought not to be frozen by a fear of political backlash or public outcry when deciding the cases and controversies that it has the power to decide under Article III.²⁰⁰ In 2022, the Court acknowledged the importance of deciding cases based on principles, “not social and political pressures.”²⁰¹ A wise Justice once said of the Court, “We are not final because we are infallible, but we are infallible only because we are final.”²⁰² The Court ought to trust itself enough to exercise the power vested in it by the Constitution to interpret and construe the Ninth Amendment. Several options abound—ranging from ignoring the Ninth Amendment to presuming liberty—for the Court if it adopts the PI + 9 Framework.

The Ink Blot Approach: Disregarding the Ninth Amendment

Judge Robert H. Bork infamously compared the Ninth Amendment to an “ink blot” that the Court should not interpret.²⁰³ Judge Bork’s conception should be rejected because it underestimates the judiciary’s abilities, ignores history, and is impractical.

Judge Bork’s interpretation should be rejected because it ignores a provision of the Constitution due to its potential for being difficult to interpret. Judge Bork underestimated the Court. The “task of translating the majestic generalities of the Bill of Rights” is daunting.²⁰⁴ However, this task is the province and duty of the judges who comprise the federal judiciary.²⁰⁵ There is no exception to this province and duty in cases that raise complex and profound questions.

Furthermore, Judge Bork’s conception is not historically defensible from any conceivable originalist perspective.²⁰⁶ For Anti-Federalists, enumerating any rights was dangerous because doing so could be construed to imply the nonexistence of other rights.²⁰⁷ James Madison acknowledged this criticism when he defended the Constitution’s ratification and offered a provision, which became the Ninth Amendment, that expressly guaranteed protection for unenumerated rights.²⁰⁸ Although Ninth Amendment scholars have come to vastly different conclusions—from natural-rights readings²⁰⁹ to readings emphasizing control for local governance²¹⁰—it appears there was more underneath the ink blot than Judge Bork thought.

Finally, Judge Bork’s conception is impractical. Some unenumerated-rights protections, including those for contraception and same-sex marriage, enjoy support from Justices across the ideological spectrum. The differences are in degree, not kind. For example, the Dobbs majority opinion, a concurring opinion, and the joint dissenting opinion all claimed to stand for unenumerated rights other than abortion.²¹¹ The idea of stripping all unenumerated rights of constitutional protection is simply unthinkable. For example, the right to interracial marriage is unenumerated.²¹² However, any prominent person who suggests that it is not a right protected by the Constitution is instantly and vociferously rebuked.²¹³ Aside from its indefensibility as a matter of history and principle, the idea that all unenumerated rights would be summarily stripped of constitutional protection is beyond the realm of realistic possibilities.

The Presumption of Liberty Approach: Ninth Amendment Maximalism

Randy E. Barnett has written extensively on the Ninth Amendment²¹⁴ and has his own grand Ninth Amendment theory. Under Barnett’s theory of unenumerated rights, one could first conduct an originalist analysis to determine which unenumerated rights get constitutional recognition.²¹⁵ However, Barnett conceded that originalist materials would be insufficient to recognize all the rights worthy of Ninth Amendment protection, so the sphere of unenumerated rights would be even more expansive than originalism could contemplate.²¹⁶ Barnett advocated a framework that presumes liberty for unenumerated rights.²¹⁷ Presuming liberty would place the burden on the government to establish why any government infringement on individual freedom is both necessary and proper, rather than assuming constitutionality when possible.²¹⁸ In determining when liberty should be presumed, Barnett’s dividing line is a rightful/wrongful conduct distinction.²¹⁹

Barnett’s contributions to Ninth Amendment scholarship are admirable, but his solutions are quixotic. First, to presume liberty would be to undo fundamental canons of construction. Established canons of constitutional construction dating back to the early nineteenth century demand that “[n]o court ought, unless the terms of an act rendered it unavoidable, to give a construction to [a statute] which should involve a violation, however unintentional, of the constitution.”²²⁰ To reverse the paradigm to one in which the federal judiciary seeks to strike down laws that touch so-called “rightful activity”²²¹ would be catastrophic. The current Court’s desire to take more issues out of constitutional law and insert them into the democratic process is at odds with Barnett’s framework.²²²

Aside from the current Court’s probable unwillingness to adopt the kind of radical shift that Barnett supports, workability concerns are sufficient to reject Barnett’s framework. In recent years, the Court expressed frustration with unworkable rules of law and overruled precedents on that basis.²²³ The idea that the Court would adopt a rightful/wrongful conduct test for trial and appellate courts to apply to every piece of legislation is fantasy.

To be sure, Barnett’s theory is far from the only Ninth Amendment framework. Many theories abound.²²⁴ For example, Kurt T. Lash’s theory considers the Ninth Amendment through a federalism prism that emphasizes retained powers in addition to retained rights.²²⁵ In any event, Barnett’s presumption-of-liberty theory represents the opposite of Judge Bork’s ink-blot theory. Between Barnett’s Ninth Amendment maximalism and Judge Bork’s Ninth Amendment ignorance lie too many possibilities to ponder in this Note.

An ideal rule for the Court to adopt in inaugurating its Ninth Amendment jurisprudence would be one that is workable, in line with current precedents, and moored by “respect for the teachings of history.”²²⁶ A workable rule of law would promote consistency and predictability to a constitutional provision that many may fear due to its unpredictability.²²⁷ A rule of law in line with current precedents regarding unenumerated rights would prevent the instability that a brand-new rule might invite. A rule of law grounded in respect for history and tradition would avoid the open-ended judicial activism of the Lochner era.²²⁸

Glucksberg’s Goldilocks Test

Fortunately, there is an established test that is workable and guided by history. Further, this test is more than merely consistent with current precedents—it is current precedent.

The Court adopted a sensible unenumerated-rights framework in Washington v. Glucksberg.²²⁹ The framework requires a “careful description” of the asserted liberty interest.²³⁰ The careful description provides a buffer against broad assertions of a liberty interest that could mean anything and everything. Additionally, adopting an approach that describes a liberty interest rather than a retained right²³¹ is appropriate because liberty and right have been used interchangeably since the American Revolution.²³² Then, there is a two-pronged test for deciding whether the Due Process Clause protects a right, and this framework applies to evaluating unenumerated rights.

First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition (“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.”²³³

The above framework gets at the heart of the Ninth Amendment, even though it brands itself as a Due Process Clause analysis. The language about a right needing to be “objectively, deeply rooted in this Nation’s history and tradition”²³⁴ is appropriate for evaluating which rights have been “retained by the people.”²³⁵ For a right to be retained, the right could not have recently come into existence—thus the deeply rooted phrasing. This approach shows proper respect for history’s teachings, prefers judicial restraint and caution,²³⁶ and averts the unrestrained judicial activism of the Lochner era.²³⁷ The history-and-tradition prong also ensures that the Ninth Amendment would preserve an existing right. Any analysis that claims the Ninth Amendment is not the source of substantive rights²³⁸ is telling a lawyerly half-truth. The nation’s history and tradition are the source of the rights retained by the people in the Ninth Amendment.

The Glucksberg test also scores high in workability when lower courts have applied the test to purported unenumerated rights in various contexts.²³⁹ For example, not long after the Court decided Glucksberg, the Fourth Circuit Court of Appeals applied the two-pronged test to reject a petitioner’s asserted unenumerated right to be free from unjust or arbitrary incarceration.²⁴⁰ In another case, the Eighth Circuit Court of Appeals had no difficulty applying Glucksberg to uphold an Iowa statute limiting where sex offenders could reside.²⁴¹ In 2024, a federal district court judge in Murphey v. United States had little issue applying Glucksberg’s two-pronged test to reject a plaintiff’s asserted right to grow, possess, and use psychedelic and other drugs.²⁴² Additionally, in the district court’s application of the test in Murphey, the court looked to Supreme Court decisions that counseled against recognizing additional rights because “guideposts for responsible decisionmaking in this unchartered area [were] scarce and open-ended.”²⁴³ Lower courts have proven Glucksberg to be workable.

The second prong allows judges to ensure that sordid practices do not get constitutional protection merely for existing long enough to be deeply rooted in the nation’s history and tradition. As Justice Stevens observed in Bowers v. Hardwick, “neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.”²⁴⁴ However, the right to interracial marriage is beyond doubt implicit in the concept of ordered liberty.²⁴⁵ Moreover, there may be “room for play in the joints”²⁴⁶ between the first prong and second prong.²⁴⁷ The first prong may act as a nonabsolute constraint on the second prong. Regarding the relationship between the prongs, Justice Kennedy wrote, “History and tradition guide and discipline [the second prong] but do not set its outer boundaries.”²⁴⁸

To be sure, the second prong requires courts to “exercise reasoned judgment.”²⁴⁹ But the exercise of reasoned judgment is inherent to the judicial power. It is “emphatically the province and duty of the judicial department to say what the law is.”²⁵⁰ Neither political branch has the power to identify constitutional rights.²⁵¹ Thus, the proper body for identifying rights in the context of the Ninth Amendment is the judicial branch.²⁵² Through its substantive-due-process jurisprudence, the Court has already

recognized a number of unenumerated rights deemed to be fundamental.²⁵³ If it continues to do so, it ought to do so through the proper means: the Ninth Amendment. Doing so gives unenumerated rights a place in law that is more secure than substantive due process.

VI. THE FRAMEWORK APPLIED

The PI + 9 Framework would apply amendments one through nine to the states through the Privileges or Immunities Clause and conduct its unenumerated-rights inquiry under the Ninth Amendment by using the two-pronged Glucksberg test. Figure 1 shows how amendments one through nine would apply to state governments under the PI + 9 Framework.

Figure 1. The PI + 9 Framework

A. The Framework for Enumerated Rights

The PI + 9 framework has the benefit of simplicity, especially as the framework applies to enumerated constitutional rights, such as the right to bear arms.²⁵⁴ Under the PI + 9 Framework, the Second Amendment would apply to the states via the Privileges or Immunities Clause. There would be no need to consider whether the Second Amendment is implicit in the concept of ordered liberty because it would automatically be incorporated via the Privileges or Immunities Clause. A judge would only consider whether the state law violates the Second Amendment, which would get to the heart of the issue more quickly than a gratuitous rehashing about the wisdom or foolishness of substantive due process. Under the PI + 9 Framework, the state law would be analyzed in accordance with pertinent Second Amendment precedents, such as New York State Rifle & Pistol Association v. Bruen²⁵⁵ and District of Columbia v. Heller.²⁵⁶

In any opinion concerning a state law’s alleged abridgment of the Second Amendment, the Court would quickly state what is clear from the text, legislative history, and original intent,²⁵⁷ which is that the Privileges or Immunities Clause applies every right in the Bill of Rights to the states. Then, the Court would decide whether the state law at issue violates the Second Amendment. In the Second Amendment context, the prevailing test remains the test from Bruen.²⁵⁸ Any difficulties arising from applying Bruen²⁵⁹ could be hashed out purely within the confines of the Second Amendment. Full incorporation takes distracting debates about substantive due process off the table and decreases judicial discretion as it relates to incorporation. The focus would be more on the right itself rather than the procedure by which the right in question is incorporated.

PI + 9 Applied to a Hypothetical About an Enumerated Right

Assume the following hypothetical factual scenario:

After increasing pressure from the public, Iowa enacts Statute One,²⁶⁰ which criminalizes the “carrying, transportation, or possession of any firearm on the grounds of any public school in the state of Iowa.” After Statute One’s enactment, Tina attends a parent-teacher conference at a public school in Marion, Iowa, with a loaded Glock 17 pistol in a holster on her hip. After seeing the holstered pistol, a student at the school calls the police, and the police arrive at the school and arrest Tina. Tina is charged with violating Statute One, and a jury convicts her in Linn County District Court. The Iowa Court of Appeals affirms the conviction. Tina petitions for a writ of certiorari to the Supreme Court of the United States, challenging her conviction and alleging that Statute One violates the Second Amendment to the United States Constitution. The Supreme Court of the United States grants certiorari.

Under these facts, a Court using the PI + 9 Framework would state that the Second Amendment applies to the states through the Fourteenth Amendment’s Privileges or Immunities Clause.²⁶¹ No inquiry would occur into whether the Second Amendment right is deeply rooted or implicit in the concept of ordered liberty. Once incorporated, the Second Amendment would operate “identically to both the Federal Government and the States.”²⁶² Given that, the Court would apply the pertinent Second Amendment precedents.

The Court would apply Bruen’s inquiry and make the government “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”²⁶³ Here, the Court could look to a precedent like Heller, which held that forbidding firearms in “sensitive places such as schools” was permissible and consistent with historical restrictions.²⁶⁴ The Court could also conduct a historical analysis to confirm or reject the view set forth in Heller about the presumptively lawful nature of prohibitions against guns in schools.²⁶⁵ Under the hypothetical set of facts, the Privileges or Immunities Clause would mandate that the Second Amendment be applied to the Iowa government. The Supreme Court’s precedents on the Second Amendment would control, and the petitioner’s conviction would likely be upheld.

The Framework for Unenumerated Rights

The PI + 9 Framework for unenumerated rights requires just a few more steps than the PI + 9 Framework for enumerated rights. First, the Court would incorporate the Ninth Amendment against the states via the Fourteenth Amendment’s Privileges or Immunities Clause.²⁶⁶ Then, the Court would carefully describe the liberty interest at stake in accordance with Glucksberg’s “careful description” mandate.²⁶⁷ After formulating a careful description of the asserted unenumerated right at issue, the Court would analyze under the Ninth Amendment²⁶⁸ whether (1) the right is “deeply rooted in this Nation’s history and tradition”;²⁶⁹ and (2) whether the right is “implicit in the concept of ordered liberty.”²⁷⁰ If the Court answered yes to those two questions, the Ninth Amendment would protect the right from infringement by the federal government and state governments.

PI + 9 Applied to a Hypothetical About an Unenumerated Right

Assume the following hypothetical factual scenario:

After a public campaign against homeschooling, California enacts Statute Two, which mandates, “No parent may homeschool their child, and all children must attend an accredited private or public school. Parents who violate this statute are guilty of a felony.” Tom is a parent in Los Angeles, California who homeschools his son. After Statute Two’s enactment, Tom continues homeschooling his child because he believes he can provide a better education for his son than any nearby public or private school. After a neighbor reports Tom to the police for homeschooling, Tom is arrested and charged with violating Statute Two. Tom is convicted of violating Statute Two in the Los Angeles County Superior Court and appeals to the California Second District Court of Appeal, which affirms his sentence. Tom petitions for a writ of certiorari to the Supreme Court of the United States, challenging his conviction and alleging a violation of his Ninth Amendment right to homeschool his child. The Supreme Court of the United States grants certiorari.

Under these facts, a Court using the PI + 9 Framework would first note that the right at issue here is not enumerated in the Constitution. Thus, a Ninth Amendment inquiry is apt. The Court would quickly explain that the Privileges or Immunities Clause applies the Ninth Amendment to the states. Then, the Court would carefully describe the right at issue in the instant case, which is the right to homeschool one’s child. After carefully describing the right, the Court would answer each Glucksberg prong: (1) whether the right is deeply rooted in the nation’s history and tradition; and (2) whether the right is implicit in the concept of ordered liberty.

Under the first prong, the Court would be free to conduct an independent historical analysis. Homeschooling in America predates the American Revolution.²⁷¹ Many colonies passed laws in the seventeenth century that required parents to educate their children.²⁷² Colonial fathers were expected to teach their children reading and religion.²⁷³ Abigail Adams homeschooled her children, and the Adams family was not unique among New Englanders in this respect.²⁷⁴ Before the Civil War, enslaved people used home education as a means to defy racist anti-literacy laws.²⁷⁵ Today, homeschooling is legal in all fifty states,²⁷⁶ except for the fictitious California in the hypothetical.

Additionally, early-twentieth-century Supreme Court cases decided issues related to the right of parents to make decisions about their child’s education. If the Court decided that the early twentieth century was early enough to inform the history-and-tradition inquiry, the Court could cite Pierce v. Society of Sisters²⁷⁷ and reaffirm Pierce’s proposition that parents have a right “to direct the upbringing and education of children under their control.”²⁷⁸ The Court could also rely on Meyer v. Nebraska, which held that “[c]orresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life.”²⁷⁹ The cases recognizing a right of parents to control the upbringing of their children are more than one hundred years old. Those cases, in addition to historical evidence, buttress the proposition that the right to homeschool one’s children is deeply rooted. The Court would answer (1) in the affirmative and move on to answering whether the right to homeschool one’s children is implicit in the concept of ordered liberty.

The Court would likely also answer (2) in the affirmative and hold that the right to homeschool one’s child is implicit in the concept of ordered liberty. In Meyer, the Court held that the right to “establish a home and bring up children” was protected by the Constitution.²⁸⁰ Additionally, the right to homeschool one’s child could be drawn within the sphere of “related rights of childrearing, procreation, and education” that the Court has recognized.²⁸¹ Under sufficiently analogous precedents and the exercise of reasoned judgment, the Court would hold that the right to homeschool one’s children is implicit in the concept of ordered liberty. After carefully describing the right at issue and satisfying Glucksberg’s two prongs, the Court would hold that the Ninth Amendment protects the right to homeschool one’s children and would void Statute Two.

VII. ADVANTAGES OF THE PI + 9 FRAMEWORK

The PI + 9 Framework has three main advantages: (1) it provides a stronger mechanism for protecting individual rights; (2) it is a more efficient, clear, and appropriate means by which to incorporate the Bill of Rights; and (3) it could lead to the development of Ninth Amendment jurisprudence.

A. Putting Individual Rights on Stronger Footing

The primary advantage of the PI + 9 Framework is that it puts the precious civil liberties enshrined in the Constitution on stronger footing. Every single right recognized by substantive due process is always somewhat in doubt because of the dubious, wobbly nature of the doctrine. Why risk it? Those alarmed by Justice Thomas’s concurrence in Dobbs,²⁸² which suggested that all substantive due process precedents ought to be reconsidered, have nobody to blame but themselves if they previously championed a flawed doctrine like substantive due process. Individual substantive rights are too important to leave behind the unlocked door of a process-related clause. The PI + 9 Framework gives substantive rights the defense they deserve by providing power to the text, history, and intent of the Privileges or Immunities Clause.

B. Efficiency, Clarity, and Respect for the People’s Amendments

The PI + 9 Framework offers a better approach to incorporation than substantive due process. Glucksberg’s application to enumerated rights is inappropriate, inefficient, and unclear. It is inappropriate because a judge should not answer whether an amendment to the Constitution is sufficiently important to qualify as a sort of “super right” to be incorporated against the states. Each provision of the Bill of Rights was important enough for two-thirds of Congress and three-fourths of the states²⁸³ to add the provision to the nation’s founding document. Furthermore, it is inefficient because it requires a two-pronged analysis for provisions that were clearly fundamental enough to liberty to be included in the Constitution and are part of the nation’s history and tradition since 1791. Finally, there is a lack of clarity as to why some amendments in the Bill of Rights are more vital to liberty than others. As Justice Thomas wrote in McDonald, a Privileges or Immunities Clause analysis is “far more likely to yield discernible answers” than substantive due process.²⁸⁴ If the Court were to adopt the PI + 9 Framework, there would be no more ink spilled or time wasted defending substantive due process. The Court could instead get to the business of interpreting what each provision of the Bill of Rights means and how it ought to be construed and applied to the facts of a case.

C. Development of Ninth Amendment Jurisprudence

Another benefit of the PI + 9 Framework is the development of Ninth Amendment jurisprudence. In carrying out its duty to “say what the law is,”²⁸⁵ the judicial branch ought to tell the American people what the Ninth Amendment means. Scholars may argue about the proper interpretation and construction of the Ninth Amendment, and this Note advocates Glucksberg’s two-pronged approach. Such words are wind. Only the judiciary can give meaning to the Constitution’s text. Perhaps this will mean freezing the American people’s rights as of 1791 or 1868.²⁸⁶ Perhaps this will mean a presumption of liberty that would drastically curtail the role of government in Americans’ lives.²⁸⁷ Perhaps this will mean adopting Glucksberg’s two-pronged approach. However, the first Court opinion that grounds itself in the Ninth Amendment could give birth to a new age of Ninth Amendment scholarship and jurisprudence aimed at discovering the proper meaning and construction of the Ninth Amendment. Each time the Court is tempted to defer interpretation of the Ninth Amendment and choose the more well-trodden path of substantive due process, the Court instead ought to heed the words of Chief Justice Marshall: “It cannot be presumed that any clause in the [C]onstitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.”²⁸⁸

CONCLUSION

The PI + 9 Framework secures rights in a more robust, efficient, and clear manner than substantive due process does. Substantive due process is worse than a mere contradiction in terms. The ever-expanding reach of substantive due process has robbed two provisions of the Constitution—the Privileges or Immunities Clause and the Ninth Amendment—of the importance they deserve. Any stare decisis issues would be more well-founded if most of the Bill of Rights had not already been incorporated. Moreover, the substantive changes that replacing substantive due process with the PI + 9 Framework would cause are the incorporation of the Third Amendment, the Fifth Amendment’s Grand Jury Clause, and the Seventh Amendment, and using the current controlling framework for unenumerated rights. Thus, adopting the Framework would not cause a significant expansion or diminution in substantive rights. Far from an expansion or diminution, the PI + 9 Framework offers enumerated and unenumerated rights the durable, efficient, and clear protection that American privileges and immunities deserve.

99 S. Cal. L. Rev. 359

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Lincoln Son Currie*

*Articles Editor, Southern California Law Review, Volume 99; J.D. Candidate 2026, University of Southern California Gould School of Law; B.S. 2023, Boston University. I thank my supervisor, Professor Rebecca Brown, for providing me with careful suggestions and guidance as I wrote this Note. I am grateful to the editors of the Southern California Law Review for their diligence in improving this Note. All errors are my own.

Introduction

I. Competing Constitutional Principles

A. Congress’s Power to Investigate

B. State Sovereignty

C. A Conflict Between Congress’s Power to Investigate and State Sovereignty

The Bragg Investigation

Congress’s Interests

New York’s Interests

II. Constraints on Congressional Investigations

A. Federal Law Enforcement and the Separation of Powers

B. The Scope of Congress’s Authority

C. Congressional Investigations and Individual Rights

D. Practical Constraints on Congressional Investigations

III. Implications for Investigations of State and Local Law Enforcement

A. Local Law Enforcement and Federalism

C. Congressional Investigations of Local Law Enforcement and Individual Rights

D. Practical Constraints on Congressional Investigations of Local Law Enforcement

Conclusion

99 S. Cal. L. Rev. 777

Introduction

I. The Landscape of Judicial Regret

A. Lower Courts

Lower Court Judges’ Encounters with Regret

How Lower Court Judges Process and Respond to Regret

B. Supreme Court

Japanese American Internment—Justice Douglas in Korematsu v. United States

Racial Integration—Chief Justice Warren in Brown v. Board of Education II

Death Penalty—Justices Stevens, Blackmun, and Powell

Queer Rights—Justice Powell in Bowers v. Hardwick

Affirmative Action—Justice O’Connor in Grutter v. Bollinger

II. The Anatomy of Judicial Regret

A. Regret Generally

B. Judicial Regret Specifically

Dimensions of Regret

i. Experiential Regret

i. Expressive Regret

iii. Perceptual Regret

Regret’s Influence on Judicial Behavior and Decision-Making

Contextual Variations in Judicial Regret

i. Origins of Regret

ii. Variations Across Court Hierarchies

iii. The Role of Judicial Philosophy

iv. Gender and Race in Judicial Regret

Legal Culture and the Normative Status of Regret

III. Applications of Judicial Regret

A. Evaluating Judicial Regret

B. Doctrinal Applications

Legal Interpretation

Precedent Analysis

C. Extra-Doctrinal Applications

Legislative Reform

Legal Advocacy

Scholarly Analysis

Democratic Engagement

D. Systemic Implications

E. Limitations and Risks

Unintended Consequences

Structural Limits

Conclusion

99 S. Cal. L. Rev. 829

Introduction

I. Traditional Prism: Goods’ Nationalities in Trade

A. Rules of Origin: Local Laws, International Significance

B. Regulating Origins in the Age of Supply Chains

II. Goods’ Nationalities in the New Geopolitics

A. Trade and National Security

B. Trade and Human Rights

III. Constructing Goods’ Nationalities

A. Goods’ Attributes

Supply Side

Demand Side

B. Laws’ Prisms

Commerce

Rights

Security

C. The Attribute-Selection Framework

IV. The Limits of Nationality

A. Nationality as a Proxy

B. From Products to Entity- and Geography-Based Regulations

The Entity Lists