Supreme Court October Term 2018: A Review of Selected Major Rulings

Contents

• Administrative Law
• Deference and Agency Regulations: Kisor v. Wilkie
• Election Law
• Census: Department of Commerce v. New York
• Redistricting: Rucho v. Common Cause and Lamone v. Benisek
• First Amendment
• Religious Displays: American Legion v. American Humanist Association
• Separation of Powers
• Nondelegation Doctrine: Gundy v. United States

Summary

The Supreme Court term that began on October 1, 2018, was a term of transition, with the Court issuing a number of rulings that, at times, suggested but did not fully adopt broader transformations in its jurisprudence. The term followed the retirement of Justice Kennedy, who was a critical vote on the Court for much of his 30-year tenure and who had been widely viewed as the Court's median or "swing" Justice. As a result, the question looming over the October 2018 Term was how the replacement of Justice Kennedy with Justice Kavanaugh would alter the Court's jurisprudence going forward.

Notwithstanding the alteration in the Court's makeup, observers have generally agreed that the October 2018 Term largely did not produce broad changes to the Court's jurisprudence. Although a number of cases presented the Court with the opportunity to rethink various areas of law, the Court largely declined those invitations. In other cases, a majority of the Justices did not resolve potentially far-reaching questions, resulting in the Court either issuing more narrow rulings or simply not issuing an opinion in a given case. Nonetheless, much of the low-key nature of the October 2018 Term was a product of the Court's decisions to not hear certain matters. And for a number of closely watched cases that it did agree to hear, the Court opted to schedule arguments for the next term.

While the Supreme Court's latest term generally did not result in wholesale changes to the law, its rulings were nonetheless important, in large part, because they provide insight into how the Court may function following Justice Kennedy's retirement. For the fourth straight year at the Court, the number of opinions decided by a bare majority increased, with 29% of the Court's decisions being issued by a five-Justice majority. While a number of decisions saw the Court divided along what are perceived to be the typical ideological lines, the bulk of the Court's closely divided cases involved heterodox lineups in which Justices with divergent judicial philosophies joined to form a majority in a given case. Collectively, the voting patterns of the October 2018 Term have led some commentators to suggest that the Court has transformed from an institution that was largely defined by the vote of Justice Kennedy to one in which multiple Justices are now perceived to be the Court's swing votes.

Beyond the general dynamics of the October 2018 Term, the Court issued a number of opinions of importance for Congress. Of particular note are five opinions from the October Term 2018: (1) Kisor v. Wilkie, which considered the continued viability of the Auer-Seminole Rock doctrine governing judicial deference to an agency's interpretation of its own ambiguous regulation; (2) Department of Commerce v. New York, a challenge to the addition of a citizenship question to the 2020 census questionnaire; (3) Rucho v. Common Cause, which considered whether federal courts have jurisdiction to adjudicate claims of excessive partisanship in drawing electoral districts; (4) American Legion v. American Humanist Association, a challenge to the constitutionality of a state's display of a Latin cross as a World War I memorial; and (5) Gundy v. United States, which considered the scope of the long-dormant nondelegation doctrine.

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The Supreme Court term that began on October 1, 2018,¹ was a term of transition, with the Court issuing a number of rulings that, at times, signaled but did not fully adopt broader transformations in its jurisprudence. The term followed the retirement of Justice Kennedy,² who was a critical vote on the Court for much of his 30-year tenure and who had been widely viewed as the Court's median or "swing" Justice.³ In nine out of the last 12 terms of the Roberts Court, he voted for the winning side in a case more often than any of his colleagues.⁴ Justice Brett Kavanaugh replaced Justice Kennedy one week into the October 2018 Term.⁵ The Court's newest member had served on the U.S. Court of Appeals for the District of Columbia (D.C. Circuit)⁶ for over a decade before his elevation to the Supreme Court.⁷ Empirical evidence suggests the Court can change with the retirement and replacement of one its members.⁸ As a result, the question looming over the October 2018 Term was how Justice Kennedy's departure and Justice Kavanaugh's arrival would alter the Court's jurisprudence going forward. Indeed, one member of the Court, Justice Ruth Bader Ginsburg, predicted Justice Kennedy's retirement to be "the event of greatest consequence for the current Term, and perhaps for many Terms ahead."⁹

Notwithstanding the alteration in the Court's makeup, observers have generally agreed that the October 2018 Term largely did not produce broad changes to the Court's jurisprudence.¹⁰ Although a number of cases presented the Court with the opportunity to rethink various areas of law, the Court largely declined those invitations. For instance, the Court in Gamble v. United States opted not to overrule a 170-year old doctrine concerning the reach of the Double Jeopardy Clause of the Fifth Amendment.¹¹ In other cases, a majority of the Justices did not resolve potentially far-reaching questions, resulting in the Court either issuing more narrow rulings¹² or simply not issuing an opinion in a given case.¹³ Nonetheless, much of the low-key nature of the October 2018 Term was a product of the Court's decisions to not hear certain matters. For instance, save for a three-page, per curiam opinion upholding an Indiana law regulating the disposal of fetal remains,¹⁴ the Court refrained from hearing cases touching on the subject of abortion during the October 2018 Term.¹⁵ The Court also declined to review cases addressing a number of other high-profile matters, including a challenge to the federal ban on bumpstocks,¹⁶ a dispute over whether business owners can decline on religious grounds to provide services for same-sex weddings,¹⁷ a case concerning President Trump's authority to impose tariffs on imported steel,¹⁸ and a challenge to the continued detainment of enemy combatants at Guantanamo Bay.¹⁹ And for a number of closely watched cases it did agree to hear, the Court opted to schedule arguments for the October 2019 Term, including several cases concerning whether federal law prohibits employers from discriminating on the basis of sexual orientation or gender identity²⁰ and the lawfulness of the Department of Homeland Security's decision to wind down the Deferred Action for Childhood Arrivals (DACA) policy.²¹

While the Supreme Court's latest term generally did not result in wholesale changes to the law, its rulings were nonetheless important, in large part, because they may provide insight into how the Court will function following Justice Kennedy's retirement. For the fourth straight year at the Court, the number of opinions decided by a bare majority increased, with 29% of the Court's decisions being issued by a five-Justice majority.²²

Some of these decisions saw the Court divided along what are perceived to be the typical ideological lines, with Justices appointed by Republican presidents on one side and those appointed by Democrats on the other.²³ These 5-4 splits occurred in several appeals concerning the death penalty²⁴ and in three cases where the Court expressly or implicitly overturned several of the Court's previous precedents regarding sovereign immunity,²⁵ property rights,²⁶ and redistricting.²⁷

Nonetheless, such divisions proved to be the exception rather than the rule in closely divided cases during the last term. Of the 21 cases decided by a single vote, seven cases saw 5-4 splits between what have been viewed to be the conservative and liberal voting blocs on the Court.²⁸ Instead, the October 2018 Term witnessed a number of heterodox lineups at the Court. For instance, Justice Kavanaugh joined the perceived liberal wing of the Court in a major antitrust dispute,²⁹ and Justice Gorsuch voted with that same voting bloc in several cases involving Indian³⁰ and criminal law.³¹ Justice Breyer joined the more conservative wing of the Court in the term's biggest Fourth Amendment case.³² And, as discussed in more detail below, in cases concerning the inclusion of a citizenship question on the 2020 Census questionnaire³³ and judicial deference afforded to interpretations of agency regulations,³⁴ the Chief Justice voted with the perceived liberal voting bloc. Underscoring the new dynamics of the Roberts Court, three Justices with fairly distinct judicial approaches voted most frequently with the majority of the Court last term: Justice Kavanaugh (voting with the majority 88% of the time), Chief Justice Roberts (85%), and Justice Kagan (83%).³⁵ Collectively, the voting patterns of the October 2018 Term have led some legal commentators to suggest that the Court has transformed from an institution that was largely defined by the vote of Justice Kennedy to one in which multiple Justices are now the Court's swing votes.³⁶

Beyond the general dynamics of October 2018 Term, the Court issued a number of opinions of particular importance for Congress. While a full discussion of every ruling from the last Supreme Court term is beyond the scope of this report, Table 1 and Table 2 provide brief summaries of the Court's written opinions issued during the October 2018 Term. The bulk of this report highlights five notable opinions from the October Term 2018 that could affect the work of Congress: (1) Kisor v. Wilkie, which considered the continued viability of the Auer-Seminole Rock doctrine governing judicial deference to an agency's interpretation of its own ambiguous regulation; (2) Department of Commerce v. New York, a challenge to the addition of a citizenship question to the 2020 census questionnaire; (3) Rucho v. Common Cause, which considered whether federal courts have jurisdiction to adjudicate claims of excessive partisanship in drawing electoral districts; (4) American Legion v. American Humanist Association, a challenge to the constitutionality of a state's display of a Latin cross as a World War I memorial; and (5) Gundy v. United States, which considered the scope of the long-dormant nondelegation doctrine.

Administrative Law

Deference and Agency Regulations: Kisor v. Wilkie³⁷

In Kisor v. Wilkie,³⁸ the Supreme Court considered whether to overrule the Auer doctrine (also known as the Seminole Rock doctrine),³⁹ which generally instructs courts to defer to agencies' reasonable constructions of ambiguous regulatory language.⁴⁰ In a 5-4 decision, the Supreme Court upheld the deference doctrine on stare decisis grounds.⁴¹ However, while the Court in Kisor declined to overrule Auer, it emphasized that the doctrine applies only in limited circumstances.⁴² These limitations on the doctrine's scope could bear consequences for future courts' review of agency action and affect the manner in which agencies approach their decisionmaking.

Background: The Supreme Court has established several doctrines that guide judicial review of agency action.⁴³ Perhaps the most well known is the Chevron doctrine, which generally instructs courts to defer to an agency's reasonable interpretation of an ambiguous statute that it administers.⁴⁴ Auer deference, which takes its name from the Supreme Court's 1997 decision in Auer v. Robbins,⁴⁵ has roots in the Court's 1945 decision in Bowles v. Seminole Rock & Sand Co.⁴⁶ Auer generally instructs courts to defer to an agency's interpretation of ambiguous regulatory language "unless," as the Court framed the test in Seminole Rock, that interpretation "is plainly erroneous or inconsistent with the regulation."⁴⁷ While Chevron deference applies to agency interpretations of statutes that are contained in agency statements that have the force of law (e.g., regulations promulgated following notice-and-comment rulemaking procedures),⁴⁸ Auer deference has been applied to a range of nonbinding agency memoranda and other materials that construe ambiguous regulatory language.⁴⁹ While the doctrine has long-standing roots, in the wake of Auer, several Members of the Court began to criticize the doctrine on policy, statutory, and constitutional grounds.⁵⁰

The Kisor case arose after the Department of Veterans Affairs (VA) denied James L. Kisor's request for retroactive disability compensation benefits.⁵¹ The agency determined that records he supplied were not "relevant" within the meaning of the governing regulation.⁵² On appeal, the Federal Circuit held that the term "relevant" as used in that regulation was ambiguous and, applying Auer deference to the VA's interpretation, affirmed the agency's decision.⁵³ The Supreme Court granted the petitioner's request for review to consider whether to overturn Auer.⁵⁴

Supreme Court's Decision: While the Supreme Court unanimously agreed to vacate the Federal Circuit's decision, the Justices fractured on whether to overrule Auer, with a bare majority voting to uphold it. Writing on behalf of five Members of the Court, Justice Kagan—joined by Chief Justice Roberts and Justices Breyer, Ginsburg, and Sotomayor—grounded the decision to uphold Auer on stare decisis principles.⁵⁵ The doctrine of stare decisis typically leads the Court to follow rules set forth in prior decisions unless there is a "special justification" or "strong grounds" for overruling that precedent.⁵⁶ Justice Kagan concluded that the petitioner's arguments did not justify abandoning Auer deference in light of the extensive body of precedent, going back at least to Seminole Rock, which supported the continued use of a doctrine that "pervades the whole corpus of administrative law."⁵⁷ The Kisor majority also expressed concern that abandonment of Auer deference could result in litigants revisiting any of the myriad cases that applied the doctrine.⁵⁸ And, the Court continued, "particularly 'special justification[s],'" which had not been offered by the petitioner, were necessary to overturn Auer, given that Congress has left the doctrine undisturbed for so long, despite the Court's repeated assertions that the doctrine rests on a presumption "that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules."⁵⁹

Although the Court did not overrule Auer, it took "the opportunity to restate, and somewhat expand on," the doctrine's limitations.⁶⁰ In so doing, the Court formulated a multistep process for determining whether Auer deference should be afforded to an agency's interpretation of a regulation. First, a reviewing court may defer under Auer only after determining that the regulation is "genuinely ambiguous," a conclusion the court may reach only after "exhaust[ing] all the 'traditional tools' of construction."⁶¹ Second, even if ambiguity exists, Auer will not apply unless the court determines that the agency's interpretation is "reasonable"—that is, the interpretation "must come within the zone of ambiguity" that the court uncovered in its interpretation of the regulation.⁶² And third, even if a court determines that the agency has reasonably interpreted a genuinely ambiguous regulation, it must still independently assess "whether the character and context of the agency interpretation entitles it to controlling weight."⁶³ Though the Court cautioned that this examination is unable to be reduced "to any exhaustive test,"⁶⁴ the Court indicated that Auer deference shall not extend to interpretations that (1) are not the official or authoritative position of the agency;⁶⁵ (2) do not somehow "implicate [the agency's] substantive expertise";⁶⁶ or (3) do not represent the agency's "fair and considered judgment."⁶⁷ The Court remanded the case to the Federal Circuit after concluding that the court of appeals did not adequately assess whether the regulation at issue was ambiguous, nor "whether the [VA's] interpretation is of the sort that Congress would want to receive deference."⁶⁸

Two portions of Justice Kagan's opinion defended Auer on grounds other than stare decisis principles but did not gain the support of a majority of the Court. Joined by Justices Breyer, Ginsburg, and Sotomayor, Justice Kagan argued that Auer deference follows from "a presumption that Congress would generally want [agencies] to play the primary role in resolving regulatory ambiguities."⁶⁹ Justice Kagan wrote that this presumption was justified on several grounds, including agencies' significant substantive expertise, the relative political accountability of agencies subordinate to the President, and the view that the agency responsible for issuing a regulation is often best situated to determine the meaning of that regulation.⁷⁰ The four Justices also disagreed with the petitioner's statutory, policy, and constitutional arguments for overruling Auer.⁷¹

Concurring Opinions: Justice Gorsuch authored an opinion in which he disagreed with the majority's refusal to overrule Auer.⁷² Justice Gorsuch agreed with the petitioner that Auer violates the Constitution, arguing that the doctrine runs afoul of the separation of powers by demanding that courts accede to the legal judgments of the executive branch and placing "the powers of making, enforcing, and interpreting laws . . . in the same hands."⁷³ He also agreed with the petitioner that Auer violates the judicial review and rulemaking provisions of the Administrative Procedure Act (APA).⁷⁴ Instead of affording deference under Auer, Justice Gorsuch argued that judges should employ the so-called "Skidmore doctrine" when attempting to discern the meaning of an agency regulation.⁷⁵ Under that doctrine—named after the Court's 1944 decision in Skidmore v. Swift & Co.⁷⁶—courts independently interpret the text of a regulation, but may accord nonbinding weight to an administrative interpretation, consistent with "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade."⁷⁷

The Chief Justice, who provided the crucial fifth vote to uphold Auer, authored a partial concurrence contending that the "distance" between the controlling portion of Justice Kagan's opinion and the position put forth by Justice Gorsuch "is not as great as it may initially appear."⁷⁸ He noted that the limitations on Auer deference announced by the Kisor majority—that an interpretation must, among other things, be based on the agency's "authoritative, expertise-based, and fair and considered judgment"—were not so different from those factors that Justice Gorsuch believed may persuade a court to follow an interpretation under Skidmore.⁷⁹ And, perhaps anticipating a future legal challenge to the continuing viability of the Chevron doctrine, the Chief Justice also wrote that the Auer and Chevron doctrines are analytically distinct,⁸⁰ maintaining that the Court's refusal to overrule Auer had no bearing on the distinct issues associated with Chevron.⁸¹

Implications for Congress: While the Court did not overrule the Auer doctrine in Kisor, the framework it elucidated for assessing whether deference is appropriate may provide further guidance and, perhaps, constrain lower courts deciding whether to defer to an agency's regulatory interpretation.⁸² Legal commentators have drawn various conclusions about Kisor's potential impact,⁸³ but it ultimately remains to be seen whether courts will be more hesitant to conclude that deference is warranted after Kisor, and whether the Kisor Court's elaborations on the limits on Auer deference will inform agency decisionmaking.⁸⁴ In any event, the Court in Kisor made clear that Auer deference is not constitutionally required, and Congress may opt to memorialize, abrogate, or modify application of the doctrine by statute.⁸⁵ For example, Congress could amend the judicial review provision of the APA to explicitly provide that judicial review of agency interpretations of regulations shall be accorded no deference (i.e., shall be reviewed "de novo")⁸⁶ or instead be subject to some other standard.⁸⁷ More narrowly, Congress could also provide in particular statutes governing specific agency actions whether Auer deference or some other standard of judicial review should be applied to regulatory interpretations.⁸⁸

Election Law

Census: Department of Commerce v. New York⁸⁹

On the last day that the Supreme Court sat for the October 2018 Term, the Court issued its decision in Department of Commerce v. New York⁹⁰—a case involving the legal challenges to the decision by the Secretary of the Department of Commerce, Wilbur Ross, to add a citizenship question to the 2020 census questionnaire.⁹¹ The Court's opinion resolved important questions of constitutional, statutory, and administrative law. The Court concluded that adding a citizenship question to the 2020 census questionnaire did not violate the Enumeration Clause of the U.S. Constitution or the Census Act. But the Court also—at least temporarily—prohibited the Department of Commerce from adding the citizenship question to the 2020 census questionnaire because it determined that Secretary Ross had violated the APA by failing to disclose his actual reason for doing so.

Background: Article I, § 2 of the U.S. Constitution, as amended by the Fourteenth Amendment, requires Congress to take an "actual Enumeration" of "the whole Number of . . . persons" in each State "every . . . Term of ten Years, in such Manner as [Congress] shall by Law direct."⁹² Through the Census Act,⁹³ Congress delegated this responsibility to the Secretary of Commerce. That law requires the Secretary of Commerce to "take a decennial census of population" and grants the Secretary discretion to do so "in such form and content as he may determine" and to "obtain such other census information as necessary."⁹⁴

The Census Act places limits on how the Secretary of Commerce may conduct the census. Though the Secretary is authorized to "determine the inquires" and to "prepare questionnaires" for obtaining demographic or other information,⁹⁵ Section 6(c) of the Census Act instructs the Secretary to first attempt to obtain such information from federal, state, or local government administrative sources "[t]o the maximum extent possible" and "consistent with the kind, timeliness, quality and scope" of the information needed.⁹⁶ Moreover, to facilitate congressional oversight, Section 141(f) of the act directs the Secretary to "submit [reports] to the [appropriate] committees of Congress" (1) identifying the "subjects proposed to be included" and "types of information to be compiled"; (2) describing "the questions proposed to be included in [the] census"; and (3) if "new circumstances exist," modifying the prior two reports.⁹⁷

On March 26, 2018, Secretary Ross issued a memorandum stating that the Census Bureau would add a citizenship question to the 2020 decennial census questionnaire.⁹⁸ Secretary Ross stated that he made this decision because the Department of Justice (DOJ) had asked that the citizenship question be added to the 2020 census to obtain citizenship data that would be used for enforcement of Section 2 of the Voting Rights Act (VRA).⁹⁹ In the memorandum, Secretary Ross explained that he had considered four options in deciding how to respond to DOJ's request: (A) not adding the citizenship question; (B) adding the citizenship question; (C) relying solely on administrative records to obtain citizenship data; and (D) relying on both administrative records and a citizenship question to obtain citizenship data.¹⁰⁰

While the Census Bureau concluded that Option C would produce the most accurate citizenship information because noncitizens and Hispanics would be less likely to respond to a census questionnaire including a citizenship question,¹⁰¹ Secretary Ross chose option D.¹⁰² He stated that reliance on administrative records alone was "a potentially appealing solution," but noted that it would provide "an incomplete picture" because the Census Bureau did not have a complete set of administrative records for the entire population.¹⁰³ In response to concerns that "reinstatement of the citizenship question . . . would depress response rate[s]" among Hispanics and noncitizens,¹⁰⁴ Secretary Ross stated the Department of Commerce had "not [been] able to determine definitively how inclusion of a citizenship question . . . will impact responsiveness" and determined that, in any event, "the value of more complete and accurate data derived from surveying the entire population outweighs such concerns."¹⁰⁵

Secretary Ross's decision was challenged in federal district courts in California,¹⁰⁶ Maryland,¹⁰⁷ and New York.¹⁰⁸ Two of these courts concluded that the addition of a citizenship question violated the Enumeration Clause¹⁰⁹ of the U.S. Constitution because "its inclusion would materially harm the accuracy of the census without advancing any legitimate governmental interest."¹¹⁰ Two courts also determined that Secretary Ross violated Sections 6(c) and 141(f) of the Census Act.¹¹¹ As to Section 6, those courts found that administrative records alone would produce more accurate citizenship data than when used in combination with a citizenship question, and therefore the addition of a citizenship question would violate Section 6(c)'s directive to rely on administrative records "[t]o the maximum extent possible."¹¹² The same two courts also determined that Secretary Ross violated Section 141(f) because he had not included citizenship as a "subject" in the first report that he submitted to Congress.¹¹³ Finally, all three district courts held that Secretary Ross had violated the APA—the law requiring that agency action be based on "'reasoned decisionmaking.'"¹¹⁴ In particular, these courts concluded that Secretary Ross's decision was—among other things—contrary to the evidence before him.¹¹⁵ They also determined that the Secretary's decision was unlawful because his sole stated reason for adding the citizenship question—providing DOJ with citizenship data for VRA enforcement—was pretextual.¹¹⁶

Supreme Court's Decision: Chief Justice Roberts wrote the opinion for the Court in Department of Commerce v. New York.¹¹⁷ Though this opinion garnered a majority for each issue addressed, the Justices comprising the majority for each issue varied.

On the merits,¹¹⁸ Chief Justice Roberts—joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh—concluded that adding a citizenship question to the census did not violate the Enumeration Clause.¹¹⁹ Noting that the Court's "interpretation of the Constitution is guided by Government practice that 'has been open, widespread, and unchallenged since the early days of the Republic,'"¹²⁰ the Court observed that "demographic questions have been asked in every census since 1790" and that "questions about citizenship in particular have been asked for nearly as long."¹²¹ Relying on this "early understanding" and "long practice," the Court determined that the Enumeration Clause does not prohibit inquiring about citizenship on the census questionnaire.¹²²

These same Justices also determined that Secretary Ross's decision was supported by the evidence before him and therefore did not violate the APA on that ground.¹²³ The Court ruled that the Secretary's decision to rely on both administrative records and a citizenship question to obtain citizenship data for DOJ was a reasonable exercise of his discretion in light of the available evidence.¹²⁴ While the Census Bureau had found that administrative records alone would produce the most accurate citizenship data, it acknowledged that each option "entailed tradeoffs between accuracy and completeness," and that it "was not able to 'quantify the relative magnitude of the errors" in each of Options C and D.¹²⁵ The Court concluded that where the "choice [is] between reasonable policy alternatives in the face of uncertainty," the Secretary has discretion to choose.¹²⁶

The Court also determined that the Secretary reasonably weighed the costs and benefits of reinstating the citizenship question, particularly "the risk that inquiring about citizenship would depress census response rates . . . among noncitizen households."¹²⁷ The Court observed that the Secretary had explained why the "risk[s] w[ere] difficult to assess," concluding that he had reasonably "[w]eigh[ed] that uncertainty against the value of obtaining more complete and accurate citizenship data" through a citizenship question.¹²⁸ In the end, and "in light of the long history of the citizenship question on the census," the Court was unwilling to second-guess the Secretary's conclusion as "the evidence before [him] hardly led ineluctably to just one reasonable course of action."¹²⁹

The same Justices also ruled that the Secretary's decision did not violate the Census Act.¹³⁰ The Court first determined, "for essentially the same reasons" underlying its ruling that Secretary Ross's decision was supported by the evidence,¹³¹ that Secretary Ross reasonably concluded that relying solely on administrative records to obtain citizenship data "would not . . . provide the more complete and accurate data that DOJ sought."¹³² Thus, because administrative records alone would not supply the "kind," "quality," and "scope" of "'statistics required,'" the Court held that Secretary Ross had complied with Section 6(c)'s requirement to rely "[t]o the maximum extent possible" on administrative records.¹³³ The Court also determined that the Secretary complied with Section 141(f) of the Census Act.¹³⁴ Though Secretary Ross had not included "citizenship" as a "subject" in his initial report to Congress, the Court determined that by listing "citizenship" as a "question" in the second report, the Secretary had adequately "informed Congress that he proposed to modify the original list of subjects" from his initial report.¹³⁵

Finally, the Chief Justice—joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan—held that the Secretary's decision violated the APA because his sole stated reason for adding the citizenship question to the census questionnaire was not the real reason for his decision.¹³⁶ The Court began by reaffirming the "settled proposition[]" that "in order to permit meaningful judicial review, an agency must 'disclose the basis' of its action."¹³⁷ Moreover, while acknowledging that courts normally accept an agency's stated reason for its action, the Court recognized that courts may review evidence outside the agency record to probe the justifications of an agency's decision when there is a strong showing of bad faith or improper behavior.¹³⁸

After concluding that it could review the extra-record evidence on which the district court had relied,¹³⁹ the Court conducted its own review of the evidence regarding Secretary Ross's reason for adding the citizenship question to the census. It began by noting that while the Secretary had "tak[en] steps to reinstate a citizenship question about a week into his tenure," there was "no hint that he was considering VRA enforcement" at that time.¹⁴⁰ In addition, the Court observed that the Department of Commerce had itself gone "to great lengths to elicit the request from DOJ (or any other willing agency)" to add the citizenship question.¹⁴¹ In the end, "viewing the evidence as a whole," the Court concluded that "the decision to reinstate a citizenship question [could not] be adequately explained in terms of DOJ's request for improved citizenship data to better enforce the VRA."¹⁴² Given this "disconnect between the decision made and the explanation given," the Court held that the Secretary's decision violated the APA.¹⁴³ However, the Court was clear that it was "not hold[ing] that the [Secretary's] decision . . . was substantively invalid," but was only requiring the Secretary to disclose the reason for that decision.¹⁴⁴ And to give Secretary Ross that opportunity, the Court directed the district court to remand the case back to the Department of Commerce.¹⁴⁵

Concurring and Dissenting Opinions: Every Justice (other than Chief Justice Roberts) dissented from some portion of the Court's opinion.¹⁴⁶ Among the most notable dissents were those of Justice Thomas and Justice Breyer.¹⁴⁷ Justice Thomas—joined by Justices Gorsuch and Kavanaugh—dissented from the Court's holding that Secretary Ross's decision was based on a pretextual rationale.¹⁴⁸ Justice Thomas began by criticizing the majority for relying on evidence outside the administrative record.¹⁴⁹ Under the APA, Justice Thomas explained, judicial review of an agency decision is generally based on "'the agency's contemporaneous explanation'" for its decision, and courts normally may not invalidate the agency's action even if it "ha[d] other, unstated reasons for the decision."¹⁵⁰ Justice Thomas acknowledged that review of extra-record materials may be permissible upon a showing of bad faith,¹⁵¹ but he disagreed with the Court's assessment that this case met that standard.¹⁵² Even if review of extra-record materials were appropriate, Justice Thomas concluded that none of the evidence established that Secretary Ross's stated basis for his decision "did not factor at all into [his] decision."¹⁵³ In his view, the evidence showed "at most, that leadership at both the Department of Commerce and DOJ believed it important—for a variety of reasons—to include a citizenship question on the census."¹⁵⁴ Finally, Justice Thomas criticized the Court's decision as being the "the first time the Court has ever invalidated an agency action as 'pretextual,'"¹⁵⁵ contending that the Court had "depart[ed] from traditional principles of administrative law."¹⁵⁶

Justice Breyer—joined by Justices Ginsburg, Sotomayor, and Kagan—dissented from the Court's conclusion that Secretary Ross's decision was supported by the evidence before the agency.¹⁵⁷ Justice Breyer contended that Secretary Ross inaccurately stated that he was "'not able to determine definitively how inclusion of a citizenship question on the decennial census will impact responsiveness.'"¹⁵⁸ Specifically, the dissent observed that the experts within the Census Bureau itself had found that "adding the question would produce a less accurate count because noncitizens and Hispanics would be less likely to respond to the questionnaire,"¹⁵⁹ finding there was "nothing significant" in the record "to the contrary."¹⁶⁰ Moreover, Justice Breyer criticized Secretary Ross's conclusion that the addition of the citizenship question would produce more complete and accurate data.¹⁶¹ According to Justice Breyer, the administrative record showed that inclusion of the citizenship question would, for a large segment of the population, "be no improvement over using administrative records alone," and for 35 million people, it "would be no better, and in some respects would be worse, than using [only] statistical modeling."¹⁶² On these grounds, four Justices concluded that Secretary Ross's decision was arbitrary and capricious.¹⁶³

Implications for Congress: The Supreme Court's decision in Department of Commerce is significant, both for its immediate impact on the 2020 census and for how it may affect administrative law more broadly. The Court's decision barred the Trump Administration from adding the citizenship question to the 2020 census without disclosing the Secretary's actual reason for doing so. Though the Trump Administration initially sought to cure the legal error identified by Court's opinion, it ultimately abandoned these efforts and confirmed that a citizenship question will not be on the 2020 census questionnaire.¹⁶⁴ Nonetheless, because the Court did not deem the addition of a citizenship question "substantively" unlawful, it is possible that the Department of Commerce could add a citizenship question to a future census questionnaire, as long as the Secretary of Commerce discloses the actual reasons for doing so.¹⁶⁵ Notably, the Trump Administration recently issued an executive order related to the collection of citizenship data, which, among other things, instructs the Secretary of Commerce to "consider initiating any administrative process necessary to include a citizenship question on the 2030 decennial census."¹⁶⁶

Separately, the Supreme Court's decision could lay the groundwork for pretext-based challenges to agency decisions. The Court's opinion recognized that while "a court is ordinarily limited to evaluating the agency's contemporaneous explanation in light of the existing administrative record," it may inquire further into the motive underlying an agency's action where there is "a 'strong showing of bad faith or improper behavior.'"¹⁶⁷ Though this rule preexisted the Court's decision in Department of Commerce, some plaintiffs could view that decision as signaling a greater receptiveness by the Court to such challenges. This was the view taken by Justice Thomas, who asserted in his dissenting opinion that the Court's decision "opened a Pandora's box of pretext-based challenges" to agency action because "[v]irtually every significant agency action is vulnerable to the kinds of allegations the Court credit[ed]" in its opinion.¹⁶⁸ Some commentators have echoed Justice Thomas's prediction.¹⁶⁹ Perhaps responding to Justice Thomas's concerns, the Court's opinion emphasized that judicial inquiry into an agency's stated reason for its decision should be "rare," explaining that this case involved "unusual circumstances" and was not "a typical case."¹⁷⁰ This limiting language could discourage potential litigants from raising pretext-based challenges to agency action.¹⁷¹

Redistricting: Rucho v. Common Cause and Lamone v. Benisek¹⁷²

Partisan gerrymandering, "the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power,"¹⁷³ is an issue that has vexed the federal courts for more than three decades.¹⁷⁴ On June 27, 2019, by a 5-to-4 vote, the Supreme Court ruled that claims of unconstitutional partisan gerrymandering are not subject to federal court review because they present nonjusticiable political questions, thereby removing the issue from federal courts' purview.¹⁷⁵ In Rucho v. Common Cause and Lamone v. Benisek (hereinafter Rucho), the Court viewed the Elections Clause¹⁷⁶ of the Constitution as solely assigning disputes about partisan gerrymandering to the state legislatures, subject to a check by the U.S. Congress.¹⁷⁷ Moreover, in contrast to one-person, one-vote and racial gerrymandering claims, the Court determined that no test exists for adjudicating partisan gerrymandering claims that is both judicially discernible and manageable.¹⁷⁸ However, the Court suggested that Congress, as well as state legislatures, could play a role in regulating partisan gerrymandering going forward.¹⁷⁹

Background: Prior to the 1960s, the Supreme Court had determined that challenges to redistricting plans presented nonjusticiable political questions that were most appropriately addressed by the political branches of government, not the judiciary.¹⁸⁰ In 1962, however, in the landmark ruling of Baker v. Carr, the Court held that a constitutional challenge to a redistricting plan is justiciable, identifying factors for determining when a case presents a nonjusticiable political question, including "a lack of [a] judicially discoverable and manageable standard[] for resolving it."¹⁸¹ Since then, while invalidating redistricting maps on equal protection grounds for other reasons—based on inequality of population among districts or one-person, one-vote and as racial gerrymanders—the Court has not nullified a map because of partisan gerrymandering.¹⁸²

In part, the Court has been reluctant to invalidate redistricting maps as impermissibly partisan because redistricting has traditionally been viewed as an inherently political process.¹⁸³ Moreover, critics of federal court adjudication of partisan gerrymandering claims have argued that such lawsuits would open the floodgates of litigation and that it would be judicially difficult to police because it is unclear how much partisanship in redistricting is too much.¹⁸⁴ On the other hand, critics of this view have argued that extreme partisan gerrymandering is "incompatible with democratic principles"¹⁸⁵ by entrenching an unaccountable political class in power with the aid of modern redistricting software—using "pinpoint precision" to maximize partisanship—thereby necessitating some role by the unelected judiciary.¹⁸⁶

In earlier cases presenting a claim of unconstitutional partisan gerrymandering, the Court left open the possibility that such claims could be judicially reviewable, but did not ascertain a discernible and manageable standard for adjudicating such claims.¹⁸⁷ In those rulings, Justice Kennedy cast the deciding vote, leaving open the possibility that claims could be held justiciable in some future case, under a yet-to-be-determined standard.¹⁸⁸ Last year, the Supreme Court considered claims of partisan gerrymandering raising nearly identical questions to those in Rucho, but ultimately issued narrow rulings on procedural grounds specific to those cases.¹⁸⁹ Rucho marked the first opinion on partisan gerrymandering since Justice Kennedy left the Court.

Prior to the Supreme Court's consideration, three-judge federal district courts in North Carolina and Maryland invalidated congressional districts as unconstitutional partisan gerrymanders under standards they viewed to be judicially discernible and manageable.¹⁹⁰ In the North Carolina case, the court determined that a redistricting map violates the Equal Protection Clause as an unconstitutional partisan gerrymander when (1) the map drawer's predominant intent was to entrench a specific political party's power; (2) the resulting dilution of voting power by the disfavored party was likely to persist in later elections; and (3) the discriminatory effects were not attributable to other legitimate interests.¹⁹¹ Further, the court determined that a partisan gerrymandered map may violate provisions in Article I requiring "the People" to select their representatives and limiting the states to determining only "neutral provisions" regarding the "Times, Places, and Manner of holding Elections."¹⁹² Both courts concluded that a redistricting map violates the First Amendment if the challengers demonstrate that (1) the map drawers specifically intended to disadvantage voters based on their party affiliation and voting history; (2) the map burdened voters' representational and associational rights; and (3) the map drawers' intent to burden certain voters caused the "adverse impact."¹⁹³ Under a provision of federal law providing for direct appeals to the Supreme Court in cases challenging the constitutionality of redistricting maps, North Carolina legislators and Maryland officials appealed to the Supreme Court.¹⁹⁴

Supreme Court's Decision: In Rucho, the Supreme Court held that, based on the political question doctrine, federal courts lack jurisdiction to resolve claims of unconstitutional partisan gerrymandering, vacating and remanding the North Carolina and Maryland lower court rulings with instructions to dismiss for lack of jurisdiction.¹⁹⁵ In an opinion written by Chief Justice Roberts, the Court began by addressing the Framers' views on gerrymandering.¹⁹⁶ According to the majority opinion, at the time of the Constitution's drafting and ratification, the Framers were well familiar with the controversies surrounding the practice of partisan gerrymandering.¹⁹⁷ "At no point" during the Framers' debates, the Court observed, "was there a suggestion that the federal courts had a role to play."¹⁹⁸ Instead, the Chief Justice viewed the Elections Clause as a purposeful assignment of disputes over partisan gerrymandering to the state legislatures, subject to a check by the U.S. Congress.¹⁹⁹ In this vein, the Court noted that Congress has in fact exercised its power under the Elections Clause to address partisan gerrymandering on several occasions, such as by enacting laws to require single-member and compact districts.²⁰⁰

Nonetheless, the Court acknowledged that there are two areas relating to redistricting where the Court has a unique role in policing the states—claims relating to (1) inequality of population among districts or "one-person, one-vote" and (2) racial gerrymandering.²⁰¹ However, the Court distinguished those claims from claims of unconstitutional partisan gerrymandering, reasoning that while judicially discernible and manageable standards exist for adjudicating claims relating to one-person, one-vote and racial gerrymandering, partisan gerrymandering cases "have proved far more difficult to adjudicate."²⁰² This difficulty stems from the fact, the Court explained, that while it is illegal for a redistricting map to violate the one-person, one-vote principle or to engage in racial discrimination, at least some degree of partisan influence in the redistricting process is inevitable and, as the Court has recognized, permissible.²⁰³ Hence, according to the Court, the challenge has been to identify a standard for determining how much partisan gerrymandering is "too much."²⁰⁴

The Chief Justice's opinion focused on three concerns regarding what he viewed as the central argument for federal adjudication of partisan gerrymandering claims: "an instinct" that if a political party garners a certain share of a statewide vote, as a matter of fairness, courts need to ensure that the party also holds a proportional number of seats in the legislature.²⁰⁵ First, the Court stated that this expectation "is based on a norm that does not exist in our electoral system."²⁰⁶ For example, noting her extensive experience in state and local politics, the Court quoted Justice O'Connor's 1986 concurrence that maintained that "[t]he opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States."²⁰⁷ Furthermore, the Rucho Court observed that the nation's long history of states electing their congressional representatives through "general ticket" or at-large elections typically resulted in single-party congressional delegations.²⁰⁸ As a result, the Chief Justice explained, for an extended period of American history, a party could achieve nearly half of the statewide vote, but not hold a single seat in the House of Representatives, suggesting that proportional representation was not a value protected by the Constitution.²⁰⁹ Second, even if proportional representation were a constitutional right, determining how much representation political parties "deserve," based on each party's share of the vote, would require courts to allocate political power, a power to which courts are, in the view of the majority, not "equipped" to exercise.²¹⁰ For the Court, resolving questions of fairness presents "basic questions that are political, not legal."²¹¹ Third, even if a court could establish a standard of fairness, the Court determined that there is no discernible and manageable standard for identifying when the amount of political gerrymandering in a redistricting map meets the threshold of unconstitutionality.²¹²

In so concluding, the Supreme Court rejected the tests that the district courts adopted in ascertaining unconstitutional partisan gerrymandering in North Carolina and Maryland.²¹³ As to the North Carolina case, the Court criticized the "predominant intent" prong of the test adopted by the district court in holding the map in violation of the Equal Protection Clause.²¹⁴ As the Chief Justice explained, although this inquiry is proper in the context of racial gerrymandering claims because drawing district lines based predominantly on race is inherently suspect, it does not apply in the context of partisan gerrymandering where some degree of political influence is permissible.²¹⁵ Moreover, responding to the aspect of the test requiring challengers to demonstrate that partisan vote dilution "is likely to persist," the Court concluded that it would require courts to "forecast with unspecified certainty whether a prospective winner will have a margin of victory sufficient to permit him to ignore the supporters of his defeated opponent."²¹⁶ That is, according to the Court, judges under this test would "not only have to pick the winner—they have to beat the point spread."²¹⁷ The Court also disapproved of the test the district courts adopted in both the North Carolina and Maryland cases in holding that the maps violated the First Amendment's guarantee of freedom to associate.²¹⁸ As a threshold matter, the Court determined that the subject redistricting plans do not facially restrict speech, association, or any other First Amendment guarantees, as voters in diluted districts remain free to associate and speak on political matters.²¹⁹ More directly, the Court concluded that under the premise that partisan gerrymandering constitutes retaliation because of an individual's political views, "any level of partisanship in districting would constitute an infringement of their First Amendment rights."²²⁰ As a consequence, the Court viewed the First Amendment standard as failing to provide a manageable approach for determining when partisan activity has gone too far.²²¹ In addition, the Court rejected North Carolina's reliance on Article I of the Constitution as the basis to invalidate a redistricting map, concluding that the text of the Constitution provided no enforceable limit for considering partisan gerrymandering claims.²²²

Nonetheless, Chief Justice Roberts acknowledged that excessive partisan gerrymandering "reasonably seem[s] unjust," stressing that the ruling "does not condone" the practice.²²³ However, he maintained that the Court cannot address the problem simply "because it must," viewing any solutions to extreme partisan gerrymandering to lie with Congress and the states, not the courts.²²⁴ Characterizing the dissent and the challengers' request that the Court ascertain a standard for adjudication as seeking "an unprecedented expansion of judicial power," the Chief Justice cautioned that such an "intervention would be unlimited in scope and duration . . . recur[ring] over and over again around the country with each new round of redistricting."²²⁵ Instead, he observed that many states have constitutional provisions and laws providing standards for state courts to address excessive partisan gerrymandering, which have been invoked with successful results.²²⁶ Furthermore, citing examples of past and pending federal legislation, the Court reiterated that "the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause."²²⁷

Dissenting Opinion: Justice Kagan wrote a dissent on behalf of four Justices arguing that the Court has the power to establish a standard for adjudicating unconstitutionally excessive partisan gerrymandering and that its "abdication" in Rucho "may irreparably damage our system of government."²²⁸ According to the dissent, the standards proposed by the challengers and the lower courts are not "unsupported and out-of-date musings about the unpredictability of the American voter," but instead are "evidence-based, data-based, statistics-based."²²⁹ Moreover, responding to the Court's suggestion that Congress and the states have the power to ameliorate excessive partisan gerrymandering, the dissent maintained that the prospects for legislative reform are poor because the legislators who currently hold power as a result of partisan gerrymandering are unlikely to promote change.²³⁰ Instead, for the dissent, the solution to what they viewed as a crisis of the political process is a means to challenge extreme partisan gerrymandering outside of that process, through the unelected federal judiciary.²³¹

Implications for Congress: As a result of Rucho, federal courts lack subject-matter jurisdiction to resolve claims of unconstitutional partisan gerrymandering.²³² However, Rucho suggests that Congress and the states may have the power to address extreme partisan gerrymandering should they so choose.²³³ For example, as observed by the Court, several bills that take various approaches to address partisan gerrymandering have been introduced in the 116th Congress.²³⁴ For example, H.R. 1, the For the People Act of 2019, which passed the House of Representatives on March 8, 2019, would eliminate legislatures from the redistricting process and require each state to establish a nonpartisan, independent congressional redistricting commission, in accordance with certain criteria.²³⁵ H.R. 44, the Coretta Scott King Mid-Decade Redistricting Prohibition Act of 2019, would prohibit states from carrying out more than one congressional redistricting following a decennial census and apportionment, unless a state is ordered by a court to do so in order to comply with the Constitution or to enforce the Voting Rights Act of 1965.²³⁶ (At least one scholar has argued that limiting redistricting to once per decade renders it "less likely that redistricting will occur under conditions favoring partisan gerrymandering.")²³⁷ H.R. 131, the Redistricting Transparency Act of 2019, would, based on the view that public oversight of redistricting may lessen partisan influence in the process, require state congressional redistricting entities to establish and maintain a public internet site and conduct redistricting under procedures that provide opportunities for public participation.²³⁸ Notably, the Court in Rucho specifically stated that it expressed "no view" on any pending proposals, but observed "that the avenue for reform established by the Framers, and used by Congress in the past, remains open."²³⁹

With regard to the states, Rucho does not preclude state courts from considering such claims under applicable state constitutional provisions. For example, in 2015, the Florida Supreme Court invalidated a Florida congressional redistricting map as violating a state constitutional provision addressing partisan gerrymandering.²⁴⁰ Similarly, in 2018, the Pennsylvania Supreme Court struck down the state's congressional redistricting map under a Pennsylvania constitutional provision.²⁴¹ Looking ahead, as a result of Rucho, such state remedies, coupled with any congressional action, will likely be the primary means for regulating excessive partisan influence in the redistricting process.

First Amendment

Religious Displays: American Legion v. American Humanist Association²⁴²

In American Legion v. American Humanist Association, the Supreme Court held that the Bladensburg Peace Cross, a public World War I memorial in the form of a Latin cross, did not violate the First Amendment's Establishment Clause.²⁴³ A divided Court also limited the applicability of Lemon v. Kurtzman,²⁴⁴ a long-standing—but often-questioned²⁴⁵—precedent that had previously supplied the primary standard for evaluating Establishment Clause claims.²⁴⁶ However, the separate opinions from the Court gave rise to a number of significant questions. In particular, there was no single majority opinion agreeing on what test should apply in future Establishment Clause claims.²⁴⁷ Further, the Court left open the possibility that the Lemon test, and the specific considerations it suggests courts should take into account, may continue to govern certain types of Establishment Clause challenges.²⁴⁸

Background: The First Amendment's Establishment Clause provides that the government "shall make no law respecting an establishment of religion."²⁴⁹ The Court has long interpreted this requirement to require the government to be "neutral" toward religion—but over the years, the Supreme Court has employed a variety of different inquiries to determine whether challenged government practices are sufficiently neutral.²⁵⁰ In Lemon, decided in 1971, the Court synthesized its prior Establishment Clause decisions into a three-part test, saying that to be considered constitutional, government action (1) "must have a secular legislative purpose"; (2) must have a "principal or primary effect . . . that neither advances nor inhibits religion"; and (3) "must not foster an excessive government entanglement with religion."²⁵¹

However, the Court has not always applied the Lemon test to analyze Establishment Clause challenges.²⁵² For instance, in cases evaluating the constitutionality of government-sponsored prayer before legislative sessions, the Court has asked whether the disputed prayer practice "is supported by this country's history and tradition."²⁵³ The Court has also adopted variations on Lemon, most notably using an "endorsement" test²⁵⁴ that asks "whether the challenged governmental practice either has the purpose or effect of 'endorsing' religion."²⁵⁵ Thus, in 2018, Justice Thomas said that the Court's "Establishment Clause jurisprudence is in disarray."²⁵⁶ Justice Thomas and other Justices have argued that the Court should abandon Lemon and instead adopt a single approach to interpreting the Clause—one that can be applied consistently.²⁵⁷

The Court's divergent approaches to evaluating Establishment Clause claims were apparent in two cases, issued on the same day in 2005, that involved government-sponsored displays containing religious symbols. In the first case, McCreary County v. ACLU, the Court applied the Lemon test and held that Ten Commandments displays in two Kentucky courthouses likely violated the Establishment Clause.²⁵⁸ In the second, Van Orden v. Perry, a plurality of the Court argued that like legislative prayers, religious displays should be evaluated primarily by reference to "our Nation's history."²⁵⁹ Justice Breyer concurred in the Court's judgment in Van Orden, providing the fifth vote to uphold a Ten Commandments display on the grounds of the Texas State Capitol.²⁶⁰ Justice Breyer stated that that while he believed the particular monument did "satisfy [the] Court's more formal Establishment Clause tests," including Lemon, his view of the case was also driven by a number of other factors, including the monument's history and physical setting.²⁶¹ In particular, he emphasized that the monument had gone legally unchallenged for 40 years.²⁶² Under the circumstances, Justice Breyer argued that removing or altering the monument would likely be "divisive" in a way that the monument itself was not, exhibiting "a hostility toward religion that has no place in our Establishment Clause traditions."²⁶³

The plaintiffs in American Legion argued that Maryland violated the Establishment Clause by maintaining a war memorial known as the Bladensburg Peace Cross.²⁶⁴ The monument is a 32-foot Latin cross that sits on a large base containing a plaque with the names of 49 Prince George's County soldiers who died in World War I.²⁶⁵ The Fourth Circuit had agreed with the challengers and held that after looking to the Lemon test and giving "due consideration" to the "factors" set forth in Justice Breyer's Van Orden concurrence, the memorial violated the First Amendment.²⁶⁶

Supreme Court's Decision: The Supreme Court reversed the Fourth Circuit's decision.²⁶⁷ But while seven Justices ultimately approved of the Peace Cross, they did so in six different opinions,²⁶⁸ reflecting disagreement about how, exactly, to resolve the case. Justice Alito wrote the opinion for the American Legion Court, although certain portions of that opinion represented only a plurality. Writing for five members of the Court, Justice Alito's majority opinion relied on some of the factors highlighted by Justice Breyer's concurring opinion in Van Orden—namely, the fact that this particular monument had "stood undisturbed for nearly a century" and had "acquired historical importance" to the community.²⁶⁹ The Court acknowledged that the cross is a Christian symbol, but viewed the symbol as taking on "an added secular meaning when used in World War I memorials."²⁷⁰ Under these circumstances, the Court concluded that requiring the state to "destroy[] or defac[e]" the Peace Cross "would not be neutral" with respect to religion "and would not further the ideals of respect and tolerance embodied in the First Amendment."²⁷¹

Concurring and Dissenting Opinions: A different majority of Justices voted to limit the applicability of the Lemon test—although no five Justices agreed just how far to limit Lemon. Justice Alito, writing for a four-Justice plurality,²⁷² suggested that "longstanding monuments, symbols, and practices" should not be evaluated under Lemon,²⁷³ but should instead be considered constitutional so long as they "follow in" a historical "tradition" of religious accommodation.²⁷⁴ Justices Thomas and Gorsuch wrote separate concurrences disapproving of Lemon more generally.²⁷⁵ Justice Thomas argued that the Court should "overrule the Lemon test in all contexts"²⁷⁶ and instead analyze Establishment Clause claims by reference to historical forms of "coercion."²⁷⁷ Justice Gorsuch viewed Lemon as a "misadventure," expressing concerns about that test and suggesting instead that the Court should look to historical practice and traditions in Establishment Clause challenges.²⁷⁸ Therefore, it appears that Lemon will no longer be used to assess the constitutionality of "longstanding monuments, symbols, and practices."²⁷⁹

Justice Ginsburg dissented, joined by Justice Sotomayor. She stressed the cross's religious nature, observing that it has become a marker for Christian soldiers' graves "precisely because" the cross symbolizes "sectarian beliefs."²⁸⁰ Her analysis did not expressly invoke the three-part Lemon test, but applied the "endorsement" test developed from Lemon, asking whether the display conveyed "a message that religion or a particular religious belief is favored or preferred."²⁸¹ Looking to the memorial's nature and history, Justice Ginsburg believed that the Peace Cross did convey a message of endorsement.²⁸² Ultimately, she concluded that by maintaining the monument, the state impermissibly "elevate[d] Christianity over other faiths, and religion over nonreligion."²⁸³

Implications for Congress: While American Legion was ostensibly concerned with the constitutionality of a single monument, the Court's decision raises a number of questions regarding future interpretations of the Establishment Clause. First, while the plurality opinion said that "monuments, symbols, and practices with a longstanding history" should now be evaluated by reference to historical practices rather than the Lemon test, it is not clear what qualifies as a long-standing symbol or practice.²⁸⁴ Further, it is unclear whether the historical practice test will apply outside of the context of challenges to monuments or legislative prayer. Indeed, two of the Justices who joined the plurality opinion—Justices Breyer and Kavanaugh—wrote separate opinions suggesting that other factors in addition to historical practice may be relevant to evaluating Establishment Clause challenges.²⁸⁵ More broadly, however, regardless of the particular test employed, the opinions in American Legion suggest that the Roberts Court may be adopting a view of the Establishment Clause that is more accommodating of government sponsorship of religious displays and practices—even where those practices are aligned with a particular religion.²⁸⁶ Given that a majority of Justices agreed in American Legion that at least with respect to government use of religious symbols, "[t]he passage of time gives rise to a strong presumption of constitutionality,"²⁸⁷ it seems likely that courts will view Establishment Clause challenges to long-standing monuments with significant skepticism moving forward.²⁸⁸

Separation of Powers

Nondelegation Doctrine: Gundy v. United States²⁸⁹

In affirming the petitioner's conviction for violating the Sex Offender Registration and Notification Act (SORNA), a divided Supreme Court in Gundy v. United States upheld the constitutionality of Congress's delegated authority to the U.S. Attorney General to apply registration requirements to offenders convicted prior to SORNA's enactment.²⁹⁰ In a plurality opinion written on behalf of four Justices, Justice Kagan concluded that SORNA's delegation "easily passes constitutional muster" and was "distinctively small-bore" when compared to the other broad delegations the Court has upheld since 1935.²⁹¹ Justice Gorsuch's dissent, joined by Chief Justice Roberts and Justice Thomas, highlighted an emerging split on the Court's approach in reviewing authority Congress delegates to another branch of government.²⁹² Providing the fifth vote to affirm Gundy's conviction, Justice Alito concurred in the judgment only, declining to join Justice Kagan's opinion and indicating his willingness to rethink the Court's approach to the nondelegation doctrine, which seeks to bar Congress from delegating its legislative powers to other branches of government.²⁹³ After Gundy, whether the Court revives the long-dormant nondelegation doctrine likely depends on Justice Kavanaugh's views on the doctrine. (Justice Kavanaugh, who was not confirmed to the Court at the time of oral arguments, took no part in the Gundy decision.²⁹⁴)

Background: Article I, Section 1 of the Constitution provides that "[a]ll legislative Powers herein granted" will be vested in the United States Congress.²⁹⁵ The Supreme Court has held that the "text in [Article I's Vesting Clause] permits no delegation of those powers."²⁹⁶ The nondelegation doctrine, as crafted by the courts, exists mainly to prevent Congress from ceding its legislative power to other entities and, in so doing, maintain the separation of powers among the three branches of government.²⁹⁷ At the same time, the Court has recognized that the nondelegation doctrine does not require complete separation of the three branches of government, permitting Congress to delegate certain powers to implement and enforce the law.²⁹⁸ To determine whether a delegation of authority is constitutional, the Court has required that Congress lay out an "intelligible principle" to guide the delegee's discretion and constrain its authority.²⁹⁹ Under the lenient "intelligible principle" standard that has its origins in the 1928 decision J.W. Hampton, Jr., & Co. v. United States, the Court has relied on the nondelegation doctrine twice, in 1935, to invalidate two provisions in the National Industrial Recovery Act delegating authority to the President,³⁰⁰ rejecting every nondelegation challenge thereafter.³⁰¹

Gundy, the latest nondelegation challenge at the Supreme Court, centered on the application of registration requirements under SORNA to pre-act offenders. Enacted as Title I of the Adam Walsh Child Protection and Safety Act of 2006, SORNA's stated purpose is "to protect the public from sex offenders and offenders against children" by establishing a comprehensive national registration system of offenders.³⁰² To this end, SORNA requires convicted sex offenders to register in each state where the offender resides, is employed, or is a student.³⁰³ Section 20913(d) of SORNA authorizes the Attorney General to "specify the applicability" of the registration requirements "to sex offenders convicted before the enactment" of the act and to "prescribe rules for the registration of any such sex offenders" and for other offenders unable to comply with the initial registration requirements.³⁰⁴ As decided by the Court in Reynolds v. United States, the law's registration requirements did not apply to pre-SORNA offenders until the Attorney General so specified.³⁰⁵ Accordingly, in a series of interim and final rules and guidance documents issued between 2007 and 2011, the Attorney General specified that SORNA's requirements apply to all sex offenders, including sex offenders convicted before the statute's enactment.³⁰⁶

Before the enactment of SORNA, petitioner Herman Gundy was convicted of a sex offense in Maryland.³⁰⁷ After serving his sentence, Gundy traveled from Maryland to New York.³⁰⁸ Subsequently, he was arrested and convicted for failing to register as a sex offender in New York under SORNA.³⁰⁹ In his petition to the Supreme Court, Gundy argued, among other things, that SORNA's grant of "undirected discretion" to the Attorney General to decide whether to apply the statute to pre-SORNA offenders is an unconstitutional delegation of legislative power to the executive branch.³¹⁰

Supreme Court's Decision: In Gundy, Justice Kagan announced the judgment of the Court, affirming the lower court, and authored a plurality opinion joined by Justices Ginsburg, Breyer, and Sotomayor that followed the modern approach toward the nondelegation doctrine,³¹¹ rejecting Gundy's argument that Congress unconstitutionally delegated "quintessentially legislative powers" to the Attorney General to decide whether to apply the statute to pre-SORNA offenders.³¹² Relying on Reynolds, Justice Kagan read SORNA as requiring the Attorney General to "apply SORNA's registration requirements as soon as feasible to offenders convicted before the statute's enactment."³¹³ Based on this interpretation, the plurality decided that Congress did not violate the nondelegation doctrine based on the Court's "long established law" in upholding broad delegations.³¹⁴ The plurality explained that under the intelligible principle standard, so long as Congress has made clear the "general policy" and boundaries of the delegation, such broad delegations are permissible.³¹⁵ Compared to very broad delegations upheld in the past (e.g., delegations to agencies to regulate in the "public's interest"), the plurality concluded that the Attorney General's "temporary authority" to delay the application of SORNA's registration requirements to pre-act offenders due to feasibility concerns "falls well within constitutional bounds."³¹⁶

Dissenting and Concurring Opinions: In contrast, in his dissent, Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas, viewed the plain text of the delegation as providing the Attorney General limitless and "vast" discretion and "free rein" to impose (or not) selected registration requirements on pre-act offenders.³¹⁷ In concluding the delegation to be unconstitutional, Justice Gorsuch distinguished his analysis from the plurality and the Court's precedents by focusing on the separation-of-powers principles that underpin the nondelegation doctrine. In the dissent's view, the nondelegation doctrine used to serve a vital role in maintaining the separation of powers among the branches of government by assuring that elected Members of Congress fulfill their constitutional lawmaking duties.³¹⁸ Justice Gorsuch warned that delegating Congress's constitutional legislative duties to the executive branch bypasses the bicameral legislative process, resulting in laws that fail to protect minority interests or provide political accountability or fair notice.³¹⁹ Consequently, the dissent faulted the "evolving intelligible principle" standard and increasingly broad delegations as pushing the nondelegation doctrine further from its separation-of-powers roots.³²⁰ Arguing for a more robust review of congressional delegations, Justice Gorsuch outlined several "guiding principles."³²¹ According to the dissent, Congress could permissibly delegate (1) authority to another branch of government to "fill up the details" of Congress's policies regulating private conduct; (2) fact-finding to the executive branch as a condition to applying legislative policy; or (3) nonlegislative responsibilities that are within the scope of another branch of government's vested powers (e.g., assign foreign affairs powers that are constitutionally vested in the President).³²²

Applying these "traditional" separation-of-powers tests in lieu of the plurality's "intelligible principle" approach, Justice Gorsuch concluded that SORNA's delegation was an unconstitutional breach of the separation between the legislative and executive branches.³²³ He argued that SORNA lacked a "single policy decision concerning pre-Act offenders" and delegated more than the power to fill the details to the Attorney General.³²⁴ The dissent disputed the plurality's comparison of SORNA's delegation to other broad delegations that the Court has upheld, reasoning that "there isn't . . . a single other case where we have upheld executive authority over matters like these on the ground they constitute mere 'details.'"³²⁵ Further, he asserted that the delegation is neither conditional legislation subject to executive fact-finding nor a delegation of powers vested in the executive branch because determining the rights and duties of citizens is "quintessentially legislative power."³²⁶ In "a future case with a full panel," Justice Gorsuch hoped that the Court would recognize that "while Congress can enlist considerable assistance from the executive branch in filling up details and finding facts, it may never hand off to the nation's chief prosecutor the power to write his own criminal code. That 'is delegation running riot.'"³²⁷

Although Justice Alito voiced "support [for the] effort" of the dissent in rethinking the Court's approach to the nondelegation doctrine, he opted to not join that effort without the support of the majority of the Court.³²⁸ As a result, Justice Alito concurred in the judgment of the Court in affirming the petitioner's conviction.³²⁹ In his brief, five-sentence concurring opinion, Justice Alito viewed a "discernable standard [in SORNA's delegation] that is adequate under the approach this Court has taken for many years."³³⁰

Implications for Congress: The divided opinions in Gundy signal a potential shift in the Court's approach in nondelegation challenges and potential resurrection of the nondelegation doctrine. With three Justices and the Chief Justice in Gundy willing to reconsider or redefine the Court's "intelligible principle" standard, Justice Kavanaugh, who did not participate in Gundy, appears likely to be the critical vote to break the tie in a future case considering a revitalization of the nondelegation principle.³³¹

If the Court were to replace the modern intelligible principle approach, new challenges may arise in determining when Congress crosses the nondelegation line.³³² A more restrictive nondelegation standard could invite constitutional challenges to many other statutory provisions that delegate broad authority and discretion to the executive branch to issue and enforce regulations.³³³ The significance of these challenges was the subject of a debate between the Gundy plurality and dissent. Justice Kagan cautioned that striking down SORNA's delegation as unconstitutional would make most of Congress's delegations to the executive branch unconstitutional because Congress relies on broad delegations to executive agencies to implement its policies.³³⁴ However, Justice Gorsuch countered that "respecting the separation of powers" does not prohibit Congress from authorizing the executive branch to fill in details, find facts that trigger applicable statutory requirements, or exercise nonlegislative powers.³³⁵

A future case³³⁶ may provide the Court with the opportunity to provide guidance to the courts and Congress on how precise Congress must be in its delegation and how best to draw the line between permissible and impermissible delegations.³³⁷ For now, however, the current intelligible principle standard in use since 1935 survives while the nondelegation doctrine continues to remain "moribund."³³⁸

Author Contact Information

Footnotes

1.	See J. of the Supreme Court of the United States 1 (Oct. 1, 2018), https://www.supremecourt.gov/orders/journal/Jnl18.pdf.
2.	See Kennedy, Anthony M., Biographical Directory of Federal Judges, Fed. Judicial Ctr., https://www.fjc.gov/history/judges/kennedy-anthony-mcleod (last visited Aug. 21, 2019) (indicating that Justice Kennedy assumed senior status on July 31, 2018).
3.	See CRS Report R45256, Justice Anthony Kennedy: His Jurisprudence and the Future of the Court, by Andrew Nolan, Kevin M. Lewis, and Valerie C. Brannon, at 1-2.
4.	See CRS Legal Sidebar LSB10159, Justice Kennedy Retires: Initial Considerations for Congress, by Andrew Nolan and Michael John Garcia (noting that, save for the October 2017, 2014, and 2007 terms, Justice Kennedy was the most frequent Justice to be part of the deciding majority in cases decided each term by the Roberts Court).
5.	See Supreme Court Nominations, Present-1789, U.S. Senate, https://www.senate.gov/pagelayout/reference/nominations/Nominations.htm (last visited Aug. 21, 2019) (indicating that the Senate confirmed Justice Kavanaugh on October 6, 2018).
6.	This report references a significant number of decisions by federal appellate courts of various regional circuits. For purposes of brevity, references to a particular circuit in the body of this report (e.g., the D.C. Circuit) refer to the U.S. Court of Appeals for that particular circuit.
7.	Kavanaugh, Brett M., Biographical Directory of Federal Judges, Fed. Judicial Ctr., https://www.fjc.gov/history/judges/kavanaugh-brett-m (last visited Aug. 21, 2019).
8.	See Nolan, Lewis, & Brannon, supra note 3, at 30 (discussing the jurisprudential effects of the retirements of Justices Lewis Powell and Sandra Day O'Connor).
9.	Hon. Ruth Bader Ginsburg, Remarks for the Second Circuit Judicial Conference, (June 7, 2019), https://www.supremecourt.gov/publicinfo/speeches/RBG%202019%20Second%20Circuit%20Judicial%20Conference%20Remarks%20June%207%202019.pdf.
10.	See, e.g., Mark Sherman and Jessica Gresko, Roberts' Supreme Court Defies Easy Political Labels, Assoc. Press (June 29, 2019), https://www.apnews.com/222dd32b7609458f98a811cb00c44848 (noting the "lack of high-profile cases" before the Court); Henry Glass, In the Shadows: Supreme Court's Offstage Moves May Matter More, Christian Science Monitor (July 2, 2019), https://www.csmonitor.com/USA/Justice/2019/0702/In-the-shadows-Supreme-Court-s-offstage-moves-may-matter-more (maintaining that "the past term has been relatively quiet on merits cases").
11.	Gamble v. United States, 139 S. Ct. 1960, 1964 (2019).
12.	See, e.g., Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Alito, J., concurring) (declining to join a dissent that wholly reconsidered the Court's modern approach toward the nondelegation doctrine it has used "for the past 84 years" because the Court lacked a fifth vote for the dissent's view).
13.	See, e.g., Carpenter v. Murphy, 139 S. Ct. 626 (2018) (asking for supplemental briefing prior to restoring the case for reargument for the October 2019 Term).
14.	See Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1781-82 (2019) (upholding an Indiana law regulating the disposition of fetal remains by abortion providers, while noting that the case did "not implicate our cases applying the undue burden test to abortion regulations").
15.	See id. at 1782 (declining to hear an appeal of lower court decision invalidating an Indiana law prohibiting the "knowing provision of sex-, race-, and disability selective abortions by abortion providers"); see also Harris v. W. Ala. Women's Ctr., 139 S. Ct. 2606, 2606 (2019) (declining a petition for a writ of certiorari to consider the constitutionality of an Alabama law criminalizing a particular abortion procedure during the second trimester of a pregnancy); cf. Gee v. Planned Parenthood of Gulf Coast, Inc., 139 S. Ct. 408, 408 (2018) (denying a request asking the Court to decide whether Medicaid recipients have a private right of action to challenge a state's determination as to who is a "qualified" provider under the Medicaid Act, so that recipients could challenge a state's decision to deny Medicaid funds to Planned Parenthood).
16.	See Guedes v. BATFE, 139 S. Ct. 1474, 1474 (2019).
17.	See Klein v. Oregon Bureau of Labor & Indus., No. 18-547, 2019 WL 2493912, at *1 (U.S. June 17, 2019); see also CRS Legal Sidebar LSB10311, Supreme Court Vacates Another Opinion Applying Antidiscrimination Laws to Religious Objectors, by Valerie C. Brannon.
18.	See Am. Inst. for Int'l Steel, Inc. v. United States, No. 18-1317, 2019 WL 1674342, at *1 (U.S. June 24, 2019).
19.	See Al-Alwi v. Trump, 139 S. Ct. 1893, 1893 (2019).
20.	See Bostock v. Clayton Cty., Ga., 139 S. Ct. 1599 (2019) (following the filing of a petition for certiorari in May 2018, granting certiorari in April 2019 and consolidating the case with Altitude Exp., Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C.).
21.	See Dep't of Homeland Sec. v. Regents of the Univ. of California, No. 18-587, 2019 WL 2649834, at *1 (U.S. June 28, 2019) (following the filing of a petition for certiorari in November 2018, granting certiorari in June 2019 and consolidating the case with Trump v. NAACP and McAleenan v. Vidal).
22.	See Adam Feldman, SCOTUSblog, Final Stat Pack for October Term 2018 19 (Jun. 28, 2019, 5:59 PM), https://www.scotusblog.com/wp-content/uploads/2019/07/StatPack_OT18-7_30_19.pdf. This count includes cases such as Gundy v. United States, 139 S. Ct. 2116 (2019), that were rendered by an eight-member Court.
23.	See id.
24.	See, e.g., Bucklew v. Precythe, 139 S. Ct. 1112, 1116 (2019) (rejecting by a 5-4 vote petitioner's Eighth Amendment challenge to the method of his execution); Dunn v. Ray, 139 S. Ct. 661, 661 (2019) (rejecting by a 5-4 vote a petitioner's request to stay his execution on the grounds that the prison refused to allow a Muslim imam to be at his side during the execution).
25.	See Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1490 (2019) (holding by a 5-4 vote that the Constitution prohibits a state from being sued by a private party without its consent in the courts of a different state and overruling Nevada v. Hall, 440 U.S. 410 (1979)).
26.	Knick v. Twp. of Scott, 139 S. Ct. 2162, 2167 (2019) (holding by a 5-4 vote that a property owner maintaining a Taking Clause lawsuit against a local government need not first seek a remedy in a state court before pursuing his claim in federal court and overruling Williamson Cty. Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985)).
27.	Rucho v. Common Cause, 139 S. Ct. 2484, 2491 (2019) (holding by a 5-4 vote that claims of excessive partisanship in districting are nonjusticable and overruling sub silentio Davis v. Bandemer, 478 U.S. 109 (1986)).
28.	See Feldman, supra note 22, at 44-47.
29.	See Apple Inc. v. Pepper, 139 S. Ct. 1514, 1519 (2019) (holding that consumers of iPhone apps could pursue an antitrust lawsuit against Apple, notwithstanding the direct purchaser rule set forth in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977)).
30.	See, e.g., Herrera v. Wyoming, 139 S. Ct. 1686, 1691 (2019) (holding that a treaty providing the Crow Tribe with certain hunting rights survived Wyoming's entrance into the Union as a state and that the federal government's establishment of a national reserve on the land in question did not result in the land becoming occupied as a categorical matter); Wash. State Dep't of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1004 (2019) (concluding that an 1855 treaty between the United States and the Yakama Nation forbids the State of Washington from imposing a tax upon fuel importers who are members of the Yakama Nation).
31.	See, e.g., United States v. Davis, 139 S. Ct. 2319, 2324 (2019) (holding that the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague); United States v. Haymond, 139 S. Ct. 2369, 2373 (2019) (concluding that, as applied to the case before the Court, 18 U.S.C. § 3583(k), which required the imposition of a mandatory minimum sentence upon a judicial finding by the preponderance of the evidence that a criminal defendant on supervised release committed certain crimes, violated the Fifth and Sixth Amendments).
32.	See Mitchell v. Wisconsin, 139 S. Ct. 2525, 2531 (2019) (concluding that the exigent-circumstances exception to Fourth Amendment's warrant requirement generally permits warrantless blood tests where driver suspected of drunk driving is unconscious and therefore cannot be given a breath test).
33.	See Dep't of Commerce v. New York, 139 S. Ct. 2551, 2576 (2019) (affirming the lower court's decision to vacate the challenged administrative action because the evidence before the agency told "a story that does not match the Secretary's explanation for his decision.").
34.	See Kisor v. Wilkie, 139 S. Ct. 2400, 2424 (2019) (declining to overturn Auer v. Robbins, 519 U.S 452 (1997), but remanding the case to the lower court to reexamine whether Auer deference should be afforded to the challenged interpretation of the agency's regulation).
35.	See Feldman, supra note 22, at 17.
36.	See, e.g., Amelia Thomson-Devaux, The Supreme Court Might Have Three Swing Justices Now, FiveThirtyEight (July, 2, 2019), https://fivethirtyeight.com/features/the-supreme-court-might-have-three-swing-justices-now/ ("Based on how they have ruled this year, there are now three justices who could reasonably be seen as 'swing' votes of one kind or another: Roberts, Kavanaugh and Gorsuch. And it's possible to argue that all—or none—of these justices have replaced Kennedy as the court's 'swing' justice."); Jacqueline Thomsen, Conservative Justices Surprise Court Watchers with Swing Votes, The Hill (July 2, 2019), https://thehill.com/regulation/court-battles/451262-conservative-justices-surprise-court-watchers-with-swing-votes ("Collectively, we may have the three of them [Chief Justice Roberts and Justices Gorsuch and Kavanaugh] acting as swing votes in a number of different areas") (quoting Georgetown University Law Professor Susan Bloch).
37.	Legislative Attorney Daniel Sheffner authored this section.
38.	139 S. Ct. 2400 (2019).
39.	See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945).
40.	See Kisor, 139 S. Ct. at 2408.
41.	Id. at 2422-23.
42.	Id. at 2414-18.
43.	See CRS Report R44699, An Introduction to Judicial Review of Federal Agency Action, by Jared P. Cole.
44.	See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843 (1984). For more information on the Chevron doctrine, see CRS Report R44954, Chevron Deference: A Primer, by Valerie C. Brannon and Jared P. Cole.
45.	519 U.S. 452 (1997).
46.	According to some Members of the Court, the doctrine may have even earlier antecedents. See Kisor, 139 S. Ct. at 2411-2412 (plurality opinion) (writing that "[b]efore the doctrine was called Auer deference, it was called Seminole Rock deference," and remarking that "[d]eference to administrative agencies traces back to the late nineteenth century, and perhaps beyond") (citing United States v. Eaton, 169 U.S. 331, 343 (1898)).
47.	Seminole Rock, 325 U.S. at 414. Prior to Kisor, the Court had limited the application of Auer in various cases. For example, the Court had previously held that deference is not owed when an agency interprets a regulation that simply "restate[s] the terms of the statute" being administered. Gonzales v. Oregon, 546 U.S. 243, 257 (2007). This limitation is known as the "anti-parroting canon." See Hanah Metchis Volokh, The Anti-Parroting Canon, 6 NYU J. L. & Liberty 290, 290 (2011). In addition, the Court had, prior to Kisor, explained that deference is not warranted when an agency's interpretation is not the product of its "fair and considered judgment." Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012) (internal quotation marks and citation omitted).
48.	United States v. Mead Corp., 533 U.S. 218, 226-27 (2001); see 5 U.S.C. § 553.
49.	See, e.g., Seminole Rock, 325 U.S. at 417 (bulletin issued by Office of Price Administration); Auer, 519 U.S. at 461 (amicus brief submitted by Secretary of Labor); Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 283-84 (2009) (Environmental Protection Agency memorandum).
50.	Justice Scalia, the author of Auer, see 519 U.S. 452, eventually became one of the doctrine's most outspoken critics. Explaining his concerns in a concurring opinion in Talk America, Inc. v. Michigan Bell Telephone Co., 564 U.S. 50 (2011), Justice Scalia wrote that "[i]t seems contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well." Id. at 68 (Scalia, J., concurring). He further opined that Auer "frustrates the notice and predictability purposes of rulemaking[] and promotes arbitrary government" by "encourag[ing] . . . agenc[ies] to enact vague rules which give [them] the power, in future adjudications, to do what [they] please[]." Id. at 68-69. For an overview of Justice Scalia's evolving views on Auer, see Kevin O. Leske, A Rock Unturned: Justice Scalia's (Unfinished) Crusade Against the Seminole Rock Deference Doctrine, 69 Admin. L. Rev. 1 (2017). Prior to Kisor, several current Members of the Court criticized or expressed possible interest in reconsidering Auer. See, e.g., Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 615-16 (2013) (Roberts, C.J., concurring in part); Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1225 (2015) (Thomas, J., concurring in the judgment); id. at 1210-11 (Alito, J., concurring in part and concurring in the judgment). Last year, Justice Gorsuch joined Justice Thomas's dissent from a denial of certiorari that asked the Court to overrule Auer. Garco Construction, Inc. v. Speer, 138 S. Ct. 1052 (2018) (Thomas, J., dissenting from denial of certiorari). And prior to joining the High Court, Justice Kavanaugh once predicted favorably that the Court would one day overrule the doctrine. See Brett M. Kavanaugh, Justice Scalia and Deference, Keynote Address at the C. Boyden Gray Center for the Study of the Administrative State, Rethinking Judicial Deference: History, Structure, and Accountability, at 17:28-19:12 (June 2, 2016), https://vimeo.com/169758593.
51.	Kisor v. Shulkin, 869 F.3d 1360, 1362-65 (Fed. Cir. 2017), vacated & remanded, 139 S. Ct. 2400.
52.	Id. at 1364-65; 38 C.F.R. § 3.156(c)(1).
53.	Kisor, 869 F.3d at 1367-69.
54.	Kisor v. Wilkie, 139 S. Ct. 657 (2018) (order granting certiorari).
55.	Kisor, 139 S. Ct. at 2422-23.
56.	Arizona v. Rumsey, 467 U.S. 203, 212 (1984); Janus v. Am. Fed. of State, Cty. & Mun. Emps., 138 S. Ct. 2448, 2478 (2018). See also CRS Report R45319, The Supreme Court's Overruling of Constitutional Precedent, by Brandon J. Murrill, at 4.
57.	Kisor, 139 S. Ct. at 2422.
58.	Id.
59.	Id. at 2415; id. at 2422-23 (citing Martin v. Occup. Safety & Health Rev. Comm'n, 499 U.S. 144, 151 (1991)). The Court also deemed it notable that Congress had left Auer undisturbed "even after Members of th[e] Court began to raise questions about the doctrine." Id. at 2423 (citing Talk America, 564 U.S. at 67-69 (Scalia, J., concurring)).
60.	Id. at 2415.
61.	Id.
62.	Id. at 2415-16.
63.	Id. at 2416.
64.	Id.
65.	Id. The Court acknowledged that not all agency interpretations stem from the head of the agency or his or her "chief advisers," but wrote that, for Auer to apply, an "interpretation must at the least emanate from those actors, using those vehicles, understood to make authoritative policy in the relevant context." Id.
66.	Id. at 2417. The Court said that deference will not apply "[w]hen the agency has no comparative expertise in resolving a regulatory ambiguity" in relation to a federal court. Id. The Court cited the anti-parroting canon mentioned above, supra note 47, in support of this point, Kisor, 139 S. Ct. at 2417 n.5.
67.	Kisor, 139 S. Ct. at 2417 (internal quotation marks and citation omitted). The Court explained that, under this standard, courts should not accord deference to interpretations that simply represent a "convenient litigating position" or "post hoc rationalizatio[n]" intended "to defend past agency action against attack." Id. (internal quotation marks and citation omitted) (alteration in original). The Court explained that "[t]he general rule," therefore, is that courts should refrain from deferring "to agency interpretations advanced for the first time in legal briefs." Id. at 2417 n.6. It stopped short, however, from removing such interpretations from Auer's ambit in all cases. Id. The Court also explained that the "fair and considered judgment" limitation applies to interpretations that cause "unfair surprise." Id. at 2417-18; cf. Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 144 (2012). For this reason, the Court explained that it has not often deferred to agency interpretations that are contrary to earlier interpretations. Kisor, 139 S. Ct. at 2418. Cf. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170 (2007) (declaring that "as long as interpretive changes create no unfair surprise . . . the change in interpretation alone presents no separate ground for disregarding the Department's present interpretation").
68.	Kisor, 139 S. Ct. at 2423-24.
69.	Id. at 2412 (plurality opinion).
70.	Id. at 2412-13.
71.	Id. at 2418-2422. In short, the petitioner in Kisor argued that the Court should overrule Auer because, in his view, the doctrine was inconsistent with the rulemaking and judicial review provisions of the Administrative Procedure Act, 5 U.S.C. §§ 553, 706, encouraged agencies to draft vague regulations, and violated the constitutional separation of powers by allowing agencies to both write and authoritatively interpret laws, see Brief for Petitioner at 26-36, 37-40, 43-45, Kisor, 139 S. Ct. 2400. Justice Kagan rejected all of these arguments. Kisor, 139 S. Ct. at 2418-2422 (plurality opinion).
72.	Kisor, 139 S. Ct. at 2425 (Gorsuch, J., concurring in the judgment). The opinion was joined in full by Justice Thomas and in substantial part by Justices Alito and Kavanaugh.
73.	Id. at 2438-39.
74.	Id. at 2432-35 (citing 5 U.S.C. §§ 553, 706).
75.	Id. at 2447.
76.	23 U.S. 134 (1944).
77.	Id. at 140.
78.	Kisor, 139 S. Ct. at 2424 (Roberts, C.J., concurring in part).
79.	Id.
80.	Id. at 2425.
81.	Id. The Chief Justice did not elaborate on the reasons he believed the doctrines are distinct. But the High Court has recognized that Chevron is based on a presumption that Congress sometimes intends agencies to fill gaps in ambiguous statutes they administer. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837. 843-44 (1984); Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000). Some commentators and Justices have argued that Auer is not premised on a similar presumption about legislative intent. See Jonathan Adler, Government Agencies Shouldn't Get to Put a Thumb on the Scales, SCOTUSblog (Jan. 31, 2019), https://www.scotusblog.com/2019/01/symposium-government-agencies-shouldnt-get-to-put-a-thumb-on-the-scales/; Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 619-20 (2013) (Scalia, J., concurring in part and dissenting in part). Notably, the Chief Justice did not join the portion of Justice Kagan's opinion that argued that Auer deference is based on such a presumption. See Kisor, 139 S. Ct. at 2412 (plurality opinion); id. at 2424 (Roberts, C.J., concurring in part). In addition, Justice Kavanaugh filed an opinion, joined by Justice Alito, concurring in the judgment. See Kisor, 139 S. Ct. at 2448 (Kavanaugh, J., concurring in the judgment). Like Justice Gorsuch, Justice Kavanaugh believed that Auer should be overruled. Id. He also agreed with the Chief Justice that the Kisor majority and Justice Gorsuch's approaches may not be that far apart. Id. Justice Kavanaugh contended that the Kisor majority's instruction that courts exhaust the traditional canons of construction before concluding that a regulation is ambiguous "will almost always [lead a court to] reach a conclusion about the best interpretation of the regulation at issue." Id. In addition, he agreed with the Chief Justice that the majority's refusal to overturn Auer is not relevant to the issue of Chevron. Id. at 2449.
82.	See Christopher J. Walker, Procedural Politicking and Auer Deference, 36 Yale J. on Reg.: Notice & Comment (2019), https://yalejreg.com/nc/procedural-politicking-and-auer-deference/ (suggesting that Kisor "will lead lower courts to be much less deferential to agency regulatory interpretations going forward"). But see Jennifer Huddleston, Kisor and the Future of Agency Deference, Mercatus Center (June 27, 2019), https://www.mercatus.org/bridge/commentary/kisor-and-future-agency-deference (writing that Kisor "changes the way the courts will consider administrative actions by putting new emphasis on determining if and when such deference is appropriate," but noting that "[w]hether this change truly impacts the way courts consider such decisions by the administrative state remains to be seen").
83.	See, e.g., Thomas Merrill, Shadow Boxing with the Administrative State, SCOTUSblog (June 27, 2019), https://www.scotusblog.com/2019/06/symposium-shadow-boxing-with-the-administrative-state/ (remarking that Justice "Kagan's new contextualized Auer, although it draws upon roughly the same factors as Skidmore, is an unknown animal at this point" and "[c]onsequently, it is likely to produce significant uncertainty among lower court judges, agencies and persons contemplating a challenge to agency interpretations"); Daniel E. Walters, A Turning Point in the Deference Wars, Reg. Rev. (July 9, 2019), https://www.theregreview.org/2019/07/09/walters-turning-point-deference-wars/ (writing that "there does not appear to be anything genuinely new about any of this except the clarity the [Kisor] opinion engrafts on the doctrine"); Walker, supra note 82 (predicting that "courts [will] be less deferential" after Kisor). Cf. Ronald Levin, Auer Deference—Supreme Court Chooses Evolution, not Revolution, SCOTUSblog (June 27, 2019), https://www.scotusblog.com/2019/06/symposium-auer-deference-supreme-court-chooses-evolution-not-revolution/ (opining that the types of limitations imposed on Auer by Kisor "are an inherent feature of the doctrine" and that "the doctrine has proved susceptible of gradual evolution over the years"); Aaron Nielson, Kisor Deference, 36 Yale J. on Reg.: Notice & Comment (2019), https://yalejreg.com/nc/kisor-deference/ (writing "that Kisor deference differs from Auer deference" and that "[w]hat we have [now] . . . is Kisor deference").
84.	Lower courts have already begun to apply Kisor to agency regulatory interpretations. See, e.g., Am. Tunaboat Ass'n v. Ross, Case No. 1:19-cv-01011 (TNM), 2019 WL 3458641, at *7-10 (D.D.C. July 31, 2019) (deferring to agency's regulatory interpretation after applying Kisor's multistep test); Spencer v. Macado's, Inc., Case No. 6:18-cv-00005, 2019 WL 2931304, at *5-6 (W.D. Va. July 8, 2019) (determining that agency's interpretation did not stem from its "fair and considered judgment" and remarking that, under Kisor, "it would be inappropriate to apply Auer deference" in the case) (internal quotation marks and citation omitted).
85.	See Kisor, 139 S. Ct. at 2422-23.
86.	Id.; 5 U.S.C. § 706.
87.	There is legislation in Congress that would require de novo review of agency interpretations. See Separation of Powers Restoration Act, H.R. 1927, 116th Cong. § 2(3) (2019) (amending § 706 to require that courts "decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies"); Separation of Powers Restoration Act, S. 909, 116th Cong. § 2(2)(B) (2019) (amending § 706 to provide de novo review of agency interpretations and state that, "[i]f the reviewing court determines that a statutory or regulatory provision relevant to its decision contains a gap or ambiguity, the court shall not interpret that gap or ambiguity as an implicit delegation to the agency of legislative rule making authority and shall not rely on the gap or ambiguity as a justification for interpreting agency authority expansively or for deferring to the agency's interpretation on the question of law").
88.	Kisor, 139 S. Ct. at 2422-23.
89.	Legislative Attorney Benjamin Hayes authored this section.
90.	139 S. Ct. 2551 (2019).
91.	Id. at 2561-62.
92.	U.S. Const. art. I, § 2, cl. 3; id. amend. XIV, § 2.
93.	13 U.S.C. §§ 1-402.
94.	Id. § 141(a).
95.	Id. § 5.
96.	Id. § 6(c).
97.	Id. § 141(f).
98.	Memorandum of Secretary Wilbur Ross, U.S. Department of Commerce, Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire (Mar. 26, 2018), https://www.commerce.gov/sites/default/files/2018-03-26_2.pdf.
99.	Id. at 1. Section 2 of the VRA prohibits voting practices that dilute minority voting power. 52 U.S.C. § 10301; see Thornburg v. Gingles, 478 U.S. 30, 47-48 (1986). A plaintiff making a "vote dilution" claim must show, among other things, that the "eligible voters" of a minority group are "sufficiently large and geographically compact to constitute a majority in a single-member district" capable of electing their candidate of choice. See LULAC v. Perry, 548 U.S. 399, 425, 429 (2006). Because (generally) only citizens may vote, improved citizenship data could theoretically assist with Section 2 enforcement.
100.	Memorandum of Secretary Wilbur Ross, supra note 98, at 2-5.
101.	See Dep't of Commerce v. New York, 139 S. Ct. 2551, 2750 (2019); see also id. at 2588-89 (Breyer, J., dissenting).
102.	Memorandum of Secretary Wilbur Ross, supra note 98, at 5.
103.	Id. at 4.
104.	Id. at 5.
105.	Id. at 7.
106.	See California v. Ross, 358 F. Supp. 3d 965 (N.D. Cal. 2019).
107.	See Kravitz v. Dep't of Commerce, 366 F. Supp. 3d 681 (D. Md. 2019).
108.	See New York v. Dep't of Commerce, 351 F. Supp. 3d 502 (S.D.N.Y. 2019).
109.	See supra note 92 and accompanying text.
110.	Kravitz, 366 F. Supp. 3d at 751-52; California, 358 F. Supp. 3d at 1046-49.
111.	New York, 351 F. Supp. 3d at 636-47; California, 358 F. Supp. 3d at 1037-40; see also Kravitz, 366 F. Supp. 3d at 748-49 (finding an APA violation because Secretary Ross did not "acknowledge or comply with" Section 6(c)).
112.	New York, 351 F. Supp. 3d at 636-41; California, 358 F. Supp. 3d at 1037-38.
113.	New York, 351 F. Supp. 3d at 641-43; California, 358 F. Supp. 3d at 1038-40. Secretary Ross submitted the first report required by Section 141(f) prior to DOJ's request to add a citizenship question. Dep't of Commerce v. New York, 139 S. Ct. 2551, 2572 (2019). He submitted the second report required by Section 141(f) after DOJ's request, and that report did identify citizenship as a "question." Id.
114.	Dep't of Commerce, 139 S. Ct. at 2569 (quoting Baltimore Gas & Elec. Co. v. Nat'l Res. Def. Council, Inc., 462 U.S. 87, 105 (1983)). The APA authorizes judicial review of agency action and allows courts to overturn agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2).
115.	New York, 351 F. Supp. 3d at 647-51; California, 358 F. Supp. 3d at 1041-44; Kravitz, 366 F. Supp. 3d at 744-47.
116.	New York, 351 F. Supp. 3d at 660-64; California, 358 F. Supp. 3d at 1040, 1044; Kravitz, 366 F. Supp. 3d at 749-51.
117.	139 S. Ct. 2551 (2019). The Supreme Court agreed to directly review the New York court's decision—rather than requiring that it first be reviewed by the Second Circuit—based on the United States' representation that the census questionnaire had to be finalized by the end of June 2019. See Dep't of Commerce v. New York, 139 S. Ct. 953, 953 (2019) (granting certiorari); Brief for Petitioner at 13-14, Dep't of Commerce v. New York, 139 S. Ct. 2551 (2019) (No. 18-966) ("[T]he government must finalize the decennial questionnaire for printing by end of June 2019."). After federal district courts in California and Maryland issued their decisions, both of which found an Enumeration Clause violation, the Supreme Court ordered the parties in the New York case to also address the Enumeration Clause issue. See Orders in Pending Cases, No. 18-966, Dep't of Commerce v. New York (Mar. 15, 2019).
118.	The Court began by concluding that the plaintiffs had satisfied Article III's standing requirements. Dep't of Commerce, 139 S. Ct. at 2565-66. The Court also concluded that the Secretary's decision to add a citizenship question to the census was reviewable under the APA because it was not "committed to agency discretion by law." Id. at 2567-69 (citing 5 U.S.C. § 701(a)).
119.	Id. at 2566-67. No member of the Court authored a written dissent with respect to this part of the Court's opinion.
120.	Id. at 2567 (quoting NLRB v. Noel Canning, 573 U.S. 513, 572 (2014) (Scalia, J., concurring in the judgment)).
121.	Id. at 2566-67.
122.	Id. at 2567. The Court also determined that it would not review the addition of a citizenship question under the standard that it applied to assess "decisions about the population count itself"—asking whether the challenged action "b[ears] a 'reasonable relationship to the accomplishment of an actual enumeration.'" Id. at 2566 (quoting Wisconsin v. City of New York, 517 U.S. 1, 19 (1996)). The Court determined that applying this standard to evaluate the constitutionality of demographic questions on the census questionnaire "'would lead to the conclusion that it is unconstitutional to ask any demographic question on the census' because 'asking such questions bears no relationship whatsoever to the goal of an accurate headcount.'" Id. The Court was thus unwilling to "measure the constitutionality of the citizenship question by a standard that would seem to render every census since 1790 unconstitutional." Id. at 2567.
123.	Id. at 2569-71.
124.	Id. at 2569.
125.	Id. at 2569, 2570. While the Census Bureau had stated that it could develop "an accurate model for estimating the citizenship of the 35 million people for whom administrative records were not available," that model had not been developed by the time the Secretary was making his decision. Id. at 2570.
126.	Id. at 2570.
127.	Id.
128.	Id. at 2570, 2571.
129.	Id. at 2571.
130.	Id. at 2571-73.
131.	Id. at 2572.
132.	Id.
133.	Id.; 13 U.S.C. § 6(c).
134.	Dep't of Commerce, 139 S. Ct. at 2572-73.
135.	Id. at 2572. The Court also reasoned that any violation "would surely be harmless," as "the Secretary nonetheless fully informed Congress of, and explained, his decision." Id. at 2573.
136.	Id. at 2573-76.
137.	Id. at 2573 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167-69 (1962)).
138.	Id. at 2573-74.
139.	Id. at 2574. During the district court proceedings, the plaintiffs had argued that the Department of Commerce did not include all relevant materials in the administrative record, and, as a result, they asked that the district court (1) order the Department of Commerce to complete the administrative record, and (2) allow extra-record discovery to further explore whether Secretary Ross's explanation for adding the citizenship question was pretextual. Id. The district court granted both requests. Id. Though the Supreme Court ultimately determined that the district court should not have granted extra-record discovery at the time it did, the Court also concluded that extra-record discovery was justified after the administrative record had been completed, as the additional materials showed "that the VRA played an insignificant role in the decisionmaking process." Id. Thus, the Supreme Court "review[ed] the District Court's ruling on pretext in light of all the evidence in the record before the [district] court, including the extra-record discovery." Id.
140.	Id. at 2575.
141.	Id.
142.	Id.
143.	Id.
144.	Id. at 2576.
145.	Id.
146.	Id. at 2576-84 (Thomas, J., joined by Gorsuch and Kavanaugh, JJ., concurring in part and dissenting in part); id. at 2584-95 (Breyer, J., joined by Ginsburg, Sotomayor, and Kagan, JJ., concurring in part and dissenting in part); id. at 2596-2606 (Alito, J., concurring in part and dissenting in part).
147.	Justice Alito also dissented, but only from the Court's holding that the Secretary's decision to add a citizenship question was reviewable under the APA. Id. at 2596-2606 (Alito, J., concurring in part and dissenting in part). In his view, the decision of whether to add a citizenship question to the census was a choice "committed to agency discretion by law"—specifically, the Census Act. Id.; 5 U.S.C. § 701(a)(2). However, assuming Secretary Ross's decision was reviewable, Justice Alito stated that he agreed with the Chief Justice's opinion, with the exception of its conclusion on pretext. Dep't of Commerce, 139 S. Ct. at 2606 & n.15 (Alito, J., concurring in part and dissenting in part).
148.	Id. at 2576-84 (Thomas, J., concurring in part and dissenting in part).
149.	Id. at 2580-81.
150.	Id. at 2578, 2579 (Thomas, J., concurring in part and dissenting in part).
151.	Id. at 2579.
152.	Id. at 2580-81.
153.	Id. at 2581 (emphasis omitted).
154.	Id. at 2582.
155.	Id. at 2583.
156.	Id. at 2584.
157.	Id. at 2584-95 (Breyer, J., concurring in part and dissenting in part).
158.	Id. at 2587.
159.	Id.
160.	Id. at 2590.
161.	Id. at 2590-92.
162.	Id. at 2591-92.
163.	Id. at 2595.
164.	Id. at 2576 (majority opinion); see The White House, Remarks by President Trump on Citizenship and the Census (July 11, 2019), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-citizenship-census/.
165.	See Dep't of Commerce, 139 S. Ct. at 2576.
166.	See Exec. Order No. 13880, 84 Fed. Reg. 33,821, 33,825 (July 11, 2019).
167.	Dep't of Commerce, 139 S. Ct. at 2573-74.
168.	Id. at 2583 (Thomas, J., concurring in part and dissenting in part).
169.	See, e.g., Chris Walker, What the Census Case Means for Administrative Law: Harder Look Review?, 36 Yale J. on Reg.: Notice & Comment (June 27, 2019), https://yalejreg.com/nc/what-the-census-case-means-for-administrative-law-harder-look-review/.
170.	Dep't of Commerce, 139 S. Ct. at 2575-76.
171.	See Nicholas Bronni, Census Symposium: Unusual Facts Make for Unusual Decisions, SCOTUSblog (Jun. 28, 2019, 11:51 AM), https://www.scotusblog.com/2019/06/census-symposium-unusual-facts-make-for-unusual-decisions/ ("[T]he court's analysis underscores just how hard it is to justify [examining an agency's motives] because there will rarely be such an extraordinarily extensive administrative record. Indeed, it's highly unlikely 'these unusual circumstances' will exist again.").
172.	Legislative Attorney L. Paige Whitaker authored this section.
173.	Ariz. State Legis. v. Ariz. Indep. Redistricting Comm'n, 135 S. Ct. 2652, 2658 (2015).
174.	See, e.g., Davis v. Bandemer, 478 U. S. 109, 116-117 (1986) (plurality opinion) (holding that the case was justiciable, but splintering as to the proper standard to apply with respect to partisan gerrymandering claims).
175.	See Rucho v. Common Cause, 139 S. Ct. 2484 (2019).
176.	U.S. Const. art. I, sec. 4, cl. 1.
177.	See Rucho, 139 S. Ct. at 2496.
178.	See id. at 2501.
179.	See id. at 2508.
180.	See, e.g., Colegrove v. Green, 328 U.S. 549, 556 (1946) ("To sustain this action would cut very deep into the very being of Congress. Courts ought not to enter this political thicket.").
181.	369 U.S. 186, 217 (1962).
182.	For discussion of Supreme Court's redistricting case law addressing inequality of population among districts and racial gerrymandering, see CRS Report R44798, Congressional Redistricting Law: Background and Recent Court Rulings, by L. Paige Whitaker.
183.	See Vieth v. Jubelirer, 541 U.S. 267, 306 (2004) (Kennedy, J., concurring) ("A decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process.").
184.	See Davis v. Bandemer, 478 U. S. 109, 133 (1986) ("Inviting attack on minor departures from some supposed norm would too much embroil the judiciary in second-guessing what has consistently been referred to as a political task for the legislature, a task that should not be monitored too closely unless the express or tacit goal is to effect its removal from legislative halls.").
185.	Vieth, 541 U.S. at 292.
186.	Gill v. Whitford, 138 S. Ct. 1916, 1941 (2018) (Kagan, J., concurring).
187.	See Vieth, 541 U.S. at 305-06; League of United Latin Am. Citizens (LULAC) v. Perry 548 U.S. 399, 423 (2006).
188.	See Vieth, 541 U.S. at 306 (Kennedy, J., concurring); LULAC, 548 U.S. at 492-511 (Roberts, C.J., concurring in part, concurring in the judgment in part, & dissenting in part, joined by Alito, J.).
189.	See Gill, 138 S. Ct. at 1933 (holding that to establish standing to sue for a claim of unconstitutional partisan gerrymandering on the basis of vote dilution, challengers must allege injuries to their interests as voters in individual districts); Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018) (per curiam) (holding that a district court did not abuse its discretion by denying a preliminary injunction to challengers claiming that a Maryland congressional district was an unconstitutional partisan gerrymander). See also CRS Legal Sidebar LSB10164, Partisan Gerrymandering: Supreme Court Provides Guidance on Standing and Maintains Legal Status Quo, by L. Paige Whitaker.
190.	For further discussion of the lower court rulings in this case, see CRS Legal Sidebar LSB10276, Supreme Court Once Again Considers Partisan Gerrymandering: Implications and Legislative Options, by L. Paige Whitaker.
191.	See Common Cause v. Rucho, 318 F. Supp. 3d 777, 861 (M.D.N.C. 2018).
192.	Id. at 937-38.
193.	Common Cause, 318 F. Supp. 3d at 929; Benisek v. Lamone, 348 F. Supp. 3d 493, 515 (D. Md. 2018).
194.	28 U.S.C. § 1253.
195.	See Rucho v. Common Cause, 139 S. Ct. 2484, 2508 (2019).
196.	See id. at 2494-96.
197.	See id. at 2494-95. Providing an example, the Court referenced the first congressional election cycle where George Washington and his Federalist allies accused Patrick Henry of attempting to gerrymander Virginia districts. See id.
198.	Id. at 2496.
199.	See id.
200.	See id. at 2495.
201.	See id. at 2496-97.
202.	Id. at 2497.
203.	See id.
204.	Id. at 2501.
205.	Id. at 2499.
206.	Id.
207.	Id. at 2498 (quoting Davis v. Bandemer, 478 U. S. 109, 145 (O'Connor, J., concurring)).
208.	Id. at 2499.
209.	See id. For example, the Court observed that in 1840, although the Whig Party in Alabama won 43% of the statewide vote, it did not receive a single seat. See id.
210.	Id.
211.	Id. at 2498.
212.	See id. at 2500.
213.	See id. at 2502-05.
214.	Id. at 2502-03.
215.	See id.
216.	Id. at 2503.
217.	Id.
218.	See id. at 2504-05.
219.	See id. at 2504.
220.	Id.
221.	See id.
222.	See id. at 2506.
223.	Id. at 2506-07.
224.	Id. at 2507.
225.	Id.
226.	See id. at 2507-08.
227.	Id. at 2508.
228.	Id. at 2509 (Kagan, J., dissenting).
229.	Id. at 2519.
230.	See id. at 2524.
231.	See id. at 2525.
232.	See id. at 2508 (majority opinion).
233.	See id. at 2507-08.
234.	See id. at 2508.
235.	For the People Act of 2019, H.R. 1, 116th Cong. §§ 2411-2413 (2019).
236.	Coretta Scott King Mid-Decade Redistricting Prohibition Act of 2019, H.R. 44, 116th Cong. § 2 (2019).
237.	See Adam Cox, Commentary: Partisan Fairness and Redistricting Politics, 79 N.Y.U.L. Rev. 751, 755 (2004).
238.	Redistricting Transparency Act of 2019, H.R. 131, 116th Cong. §§ 2-6 (2019).
239.	See Rucho, 139 S. Ct. at 2508.
240.	See League of Women Voters of Fla. v. Detzner, 172 So. 3d 363, 413-14 (Fla. 2015).
241.	See League of Women Voters of Pa. v. Commonwealth, 175 A. 3d 282, 284 (Pa. 2018) (per curiam).
242.	Legislative Attorney Valerie Brannon authored this section.
243.	139 S. Ct. 2067, 2074 (2019).
244.	403 U.S. 602, 612–13 (1971).
245.	See, e.g., Am. Legion, 139 S. Ct. at 2080 (plurality opinion) (citing cases where the Supreme Court "has either expressly declined to apply the [Lemon] test or has simply ignored it"); Van Orden v. Perry, 545 U.S. 677, 685 (2005) (plurality opinion) (stating that Lemon is "not useful" in analyzing a "passive monument"); Lee v. Weisman, 505 U.S. 577, 644 (1992) (Scalia, J., dissenting) (describing Lemon as a "formulaic abstraction[]" that is inconsistent with "our long-accepted constitutional traditions"); Wallace v. Jaffree, 472 U.S. 38, 108–10 (1985) (Rehnquist, J., dissenting) (arguing that Lemon is theoretically and practically flawed).
246.	See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 668 (2002) (O'Connor, J., concurring) (describing Lemon as "a central tool" in Establishment Clause analysis); Doe v. Elmbrook Sch. Dist., 687 F.3d 840, 849 (7th Cir. 2012) (stating Lemon is the prevailing test for Establishment Clause claims); Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1017 (9th Cir. 2010) (same); Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 344 (5th Cir. 1999) (same).
247.	Cf., e.g., Am. Legion, 139 S. Ct. at 2389 (plurality opinion).
248.	Cf. id. at 2097 (Thomas, J., concurring in the judgment) (explaining that he did not join the plurality opinion because it did not "overrule the Lemon test in all contexts").
249.	U.S. Const. amend. I. The First Amendment was "made applicable to the states" by the Fourteenth Amendment. Everson v. Bd. of Educ., 330 U.S. 1, 5 (1947).
250.	See, e.g., McCreary Cty. v. ACLU, 545 U.S. 844, 860 (2005) ("When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality . . . ."); Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002) (describing factors that render "a government aid program . . . neutral with respect to religion" and "not readily subject to challenge under the Establishment Clause"); Everson, 330 U.S. at 18 (1947) ("[The First] Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers . . . .").
251.	403 U.S. 602, 612–13 (1971).
252.	See, e.g., Van Orden v. Perry, 545 U.S. 677, 685–86 (2005) (plurality opinion) ("Over the last 25 years, we have sometimes pointed to Lemon v. Kurtzman as providing the governing test in Establishment Clause challenges. Yet, just two years after Lemon was decided, we noted that the factors identified in Lemon serve as 'no more than helpful signposts.'" (quoting Hunt v. McNair, 413 U.S. 734, 741 (1973)) (citations omitted)); Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting the Court's "unwillingness to be confined to any single test or criterion in this sensitive area").
253.	Rowan Cty. v. Lund, 138 S. Ct. 2564, 2564–65 (2018) (Thomas, J., dissenting from denial of certiorari) (citing Town of Greece v. Galloway, 572 U.S. 565 (2014), and Marsh v. Chambers, 463 U.S. 783 (1983)).
254.	In Lynch v. Donnelly, Justice O'Connor wrote a concurring opinion saying that Lemon's first prong "asks whether government's actual purpose is to endorse or disapprove of religion," while the second "asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval." 465 U.S. 668, 690 (1984) (O'Connor, J., concurring). The Court as a whole later employed this "endorsement" analysis in a number of decisions. E.g., Allegheny Cty. v. ACLU, 492 U.S. 573, 592–93 (1989) (describing decisions).
255.	Allegheny Cty., 492 U.S. at 592.
256.	Rowan Cty., 138 S. Ct. at 2564. See also, e.g., Kondrat'Yev v. City of Pensacola, 903 F.3d 1169, 1179 (11th Cir. 2018) ("The Court's Establishment Clause jurisprudence is, to use a technical legal term of art, a hot mess.").
257.	See, e.g., Van Orden v. Perry, 545 U.S. 677, 692–93 (2005) (Thomas, J., concurring) ("This case would be easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing Establishment Clause challenges, and return to the original meaning of the Clause."); supra note 245.
258.	See McCreary Cty. v. ACLU, 545 U.S. 844, 871 (2005); see also id. at 861–63 (defending the continued use of the "purpose" prong of Lemon test).
259.	See Van Orden v. Perry, 545 U.S. 677, 685 (2005) (plurality opinion) (holding that a Ten Commandments display did not violate the Establishment Clause under an analysis "driven both by the nature of the monument and by our Nation's history").
260.	Id. at 705 (Breyer, J., concurring in the judgment).
261.	Id. at 701–03. Justice Breyer said that while Lemon's three prongs might "provide useful guideposts," he believed that in the "fact-intensive" application of the Establishment Clause, there could be "no test-related substitute for the exercise of legal judgment." Id. at 700.
262.	Id. at 702.
263.	Id. at 703–04.
264.	Am. Legion v. Am. Humanist Ass'n, 139 S. Ct. 2067, 2074 (2019).
265.	Id. at 2077.
266.	Am. Humanist Ass'n v. Md.-Nat'l Capital Park & Planning Comm'n, 874 F.3d 195, 212 (4th Cir. 2017).
267.	Am. Legion, 139 S. Ct. at 2074.
268.	Justices Breyer, Kagan, and Kavanaugh each filed concurring opinions, while Justices Thomas and Gorsuch filed opinions concurring in the judgment only.
269.	Am. Legion, 139 S. Ct. at 2089–90.
270.	Id. at 2089.
271.	Id. at 2090.
272.	Justice Kagan declined to join this portion of the opinion. Id. at 2094 (Kagan, J., concurring in part). While she "agree[d] that rigid application of the Lemon test does not solve every Establishment Clause problem," she defended Lemon's first two prongs, stating, "that test's focus on purposes and effects is crucial in evaluating government action in this sphere." Id.
273.	Id. at 2081–82 (plurality opinion); see also id. at 2081 ("[T]he Lemon test presents particularly daunting problems in cases, including the one now before us, that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations."). In his separate opinion, Justice Gorsuch expressed practical and theoretical concerns about presuming that "longstanding monuments, symbols, and practices" are constitutional, stating that both old and new practices should be assessed for their "compliance with ageless principles." Id. at 2102 (Gorsuch, J., concurring in the judgment) (emphasis added).
274.	Id. at 2089 (plurality opinion). Justice Breyer joined this portion of the opinion. But while he agreed that "the Court appropriately 'looks to history for guidance,'" he emphasized in a separate opinion that he did not understand the majority "to adopt a 'history and tradition test' that would permit any newly constructed religious memorial on public land" to stand regardless of the monument's "particular historical context." Id. at 2091 (Breyer, J., concurring) (citations omitted).
275.	Justice Kavanaugh joined the plurality but also wrote separately to state his belief that Lemon "does not explain the Court's decisions" in Establishment Clause cases, suggesting that instead, the cases have looked to "principles based on history, tradition, and precedent." Id. at 2092, 2093 (Kavanaugh, J., concurring).
276.	Id. at 2097 (Thomas, J., concurring in the judgment).
277.	Id. at 2096. In his view, the display of the Peace Cross did not share "any of the historical characteristics of an establishment of religion" because the state did not attempt "to control religious doctrine or personnel, compel religious observance, single out a particular religious denomination for exclusive state subsidization, or punish dissenting worship." Id.
278.	Id. at 2101–02 (Gorsuch, J., concurring in the judgment). While Justice Gorsuch expressed concerns about the substance of the Lemon test, his primary objections to the decision were based on procedural grounds. See id. at 2102–03. He argued that the plaintiff in Lemon, and any other plaintiffs alleging that they were "offended" by observing religious displays, lacked standing to assert their claims. Id. at 2100–01.
279.	Id. at 2081–82 (plurality opinion). The plurality opinion is narrower than the concurring opinions because it would only have partially limited Lemon, likely making it controlling in the future. See Marks v. United States, 430 U.S. 188, 193 (1977) (explaining that when "no single rationale explaining the result [of a case] enjoys the assent of five Justices," the position representing the narrowest grounds is the holding of the Court).
280.	American Legion, 139 S. Ct. at 2104 (Ginsburg, J., dissenting).
281.	Id. at 2105 (quoting Allegheny Cty., 492 U.S. at 593) (internal quotation mark omitted).
282.	Id. at 2106–07.
283.	Id. at 2104.
284.	Id. at 2089 (plurality opinion).
285.	See id. at 2090–91 (Breyer, J., concurring) (reiterating that "there is no single formula for resolving Establishment Clause challenges" and outlining relevant factual circumstances); id. at 2093, n* (Kavanaugh, J., concurring) (outlining factors that create a "safe harbor" for government actions but stating that other factors may come into play).
286.	See id. at 2090 (majority opinion) ("The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent."); see also Town of Greece v. Galloway, 572 U.S. 565, 578 (2014) ("An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court's cases.").
287.	Am. Legion, 139 S. Ct. at 2085 (majority opinion).
288.	At least one federal court of appeals has since concluded that Lemon did not govern its analysis in an opinion approving of a county seal containing a Latin cross, stating instead that American Legion created a presumption of constitutionality for the seal. Freedom From Religion Found. v. Lehigh Cty., No. 17-3581, 2019 WL 3720709, at *1 (3d Cir. Aug. 8, 2019).
289.	Legislative Attorney Linda Tsang authored this section.
290.	139 S. Ct. 2116, 2121 (2019) (plurality opinion).
291.	Id. at 2121, 2130.
292.	Id. at 2131-48.
293.	Id. at 2130-31 (concurring, Alito, J.).
294.	Id. at 2120 (plurality opinion).
295.	U.S. Const. art. I, § 1.
296.	Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001). See also United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932) ("[T]he legislative power of Congress cannot be delegated.").
297.	See Loving v. United States, 517 U.S. 748, 758 (1996) ("Another strand of our separation-of-powers jurisprudence, the delegation doctrine, has developed to prevent Congress from forsaking its duties.").
298.	Mistretta v. United States, 488 U.S. 361, 372 (1989); Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42 (1825).
299.	J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928). See, e.g., Panama Ref. Co. v. Ryan, 293 U.S. 388, 421 (1935) ("The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply.").
300.	See Fed. Power Comm'n. v. New England Power Co., 415 U.S. 345, 352-53 (1974) (Marshall, J., concurring in part and dissenting in part) (remarking that the nondelegation doctrine has "been virtually abandoned by the Court for all practical purposes").
301.	The Supreme Court's consistent response to nondelegation doctrine challenges is reflected by the fact that "the combined vote in the Supreme Court on nondelegation issues from Mistretta [in 1989] through American Trucking [in 2001] was 53-0." Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 330 (2002).
302.	Sex Offender Registration and Notification Act, Pub. L. No. 109-248, §§ 101-155, 120 Stat. 587 (2006) (codified at 34 U.S.C. § 20901).
303.	34 U.S.C. § 20913(a). The statute requires each state receiving funding under SORNA to specify a minimum one-year imprisonment penalty for failure to comply with registration requirements. Id. § 20913(e).
304.	Id. § 20913(d).
305.	Reynolds v. United States, 565 U.S. 432, 445-46 (2012) (holding that SORNA does not apply registration requirements to pre-SORNA sex offenders until after the Attorney General exercised his authority to give SORNA retroactive effect).
306.	See Applicability of the Sex Offender Registration and Notification Act; Interim Rule and Request for Comment, 72 Fed. Reg. 8,894, 8,896 (Feb. 28, 2007) ("SORNA applies to all sex offenders (as the Act defines that term) regardless of when they were convicted."); The National Guidelines for Sex Offender Registration and Notification Final Guidelines, 73 Fed. Reg. 38,030, 38,063 (July 2, 2008) ("SORNA applies to all sex offenders, including those convicted of their registration offenses prior to the enactment of SORNA or prior to particular jurisdictions' incorporation of the SORNA requirements into their programs."); Applicability of the Sex Offender Registration and Notification Act; Final Rule, 75 Fed. Reg. 81,849, 81,850 (Dec. 29, 2010) (finalizing the interim rule "to eliminate any possible uncertainty or dispute concerning the scope of SORNA's application") (codified at 28 C.F.R. § 72.3); Supplemental Guidelines for Sex Offender Registration and Notification; Final Guidelines, 76 Fed. Reg. 1,630, 1,639 (Jan. 11, 2011) (clarifying that SORNA requirements apply to previous sex offenders "have fully exited the justice system, i.e., those who are no longer prisoners, supervisees, or registrants" who have been subsequently convicted of a new non-sex felony offense).
307.	United States v. Gundy, 695 Fed. Appx. 639, 640 (2d Cir. 2017).
308.	Id.
309.	Id.
310.	Brief for Petitioner at 15, Gundy v. United States, No. 17-6086 (U.S. May 25, 2018), 2018 WL 2441585.
311.	Gundy v. United States, 139 S. Ct. 2116, 2121 (2019).
312.	Brief for Petitioner at 15, 23-25, Gundy v. United States, No. 17-6086 (U.S. May 25, 2018), 2018 WL 2441585.
313.	Gundy, 139 S. Ct. at 2121 (plurality opinion). Although the delegation in Section 20913(d) does not refer to a feasibility standard, Justice Kagan relied on the legislative history, definition of "sex offender," and SORNA's stated purpose (i.e., to establish a "comprehensive" registration system) as an "appropriate guide" to limit the Attorney General's discretion. Id. at 2127.
314.	Id. at 2129.
315.	Id.
316.	Id. at 2129-30.
317.	Id. at 2132 (Gorsuch, J., dissenting).
318.	Id. at 2133-34.
319.	Id. at 2134-35.
320.	See id. at 2138 (discussing A.L.A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935) and Panama Refining Co. v. Ryan, 293 U. S. 388 (1935)). In the dissent's view, when the Court introduced the concept of the "intelligible principle" in 1928 in J.W. Hampton, Jr., & Co. v. United States, the test was rooted in the "traditional" separation-of-powers tests that drew the line between "policy and details, lawmaking and fact-finding, and legislative and non-legislative functions" in determining whether the delegation was constitutional. Id. at 2138-39. Only in later years, Justice Gorsuch noted, the "mutated" version of the intelligible principle test lost its "basis in the original meaning of the Constitution" because courts took "isolated" or "passing" phrases or comments from judicial precedents out of context to uphold broad delegations as constitutional. Id. at 2139.
321.	Id. at 2138-39.
322.	Id. at 2136-37.
323.	Id. at 2143-48.
324.	Id. at 2143.
325.	Id. He noted that the plurality "reimagined" SORNA in a "new and narrower way" to include a feasibility standard that is not specified explicitly in the statute. Id. at 2145-46.
326.	Id. at 2144.
327.	Id. at 2148.
328.	Id. at 2130-31 (Alito, J., concurring).
329.	Id.
330.	Id. at 2131.
331.	Prior to his elevation to the Supreme Court, then-Judge Kavanaugh on the D.C. Circuit, while never opining on the merits of the modern approach toward nondelegation issues, stressed both the importance of the separation of powers and the judiciary's role in enforcing the Framers of the Constitution clear structural and procedural designs for our government. See generally CRS Report R45293, Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court, coordinated by Andrew Nolan, at 145-161 (discussing then-Judge Kavanaugh's jurisprudence related to the separation of powers).
332.	Indeed, the dissent in Gundy acknowledged the inherent difficulty in defining the precise boundaries between the three branches of government and the "exact line" between legislative and nonlegislative functions. Gundy, 139 S. Ct. at 2135-39 (Gorsuch, J., dissenting). See also Kristin E. Hickman, Gundy, Nondelegation, and the Never-Ending Hope, The Regulatory Rev. (July 8, 2019), https://www.theregreview.org/2019/07/08/hickman-nondelegation (discussing key obstacles to more rigorous enforcement of the nondelegation doctrine).
333.	See Hickman, Gundy, supra note 332 (discussing key obstacles to more rigorous enforcement of the nondelegation doctrine).
334.	Gundy, 139 S. Ct. at 2130 (quoting Mistretta, 488 U. S. at 416) (plurality opinion).
335.	Id. at 2145 (Gorsuch, J., dissenting).
336.	The American Institute for International Steel (AIIS) is appealing the U.S. Court of International Trade's decision that rejected a constitutional challenge of Section 232 of the Trade Expansion Act of 1962, which allows the President to restrict imports found to be a threat to national security. Brief for the Plaintiffs-Appellants, AIIS, Inc. v. United States, No. 19-1727 (Fed. Cir. Aug. 9, 2019). In its appeal to the Federal Circuit, AIIS argues that Section 232 violated the nondelegation principle because it fails to limit or guide the discretion of the president's authority. Id. at 2. In June 2019, prior to AIIS's appeal to the Federal Circuit, the Supreme Court rejected the AIIS's petition to review the U.S. Court of International Trade decision. AIIS, Inc. v. United States, No. 18-1317 (S. Ct. June 24, 2019). Depending on the Federal Circuit's decision, the Supreme Court may have an opportunity to review the nondelegation issue in Section 232.
337.	The Court could narrow the intelligible principle standard in other ways by limiting when a court may infer intelligible principles from legislative history or policy statements, or define stricter standards for delegations that involve criminal sanction or retroactivity of a law. Further, as noted in the Gundy dissent and by some legal scholars, even if the Court does not revisit the nondelegation doctrine, other principles from administrative and constitutional law may limit the reach of Congress's ability to delegate its powers to administrative agencies. Id. at 2141-42 (Gorsuch, J., dissenting). See also Kevin M. Stack, The Constitutional Foundations of Chenery, 116 Yale L.J. 952, 990-91 (2007) (describing as an alternative to enforcing the "intelligible principle" standard the doctrines of statutory interpretation and judicial canons).
338.	Eric A. Posner & Adrian Vermeule, Crisis Governance in the Administrative State: 9/11 and the Financial Meltdown of 2008, 76 U. Chi. L. Rev. 1613, 1630 (2009) ("[T]he nondelegation doctrine is largely moribund at the level of constitutional law.").