Opinions

The Posse Comitatus Act does not prohibit military personnel from making arrests outside of a National Defense Area for crimes committed within that National Defense Area.

Certain race- and sex-based programs administered by the National Science Foundation violate the Constitution’s equal-protection guarantee.

Section 930(d)(3) of title 18, U.S. Code, permits the lawful carrying of constitutionally protected firearms in post offices that are generally open to the public.

Executive privilege can apply to presidential communications with private advisers so long as the communications relate to official presidential decisionmaking, involve or reflect communications with the President or his direct advisers, and are confidential.

The No TikTok on Government Devices Act, Pub. L. No. 117-328, div. R, 136 Stat. 5258 (2022), prohibits from federal government technology versions of or successors to TikTok that are developed or provided by entities in which ByteDance Limited has a controlling ownership stake.

The version of TikTok operated by the TikTok U.S. Data Security Joint Venture does not fall within this prohibition because the Joint Venture functions independently of ByteDance, is majority-owned by American investors, and has revised the content-recommendation algorithm and cybersecurity program originally developed by ByteDance to insulate federal government information against the concerning security features that initially motivated the prohibition.

The race- and sex-based preference incorporated into 16 U.S.C. § 590c’s fee-waiver provision violates the Constitution’s guarantee of equal protection. This conclusion is consistent with prior Executive Branch determinations with respect to other race- and sex-based preferences in programs administered by the Department of Agriculture.

Several other statutory provisions relating to Department of Agriculture programs do not violate the Constitution’s guarantee of equal protection, either because they do not afford preferential treatment of any kind or because they are susceptible of race- and sex-neutral implementation.

In prohibiting discrimination on the basis of disability, neither section 504 of the Rehabilitation Act nor Title II of the Americans with Disabilities Act (“ADA”) imposed an integration mandate on states in their treatment of mentally disabled individuals. Nor does either statute authorize the responsible Executive Branch agencies to impose such a mandate.

A statutory mandate that states treat mentally disabled patients in maximally integrated settings would raise serious questions regarding the scope of Congress’s power under the Fourteenth Amendment, the Interstate Commerce Clause, and the Spending Clause.

In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the Supreme Court did not hold that section 504 of the Rehabilitation Act or Title II of the ADA require states to treat mentally disabled patients in the most integrated setting appropriate to their needs.

The Equal Credit Opportunity Act does not create disparate-impact liability. The statute’s textual focus on an actor’s mindset, as opposed to the consequences of his actions, demonstrates that it contemplates liability only for intentional discrimination. And other indicators of statutory purpose cannot overcome the statutory text.

EEOC’s Title VII guidelines are unconstitutional because they contemplate liability based on disparate effects alone, without regard to an employer’s likely intent, and pressure employers to engage in race-based decisionmaking. Properly understood, disparate-impact liability proscribes only those practices that reflect a significant likelihood of intentional discrimination.

The business-necessity defense requires employers to demonstrate only that the challenged practice rationally serves a valid business purpose.

Workplace requirements and selection procedures—such as background checks, aptitude tests, and SAT scores—are presumptively job-related. Only irrational or arbitrary practices with no plausible job-relatedness can create disparate-impact liability.

Disparate-impact plaintiffs must both establish that the challenged employment practice specifically caused the alleged disparate impact and provide evidence that an equally effective alternative practice causes less disparate impact.

The Federal Communications Commission’s Lifeline program provides federal means-tested public benefits and must therefore comply with the eligibility restrictions set forth in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

Collecting a subscriber’s Social Security Number before enrollment is not sufficient to verify noncitizen eligibility for participation in the Lifeline program.