Constitutional Law

First Amendment Freedoms and Federal Funds: Why Harvard’s Stand Matters for All Americans

On April 11, 2025, the Trump Administration sent its now-infamous demand letter to Harvard University, the country’s oldest institution of higher learning, identifying ten conditions Harvard must satisfy to maintain its stream of government funding.1 Harvard’s lawyers responded by letter on April 14, vowing that Harvard would not comply with demands deemed “in contravention of the First Amendment” and thus unlawful.2 In retaliation, the Administration froze $2.2 billion in grant funding and threatened to revoke Harvard’s tax-exempt status.3 Harvard then sued the Administration in federal court in Massachusetts, asserting that the government’s threats flout the First Amendment, Title VI of the Civil Rights Act of 1964, and other federal laws and regulations.4
While the Administration justifies its funding cuts as a response to concerns about antisemitism and viewpoint diversity, Harvard’s well-pleaded Complaint reframes the debate as a defense of our First Amendment freedoms and a call to sustain scientific research that benefits all Americans. The First Amendment, our nation’s most prized fundamental right, is at the forefront of Harvard’s Complaint. Harvard argues that the government’s attempt to exert a “pressure campaign to force Harvard to submit to the Government’s control over its academic programs” is antithetical to First Amendment principles.5 The Supreme Court recognized as early as 1943, in West Virginia State Board of Education v. Barnette, that “[i]f there is any fixed star in our constitutional constellation, it is that no official . . . can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”6 Moreover, “[t]he classroom is peculiarly the ‘marketplace of ideas’ that the First Amendment is designed to safeguard,” Harvard argues, quoting from Healey v. James.7 Accordingly, the Administration’s move to “interfere with private actors’ speech to advance its own vision of ideological balance”8 and its ‘threat of invoking legal sanctions and other means of coercion’” to suppress disfavored speech9 imperil both truth-seeking and our shared First Amendment rights.
In addition to undermining First Amendment principles, the practical stakes of funding cuts to scientific research are just as profound for all Americans, as laid out by Harvard’s Complaint. Since World War II, the federal government and U.S. universities have engaged in a shared mission to tackle some of our nation’s most pressing problems and develop groundbreaking solutions.10 Congress, through its spending power, authorizes funding and grants to those best positioned to maximize the utility of those funds—other federal agencies, universities, and researchers who have specialized skills, knowledge, and capacity to develop medicines, tools, technologies, and discoveries that improve the lives of American families.
This symbiotic relationship has served as the bedrock of America’s world-class innovation for almost a century. The Administration now moves to dismantle this funding infrastructure without Congressional authorization or any showing as to how cutting federal research dollars is a narrowly tailored response to antisemitic conduct or lack of viewpoint diversity on campus. As Harvard asserts, “[t]he Government has not—and cannot—identify any rational connection between antisemitism concerns and the medical, science, technological and other research it has frozen that aims to save American lives, foster American success, preserve American security, and maintain America’s position as a global leader in innovation.”11
The consequences of cutting federal research funding impact everyday Americans in a very real way. “There is so much goodness, love and care that goes into our work—work that is making homes, schools, and communities safer for people across the U.S., perhaps even for you and/or someone you care about—and if it is ended, the effects will be calamitous,” warns Dr. Katie Edwards, a professor of social work at the University of Michigan and the director of the Interpersonal Violence Research Laboratory.12
At Harvard, faculty are pursuing solutions to urgent challenges that affect millions,13 including research on cancer, infectious diseases, microbiomes, toxin reduction, microplastics, Parkinson’s disease, Alzheimer’s disease, space-related radiation, traumatic battlefield injuries, limb regeneration, antibiotic resistance, and so on.14 Similarly, at Princeton, federal funding suspensions threaten projects funded by the Energy Department, the Defense Department, NASA, and the National Institutes of Health, impacting research in climate science, quantitative biology, gene sequencing, and other critical fields.15
Michael Gordin, a renowned historian of science and dean of the college at Princeton, warns that in the history of modern science, “we only have one example of an industrialized, leading scientific country that starved its scientists, and that was the former Soviet Union. The results were quite catastrophic. In the first decade after the collapse of the Soviet Union, Russia lost 70% of its scientists. A small fraction left the country, but most just got other jobs.”16
Unlike in post-Soviet Russia, universities here rely on donors and corporations to help fund research programs. However, this private funding is not enough to counter cuts in federal funding. Research is expensive and time-consuming, and corporations often prioritize short-term returns on investment over “blue sky” research.17 At Princeton, for example, the university still faces a $25 million annual shortfall to support faculty research.18 Dipping into these universities’ endowments is not a simple fix. Harvard’s endowment consists of more than 14,000 individual funds, many of which are donor-restricted.19 Harvard and other universities make withdrawals from their endowments to meet operating expenses, but withdrawing enormous funds to offset government funding cuts can jeopardize universities’ long-term financial stability.20
The Administration’s campaign to erode First-Amendment principles and kneecap federal funding for our nation’s scientists and researchers for political gain is alarming. Harvard’s Complaint underscores how research is critical to addressing diseases and health issues that reach every family and individual. The Administration’s demands, if met, would undermine academic freedom and harm the health, safety, and security of millions of Americans. We commend Harvard and its peer institutions for standing up for the rule of law and calling to protect research funding that benefits all Americans, regardless of one’s political leanings.
The views expressed in this article are those of the author and not necessarily of her law firm, Dilworth Paxson LLP or The National Law Review.

1 Letter from U.S. Dep’t of Health & Hum. Servs., Gen. Servs. Admin., & U.S. Dep’t of Educ. to Alan Garber, President, Harvard Univ. (Apr. 11, 2025) https://www.harvard.edu/research-funding/wp- content/uploads/sites/16/2025/04/Letter-Sent-to-Harvard-2025-04-11.pdf.
2 Letter from Harvard Univ. to U.S. Dep’t of Health & Hum. Servs., Gen. Servs. Admin., & U.S. Dep’t of Educ. (April 14, 2025), https://www.harvard.edu/research-funding/wp-content/uploads/sites/16/2025/04/Harvard- Response-2025-04-14.pdf.
3 Ginia Bellafante, Harvard’s Endowment is $53.2 billion. What Should It Be For?, N.Y. Times (April 26, 2025), https://www.nytimes.com/2025/04/26/business/harvard-endowment-trump.html.
4 President & Fellows of Harvard Coll. v. U.S. Dep’t of Health & Hum. Servs., No. 1:25-cv-11048 (D.Mass. Apr. 21, 2025) (complaint).
5 President & Fellows of Harvard Coll. v. U.S. Dep’t of Health & Hum. Servs., No. 1:25-cv-11048 (D.Mass. Apr. 21, 2025) (complaint), at ¶ 11.
6 W. Va. State Bd. Of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
7 President & Fellows of Harvard Coll. v. U.S. Dep’t of Health & Hum. Servs., No. 1:25-cv-11048 (D.Mass. Apr. 21, 2025) (complaint), at ¶ 98.
8 President & Fellows of Harvard Coll. v. U.S. Dep’t of Health & Hum. Servs., No. 1:25-cv-11048 (D.Mass. Apr. 21, 2025) (complaint), at ¶ 7 (quoting Moody v. NetChoice, 603 U.S. 707, 741 (2024))
9 President & Fellows of Harvard Coll. v. U.S. Dep’t of Health & Hum. Servs., No. 1:25-cv-11048 (D.Mass. Apr. 21, 2025) (complaint), at ¶ 7 (quoting Nat’l Rifle Ass’n v. Vullo, 602 U.S. 175, 189 (2024)).
10 President & Fellows of Harvard Coll. v. U.S. Dep’t of Health & Hum. Servs., No. 1:25-cv-11048 (D.Mass. Apr. 21, 2025) (complaint), at ¶ 1 (quoting Nat’l Rifle Ass’n v. Vullo, 602 U.S. 175, 189 (2024) (citation omitted)).
11 President & Fellows of Harvard Coll. v. U.S. Dep’t of Health & Hum. Servs., No. 1:25-cv-11048 (D.Mass. Apr. 21, 2025) (complaint), at ¶ 10.
12 Katie Edwards, The Trump Administration Just Made Catastrophic Cuts That Will Affect You or Someone You Know, HuffPost (Apr. 27, 2025), https://www.msn.co/en-us/news/us/the-trump-administration-just-made- catastrophic-cuts-that-will-affect-you-or-someone-you-know/ar-AA1DHWWH?ocid=BingNewsSerp.
13 Chelsea Bailey, Harvard’s Fight with the Trump Administration Is Just Getting Started. The Cost Is Already High, CNN (Apr. 23, 2025), https://edition.cnn.com/2025/04/23/us/harvard-funding-freeze-trump- impact/index.html.
14 President & Fellows of Harvard Coll. v. U.S. Dep’t of Health & Hum. Servs., No. 1:25-cv-11048 (D.Mass. Apr. 21, 2025) (complaint), at ¶ 36.
15 Sena Chang, ‘Devastating’ and ‘Shocking’: What Princeton Stands to Lose from Trump’s Science Freeze, The Daily Princetonian (Feb. 6, 2025), https://www.dailyprincetonian.com/article/2025/02/princeton-news-research- funding-freeze-trump-confusion?utm_source=chatgpt.com
16 Liz Fuller-Wright, The Partnership That Drives America’s Leadership in Medical Discovery: How It Works and What’s at Stake, Princeton Univ. Office of Comm. (Feb. 18, 2025), https://www.princeton.edu/news/2025/02/18/partnership-drives-americas-leadership-medical-discovery-how-it- works-and-whats.
17 Liz Fuller-Wright, The Partnership That Drives America’s Leadership in Medical Discovery: How It Works and What’s at Stake, Princeton Univ., Office of Comm., (Feb. 18, 2025), https://www.princeton.edu/news/2025/02/18/partnership-drives-americas-leadership-medical-discovery-how-it- works-and-whats.
18 Rachel Abrams, The University President Willing to Fight Trump, The Daily (N.Y. Times Apr. 9, 2025) (podcast), https://www.nytimes.com/2025/04/09/podcasts/the-daily/princeton-university-trump.html.
19 Alan Blinder & Stephanie Saul, Can Harvard Withstand Trump’s Financial Attack?, N.Y. Times (April 22, 2025), https://www.nytimes.com/2025/04/22/us/harvard-trump-funding-endowment.html.
20 Alan Blinder & Stephanie Saul, Can Harvard Withstand Trump’s Financial Attack?, N.Y. Times (April 22, 2025), https://www.nytimes.com/2025/04/22/us/harvard-trump-funding-endowment.html.

PBMs Sue Arkansas Over Restrictive PBM Ownership Law

On April 16, 2025, Arkansas enacted Act 624 (the Act), an unprecedented law prohibiting pharmacy benefit managers (PBMs) from owning or operating pharmacies in the state. As we discussed in our May 2025 blog post, the law’s passage has already resulted in market disruptions, and PBMs with vertically integrated business models have cautioned that the law will limit patients’ access to drugs and cost many local jobs.
Now, two of the nation’s largest PBMs, CVS Health and Cigna’s Express Scripts (ESI), have filed federal lawsuits seeking to block implementation of the Act on the grounds that the Act is unconstitutional, preempted by federal law, and harmful to Arkansans.
Industry Pushback: Legal and Operational Threats
Within weeks of the law’s signing, CVS and Express Scripts filed suit in the U.S. District Court for the Eastern District of Arkansas, arguing that the Act is unconstitutional on multiple grounds. They claim the law would force a reorganization of national operations and disrupt mail-order prescription services relied upon by thousands of Arkansas residents.
While Governor Sarah Huckabee Sanders has framed the legislation as a stand against PBMs, CVS Health contends that the law is “bad policy that accomplishes just the opposite,” stating that the law will lead to the closure of 23 CVS Pharmacy® locations, eliminate hundreds of jobs, and increase the cost of prescription drugs by millions of dollars. Similarly, ESI argues in its complaint against members of the Arkansas State Board of Pharmacy that the law will create “pharmacy ‘deserts’ for the nearly 40% of Arkansans who live in rural areas,” and deny many Arkansans access to “lifesaving drugs at affordable prices.”
The lawsuits also argue that the Act is unconstitutional. In its complaint, CVS Health argues that the law was not implemented to protect patients but, rather, to exclude CVS Health specifically in favor of independent, in-state pharmacies that often charge higher prices for their prescription medicines. CVS asserts this practice violates the Constitution’s Dormant Commerce Clause and Equal Protection rights because it discriminates against out-of-state pharmacies to offer a boon to the state’s local pharmacies. CVS further alleges that the law is preempted by two federal laws: the Employee Retirement and Income Security Act (ERISA), because it interferes with benefit plan design, and the Medicare Prescription Drug Improvement and Modernization Act of 2003, because “it seeks to regulate Medicare Advantage and Medicare Part D plans that Congress intended for federal standards to exclusively govern.”
ESI’s complaint brings a similar claim under the Dormant Commerce Clause based on the Act’s alleged discrimination against out-of-state pharmacies, but also adds three additional grounds to strike down the Act. ESI alleges that the Act violates the Constitution’s Privileges and Immunities Clause by prohibiting out-of-state entities from working and providing services in Arkansas and that it violates the Bill of Attainder Clause by specifically targeting the nation’s three largest PBMs and barring them from participating in their vocation. ESI additionally contends the Act is preempted by the federal government’s TRICARE program—which delivers the military health benefits through private contractors—because ESI is the government’s principal mail-order-pharmacy TRICARE provider, and the Act thus attempts to force the federal government to select a new provider for Arkansas.
State Response and National Implications
This is not Arkansas’s first challenge to PBM practices. In Rutledge v. Pharmaceutical Care Management Association (2020), the U.S. Supreme Court upheld the state’s authority to regulate PBM reimbursement rates. However, the Act goes further by targeting companies’ rights to vertically integrate PBMs with pharmacies, raising new legal questions about how far states can go in regulating PBMs.
Similar to Rutledge, the outcome of these lawsuits could have significant ripple effects across the country. Numerous states are reportedly considering similar legislation, and a court ruling upholding Arkansas’s law could embolden those efforts. Conversely, if the law is struck down on constitutional or preemption grounds, it may set firm limits on states’ ability to regulate PBM structure and ownership. The Arkansas Attorney General Tim Griffin pledged to defend the Act vigorously.
This legal battle may also influence broader discussions in Congress, where bipartisan interest in PBM reform continues to grow.
What Comes Next
The lawsuits are in their early stages, but we could see previews of the court’s approach to the legal issues in the near term. Both lawsuits request preliminary injunctive relief which, if granted by the Court, would push back the Act’s effective date and stave off its immediate effects, and could set up a rapid pursuit of appeals to higher courts. While the legal issues will ultimately be decided in federal court, the policy debate over PBM reform is far from settled.

Attempts to Silence VA Scientists Would Violate the First Amendment

On June 2, 2025, MSNBC reported that politically appointed officials of the Department of Veteran Affairs (VA) lashed out against two VA scientists for authoring a report that, according to the officials, painted the Administration in a bad light. The report, published in the New England Journal of Medicine, voiced that federal cuts to the VA could negatively impact veterans’ respiratory health.
According to internal emails obtained by The Guardian, the senior officials claimed that the scientists had violated VA policy by not getting their article pre-approved before publication. While VA officials argue that they are simply requiring coordination between scientists and public affairs staff, the swift response to the critical article strongly suggests that the Administration is sending a message that could result in the suppression of viewpoints critical of the current VA leadership.
The current Administration is not the first to attempt to stifle government scientists who, on their own time, publish information critical of their employers. Legal precedent from cases dating back to the 1990s, litigated under the administrations of both President George Bush and William Clinton, demonstrate that attempts to “chill” constitutionally protected speech by federal employees can be successfully challenged in federal court.
Sanjour v. EPA
The 1995 case Sanjour v. EPA is a prime example of a landmark suit that established the First Amendment rights of federal employees to criticize their agencies. In that case, the U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of William Sanjour, an EPA employee who challenged federal rules that restricted federal employees’ right to explicitly criticize the policies of the EPA in presentations sponsored by environmental community groups.
The EPA “chilled” Sanjour’s speech by warning him that his acceptance of a cost reimbursement for travelling to North Carolina to give his presentation opposing EPA’s waste incineration policies could lead to disciplinary action (which could include termination). Based on these warnings Sanjour challenged the restrictive regulation, claiming that the rule had a chilling effect on his Constitutional right to publicly criticize EPA policy.
The Court ruled in favor of Sanjour. Its holding applied “black letter” law governing freedom of speech in the context of public employment: “Government employee speech is protected by the First Amendment, and can only be infringed when the government demonstrates that the burden on such speech is ‘outweighed by [its] necessary impact on the actual operation of the government.’”
The precedent in Sanjour v. EPA allows for federal employees who plan on making public statements to seek federal court injunctions preventing future retaliation based on their First Amendment protected speech. The court’s decision safeguards the employees’ rights to speak on matters of public concern, including speech that criticizes the government.
As the Circuit Court concluded, “It is perhaps the most fundamental principle of First Amendment jurisprudence that the government may not regulate speech on the ground that it expresses a dissenting viewpoint.” Moreover, the court emphasized the importance of public learning from federal employees who can offer valuable insights on government workings. These insights are vital for informed decision-making by the electorate – upholding our democracy.
Weaver v. United States Information Agency
In a similar 1996 case, Weaver v. United States Information Agency, the D.C. Circuit established a clear precedent that federal employees can seek pre-enforcement injunctive relief to prohibit federal agencies from improperly using preclearance procedures to suppress the publication of information critical of a sitting-administration.
The case involved Carolyn Weaver, a part-time employee of the United States Information Agency (USIA). She published an article in the Columbia Journalism Review critical of Voice of America (VOA) editorial policies. The VOA is a unit of USIA/Department of State. Weaver had submitted the article without pre-publication review and was consequently admonished by the agency.
Weaver challenged the pre-publication review procedure on the grounds of the First Amendment. Significantly, the D.C. Circuit recognized that the “circuit’s law affords employees in Weaver’s position a right to federal court review of their constitutional claims.”
In Weaver the Court held that an employee may be required to submit an article for review, but only for legitimate purposes (such as ensuring that classified information is not revealed). But of critical importance, it also held that federal agencies were prohibited from preventing the publication of articles simply because they were critical of the government. The court upheld the VOA procedures in large part because the agency explained that an employee could not be disciplined for publishing articles based on its content or viewpoint being critical of their agency, even if the agency failed to approve the article for publication.
Of course, an employee could still be disciplined for not providing a required “disclaimer” stating that the views in the article were his or her personal opinions, or if the article in fact illegally revealed classified information. But articles like those published by the VOA employee in Weaver or the VA employees in the New England Journal of Medicine would unquestionably be exempt from any such limitations. Moreover, any threat to take disciplinary action against employees who published articles that were disapproved for release could have a chilling effect on federal workers’ rights to freedom of speech. Consequently, these types of threats could also be subject to challenge in federal court.
In other words, the key finding in Weaver is that public servants can seek pre-enforcement injunctive relief in the federal court based on the potential chilling effect of the government’s pre-publication regulations, or for threatening adverse actions, or for taking action against an employee who published an article despite the government’s decision to disapprove publication.
Applying the Pickering Standard
Both the Sanjour and Weaver cases reaffirmed the landmark public employee free speech case of Pickering v. Board of Education. In that case, a teacher was fired for publishing a letter to the editor critical of his school board’s funding priorities. The Supreme Court ordered that the teacher be reinstated and affirmed the rights of public employees to engage in Constitutionally protected speech.
The Pickering Court explained that public employees, such as the VA scientists, are in a critical position to inform the public of information vital to an informed electorate and the functioning of a democracy. The Court held:
[T]he question whether . . . additional funds [are needed] is a matter of legitimate public concern on which the judgment of the . . . administration, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question free and open debate is vital to informed decision-making by the electorate. [Public employees] are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of [government programs] should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.
The circumstances the VA employees found themselves in bear a striking resemblance to those that faced the school teacher in Pickering. If tested in court the outcome of these two cases should be the same: vindication of the First Amendment and the public’s right to know.
Conclusion
The cases from the 1990s highlight the importance of freedom of speech protections for federal employees. A public employer cannot threaten constitutionally protected speech of a government employee, if that speech is given on their own time, and relates to matters of “public concern.” Such threats may indeed be unconstitutional and can be challenged for injunctive relief.
Federal employees, including VA scientists, are protected by the First Amendment, and any rule, regulation, or threat by the government to stifle their report may violate their Constitutional rights. Employees who work for the federal government do not surrender their First Amendment rights when they take a government job.
Employees who seek to speak or publish articles critical of their federal agency should carefully review the Sanjour and Weaver cases (and other similar cases). They should also seek counsel to ensure that they comply with rules that do not violate their Constitutional rights.
The American people have a right to hear from federal employees. They have a right to learn about problems within the federal government that impact the health and safety of the American people. Veterans have a right to learn from employees working for the VA if they are being harmed by government practices or policies.

Top Five Labor Law Developments for May 2025

The U.S. Supreme Court granted the Trump Administration’s application to stay former National Labor Relations Board Member Gwynne Wilcox’s reinstatement. Trump, et al. v. Wilcox, et al., No. 24A966 (May 22, 2025). The U.S. Court of Appeals for the D.C. Circuit had previously enjoined President Donald Trump’s removal of Wilcox, citing the Supreme Court’s 1935 decision in Humphrey’s Executor that upheld the constitutionality of for-cause removal protections for federal agency leaders. The Trump Administration then filed an emergency application to the Court for a stay of the D.C. Circuit’s order, arguing subsequent case law narrowed Humphrey’s Executor to apply only to multi-member agencies that do not wield substantial executive power, making the case inapplicable to the Board. In granting the stay, the Supreme Court found the Trump Administration is likely to show that Board members exercise considerable executive power, but the Court did not decide whether the Board falls within recognized exceptions for removal protections. The 6-3 order aims to avoid the disruptive effect of Wilcox’s repeated removal and reinstatement while the D.C. Circuit decides the merits of the case.
A coalition of unions, nonprofit groups, and local governments requested that a California federal court issue a nationwide injunction to stop an executive order (EO) requiring federal agencies to downsize or reorganize. American Federation of Government Employees, AFL-CIO, et al. v. Trump, et al., No. 3:25-cv-03698 (N.D. Cal. May 14, 2025); National Nurses United, et al. v. Kennedy, Jr., No. 1:25-cv-01538 (D.D.C. May 14, 2025). The lawsuit stems from EO 14210 aiming to reduce the size of the federal government’s workforce and directing each agency head to work with the Department of Government Efficiency on hiring plans. The coalition, which includes national unions and municipalities, argues the EO violates the U.S. Constitution’s separation of powers and the Administrative Procedure Act. Although the court previously granted a temporary restraining order, the coalition argues a nationwide injunction against the federal agencies is appropriate to avoid “piecemeal” litigation. Similarly, in a separate lawsuit, a coalition of unions, including National Nurses United, is seeking an injunction to stop the Department of Health and Human Services from implementing staff cuts at the National Institute for Occupational Safety and Health.
A Kentucky federal judge ruled the U.S. Department of Treasury lacks standing to rescind its collective bargaining agreement with employees, while the U.S. Department of Defense (DoD) is seeking to confirm its right to terminate them. U.S. Department of Treasury v. National Treasury Employees Union, Chapter 73, No. 2:25-049 (E.D. Ky. May 20, 2025); U.S. Department of Defense, et al. v. American Federation of Government Employees AFL-CIO District 10, et al., No. 6:25-cv-00119 (W.D. Tex. May 5, 2025). The lawsuits stem from EO 14251, which exempts certain agencies from the Federal Service Labor-Management Relations Statute that provides organizing and collective bargaining protections for federal employees. The federal court dismissed the action based on the Treasury’s lack of standing, as it had not enforced the EO against the local union at the time of filing. The court emphasized that the Treasury’s claimed injuries were speculative and, therefore, did not address the merits of the case. In a separate lawsuit in a Texas federal court, the DoD and other federal agencies are seeking declaratory relief against several union affiliates to confirm their rights under the EO. The unions have also moved to dismiss the case based on standing, among other claims.
The Nevada legislature passed a bill banning mandatory captive audience meetings; Washington will now provide unemployment benefits for striking workers. If signed by the governor, the Nevada legislation will prohibit employers from taking any adverse employment action against employees who decline to attend or participate in a meeting “sponsored by the employer” or listen to an employer communication if its purpose is to communicate the employer’s opinion on religious or political matters. Many states have similar legislation, and the Biden Board issued a decision holding such meetings violative of the National Labor Relations Act. Under the bill, “political matters” includes the decision to join or support any labor organization. Meanwhile, Washington’s governor signed a bill that provides unemployment benefits for striking workers under certain circumstances. The Washington law will take effect Jan. 1, 2026.
Acting General Counsel William Cowen issued a memorandum emphasizing the need for efficiency in resolving unfair labor practice (ULP) cases. Memorandum GC 25-06. The memorandum’s key points include granting discretion to exclude default language in settlements, permitting non-admission clauses, authorizing unilateral settlements, and approving settlements for less than full remedies. The memo also addresses the Board’s 2022 Thryv, Inc. decision, which expanded the scope of remedies for ULPs, noting regional directors should “focus on addressing foreseeable harms that are clearly caused by the unfair labor practice.” The memo represents a shift in policy from former General Counsel Jennifer Abruzzo and provides updated guidance on settlement efforts following Cowen’s previous memo rescinding several of Abruzzo’s memos and enforcement priorities.

Dubai Court of Appeal Annuls Anti-Suit Injunction Issued in ICC Arbitration Proceedings

Introduction
In a recent decision, the Dubai Court of Appeal (Court of Appeal) in Case No. 8 of 2025 (issued on 28 April 2025) annulled an interim award, issued by an arbitral tribunal in an ongoing International Chamber of Commerce (ICC) arbitration, which prohibited the respondent from filing proceedings before any court. The Court of Appeal held that arbitration proceedings cannot suspend or override a party’s constitutional right to access the courts unless expressly permitted by law, and the anti-suit injunction issued by the arbitral tribunal did not qualify as a valid interim or precautionary measure under the laws of the United Arab Emirates (UAE).
Background
The arbitral tribunal in an ICC arbitration, seated in Dubai, issued an interim award preventing the respondent in the arbitration from filing any claim before any court with respect to the matters in dispute in the arbitration. The respondent applied to the Court of Appeal to annul the award on the basis that it prevented the respondent from exercising its constitutional right to file court proceedings and that the anti-suit injunction did not constitute a valid interim or precautionary measure under Article 21 of Federal Law No. 6 of 2018 (the UAE Arbitration Law).
Although the Court of Appeal recognised the purpose of anti-suit injunctions (noting that they can be used to guarantee the effectiveness of an arbitration agreement and avoid the risk of conflicting judgments), the Court of Appeal held that the right to litigation is a constitutional right prescribed by law and that a court or arbitral tribunal cannot issue an anti-suit injunction unless the law expressly permits. As the arbitration was seated in Dubai, the applicable law was the UAE Arbitration Law. The Court of Appeal held that the UAE Arbitration Law does not permit an arbitral tribunal to issue an anti-suit injunction, and therefore, the tribunal’s interim award lacked legal basis and had to be annulled.
Analysis
Article 21 of the UAE Arbitration Law entitles an arbitral tribunal to issue interim or preventive measures as it may deem necessary. One of the permitted orders, contained in Article 21(1)(e) of the UAE Arbitration Law, is an order directing or refraining a party from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process itself. The Court of Appeal’s decision in Case No. 8 of 2025 indicates that the onshore UAE courts do not consider that an anti-suit injunction falls within the scope of this provision.
It remains to be seen whether the approach taken by the Court of Appeal in this case will be maintained by the onshore UAE courts. If followed, parties in arbitration proceedings seated in Dubai (or elsewhere in the UAE) face the prospect of being required to incur the time and cost of engaging a local advocate to file a jurisdictional objection against parallel proceedings in the onshore UAE courts on the basis of the parties’ arbitration agreement.

Stripping Down a Statute of Limitations – SCOTUS Today

The U.S. Supreme Court did not issue any merits opinions yesterday, but it did issue two orders denying cert.
One of them, Nicholson v. W.L. York, Inc., is potentially significant for litigants of discrimination claims under Section 1981 of the Civil Rights Act of 1866, 42 U. S. C. §1981 (“Section 1981”). The result of a second, in Snope v. Brown, a firearms case, might surprise some observers of the Court.
Chanel Nicholson, a strip club dancer, sued several Houston area nightclubs, claiming that they violated Section 1981 by denying her shifts on numerous occasions between 2013 and 2021 because they didn’t want “too many Black girls” working at the same time. She claimed that most of the recent acts against her occurred within the statute of limitations period, that the statute of limitations clock restarts every time there is a “discrete” act of discrimination, and that it did so each time she was sent home from a shift for discriminatory reasons. However, the U.S. Court of Appeals for the Fifth Circuit concluded that the more recent acts were just the “continued effects” of prior instances of race-based exclusion and thus were not independently actionable.
As is typical, the Supreme Court doesn’t write opinions explaining the denial of cert., but Justice Jackson, who dissented along with Justice Sotomayor, did, and her analysis might seem on point for those who have dealt with some cases alleging continuing violations of law. According to Justice Jackson:
The clubs’ policy of excluding Black dancers, if proven true, is discriminatory—but so, too, is each decision to bar a dancer from the premises because of her race. . . . If the discrete act that is the subject of the plaintiff’s discrimination complaint is itself discriminatory, and if it allegedly occurred within the statute of limitations period, then that discrimination claim is timely—full stop.
With a certain logic that many employment lawyers who follow this blog have faced, Justice Jackson concludes that “[i]f sustained discriminatory motivation is all that is required to transform recent, racially discriminatory acts into the ‘continued effects’ of earlier discriminatory conduct, then past discrimination could inexplicably prevent recovery for later, similarly unlawful conduct.”
Setting aside competing views on what is logically commanded, it is interesting to note that Justice Kagan was not a dissenter. This suggests a strong view among a significant majority of the Justices that, at least in civil rights cases, statutes of limitations should be applied literally and rigorously. In short, the decision in Nicholson provides what should be a useful tool for defense lawyers, notwithstanding that the Court did not issue a decision on the merits.
Snope v. Brown concerns the State of Maryland’s prohibition of ownership of AR-15s, the most popular civilian rifle in America. The petition addresses “the question whether this ban is consistent with the Second Amendment.” The Fourth Circuit held that AR-15s are not so protected.
Again, there is no majority opinion denying cert. However, the lineup of the Justices is interesting: Justices Thomas, Alito, and Gorsuch would have granted the petition, but that makes three, and it takes four to grant cert. However, the Chief Justice and Justice Barrett voted with the three liberals to deny the petition, and Justice Kavanaugh wrote an opinion that is not unsympathetic to the three dissenters but reaches no definitive conclusion because he believes that other cert.-worthy cases will arise that will allow the ultimate resolution of the AR-15 coverage issue.
For future reference, I note that the Kavanaugh statement proceeds from his view that millions of Americans own AR-15s and that most states allow their possession, supporting the conclusion that AR-15s are in “common use” by law-abiding citizens and therefore are protected by the Second Amendment. The ultimate resolution of the matter, assuming it occurs, will depend upon whether a majority of the Court concludes that the AR-15 is distinguishable from the M-16 automatic rifle used by the military. But that is for another day.
Yesterday was a day for dissenting opinions that may presage future cases but are not determinations on the merits. At least with respect to Section 1981 cases, a good deal of guidance can be gleaned from the Nicholson case.

New York Court of Appeals Finally Agrees to Hear Constitutional Challenges to FAPA

After years of denying review, the New York Court of Appeals — the state’s highest court — agreed to address the question of whether New York’s momentous Foreclosure Abuse Prevention Act (FAPA) applies retroactively. On May 20, 2025, the New York Court of Appeals accepted review of two (2) cases that present challenges to Section 7 of FAPA, a provision limiting mortgage lenders’ defenses against statute of limitations challenges.
Under New York law, once a mortgage lender accelerates a mortgage loan, the lender has six (6) years to foreclose on the property, otherwise the mortgage may be extinguished. Following its enactment on December 30, 2022, FAPA has severely restricted lenders’ ability to stop or reset the six (6) year clock and, as relevant here, it has prevented mortgage lenders from arguing that the clock never started in the first place. Debate has raged about whether FAPA’s rules apply retroactively, which would mean that actions taken by mortgage lenders prior to the enactment of FAPA now have a different legal effect than they did when those actions were taken. When passing FAPA, members of the New York legislature stated that the law’s purpose was to overturn judicial decisions that sanctioned the use of the foreclosure process in abusive ways. New York’s intermediate appellate courts have noted this apparent legislative intent, along with FAPA’s text to conclude that the law was intended to apply retroactively. The defendants in Van Dyke and Article 13 LLC — along with litigants in many other cases — contend that retroactive application of FAPA’s provisions are unconstitutional.
Van Dyke v. U.S. Bank, N.A.is a New York state case initiated before FAPA’s enactment. There, a borrower brought a quiet title action against a mortgage lender, seeking to have her mortgage expunged. The borrower claimed that a previously discontinued 2009 foreclosure action had started the six (6) year statute of limitations and, because the statute of limitations had since expired, the borrower’s mortgage should be expunged. The state trial court agreed with the borrower, retroactively applying FAPA and concluding that such application did not violate the U.S. Constitution or New York Constitution. The intermediate appellate court affirmed the trial court in every respect in a February 18, 2025, opinion. Now, the New York Court of Appeals will review and opine for the first time on the constitutionality of FAPA’s retroactivity.
Article 13 LLC v. Ponce de Leon Fed. Bankis also a quiet title action. This case was initiated in 2020 — before FAPA’s enactment — in the United States District Court for the Eastern District of New York. There, a junior mortgagor sought to expunge a senior mortgage on the subject property based on the theory that the senior mortgagor initiated, then discontinued, a foreclosure action in 2007. According to the junior mortgagor, this prior action accelerated the loan on the property, and the statute of limitations has since expired, thus expunging the senior mortgage. The district court originally disagreed and denied the junior mortgagor’s motion for summary judgment. But two days later, FAPA was enacted and, upon reconsideration, the district court reversed itself, applied FAPA retroactively, and expunged the senior mortgage. The senior mortgagor appealed to the Second Circuit Court of Appeals, arguing that FAPA’s retroactive application violates both the New York Constitution and U.S. Constitution. The federal appellate court concluded that the state law questions presented by the senior mortgagor were essential to deciding the appeal. It certified two questions to the New York Court of Appeals:
1. Whether, or to what extent does, Section 7 of the Foreclosure Abuse Prevention Act, codified at N.Y. C.P.L.R. § 213(4)(b), apply to foreclosure actions commenced before the statute’s enactment?
2. Whether FAPA’s retroactive application violates the right to substantive and procedural due process under the New York Constitution, N.Y. Const., art. I, § 6?

Unlike previous FAPA-related questions from the Second Circuit that the New York Court of Appeals declined to answer, the Court of Appeals agreed to answer the questions certified in Article 13 LLC.
The stage is now set for the first rulings from the New York Court of Appeals on retroactive application of FAPA. That said, while the New York Court of Appeals will have the final say on the interpretation of FAPA and its compliance with the New York Constitution, the Second Circuit Court of Appeals remains free to conclude that FAPA’s retroactive application violates the U.S. Constitution.
The outcome of these cases will have a significant impact on foreclosure litigation and mortgage servicing operations in New York. We will continue to monitor FAPA litigation in New York and provide updates as soon as the Court of Appeals issues a ruling.
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Oregon Federal Judge Strikes Down State Law Requiring Labor Peace Agreements for Cannabis Licensure and Certification – OLCC Will No Longer Enforce State Requirement

On Tuesday May 20, 2025, U.S. District Judge for the District of Oregon, Michael H. Simon issued a decision in Casala LLC, d/b/a Bubble’s Hash and Rec Rehab Consulting LLC, d/b/a Ascend Dispensary v. Tina Kotek, in her official capacity as Governor of the State of Oregon, et al., Case No. 3:25-cv-244-SI (D.Or. May 20, 2025), striking down Oregon’s United for Cannabis Workers Act and holding that the law is preempted by the National Labor Relations Act (“NLRA”) in violation of the Supremacy Clause and the First Amendment of the United States Constitution.
Shortly after Oregon’s United for Cannabis Workers Act took effect, two cannabis employers Bubble’s Hash and Ascend Dispensary (collectively, “Plaintiffs”), filed suit for declaratory and injunctive relief, and sought a permanent injunction to enjoin the Oregon Governor, Oregon Attorney General, Chair of the Oregon Liquor and Cannabis Commission (“OLCC”), and Executive Director of the OLCC (collectively, “Defendants”), from enforcing the United for Cannabis Workers Act against them.
Plaintiffs alleged that the law: (1) was preempted by the NLRA and its enforcement would be in violation of the Supremacy Clause of the United States Constitution; (2) was void for vagueness in violation of the Due Process Clause of the United States Constitution; (3) abridged Plaintiffs’ freedom of speech in violation of the First Amendment, as made applicable to the States by the Fourteenth Amendment; (4) infringed on Plaintiffs’ right to equal protection in violation of the Fourteenth Amendment; and (5) disrupts Plaintiffs’ contractual arrangements in violation of the Contract Clause of the United States Constitution.
Following hearing argument on the merits, the Court granted Plaintiffs’ requested declaratory and permanent injunctive relief, concluding that the law was preempted by the NLRA, violated the Supremacy Clause and violated Plaintiffs’ First Amendment rights, and that the requirements for permanent injunctive relief were satisfied. With this decision, the Oregon District Court became the first U.S. District Court to strike down a state law that required cannabis employers to enter into labor peace agreements in order to receive or renew a license to sell cannabis.
On May 29, the OLCC issued the following statement concerning Judge Simon’s May 20 decision: “Earlier this month, a federal judge issued a ruling barring the enforcement of Ballot Measure 119. Given this ruling and in consultation with the Oregon Department of Justice, the OLCC will no longer require labor peace agreements as part of cannabis license application and license renewals.”
United for Cannabis Workers Act
The United for Cannabis Workers Act was passed by an initiative approved by Oregon voters in November 2024 as Ballot Measure 119 (“Measure 119”) and took effect December 5, 2024. Measure 119 requires businesses licensed to sell or process cannabis to enter into labor peace agreements with labor organizations or sign an attestation affirming that the business has entered into such agreement. The businesses must submit such agreements or attestations with their applications for a license, certification of renewal of a license, or certification to dispense cannabis. Oregon law defines a “labor peace agreement” (“LPA”) as “an agreement under which, at a minimum, an applicant or licensee agrees to remain neutral with respect to a bona fide labor organization’s representatives communicating with the employees of the applicant or the licensee about the rights afforded to such employees.
Plaintiffs had both been unable to enter into LPAs at the time of filing.
The District Court’s Decision
As an initial issue, the Court determined that the NLRA likely applied to cannabis businesses and does not limit its jurisdiction to “lawful commerce” or “legal substance” as some other federal laws do. Judge Simon pointed out that the National Labor Relations Board (“NLRB”) has issued advisory memoranda back to 2013 which stated that the medical marijuana industry is within the NLRB’s jurisdiction if the business meets the NLRA’s jurisdictional monetary requirements.
The Court determined that Measure 119 is preempted by the NLRA under Garmon preemption because it does not distinguish between permissible employer speech and threatening or coercive speech and thus impermissibly conditions a state license on an employer “refraining from conduct protected by federal labor law,” which “chills one side of the ‘robust debate which has been protected under the NLRA.’” In other words, Measure 119 chills an employer’s right to speech under section 8(c).
In terms of Machinist preemption, the Court held that by seeking to regulate and forbid certain truthful, non-deceptive, non-coercive speech about unionization and by conditioning license renewal on signing an LPA, Measure 119 sought to regulate the relationship between unions and employers, upsetting the balance Congress struck in passing the NLRA. Thus, it is preempted under Machinist preemption.
With respect to the First Amendment, the Court determined that because Measure 119 requires Plaintiffs to remain neutral with respect to labor organization’s representatives communicating with employees of the applicant or licensee and does not limit its restrictions to only threatening, coercive, false, or misleading speech, it violates Plaintiffs’ First Amendment rights to free speech.
Other States With Similar Labor Peace Agreement Requirements
While not binding on other courts outside of Oregon, given that the decision is the first to strike down a law that requires LPAs for licensure, the decision is likely to be utilized by cannabis businesses in other states with similar requirements, such as California, Rhode Island, New York, New Jersey, Connecticut, and Delaware, among others.[1]
The decision acknowledged and Defendants cited to a recent decision analyzing the California version of Measure 119, the Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”) Ctrl Alt Destroy v. Elliott, 2025 WL 790963 at *7 n.8 (S.D. Cal. Mar 12, 2025) which held that Garmon preemption did not apply because of the local responsibility exception. Judge Simon rejected this conclusion of Ctrl Alt Destroy, pointing out that Measure 119 and MAUCRSA regulate only labor relations of cannabis businesses and do not regulate the sale or use of cannabis. Similarly, Judge Simon rejected the conclusion from the Ctrl Alt Destroy decision on Machinists preemption. Judge Simon reasoned that Machinists preemption seeks to protect balancing only in the labor relations context, not to regulation of the underlying market. Thus, Measure 119 regulates an area that Congress intended to leave to the free play of economic forces.
Takeaways
The OLCC will no longer require labor peace agreements as part of cannabis license application and license renewals in Oregon.
Employers seeking to challenge similar state LPA licensure requirements in other states are encouraged to speak with experienced labor counsel to discuss their options. We will continue to monitor similar challenges as they are filed, and provide additional updates.

FOOTNOTES
[1] Additionally, states including Illinois and Pennsylvania grant preferential treatment to businesses with LPAs when applying for licensure.
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Federal Court Strikes Down IEEPA Tariffs

On May 28, 2025, a three-judge panel of the U.S. Court of International Trade (CIT) unanimously struck down the extensive tariffs imposed by President Trump under the International Emergency Economic Powers Act (IEEPA). The CIT held that the imposition of the tariffs exceeded the authority granted to the President by Congress under IEEPA. The Court issued a permanent injunction blocking the administration from enforcing the IEEPA tariffs, and ordered the administration to issue the necessary administrative orders within 10 days to end them.
The affected tariffs are the 10% tariff on goods of most countries (referred to by the Court as the Worldwide and Retaliatory Tariffs), the 25% border tariffs on goods of Canada and Mexico in response to the illicit drug trade, and the 20% tariff on goods of China (together referred to by the Court as the Trafficking Tariffs). The affected Executive Orders (EOs) are as follows: 14257,[i] 14259,[ii] 14266,[iii] and 14298.[iv]
The government has appealed the case to the U.S. Court of Appeals for the Federal Circuit.
The CIT’s Ruling
In its opinion, the CIT emphasized that the U.S. Constitution expressly assigns the power to impose tariffs to Congress under Article I, Section 8, Clause 1, and that any grant of authority by Congress to the president to impose tariffs must be construed narrowly.
The Court held that IEEPA does not allow the Executive Branch to unilaterally impose tariffs without clear and bounded statutory authority. Instead, the Court read IEEPA as imposing two key limits on the tariffs:

Section 1702 of IEEPA, which permits the President to “regulate . . . importation,” must be construed narrowly. The Court examined the legislative history of this provision, which replaced a very broad grant of authority under the older Trading with the Enemy Act with a much narrower authority. The Court thus held that IEEPA does not authorize broad, unbounded tariffs like the Worldwide and Retaliatory Tariff Orders. The absence of “any identifiable limits” rendered these measures beyond the scope of the statute. Rather, the CIT determined that the Worldwide and Retaliatory Tariffs, which were imposed in response to the trade deficit, must conform within the limits of Section 122 of the Trade Act of 1974, the statutory authority that deals with remedies for balance-of payments deficits.
Section 1701(b) of IEEPA limits the President’s authority to actions that “deal with an unusual and extraordinary threat” and prohibits the use of IEEPA “for any other purpose.” The Trafficking Tariffs were implemented to encourage foreign countries to arrest or detain bad actors responsible for the flow of illicit drugs into the United States. The Court determined that the Trafficking Tariffs failed to satisfy the statutory threshold, because the tariffs do not bear a sufficient connection to the alleged threat to constitute “dealing with” the identified threat.

What’s Next
The CIT’s judgment permanently enjoined the IEEPA tariffs and ordered that within 10 days necessary administrative orders be issued to effectuate the permanent injunction.
The U.S. Department of Justice (DOJ) immediately appealed the ruling to the Federal Circuit Court of Appeals. The DOJ also submitted to the CIT a motion to stay enforcement of the judgment pending appeal. If the CIT grants the stay, the IEEPA tariffs would remain in place during the appeal.
If the CIT does not grant the stay, the DOJ will likely seek to stay the CIT’s permanent injunction in its appeal.
Importers should also note that the Trump Administration’s tariffs imposed under different statutory authorities (such as the duties on steel, aluminum, automobiles, and automobile parts issued pursuant to Section 232 of the Trade Expansion Act of 1962 and the duties on certain Chinese goods issued pursuant to Section 301 of the Trade Act of 1974) are not affected by the CIT’s ruling, and remain in effect.
We also note that even if its appeal is unsuccessful and the CIT’s order terminating the IEEPA tariffs is upheld, nothing stops the Trump Administration from pursuing more tariffs under Sections 122, 232, 301, or 338 of other relevant trade acts. We will continue to keep an eye on developments and keep you informed here.

FOOTNOTES
[i] Executive Order 14257, Regulating Imports With a Reciprocal Tariff to Rectify Trade Practices That Contribute to Large and Persistent Annual United States Goods Trade Deficits, 90 Fed. Reg. 15041 (Apr. 2, 2025).
[ii] Executive Order 14259, Amendment to Reciprocal Tariffs and Updated Duties as Applied to Low-Value Imports From the People’s Republic of China, 90 Fed. Reg. 15509 (Apr. 8, 2025).
[iii] Executive Order 14266, 90 Fed. Reg. at 15626 (raising China-specific duty rate from 84 to 125 percent effective April 10).
[iv] Executive Order 14298, Modifying Reciprocal Tariff Rates To Reflect Discussions With the People’s Republic of China, 90 Fed. Reg. 21831 (May 12, 2025).
Matthew Floyd contributed to this article

Federal Court Vacated Gender Identity Portions of EEOC Harassment Guidance: Employer Uncertainty Remains

Takeaways

A federal court in Texas vacated the gender identity portions of the EEOC’s harassment guidance.
Uncertainty remains about issues like sex-designated restrooms and personal pronouns, but employers should continue to require employees to treat everyone with respect.
Employers also should consider carefully all accommodation requests and always engage in the interactive process.

US House of Representatives Advance Unprecedented 10-Year Moratorium on State AI Laws

The US House of Representatives has advanced a proposal that would prohibit states from enforcing any AI-related laws for a decade. While facing significant procedural hurdles in the Senate, this represents the most aggressive federal attempt yet to preempt state-level AI regulation.
Proposed Moratorium Framework
On May 22, 2025, the House of Representatives narrowly passed a budget reconciliation bill containing a provision that would ban states from enforcing AI laws for ten years. This followed the May 14, 2025, House Energy and Commerce Committee vote of 29-24 along party lines to advance the budget reconciliation bill containing sweeping AI preemption language. The provision, titled “Moratorium,” states, with limited exceptions, that “no State or political subdivision thereof may enforce any law or regulation regulating artificial intelligence models, artificial intelligence systems, or automated decision systems during the 10-year period beginning on the date of the enactment of this Act.”
Scope of Impact
The moratorium would effectively prohibit state enforcement of regulations addressing:

Algorithmic bias in employment or housing decisions;
AI-generated deepfakes in political campaigns;
Automated decision-making in healthcare or insurance;
AI surveillance systems;
Transparency requirements for AI use in consumer applications; and
Data protection measures specific to AI systems.

Limited Exceptions
The proposal includes narrow exceptions for state laws that:

Remove legal impediments to AI deployment;
Streamline licensing, permitting, or zoning procedures;
Impose requirements mandated by federal law;
Apply generally applicable standards equally to AI and non-AI systems; and
Impose reasonable, cost-based fees treating AI systems comparably to other technologies.

State and Industry Response
A bipartisan group of 40 state attorneys general, including Republicans from Ohio, Tennessee, Arkansas, Utah and Virginia have opposed the measure, calling it “sweeping and wholly destructive of reasonable state efforts to prevent known harms associated with AI.”
Affected State Legislation
The moratorium would also impact numerous existing state AI laws such as:

Illinois Artificial Intelligence Video Interview Act requiring disclosure of AI use in hiring;
California SB-1001 requiring disclosure of chatbots in political campaigns;
New York City Local Law 144 addressing algorithmic accountability in employment; and
Maryland House Bill 1202 establishing AI bias auditing requirements.

Industry Perspective
Major technology companies have advocated for unified federal approaches, with OpenAI CEO Sam Altman testifying that a “patchwork” of AI regulations “would be quite burdensome and significantly impair our ability to do what we need to do.”
Procedural and Constitutional Challenges
Senate Hurdles
The moratorium faces significant obstacles in the Senate, where the “Byrd Rule” requires that budget reconciliation provisions focus primarily on budgetary rather than policy matters.
Also, some Senate Republicans are expressing skepticism about a proposed moratorium on state AI governance, arguing that states need to maintain their ability to protect consumers until Congress passes comprehensive federal legislation. Senator Marsha Blackburn (R-Tenn.) gave voice to this position by pointing to Tennessee’s recent law protecting artists from unauthorized AI use of their voices and images, asserting that states cannot halt such protective measures while awaiting federal action that would preempt state laws.
Constitutional Considerations
The proposal also raises several constitutional questions regarding Commerce Clause authority, Tenth Amendment state police powers, and due process requirements for AI systems affecting citizens.
Bipartisan House Task Force
Relatedly, the Bipartisan House Task Force Report on AI published during the 118th Congress previewed challenges with preemption: “Preemption of state AI laws by federal legislation is a tool that Congress could use to accomplish various objectives. However, federal preemption presents complex legal and policy issues that should be considered.”
Business Implications
Regulatory Uncertainty
Organizations should expect continued tension between federal and state authorities over AI governance, regardless of the ultimate outcome of this specific proposal. Even without state AI laws, AI-driven decisions remain subject to existing anti-discrimination laws, including the ADA and Title VII.
Governance Recommendations
Organizations should implement comprehensive AI governance practices including:

Bias audits across AI systems;
Robust human oversight mechanisms;
Documentation of AI decision-making processes; and
Appropriate vendor contract provisions.

International Considerations
The moratorium could also affect US competitiveness by preventing regulatory innovation that might inform international standards and reducing the democratic legitimacy of US AI governance approaches.
Looking Ahead
The proposal represents fundamental tensions between federal coordination and state-level regulatory innovation during a critical period of AI development. Whether this specific measure succeeds or fails, organizations must prepare for ongoing regulatory uncertainty while implementing strong AI governance practices.
The intersection of federal preemption efforts and rapidly evolving AI capabilities suggests continued policy volatility in this area, requiring flexible compliance frameworks that can adapt to changing requirements. Organizations should monitor both federal and state AI legislative developments while maintaining robust internal governance frameworks regardless of regulatory outcomes.
“In an ideal world, Congress would be driving the conversation forward on artificial intelligence, and their failure to lead on AI and other critical technology policy issues—like data privacy and oversight of social media—is forcing states to act,” said Colorado Attorney General Paul Weiser.
coag.gov/…

The First Amendment, Front and Center – SCOTUS Today

The U.S. Supreme Court did not issue any merits opinions today, but there were two dissents from denials of cert. that merit attention, both concerning the First Amendment.
One of them has particular importance for parents interested in the rights and limits of their children’s self-expression in their schools. The other, which affects only a small group of people, is worthy of note, if for no other reason than that it is passionately and beautifully written.
The first of these cases that could not command the votes of four Justices, the number required for cert. to be granted, was L.M. v. Town of Middleborough. As Justice Alito, who was joined in dissent by Justice Thomas, asserted, the case which the dissenters believed was one “of great importance for our Nation’s youth” concerning “whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive.”
The case concerned a middle school that, according to the dissent, “permitted and indeed encouraged student expression endorsing the view that there are many genders.” The petitioner, a seventh grader, was barred from class unless he removed a t-shirt that said “There Are Only Two Genders,” and a later version where the words “Only Two” was blocked out and overwritten with “CENSORED.” When the student, through his parents, sued, claiming a violation of his First Amendment rights, the U.S. Court of Appeals for the First Circuit ruled against him, holding that the general prohibition against viewpoint-based censorship does not apply to public schools. While there was no written explanation for the majority’s denial of cert., the dissenters question its consistency with Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969).
This blog takes no position on whether the Court was justified in denying cert. as a matter of school discipline and concern for students who identify as non-binary or otherwise gender non-specific, or was, as the dissenters argue, an exercise in political correctness. Nevertheless, this latest chapter in a continuing sequence of cases concerning the application of the First Amendment in school settings is worthy of attention.
The second case that could not command four votes for cert. was Apache Stronghold v. United States, and it should be unsurprising that the primary dissenter was Justice Gorsuch, who, joined by Justice Thomas, sided with an Indian band of Western Apache. Gorsuch has always shown himself to be a strong supporter of Indian rights and interests. This case concerns a site known as Chích’il Bił Dagoteel, or Oak Flat, which the Indians consider to be sacred and a “direct corridor to the Creator,” and where the tribe conducts “religious ceremonies that cannot take place elsewhere.” While Oak Flat had long been a protected site, the government engaged a mining contractor to turn the site into what Justice Gorsuch called “a massive hole in the ground” to gain access to and extract copper. This crater—perhaps 1,000 feet deep and nearly two miles wide—will permanently “destroy the Apaches’ historical place of worship, preventing them from ever again engaging in religious exercise” at Oak Flat.
Acting on behalf of the tribe in attempting to block the destruction of their sacred site, an interest group sued under the Religious Freedom Restoration Act of 1993 (RFRA), claiming a violation of their free exercise of religion. Readers might remember RFRA, a law that prevents the federal government from “substantially burden[ing] a person’s exercise of religion,” as the centerpiece of several free exercise and establishment cases, perhaps most notably, Burwell v. Hobby Lobby Stores, Inc. The picture painted by Justice Gorsuch’s rich and poignant discussion is consigned to our memory and conscience, but no further consideration by a Court that could not summon four votes to grant certiorari.
These dissents from the denial of cert. are to be consigned to the catalog of unanswered prayers. Sometimes, those petitions are worth knowing about for the quality of their writing and their contributions to public discourse about issues of concern in a divided society.