Category: United States Supreme Court Law Review

• TikTok Inc. v. Garland & Firebaugh v. Garland (2025)

  On January 17, 2025, the United States Supreme Court released its final judgment concerning the consolidated cases TikTok Inc. v. Garland and Firebaugh v. Garland (2025), which were argued on January 10, 2025. In a per curiam decision (9-0), the Court affirmed the judgment of the United States Court of Appeals for the District of Columbia Circuit, which on December 6, 2024, stated that the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), 38 Stat. 955, did not violate the First Amendment, as it “served a significant governmental interest in protecting national security.” The legislation was deemed narrowly tailored to address legitimate concerns about foreign influence and data security risks posed by applications like TikTok with ties to adversary nations, such as China (TikTok Inc. v. Garland, 598 U.S. ___, 2025).

  *

  Parties: The petitioners in this consolidated case are: (1) TikTok Inc. and ByteDance Ltd., a technology platform and its foreign parent company; and (2) Brian Firebaugh et. al., the individual TikTok content users and creators. The respondent in this consolidated case is Merrick B. Garland, the Attorney General of the United States, and representative of the U.S. government executive authority.

  *

  Procedural Posture: Following the enactment of PAFACA in April 2024, TikTok and ByteDance filed suit in federal court, alleging the law violated the First Amendment and other constitutional protections. Individual content creators, led by Brian Firebaugh, filed a separate suit arguing the ban restricted their rights to free expression and livelihood. The District Court ruled in favor of the government, emphasizing national security concerns as a compelling interest. The U.S. Court of Appeals affirmed the decision, finding PAFCA constitutional. Ultimately, both cases were consolidated and granted certiorari by the United States Supreme Court, focusing on the interplay between free speech rights and national security concerns.

  *

  Facts: The facts considered for this case were: (1) PAFACA was passed in response to concerns over data privacy and foreign influence tied to TikTok’s Chinese ownership (ByteDance); (2) the law mandated ByteDance to divest TikTok’s U.S. operations or face a ban within the United States; (3) TikTok claimed this action was unconstitutional, arguing that it unfairly targeted the company and its users without evidence of harm; (4) individual content creators like Firebaugh contended that the ban would eliminate their primary platform for creative expression, adversely affecting their livelihoods and freedom of speech; and (5) the government justified the legislation as necessary to prevent potential misuse of user data by adversarial foreign entities, particularly China.

  *

  Question Presented: Whether the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), as applied to petitioners, violates the First Amendment of the United States Federal Constitution.

  *

  Holding: The United States Supreme Court upheld the constitutionality of PAFACA, ruling that it did not violate the First Amendment or other constitutional protections. The Court determined that the law served a significant governmental interest in protecting national security and was narrowly tailored to address this interest.

  *

  Reasoning: The Supreme Court of the United States considered: (1) a First Amendment analysis, United States v. O’Brien (1968), 392 U.S. 367; (2) the bill of attainder argument, Nixon v. Administrator of General Services (1977), 433 U.S. 425; (3) due process claims; and (4) policy of national security.

  (1) The Court applied intermediate scrutiny, recognizing that while PAFACA restricted access to a specific platform, it was content-neutral and justified by a significant governmental interest–notably, safeguarding national security–finding the law was narrowly tailored to achieve this interest without unnecessarily infringing on free speech. The precedent here refers to United States v. O’Brien (1968) which established the standard for analyzing content-neutral restrictions.

  (2) The Court rejected the claim that PAFACA was a bill of attainder, emphasizing that it did not impose punishment but was regulatory in nature, designed to mitigate security risks. the precedent here refers to Nixon v. Administrator of General Services (1977), which guided the Court in distinguishing between punitive and regulatory legislative actions. In doing so, the Court distinguished between this case and United States v. Lovett (1946), 328 U.S. 303, where legislation explicitly targeted specific individuals for punishment. Here, the Court concluded that PAFACA was a regulatory measure addressing national security concerns, not punitive legislation targeting TikTok or ByteDance.

  (3) The Court found that TikTok and ByteDance were afforded sufficient procedural safeguards, including opportunities to challenge the government’s findings. The legislation was not arbitrary, but instead based on documented concerns over data misuse and foreign influence.

  (4) The court acknowledged the balance between individual freedoms and the government’s duty to protect against evolving national security threats. The decision affirmed that laws addressing such threats must be narrowly tailored and evidence-based.

  *

  Concurring Opinion (Justice Sotomayor): Justice Sotomayor’s concurrence agreed that PAFACA implicated the First Amendment but also supported the conclusion that it survived heightened scrutiny. She disagreed with the majority approach in Part II A, arguing that the Court should not “assume without deciding” that PAFACA affects the First Amendment. Alternatively, she maintained and established precedent left “no doubt” that it does, emphasizing: (1) TikTok engages in expressive activity by compiling and curating material, which is subject to heightened First Amendment scrutiny, see Moody v. NetChoice LLC., 603 U.S. 707 (2024), Arcara v. Cloud Books Inc., 478 U.S. 697 (1986), and Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983) ; (2) PAFACA barred entities from distributing TikTok’s speech unless it went through a qualified divestiture, which imposed a burden on its expressive conduct, further restricting TikTok’s ability to collaborate with entities on its content recommendation algorithm; and (3) right to associate PAFACA affected content creators’ rights to associate with TikTok as their preferred publisher for speaking purposes, see Rumsfeld v. FAIR, 547 U.S. 47 (2006). Despite these points, Justice Sotomayor agreed that PAFACA withstood scrutiny because it served a compelling governmental interest (protecting national security) and was narrowly tailored to achieve that goal.

  *

  Concurring Opinion (Justice Gorsuch): Justice Gorsuch concurred in the judgment, agreeing that PAFACA survived constitutional scrutiny, however, he based his concurrence on a narrower interpretation of TikTok’s First Amendment claims and a strong deference to Congress’s national security determinations. He emphasized: (1) while U.S. jurisprudence recognizes some First Amendment protections for U.S.-based corporations, those protections may not fully extend to foreign-owned entities operating in the United States, especially where national security is implicated; (2) Congress, with access to classified intelligence and expertise, is better equipped to assess the risks posed by foreign entities like TikTok, cautioning against courts second-guessing legislative determinations in this context; (3) PAFACA is a content-neutral law, targeting TikTok not because of the content on its platform but because of its ownership structure and potential ties to a foreign adversary, arguing this distinction placed PAFACA squarely within Congress’s regulatory authority; and (5) concern about setting a precedent that could extend constitutional protections too broadly to foreign-owned corporations, potentially undermining the government’s ability to safeguard national security.

  January 17, 2025

  Administrative Law, Bill of Attainder Clause, Constitutional Law, Fifth Amendment, First Amendment, National Security Law, United States Supreme Court Law Review

  ---

• NVIDIA v. E. Ohman J:or Fonder AB (2024)

  On December 11, 2024, the Supreme Court published their judicial opinion concerning the NVIDIA Corporation, et al. v. E. Ohman J:or Fonder AB, et al. (2024) case, which was argued on November 13, 2024. The Court dismissed the writ of certiorari[1] as “improvidently granted,” which is a relatively rare procedural outcome. When the Court dismisses a certiorari grant in this manner, it typically means that after reviewing the case, the Justices determined that it was not appropriate or necessary to resolve the legal questions presented, or that there were other factors (such as changed circumstances or issues of standing) that made it unwise to proceed.

  The per curiam opinion (an unsigned opinion that does not identify individual Justices as authors) does not provide any detailed explanation, which is often the case when the Court dismisses certiorari. However, such a decision leaves the lower court’s ruling intact, without offering any broader legal guidance or interpretation of the issues. In this case, the dismissal as “improvidently granted” means that the Ninth Circuit’s decision remains the law of the case, and the Supreme Court will not be addressing the substantive legal questions raised in the petition.

  Reflection 1: The Supreme Court’s decision to dismiss the writ of certiorari as “improvidently granted” in NVIDIA Corporation v. E. Ohman J:or Fonder AB carries significant implications for the parties involved: (1) it affirms the lower court’s decision and (2) there is no precedential effect from the Supreme Court.

  When the Supreme Court dismisses a writ as improvidently granted, it effectively leaves the ruling of the lower court (in this case, the Ninth Circuit) intact. For NVIDIA and the other petitioners, this means that whatever legal outcome was reached in the Ninth Circuit will stand. If the Ninth Circuit had ruled against NVIDIA, this result would remain in place.

  Because the Supreme Court did not issue a substantive opinion, the case will not contribute to the development of federal law. This is particularly important in areas where a clear and authoritative decision from the highest court could clarify or resolve legal uncertainty. Instead, the Ninth Circuit’s decision will be the final word on the matter, unless another court or the Supreme Court later takes up a similar issue.

  Reflection 2: What is the legal significance of a “dismissed as improvidently granted” ruling? Limited explanation and unresolved legal issues. Although the Court’s per curiam opinion provides no specific reasoning or details for the dismissal–leaving the legal community and litigants with little insight into why the Justices chose not to pursue the case–this kind of dismissal is usually a sign that the Court believes the case was not suitable for review after initial consideration. By declining to hear the case, the Supreme Court avoids addressing any underlying legal issues that might have had far-reaching consequences if it had ruled on them. The Court’s decision may suggest that the legal issues presented were either not ripe for review, did not present a significant enough question of federal law, or were inadequately framed for the Court to make a meaningful decision.

  For legal practitioners and the parties involved, this leaves unresolved questions that may require further litigation or may remain uncertain in future cases, encouraging greater reliance on lower court decisions and increasing uncertainty. Since the Supreme Court declined to take the case, it signals that the lower court’s decisions may continue to stand as the final word on the issues presented in the case. Litigants in similar situations will have to rely on the Ninth Circuit’s decision and may look to it as guidance, even though the Supreme Court did not issue an authoritative ruling. For the legal community, a dismissal of certiorari may add a layer of uncertainty, especially in cases involving complex or high-profile issues. The fact that the Supreme Court did not provide an opinion means there is no official guidance on how to interpret certain legal questions. This leaves room for variability in the application of the law in other jurisdictions or in future cases, depending on the lower courts’ interpretations of the same issues.

  Reflection 3: Why would the Supreme Court dismiss certiorari as improvidently granted? My guess is: (1) it would be an inappropriate case for review; (2) there are jurisdictional or procedural issues; or (3) there was a change of circumstances.

  One reason the Court might dismiss a case as “improvidently granted” is that, upon closer review, the case is seen as an inappropriate vehicle for addressing the legal issues at stake. Perhaps the facts of the case were not sufficiently developed, or the legal questions were not as significant or pressing as initially thought.

  The dismissal could also reflect concerns about jurisdiction, standing, or procedural issues that were not initially apparent. In some cases, the Court may grant certiorari based on a perception that the issues are important, only to later conclude that the case is not ripe for review or does not involve the kind of federal question that warrants Supreme Court intervention.

  Sometimes, certiorari is dismissed after new developments or settlement negotiations make it clear that a judicial resolution is no longer necessary. If the parties have reached an agreement or if the legal issue has been rendered moot, the Court may decide not to proceed with the case.

  Reflection 4: What are the broader implications for future cases? A dismissal as “improvidently granted” does not create binding precedent, meaning that this case will not guide future decisions, even though the legal issue raised by NVIDIA and its opponents might recur in other cases. The decision leaves the lower court’s ruling intact but doesn’t settle the larger legal questions for the broader public or legal system.

  Parties seeking to bring cases before the Supreme Court may take note of the fact that the Court is selective in its decision-making and may be more cautious about granting certiorari. In future cases, petitioners may attempt to frame their issues more precisely or to ensure that the case presents an issue of national significance to maximize their chances of a grant.

  Conclusion: The decision to dismiss certiorari as improvidently granted in this case indicates that the Supreme Court has chosen not to address the legal issues in question, leaving the Ninth Circuit’s decision to stand. While this outcome has immediate consequences for the litigants involved, it also sends a message to the legal community about the Court’s selectivity and its reluctance to take on cases that may not be appropriately framed or ripe for review. The legal uncertainty surrounding the case remains, and other courts or future petitions may be necessary to provide clarity on the unresolved issues.

  ---

  [1] certiorari (sər-sh[ee]ə-rahr-ee or –rer-ee or –rer–I). [Latin ‘‘to be informed’’] An extraordinary writ issued by an appellate court, at its discretion, directing a lower court to deliver the record in the case for review. • Certiorari is used by the U.S. Supreme Court to review most of the cases it decides to hear.—Abbr. cert.—Also termed writ of certiorari. Black’s Law Dictionary, 12^th Ed.

  December 11, 2024

  23–970, Argument Session: 04 – 13 November 2024

  ---

• Bouarfa v. Mayorkas, Secretary of Homeland Security, et al. (2024)

  On December 10, 2024, the Unites States Supreme Court decided the Bouarfa v. Mayorkas (2024) case that was argued on October 15, 2024. The question presented was whether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of non-discretionary criteria. The question addressed was whether revocation under 8 U. S. C. §1155 qualifies as a decision “in the discretion of ” the Secretary such that it falls within the purview of a separate statute—§1252(a)(2)(B)(ii)—that strips federal courts of jurisdiction to review certain discretionary actions. Justice Jackson delivered the opinion for a unanimous Court, siding with Mayorkas, where they held that revocation of an approved visa petition under §1155 based on a sham-marriage determination by the Secretary is the kind of discretionary decision that falls within the purview of §1252(a)(2)(B)(ii), which strips federal courts of jurisdiction to review certain actions “in the discretion of ” the agency.

  Background: Amina Bouarfa, a United States citizen, began the process of obtaining permanent legal residence for Ala’a Hamayel, her noncitizen spouse, by completing a visa petition with the U.S. Citizenship and Immigration Services (USCIS). Relevant here, if USCIS determines that the facts stated in the petition are true and that the noncitizen is the petitioner’s spouse, then USCIS “shall . . . approve” a visa petition. 8 U. S. C. §1154(b). If the noncitizen has previously sought or received an immigration benefit “by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws,” the agency must deny the petition. §1154(c).

  Initially, the USCIS approved Bouarfa’s visa petition, however, two years later, the agency sent Bouarfa a Notice of Intent to Revoke its approval based on evidence suggesting that Ala’a Hamayel had previously entered into a marriage for the purpose of evading immigration laws. The Secretary of Homeland Security revoked its prior approval applying its statutory authority under §1155 to “revoke the approval of any petition” “for good and sufficient cause.” The Board of Immigration Appeals affirmed the revocation. Bouarfa challenged the agency’s revocation in federal court. The District Court dismissed the suit, holding that §1252(a)(2)(B)(ii)—a provision that strips federal courts of jurisdiction to review certain discretionary agency decisions—barred judicial review of the agency’s revocation. The United States Court of Appeals for the Eleventh Circuit affirmed.

  Reasoning: The Supreme Court highlighted two key points: (a) the discretionary nature of §1155 and (b) Bouarfa’s argument against the discretionary nature of revocation and its rejection by the Court.

  Concerning the discretionary nature of §1155, Section 1155 grants the Secretary of Homeland Security the authority to revoke an approved visa petition “at any time” for what the Secretary deems to be “good and sufficient cause.” The Court emphasized that the language of the statute uses the word “may,” which clearly indicates discretion rather than a mandatory action. The Court found that §1155 is a quintessential grant of discretion, similar to other statutes that give broad authority to administrative agencies. In this case, the absence of any limitations or specific criteria imposed by Congress meant that the Secretary had significant leeway in deciding whether to revoke a visa petition.Contextual analysis of related provisions further supported the conclusion that the decision under § 1155 was discretionary. For instance, §1252(a)(2)(B)(i) bars judicial review of certain decisions by the Attorney General, and §1155 contains similar language regarding discretion. This reinforced the Court’s view that the revocation decision falls within the scope of §1252(a)(2)(B)(ii).

  Concerning Bouarfa’s argument against the discretionary nature of revocation, Bouarfa contended that the revocation was not discretionary, arguing that once the Secretary approves a visa petition, the Secretary must revoke the approval if it is later determined that the beneficiary had entered into a sham marriage. The Court rejected this argument for several reasons: (1) the text of §1154(c) does not create an ongoing duty for the agency to reassess approval; (2) Congress did not mandate revocation upon discovery of a sham marriage; and (3) precedent does not support Bouarfa’s Interpretation.

  First, the Court clarified that §1154(c), which bars approval of petitions in cases of sham marriages, does not impose an ongoing responsibility on the agency to continually reassess its initial decisions. §1154(c) applies only at the time of approval, and the agency is not required to revisit its past decisions unless new information arises. The Court explained that each stage of the visa process has its own criteria, and §1155 specifically grants the Secretary discretion to revoke approval if new, sufficient evidence emerges, such as the discovery of a sham marriage.

  Second, the Court also rejected Bouarfa’s assertion that the Secretary is required to revoke a petition whenever a sham marriage is discovered. The Court emphasized that §1252(a)(2)(B)(ii) does not make judicial review contingent on how the agency acts in practice, but rather on whether the statute grants discretionary authority. Since §1155 provides the Secretary with discretionary authority to revoke a visa petition, this discretion is not limited by any presumed mandate to revoke upon discovering a sham marriage. The Court pointed out that Congress likely designed the system such that a sham-marriage determination may be subject to judicial review when a visa petition is denied but not when a prior approval is revoked. This distinction reflects Congress’s choice to provide reduced procedural protections for discretionary agency decisions.

  Third, the Court further explained that previous precedent, such as Patel v. Garland (2022), does not support Bouarfa’s argument. In Patel, the Court dealt with discretionary decisions that involved specific thresholds, but §1155 does not impose such thresholds. Instead, it provides a broad grant of discretion to the Secretary to revoke a petition without additional procedural conditions. The Court reaffirmed that judicial review of agency action may be limited by “clear and convincing evidence” of congressional intent to preclude it, and in this case, the statute’s language was clear enough to overcome any presumption in favor of judicial review.

  Reflection: What implications does the outcome of Bouarfa v. Mayorkas have for international marriages, specifically those between a U.S. citizen and a non-U.S. citizen? In short, this case reinforces the discretionary power of U.S. immigration agencies, particularly USCIS and the Secretary of Homeland Security, in deciding whether to revoke visa petitions based on the discovery of sham marriages. For international marriages, this decision means that visa petitions can be revoked at any time based on new evidence of fraud, and judicial review of these revocations is extremely limited. Couples need to be aware of the potential for increased scrutiny and documentation requirements throughout the immigration process, as well as the reduced legal recourse available if a visa petition is revoked.

  Conclusion: The key points to take away are: (1) The U.S. government has the discretionary power to revoke a previously approved visa petition if evidence of a sham marriage is discovered. This power is granted under 8 U.S.C. §1155, which allows the Secretary of Homeland Security to revoke approval “for good and sufficient cause” at any time; (2) The ruling affirms that federal courts cannot review the decision to revoke a visa petition based on a sham-marriage determination, due to the jurisdictional bar in 8 U.S.C. §1252(a)(2)(B)(ii), which restricts judicial review of discretionary decisions made by immigration authorities; (3) The decision places increased, or heightened, scrutiny on the legitimacy of marriages in the immigration process. Noncitizen spouses will need to prove that their marriage is genuine and not entered into for the purpose of evading immigration laws; (4) The revocation of a visa petition can block or delay the noncitizen spouse’s path to permanent residency. This can potentially prevent them from progressing in the green card application process; (5) The ruling signals that immigration agencies may conduct more rigorous investigations into marriage-based visa petitions. The government has broad discretion to revoke petitions and is not bound by strict procedural rules, making it easier for authorities to act based on suspicions of fraud; and (6) International couples must be prepared to provide comprehensive documentation of their genuine relationship, such as joint financial records and shared experiences, to prevent their marriage from being flagged as fraudulent by immigration authorities.

  December 10, 2024

  23-583, Argument Session: 07 – 16 October 2024

  ---

• United States Supreme Court

  This article serves as a test to the banuelos.estate website I am building. In it, I will share what I learn about the law, as I learn it. When I think of the law, as an American, my mind goest directly to the United States Supreme Court. I learned to read transcripts, listen to oral arguments, and read the judicial opinions that come from these arguments. I am not: (1) an attorney; (2) a law school graduate; or (3) a law school student.

  With that said, I am interested in what our 9 Justices have to say, since this is the highest court in the United States. What you read on banuelos.estate is my opinion, not to be confused with legal advice. If you need legal assistance, seek out a licensed attorney in the jurisdiction that pertains to you. My hope in writing this is that you stay informed on what the law is and how to verify it for yourself.

  In a time where legacy media provides us with news updates, critical analysis skills are rare. I will walk you through my research method process: (1) citation; (2) case overview; (3) judicial opinion review; and (4) reflection. Each post will include these four elements. While this information is publicly available, apart from my reflections, the average individual without a legal background might not know how to obtain it. I encourage anyone interested in the Supreme Court to listen to the oral arguments, read the transcripts and the judicial opinions for themselves.

  December 5, 2024

  United States Supreme Court Law Review

  ---