The Supreme Court’s Systemic Failure to Recognize the Rights of Children Is Glaring in the Chiles Decision

In American law, whether judicial or legislative, children are often treated as the backdrop and ignored when decisions are made, even when those decisions directly target them. They are rarely treated as independent actors with fundamental constitutional rights in society. Instead, children’s rights are either subordinated to adults’ rights or disappear into “parental rights” — in essence, the ancient legal doctrine of coverture (termination of independent legal rights upon marriage), as increasingly applied to children. The Supreme Court’s recent decision in Chiles v. Salazar is the latest in a long line of cases where the subordination of children’s rights is on full display.

Colorado Protected Kids, The Court Protected Counselors

Colorado’s law, the Minor Conversion Therapy Law (HB 19-1129) (2019), did exactly what state child protection law is supposed to do when it comes to substandard medical care: it prohibited licensed mental health professionals from using “conversion therapy” to treat minors. To date, Colorado’s position on prohibition is shared by:

  • 23 States and the District of Columbia (an additional 4 states and a territory restrict the practice without banning it)
  • The American Psychological Association (APA)
  • The American Academy of Child and Adolescent Psychiatry
  • The American Academy of Pediatrics
  • The American Counseling Association (most relevant to plaintiff Kaley Chiles)

…and every other major medical and scientific body in the country, which join in recognizing that “conversion therapy” is ineffective, harmful, and often outright dangerous. In 2020, an expert special report to the United Nations found that such practices are cruel, inhumane, and degrading, and called for a global ban.

Colorado adopted its law in direct response to mounting evidence linking “conversion therapy” to increased depression, anxiety, suicidal ideation, and suicide attempts among young people. At the same time, as counsel for Colorado noted at the Chiles v. Salazar oral argument, no evidence of any benefit of this “therapy” has surfaced at any time in the litigation.

Yet, in an 8-1 decision written by Justice Gorsuch, the Supreme Court ruled that Colorado’s law is presumptively unconstitutional as applied to licensed counselor Kaley Chiles, who uses talk therapy to try to change LGBTQ+ kids. On remand, Colorado must meet strict scrutiny—frequently “strict in theory, fatal in fact”—to successfully defend its law.

Not one justice in the majority spent meaningful time on the rights of the child – or the presence or absence of meaningful consent to such “therapy” on that child’s part. Parental consent to “conversion therapy” doesn’t come close to any kind of voluntariness or full and informed consent by a child. Justice Jackson, the sole dissenter, stood alone in directing her attention to children’s rights in her opinion.

The Standing Gap

Part of this failure is structural. The procedural architecture of American litigation is poorly designed for vindicating children’s rights. When Chiles sued to challenge a law protecting minors from a harmful practice, the children who would be harmed by the law’s repeal were not parties to the case.

Children’s interests got translated into the state’s interest in “protecting public health” and “regulating medical practice” – a legitimate interest under constitutional doctrine, but a diluted one that is weighed against the plaintiff’s rights. And if the plaintiff’s rights are construed as fundamental, the weight of that state interest is relatively inconsequential.

Running further under the surface is another significant problem created by the majority’s chosen framing: the “voluntary” nature of the “conversion therapy” is found only in the implied consent of the parent, not the child as patient. The Court missed an opportunity to probe this question of “consent” and who was meaningfully in a position to give it in these situations, an inquiry that could have exposed and accentuated the very real danger to children.

The majority also missed other important interests weighing against the plaintiff’s rights, including the fundamental interest of children in receiving medical care that protects their health and well-being and the state’s corresponding parens patriae interest in protecting children’s best interests and safety. Ignoring these two important fundamental interests had enormous consequences. The specific and documented harms of “conversion therapy” become little more than abstractions.

The Court never directly weighed the best interests of minors, who are often brought to such an appointment against their will and even full understanding, in avoiding the psychological damage and harm of “conversion therapy.”

“The First Amendment Is No Word Game,” Except When It Is

All three opinions in the case agree that Colorado’s law permits therapists to express one viewpoint on the minority sexual orientation and gender identity of minors (affirmation and acceptance) while forbidding the expression of another viewpoint (that a client’s sexual orientation and/or gender identity should or can change). As Justice Jackson makes clear, this is irrelevant: “a standards-based healthcare scheme cannot function unless its regulators are permitted to choose sides.”

Licensed professionals have the same rights as anyone else in the marketplace of ideas. But Colorado’s law is not aimed at their speech as speech. It targets a “treatment” that the medical community, including the counseling community, has determined causes harm to minors. The fact that the treatment is administered through words rather than instruments is—or should be—constitutionally irrelevant to that inquiry.

The majority’s answer, implicitly, is that the regulatory framing collapses once the entire “treatment” consists of words. At that point, it becomes speech, and speech in this constitutional framework is presumptively protected regardless of the professional context in which it occurs. The therapist’s right to express her viewpoint supersedes the State’s interest in holding her to a standard of care. This is absurd. It completely erases the child being subjected to grave harm.

As Justice Jackson’s dissent noted:

[M]edical providers are bound by the twin duties of beneficence (the obligation to act for the benefit of the patient) and nonmaleficence (the obligation not to harm the patient). No. 24-539, slip op. at 18 (Jackson, J., dissenting).

“Conversion therapy” violates these duties to all people, but particularly minors, who are developmentally vulnerable and prevented by law from selecting their own medical providers and courses of treatment.

What the Medical Record Shows

The record before the Court was unambiguous about the harms of “conversion therapy” when used on young people. Justice Jackson cataloged in detail the evidence that the majority chose to ignore, even though the district and appellate courts below referenced and credited abundant evidence of harm. See, e.g., Chiles v. Salazar, 116 F.4th 1178, 1216-1220 (10th Cir. 2024).

The APA has repeatedly found that documented negative effects on participants include self-reports of anger, anxiety, confusion, depression, grief, guilt, hopelessness, deteriorated family relationships, loss of social support, loss of faith, poor self-image, social isolation, suicidal ideation, self-hatred, and sexual dysfunction. Those are not side effects. They are the consistent pattern.

Survivors of conversion therapy report being more than twice as likely to have attempted suicide. Children, the research shows, experience the shame and stigma more acutely than adults, because of their “increased emotional vulnerability and less developed capacity to cope effectively.” No. 24-539, slip op. at 5 (Jackson, J., dissenting).

Amicus Mathew Shurka, a “conversion therapy” survivor, was not a collateral casualty of a communication dispute. He was a child in the care of a licensed professional whose use of “conversion therapy” caused him serious, documented harm.

The Rights the Court Never Considered

Under the UN Convention on the Rights of the Child, children hold specific rights that the Chiles majority opinion does not mention. Article 8 protects the child’s right to preserve their identity, including their gender identity and sexual orientation, without unlawful interference. Article 19 requires states to take legislative measures to protect children from all forms of physical or mental violence and abuse, including abuse inflicted by those in a position of care. Article 37 prohibits torture and inhuman or degrading treatment: protections that apply not only to state actors but to private individuals as well.

Rather than recognizing the specific harms that conversion therapy inflicts on children, the Supreme Court adopted a legal framework that treats those harms as relevant only insofar as they establish a “compelling state interest” in regulating speech. This is an adult’s rights framework that fails to acknowledge children’s existence or fundamental rights.

 Justice Jackson’s Warning

Justice Jackson, alone in dissent, understands the stakes.

[N]o core principle of our First Amendment jurisprudence leads inexorably to the conclusion that it violates the Constitution for a State to prevent its licensed talk therapists from using speech to harm the minors in their care… The Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of scalpel. No. 24-539, slip op. at 35.

The implications extend well beyond conversion therapy. Standards-based regulation of speech-delivered medical care—which includes psychiatric treatment, addiction counseling, eating disorder therapy, and countless other contexts—now faces potential strict scrutiny challenges that did not exist before. And where harm is obvious, the only remedy appears to be a malpractice lawsuit ex post. How likely is that to deter harmful talk therapies that do not meet the relevant standard of care?

The state license that patients rely on as a signal of minimum safety has been partially decoupled from the state’s power to set and enforce medical standards. A therapist who harms a patient with words now has a constitutional argument that a therapist who harms a patient with instruments does not.

Children have fundamental rights, deserving of extra respect and protection due to their developmental vulnerability and reliance on adults. They should be able to count on the state to establish basic standards that protect their health and well-being.

The Principle That Keeps Getting Lost

The pattern of ignoring the fundamental rights of minors is disturbingly the same across issues directly affecting children. When their interests enter the legal frame only as a component of the government’s interest or are present only as “covered” by the rights of their parents, they are perpetually vulnerable to being outweighed by the rights of the adults around them.

The state of Colorado did not pass its ban to suppress a viewpoint. Advocacy for “conversion therapy” remains legal under its law. Colorado legislators made this choice because licensed professionals were harming children, the children could not protect themselves, and the law exists—in part—for exactly this purpose.

The Supreme Court’s decision did not directly say that children’s safety doesn’t matter. It didn’t have to, because it simply found that the First Amendment rights of a talk therapist come first. Even when the exercise of those “rights” contravenes the standard of care governing the profession and gravely harms the children the State licenses therapists to serve.

According to Justice Jackson:

[T]o put it bluntly, the Court could be ushering in an era of unprofessional and unsafe medical care administered by effectively unsupervised healthcare providers. A state license used to mean something to the patients who entrust their care to licensed professionals[.] Id. at 33.

The sacred trust of all health care providers is to help, or at least, to do no harm and keep their patients safe. In Chiles v. Salazar, the Supreme Court elevated the First Amendment rights of practitioners above this core principle of patient care. The Court’s choice destroyed the trust that must obtain between a counselor and an LGBTQ+ child who is in need of help and healing but unable to effectively consent.

The Court’s Conversion Therapy Decision Endangers LGBTQ+ Youth

Enforcing bans on LGBTQ+ “conversion” practices against talk therapy may be unconstitutional after the Supreme Court ruled that such therapy is robustly protected under the First Amendment.

The Supreme Court held on March 31, 2026 in Chiles v. Salazar that, as applied to licensed therapists engaged solely in talk therapy, Colorado’s ban on the practice of so-called LGBTQ+ “conversion therapy” for minors was subject to strict constitutional scrutiny under the First Amendment. This difficult standard generally requires the burden on speech to be justified by a compelling government interest and burden as little speech as possible to achieve that interest.

Colorado first banned the practice of attempting to forcibly change someone's sexual orientation or gender identity, known as “conversion therapy,” in 2019. The ban includes prohibitions on physical aversion techniques, including, for instance, electroshock therapy or application of other physical stimuli designed to punish or deter same-sex attractions. But it also includes the more common practice of attempting to forcibly change someone's identity via words — words that can inflict intense and long-lasting psychological damage.

Importantly, the Supreme Court emphasized that as applied to many forms of “conversion” practices, including those that involve physical aversion, Colorado’s ban was perfectly constitutional, raising no First Amendment speech concerns.

That is, the Court did not strike down the Colorado statute in its entirety. Not at all.

Lower courts to decide

Even as to the talk therapy at issue in Chiles, the Court did not rule that the statute was unconstitutional. Rather, the Court only concluded that the statute was subject to strict constitutional review because, in the Court’s view, the statute was not targeted at professional conduct. Instead, according to the Court's interpretation, the statute could be applied to punish the content and viewpoint of a therapist’s pure speech — their spoken words — regarding sexual orientation and gender identity.

Consequently, the state of Colorado will now be required to demonstrate that the burden on speech was justified by a compelling government interest and narrowly tailored to that interest. The Court remanded to the lower courts for consideration of whether Colorado can satisfy that standard. Though, historically, the Court has recognized that laws protecting people's health and safety are quintessential compelling government interest.

So-Called “Conversion therapy” causes harm

As my research has explained, because robust medical evidence exists demonstrating that conversion practices are not effective — that is, people’s sexual orientation and gender identity are not susceptible to forced change — and cause psychological harm because they denigrate people’s identities, Colorado will be well positioned on remand to demonstrate that the statute can withstand strict scrutiny.

First Amendment as foe of LGBTQ+ rights

But make no mistake, the decision is yet another setback for LGBTQ+ rights under the Roberts Court.  It represents another example of the Court wielding an expansive conception of First Amendment doctrine to limit laws seeking to protect LGBTQ+ individuals. Whether it be cake bakers, wedding website designers, or now even health care providers carrying the imprimatur of the state in the form of a government-issued license, the Court is erecting significant barriers to protecting LGBTQ+ individuals using the First Amendment.  And there are more First Amendment disputes on the Court's horizon, including whether religious schools that accept state funds can discriminate against LGBTQ+ pupils.

The Court’s trend of finding First Amendment exceptions when anti-discrimination protections are applied to LGBTQ+ individuals goes against decades old precedent suggesting that sex and race based anti-discrimination laws do not infringe on business operators First Amendment rights and sends a message that LGBTQ+ individuals are less deserving of societal protection.

This message from the high court is particularly problematic at a time when many states are targeting LGBTQ+ people generally and transgender people specifically for regulatory oppression.

Indeed, in the year prior to the Chiles decision, the Supreme Court concluded in United States v. Skrmetti that state bans on gender-affirming care for minors were not subject to heightened scrutiny and survived rational basis review. Under such review, a law will be upheld if it is justified by any conceivably legitimate government interest. And yet, pursuant to the Court’s decision in Chiles, laws seeking to protect queer youth will now be subject to strict scrutiny if they burden a therapist’s speech.

Implications for professional regulation

The implications of the Chiles decision will reverberate beyond LGBTQ+ rights.

Many professionals, including health care providers and lawyers, are regulated via their speech. For example, lawyers can violate malpractice protections and potentially be disbarred if their legal advice – that is, their words or pure speech – is wrong and violates governing standards.  Medical providers can be held liable for their words if they communicate medical advice that goes against the standard of care.

Pursuant to the reasoning of Chiles, these kinds of professional regulations could be subject to robust First Amendment scrutiny, potentially imperiling professional regulation in a variety of contexts, including the law and medicine.

Unclear future

In short, the Court’s decision makes plain that bans on “conversion therapy” that involve physical practices — conduct — are uncontroversial and fairly subject to state regulation. But to the extent they are applied to particular viewpoints expressed through pure speech, they are subject to strict scrutiny, and could potentially be ruled unconstitutional. On remand, it may be that lower courts conclude that the weight of medical evidence and survivor testimony indicate strict scrutiny is met. But in the interim, the Supreme Court has once again indicated that LGBTQ+ anti-discrimination laws take a back seat to the expressive concerns of those opposing such rights.

Scott Skinner-Thompson is a scholar of Constitutional Law at Colorado Law School who submitted amicus briefs in support of the State of Colorado before the Supreme Court and the Tenth Circuit.

An Under the Radar Attempt to Politicize Federal Funding Needs Your Input

The attempts by the Trump Administration to implement policies aligned with their ideology have come in many forms. The latest is an under the radar approach that would condition all federal funding on restrictions on diversity, equity, inclusion; ending protections for undocumented individuals; and limitations on activities that are viewed as being a threat to public safety or national security.

Less than a month into Trump’s presidency, the administration took the first steps in opening the floodgates of their efforts to end federal funding for programs and entities who they disagreed with ideologically. They issued an Executive Order that directed agencies to end funding for programs that include DEI; attempted to terminate federal grants because of words they didn’t like; and they sent all schools and higher education institutions a Dear Colleague letter (DCL) that sought to restrict diversity, equity, and inclusion efforts, and would have required school districts who wanted federal funds to sign a certification that they would follow the directives provided in the DCL.

These attacks on federal funding for entities the administration disagreed with expanded to the legal sector almost immediately. In April of last year, the Department of Justice issued a memo titled “Engagement with the American Bar Association,” where they cancelled participation by federal government employees in ABA events. The next day, the ABA’s federal grants that supported domestic violence-related were cancelled (they were later reinstated by the court). And, the ABA’s accreditation role has been under scrutiny by the U.S. Department of Education, which would impact federal financial aid for law students across the country.

Now, the Administration is taking a broad approach to tying federal funds to their political ideology.

At the end of January, the Trump administration, through the General Services Administration (GSA), filed a proposed information collection change to amend the certification requirements for all entities receiving grants, cooperative agreements, and financial assistance, such as loans, to align them with the administration’s ideology. The revised certifications would be added to the System for Award Management (SAM), the system that every applicant is required to register with before applying for and receiving federal grants and loans.

The proposed certifications require compliance with the Administration’s interpretations of federal law, not just legal requirements, including with executive orders. It states that federal antidiscrimination laws “apply to programs or initiatives labeled as diversity, equity, and inclusion (DEI) or diversity, equity, inclusion, and accessibility (DEIA).” It also calls out examples of practices that “may” violate such laws, including race-based scholarships and programs, preferential hiring or promotion practices, and race-based training sessions, regardless of if they have been found to be illegal.

Since the beginning of the Trump administration, we have seen the beating of the drum repeatedly on the unconstitutionality of race-based activities, but they have been using the wrong drumsticks.  They have pointed to the decision in Students for Fair Admissions vs. Harvard, which was limited to race-based admissions, as a reason that all DEI programs are not allowable. This attempted expansion of that Supreme Court decision is wrong – and, dare we forget, the judiciary branch is still the branch of government that has the power to declare activities unconstitutional, not the executive branch.

According to the notice, more than 220,000 entities who rely on federal assistance would be impacted by the proposed certifications. And, some of the certifications would go beyond the use of the federal funds in an attempt to control all the activities of organizations and schools.

Think about the law school clinic that does immigration work that becomes subject to certifications that the medical school signs for their research grants that states they will not “harbor” illegal aliens – a term that the courts have yet to definitively define and that the Trump Administration uses repeatedly in its actions and rhetoric, including against schools that forbid ICE on their campuses and public housing that serves mixed-status families. These schools would be at risk of losing their student loans.

Think about legal services organizations who are defending individuals and nonprofits against the attacks by this administration on diversity programs and transgender rights. In an Executive Order released in September, President Trump claimed that “domestic terrorism” is driven by “extremism on migration, race and gender.” These organizations would be at risk of losing their Legal Services Corporation funding.

If these certifications are finalized, they would attempt to regulate activities that occur based on content and viewpoint and cause uncertainty about what activities and practices are permitted. The fear of severe penalties, such as False Claims Act liability and loss of federal funds, will cause the chilling of speech and conduct. They would likely violate the First Amendment and be found to be unconstitutionally vague, as the use of potential examples and undefined terms will lead to arbitrary enforcement.

Furthermore, these certifications are being put forth under the Paperwork Reduction Act, which is required to take into consideration whether the proposed collection of information is necessary and has practical utility. These additional certifications are clearly not necessary as the current certifications already require all recipients of federal funds to comply with federal laws, including federal antidiscrimination laws, and the Constitution.

These proposed certifications are attempting to inject one specific ideology and politics into federal funding. Even if courts ultimately strike them down, they will have an immediate chilling effect on the everyday work that is critical to our democracy. That is why every federal grantee must submit comments by the March 30th deadline about why these proposed certifications exceed the administration’s authority and are a dangerous tool in the administration’s toolbox.

Amanda Fuchs Miller is president of Seventh Street Strategies and former Deputy Assistant Secretary for Higher Education Programs at the U.S. Department of Education during the Biden-Harris administration.

The Next Revolution in Constitutional Law

The views expressed on the Expert Forum are those of the authors writing in their personal capacity. The views presented do not represent the American Constitution Society or its chapters. 

In a recent essay in the New York Times, Jeffrey Toobin argued that “the liberal constitutional agenda is failing.” In his view, “progressives have done a lot better pointing out the weaknesses of originalism than coming up with alternatives.” Progressives, he says, know what they “stand against,” but do not have a clear answer about what they “stand for.”

My recent book, People v. The Court: The Next Revolution in Constitutional Law, articulates a progressive theory of judicial review that answers Toobin’s call for an alternative to originalism. Current doctrine divides constitutional law into rights issues and structural issues. This dualistic framework obscures a central feature of the Constitution. Properly understood, the Constitution divides power between the government and We the People. It grants citizens an affirmative, collective right to maintain effective control over our government.

Viewed through the lens of the Court’s current constitutional doctrine, We the People are invisible. We do not appear in the Court’s structural constitutional doctrine because that body of law focuses exclusively on the division of power between and among government actors. We do not appear in the Court’s rights doctrines, because those doctrines focus exclusively on negative individual rights, not affirmative, collective rights. A future, progressive Supreme Court should exercise its power of judicial review to enforce the Constitution’s structural division of power between the government and We the People, and to enforce our affirmative, collective right to maintain effective control over our government.

People v. The Court unpacks this idea by building on John Hart Ely’s insight that aggressive judicial review “appropriately exists for those situations where representative government cannot be trusted, not those where we know it can.” This essay briefly explains how my theory and Ely’s insight apply in four different areas of constitutional doctrine: election law, individual rights, federalism, and separation of powers.

Election Law

Election law is an area where representative government cannot always be trusted, because elected politicians are often tempted to entrench their own power, rather than serving the public interest. Therefore, as Ely argued, the Supreme Court should engage in aggressive judicial review to correct malfunctions in the electoral process. Chief Justice Warren’s opinion in Reynolds v. Sims, which famously established the “one person, one vote” principle, provides an excellent example of this type of strong judicial review. Building on the Reynolds precedent, People v. The Court argues that a progressive Supreme Court should ban partisan gerrymandering and require those in charge of redistricting to draw boundaries in a way that maximizes the number of competitive seats for both state legislatures and the House of Representatives. These and similar rules are necessary to vindicate the affirmative, collective right of We the People to maintain effective control over our government.

Federalism

In contrast to election law, a progressive Supreme Court should practice deferential judicial review for all federalism cases in which litigants allege that Congress has violated state sovereignty or intruded into the reserved powers of the states. These are areas where we can trust our elected representatives in Congress to do the right thing. As Herbert Wechsler famously argued, the political safeguards of federalism are sufficient to protect the states from unwarranted congressional interference. The Constitution, properly understood, grants political actors the authority to make decisions about the proper distribution of legislative authority between Congress and state governments. When the Court engages in aggressive judicial review to invalidate federal legislation on the grounds that it allegedly violates federalism principles, the Court itself violates our affirmative, collective right to maintain control over our government by transferring decision-making authority from a government entity that is accountable to the people (Congress) to a government entity that is not accountable to anyone (the Supreme Court).

Respect for state autonomy is neither a liberal value nor a conservative value. For example, liberals favor state autonomy with respect to gun regulations, but in cases such as McDonald v. City of Chicago and New York State Rifle Ass’n v. Bruen, a conservative Court has intruded deeply into an area traditionally reserved to the states under the Tenth Amendment. More broadly, conservative Justices fail to recognize that the primary federal threat to state autonomy comes not from Congress, but from the Supreme Court. A progressive Supreme Court that is committed to federalism principles could enhance state autonomy by repudiating incorporation doctrine, a doctrine that has vastly expanded federal judicial power at the expense of the states. (I explain later in this essay how the Court can provide robust protection for individual rights without incorporation.) Granted, this is a radical proposal that is unlikely to be implemented in the near future. However, repudiation of incorporation doctrine would enhance state autonomy much more than any of the Court’s federalism decisions since United States v. Lopez (1995). Those decisions purport to protect state autonomy by limiting Congress’s legislative powers. In fact, the Court’s so-called “federalism” decisions have effectively transferred federal lawmaking power from our elected representatives in Congress to unelected, unaccountable Justices, but they have done very little to enhance state autonomy.

Presidential Power

A progressive Supreme Court should also practice deferential judicial review in most cases where litigants allege that Congress has violated the Constitution by infringing powers vested in the President. Let me be clear: the Constitution’s Vesting Clause, which vests the “executive power” in the President, does not impose any constitutional limit on Congress’s power to regulate the executive branch. To the contrary, the Necessary and Proper Clause expressly grants Congress the power to “make all laws which shall be necessary and proper for carrying into execution” the President’s executive power. Moreover, the Take Care Clause creates a constitutional duty for the President to “take care that the laws be faithfully executed.” To paraphrase Justice Scalia in Morrison v. Olson, that duty applies to all laws enacted by Congress, not just laws that the President likes. When the Court invalidates federal legislation on the grounds that it infringes powers reserved to the President under the Vesting Clause, the Court itself violates the affirmative, collective right of We the People to insist that all federal officers must comply with laws enacted by our elected representatives. If the Court allows the President to violate those laws, government “of the people, by the people, and for the people” becomes a government of one man, by one man, and for one man.

Trump v. Slaughter illustrates this point. Since its landmark 1935 decision in Humphrey’s Executor, the Court has repeatedly affirmed Congress’s power to impose statutory limits on the President’s unfettered discretion to fire federal officers. The Court will almost certainly decide Slaughter before the end of this term. Pundits expect that Slaughter will overrule Humphrey’s Executor and grant the President sweeping power to fire federal officers in violation of federal statutes. The Court’s decision will likely rely on the unitary executive theory—a theory embraced by self-proclaimed originalists that is based on a dangerous misunderstanding of the Constitution’s text, structure, and original public meaning.

By overruling Humphrey’s Executor, the Court will accelerate the rise of Presidential dictatorship, a form of government that is antithetical to the Constitution’s commitments to popular sovereignty and representative democracy. One of the first priorities for a future, progressive Supreme Court should be to repudiate the unitary executive theory and revive Humphrey’s Executor. It is not hyperbole to suggest that the continued survival of republican government in the United States depends on the Court’s willingness to reverse our ongoing descent into autocracy by enforcing federal statutes that constrain Presidential power.

Individual Rights

Finally, let me address the subject of individual rights, an area where my views differ markedly from what might be called “liberal orthodoxy.” People v. The Court advocates a system of weak judicial review to protect individual rights from government infringement. Weak judicial review differs from deferential review in that it does not involve judicial deference to Congress. Weak review differs from strong review because, in a system of weak review, judicial decisions protecting individual rights are subject to legislative override by Congress. The option of legislative override is essential to preserve our affirmative, collective right to maintain control over our government. With legislative override, elected legislators (and through them, American voters) get the final say over major public policy issues, such as gay marriage and abortion rights. Without the option of legislative override, unelected Justices get the final say, depriving American citizens of our affirmative, collective right to maintain effective control over our government.

Skeptics contend that a system of weak judicial review would erode protection for individual rights. However, Australia, Canada, New Zealand, and the United Kingdom all apply systems of weak review to protect individual rights. All four countries earn high scores on the V-Dem liberal democracy index and Freedom House’s Freedom in the World rankings, demonstrating that weak judicial review is fully compatible with strong protection for individual rights. Moreover, as I have demonstrated in prior scholarship, a system of weak review has strong roots in U.S. historical traditions. For much of the nineteenth century, federal courts applied a system of weak review to protect individual rights from infringement by government actors. In particular, they relied primarily on international law, not constitutional law, to protect individual rights from government infringement. Since Congress has the power under the later-in-time rule to override judicial decisions based on international law, judicial reliance on international law to protect individual rights preserved the option of legislative override.

Today, the United States is a party to both the International Covenant on Civil and Political Rights and the Convention Against Racial Discrimination, two major international human rights treaties. Taken together, those two treaties protect most of the rights that are currently protected under the Bill of Rights and the Fourteenth Amendment. Congress has the power to enact legislation authorizing judicial enforcement of those treaties. Such legislation could also encourage courts to apply the canon of constitutional avoidance to avoid constitutional decisions in cases where judicial enforcement of a human rights treaty could substitute for judicial enforcement of the Bill of Rights or the Fourteenth Amendment. If federal courts honored such legislation, the net result would be a system of weak judicial review in which courts provide robust protection for individual rights, but the American people maintain effective control over our government, because judicial decisions would be subject to legislative override by our elected representatives in Congress.

Under this approach, applying human rights treaties to the states via the Supremacy Clause would be functionally similar to applying the Bill of Rights to the states via incorporation doctrine. By repudiating incorporation doctrine and enforcing human rights treaties, the Court could ensure robust protection for fundamental human rights, while also respecting federalism principles by returning power to the states for that small set of incorporated rights that are not protected by human rights treaties. (Specifically, states would gain greater autonomy with respect to rights protected by the Establishment Clause, the Second Amendment, the exclusionary rule, the Sixth Amendment jury trial right, and the Eighth Amendment Excessive Fines Clause. As explained in People v. The Court, the Fifth Amendment Takings Clause would still apply to the states via incorporation doctrine.) All other incorporated rights would be protected by enforcing human rights treaties against the states via the Supremacy Clause.

Who Killed Dr. Linda Davis? The Law Says ICE is at Least Partially to Blame.

The views expressed on the Expert Forum are those of the authors writing in their personal capacity. The views presented do not represent the American Constitution Society or its chapters. 

On February 16, Dr. Linda Davis was tragically killed when her car was struck by another vehicle fleeing an ICE arrest. Dr. Davis’s death is obviously heartbreaking for her family, her students, and her community. Her death has also impacted people who did not have the privilege of knowing her by raising important legal and policy questions about who bears the responsibility when ICE engages in reckless vehicle pursuits to enforce civil immigration orders.

Unfortunately, the chase that killed Dr. Davis was not an isolated event. Federal immigration agents have a lengthy documented history of engaging in dangerous and sometimes deadly vehicle pursuits to carry out immigration arrests. During last year’s immigration enforcement surges in Los Angeles and Chicago, ICE agents regularly used aggressive vehicular pursuit tactics. For instance, ICE agents sparked a large protest last October in Chicago when they used a PIT maneuver in the middle of a residential neighborhood to execute an immigration warrant.  The same month, ICE agents in Oxnard, California intentionally rammed the vehicle of a US citizen that it was attempting to detain. ICE has also caused a series of crashes across the country this month, including those reported in Providence, Rhode Island, Austin, Texas, and Detroit, Michigan. Given the volume and frequency of ICE-involved vehicular accidents, it is unsurprising that pursuit tactics are effectively authorized by DHS leadership. Last year, DHS rescinded Biden-era guidance that created a reasonableness standard for agents and urged consideration of risks to the public before engaging in a vehicle pursuit. In its place, the Trump administration implemented a policy that removes the reasonableness standard and fails to acknowledge the risks associated with chases. ICE’s traffic pursuit practices starkly diverge from accepted national policing standards.

National best policing practices limit vehicular pursuits to exceptional circumstances where failure to immediately apprehend a suspect presents an imminent risk of danger to the public. The Policing Executive Research Forum (“PERF”), a leading policing policy think tank has recommended that law enforcement officers not pursue a fleeing vehicle unless they have a reasonable suspicion that the driver was involved in a violent crime. PERF also advises against pursuits if the identity of the driver is known and can be detained at a later date. This guidance is informed by the extremely high risk of harm associated with pursuits as well as the legal liability that law enforcement agencies face if the chase results in a crash.  Neither of PERF’s concerns are conjectural.

Vehicular pursuits are dangerous and deadly especially when they are conducted in densely populated areas. According to the Bureau of Justice Statistics, between 1996 and 2015, “an average of 355 persons (about 1 per day) were killed annually in pursuit-related crashes.” Of the people killed in pursuit-related crashes from 1996 to 2015, approximately 33% were bystanders, 65% were occupants of the vehicles being pursued, and “slightly more than 1%” were law enforcement officers. Nationwide, these dangers are borne disproportionately by people of color.

Because pursuits cause death, injury, and property damage, they often result in lawsuits for the pursuing officer and law enforcement agency that employs them. Courts have found police pursuits are actionable under the U.S. Constitution and state common law. First, a pursuit can violate the substantive due process clause of the Fourteenth Amendment. In 1998, the Supreme Court decided Sacramento v. Lewis, which recognized that a passenger injured by a police high-speed chase can sue under 42 U.S.C. § 1983 for a violation of the substantive due process clause. While the Court declined to find that a Fourteenth Amendment violation occurred under the facts in Lewis, it held that police chases where the officer is intending to harm the suspect or worsen their legal rights would support a claim. Additionally, the Court in Lewis was careful to caution that the “intent to harm” test was specific to the particular facts of the case stating “deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances.” Accordingly, a number of lower courts have distinguished Lewis. In particular, the Third, Fourth, Seventh, and Tenth Circuits have found substantive due process violations where chases lasted several minutes or were not in response to an emergency or imminent risk like they were in Lewis.

Another source of liability is state tort law. Police officers have been held liable for conducting reckless vehicular pursuits that proximately cause another driver's injury or death. In Georgia, where Dr. Davis was killed, police officers are liable for police chases when they fail to “properly balance the risk [of the pursuit] to the safety of other drivers” and exercise “due regard for the safety of other drivers." The Georgia state standard is what will ultimately control any case Dr. Davis’s family would bring against ICE.

The Supreme Court’s recent Bivens jurisprudence likely forecloses Dr. Davis’s family from pursuing a Fourteenth Amendment claim against the individual agent. However, victims of ICE misconduct can sue the federal government under the Federal Tort Claims Act (“FTCA”). Under the FTCA, state torts are actionable against the federal government to the extent a plaintiff would be able to sue a private person for similar conduct in state court. Accordingly, if Dr. Davis’s family could sue an officer for proximately causing her death under Georgia tort law, she would be able to sue the federal government for the same conduct under the FTCA.

While further details may emerge, the federal government should be liable under the FTCA based on the facts that we know. The driver that collided with Dr. Davis was being pursued by ICE to enforce a 2024 deportation order. Civil immigration matters are not the type of imminent threat or emergency situation that policing experts and courts have recognized justify the significant dangers of a chase. This is particularly true, since the pursuit occurred in a densely populated area during Savannah’s morning commute rush hour.

While the driver that struck Dr. Davis is currently incarcerated on criminal charges, he does not bear sole legal responsibility for her death. Both legal and policy guidance advise that an officer should only undertake a pursuit in emergency situations where no other options are available. Overstaying a deportation order is not the type of emergency situation that courts or law enforcement experts have found justify a vehicular pursuit. ICE agents may not be the ones facing a criminal trial for killing Dr. Davis but their employer, the federal government, can and should be sued for causing her avoidable death.

DHS Reforms Must Make Federal Officers Liable for Constitutional Rights Violations

The views expressed on the Expert Forum are those of the authors writing in their personal capacity. The views presented do not represent the American Constitution Society or its chapters. 

Congress has little time to agree on measures to both fund and reform the Department of Homeland Security before the Department’s budget ends tomorrow, Friday, at midnight. Congressional leaders, at the demand of the public, are discussing systemic changes to the Department to prevent its officers from continued wide-spread constitutional rights violations like those seen recently in Minneapolis, Chicago, and other U.S. cities. This is a pivotal moment. We should not squander it on half measures like telling officers what to wear (body cameras and face masks), but instead we must redefine the relationship between federal officers and members of the public.

Mostly, congressional leaders are discussing whether to require Department officers to wear bodycams, refrain from hiding their identities, and seek judicial warrants before entering homes. But those measures would treat the symptoms and fail to address the underlying illness in our system: federal law enforcement officers face limited personal liability for their constitutional rights violations.

This lack of accountability distinguishes federal law enforcement officers from state law enforcement officers, as noted by a string of constitutional law scholars. Although state officials may be held personally liable for violating constitutional rights, see 42 U.S.C. § 1983, no federal statute provides an analogous claim against federal officials. The argument of these scholars is straightforward: Why shouldn’t federal law enforcement officers face the same liability for constitutional violations that state officers face?

Over fifty years ago, the Supreme Court of the United States took a step toward equal accountability for federal and state officers, believing Congress would have intended it. The Court recognized an implied right, similar to the Section 1983 remedy, that permits individuals to sue individual federal law enforcement officers for damages in limited circumstances. The Court recognized this implied remedy in 1971 in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.

But since then, the Supreme Court has spent the last several decades practically teeing up this moment by confining Bivens and refusing to extend its implied constitutional remedy even in egregious circumstances. The Court’s most recent case declining to extend a Bivens remedy looks a lot like what we’ve seen recently. In Egbert v. Boule, 596 US _ (2022), a border patrol officer was accused of excessive force after he allegedly threw an inn owner to the ground because the owner would not cooperate with an immigration investigation of a person suspected of unlawfully crossing the border. But the Court ruled the border patrol officer could not be sued for violation of the Fourth Amendment, which generally is understood to protect against such force. Instead, the Court said that the remedy for the constitutional rights violation “is a legislative determination that must be left to Congress, not the federal courts.”

So the Court has backed away from its initial attempt to give Congress the benefit of the doubt that it would have wanted equal accountability for all law enforcement officers regardless of who employs them. Instead, the Court has handed back to Congress the task of fixing constitutional accountability for federal officers. With that, the Court has virtually granted immigration officers and other federal officials a practical license to violate the constitution with impunity. It’s no wonder that today we’re seeing unprecedent constitutional rights violations by agents of U.S. Border Patrol and Immigration and Customs Enforcement (ICE).

And Congress has not ignored the disparity in constitutional accountability between state and federal officials. That topic has been the subject of recent Congressional interest and inquiry, and now is the ideal time for Congress to correct the problem. In fact, the Congressional Research Service in the past few years has suggested that, in light of the Court’s continued refusal to extend the Bivens remedy, a feasible path to reducing constitutional violations by federal officers would be for Congress to create a private right of action against these officials:

Congress, therefore, could choose to create a Section-1983-type action for claims against federal officials. In creating a new statutory cause of action, Congress could establish its parameters, including which federal officials would be liable, what federal rights would be protected, and whether officials are entitled to qualified immunity. For example, Congress could make all federal officials liable for violations of all constitutional rights—much as Section 1983 does for state and local officials—or could limit the remedy to cases involving federal law enforcement officials who commit certain Fourth Amendment violations, such as excessive use of force.

No compelling reason exists for constitutional liability to depend on the federal-versus-state identity of officials who violate a person’s constitutional rights. The greatest concerns over correcting this accountability disparity are increased costs to the federal government of defending constitutional rights claims and expanded caseloads in federal courts. Yet these administrative concerns are categorically less important than protecting people in the United States from abuses of their constitutional rights. Indeed, concerns like these existed when Section 1983 was enacted over 150 years ago. But they did not stop Congress in 1871 when it created liability for state officials who had been rampantly violating the constitution throughout the South in the wake of the Civil War.

Again faced with flagrant constitutional violations, now by federal officials, Congress should seize the moment and close this liability loophole before states try to solve it on their own. Indeed, progressive states are poised to create a patchwork of remedies by enacting their own legislation granting individuals a state law right to sue federal officials for federal constitutional violations within those states. But for equity reasons, the ability to vindicate federal rights should not depend on the state where a constitutional violation occurs.

Moreover, enforcement of this state law right to enforce the constitution against federal officers will face, in every case, a defense by federal officers under the constitution’s Supremacy Clause. Already, federal officials claim that this clause grants immigration officers broad immunity from liability under state law for actions taken within the scope of their federal duties. These arguments will frustrate efforts to use state law to vindicate constitutional rights violations, regardless of whether the arguments have merit, see Drury v. Lewis, 200 U.S. 1 (1906) (denying supremacy clause immunity to federal officer on state law murder charge because alleged excessive force in fatal shooting would be beyond his official duties).

Congress could fix this lack of accountability for federal officers with simple, balanced legislation. It could do so by simply enacting a federal statute that word-for-word mimics Section 1983, but with “the United States” in place of “any State or Territory or the District of Columbia.” Likewise, when courts must eventually decide the bounds of the newly created liability for federal officials under the new statute, Congress could let judges be guided by the long history of cases interpreting state official liability under Section 1983.

This balanced approach was advocated most recently by renowned constitutional law scholar Erwin Chemerinsky in a recent guest essay in the New York Times. There he suggests that the doctrine of qualified immunity, as controversial as it is, could be left intact for federal officers. In effect, he promotes a compromise position: give citizens a cause of action against federal officials who violate their constitutional rights, but also permit those federal officials to raise qualified immunity as a defense in edge cases where reasonable officers had room to doubt whether their conduct would violate the constitution.

Now is a rare moment of bipartisan support; voters of both parties want to prevent federal officials from freely violating constitutional rights. For this reason, Congress should do more than treat the symptoms of this illness and, instead, should cure the disease. Body cameras, warrant requirements, and face covering limitations may permit public agencies to discipline federal officers who have violated an individual’s constitutional rights, but these tools will do little to help the victim who lacks a private remedy for the constitutional violation they have suffered. And in turn, these half measures will do far less to deter constitutional rights violations than personal liability would. The people of the United States, a nation committed to the rule of law, deserve the full cure. And now is when their congressional leaders should give them the antidote to constitutional abuses of federal officers by enacting a federal analogue to Section 1983.

The good news is that legislation aimed at holding federal law enforcement officers accountable has already been proposed in the U.S. Senate, most recently in December 2025, in a bill titled the Accountability for Federal Law Enforcement Act. It is currently sitting in the Senate Judiciary Committee, and the public seems largely unaware of it. Letting this bill languish in committee while Department reforms are discussed is a missed opportunity to correct the true problem the people of the United States want fixed, constitutional accountability for federal officers. To catch the wind of this moment, and to correct a longstanding disparity in accountability between federal and state officials, senators should swiftly send this bill to the House, and members of Congress should insist on tying this bill to Department funding, whether this week or after a partial governmental shutdown. That approach, not half measures floated now, would be the most assured way to stop federal law enforcement officers from flagrantly violating constitutional rights.