From February 1 to February 5, 2026, members of the Federal Bar Council met at the St. Regis Cap Cana Resort in the Dominican Republic for the 2026 Winter Bench & Bar Conference. Second Circuit Judge William Nardini was the judicial chair, while Rita Glavin and Theresa Trzaskoma co-chaired the meeting. Three mornings were spent in CLE courses and the afternoons were free. Max Berger of Bernstein Litowitz Berger & Grossmann LLP received the Whitney North Seymour Award for public service by a private practitioner. 

In addition to the CLE programs described below, although the weather was not perfect and caused excursions to be cancelled, participants at the Winter Meeting enjoyed themselves. Continuing the format from the last couple of years, the conference was shorter than in the past. The shorter conference was filled with warm moments and collegial get togethers. The uniformly excellent CLE programs covered a variety of current topics. 

Executive Power: How Much is Too Much

Southern District Judge Paul A. Engelmayer and Eastern District Judge Diane Gujarati moderated separate panels on “Executive Power: How Much Is Too Much.” The first panel moderated by Judge Engelmayer included Neal Katyal, Milbank LLP, former Acting Solicitor General of the United States; Hon. Michael B. Mukasey, Debevoise & Plimpton LLP, former U.S. Attorney General and U.S. District Judge for the Southern District of New York; Hon. Thomas B. Griffith, Hunton Andrews Kurth LLP, former judge on the U.S. Court of Appeals for the District of Columbia Circuit; Steven A. Engel, Dechert LLP, former Assistant Attorney General for the Department of Justice Office of Legal Counsel; Edward C. O’Callaghan, Cahill Gordon & Reindel LLP; Kevin J. O’Connor, Lockheed Martin, former Principal Associate Deputy Attorney General of the United States and U.S. Attorney for Connecticut; and Rod J. Rosenstein, Baker & McKinzie, former Deputy Attorney General of the United States and U.S. Attorney for the District of Maryland. This was truly an extraordinary panel. (The description of the panel discussions on Executive Power that follows does not attribute any statements to particular panel members. Everyone spoke freely but there was a general consensus that no one would be quoted.)

It was stated that the expansion of presidential powers under this administration was the most extensive in modern history. Never have so many issues related to presidential power dominated the news. The first panel addressed Congress and the president, including tariffs, discharge or removal of executive branch personnel, impoundment, and military action. The panelists looked at the long-term implications of the actions of the president and discussed what would come next.

Tariffs

The panel discussion, including whether the “Liberation Day Tariffs” are legal, took place before the Supreme Court decided that they are not. In Learning Resources Inc. v. Trump, No. 24-1287 (Feb. 20, 2026), the Court found President Trump’s imposition of tariffs under IEEPA to be unconstitutional.

At the Winter Meeting, it was noted that tariffs are not among the inherent Article 1 powers, nor is the power to tax inherent to the power of the president. Taxes need to be authorized by Congress. The issue before the Supreme Court was whether the International Emergency Economic Powers Act (IEEPA) authorizes the tariffs imposed by President Trump. Congress uses the word regulate in the statute but in connection with raising revenue. The government pointed out that, in 1974, President Nixon used the Trading with the Enemies Act to regulate importation and that was upheld. The opposition argued that the decision upholding the Nixon regulation of importation was narrow primarily because the Court defers to the president in foreign affairs. Also, under the Major Questions Doctrine, a major power must be given by Congress. The Court struck down President Biden’s student loan forgiveness program under the Major Questions Doctrine. Under the delegation doctrine, Congress cannot delegate core powers and the power to tax is integral to Congress.

The practical issue here is that the tariffs have already generated $300 billion in revenue. Thus, any remedy mandating refunds would be problematic, unless the remedy was not retrospective. The remedy would be extraordinary if tariffs are refunded. The Court of International Trade has hundreds of cases. The liquidation of these cases would require an extraordinary effort. The problem with that is that under the 1977 Act, either the president has the power or does not have it. The president can impose tariffs under other acts, but they are limited to 15% for a limited number of days. The president can also go after individual countries.

One panelist asked to what degree the president’s maximalist claim would prove counterproductive. The president can use IEEPA to block all importation from certain countries as a sanction, but here the president asserts the power to tax everyone, at any percentage for however long. If this broad assertion of the power to impose tariffs is upheld, because of Congressional inaction, this power would be permanent. Thus, it was suggested (correctly, as it turned out) that there was a good chance that the challengers would prevail.

Another panelist noted that the issue was whether Congress has given the president this power in IEEPA. The title of the statute indicates that it is intended for emergencies but the executive order just blew off definitions. The executive branch wants a king, a strongman, and Congress keeps giving it authority. People instinctively want a strong executive but now they have an executive that people do not like. Also, the briefs and oral arguments sound like they were written like Truth Social posts from the president. 

Civil Service

The Trump administration aims to take apart the modern administrative state and make sure the power goes to the president. 

First, the Trump administration reclassified 50,000 federal employees as “at will” employees. It was a bold move. There have been mass departures and layoffs of up to 12% of the federal workforce. A district court enjoined the effort, the Ninth Circuit affirmed, and the Supreme Court lifted the stay. 

Second, all Diversity, Equity, and Inclusion (DEI) efforts have been eliminated. Before Trump II, the Merit Systems Protection Board received 100 claims a week; now it is receiving 500 a week. The board does not have a quorum and is way behind in processing claims. President Trump dismissed the commissioner without cause when there are only three reasons for removal – incompetence, neglect, and malfeasance. The District of Columbia Circuit issued a decision in December in Harris v. Smith holding that the president may remove at will members of the Merit Systems Protection Board. This decision was part of a long debate on whether Congress has a role in protecting civil service employees. The issue is whether we want a president who is politically accountable for the actions of the agencies or agencies with some measure of independence. If the president is upheld there will be a return to the spoils system. Congress set up the Merit Systems Protection Board to keep politics out of the decision-making process. Can the courts undo what Congress set up?

The Supreme Court accelerated the Trump v. Slaughter case and put on hold the district court and D.C. Circuit decisions reinstating Slaughter, a member of the Federal Trade Commission, during the pendency of the action. The issue is whether the president can fire a member of the Federal Trade Commission without cause. The argument on the merits was in December and the decision by the Supreme Court is pending.

In Trump v. Cook, at issue is whether the president can fire a Federal Reserve Board governor on any ground except the narrow “for cause” ground set forth in the statute. The Supreme Court has gone out of its way to say that the Federal Reserve is subject to a different rule. In October the Supreme Court left a district court order, affirmed by the District of Columbia Circuit, allowing Cook, a member of the Federal Reserve Board of Governors, to remain in place while Cook challenged her firing. This action contrasted with the Court’s approach to heads of other independent agencies such as the National Labor Relations Board, the Merit Systems Protection Board, the Consumer Product Safety Commission, and the Federal Trade Commission, whom they allowed to be removed during pending litigation.

As an agency, the Federal Reserve is different as it is the heir of the First Bank of the United States, which was a private bank governed by a board. The Federal Reserve manages the monetary supply. The Second Bank of the United States was a hybrid with both government and private directors. The Supreme Court thinks that the Federal Reserve should be independent.

President Trump fired Lisa Cook for “cause,” asserting “mortgage fraud.” At issue is the definition of “cause” and how much process is due to Cook. People are looking at whether the Court is independent and whether it will defer to the administration’s definition of cause. This case is on the Court’s emergency docket. Another question is how much or little the Court will decide.

United States Attorneys

The U.S. Attorney firings have developed a life of their own. There is no question about the president’s power to remove U.S. Attorneys and to replace them. The spectacle of U.S. Attorney firings is not new. President Bush fired seven U.S. Attorneys; the Attorney General tried to fire Southern District of New York U.S. Attorney Geoffrey Berman during President Trump’s first term, and Berman said only the president has the power to fire me, so President Trump did so. 

It is the power to replace a U. S. Attorney that is more restrained. Without Congressional approval the president can only appoint an acting U.S. Attorney for 120 days, and then the district court can select a U.S. Attorney who stays in place until a person is confirmed by Congress. 95% of the time, the courts continue the acting U.S. Attorney in place. In litigation to extend the 120-day period, the courts have said “no.”

Alina Habba had served for 120 days as Acting U.S. Attorney for the District of New Jersey and claimed a new 120-day term as Acting U.S. Attorney, which the courts rejected. Under the Vacancy Reform Act, the powers of the President of the United States and the Attorney General are limited. 

The situation in the Eastern District of Virginia was different. By the time Lindsay Halligan was appointed Acting U.S. Attorney, the 120 days were long gone. She had not been confirmed by the Senate, she was not already in the office, and she had never served in the Eastern District of Virginia, all requirements to become an Acting U.S. Attorney. 

The administration argues that the courts should not be able to appoint U.S. Attorneys. However, Article II, section 2, allows Congress to vest appointments of “inferior officers” in the courts of law, although the president has the power of removal. In spite of that, President Trump asserts maximalist claims which led to the setback of the administration’s claim to be able to appoint Acting U.S. Attorneys to successive 120-day terms, which did not pass muster with the courts. Although the First Assistant U.S. Attorney becomes the Acting U.S. Attorney, the administration’s effort to make U.S. Attorney Habba First Assistant and then Acting U.S. Attorney again did not work. According to the court, a person needs to be the First Assistant at the time of the appointment.

Impoundment/Containment

Immediately upon taking office, President Trump issued an executive order curtailing funding and setting domestic funding freezes. The lower courts stopped it but the Supreme Court allowed it. The Supreme Court had struck down President Clinton’s line item veto for funding. Here, the administration totally disregarded Congress’ role in determining how to spend money. The Executive Branch refusal to spend money has been taken to the extreme by the Trump administration, although other presidents have claimed the power to withhold spending without consulting Congress. Congress passed the 1974 Impoundment Control Act, which curtails the president’s power and provides that if an administration intends to permanently withhold spending it must notify Congress.

Drug Boats, Sinaloa Cartel, Venezuela, and Iran

The president possesses executive power and is commander-in-chief, but Congress has the power to declare war. The last declared war was World War II. The Gulf of Tonkin Resolution in Vietnam showed support for the president but was not a formal declaration of war. After 9/11 that resolution was used to assert military power in the Middle East. 

In May 1941, Justice Robert Jackson allowed the administration to train the British, concluding that the president’s power as commander-in-chief extended outside the United States to protect the country’s interests. There would be a need for Congressional approval only when you need a declaration of war, in situations where there would be prolonged exposure of the military personnel to extensive risk. Under the Trump administration, the Venezuelan attack lasted only 90 minutes; the first bombing of Iran was a short-term effort with no immediate ramifications for American military personnel, except that there may be a long-term effect.

The framers gave Congress the war powers at the same time they made the president the commander-in-chief with power to direct the use of force and resources, and for the most part the courts have stayed away. Presidential actions abroad have become increasingly frequent. Presidents are supposed to end hostilities within 90 days if there is no Congressional approval. Modern confrontations often end within 90 days.

Presidents talk about international law, but it does not stop them, i.e., the arrest of President Rafael Trujillo in Panama and President Nicolás Maduro in Venezuela, but there is no authoritative source of international law. 

There is often a question of whether such actions are military actions or police actions done by the military. President Bush got approval and a United Nations resolution before going into Iraq and capturing Saddam Hussein. There was no Congressional authorization for the Korean War; President Truman chose to send troops.

Executive Power II – Executive Branch and Private Entities 

The second panel moderated by Judge Gujarati included Hon. Josph Greenaway, Jr., Arnold & Porter LLP and a former judge on the U.S. Court of Appeals for the Third Circuit and District of New Jersey; James P. Joseph, Arnold & Porter LLP; Neal Katyal; Hon. Michael B. Mukasey; Hon. Thomas B. Griffith; Rita Glavin, Glavin PLLC and a former Assistant Attorney General and Assistant U.S. Attorney in the Southern District of New York; Steven A. Engel; Edward C. O’Callaghan; Kevin J. O’Connor; and Rod J. Rosenstein. This was also an extraordinary panel.

Policy Goals 

President Trump has issued a huge number of executive orders, but President Franklin D. Roosevelt issued ten times more and Calvin Coolidge issued over 1,000 in total. Looking at the Trump administration’s policy goals, the panel began with a discussion of immigration. This is a big objective for President Trump. There is a lot of statutory authority for a president’s actions on immigration. In a modern record on executive orders, President Trump has issued 38 on immigration. The initial focus on the Southern border has been a success. More controversial is the administration’s enforcement in the interior and the use of the federal fisc to increase pressure on municipalities.

Concerning the border, during his first term President Trump tried various things. Now he has turned to limiting asylum loopholes, using executive authority, because asylum is a huge draw for migrants. ICE enforcement has also been a priority. The administration says that there are 14 million illegal aliens in the United States, so the administration needs to be aggressive if it is going to make any progress. Congress doubled the budget for immigration enforcement and provided money for detention. The administration has negotiated agreements by which 50 countries have agreed to take people. Red state sheriffs are cooperating. Blue states for the most part do not cooperate and people protest.

The administration also has focused on antisemitism and antiterrorism. President Trump signed an executive order to combat antisemitism that created a task force. Five investigations were started immediately, including of colleges and universities. Fifty-five others have been subsequently started.

Institutions, Organizations, and Entities Subjected to Action

Following 9/11, Internal Revenue Code § 501(p) was enacted to counter terrorism. In the past, § 501(p) has been invoked nine times to revoke the tax-exempt status of hard-core terrorist organizations. There are three bases for the administration’s efforts. 

First, the administration has used the Immigration and Naturalization Act. 

Second, IEEPA allows designation of an entity as a terrorist organization in an executive order by the president. In September 2025, President Trump issued an executive order declaring ANTIFA a domestic terror organization. However, ANTIFA is not an organization and there is no definition of a domestic terrorist organization. The president wants the government to investigate illegal operations. Presidential Memo No. 7 defines domestic terrorism as organizations espousing anti-American beliefs and those supporting the organization; also those supporting DEI. Homeland Security has conditioned receiving FEMA grants on letting ICE on your property. 

Third, the Supreme Court has held that if an organization supports illegal activity or activities against public policy, the government can revoke its tax exempt status.

The administration’s policy position is that DEI constitutes illegal discrimination which puts Titles 6, 7, and 9 in play. The executive orders include: (1) A first day order to non-government entities to eliminate DEI programs as wasteful, and (2) during the first two days issuing orders ending illegal discrimination and restoring merit-based opportunity. Every contract must include a certification that the entity does not operate DEI programs. To fill jobs, the entity must consider individual merit, hard work, and determination. Executive orders do not create law, however, instead they are supposed to reflect the law.

For K-12 schools, executive orders set federal funding conditions and review. In Maryland, the government sent a letter to and reviewed the American Federation of Teachers. The reviewing court said that the letter was unconstitutionally vague and lacked clarity. Another executive order was directed toward preventing “woke AI” purchasing by government agencies. 

Another example of administration efforts to achieve its goals are the IRS procedures followed during the audit process that are based on internal rule making. The IRS takes the position that the government can do whatever it wants, but is limited by the illegality doctrine. If the government revokes tax exempt status under § 501(p), there is no judicial review.

In Minnesota there was a protest at a church and the church service was disrupted, but there was no violence. Two people who worked for a non-profit educational organization were arrested. The head of the IRS threatened two foundations that had provided some money a number of years ago to the educational organization. There is currently no IRS commissioner so the Secretary of the Treasurer is the Acting Head of the IRS. This was laying the groundwork for going after institutions the administration does not like.

In response to the exercise of executive power, Harvard University and other universities have been affected by changing rules for Pell grant students. The administration is reshaping education with funding cuts and requiring viewpoint diversity instead of DEI programs. The government has frozen $2.5 billion at Harvard. It has also purged DEI grants. This has resulted in a lot of litigation, which is now in the Court of Federal Claims. The government has also lowered a cap on reimbursement on overhead for research grants from 50% to 15%. Additional measures include deporting foreign students and blocking Title 9 grants based on gender identity issues.

Only two schools have signed on to the administration’s Compact for Academic Excellence: Valley Forge Military Academy and New College of Florida. Reactions from colleges and universities have been mixed. The Board of Dartmouth College acknowledged that political diversity was lacking. The Columbia University Board complied with policies creating a clear quid pro quo to get $400 million in grants restored. Northwestern University paid $75 million to settle claims. 

There is concern that the legacy of U.S. civilization is higher education and to cut off these universities from international students is a huge mistake. Congress has pushed back on research funding and taken away the cap on funding. Members of Congress were shocked at the amounts going into universities. The administration’s anti-DEI policy resulted in cancellation of the largest ovarian cancer project in history. Cities and states are concerned because with research funding cut back or eliminated, jobs are impacted.

Impoundment by the administration has raised concern among governor and mayors. The courts have ruled against the administration on impoundment regarding city and state programs.

Regarding ICE enforcement of immigration laws in Massachusetts, state constitutional provisions require judicial review of enforcement of arrest warrants. Boston Mayor Michelle Wu defended Boston’s position and won reelection. Federal statutes do not require the cut off of funding for sanctuary cities and states.

President-Directed Investigation, Prosecution

The Mukasey Memo, drafted during the Bush administration, states that if a Justice Department lawyer is asked to do something illegal, he or she has the obligation to convince the president to do the right thing or leave. The Justice Department traditionally had been independent. However, the Attorney General is a member of the president’s administration. Presidential priorities are followed, except that particular cases undermine confidence in the independence of the Department of Justice. For example, Thomas Jefferson directed the prosecution of Aaron Burr. Also, in 1942, President Franklin D. Roosevelt directed that the Nazi saboteurs be tried by a military commission even though one was a U.S. citizen. Within three months, the saboteurs were tried and convicted. The defendants appealed to the Supreme Court, but they were executed before the Supreme Court decision. President Roosevelt did not believe that people were taking the war seriously enough, so he used the prosecution to urge people to take the war more seriously. In this administration, the direct involvement of the president in the Justice Department is extraordinary for its frequency, flamboyancy, and revenge motivation.

While Loretta Lynch was Attorney General and James Comey was director of the FBI, the Attorney General was non-partisan in executing policies. It is very different in kind now as the administration prosecutes people for their political views.

In 1978, Congress passed the Ethics in Government Act requiring financial disclosure by top officials in each of the three branches of government. The Public Integrity Unit at the Justice Department handled the most sensitive public investigations – federal bribery, campaign finance – to provide consistency across the country. The Independent Counsel Statute was enacted when Griffin Bell was Attorney General. At that time there were limited contacts between the White House and the Department of Justice. Attorney General Janet Reno under President Clinton had five independent counsels appointed. The process involved the Public Integrity Unit making a recommendation to Attorney General Reno who presented the need for independent counsel to a panel of three judges who appointed the independent counsel in connection with Ron Brown, Secretary of Commerce; Mike Espy, Secretary of Agriculture; Henry Cisneros, Secretary of Housing and Urban Development; and President Clinton himself. The statute terminated in 1999. Under President Clinton only ten people were allowed to have contact between the Department of Justice and the White House.

Attorneys General William Barr (1991-1993) (2007-2009) and John Ashcroft (2001-2005) were very careful about public integrity. As Attorneys General, Ashcroft and Barr allowed about one hundred people to have contact with the White House. Attorney General Michael Mukasey (2007-2009) allowed ten people to have access and Attorney General Eric Holder under President Obama allowed about the same number. It has now been codified.

The Department of Justice has different responsibilities regarding its relationship with the White House and there is a need for non-partisan action by the Department of Justice. In the Trump administration, the president makes his desires known by posts on his Truth Social site.

Use of the Military for Domestic Enforcement

The Posse Comitatus Act of 1878 allows no use of the National Guard for domestic enforcement. The Insurrection Act is very rarely used. The government argued that federalization of the National Guard made it into a regular force under the Posse Comitatus Act. In Illinois, the state obtained a temporary restraining order. In its decision, the Supreme Court said that “regular forces” means the regular forces of the U.S. military, which can only be used when the president is unable to execute the law of the United States. The Court rejected the idea that the president can do this on his own. After the decision, President Trump talked about using the Insurrection Act. However, the active duty military commands do not want to do domestic enforcement, because they are not trained on crowd control.

False Claims Act

The administration is using the False Claims Act as a means of enforcement of its policy to get rid of DEI. Counsel can search for companies that still use DEI and then sue. The key is that if they are successful, they get treble damages.

Antitrust and Big Tech

Southern District Judge Lewis J. Liman moderated a panel on Antitrust & Big Tech. The panelists were Professor C. Scott Hemphill, New York University Law School; Diana Moss, Ph.D., Progressive Policy Institute; and John E. Schmidtlein, Williams & Connolly LLP.

Professor Hemphill explained that the tech sector is important and there are antitrust cases against Google, Amazon, Apple, and Meta. Invidia and Microsoft are also big tech players. Four companies make up 20% of the S&P 500 Index. The S&P is no longer diversified because each of the large tech companies constitutes more than 5%. They have gotten bigger over ten years, and the S&P 500 has had tremendous growth. The firms are enormous, important, and growing. They touch all aspects of our lives: relationships, what we buy, etc.

Lawsuits against the four firms have been filed within the last five years starting at the end of the first Trump administration. The focus has been on government enforcement. The Department of Justice has sued Google and Apple, while the Federal Trade Commission has sued Meta and Amazon. The range of allegations include exclusionary contracts, acquisitions, policies, and tying. 

In one case, the Justice Department sued Google Search over its agreement with Apple and others because Google paid to be the default search engine. The decision in the case lays out remedies. 

In a second case, Google’s ad technology and digital advertising is subject to Justice Department claims on display ads and banner ads due to alleged manipulation of content and advertisements. The court is mulling remedies. 

In a third, the Federal Trade Commission sued Meta over Instagram and What’s App and Meta won a defense judgment. The FTC has filed a notice of appeal. 

The FTC suit against Amazon in another case based on its conduct with third-party sellers is in the pre-trial stage. The allegations concern Amazon’s monopoly power and their threats to third-party sellers that they better not offer better prices on other platforms. 

In a fifth case, the Department of Justice has accused Apple of using its control over the platform to assert monopoly power over both the smartphone and performance smartphone markets using technological barricades. Apple’s motion to dismiss was denied in June. 

In yet a sixth case, the Justice Department accused Google of requiring users of its play store to use Google Payment. This suit was settled in late 2023.

Market Issues

Dr. Moss said the antitrust issues involving digital platforms are not going away. They have had extraordinary growth. To define the market, look at the platforms that have the power to fuel a variety of apps. The value of a platform lies in its ability to: (1) attract users; (2) keep them through algorithms; and (3) keep them from switching to other ecosystems. The ecosystems are wonky. Users do not have as much information about ecosystems as the ecosystems have about them. The areas of competition are search, ecommerce, and social media. There is a need to figure out the markets and the boundaries of competition. How does the consumer behave and what products can they shift to? 

The boundaries are shifting. The first decision in the Meta case was in 2022. The FTC has been loose on market definition. Now YouTube and TikTok have taken a central role and created a shift by enlarging the market from social media platforms to video apps. Defendants look for a broader market definition, while the government looks for a narrower definition. 

With Amazon there are two separate markets – the vendor side and the consumer side, i.e., an online superstore, providing one stop shopping. Competitors are Walmart and Target. One of the biggest controversies is if there are no prices, and the value is in information or attention. The economic focus has been on price, but with zero price the FTC looks at the decrease in quality, i.e., loading the results (product) up with ads.

Durability of Market Power 

Schmidtlein said that we should step back and ask what the obsession is with market definition. It relates to the legal standard of whether there is sufficient market power for monopoly power. Thus, market definition is a gating issue. The test question is whether there is sufficient power to care about the firm’s conduct. Concern is reduced if there is no market power. Competition will discipline market power and the market definition. Market power shapes the legal evaluation and determines whether to get to the next step.

Substantiability raises interesting questions. In the Amazon case, the FTC alleged a narrow market – the on-line superstore market. Thus, the competitors were only on-line stores and super on-line stores. Amazon challenged the market definition because it did not include brick and mortar stores.

In U.S. v. Google, an issue is whether there is an independent separate market for on-line stores. Are Google and Bing the market, opposed to more specialized search engines like Amazon for shopping and product searches? Only 20% of searches on Google return an ad. Google has incredible technology and every search on Google runs bidding for ads, i.e., a search for the Eiffel Tower would have no ads while a search for cafes in Paris would have ads.

Professor Hemphill said the question is whether a firm has enough power to affect the market. That Walmart has a brick and mortar presence is beside the point. The question is whether the firm is able to increase the price or reduce quality on-line. Can Google affect the market for ads? There are varied options to figure it out. For grocery store mergers, you look at the scanner data to determine if they are capable of acting badly. Or you can look at documentary evidence or testimony or the economic evidence. It all depends on the evidence on hand.

As Schmidtlein explained, in the old days, looking at the oil or mining industries, companies could control the market. If there was a price rise, you would look to see if all the others in the industry could shift. In the digital economy things are more fluid. There are examples of people who are able to develop computing firms relatively quickly. That erodes the durability of market power, so by the time a case is brought the monopoly may be gone as shifts happen in the market.

In the FTC case against Meta, the court was influenced by the rise of TikTok and YouTube. The judge observed how people changed their conduct. Teenagers pivoted quickly from Facebook and are now scrolling through Instagram to get content related to their interests. TikTok content is either genius or mind-blowing manipulation. The judge found products that really compete. “YouTube shorts” are a direct response to TikTok. They are all ad-supported.

The durability of market power is shown in dominance of Microsoft a while back. Its operating system became a barrier to entry. People spent money, invested in computers. Microsoft was the place to be. Firms developed apps specific to Microsoft and it was not easy to switch. There was a fear that if Microsoft was a dominant player, it would be a tollgate to the internet. Microsoft was a big player in operating systems but it was not able to dominate. The durability of market power is difficult and tricky.

The Google case was filed in October 2020 when there was no ChatGPT. By the time discovery closed, ChatGPT was available.

Dr. Moss observed that market power in the tech antitrust sector is very dynamic. Artificial intelligence is changing things. The tech sector is a contrast to durable market power in non-tech sectors, i.e., meat, biotech, grocery stores. The question is what is the potential for displacement of the firm and how long will it be able to hold on to durable market power. For evidence, the courts look to the firm’s conduct to steer people to its own system. The focus is on self-preference, tying, what is needed to have an anticompetitive agreement. Courts look at market power, coercive conduct, the ability to exclude other firms from the market.

Remedies

As Professor Hemphill noted there are four defendants in six cases and a remedy in one. The legal objectives are: (1) cessation of bad conduct, i.e., eliminate bad contracts, and (2) restoration to a more fluid state, i.e., in connection with Google search it means being able to go to something else with “competition only a click away,” but Google was successful for a long time. The importance of the remedy is to encourage competition, especially when competition is difficult and rare. Apple competes with Google Maps; Google competes with Amazon shopping. Google’s large payments to Apple kept Apple on the sidelines regarding searches.

Dr. Moss explained that the fundamental goal in developing a remedy is to restore competition caused by anticompetitive behavior and to target the power of the monopolist to control the economic power and provide an incentive to use the competition. The longer the firms have had market power and the more complex the tech is, the harder it is to come up with a remedy.

In the Google case, the judge used a conservative approach by looking at harm, not the gains. The judge said no to restructuring of the search market. The Justice Department wanted to regulate Google search, but that rang alarm bells related to data privacy and security. What is an appropriate remedy is a public policy debate. Using Congressional intervention to regulate the digital sector was rejected so the antitrust laws are used to regulate it. 

Cryptocurrency Law

Eastern District Judge Ramόn Reyes, Jr., moderated a panel on cryptocurrency law with panelists Danielle Sasson, Clement & Murphy, PLLC; Jorge Tenreiro, Bernstein Litowitz Berger Grosssmann LLP; Ryan VanGrack, Global Head of Litigation for Coinbase; and Lisa Zornberg, Morvillo Abramowitz Grand Iason & Anello PC.

The Story of Cryptocurrency

Zornberg told the chronological story of cryptocurrency. 

First, “Stick it to the Man,” 2008-2015: In 2008 in connection with the global financial crisis, the banks were restricted. In 2009, Bitcoin was launched as a peer-to-peer way of transferring money. The aim was to decentralize financial transactions so that they were not dependent on banks or the government. The development of technology for blockchain transactions was “thrilling.” Coinbase was the first U.S. exchange of digital assets but the question was who gets to create value.

Second, the “Wild West,” 2015-2020: Tech people developed initial coin offerings (ICOs). There was a question whether they were securities. Scammers preyed on vulnerable people and defrauded them. The utility tokens revitalized cross-border transactions, because transactions could reach countries with no banks. There were good actors and bad actors. It was the Wild West for regulators. There was no framework, no regulation. In 2018, William Hinman, Director of the Division of Corporation Finance of the Securities and Exchange Commission, offered some clarity concerning digital asset transactions and the legal standard that the SEC is likely to consider when evaluating a token sale.

Three, “Ripple Strikes Back,” 2020-2024: During this period, regulation was accomplished by enforcement. At the same time crypto took off, but there were also crashes as a result of fraud. The head of the SEC started aggressively litigating where there was no allegation of fraud under the securities laws. The case against Ripple was filed the last day of the Trump administration. It went after exchanges including Coinbase, which had registered. Ripple fought back. Within the SEC there was total disagreement on what a security is and how you can regulate it by enforcement. The Southern District of New York had ongoing criminal actions under the securities laws. Enforcement was crashing.

Four, Trump, 2025: The SEC dismissed all cases involving crypto stating that it was “ending regulation by prosecution.” In July, stable crypto coins were tied to the value of the dollar. President Trump pardoned a number of crypto defendants. For two weeks Congress was on the verge of passing a bill regulating crypto. The founder of Coinbase killed it.

Digital Asset Regulation

Tenreiro said that there are three cornerstone cases under the first Trump administration – Kick, Telegraph, and Ripple – that do not involve fraud. The Homice case from 1946 sets out the longstanding test for what is a security. The goal was to stop fraud before it happened by overseeing registration activities, providing for oversight and inspection to weed out the potential for fraud. Securities statutes are strict liability statutes – remedial and preventative. Every court that faced “fundamental fairness” said no issue.

Coinbase was set for regulation until it was not. Coinbase is a good actor, but greedy, and said that it did not want the Senate bill imposing regulatory structures on crypto. The SEC analyzes everything, but the crypto industry does not want to be subject to rules. It wants to set its own rules. 

VanGrack said that there are two key points. There is a misconception regarding the desire for regulation because no industry has worked harder to get rules. Coinbase filed a petition to create rules that the SEC ignored. Coinbase went to the Third Circuit to get the SEC to respond. In 2017, the SEC identified the Homice test to determine what is a security, and eight years later the SEC rules had not materially advanced. Coinbase was shocked that the SEC was planning to use an 80-year-old case to regulate.

Everyone agrees that Bitcoin is not a security. The tokens have been in existence for over a decade. The SEC did not want to regulate; it regulated by enforcement. Coinbase could not comply with the rules requiring that tokens need to be registered with an exchange, because the rules were never meant to apply to this technology. Bitcoin is a stable coin and is 75% of the market. Bitcoins are not securities. There is no authority to require registration for trading them. The SEC has no authority to regulate. There was pushback by the Biden administration to promulgate rules to register Bitcoin with the U.S. Commodity Futures Trading Commission. The SEC approved Coinbase to become a legal exchange then sued to shut it down.

Regulation by enforcement is unrealistic. There need to be rules in place, oversight and then enforcement. Enforcement is focused. Zornberg said innovators left the United States during the enforcement drive to go to Singapore and Japan.

Sassoon talked about the concept of regulation by enforcement and prosecution. She said that in April 2025, Deputy Attorney General Todd Blanche turned crypto enforcement back to traditional fraud and illegal use. He caused the DOJ to step away from prosecuting regulatory crimes. The signature cases in the Southern District of New York are cases involving allegations of fraud: FTX, Do Kown, and Alex Kazinski. FTX involved fraud allegations but not about crypto in a complicated context. The prosecution was about fraud and the defense about crypto.

Do Kown was involved in the first coin whose price was algorithmically pegged to another asset. It used an automated process to maintain value. There were hundreds of victims who allegedly were defrauded and lost savings. Alex Kasinski also allegedly defrauded people.

Zornberg said that President Trump’s pardons did not show any legitimate policy. The unlicensed money transmission business attracts criminals to launder money. This is not a traditional money transmission business. The cases that have not been abandoned by the Justice Department are those where crypto is being used to enable criminal activity.

The other frontier is exploring how AI can be used to exploit crypto platforms. Two brothers allegedly used it to trade ahead of others. The trial resulted in a hung jury. The difficult question is what is illegal and what is not under the rules.

The Future

Where do we go from here? Enforcement now is at the state level following the SEC withdrawal. The Oregon Attorney General brought a crypto case against Coinbase. It raises all sorts of issues including how to deal with different state regimes.

Any legislation would take attention. Crypto is one of the most bipartisan issues in Congress. The Clarity Act passed in the House. There is a bipartisanship desire to regulate but the Coinbase chief executive officer criticized the Senate bill and it was withdrawn. Every bill has died.

The essentials for any bill include: (1) classification; (2) spot market trading authority – CFTC; (3) a workable path to launching new tokens – SEC; and (4) a preemption provision because without one the states will want to intervene. Every version of the bill has included some form of preemption.

Zornberg noted that there is a contradiction because anti-money laundering provisions are a source of controversy in crypto regulation. The Bank Secrecy Act requires Suspicious Activity Reports and “know your customer” requirements. U.S. Deputy Attorney General Todd Blanche says that anti-money laundering provisions are not going to be applied to crypto, which creates a conflict.

Part of the Senate bill setback is that the crypto industry objects to “know your customer” rules. The more you impose bank secrecy rules the more like finance crypto becomes and less like a decentralized system. Crypto wants bespoke rules like driverless cars. It does not want speed limits to apply. There are a lot of noncriminal things. It is a cost/benefit analysis, which is dependent on the question of what crypto is intended for.

VanGrack said Coinbase licenses money transfers. Of course, the rules should be bespoke. It should be regulated in light of what it means and does. In terms of utility, the United States has easy access to banks. In a country not sufficiently banked, it changes the game. A lot of innovation was stifled in the United States because of regulation.

Trends in Article III Supervision of Bankruptcy Courts

Southern District Judge Mary Kay Vyskocil, former Southern District of New York Bankruptcy Judge and former Federal Bar Council President, moderated a panel on Trends in Article III Supervision of Bankruptcy Courts, including Corinne Ball, Jones Day; Hon. Shelly Chapman (Ret.), Willkie Farr & Gallagher LLP and retired Southern District of New York Bankruptcy Judge; and Lynn K. Neuner, Simpson Thacher & Bartlett.

Judge Vyskocil explained that the panel would focus on the scope of government authority within the judicial branch by examining the relationship between Article III courts and bankruptcy courts. Bankruptcy courts are largely independent, but Article III courts have a much narrower view of bankruptcy courts’ ability and power.

The bankruptcy system is based on the concept of a structured reset or “fresh start” for the honest but unfortunate debtor. Debt relief goes back to the Bible in both the Old and New Testaments. In the United States, the Founding Fathers recognized the need for debt relief and uniform national laws governing bankruptcy. The uniform bankruptcy laws in the Twentieth Century began with the Bankruptcy Act, enacted in 1898. The Bankruptcy Code, enacted in 1979, and subsequently amended, provided relief for creditors and relief from debt. Chapter 11 provides for corporate reorganization and Chapter 13 provides for individual reorganization. Bankruptcy judge are non-Article III judges. In the past, bankruptcy judges could hear any matters arising under or related to the bankruptcy law. The contours of that jurisdiction are subject to debate and challenge under the Bankruptcy Code. 

Ball pointed out that the 1978 statute was an immense change. It allowed debtors to keep going and keep jobs. The bankruptcy court oversaw all litigation involving affiliates, officers, and directors. The court had nationwide jurisdiction. Appeals go to the district court. Originally the judges were going to be Article III judges but senators realized that this would create several hundred federal judges for life that President Carter could appoint. Thus, they changed the structure and the power of the bankruptcy judges. Northern Pipeline found that making bankruptcy judges Article III judges would be an impermissible delegation of judicial power. The Supreme Court made Congress go back to define the grant of power to the bankruptcy courts. It took 18 months for Congress to act. In 1984, Congress passed a series of acts and amendments creating new judgeships and revamping the bankruptcy court system. Because there could not be a comprehensive jurisdiction without Article III, part of the law made the bankruptcy courts a unit of the district court. Bankruptcy judges are appointed by the circuit to 14-year terms. 

Section 1334 gives the district court original but not exclusive jurisdiction over bankruptcy cases. Under section 157, the district court may refer bankruptcy cases to bankruptcy court for all matters in core proceedings. District courts have standard referral orders that send bankruptcy cases directly to bankruptcy court. In connection with lawsuits or other proceedings, jurisdictional limits apply. In Stern v. Marshall, the Supreme Court held that bankruptcy judges may not enter final judgments on certain state law claims that are independent of the bankruptcy process. The dissent was brilliant, pointing out that the result of the majority opinion would increase frustration, costs, and delay. The problem is that companies need quick resolutions and finality. The relationship between the Southern District of New York and Eastern District of New York Article III and bankruptcy judges is one of respect. Motions to withdraw the reference from bankruptcy court to district court are often prompted by insurance companies. If there is a companion criminal investigation everyone backs off. Parties want to get out of bankruptcy court to get a jury trial. Bankruptcy decisions are appealed to the district court where the standard of review is de novo on the law and clear error on the facts. If there is a mixed question of fact and law, there is a scale of deference depending on the balance of fact and law. Bankruptcy appeals go on the six-month list like motions to keep them moving. An attempt to appeal directly to the Second Circuit will see the appeal sent to the district court. Bankruptcy Appellate Panels exist in some jurisdictions where all appeals go to the BAP. All bankruptcy judges sit on it. BAPs are popular in the Ninth Circuit, but the Second Circuit did not want it.

  Judge Chapman noted that several recent cases show the interplay between the district courts and the bankruptcy courts. In In re 2 Monkey Trading, LLC, 142 F.4th 1323 (11th Cir. 2025), the Eleventh Circuit addressed many provisions of the Bankruptcy Code. Chapter 11 provides for an expensive and lengthy reorganization that has had its jurisdictional limits changed. Subchapter 5 was added to the Bankruptcy Code to provide a faster process for smaller corporations. The end goal is restructuring and a fresh start; however, there are debts that cannot be discharged due to intentional wrongdoing, fraud, and willful misconduct. The question was what can be discharged in a Subchapter 5 proceeding. The Eleventh Circuit concluded that the statute is not clear but that Subchapter V proceedings were subject to the sections of the Bankruptcy Code setting forth general exceptions to discharge.

As Judge Vyskocil explained in In re Congoleum Corporation, 149 F.4th 318 (3d Cir. 2025), the bankruptcy court had reopened the bankruptcy case after a decade and ruled that a corporate sibling of the debtor was not liable for certain environmental claims. On appeal, the district court reversed, claiming that, because it had issued the confirmation order, it was best suited to determine the dispute arising from the confirmation order and that the bankruptcy court lacked jurisdiction. The Third Circuit reversed the district court and upheld the bankruptcy court, holding that the bankruptcy court had properly exercised its jurisdiction and had not abused its discretion in reopening the case and that it had subject matter jurisdiction because the resolution of the dispute was a core proceeding and the district court had not withdrawn the reference. 

Judge Chapman stated that the settlement of the Purdue Pharma case, involving sales of OxyContin, was foundational to opiate cases in the United States. Three generations of the Sackler family were sued because evidence showed that they worked to generate the maximum amount of income through the maximum number of sales. Purdue stopped doing business in 2020 and filed for bankruptcy and was the defendant in a criminal case. In the bankruptcy case, the goal was to get as much money as possible from the Sacklers to victims. Plaintiffs include states, individuals, emergency room doctors, and public schools. The deal was negotiated to allocate money between public and private litigants.

There was a plan of reorganization but half of the states did not sign on so the parties raised the amount to be paid. The plan included nonconsensual third-party releases, and Bankruptcy Judge Robert D. Drain approved the plan. District Judge Coleen McMahon reversed, finding that the non-consensual releases were not authorized by the Bankruptcy Code. The Second Circuit reversed Judge McMahon, and the case was appealed to the Supreme Court.

Neuner said that the Supreme Court with a 5-4 decision written by Justice Neal Gorsuch allowed the plan to go forward but held that the Bankruptcy Code did not allow nonconsensual releases for the Sacklers. In a dissent, Justice Brett Kavanagh said the decision was wrong and would be devastating for the victims. The parties put together a new plan with an opt-in provision. In the ballot for voting on the plan, creditors had to check a box consenting to the releases. They were told that they would get more money if they opted in. 

In In re Azul S.A., 2026 WL 40912 (Bankr. S.D.N.Y. Jan. 6, 2026), Judge Lane issued a far stronger decision, approving a plan where the third-party releases were only “granted for creditors who took the affirmative step of returning a ballot but did not check the box for opt out.” Judge Chapman noted that more leeway would be provided for sophisticated parties while releases in connection with smaller individual creditors should not be broad.

Equitable mootness is a judicially created concept which is applied where a bankruptcy plan is so far along that granting an objection to the plan would be inequitable. In In re Serta Simmons Bedding, L.L.C., 125 F.4th 555 (5th Cir. 2025), the question was the liability of management for debts. The company did a lot of foreign shipping. It filed in Texas and got confirmed quickly. The losers appealed directly to the circuit court from the bankruptcy court. The Fifth Circuit narrowed the equitable mootness doctrine. Only creditors who justifiably rely on the plan are entitled to equitable mootness.

Standing to challenge a plan of reorganization is defined by section 1109(b) of the Bankruptcy Code. There must be relatedness to what is happening in the case and the objector’s rights must be impaired by the plan. A creditor who buys a claim becomes a creditor and has standing, whereas insurers did not have any standing. Subsequently, in In re Kaiser Gypsum Company, Inc. (Truck Insurance Exchange v. Kaiser Gypsum Company, Inc.), 602 U.S. 268, 144 S. Ct. 1414 (2024), the Supreme Court held that insurers are allowed to be heard if they are impacted. 

Judge Vyskocil looked at how district courts view estimation proceedings on appeal in In re FTX Trading, Ltd., 22-11068, 2025 WL 3470890 (D. Del. Dec. 3, 2025). The purpose of the estimation process is to get the debtor out of Chapter 11. The court sets a reserve and undertakes an estimation for reserve purposes only. The process results in small trials. FTX was able to confirm its reorganization plan quickly. In the bankruptcy court, there were six expert reports regarding valuing crypto. It was an evidentiary issue. The bankruptcy judge based the opinion on a rebuttal expert. This was not a question of law; the analysis started and ended with facts.

The final issue the panel discussed was who is eligible to be a debtor in bankruptcy. The requirements are set out in section 109 of the Bankruptcy Code. A debtor must have financial distress. The panel raised the question whether Johnson & Johnson’s approach of setting up a subsidiary is a good faith filing. The Third Circuit held that if a debtor guarantees full payment, the bankruptcy does not have a valid purpose.

 Supreme Court Review

Second Circuit Judge William J. Nardini moderated a Supreme Court Review panel composed of Neal K. Katyal and Miguel A. Estrada, Gibson Dunn & Crutcher LLP. Judge Nardini said that the panel would focus on the big cases including tariffs, birthright citizenship and agency independence. 

Katyal gave an overview of the Court term. Chief Justice Roberts’ efforts to steer the Court to unanimous decisions has not succeeded since 2005. In 2024, 42 cases were unanimous; in 2023, 44; in 2022, 50; and in 2021, 29. The Chief Justice has been on the winning side 95% of the time, followed by Justices Kavanagh and Jackson. Justices Alito and Thomas were in agreement 97% of the time; Chief Justice Roberts and Justice Kavanagh, 92 % of the time; and Justices Alito and Jackson only 53%. Of cases decided by the Court, 71% were reversals, which is about average. The First, Fourth, Ninth, and Tenth Circuits had a 100% reversal rate. The Fifth Circuit was the most reversed and is the most conservative circuit. The Second Circuit has a 60% reversal rate. Justice Jackson spoke the most; Justice Thomas the least. 

Estrada pointed out that historically, the Court has unanimity 40% of the time. The conservatives are not as solid a block as might be expected. Justices Alito and Thomas are aligned on the right; Justice Gorsuch is quirky; Justices Barrett and Kavanagh often vote with the liberals; and the questions asked by the three liberal justices often reflect their approaches to the case.

Judge Nardini noted that the number of cases granted certiorari since 1989 have gone down. In 2024, it was 62 cases. One reason for smaller grants of certiorari is that circuits have avoided conflict. In the emerging docket, President Trump has been winning. Last year, out of 24 cases based on administration actions, President Trump won 20 of them, losing the National Guard case and the Alien Enemies Act case.

Estrada said that in 1988, Congress got rid of mandatory jurisdiction, allowing direct appeal to the Court. As the Court has become more polarized, it has become more strategic on taking cases. The Court will not take a case if the merits are going to be a disaster.

The number of decisions issued between October and January has dropped dramatically. In 1986, Justices O’Connor and Ginsberg raced to get out the first decision. In the current term, the first decision, a Justice Sotomayor decision, came out on January 6, making her the new speediest Justice.

Tariffs

The case against the tariffs, Learning Resources, Inc. v. Trump, 24-1287, started in the Court of International Trade with five small businesses as plaintiffs; plaintiffs won in the Court of International Trade and then in the Federal Circuit, sitting en banc. Plaintiffs also won in a separate district court case, Trump v. V.O.S. Selections, Inc., No. 25-250, and the government sought direct appeal to the Supreme Court, bypassing the court of appeals. The government moved to stay the decision. The plaintiffs did not seek emergency relief before oral argument. 

The Court said that only one person could argue the side challenging the tariffs. Katyal, on behalf of the plaintiffs, argued that: (1) The Major Questions Doctrine was a new and suspect power; (2) the International Emergency Economic Powers Act (IEEPA) requires an unusual emergency and imminent threat, but is a hard argument to win; and (3) tariffs are taxes which the president does not have the authority to impose. The statute is ambiguous regarding presidential power. The question is what would the Court or the administration do if the tariffs were declared illegal. Huge amounts of money have been coming in; $350 billion at the time of the argument. The Court worried about remedies.

Estrada said that if this were a normal president this would be a hard case. Nixon had imposed taxes. Here, the statute provides the president with the power only if there is an unusual and extraordinary threat. However, the president is imposing tariffs on every country without an unusual and extraordinary threat which makes the case harder for the administration.

Birthright Citizenship

Estrada said that President Trump issued an executive order banning birthright citizenship with prospective effect stating that babies born to aliens would not have citizenship even if the mother was here legally. Further, the United States would not recognize state documents recognizing the child as a citizen. 

This term the District of New Hampshire certified a class action of babies born after 2/20/25 and held that the executive order violated the Fourteenth Amendment to the Constitution. The government’s argument in support of the executive order was that children of illegal aliens are not “subject to the jurisdiction thereof,” meaning the United States, under the Fourteenth Amendment, because the parents are in the United States unlawfully. Estrada urged that the government’s argument is light on support. In an 1898 Supreme Court case, Wong Kim Ark, the U.S. government refused to recognize him as a citizen. He was born in the United States but was a subject of the Chinese emperor. The Supreme Court said that he was a citizen. Katyal said that he used to start his arguments with precedent, but now he leads with principles.

Firing of Independent Agency Heads

Katyal pointed out that there are differences between the Cook (Federal Reserve) and Slaughter (Federal Trade Commission) cases. President Trump said he removed Lisa Cook for “cause” based on alleged misstatements in a mortgage application that predated her appointment to the Federal Reserve Board. The issues are (1) whether Cook was entitled to notice and a hearing before removal; (2) the mortgage fraud preceded her Federal Reserve appointment; and (3) whether the Court can order reinstatement. There are three routes for the Court to take: (1) hold that she could be fired “for cause” but not for these actions, and define “for cause” under the statute, and also determine that federal courts can order reinstatement; (2) the procedural posture of the case is that her removal has been stayed, and even the administration says that the Federal Reserve is different; and (3) the Court would not decide cause, because the allegations supporting cause are shadowy and weak; instead, the Court would rely on the lack of due process.

Estrada said that the Slaughter case relies on Humphrey’s Executor v. United States, 295 U.S. 602 (1935), precedent from the heyday of the administrative agency. President Roosevelt fired Humphrey, who thereafter died of a stroke. At the Supreme Court there was a fight about money, i.e., his salary after he was fired. The Trump administration takes the position that all statutes providing that people on independent agencies can only be fired for cause are unconstitutional. The Court seems on the verge of declaring Humphrey’s Executor, which upheld for-cause removal protection for members of independent agencies, dead or a creature of its age. The Court does not even have to overrule it.

In Cook, there is a footnote that says the Federal Reserve is a different agency. Katyal said that because of the need for calm markets, the Court will make sure the Federal Reserve’s independence is untouched.

Transgender Athletes in Sports and Conversion Therapy

Estrada talked about Hecox v. Little, 104 F.4th 1061 (2024).  The Ninth Circuit held that an Idaho statute banning all transgender women and girls from participating in women’s student athletics violated the Equal Protection Clause and Title IX. It was clear from the oral arguments before the Supreme Court that it would be easy to avoid the Fourteenth Amendment claim by finding unfair competition or an undue amount of force. Estrada said that whether or not they apply elevated scrutiny, the Court will decide on a rational basis. In U.S. v. Skrmetti, the Supreme Court upheld the Tennessee statute restricting puberty blockers for minors, determining that it was subject to analysis by “rational basis” only, not heightened scrutiny.

Justice Gorsuch looks to the plain text of the statute. Transgender statutes are based on sex and changes to sex. Gorsuch could struggle here with his focus on plain text.

In Chiles v. Salazar, 116 F.4th 1178 (10th Cir. 2024), the court refused to issue a preliminary injunction against enforcement of a Colorado law that bars health care professionals from providing conversion therapy and said that strict scrutiny was not applicable. This statute is regulating conduct, not speech, whereas a problem statute would regulate speech and nothing else. Estrada said that the Court will flip the decision and send it back. Katyal said that the Colorado law will not survive and it will be interesting to see what the Court does. In the Colorado case there is no evidence that conversion therapy works.