Briefing on State Impacts from the U.S. Supreme Court’s 2022-2023 Term

The National Governors Association recently hosted a briefing for Governors’ legal counsel reviewing the U.S. Supreme Court’s 2022-2023 term. The U.S. Supreme Court issued a number of decisions of interest to state and territorial governments during its most recent term. The court delivered 58 decisions in total, with most cases originating from the Ninth Circuit Court of Appeals (14 cases) and the Fifth Circuit Court of Appeals (8 cases). 6 cases originated from state and district courts.

Key issues for states from the term include the following:

  • Elections and Redistricting. In Moore v. Harper, the court held that the U.S. Constitution’s Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections. In Merrill v. Milligan, the court affirmed the District Court’s determination that plaintiffs demonstrated a reasonable likelihood of success on their claim that Alabama’s 2021 redistricting plan violated Section 2 of the Voting Rights Act.
  • Interstate Commerce. In National Pork Producers Council v. Ross, the court held that the California law forbidding in-state sale of pork produced from animals “confined in a cruel manner” did not violate the dormant Commerce Clause.
  • Affirmative Action. In Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, the court ruled that race-conscious admissions policies at private and public institutions violate the Fourteenth Amendment’s Equal Protection Clause.
  • First Amendment. In 303 Creative LLC v. Elenis, the court held that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees. In Counterman v. Colorado, the court held that to establish that a statement is a “true threat” unprotected by the First Amendment, the state must prove that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.
  • State/Indian Affairs. In Haaland v. Brackeen, the court upheld the Indian Child Welfare Act, which seeks to keep Native American children with their tribes and preserve their heritage. In Arizona v. Navajo Nation, the court said the 1868 treaty establishing the Navajo Reservation reserved necessary water to accomplish the purpose of the Navajo Reservation but did not require the United States to take affirmative steps to secure water for the Tribe.
  • Immigration. In United States v. Texas, the court held that Texas and Louisiana lacked Article III standing to challenge the Biden administration’s immigration-enforcement policy.
  • Environment. In Sackett v. Environmental Protection Agency, the court held that the EPA lacked the ability to regulate the petitioner’s property, and that the legal definition of wetlands is limited to areas with a continuous surface connection to other waters.
  • Student Loans. In Biden v. Nebraska, the court said the Secretary of Education lacked the authority under the HEROES Act to rewrite that statute to the extent of canceling $430 billion of student loan principal. Department of Education v. Brown was dismissed for lack of standing.
  • State Militias. In The Ohio Adjutant General’s Department v. Federal Labor Relations Authority, the court held that the Federal Labor Relations Authority had jurisdiction over a labor dispute because a state National Guard acts as a federal agency for purposes of the Federal Service Labor-Management Relations Statute when it hires and supervises dual-status technicians serving in their civilian role.

NGA holds monthly briefings for Governors’ legal counsel. Please reach out to Lauren Dedon ( for additional information.