Supreme Court of the United States · Official docket →
Holly Ann Elkins v. United States
Paid petition · United States Court of Appeals for the Fifth Circuit, No. 24-10753 · judgment December 10, 2025
(petition-stage, structural)
Well below the 4.1% base rate, with no standout signals pointing toward a grant.
Question presented
This Court has identified three broad categories of activity that Congress may regulate under its commerce power, the second of which comprises “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.” United States v. Lopez, 514 U.S. 549, 558–59 (1995). Some courts take a categorical approach to this category, as the Fifth Circuit did here: phones just are instrumentalities of interstate commerce. United States v. Elkins, 161 F.4th 899, 912 (2025). In the Tenth Circuit, however, something that can be an instrumentality, like a motor vehicle, is not necessarily one. United States v. Chavarria, 140 F.4th 1257, 1265 (10th Cir. 2025). It must actually “affect interstate commerce in some way for its use to warrant federal interest.” Id. Is the Fifth Circuit’s categorical approach to instrumentalities of interstate commerce constitutional?
Counsel of record
For petitioner
Brett Evan Ordiway
Ordiway PLLC
For respondent
D. John Sauer
Solicitor General
Case
Conference history
Distributed for 2 conferences
Amicus briefs
1 cert-stage
Proceedings
- Jul 29 2026DISTRIBUTED for Conference of 9/28/2026.
- Jul 22 2026Reply of petitioner Holly Elkins filed.
- Jul 13 2026Brief of respondent United States in opposition filed.
- Jun 01 2026Motion to extend the time to file a response is granted and the time is further extended to and including July 13, 2026.
- May 29 2026Motion to extend the time to file a response from June 12, 2026 to July 13, 2026, submitted to The Clerk.
- May 11 2026Motion to extend the time to file a response is granted and the time is extended to and including June 12, 2026.
- May 07 2026Motion to extend the time to file a response from May 13, 2026 to June 12, 2026, submitted to The Clerk.
- Apr 13 2026Response Requested. (Due May 13, 2026)
- Apr 06 2026Brief amicus curiae of Texas Criminal Defense Lawyers Association filed. (Distributed)
- Mar 25 2026DISTRIBUTED for Conference of 4/17/2026.
- Mar 19 2026Waiver of right of respondent United States to respond filed.
- Mar 04 2026Petition for a writ of certiorari filed. (Response due April 6, 2026)