Application of the Rehabilitation Act and Americans with Disabilities Act to State Institutionalization of Patients with Severe Mental Illness or Disabilities

(Slip Opinion) Application of the Rehabilitation Act and Americans with Disabilities Act to State Institutionalization of Patients with Severe Mental Illness or Disabilities In prohibiting discrimination on the basis of disability, neither section 504 of the Rehabili- tation Act nor Title II of the Americans with Disabilities Act (“ADA”) imposed an inte- gration mandate on states in their treatment of mentally disabled individuals. Nor does either statute authorize the responsible Executive Branch agencies to impose such a mandate. A statutory mandate that states treat mentally disabled patients in maximally integrated settings would raise serious questions regarding the scope of Congress’s power under the Fourteenth Amendment, the Interstate Commerce Clause, and the Spending Clause. In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the Supreme Court did not hold that section 504 of the Rehabilitation Act or Title II of the ADA require states to treat mentally disabled patients in the most integrated setting appropriate to their needs. June 18, 2026 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT Since the early 1970s, Congress has enacted a number of legislative measures aimed at eliminating discrimination against disabled individuals in the United States. 1 One aspect of this antidiscrimination effort has been to ensure that services are available to individuals with disabilities on the same terms as to other individuals. In 1973, Congress passed the Rehabili- tation Act, section 504 of which prohibited discrimination based on disa- bility by entities administering “any program or activity receiving Federal financial assistance.” Pub. L. No. 93-112, § 504, 87 Stat. 355, 394 (codi- fied as amended at 29 U.S.C. § 794). In 1990, Title II of the Americans with Disabilities Act (“ADA”) applied that prohibition to the provision of public services by any “public entity.” Pub. L. No. 101-336, § 202, 104 Stat. 327, 337 (codified at 42 U.S.C. § 12132). In implementing these statutory proscriptions against discrimination, the Department of Health & Human Services (“HHS”) and the Depart- 1 Throughout history, the law has used terms to describe individuals with disabilities— particularly mental or cognitive disabilities—that many consider cruel, disparaging, or even shameful. E.g., Michael Clemente, Note, A Reassessment of Common Law Protec- tions for “Idiots,” 124 Yale L.J. 2746, 2763–64 (2015). We take those terms as we find them without normative judgment regarding either their use or the people they describe. 1  50 Op. O.L.C. __ (June 18, 2026) ment of Justice (“DOJ”) have required covered entities to administer their programs “in the most integrated setting appropriate to the needs of a qualified person with a disability.” 45 C.F.R. § 84.76(b) (HHS); see also 28 C.F.R. § 35.130(d) (DOJ) (nearly identical). 2 Imposing what is now known as the “integration mandate,” these regulations dictate the setting in which states must provide healthcare services to individuals with men- tal illness or disabilities. In promulgating its version of the mandate, DOJ explained that the “most integrated setting” is “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 56 Fed. Reg. 35,694, 35,705 (July 26, 1991); accord 45 C.F.R. § 84.10 (HHS). Citing these regulations, the Supreme Court held in Olmstead v. L.C. ex rel. Zimring that “unjustified institu- tional isolation of persons with disabilities is a form of discrimination” prohibited under Title II. 527 U.S. 581, 600 (1999). Over the past two decades, DOJ’s Civil Rights Division (“CRT”) has relied on its integration mandate and Olmstead to pressure states into discharging individuals from mental-health institutions. See Olmstead: Community Integration for Everyone, ADA.gov (June 22, 2022), https:// perma.cc/LD7X-B8B3. By threatening or bringing federal enforcement action, CRT has successfully elicited consent decrees, remedial orders, or out-of-court agreements in nearly a dozen states, obligating the partici- pants to meet DOJ’s deinstitutionalization benchmarks. 3 As a result of these efforts, states typically agree to deinstitutionalize “based on each individual’s needs and not on the availability, perceived or actual, of current community resources and capacity.” Class Action Settlement Agreement at 14, United States v. New Hampshire, No. 12-cv-53 (D.N.H. Feb. 12, 2014), Dkt. 105. They also usually commit to “avoid admitting 2 The Secretary of HHS inherited the duties of the Secretary of Health, Education, and Welfare for implementing section 504. See Pub. L. No. 96-88, § 301(a)(4)(A), 93 Stat. 668, 678 (1979) (codified at 20 U.S.C. § 3441(a)(4)(A)); see also 20 U.S.C. § 3508. The Attorney General has the same responsibility with respect to Title II. Pub. L. No. 101- 336, § 204, 104 Stat. at 337 (codified at 42 U.S.C. § 12134). 3 Memorandum for R. Jonas A. Geissler, Deputy Assistant Attorney General, Civil Rights Division, from James Fletcher, Trial Attorney, Civil Rights Division, et al., Re: List of DRS Olmstead Matters in Various Stages (Apr. 6, 2026); Memorandum for R. Jonas A. Geissler, Deputy Assistant Attorney General, Civil Rights Division, Re: SPL Open Olmstead Matter (Apr. 6, 2026). 2 Whether the Rehabilitation Act or ADA Impose or Authorize an Integration Mandate persons with developmental disabilities to [institutions], except where individuals’ acute psychiatric needs cannot be addressed in a more inte- grated service or treatment setting.” Id. at 15. You have asked us three questions relating to the integration mandate: (1) whether Olmstead conclusively decided that section 504 of the Reha- bilitation Act and Title II of the ADA impose (or authorize the imposition of) the integration mandate; (2) assuming the question remains open, whether Congress constitutionally could impose such a mandate; and (3) whether Congress statutorily did impose such a mandate.4 Having sought and considered the views of HHS, CRT, and the Office of Legal Policy (“OLP”), 5 we now answer the first and third questions in the nega- tive. Because we conclude that Congress has not imposed an integration mandate on states, we do not need to resolve the second question concern- ing such a mandate’s constitutionality. Nevertheless, the canon of consti- tutional avoidance—which applies due to the serious constitutional ques- tions posed by the mandate—supports our statutory conclusion. I. We start with whether Olmstead conclusively imposes an integration mandate as a requirement of Title II. We conclude that it does not. Alt- hough many have read Olmstead quite broadly, the Court’s actual holding was narrow: that “unjustified institutional isolation of persons with disa- bilities is a form of discrimination” prohibited under Title II. 527 U.S. at 600. This holding leaves several issues unresolved and forms the back- drop for the remainder of our analysis. 4 See E-mail for T. Elliot Gaiser, Assistant Attorney General, Office of Legal Counsel, from Samuel D. Adkisson, Associate Counsel to the President, White House Counsel’s Office, Re: Request for Opinion - ADA Integration Mandate (Feb. 17, 2026, 6:12 PM). 5 See Memorandum for the Office of Legal Counsel, from the Office for Civil Rights, Department of Health and Human Services, Re: Agency Views Regarding Lawfulness of 45 C.F.R. § 84.76 (Apr. 22, 2026); Memorandum for T. Elliot Gaiser, Assistant Attorney General, Office of Legal Counsel, from Daniel E. Burrows, Assistant Attorney General, Office of Legal Policy, Re: Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the Integration Mandate (Apr. 6, 2026) (“OLP Memo”); Memorandum for T. Elliot Gaiser, Assistant Attorney General, Office of Legal Counsel, from Jonas Geissler, Deputy Assistant Attorney General, Civil Rights Division, Re: Responding to OLC Inquir[i]es on ADA and Rehabilitation Act (Mar. 3, 2026). 3  50 Op. O.L.C. __ (June 18, 2026) A. Olmstead involved the claims of two “mentally retarded women,” one of whom “ha[d] also been diagnosed with schizophrenia,” the other “with a personality disorder.” Id. at 593. Each was confined to a psychiatric facility in Georgia during an episode of acute illness. Id. Both alleged, inter alia, that Georgia healthcare officials had violated Title II by keep- ing them confined in the institution after “treating professionals deter- mined” that placement in “a community-based program” was appropriate. Id. at 594. When their case reached the Supreme Court, the question presented was “whether the [ADA’s] proscription of discrimination may require placement of persons with mental disabilities in community set- tings rather than in institutions.” Id. at 587 (plurality opinion). A plurality of the Court answered that question with “a qualified yes.” Id. The Court—by the narrowest possible margin—held that “unjustified institutional isolation of persons with disabilities is a form of discrimina- tion” prohibited under Title II. Id. at 600 (majority opinion). It drew this conclusion not from the ADA’s text but by reference to DOJ’s regula- tions. See id. at 596–603. Specifically, the Court took 28 C.F.R. § 35.130(d) as its starting point, noting that “the Attorney General con- cluded that unjustified placement or retention of persons in institutions . . . constitutes a form of discrimination based on disability.” Id. at 596. Because DOJ is “the agency directed by Congress to issue regulations implementing Title II,” the Court concluded that the department’s view “warrant[ed] respect.” Id. at 597–98. But the Court also emphasized that its opinion did not “determine the[] validity” of any such regulation. Id. at 592. In seeking to persuade the Court to the contrary, Georgia had made two counterarguments rooted in Title II’s text. The State argued that institu- tional isolation of individuals with mental disabilities cannot be “discrim- ination ‘by reason of’ . . . disabilities” when patients are “not denied community placement on account of those disabilities” but on account of other factors. Id. at 598 (emphasis added) (citation omitted). Nor could it be discrimination, said the State, because “‘discrimination’ necessarily requires uneven treatment of similarly situated individuals.” Id. (citation omitted). 4 Whether the Rehabilitation Act or ADA Impose or Authorize an Integration Mandate The Court rebuffed those arguments, writing that “Congress had a more comprehensive view of the concept of discrimination advanced in the ADA” than the statutory text suggested—a view that encompassed unjus- tified institutional isolation, even without a similarly situated comparator. Id. at 598 & n.10; see id. at 598–600. As support for this conclusion, the Court pointed to (1) Congress’s general efforts “to secure opportunities for people with developmental disabilities to enjoy the benefits of com- munity living,” and (2) Congress’s “findings” underlying the ADA, which twice identified “segregation” as a “for[m] of discrimination.” Id. at 599– 600 (alteration in original) (quoting 42 U.S.C. § 12101(a)(2), (5)). Then, hypothesizing why Congress may have considered unjustified isolation to be discriminatory, the Court observed that isolation does create “[d]issimilar treatment,” in that it requires “persons with mental disabili- ties . . . [to] relinquish participation in community life they could enjoy given reasonable accommodations” in order to receive medical services, “while persons without mental disabilities can receive the medical ser- vices they need without similar sacrifice.” Id. at 601.6 Importantly for the purpose of your question, although a majority of the Court agreed that Title II prohibited “unjustified institutional isolation,” id. at 600, that majority splintered in suggesting how to determine when “States are required to provide community-based treatment for persons with mental disabilities,” id. at 607 (plurality opinion). Justice Ginsburg, writing for a plurality of four, instructed lower courts to consider whether: (1) “the State’s treatment professionals determine that such placement is appropriate,” (2) “the affected persons do not oppose such treatment,” and (3) “the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Id. In a portion of the opinion belonging to the plural- ity, Justice Ginsburg stated that when all three conditions attain, deinstitu- tionalization is mandatory. See id.; see also id. at 587 (asserting that community-based treatment “is in order” under these conditions). 6 In doing so, the Court did not expressly distinguish between the named plaintiffs’ developmental disabilities and the acute episodes of mental illness that led to their institutionalization—instead referring only to “mental disability.” E.g., Olmstead, 527 U.S. at 597–603 (majority opinion). This treatment is consistent with other instances in which the law has treated mental illness and disability as synonymous. See, e.g., Schweiker v. Wilson, 450 U.S. 221, 231–32 n.14 (1981). Given that those distinctions do not affect our analysis, we will follow the convention set by Olmstead. 5  50 Op. O.L.C. __ (June 18, 2026) The case generated three additional opinions. First, Justice Stevens concurred in the judgment as well as in the majority’s fundamental hold- ing that “‘unjustified institutional isolation[]’ constitutes discrimination under the Americans with Disabilities Act of 1990.” Id. at 607 (Stevens, J., concurring in part and concurring in the judgment). He withheld his vote, however, from the plurality’s definition of when isolation is unjusti- fied. Id. at 607–08. Instead, he would have remanded for the district court to consider that question in the first instance. Id. Second, Justice Kennedy concurred in the Court’s judgment but not its reasoning, writing separately both to express reservations and to explain how unjustified institutional isolation may constitute unlawful discrimina- tion. Id. at 609–12 (Kennedy, J., concurring in the judgment). His reserva- tions—shared by Justice Breyer—grew out of the “dark side” of deinstitu- tionalization. Id. at 609. Justice Kennedy observed that patients pre- maturely released from in-patient care frequently end up homeless or even incarcerated. Id. at 609–10. In words that have proven all too prescient, 7 he remarked “it would be a tragic event . . . were the [ADA] to be inter- preted so that States had some incentive, for fear of litigation, to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision.” Id. at 610. Justice Kennedy therefore advised “caution and circumspection” in holding States liable for institutionalizing patients, along with “great deference to the medical decisions of the responsible, treating physicians” and “appropriate deference to the program funding decisions of state policymakers.” Id. As for the discriminatory nature of institutional isolation, Justice Ken- nedy (writing only for himself) accepted the dissent’s view that “the ordinary interpretation and meaning” of the term “discrimination” neces- sarily implies “differential treatment vis-à-vis members of a different group on the basis of a statutorily described characteristic.” Id. at 611 7 In just the period between 2018 and 2024, the rate of chronic homelessness increased by over 70%. Akash Pillai, Heather Saunders & Robin Rudowitz, Five Key Facts About People Experiencing Homelessness, Kaiser Family Found. (Sept. 9, 2025), https:// perma.cc/KJ3F-WC87. Of the individuals experiencing homelessness in 2024, 22% had serious mental illness, id., and 67% had some mental-health disorder, Rebecca Barry et al., Prevalence of Mental Health Disorders Among Individuals Experiencing Homeless- ness: A Systematic Review and Meta-Analysis, 81 JAMA Psychiatry 691, 695 (2024). 6 Whether the Rehabilitation Act or ADA Impose or Authorize an Integration Mandate (citation omitted). In-patient treatment, he explained, can fit that rubric, though not “always” or “by [its] nature.” Id. at 614. When, “without adequate justification,” states expose patients with mental disabilities “to more onerous treatment than a comparison group” in providing medical services, this “irrational” distinction is discriminatory. Id. at 611. Hence, it may amount to “discrimination on the basis of mental disability” if “individuals suffering from medical problems of comparable seriousness” receive treatment in “the most integrated setting appropriate for the treat- ment of those problems,” but mentally disabled patients do not. Id. at 612. Justice Kennedy further recognized that every state “must make hard decisions on how much to allocate to treatment of diseases and disabili- ties,” id., and that they must “not be forced to create a community- treatment program where none exists,” id. at 613. Third, Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, dissented, based primarily on the textual meaning of “discrimina- tion.” As noted, Justice Thomas shared—in fact, supplied—Justice Ken- nedy’s formulation of the ordinary meaning of discrimination as “differ- ential treatment vis-à-vis members of a different group on the basis of a statutorily described characteristic.” Id. at 616 (Thomas, J., dissenting). But unlike Justice Kennedy, Justice Thomas concluded that a state’s decision to treat some patients with mental disabilities in institutions— regardless of whether it uses more integrated settings for other patients— can never “amount to ‘discrimination’ in the traditional sense of the word.” Id. Such treatment decisions, he maintained, show only that “some members of a protected group [here, mentally disabled persons] are treat- ed differently from other members of that same group.” Id. at 622–23. And “dissimilar treatment” between disabled and nondisabled persons, Justice Thomas observed, often “results merely from the fact that different classes of persons receive different services—not from ‘discrimination’ as traditionally defined.” Id. at 625. In Justice Thomas’s view, rather than prohibiting differential treatment of “similarly situated persons,” the majority read Title II to impose a specific “standard of care” for patients with mental disabilities treated by the states. Id. at 623. B. Properly understood, Olmstead did not conclusively resolve your re- maining questions, thus requiring any interested parties to “navigate . . . 7  50 Op. O.L.C. __ (June 18, 2026) the murky waters between” the constitutional, statutory, and regulatory provisions at play on their own. Arc of Wash. State Inc. v. Braddock, 427 F.3d 615, 617 (9th Cir. 2005). When the Court splinters on the rationale for its judgment, we are to look for the “position taken by those Members who concurred in the judgment[] on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977) (citation omitted). In this in- stance, there were not five votes for the proposition that Title II imposes an integration mandate on states—let alone that such a mandate would pass constitutional muster. Five justices agreed that “unjustified institutional isolation of persons with disabilities is a form of discrimination” prohibited under Title II. Olmstead, 527 U.S. at 600. Olmstead offers remarkably little guidance, however, about the circumstances under which in-patient—that is, institu- tional—treatment is unjustified. Recall Justice Ginsburg’s view that “States are required to provide community-based treatment” when three factors are present, namely when: (1) an individual’s “treatment profes- sionals determine that such placement is appropriate,” (2) that individual “do[es] not oppose such treatment,” and (3) “the placement can be rea- sonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Id. at 607 (plurality opinion) (emphasis added). But that view appears only in sections of the opinion that expressly are not the opinion of the Court. See id. at 587 (opinion of the Court limited to “Parts I, II, and III-A”).8 Thus, Olmstead did not conclusively resolve which justifications a state may offer in defense of its treatment choices—it held only that institutionalization must be “[]justified.” Id. at 600 (majority opinion). The Court’s majority did make clear that it was not “determin[ing] the[] validity” of the HHS and DOJ regulations, meaning it had no occasion to decide whether “the regulatory formulations themselves [are] outside the 8 The paragraph appearing after the dinkus—the “set of three asterisks . . . used to di- vide sections of text,” Joe Fore, Ending a Section with Style, 71 Va. Law. 54, 54 (2023) (emphasis omitted)—is not part of the majority opinion and indeed cites parts of the plurality’s reasoning from Part III-B that the Court’s deciding votes expressly did not join. Compare Olmstead, 527 U.S. at 607 (discussing whether institutional “placement can be reasonably accommodated, taking into account the resources available to the State”), with id. at 604 (plurality opinion) (describing “the reasonable-modifications regulation” designed to “allow the State to show that, in the allocation of available resources, immediate relief for the [disabled] would be inequitable”). 8 Whether the Rehabilitation Act or ADA Impose or Authorize an Integration Mandate congressional authorization.” Id. at 592. To be sure, the Court cited the regulations as persuasive authority for its holding that isolation could, under some circumstances, amount to discrimination even without prefer- ential treatment for similarly situated persons who do not have the same disabilities. See id. at 597–98. But accepting that proposition does not require a state to move institutionalized patients to “the most integrated setting appropriate to the[ir] needs.” 28 C.F.R. § 35.130(d). In other words, stating that institutional isolation can be discriminatory does not equate to saying that it is discriminatory under specific circumstances. One counterargument, which the Seventh Circuit has accepted, is that the first two factors proposed by the plurality—professional determination of fitness for community-based treatment and patient opposition to care in an in-patient setting—should be deemed part of the Court’s holding because they “appear in Section III.A of the Olmstead decision.” Steimel v. Wernert, 823 F.3d 902, 914 (7th Cir. 2016). The majority opinion certainly references “the reasonable assessments of [a state’s] profession- als” and patient “desire” as relevant to the question of whether institution- alization—that is, the provision of care in an in-patient setting, typically over the medium or long term—is justified in a given case. Olmstead, 527 U.S. at 602. But not even the Olmstead plurality held that Title II makes maximal integration obligatory based on these factors alone. Given the dire consequences it has already spawned for so many, see supra note 7, we decline to go further than Olmstead clearly required by its limited majority rule. Cf. Richard M. Re, Beyond the Marks Rule, 132 Harv. L. Rev. 1943 (2019) (discussing the difficulties in applying the Marks “nar- rowest grounds” framework); Adam Steinman, Nonmajority Opinions and Biconditional Rules, 128 Yale L.J.F. 1, 2–3 (2018) (same). With respect to professional assessment and patient consent, the Olmstead majority opinion says only that these factors can justify so- called institutionalization. Specifically, the Court said that “the State generally may rely on the reasonable assessments of its own professionals in determining whether an individual ‘meets the essential eligibility requirements’ for habilitation in a community-based program.” 527 U.S. at 602 (emphasis added). The Court further observed that there is no “federal requirement that community-based treatment be imposed on patients who do not desire it.” Id. 9  50 Op. O.L.C. __ (June 18, 2026) But it is a logical fallacy to say that the Court necessarily held the in- verse: that without these factors a public entity cannot justify treatment in an institutional setting.9 Indeed, the majority explained that it offered these factors to “emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings.” Id. at 601–02. Read in this light, the opinion permits treatment in an institution based on professional assessment and patient consent. It does not say that these factors are the only acceptable justifications. Such statements that Title II “require[s] placement of persons with mental disabilities in community settings rather than in institutions” appear only in portions of the Olmstead opinion written by the plurality. Id. at 587 (plurality opinion); see also id. at 607. A second counterargument is that Olmstead took at least some justifica- tions off the table when it rejected Georgia’s argument that the choice to institutionalize a patient “due to insufficient space in the program, insuffi- cient federal or state resources, or safety concerns” was not based on disability but on other factors. Brief for Petitioners at 20, Olmstead, 527 U.S. 581 (No. 98-536). As noted above, the Court implicitly repudiated that argument (without addressing the legitimacy of the cited rationales), along with the argument about the need for a comparator to establish “discrimination.” See Olmstead, 527 U.S. at 598. Importantly, the two rejected arguments were distinct textual moves, one about the meaning of “discrimination” and the other about the meaning of “by reason of.” Cf. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 350–52 (2013). Although the Court rejected the view that program capacity, resource constraints, and safety concerns automatically break the causal link be- tween disability and discrimination, it did not decide whether—because Georgia did not argue that—those considerations were sufficient justifica- tions for in-patient treatment in an institution. Cf. Cooper Indus., Inc. v. 9 See NLRB v. Noel Canning, 573 U.S. 513, 589 (2014) (Scalia, J., concurring in the judgment) (discussing “the fallacy of the inverse (otherwise known as denying the antecedent)” as “the incorrect assumption that if P implies Q, then not-P implies not-Q”); see also, e.g., United States v. Holland, 117 F.4th 1352, 1359 (11th Cir. 2024) (same); Memorandum for the Legal Advisor, National Security Council, from T. Elliot Gaiser, Assistant Attorney General, Office of Legal Counsel, Re: Proposed War Department Operation to Support Law Enforcement Efforts in Venezuela at 16 (Dec. 23, 2025). 10 Whether the Rehabilitation Act or ADA Impose or Authorize an Integration Mandate Aviall Servs., Inc., 543 U.S. 157, 170 (2004). If they are, then such institu- tional treatment is not discriminatory in the first place, meaning there is no need to reach the second question of whether discrimination is “by reason of” disability. Looking only to those aspects of the opinion that represent the law, we conclude that Olmstead did not hold that Title II requires maximal inte- gration for patients with mental disabilities receiving state treatment. Rather, it held only that a state cannot institutionalize such patients with- out justification. See 527 U.S. at 600 (majority opinion). What counts as adequate justification remains an open question. C. We recognize that this view of Olmstead’s import is out of step with the common understanding of that decision within the federal courts. Olmstead is typically thought to have “reified” the integration mandate as codified in HHS and DOJ regulations. United States v. Mississippi, 82 F.4th 387, 388 (5th Cir. 2023). Moreover, the vast majority of federal courts of appeals treats as binding the plurality’s statements that Title II “require[s]” deinstitutionalization when the three listed factors are met. Olmstead, 527 U.S. at 607.10 There is consequently a risk that any final agency action adopting our view will be subject to challenge in litigation under the Administrative Procedure Act. See 5 U.S.C. § 706(2). Moreo- ver, any state that chooses to treat a person with mental disabilities in an institution based on our reasoning may still be subject to individual “Olmstead claims” seeking a judicial order to release party patients. See Barnes v. Gorman, 536 U.S. 181, 185 (2002). 10 See, e.g., Powers v. McDonough, 163 F.4th 1162, 1187–88 (9th Cir. 2025); Ind. Prot. & Advoc. Servs. Comm’n v. Ind. Fam. & Soc. Servs. Admin., 149 F.4th 917, 929 (7th Cir. 2025); Harrison ex rel. Harrison v. Young, 103 F.4th 1132, 1138–39 (5th Cir. 2024); Waskul ex rel. Waskul v. Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426, 460 n.14 (6th Cir. 2020); United States v. Florida, 938 F.3d 1221, 1250 (11th Cir. 2019); Par- ent/Pro. Advoc. League v. City of Springfield, 934 F.3d 13, 18–19 (1st Cir. 2019); Brown v. District of Columbia, 928 F.3d 1070, 1077–78 (D.C. Cir. 2019); Davis v. Shah, 821 F.3d 231, 262 (2d Cir. 2016). But see Benjamin ex rel. Yock v. Dep’t of Pub. Welfare of Pa., 701 F.3d 938, 956–57 (3d Cir. 2012) (recognizing these statements belong to the plurality). 11  50 Op. O.L.C. __ (June 18, 2026) But our legal system is built on the idea that “contested legal ques- tions,” especially those concerning Executive Branch practices, should be permitted “to percolate and potentially be resolved by the political branches in the democratic process.” FDA v. All. for Hippocratic Med., 144 S. Ct. 1540, 1555 (2024). In that system, it is the duty of the Supreme Court to assess the meaning and vitality of its opinions regarding the laws that Congress has passed. Cf. Trump v. CASA, Inc., 145 S. Ct. 2540, 2550–51 (2025); United States v. Mendoza, 464 U.S. 154, 160 (1984). At the same time, it is the President’s duty to “take Care that [such] Laws be faithfully executed.” U.S. Const. art. II, § 3. And it is our duty to provide an independent assessment of what faithful execution means—even if it requires disagreeing with a federal court so that the question can receive adversarial testing. See Whether Eluding Inspection Under 8 U.S.C. § 1325(a)(2) Is a Continuing Offense, 49 Op. O.L.C. __, at *17 (June 21, 2025) (“Eluding Inspection”). In our good-faith and independent judgment, Olmstead does not con- clusively hold that Title II (or section 504) mandates maximal integration in state treatment of mentally disabled patients. It certainly does not resolve the question of whether Congress may constitutionally impose an integration mandate—a presumption which was “neither brought to the attention of the court nor ruled upon” and thus is “not to be considered . . . precedent[].” Webster v. Fall, 266 U.S. 507, 511 (1925). II. Having concluded that Olmstead does not resolve your questions, we would normally turn next to your statutory question—whether Congress imposed an integration mandate—under the canon of constitutional avoidance. See Eluding Inspection at *10–11. Our analysis of your statu- tory question, however, raised grave doubts regarding whether reading section 504 and Title II to impose a universal integration mandate on states would tread on fundamental principles of federalism and exceed the scope of Congress’s powers under Section 5 of the Fourteenth Amend- ment as well as the Interstate Commerce and Spending Clauses. Under such circumstances, the avoidance canon imposes a “‘clarity tax’ on Congress” in order to “advance values external to a statute.” Biden v. Nebraska, 143 S. Ct. 2355, 2376–77 (2023) (Barrett, J., concurring) 12 Whether the Rehabilitation Act or ADA Impose or Authorize an Integration Mandate (quoting John F. Manning, Clear Statement Rules and the Constitution, 110 Colum. L. Rev. 399, 403 (2010)). Because that clarity tax necessarily informs our statutory analysis, we explain our constitutional concerns before turning to the enacted text. 11 A. We start with foundational principles of federalism that must always guide our analysis when, as here, the burden of federal policy falls upon states. The dual sovereignty of the federal and state governments reflects “a fundamental structural decision incorporated into the Constitution.” Murphy v. Nat’l Collegiate Athletic Ass’n, 584 U.S. 453, 470 (2018). “The Constitution limited but did not abolish the sovereign powers of the States, which retained ‘a residuary and inviolable sovereignty.’” Id. (cita- tion omitted); accord The Federalist No. 39, at 256 (James Madison) (Jacob E. Cooke ed., 1961). “[I]f a power is an attribute of state sover- eignty reserved [to the states] by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.” New York v. United States, 505 U.S. 144, 156 (1992). And the Supreme Court has specifically warned not to overread the three powers that Congress in- voked to pass section 504 and Title II, lest they “subver[t] . . . the gov- ernmental powers reserved to the individual states.” United States v. Butler, 297 U.S. 1, 75 (1936) (Spending Clause); City of Boerne v. Flores, 521 U.S. 507, 534–35 (1997) (Fourteenth Amendment); United States v. Lopez, 514 U.S. 549, 564–68 (1995) (Commerce Clause); see also Gib- bons v. Ogden, 22 U.S. (9 Wheat.) 1, 204–06 (1824) (same). 11 For the avoidance of doubt, nothing in this memorandum should be interpreted to question the facial constitutionality of either section 504 or Title II, which extend far beyond the integration mandate as it has been applied to the type of mental disabilities directly at issue in Olmstead. Congress certainly has a number of tools in its kit by which it can address discrimination in its myriad forms, including discrimination on the basis of disability (whether mental, physical, or both). We question only whether various constitu- tional principles permit Congress, in passing broadly worded statutes such as section 504 or Title II, to impose a mandate on states that has cut through those states’ mental-health programs like a chainsaw. To the extent Congress can mandate integration of the states’ mentally disabled patients, we believe the Constitution requires more precise implementa- tion. The constitutionality of any other application of either statute is beyond the scope of this opinion. 13  50 Op. O.L.C. __ (June 18, 2026) In interpreting the reach of Congress’s enumerated powers, then, we must be careful to remember that Congress typically cannot compel the states “to govern according to [its] instructions.” New York, 505 U.S. at 162. Nor may it imperil the states’ sovereign powers over “all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and pros- perity of the State.” The Federalist No. 45, at 313 (James Madison). True, “Congress may legislate in areas traditionally regulated by the States,” but that “is a power that we must assume Congress does not exercise lightly.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). Thus, “if Congress intends to alter the ‘usual constitutional balance between the States and the Feder- al Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute.’” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)). A mandate that states undertake not only the duty to provide medical care for those with mental disabilities but the obligation to do so in the setting preferred by the federal government would trigger this clear- statement rule because such a mandate would “upset the usual constitu- tional balance of federal and state powers.” Gregory, 501 U.S. at 460. “[T]he regulation of health and safety matters is primarily, and historical- ly, a matter of local concern.” Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 719 (1985). Consequently, there are clear “federalism costs inherent in [subjecting] state decisions regarding the administration of treatment programs and the allocation of resources to” federal control. Olmstead, 527 U.S. at 610 (Kennedy, J., concurring in the judgment); see also id. at 624–25 (Thomas, J., dissenting). Thus, we must tread carefully in interpreting both the positive reach of Congress’s pow- ers to legislate and how it exercised those powers, lest we trample the principle of federalism inherent in our constitutional structure. B. With those principles in mind, we turn first to the integration mandate putatively imposed by Title II, the statute directly at issue in Olmstead. Congress passed the ADA pursuant to both its “power to enforce the fourteenth amendment and to regulate commerce.” 42 U.S.C. 14 Whether the Rehabilitation Act or ADA Impose or Authorize an Integration Mandate § 12101(b)(4).12 On their face, neither constitutional provision clearly authorizes Congress to dictate where state and local programs must pro- vide services to individuals with mental disabilities. 1. Having “expand[ed] federal power at the expense of state autonomy,” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 59 (1996), the Fourteenth Amendment provides Congress considerable leeway to ensure that “all persons similarly situated should be treated alike,” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). For Congress to invoke its authority for enforcing equal protection, however, “there must be a pattern of discrimination by the States which violates the Fourteenth Amendment, and the remedy imposed by Congress must be congruent and proportional to the targeted violation.” Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001); cf. Louisiana v. Callais, 146 S. Ct. 1131, 1155 (2026) (explaining that Congress may only “enforce a right that the Amendment secures”). In other words, Congress’s power under Section 5 is purely “remedial and preventive,” aimed solely at addressing state conduct that violates the Fourteenth Amendment. Boerne, 521 U.S. at 524. Even assuming that in-patient treatment of individuals with mental dis- abilities can be considered discrimination, it is not the kind of discrimina- tion forbidden by the Fourteenth Amendment unless it is entirely unsup- ported by any rational justification. As the Supreme Court has reiterated time and again, the Equal Protection Cla