Federal Appeals Courts Show 97 Unresolved Circuit Splits

Why it Matters

A Congressional Research Service report published on July 23 reveals a judiciary increasingly at odds with itself. The CRS documented 97 circuit splits that emerged or widened in 2025 and remain unresolved, exposing fundamental disagreements across the federal appeals court system on issues ranging from criminal law to firearms regulation to immigration enforcement.

The scale of the problem underscores a structural reality in that the U.S. Courts of Appeals have become the true final arbiters of federal law. While the Supreme Court decides fewer than 100 argued cases annually, the 12 regional Courts of Appeals issued 3,420 precedential opinions in fiscal year 2025.

Criminal Law and Procedure accounts for 28 of the 97 splits, making it by far the largest category. Civil Procedure follows with 9 splits, as do Immigration cases. Civil Rights, Firearms, and Labor and Employment each generated 7 splits. Separation of Powers, Tax, and a dozen other subject areas round out the remaining disputes.

Some of the splits carry immediate policy weight for the current administration.

The Supreme Court's discretionary jurisdiction is the formal mechanism that should resolve these conflicts, but it cannot. The justices choose to review an extremely narrow band of cases. The sheer volume of appellate decisions makes it difficult for Congress to track them, let alone respond legislatively.

The report identifies splits spanning 24 subject areas, a breadth that signals systemic strain rather than isolated disagreement.

The Big Picture

The First and Sixth Circuits require "clear, unequivocal, and convincing evidence" of alienage in removal proceedings, while the Ninth Circuit applies a different standard. The Fifth and Ninth Circuits differ on who bears the burden of proving the validity of a judicial waiver of rights in removal proceedings. The Second and Ninth Circuits split with the Fifth Circuit on whether the statutory limit on motions to reopen removal proceedings is subject to equitable tolling. The Sixth Circuit held that courts cannot consider naturalization applications while removal proceedings are pending, but the Ninth Circuit, joined by the Second and Fifth, disagrees.

The Fifth Circuit found 18 U.S.C. § 922(g)(1) unconstitutional as applied to a defendant whose predicate felony was marijuana possession, while the Fourth, Eighth, Ninth, Tenth, and Eleventh Circuits have upheld the statute categorically. The Fifth and Eighth Circuits found 18 U.S.C. § 922(g)(3), which bans firearms for controlled substance users, unconstitutional as applied to non-intoxicated marijuana users. The Tenth Circuit found the provision potentially constitutional. The Fifth and Eleventh Circuits split on the relevant historical analogues for evaluating under-21 firearm purchase restrictions.

The First, Sixth, and Eighth Circuits require "but-for" causation, while the Third Circuit requires only a "sufficient causal connection."

In a split over National Labor Relations Board authority, the Fifth Circuit has allowed employers to challenge the constitutionality of NLRB structure in federal court, while the Third and Ninth Circuits applied the Norris-LaGuardia Act to block such challenges. On remedies, the Fifth and Third Circuits held that the NLRB cannot award full compensatory damages, while the Ninth Circuit splits with them on that question.

The Eighth Circuit held that the Telecommunications Act's Section 202(h) is deregulatory-only, limiting the FCC's ability to tighten broadcast ownership rules. The Third Circuit's interpretation of the same provision is in tension with the Eighth Circuit's reading.

In Global Health Council v. Trump, a divided D.C. Circuit panel lifted a preliminary injunction that had blocked enforcement of an executive order freezing foreign aid spending. The panel held that plaintiffs were precluded from bringing Impoundment Control Act-based challenges until the ICA's statutory process had run its course. The D.C. Circuit noted a split with the Ninth Circuit regarding whether a freestanding constitutional separation-of-powers challenge premised on statutory violations is foreclosed.

In Walmart, Inc. v. Chief Admin. Law Judge, the Eleventh Circuit upheld ALJ removal protections against constitutional challenge. The Fifth Circuit found ALJ removal protections problematic, creating a split with the Eleventh Circuit.

Political Stakes

The report notes that between 1990 and 1998, Congress responded to only a minute percentage of appellate court decisions, enacting laws to overrule or codify only 65 appellate decisions over that entire period. Congress has the constitutional power to resolve many of these splits through legislation, but it rarely does so.

The report emphasizes that Congress has the constitutional power to resolve many of these circuit splits through legislation. Yet historically, Congress has been slow to act. Between 1990 and 1998, Congress overruled or codified only 65 appellate decisions over that entire eight-year period, a minute percentage of the thousands issued.

The Bottom Line

Nearly 100 unresolved circuit splits in 2025 alone signal a judiciary increasingly fragmented on fundamental questions of federal law.

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