The Supreme Court term that began on October 7, 2019 was one of the most eventful in recent history.¹ The Coronavirus Disease 2019 (COVID-19) pandemic colored much of the Court's work.² The pandemic resulted in the Court indefinitely closing its building to the public, postponing oral arguments originally scheduled for March and April of 2020, and, for the first time in history, telephonically conducting oral arguments in roughly a dozen cases over two weeks in May 2020.³ The Court, which typically recesses for the summer in late June, continued to issue opinions through the second week of July 2020 because of delays caused by the pandemic.⁴ And substantively, the October 2019 Term included the Court issuing several orders concerning litigation over various state-government responses to the pandemic.⁵

Beyond the effects of the pandemic, the October 2019 Term was notable because of the substantive opinions that the Court issued throughout the term.⁶ During the term, the Court issued a host of decisions that define the limits of Congress's powers vis-à-vis the President,⁷ as well as several opinions concerning the role of government with respect to religion,⁸ abortion rights,⁹ tribal lands,¹⁰ and the scope of federal civil rights protections for gay and transgender workers.¹¹ This report provides an overview of these opinions, including a discussion of their broader implications for Congress. In the Appendix to the report, Table A-1 and Table A-2 provide brief summaries of all of the Court's written opinions issued during the October 2019 Term.

Civil Rights and Employment Law

Bostock v. Clayton County¹²

In perhaps the most notable opinion of the past term, the Supreme Court issued a decision consolidated under the title of Bostock v. Clayton County concerning a series of lawsuits brought by gay and transgender workers.¹³ These workers alleged that their employers fired them because of their sexual orientation or gender identity and, in doing so, violated Title VII of the Civil Rights Act of 1964 (Title VII) by discriminating against them "because of . . . sex."¹⁴ In a ruling that will have implications beyond Title VII, the Bostock Court held by a 6-3 vote that Title VII forbids employers from firing an employee for being gay or transgender.¹⁵

Background: Title VII prohibits employment discrimination on several different bases, including barring covered employers from discriminating against individuals "because of . . . sex."¹⁶ The statute does not explicitly specify whether that prohibition applies to discrimination based on someone's sexual orientation or gender identity, although Congress has considered bills that would do so.¹⁷ The Supreme Court has previously interpreted the statute's prohibition as more expansive than just a general bar on employers treating members of one sex different from members of another sex.¹⁸ For instance, in Price Waterhouse v. Hopkins, a four-Justice plurality recognized that treating an employee differently because she failed to conform to stereotypes about how women should behave qualified as unlawful discrimination under Title VII.¹⁹ And in Oncale v. Sundowner Offshore Services, Inc., the Court held that a male victim of sexual harassment by other men could bring a Title VII claim.²⁰

In recent years, the question of whether Title VII prohibits employment discrimination based on sexual orientation has split lower federal courts.²¹ Likewise, courts have reached divergent conclusions about whether Title VII protects transgender employees from employment discrimination.²²

Bostock concerned three consolidated cases, the first two of which centered on whether Title VII bars discrimination based on someone's sexual orientation. In Zarda v. Altitude Express, Inc., an en banc panel of the Second Circuit²³ held that Title VII prohibits discrimination based on an employee's sexual orientation on three different grounds.²⁴ First, the lower court concluded that "because sexual orientation is defined by one's sex in relation to the sex of those to whom one is attracted," discriminating on the basis of sexual orientation necessarily takes sex into account.²⁵ Second, drawing upon Price Waterhouse, the Second Circuit reasoned that decisions based on sexual orientation inappropriately rely on "assumptions or stereotypes about how members of a particular gender should be."²⁶ And third, the lower court maintained that such discrimination is associational discrimination akin to prohibited discrimination against employees in interracial relationships.²⁷ In contrast, in Bostock v. Clayton County, the Eleventh Circuit denied rehearing en banc in a case that dismissed a Title VII claim brought by a gay man, relying on prior circuit precedent holding that Title VII does not prohibit sexual orientation discrimination.²⁸ In the underlying decision, the court noted that it had previously rejected the argument that the Supreme Court's decisions in Price Waterhouse and Oncale supported a cause of action alleging sexual orientation discrimination.²⁹

The third case, a decision by the Sixth Circuit in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., ruled that an employer's termination of an employee for being transgender violated Title VII on two separate bases.³⁰ First, the lower court held that the firing was based on sex stereotypes about gender norms in violation of the rule of Price Waterhouse.³¹ Second, the Sixth Circuit concluded that discrimination based on someone's transgender status is itself a per se violation of Title VII because: (1) it is "analytically impossible" to fire someone based on their transgender status without being motivated in part by their sex; and (2) "discrimination against transgender persons necessarily implicates Title VII's proscriptions against sex stereotyping."³²

The Supreme Court granted the petition for certiorari in the first two cases, Altitude Express and Bostock, on whether discrimination based on sexual orientation amounts to discrimination because of sex under Title VII.³³ The Court also granted the petition for certiorari in Harris Funeral Homes on whether Title VII prohibits discrimination against transgender individuals based on (1) their status as transgender; or (2) as a form of sex stereotyping under Price Waterhouse.³⁴ The Court's final decision in Bostock consolidated all three of these cases in a majority opinion written by Justice Gorsuch.³⁵ Justice Alito, joined by Justice Thomas, issued a dissenting opinion;³⁶ and Justice Kavanaugh authored a separate dissent.³⁷

Supreme Court's Decision: Justice Gorsuch's majority opinion focused on Title VII's text and its ordinary meaning to conclude that Title VII's prohibition of discrimination "because of . . . sex" extends to discrimination based on sexual orientation or gender identity.³⁸ In reaching that result, the Court made several preliminary observations. First, Title VII's language, the Court explained, incorporates the "but-for" standard of causation: if an outcome would not have occurred without, or "but-for," the purported cause, causation is established.³⁹ As Justice Gorsuch observed, there can be multiple but-for causes of the same event. The majority opinion gave an example: if a car crash occurred both because a defendant ran a red light and because a plaintiff failed to signal, both mistakes qualify as but-for causes.⁴⁰ Under Title VII, as long as sex is one factor that was the cause of the discrimination, illicit sex discrimination has occurred. It does not matter, the Court explained, if an employer also considered factors other than sex in making the employment decision, so long as sex remained a but-for cause of that decision.⁴¹

Second, the Court emphasized that Title VII's prohibition against discrimination is focused on discrimination against individuals, rather than different treatment across groups.⁴² That is, the law prohibits discrimination against a single employee even if an "employer treated women as a group the same when compared to men as a group."⁴³ The focus on individuals means an employer cannot successfully defend its discrimination simply because both sexes were subject to the same discriminatory policy.⁴⁴

Applying that analysis to the three cases, the Court ruled that discriminating against an employee based on sexual orientation or gender identity constituted discrimination based on sex in violation of Title VII. The Court reasoned that it is impossible to act on either basis without considering sex.⁴⁵ As an example, Justice Gorsuch pointed to a situation where two employees, a man and a woman, are attracted to men.⁴⁶ If an employer fires the man for being attracted to men, but not the woman who is also attracted to men, in the view of the majority, the employer has discriminated against him for traits the employer tolerates in a woman.⁴⁷ For the Court, the employee is singled out in part because of his sex—a but-for cause of the discrimination.⁴⁸ Likewise, the Court observed, if an employer fires a transgender man (assigned female gender at birth who now identifies as a man) for being transgender, the employer penalizes that person for being assigned the female gender at birth for traits that it would tolerate in a person assigned the male gender at birth.⁴⁹

The majority opinion, while acknowledging the potential implications of the Court's decision for other areas of the law, such as other statutes that prohibit discrimination based on sex, as well as for religious liberty claims under the Constitution, declined to examine the application of its reasoning to circumstances outside the cases before it.⁵⁰ In doing so, it rejected the argument that, because the legislative authors of Title VII likely did not anticipate that the statute prohibited discrimination based on sexual orientation or gender identity, Title VII should not be interpreted to do so.⁵¹ The Court ruled that the plain meaning of Title VII controlled, irrespective of the principal goals of its congressional authors.⁵²

Dissenting Opinions: Justice Alito's dissenting opinion, which Justice Thomas joined, claimed that the majority was functionally legislating through the guise of a judicial decision. His opinion argued that discrimination based on sexual orientation or gender identity does not necessarily rely on "sex," because one could do so without considering a person's sex at all.⁵³ For instance, he reasoned, an employer could have a blanket policy of not hiring gay or transgender people, no matter their biological sex.⁵⁴ He argued that virtually no one in 1964 would have understood the statute to prohibit discrimination on the basis of sexual orientation or gender identity.⁵⁵ Justice Alito concluded his dissent by highlighting arenas in which the Court's reasoning would have "far-reaching consequences."⁵⁶ He argued, among other things, that the Court's holding will "threaten freedom of religion, freedom of speech, and personal privacy and safety."⁵⁷ For Justice Alito, given these potential policy consequences and given Title VII's silence on sexual orientation or gender identify, whether Title VII bars discrimination on these bases should be the product of legislative deliberation, rather than judicial construction.⁵⁸

Justice Kavanaugh's dissent similarly criticized the majority opinion for judicially amending the text of Title VII.⁵⁹ He contended that the majority relied on a "literalist" reading of the statute, an approach that conflicted with the ordinary meaning of "discriminate because of sex," which Justice Kavanaugh argued was not commonly understood to encompass discrimination related to sexual orientation or gender identity.⁶⁰ He also stressed that while he rejected the Court's attempt to rewrite the statute as beyond the proper role of the judiciary, he admired the hard work of gay and lesbian Americans to achieve equal treatment under the law and agreed that as a policy matter they should not be treated as outcasts or inferior.⁶¹

Implications for Congress: The Court's decision will have important effects for millions of employees across the country as Title VII applies to employers with 15 or more employees.⁶² And as both the majority and dissenting opinions appeared to acknowledge, Bostock could have important implications for other statutory and constitutional provisions.⁶³ For instance, Title VII contains an exception permitting sex discrimination when sex is a "bona fide occupational qualification [(BFOQ)] reasonably necessary to the normal operation" of employment.⁶⁴ Courts have already wrestled with the circumstances in which sex is a BFOQ necessary to the operations of a business; they may now need to determine how Bostock applies in those circumstances.⁶⁵ In addition, courts have in the past examined the interplay between Title VII's general requirements and its exemptions for religious entities⁶⁶ and the Constitution's provisions protecting religious liberty.⁶⁷ Courts will likely be asked to apply Bostock in similar situations. Likewise, because Title VII and Title IX of the Education Amendments of 1972 both prohibit discrimination based on sex, courts often draw on Title VII to interpret Title IX.⁶⁸ Courts have already begun examining whether Bostock means that Title IX⁶⁹ and statutes that incorporate Title IX's provisions⁷⁰ also prohibit discrimination based on sexual orientation and gender identity.

While the Court's decision in Bostock will have important results both in the context of Title VII and in other areas, the majority opinion rested on the text of Title VII, rather than a constitutional provision. Congress may amend the law if it disagrees with the Court's decision. In the past, Congress has sometimes responded to judicial decisions interpreting Title VII by amending the text of the statute. For instance, after the Court held in General Electric Co. v. Gilbert that Title VII did not prohibit discrimination based on pregnancy,⁷¹ Congress amended Title VII to do so.⁷² Likewise, Congress may modify provisions in other statutes addressing sex discrimination, such as Title IX or the Affordable Care Act, including to clarify whether, post-Bostock, these statutes should be understood to apply to discrimination on the basis of sexual orientation or transgender status. Options might include supplying an explicit definition of what discrimination "because of … sex" means.⁷³ In addition, Congress could carve out exceptions for particular circumstances or expand the scope of statutory exceptions that already exist, such as for religious entities.⁷⁴

Freedom of Religion

Espinoza v. Montana Department of Revenue⁷⁵

In Espinoza v. Montana Department of Revenue, the Supreme Court built on recent jurisprudence holding that the government may violate the First Amendment's Free Exercise Clause by excluding religious organizations from public aid programs.⁷⁶ While the Court had previously ruled that a state violated the Constitution by excluding religious organizations from a grant program funding playground materials,⁷⁷ this opinion extended that ruling to programs involving indirect financial aid.⁷⁸ Espinoza also suggested that more broadly, state constitutional provisions excluding religious organizations from receiving state aid could be subject to heightened scrutiny, and may prompt further challenges to such laws.⁷⁹

Background: The Free Exercise Clause of the First Amendment provides that the government "shall make no law . . . prohibiting the free exercise" of religion.⁸⁰ In Trinity Lutheran Church of Columbia v. Comer, decided in 2017, the Supreme Court ruled that a state grant program excluding churches and other religious organizations from receiving grants to purchase rubber playground surfaces violated the Free Exercise Clause.⁸¹ The Court held the program unconstitutional because it discriminated against organizations based on their religious status.⁸² The Supreme Court acknowledged that in a prior case, Locke v. Davey, it had ruled that a state could, without violating the Free Exercise Clause, prohibit students from using publicly funded scholarships to pursue a degree in devotional theology.⁸³ In Locke, the Court recognized the state's "historical and substantial state interest" in not using government funds to support clergy.⁸⁴ Trinity Lutheran distinguished the earlier case, saying the state in Locke had permissibly chosen to deny a scholarship because of what the recipient "proposed to do—use the funds to prepare for the ministry."⁸⁵ By contrast, in Trinity Lutheran, the Supreme Court held that the state was impermissibly denying funds because of what the recipient "was"—a church.⁸⁶

The Trinity Lutheran Court said that because the state's playground grant program required a religious organization "to renounce its religious character in order to participate in an otherwise generally available public benefit program,"⁸⁷ the program was subject to "the strictest scrutiny"⁸⁸ and could only be justified by "a state interest 'of the highest order.'"⁸⁹ The state claimed that its interest in avoiding state support for religion justified the law.⁹⁰ The Supreme Court rejected this argument, saying that such an interest could not "qualify as compelling" in light of the policy's "clear infringement on free exercise."⁹¹

The plaintiffs in Espinoza were parents of children who wanted to participate in a tuition scholarship program but were barred from doing so because the students attended religious schools.⁹² The state program as originally created offered tax credits for donating to private organizations that granted scholarships to private schools, including religious schools.⁹³ The Montana Supreme Court, however, invalidated the tax credit program, holding that it violated a state constitutional provision known as the No-Aid Clause that prohibited the government from providing direct or indirect financial support to religious schools.⁹⁴

Supreme Court's Decision: Chief Justice Roberts wrote the majority opinion in Espinoza, which held that applying the No-Aid Clause to disqualify religious schools from the tax credit program solely because of their religious character violated the U.S. Constitution.⁹⁵ The state argued that Trinity Lutheran did not govern because the No-Aid Clause excluded religious schools based on how they would use the funds—for religious education.⁹⁶ The Supreme Court disagreed, pointing to the text of the No-Aid Clause, which singled out "sectarian" schools, and observing that the state supreme court had applied the clause "solely by reference to religious status."⁹⁷ Distinguishing Locke, the Court emphasized that Montana had not merely excluded any "particular 'essentially religious' course of instruction," but barred all aid to religious schools.⁹⁸ Further, unlike the "'historical and substantial' state interest in not funding the training of clergy" at issue in Locke, there was no similar historically grounded interest in disqualifying religious schools from public aid.⁹⁹

Because the No-Aid Clause "discriminate[d] based on religious status,"¹⁰⁰ the Supreme Court applied strict scrutiny to analyze the state supreme court's decision to bar religious schools and parents from the program.¹⁰¹ Following Trinity Lutheran, the Court said that the state's general interest in separating church and state beyond what was required by the U.S. Constitution was insufficiently compelling.¹⁰² The Court also rejected Montana's arguments that the No-Aid Clause promoted religious freedom by protecting taxpayers' religious liberty and "keeping the government out of" the operations of religious organizations.¹⁰³ The Court did "not see how" denying religious organizations the option to participate in the government program promoted religious liberty.¹⁰⁴ And in response to Montana's claim that the No-Aid Clause advanced the state's interest in supporting public education, the Court ruled that the provision was "fatally underinclusive," as it excluded only religious private schools and still allowed public support to be diverted to nonreligious private schools.¹⁰⁵ Ultimately, Chief Justice Roberts concluded that while the state was not required to "subsidize private education," once it had decided to do so, it could not "disqualify some private schools solely because they are religious."¹⁰⁶

Concurring and Dissenting Opinions: Justices Thomas, Alito, and Gorsuch each filed separate concurring opinions. In an opinion joined by Justice Gorsuch, Justice Thomas called for the Court to reconsider its Establishment Clause jurisprudence.¹⁰⁷ In brief, Justice Thomas restated his view that the Court should interpret the Establishment Clause more narrowly, asserting that the Court's current jurisprudence reflects a hostility to religion that "hamper[s] free exercise rights."¹⁰⁸ Justice Alito wrote separately to argue that anti-Catholic bias may have motivated at least some states in adopting no-aid provisions, maintaining that evidence of discriminatory motives was relevant to assessing the constitutionality of Montana's No-Aid Clause.¹⁰⁹ Justice Gorsuch's concurrence echoed concerns he raised in Trinity Lutheran, expressing doubt about the validity of free exercise decisions distinguishing religious use from religious status.¹¹⁰

Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented in three separate opinions. Justice Ginsburg, joined by Justice Kagan, focused on the procedural posture of the case, arguing that because the Montana Supreme Court had struck down the entire scholarship program, the state could no longer be characterized as impermissibly discriminating against religious schools.¹¹¹ After the state court decision, she pointed out, there was no differential treatment placing a burden on the parents' religious exercise; "secular and sectarian schools alike are ineligible for benefits."¹¹² Justice Breyer, joined in part by Justice Kagan, would have concluded that Montana could permissibly have excluded religious schools from the tax credit program.¹¹³ He wrote that, as in Locke, Montana had permissibly "chosen not to fund" a religious activity: "an education designed to 'induce religious faith.'"¹¹⁴ Finally, writing for herself, Justice Sotomayor asserted that the Montana Supreme Court had reached its decision based on state-law grounds, and that the majority opinion violated ordinary principles of judicial review when it—in her characterization—essentially ruled that the No-Aid Clause was facially invalid under the federal Free Exercise Clause.¹¹⁵

Implications for Congress: The Supreme Court's interpretation of Montana's No-Aid Clause will likely have significant national implications, given that the majority of states have some version of a no-aid clause in their state constitutions.¹¹⁶ To the extent that other state provisions exclude religious organizations from generally available benefits programs solely because of their religious character, under Espinoza, such an exclusion is subject to strict scrutiny under the Free Exercise Clause.¹¹⁷

Further, any federal laws that exclude religious organizations from public aid programs because of the religious status of beneficiaries rather than the religious use of funds may be constitutionally suspect under Espinoza.¹¹⁸ Even prior to Espinoza, the executive branch had argued that at least two federal statutes violate the Free Exercise Clause insofar as they could be applied to bar religious schools from receiving certain higher-education funds.¹¹⁹

Espinoza did not overrule Locke, though, suggesting that there may be circumstances where Congress is permitted to prohibit federal funds from being used for religious purposes.¹²⁰ In fact, such restrictions may sometimes be required under the First Amendment's Establishment Clause, which the Supreme Court has previously viewed as prohibiting "sponsorship, financial support, and active involvement of the sovereign in religious activity."¹²¹ However, the Court also stated in Espinoza that the Establishment Clause is "not offended when religious observers and organizations benefit from neutral government programs."¹²² There are a number of federal statutes restricting public funds from being used for religious worship, instruction, or other sectarian activity.¹²³ The Court's ruling in Espinoza may warrant review of those laws to ensure they are consistent with the Court's modern Free Exercise and Establishment Clause jurisprudence.¹²⁴ Both of the Religion Clauses remain relevant considerations when Congress determines whether and how to include religious entities in public aid programs.

Abortion

June Medical Services LLC v. Russo¹²⁵

In June Medical Services L.L.C. v. Russo, the Supreme Court struck down a Louisiana law that required physicians who perform abortions to have admitting privileges at a hospital within 30 miles of the location where the procedure is performed.¹²⁶ A majority of the Court concluded that the law imposed an undue burden on a woman's ability to obtain the procedure. Justice Breyer authored an opinion, joined by Justices Ginsburg, Sotomayor, and Kagan, that relied heavily on Whole Woman's Health v. Hellerstedt, a 2016 decision that invalidated a similar admitting privileges law from the State of Texas.¹²⁷ Justice Breyer maintained that the laws reviewed in June Medical Services and Whole Woman's Health were "nearly identical" and that the Louisiana law "must consequently reach a similar conclusion."¹²⁸ In a separate opinion, Chief Justice Roberts concurred in the judgment.¹²⁹ Emphasizing his continued belief that Whole Woman's Health was wrongly decided, the Chief Justice nevertheless contended that the legal doctrine of stare decisis required June Medical Services to be decided like Whole Woman's Health.¹³⁰

Legal Background: Courts reviewing the constitutionality of abortion regulations apply a standard that a plurality of the Supreme Court adopted in Planned Parenthood of Southeastern Pennsylvania v. Casey, a 1992 decision concerning the legality of several Pennsylvania abortion restrictions.¹³¹ In Casey, a plurality of the Court concluded that an abortion regulation violates the substantive component of the Fourteenth Amendment's Due Process Clause if it imposes an undue burden on a woman's ability to obtain the procedure.¹³² The plurality explained that an undue burden exists if the purpose or effect on an abortion regulation is to "place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."¹³³

Evaluating Texas's admitting privileges law in Whole Woman's Health, the Court provided additional guidance on the undue burden standard. In an opinion written by Justice Breyer and joined by former Justice Kennedy and Justices Ginsburg, Sotomayor, and Kagan, the Court maintained that the standard requires a reviewing court to balance the health benefits conferred by an abortion regulation for women seeking the procedure against any burdens imposed on abortion access.¹³⁴ After examining the Texas law and considering the evidence collected by the district court, the Court concluded that the evidence before the district court showed that the law did not cure a significant health-related problem or provide any health benefit.¹³⁵ At the same time, however, the record demonstrated that the law caused the closure of abortion facilities, increased driving distances for women seeking abortions, and created longer wait times for the procedure.¹³⁶ Balancing these burdens against the absence of any health benefit, the Court concluded that the law imposed an undue burden under Casey.¹³⁷

June Medical Services and the Fifth Circuit: In 2017, a Louisiana federal district court invalidated the admitting privileges law at issue in June Medical Services.¹³⁸ A year later, the Fifth Circuit reversed the lower court's decision, distinguishing the Louisiana law from the Texas admitting privileges law invalidated in Whole Woman's Health.¹³⁹ The Fifth Circuit maintained that admitting privileges were easier to obtain in Louisiana and that only one of the state's six physicians who perform abortions made a good-faith effort to obtain such privileges.¹⁴⁰ The appellate court reasoned that if the remaining physicians obtained admitting privileges, existing abortion facilities would remain open and Louisiana residents would not suffer the same kinds of burdens the Supreme Court identified in Whole Woman's Health, such as fewer abortion clinics and longer wait times for the procedure.¹⁴¹

In June Medical Services, the Supreme Court considered not only the constitutionality of Louisiana's admitting privileges law, but a procedural question involving standing and whether abortion providers can challenge an abortion regulation on behalf of their clients. Louisiana argued that the petitioners—an abortion clinic and physicians who perform abortions—lacked standing because they did not have a sufficiently close relationship with abortion patients.¹⁴² The state also contended that the petitioners' opposition to a health regulation intended to protect patients evidenced a conflict of interest with these patients, making them an unsuitable party to assert the rights of their clients.¹⁴³

On the merits of the Louisiana law, the petitioners argued that admitting privileges conferred no health or safety benefits to women seeking abortions.¹⁴⁴ The petitioners further maintained that the law burdened abortion access by leaving just one physician to perform abortions at a single clinic in the state.¹⁴⁵ According to the petitioners, the Fifth Circuit not only discounted the burdens imposed by the law, but did not balance these burdens against the lack of any benefit conferred by the law, as required by Whole Woman's Health.¹⁴⁶

The state argued that the admitting privileges requirement addressed serious safety concerns by serving as a kind of credential for physicians who perform abortion.¹⁴⁷ The state also contended that at least three of Louisiana's physicians who perform abortions did not act in good faith to obtain admitting privileges.¹⁴⁸ If the physicians obtained such privileges, the state maintained that abortion facilities would not close and the law would not impose a substantial obstacle to abortion access.¹⁴⁹

June Medical Services Plurality Opinion: In the plurality opinion, Justice Breyer concluded that the state waived its standing argument when it opposed the petitioners' initial request for a temporary restraining order against the admitting privileges law.¹⁵⁰ In a memorandum opposing the request, Louisiana had stated that there was "no question that the physicians had standing to contest [the law.]"¹⁵¹ The plurality therefore determined that the state's "unmistakable concession" barred the Court's consideration of the argument.¹⁵² Nevertheless, the plurality also emphasized the Court's long-standing recognition of abortion providers invoking the rights of their actual and potential patients in challenges to abortion regulations. Citing several of the Court's past decisions from both the abortion and nonabortion contexts recognizing third-party standing, Justice Breyer rejected overruling those past decisions.¹⁵³ In his concurring opinion, Chief Justice Roberts indicated his agreement with this portion of the plurality opinion.¹⁵⁴

Addressing the merits of the admitting privileges law, Justice Breyer applied the undue burden standard, reiterating in line with the Whole Woman's Health majority that it requires balancing an abortion regulation's benefits against any burdens it imposes.¹⁵⁵ The plurality maintained that the district court faithfully engaged in this balancing and concluded that the district court's factual determinations were supported by ample evidence and were not clearly erroneous.¹⁵⁶

With regard to any health benefit associated with an admitting privileges requirement, the plurality discussed both the district court's findings and similar findings by the district court in Whole Woman's Health. Writing for the Court in Whole Woman's Health, Justice Breyer had emphasized that deference should be given to the district court's evaluation of the record evidence.¹⁵⁷ In June Medical Services, the plurality deferred to the lower court's finding that an admitting privileges requirement serves no "relevant credentialing function" because privileges may be denied for reasons other than a doctor's ability to perform abortions.¹⁵⁸

The plurality also maintained that direct and circumstantial evidence supported the district court's finding that the admitting privileges law burdened abortion providers.¹⁵⁹ For the plurality, this evidence refuted the Fifth Circuit's conclusion that some providers did not act in good faith to obtain admitting privileges. For example, in the plurality's view, direct evidence established that some of the providers were denied privileges for reasons other than their ability to perform abortions safely.¹⁶⁰ And the plurality also noted circumstantial evidence illustrating how application costs and reputational risks that accompany rejection could prevent providers from seeking privileges at some hospitals.¹⁶¹ According to the plurality, the evidence collected by the district court supported its conclusion that enforcing the admitting privileges law would result in most of the state's abortion facilities closing.¹⁶² For the plurality, fewer abortion facilities would also create additional burdens for women seeking abortions, such as longer wait times and increased driving distances.¹⁶³

Accepting the district court's findings and legal conclusions, including its balancing of the burdens imposed by the admitting privileges law against the absence of any real health benefit, the plurality agreed with the lower court's determination that the Louisiana law imposed an undue burden on a woman's ability to obtain an abortion. Because the district court applied the undue burden standard in June Medical Services that the district court in Whole Woman's Health had applied, the plurality maintained that the same result was required.

Chief Justice Roberts' Concurrence: Concurring in the judgment, Chief Justice Roberts agreed that the Louisiana law and the Texas law at issue in Whole Woman's Health were nearly identical.¹⁶⁴ Although he dissented in Whole Woman's Health and indicated in his June Medical Services concurrence that the Texas case was wrongly decided, he nevertheless maintained that stare decisis required invalidating the Louisiana law.¹⁶⁵

Despite his concurrence in the judgment, however, Chief Justice Roberts questioned how the plurality applied the undue burden standard in light of Whole Woman's Health.¹⁶⁶ Discussing balancing an abortion regulation's benefits and burdens, the Chief Justice contended that nothing in Casey suggested that courts should engage in this kind of weighing of factors.¹⁶⁷ According to the Chief Justice, Casey focused on the existence of a substantial obstacle as sufficient to invalidate an abortion regulation and did not "call for consideration of a regulation's benefits[.]"¹⁶⁸ Reviewing the burdens that the Louisiana law imposed, such as fewer abortion providers and facility closures, the Chief Justice agreed with the plurality that "the determination in Whole Woman's Health that Texas's law imposed a substantial obstacle requires the same determination about Louisiana's law."¹⁶⁹ However, the Chief Justice further observed that "the discussion of benefits in Whole Woman's Health was not necessary to its holding."¹⁷⁰

Existing precedent suggests that because only four Justices in June Medical Services viewed Casey to require courts to balance an abortion regulation's benefits and burdens, courts would likely construe Chief Justice Roberts's formulation of the undue burden standard to control. The Supreme Court has maintained that when a fragmented Court decides a case and five Justices do not agree to a single rationale for the decision, the Court's holding may be viewed as the position taken by the Justices who concurred in the judgment on the narrowest grounds.¹⁷¹ Here, the Chief Justice's concurrence in the judgment, applying the undue burden standard with a focus only on the burdens imposed by the Louisiana law, could arguably be viewed as the narrowest position supporting the judgment and could inform future challenges to abortion regulations.¹⁷²

Dissenting Opinions: In a dissenting opinion, Justice Alito also questioned the use of a balancing test to determine whether an abortion regulation imposes an undue burden on the ability to obtain an abortion.¹⁷³ Justice Alito maintained that Whole Woman's Health "simply misinterpreted Casey . . . [and] should be overruled insofar as it changed the Casey test."¹⁷⁴ In a separate dissenting opinion, Justice Gorsuch criticized the balancing test not so much as a misinterpretation of Casey, but as an unpredictable test that will produce different results based on the factors considered by a given judge and the weight accorded to each of them.¹⁷⁵

In another dissenting opinion, Justice Thomas reiterated his view that Roe v. Wade and its progeny were wrongly decided.¹⁷⁶ Contending that the Constitution does not constrain the states' ability to regulate or even prohibit abortion, Justice Thomas observed: "[T]he putative right to abortion is a creation that should be undone."¹⁷⁷ Justice Kavanaugh, also in dissent, maintained that additional fact finding was needed to assess whether Louisiana's admitting privileges law imposed a similar burden as the Texas law at issue in Whole Woman's Health.¹⁷⁸

These dissenting opinions and Chief Justice Robert's concurring opinion evidence a skepticism with the balancing test used in Whole Woman's Health and June Medical Services. Given these opinions from five Justices, it seems possible that a different test to evaluate abortion regulations could be forthcoming.

Conclusion: The Court's evolving abortion jurisprudence, as evidenced by the various opinions in June Medical Services, may affect the work of Congress and other actors. Federal legislation to regulate abortion has been introduced in the 116th Congress.¹⁷⁹ And as states continue to adopt a variety of new laws to regulate the procedure, it seems likely that new legal challenges will occur.¹⁸⁰ How courts will apply the undue burden standard after June Medical Services is not entirely certain. In light of Chief Justice Roberts' concurrence, the Eighth Circuit vacated a 2017 preliminary injunction that prevented the enforcement of four Arkansas laws that sought to regulate abortion.¹⁸¹ The court remanded the case for reconsideration in accordance with the concurrence, identifying the "appropriate inquiry" as whether the laws impose a substantial obstacle and not "whether benefits outweighed burdens."¹⁸² At least one other court, however, has continued to engage in the balancing described in Whole Woman's Health and the June Medical Services plurality opinion.¹⁸³ Although it is not certain when the Supreme Court will next review an abortion regulation, a future case seems likely. In his dissent, Justice Gorsuch suggested that another case should be expected, particularly if courts are expected to balance a regulation's benefits and burdens.¹⁸⁴ He stated: "Some judges have thrown up their hands at the task put to them . . . . If everything comes down to balancing costs against benefits, they have observed, 'the only institution that can give an authoritative answer' is this Court[.]"¹⁸⁵

Indian Law: Treaty Interpretation and Reservation Status

McGirt v. Oklahoma¹⁸⁶

On July 9, 2020, the Supreme Court announced its decision in McGirt v. Oklahoma, a 5-4 decision ruling that land reserved for the Muscogee (Creek) Nation (Creek Nation) in the 19th century remained "Indian country" for criminal jurisdiction purposes.¹⁸⁷ In an opinion authored by Justice Gorsuch, the Court explained that Congress had established a reservation for the tribe in various treaties, including in an 1866 treaty that "forever set apart" certain land as "a home for said Creek Nation."¹⁸⁸ In a ruling that may have important consequences for not only criminal law in Oklahoma, but federal Indian law more generally, the Court then held that, despite subsequently creating the State of Oklahoma and limiting tribal sovereignty within that area, Congress had never disestablished that Creek reservation in what is now eastern Oklahoma.¹⁸⁹

Background: States generally may not prosecute Indians for crimes committed in "Indian country," absent a grant of jurisdiction from Congress.¹⁹⁰ In relevant part, the Major Crimes Act reserves federal jurisdiction over certain serious crimes, like murder and kidnapping, as long as they are committed by an Indian within Indian country.¹⁹¹ Other legislation has extended state criminal jurisdiction over major crimes in Indian country in some states, but not in Oklahoma.¹⁹² The relevant federal criminal statute defines "Indian country" to mean (1) all land within an Indian reservation, (2) all dependent Indian communities, and (3) all Indian allotments that still have Indian titles.¹⁹³ An area qualifies as Indian country if it fits within any of these three categories, meaning a formal designation of Indian lands as a "reservation" is sufficient, but not necessary, for those lands to be considered Indian country.

It was against this legal backdrop that Jimcy McGirt, a member of the Seminole Nation of Oklahoma who was convicted by the state for serious crimes committed there, claimed that his conviction was unlawful because he was prosecuted for a crime committed within the Creek Nation's still-existing reservation.¹⁹⁴

The Supreme Court's Decision: Oklahoma argued that eastern Oklahoma had always been exempt from the Major Crimes Act because of its unique history, but the Court squarely rejected that proposition: "When Oklahoma won statehood in 1907, the [Major Crimes Act] applied immediately according to its plain terms."¹⁹⁵ Oklahoma could not identify any subsequent grant of jurisdiction.¹⁹⁶ Thus, if McGirt committed his crimes in Indian country, Oklahoma lacked the authority to prosecute him. That meant the central questions before the Court were whether the Creek Nation had originally been granted a reservation, and if so, whether it continued to exist.

The Court answered both those questions in the affirmative. As to whether the Creek Nation's treaty lands were a reservation, the Court acknowledged that the Oklahoma land where McGirt committed his crimes has a complex history: "One thing everyone can agree on is this history is long and messy."¹⁹⁷ In the 1820s, the federal government relocated the Creek Nation and several other tribes (often referred to collectively as the Five Tribes) to what is now present-day Oklahoma.¹⁹⁸ As part of that relocation, the government signed a series of treaties with the Five Tribes that functionally created a reservation, ultimately giving them a vast area of land in present-day Oklahoma in exchange for the cession of tribal homelands further east.¹⁹⁹ Later treaties reduced that tract of land.²⁰⁰ The final reduction occurred after the Civil War, when the Treaty of 1866 required each of the Five Tribes to surrender large parts of their new lands.²⁰¹

The State of Oklahoma advanced the argument that the Creek lands were never a reservation at all because the treaties predated the widespread use of the term "reservation" and its accompanying policies.²⁰² The Court found that argument unconvincing, noting that neither the Solicitor General's amicus brief on Oklahoma's behalf nor the dissent adopted it.²⁰³ Instead, Justice Gorsuch wrote, it "should be obvious" that "Congress established a reservation for the Creeks" because of the nature of the promises Congress made about the land.²⁰⁴

The question remained, then, whether Congress had ever disestablished the reservation. Though the Creek Nation experienced many changes in its relationship with the federal government—most notably related to tribal governance and a push for individual ownership of the land—the boundaries of its land generally remained unchanged until at least the early 1900s.²⁰⁵ At that point, Oklahoma began to transition toward statehood, effectively including eastern Indian lands and western non-Indian lands within a single geographic entity²⁰⁶ and allotting reservation lands to individual tribal members.²⁰⁷ In its brief submitted to the Supreme Court, Oklahoma claimed that no one (including state law enforcement and prosecutors) had treated the relevant land like a reservation since at least 1907, after Oklahoma statehood.²⁰⁸ It also argued that because Congress broke certain promises in the treaties that had established the reservation, Congress must have intended to disestablish it.²⁰⁹

As it set out to determine whether Congress intended to disestablish the Creek reservation land, the Court clarified the three categories of evidence it could consider, as described in Solem v. Bartlett in 1984.²¹⁰ Under the Solem framework, courts evaluating possible disestablishment of a reservation may examine: (1) the language of the governing federal statute; (2) the historical circumstances of the statute's enactment; and (3) subsequent events, such as Congress's later treatment of an affected area.²¹¹ The Solem framework instructs courts to resolve any uncertainty in favor of the tribes: if the evidence is not clear, the reservation continues to exist.²¹²

The majority explained that steps 2 and 3 exist only to clarify statutory texts, so

[t]here is no need to consult extratextual sources when the meaning of a statute's terms is clear. Nor may extratextual sources overcome those terms. The only role such materials can properly play is to help "clear up . . . not create" ambiguity about a statute's original meaning. And, as we have said time and again, once a reservation is established, it retains that status "until Congress explicitly indicates otherwise."²¹³

The Court further warned that states—"often in good faith, perhaps sometimes not"—have often overstepped their authority in Indian country, underscoring "the danger of relying on state practices" to evaluate reservation status.²¹⁴ Thus, the majority concluded, Oklahoma's arguments that eastern Oklahoma had not been considered or treated like a reservation for more than a century could not change the Court's assessment that Congress had "plainly . . . left the Tribe with significant sovereign functions over the lands in question."²¹⁵ Because "there simply arrived no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation," the Court finished its Solem analysis with the first category of evidence; Oklahoma's arguments about the area's subsequent treatment were not relevant.²¹⁶

Oklahoma argued that the Solem analysis was inapplicable because the Creek land became a "dependent Indian community" rather than a reservation once the Creek Nation received fee title to its land.²¹⁷ But the Court concluded that fee title is not incompatible with reservation status,²¹⁸ rejecting the "untenable" assertion that the Creek Nation's choice to receive fee title to its lands "made their tribal sovereignty easier to divest rather than harder."²¹⁹

Dissenting Opinion: Chief Justice Roberts, joined by Justices Alito, Kavanaugh, and Thomas, dissented from the Court's opinion.²²⁰ In the dissent's view, "Congress disestablished any reservation possessed by the Creek Nation through a relentless series of statutes leading up to Oklahoma statehood," a view which the dissent accused the majority of avoiding by refusing to look at the statutes cumulatively rather than individually.²²¹ Then, instead of stopping at the first category of evidence in the Solem framework, the dissent would have proceeded to examine contemporaneous and subsequent treatment of the Creek lands, concluding that "no reservation persisted past statehood."²²²

Considerations for Congress: One certain consequence of McGirt is that the burden of prosecuting many serious offenses involving Indian offenders or victims in eastern Oklahoma will shift to the federal and tribal governments—at least, absent other federal statutory authority allowing the state to prosecute. Congress could pass a law expressly giving Oklahoma jurisdiction to prosecute the crimes named in the Major Crimes Act, perhaps through a vehicle similar to "P.L. 280," the 1953 law that expressly authorized various states to prosecute most crimes that occurred in Indian country in those states.²²³ Alternatively, Congress could appropriate funds to offset the financial costs of increased federal and tribal prosecutions, which may include the retrials of individuals who were convicted of major crimes in Oklahoma state courts. The majority and the dissent disagreed about the likely magnitude of this burden. The majority pointed out that "even Oklahoma admits that the vast majority of its prosecutions will be unaffected" by this ruling,²²⁴ while the dissent posited that "thousands of convictions . . . across several decades" will be drawn into question.²²⁵

Reprosecutions are unlikely to run afoul of the Double Jeopardy Clause,²²⁶ but could face other hurdles, such as lapsed statutes of limitations or limited resources. McGirt's dissent noted that the federal government "may lack the resources to reprosecute all of" the convictions unsettled by the majority opinion, and the "odds of convicting again are hampered by the passage of time, stale evidence, fading memories, and dead witnesses," which may also translate to a need for more prosecutorial resources.²²⁷

Other consequences are less certain. McGirt holds only that the Creek reservation remains Indian country for the purposes of the Major Crime Act, but the majority's analysis seems likely to lead to determinations that other Five Tribes' reservations are likewise Indian country, possibly for purposes beyond the Major Crimes Act. The State of Oklahoma offered a lengthy list of potential legal implications, including new or altered applicability of various federal statutes and programs in areas such as: homeland security grants; nutritional programs; drug enforcement; tobacco regulation; timber protection; disability programs; schools; highway funding; primary care clinics; cultural artifacts; housing assistance; and historical preservation.²²⁸ Some observers have speculated that the McGirt ruling could affect oil and gas regulation in the state.²²⁹ Congress could enact legislation to provide clarity on application of these laws and programs to the Creek or Five Tribes' reservations.

Tax implications are also likely, as states generally lack authority to tax Indians in Indian country,²³⁰ and tribes may in some circumstances tax non-Indians on reservation land.²³¹ The Five Tribes may gain more exclusive jurisdiction over adoptions and custody disputes involving Indian children,²³² though they already had the right to intervene in such proceedings or petition for transfer regardless of a child's location.²³³ At least one lawsuit has been filed seeking disgorgement of fines and court costs levied by the State of Oklahoma against tribal members found guilty of misdemeanors and traffic offenses.²³⁴

Some of the open jurisdictional questions may be resolved through agreements and negotiations between states and tribal governments, though congressional actions remain an option. On July 15, 2020, the State of Oklahoma publicly released an apparent agreement with the Five Tribes titled Murphy/McGirt Agreement-in-Principle, which stated that "intergovernmental cooperation will best serve our shared interests in consistency, predictability, and a mutual respect for sovereign rights and interests."²³⁵ The agreement called on Oklahoma's congressional delegation to implement legislation that would primarily restate existing federal Indian law principles, but also provide Oklahoma with jurisdiction over all offenders "with the exception of crimes involving Indians committed on Indian trust or restricted lands"—i.e., on a fraction of the original reservations.²³⁶ However, on July 17, two of the Five Tribes apparently repudiated the call for federal legislation.²³⁷

Beyond Oklahoma, McGirt may have ramifications for other tribes who were once promised lands by treaty, but whose reservations Congress never clearly disestablished. It is difficult to assess how widespread such cases may be. Each such claim will likely be separately litigated because the Solem inquiry, even as clarified by McGirt, requires a fact-intensive investigation of the federal actions affecting each tribe. Multiple tribes outside Oklahoma have already invoked McGirt in attempts to reestablish sovereignty over reservation lands.²³⁸ And a federal circuit court recently relied on both Solem and McGirt to hold that the Oneida Reservation in Wisconsin—established by treaty in 1838—remains Indian country, and the tribe's on-reservation activities are not subject to a local government ordinance.²³⁹

On the broadest level, the choice of whether to disestablish any reservation still lies solely with Congress.²⁴⁰ Congress could enact a statute disestablishing the Creek reservation (including or excluding the other Five Tribes' reservations), which would severely limit this decision's applicability in the future. If Congress chooses not to act, the uncertainties of jurisdiction may be settled among Oklahoma and the Five Tribes over time, whether by mutual agreement or through litigation in the courts.

Separation of Powers

Seila Law v. Consumer Financial Protection Bureau²⁴¹

In Seila Law v. Consumer Financial Protection Bureau (CFPB), the Supreme Court held that the CFPB's structure violates the Constitution's separation of powers.²⁴² In a 5-4 decision, the Court held that a statutory provision insulating the CFPB Director, the sole head of the agency, from removal except for cause interfered with the President's constitutional authority to execute the law.²⁴³ Seila Law may have effects beyond the realm of consumer financial regulation, as the case was the latest articulation by the Roberts Court of the limits on Congress's authority to restrict the President's authority to remove an agency head for policy disagreements.

Background: Congress created the CFPB in the wake of the 2008 financial crisis. In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank),²⁴⁴ which established the CFPB as an independent financial regulatory agency within the Federal Reserve System.²⁴⁵ The CFPB is charged with implementing and enforcing a variety of consumer protection laws.²⁴⁶ The agency's authority includes the power to promulgate regulations under those statutes²⁴⁷ and to enforce them by issuing subpoenas,²⁴⁸ conducting adjudications,²⁴⁹ and prosecuting civil actions in federal court.²⁵⁰

The Dodd-Frank Act established a somewhat unusual structure for the CFPB. Instead of creating a "traditional independent agency headed by a multi-member commission,"²⁵¹ Congress stationed a single director in charge of the CFPB.²⁵² That director is appointed by the President and confirmed by the Senate, for a term of five years.²⁵³ The Dodd-Frank Act provides that during that time, the President may only remove the CFPB Director for "inefficiency, neglect of duty, or malfeasance in office,"²⁵⁴ a provision that is generally understood to restrict the President from removing the Director for policy disagreements.²⁵⁵

The case originated when the CFPB, during an investigation of Seila Law LLC for potential violations of marketing laws, sought to enforce a civil investigative demand (similar to a subpoena) in federal court.²⁵⁶ Seila Law LLC argued that the demand was invalid because the CFPB's single-Director structure was unconstitutional.²⁵⁷ The dispute made its way to the Ninth Circuit, which upheld the constitutionality of the CFPB.²⁵⁸ In so doing, the Ninth Circuit largely relied on the 2018 en banc decision of the D.C. Circuit in PHH Corp. v. CFPB.²⁵⁹ The Supreme Court granted the petition for certiorari in the Ninth Circuit case on whether the CFPB's structure violates the separation of powers.²⁶⁰

Supreme Court's Decision: Chief Justice Roberts wrote the majority opinion for the Court, emphasizing that Article II of the Constitution places the executive power in one person—the President.²⁶¹ While lesser executive officers may help him carry out that executive power, in the view of the majority, the Constitution requires that the President must generally be able to hold officers accountable, including by removing them.²⁶² As Chief Justice Roberts explained, that principle derives from Article II's text, history, including decisions of the first Congress,²⁶³ as well as the Court's precedent, including Myers v. United States.²⁶⁴ The majority opinion characterized that decision, written in 1926 by Chief Justice Taft, as recognizing that the power to remove executive officers is essential for the President to "take care" that the law is faithfully executed.²⁶⁵

In the past, the Court observed, it had upheld restrictions on the President's power to remove officers, but the majority opinion reasoned that those cases were limited to two exceptions to the general rule that the President must be able to remove executive officers at will.²⁶⁶ In the 1935 case of Humphrey's Executor v. United States, the Court upheld a statutory provision that shielded the Commissioners of the multimember Federal Trade Commission (FTC) from removal except for cause.²⁶⁷ The Seila Law Court understood that decision as upholding removal protections because the Commissioners of the FTC, at least as described in Humphrey's Executor in 1935, engaged in roles that merely aided factfinding for legislative or judicial actions.²⁶⁸ And in the 1988 case of Morrison v. Olson, the Court upheld removal protections for an independent counsel overseen by the Attorney General and appointed to investigate crimes allegedly committed by certain government officials.²⁶⁹ According to the Seila Law majority, Morrison upheld the removal restrictions on the independent counsel because they concerned an inferior officer with limited duties and tenure who exercised no policymaking or administrative authority.²⁷⁰ The majority opinion characterized these exceptions as, at least until now, the "outermost constitutional limits" on Congress's authority to restrict the President's removal power.²⁷¹

The majority opinion concluded that the CFPB's structure did not fit within either of these exceptions. The CFPB's single-Director structure contrasted with the model approved in Humphrey's Executor, a multimember expert body "balanced along partisan lines."²⁷² And the CFPB's wide ranging regulatory and enforcement authority contrasted, the Chief Justice reasoned, with the FTC's powers that the Court considered in 1935, which were limited to "specified duties as a legislative or as a judicial aid," such as conducting investigations and reporting to Congress, as well as making recommendations to courts.²⁷³ Likewise, the majority opinion rejected Morrison as support for the CFPB's removal restriction, as the CFPB Director is not an inferior officer like the independent counsel in that case.²⁷⁴ The Court observed that the duties of the CFPB Director are "far from limited" in the way that the independent counsel's were.²⁷⁵ While the independent counsel's jurisdiction was limited to specific government officials, the CFPB wields "the coercive power of the state" over millions of people and private businesses.²⁷⁶

Having distinguished these cases, the Court then asked whether it should "extend those precedents" to affirm a unique type of entity—an independent agency with substantial executive power led by a single Director.²⁷⁷ The Court declined to do so, reasoning that the unprecedented nature of the CFPB's structure was itself evidence of a constitutional violation.²⁷⁸ Chief Justice Roberts observed that Congress has created four other agencies with a similar design to the CFPB: the Comptroller of the Currency, the Social Security Administration, the Office of Special Counsel, and the Federal Housing Finance Agency.²⁷⁹ But the Court dismissed these examples, concluding that they were not suggestive of a sustained historical practice evidencing their constitutionality. For example, the Comptroller only enjoyed removal protection for one year during the Civil War, after which the position has remained subject to removal at will by the President.²⁸⁰ As for the other three examples, the Court reasoned that these are modern innovations whose constitutionality has similarly been questioned.²⁸¹ Moreover, the Court concluded that none of those agencies are entrusted with the substantial regulatory and enforcement power over private parties that the CFPB enjoys.²⁸²

The Court also concluded that the CFPB's concentration of power in one person who is protected from removal is inconsistent with the Constitution's general structure.²⁸³ According to the Chief Justice's majority opinion, the Framers chose to divide governmental power as a means of preventing its abuse: between the three branches of government, and again within the legislative branch.²⁸⁴ But the Court viewed the executive power as unique in the constitutional structure in that it is placed with one person, the President, who is directly accountable to the whole nation through elections.²⁸⁵ The majority opinion concluded that the CFPB's structure violated this constitutional framework by placing significant power in a single individual who is not accountable to the people or subject to the control of someone who is (the President).²⁸⁶

Responding to the argument that the statutory removal restriction at issue could be interpreted to retain substantial discretion in the President to remove the CFPB Director and maintain control over him, the Court concluded that no workable standard for removal had been advanced that was rooted in the statutory text.²⁸⁷ And the Court likewise dismissed the argument in Justice Kagan's dissent for a pragmatic approach to structuring agencies that reflects the enormous technological and economic changes in society since the Constitution was written.²⁸⁸ The majority opinion instead concluded that the urge to respond to societal change with novel governmental structures "must be tempered by constitutional restraints that are not known—and were not chosen—for their efficiency or flexibility."²⁸⁹

While the Chief Justice's analysis above was joined by Justices Thomas, Alito, Gorsuch and Kavanaugh, the question of the proper remedy in the case split the coalition.²⁹⁰ Having concluded that a single Director heading the CFPB with removal protection violated the separation of powers, Chief Justice Roberts determined that the proper remedy in the case was to sever the statutory removal restriction from the rest of the Dodd-Frank Act.²⁹¹ This portion of the opinion was joined by Justices Alito and Kavanaugh, but not by Justices Thomas and Gorsuch, who issued an opinion dissenting from the severability analysis.²⁹² Justice Kagan, joined by Justices Breyer, Sotomayor, and Ginsburg, who dissented from the Court's analysis regarding the CFPB's constitutionality, concurred in the judgment as to the proper remedy in the case.²⁹³

Concurring and Dissenting Opinions: Justice Thomas, joined by Justice Alito, issued an opinion concurring and dissenting in part.²⁹⁴ He agreed with the majority opinion that the CFPB's structure violated the Constitution.²⁹⁵ But whereas the majority opinion viewed Humphrey's Executor as a narrow opinion with continued vitality, Justice Thomas would have overruled the 1935 case.²⁹⁶ He argued that the decision was wrongly decided at the time and its underlying reasoning had been seriously eroded by subsequent decisions.²⁹⁷

He also dissented as to the majority opinion's remedy of severing the removal restriction.²⁹⁸ Instead, Justice Thomas would have denied the petition to enforce the CFPB's demand for information from Seila Law LLC.²⁹⁹ He reasoned that while the Chief Justice's decision to sever the removal provision resolved the constitutional violation, there were other statutory provisions that, if severed, would do the same.³⁰⁰ For instance, if the Court held that the CFPB lacked the authority to issue the demand in the first place, that would similarly resolve the issue.³⁰¹ And because the statute's severability clause gave no guidance as to which provision must be severed here, the Court should simply deny enforcement of the demand,³⁰² presumably leaving the choice of amending the statute to Congress.

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, issued a decision concurring in the judgment as to severability but dissenting as to substantive constitutional issue.³⁰³ Her opinion disputed the majority's general rule that the President has unrestricted power to remove officers except for two exceptions.³⁰⁴ Instead, she argued, Congress enjoys discretion to structure administrative agencies as needed, so long as the President retains the ability to carry out his duties under the Constitution.³⁰⁵ The Court's imposition of its own rule—not grounded, according to Justice Kagan, in the Constitution, history, or judicial precedent—impermissibly interferes with the authority of the political branches and "commits the Nation to a static version of governance, incapable of responding to new conditions and challenges."³⁰⁶ She also wrote, counter to the majority's concern that the CFPB's single-Director structure improperly shields the agency from presidential control, an agency headed by a single Director is actually more responsive to a President than a multimember Commission.³⁰⁷ For Justice Kagan, a multimember structure diminishes accountability to the President because it is harder to control a group than a single person.³⁰⁸ In fact, "that is why Congress so often resorts to hydra-headed agencies" in the first place.³⁰⁹ Finally, although Justice Kagan disagreed with the Chief Justice's decision as to the constitutional issue, her opinion concurred with the Chief Justice's ruling as to the proper remedy in the case, to sever the offending removal restriction.³¹⁰

Implications for Congress: Chief Justice Roberts' decision in Seila Law contains significant consequences for Congress's ability to structure federal agencies. The majority opinion applied a baseline constitutional rule of presidential power to remove officers at will, subject to the two "exceptions" of Humphrey's Executor and Morrison.³¹¹ By characterizing those exceptions as the "outermost constitutional limits" of judicially recognized restrictions on the President's removal authority, and rejecting the expansion of those limits to uphold the CFPB, the Court may view attempts to create other agencies with structural independence from the President with skepticism unless they closely mirror the configurations approved in those two cases.³¹² And the Court's emphasis on the CFPB's novelty as indicative of a constitutional infirmity further suggests that future attempts to create agencies with structural independence from the President must likely conform to prior historical examples.³¹³

That said, while the Court's decision severed the CFPB Director's statutory removal restriction, this decision does not irrevocably tie Congress's hands. If Congress currently prefers the CFPB to possess insulation from presidential control, it could perhaps create an expert multimember Board with removal protections to head an agency with authorities in aid of judicial and legislative functions to fit within the exception of Humphrey's Executor.³¹⁴ Alternatively, Congress could subject the Director to supervision and narrow his jurisdiction while providing the Director with removal protections to fit within Morrison's exception.³¹⁵

Seila Law will also have implications for existing agencies. The Court identified three other agencies whose sole heads currently possess statutory removal protections.³¹⁶ It distinguished the Social Security Administration and the Office of Special Counsel as not wielding regulatory or enforcement authority akin to the CFPB, perhaps indicating that the Court does not consider those agencies to possess the substantial executive authority requiring presidential removal at will.³¹⁷ With respect to the Federal Housing Finance Agency, however, the Court noted that an en banc Fifth Circuit already ruled that the agency's structure violated the separation of powers.³¹⁸ The Court has granted certiorari in that case,³¹⁹ in which it could apply and further clarify the principles of Seila Law.

Access to Personal Presidential Records³²⁰

On July, 9 2020, the Supreme Court issued a pair of decisions written by Chief Justice Roberts concerning subpoenas issued for the President's personal financial records and tax returns. In Trump v. Vance the Court held that (1) the President is not categorically immune from state investigative subpoenas; and (2) state prosecutors (or state grand juries) need not satisfy a heightened standard to issue a subpoena for a sitting President's private papers.³²¹ In Trump v. Mazars, the Court similarly clarified that there is no categorical bar to Congress issuing a subpoena for the President's "personal information," but held that when evaluating such a subpoena, courts must adequately consider the "weighty" separation-of-powers issues involved.³²² Although making important threshold determinations, neither Vance nor Mazars directed that the subpoenaed documents be turned over to the requesting parties. Both opinions instead remanded the cases to the courts below for further proceedings, leaving the question of whether the President's personal records must be disclosed for another day.³²³

Trump v. Vance

Background: Vance arose from a state-grand-jury subpoena issued by the New York County District Attorney in the course of an investigation into the business practices of President Trump and the Trump Organization.³²⁴ The subpoena, which sought financial records from 2011 to the present, was not issued to the President or the Trump Organization, but to Mazars USA (Mazars), the President's personal accounting firm. President Trump then brought suit against Mazars and the District Attorney, seeking to block Mazars from complying with the subpoena on the ground that "under Article II and the Supremacy Clause, a sitting President enjoys absolute immunity from state criminal process."³²⁵ The district court dismissed the case, finding the President's immunity argument "repugnant to the nation's governmental structure and constitutional values," but choosing not to exercise jurisdiction under an abstention doctrine that generally discourages courts from intervening in an ongoing state criminal proceeding.³²⁶ The Second Circuit disagreed, determining that abstention was inappropriate and holding that "presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertains to the President."³²⁷

The Supreme Court has previously considered arguments for a presidential immunity from judicial process. For example, the Court has held that the President enjoys "absolute immunity" from civil liability for his "official acts"³²⁸ but is not immune from civil suits predicated on "private conduct" occurring prior to taking office.³²⁹ In the criminal realm, the Court also determined in the landmark case of United States v. Nixon that a subpoena for documents may be issued (and enforced) against a sitting President as part of a federal criminal proceeding.³³⁰ But prior to Vance, the Court had never directly addressed how presidential immunity applies, if at all, in the context of a state criminal investigation.

Supreme Court's Decision: The Court made two key holdings in Vance. First, the Court unanimously held that the President is not categorically immune from state criminal subpoenas.³³¹ And second, seven justices concluded that the Constitution does not require that state grand jury subpoenas for a President's personal documents satisfy a "heightened need standard."³³²

On the question of categorical immunity, the Court reasoned that presidential immunity from a subpoena is appropriate only where compliance would amount to a "constitutionally forbidden impairment of the Executive's ability to perform its constitutionally mandated functions."³³³ The President asserted that state criminal subpoenas categorically constituted such an impairment by (1) distracting him from his duties; (2) creating a stigma that would "undermine his leadership"; and (3) subjecting him to harassment.³³⁴ The Court, after noting numerous historical instances in which Presidents have previously either testified or provided documents in federal criminal proceedings, rejected all three arguments in the context of a state criminal investigation.³³⁵ In so doing, the Court relied primarily on Clinton v. Jones, a previous opinion in which it had rejected similar assertions of impermissible distraction and interference arising from a subpoena in the context of a federal civil suit.³³⁶ Even when the President is the target of the investigation, the Court reasoned that "[t]wo centuries of experience . . . confirm that a properly tailored criminal subpoena will not normally hamper the performance of a President's constitutional duties."³³⁷ Nor could the stigma of being subpoenaed or concerns of harassment justify absolute immunity, according to the Court, especially in light of the various "safeguards" that deter abuse of specific state investigative subpoenas.³³⁸

The Court also held that the Constitution does not require a heightened showing of need before a state grand jury can issue a subpoena for a President's private papers. The Solicitor General, arguing on behalf of the government, took the position that a "threshold showing" of a "critical" and imminent need was necessary to support the state subpoena,³³⁹ a legal standard derived from cases involving executive privilege. The Court rejected that argument, concluding that such a standard would "extend protection designed for official documents to the President's private papers" and conflict with the "public interest in fair and effective law enforcement" potentially "hobbl[ing] the grand jury's ability to acquire" information necessary for its investigation.³⁴⁰

The Court clarified, however, that its holding did not leave the President without recourse when faced within a state criminal subpoena. Although not categorically immune, a President remains free to challenge a specific state subpoena demand on various grounds, including that it impermissibly interferes with the President's official duties in violation of the Supremacy Clause or perhaps that the subpoena demands privileged information, including communications protected by executive privilege.³⁴¹

Concurring and Dissenting Opinions: Justice Kavanaugh issued a concurring opinion joined by Justice Gorsuch, agreeing that the President possessed no absolute immunity from the state subpoena (and therefore concurring in the judgment), but somewhat diverging from the majority opinion on the question of whether to apply a heightened need standard.³⁴² Justice Kavanaugh would have applied a heightened standard adopted by the Court in Nixon under which a state prosecutor would need to "establish a 'demonstrated, specific need' for the President's information."³⁴³

Justices Thomas and Alito authored dissenting opinions. Although both rejected the President's position that he was immune from the merely being subject to any state subpoena, each Justice would have required additional considerations before enforcing a specific subpoena. Justice Thomas would have vacated and remanded the lower court opinion to address whether enforcement of the subpoena should be enjoined if the President can establish that "his duties as chief magistrate demand his whole time for national objects."³⁴⁴ Justice Alito, similarly would have concluded that "a subpoena like the one now before us should not be enforced unless it meets a test that takes into account the need to prevent interference with a President's discharge of the responsibilities of the office."³⁴⁵

Implications for Congress: The Vance opinion's direct implications for Congress are not readily apparent. The holding applies to state level criminal investigations, and therefore most directly affects the operation of state prosecutors and state grand juries. But the opinion's general separation-of-powers principles and rejection of the asserted Presidential immunity, especially in conjunction with the Courts holding in Mazars, may weaken other absolute and categorical immunity arguments that have been made in response to congressional demands for information.³⁴⁶ The opinion may also prove important if Congress chooses to legislate on the issue of Presidential immunity generally.³⁴⁷

Trump v. Mazars USA, LLP

Background: The Supreme Court has previously established that because the power to issue and compel compliance with a congressional subpoena derives from the Constitution's grant of "legislative power," it may only be exercised in "aid [of the] legislative function."³⁴⁸ Although the resulting investigative power is both "penetrating" and "far-reaching," the Court has generally implemented the required nexus between a subpoena and the legislative function by mandating that the subpoena serve a valid "legislative purpose."³⁴⁹ In the past, this standard has queried whether the subpoenaed information is "related to, and in furtherance of, a legitimate task of Congress."³⁵⁰ Because Congress exercises authority over an immense range of subjects, the legislative purpose test has imposed only a handful of relatively narrow limitations on the topics appropriate for congressional investigation. Congress may not, for example, probe purely private conduct with no relation to the legislative function³⁵¹ or investigate for purposes of "law enforcement," for example by seeking to "try" or "punish" an individual for a "crime or wrongdoing."³⁵² Even if Congress has a legislative purpose for seeking information, committee investigations also remain subject to other external constitutional restrictions, including the separation of powers and the rights and privileges of the Bill of Rights.³⁵³

The Mazars opinion addressed the consolidated cases of Trump v. Mazars USA, LLP and Trump v. Deutsche Bank.³⁵⁴ Both cases involved lawsuits filed by President Trump, his family, and the Trump Organization to block private financial entities from complying with subpoenas issued by House committees for various personal financial records, ranging from 2010 to the present and including the President's tax returns.³⁵⁵ The challenged subpoenas were issued as part of different ongoing committee investigations: the House Committee on Oversight and Reform sought information in connection to its ongoing review of federal ethics laws; the House Financial Services Committee sought information in connection to its investigation into abuses of the financial system; and the House Permanent Select Committee on Intelligence sought information in connection to its investigation into foreign interference in U.S. elections.³⁵⁶ President Trump and the other plaintiffs objected to these subpoenas, but did not argue that he was categorically immune from congressional subpoenas or that the information sought was privileged. Instead, the President asserted that the committees had no "legitimate legislative purpose" for inquiring into his private affairs and transactions and therefore no constitutional authority to compel the disclosure of the information sought.³⁵⁷ The House intervened in each case to protect its institutional interests.³⁵⁸

Applying the deferential legislative-purpose standard used by the Court in previous cases,³⁵⁹ the opinions below concluded that the challenged subpoenas were valid as the committees had a valid legislative purpose for seeking the President's personal records in that the requests were intended to inform possible legislation.³⁶⁰ On appeal to the Supreme Court, Mazars presented the Court with its first opportunity to directly consider the legislative purpose test in an investigation of the President.

Supreme Court's Decision: As a threshold matter, the Court began by characterizing the case as a "significant departure from historical practice." Interbranch disputes³⁶¹ over congressional access to information, the Court observed, have historically been resolved through a "tradition of negotiation and compromise" rather than through litigation.³⁶² As a result, Mazars was the "first of its kind to reach" the Court.³⁶³ That "longstanding practice" of judicial nonintervention was "a consideration of great weight" that, the Court reasoned, "imposes on us a duty of care to ensure that we not needlessly disturb 'the compromises and working arrangements that [those] branches . . . themselves have reached.'"³⁶⁴

With that background in mind, the Mazars opinion clarified that in the context of congressional investigations the President must, as a constitutional matter, be treated differently than others.³⁶⁵ Writing for a seven-Justice majority, Chief Justice Roberts described the courts below as having mistakenly "treated these cases much like any other," applying standards and principles established in "precedents that do not involve the President's papers."³⁶⁶ Subpoenas for the President's personal records, the Court determined, involve significant separation-of-powers concerns that trigger a different, more scrutinizing approach to the scope of Congress's power. But as in Vance, the Court again rejected as inappropriate invitations to import the heightened "demonstrated, specific need" or "demonstrably critical" standards that had been used in prior cases involving executive privilege.³⁶⁷ Instead, the Chief Justice identified at least four "special considerations" to help lower courts to appropriately balance the "legislative interests of Congress" with "the 'unique position' of the President" when a committee subpoena seeks the President's private papers.³⁶⁸

• First, a reviewing court should "carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers."³⁶⁹ The Court elaborated that Congress's "interests are not sufficiently powerful to justify access to the President's personal papers when other sources could provide Congress the information it needs."³⁷⁰
• Second, courts "should insist on a subpoena no broader than reasonably necessary to support Congress's legislative objective."³⁷¹ Specific demands, the High Court reasoned, are less likely to "intrude" on the operation of the Presidency.³⁷²
• Third, "courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose."³⁷³ To this end, Congress's position is strengthened when a congressional committee can provide "detailed and substantial evidence" of its legislative purpose.³⁷⁴
• Fourth, "courts should be careful to assess the burdens imposed on the President by a subpoena."³⁷⁵ Here the Court reasoned that in comparison to the burdens imposed by judicial subpoenas like those addressed in Vance, the burdens imposed on the President by congressional subpoenas "should be carefully scrutinized, for they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage."³⁷⁶

These "special considerations" appear to subject congressional subpoenas for the President's personal records to a less deferential standard than other congressional subpoenas. The Court did not apply these considerations to the committee subpoenas at issue, but instead left that task to the lower courts on remand. Moreover, the Court cautioned that "other considerations," besides those specifically identified, might also be relevant, as "one case every two centuries does not afford enough experience for an exhaustive list" of factors to be considered by a reviewing court.³⁷⁷

Dissenting Opinions: Justices Thomas and Alito issued dissenting opinions.

Justice Thomas would have held that "Congress has no power to issue a legislative subpoena for private, nonofficial documents—whether they belong to the President or not."³⁷⁸ That conclusion, he argued, flows from a lack of historical precedent prior to 1830, including the fact that "no founding-era Congress issued a subpoena for private, non-official documents."³⁷⁹ Justice Thomas also cast doubt on the validity of McGrain v. Daugherty, the Court's 1927 opinion recognizing a broad congressional subpoena power, describing that opinion as "lack[ing] any foundation in text or history" at least as regards its application to private documents.³⁸⁰ In Justice Thomas's view, if the committee wished to require disclosure of the information it seeks, it could do so only under the impeachment power.³⁸¹

Justice Alito found the majority's "special considerations" to be "inadequate" to protect the President's interests.³⁸² Because "legislative subpoenas for a President's personal documents are inherently suspicious," he would have gone further and required the House to justify its need for the information more fully. The committees, Justice Alito would have held, should be made to "provide a description of the type of legislation being considered," "spell out its constitutional authority to enact the type of legislation that it is contemplating," "justify the scope of the subpoenas in relation to the articulated legislative needs" and "explain why the subpoenaed information, as opposed to information available from other sources, is needed."³⁸³

Implications for Congress: The Court neither approved nor rejected the individual committee subpoenas issued to Mazars or Deutsche Bank. Nor did it hint at how each individual subpoena should fare in the face of the new considerations other than to observe generally that "[l]egislative inquiries might involve the President in appropriate cases."³⁸⁴ However applied, the majority opinion sought to chart a course for reviewing subpoena requests for the President's personal information that was somewhere between the standard favored by the House, which the Court described as "ignor[ing] that these suits involve the President," and the standard advanced by the President and the Solicitor General, which would have applied "the same exacting standards to all subpoenas for the President's information, without recognizing distinctions between privileged and nonprivileged information, between official and personal information, or between various legislative objectives."³⁸⁵

The identified considerations do, however, indicate that the enforceability of the subpoenas must be addressed on a case-by-case basis. Although the committee subpoenas overlap, each committee provided different justifications to support their demands.³⁸⁶ As a result, the nature of each committee's need for the President's personal information varies, and it is therefore conceivable—and perhaps likely—that the lower courts, though applying the same standards, will reach different conclusions as to the validity of the individual committee subpoenas. It appears, for example, that a committee articulating a specific and detailed need for a narrow set of documents is in a stronger position than one who can assert only a generalized need for a broad array of documents, or one that is using the President as a "case study."³⁸⁷ Ultimately, the Mazars "special considerations"³⁸⁸ are likely to spur ongoing and perhaps protracted litigation regarding the validity of the existing committee subpoenas.

Given the Mazars opinion's focus on the office of the President and its specific role in the separation of powers, the opinion itself does not purport to extend beyond subpoenas for presidential records, to also affect congressional investigations of other executive branch officials or agencies.³⁸⁹ Although not directly addressed by the Court, those investigations and any resulting subpoenas, would appear to remain subject to the traditional—and more deferential—"legislative purpose" test. As to future investigations of the President, the opinion provides congressional committees with four central considerations when issuing subpoenas for presidential records. For example, it would appear that committees will be in a stronger position if they issue a narrow and targeted subpoena while thoroughly articulating the committee's need for the information and its close relationship to the committee's legislative purpose.³⁹⁰

However interpreted, the Mazars opinion appears to add an arrow to the President's quiver when responding to congressional investigations. Future subpoenas for presidential records may very well be met with arguments that the committee lacks authority to seek presidential information grounded in the considerations identified by the majority opinion. These arguments may be made not only in court, but also much earlier in the investigative process during political negotiations between the legislative and executive branches over disputed information.³⁹¹ For example, Congress may be faced with claims that the President need not comply with congressional subpoenas because the information sought can be obtained elsewhere, or that unlike in judicial fact finding which requires "full disclosure of all the facts," "efforts to craft legislation involve predictive policy judgments" that may not require "every scrap of potentially relevant evidence."³⁹² And these claims relate only to the threshold question of whether a given subpoena is within Congress's authority to issue. Once these arguments are addressed, committees and courts must still resolve any objections based on applicable privileges.

Appendix. Supreme Court's October 2019 Term