Wednesday, January 13, 2021
Here's a short Q&A on some of the questions surrounding congressional efforts to impeach and disqualify President Trump. (I previously posted a primer on constitutional issues related to last week's insurgency.)
Can the House impeach President Trump again?
Yes. Recall that the House impeached President Trump just last year--for abusing power by pressuring the Ukrainian president to dig up dirt on Joe Biden to boost Trump's chances of reelection, and for obstructing the House investigation into the matter. Still, there's nothing prohibiting the House from impeaching President Trump again. (The House has only impeached two other presidents in our history, Andrew Johnson and Bill Clinton. It only impeached them once. But nothing prohibits a second impeachment.)
What happens if the House impeaches?
Alone, nothing. Remember that impeachment is a two-step process: impeachment in the House, and conviction in the Senate. Impeachment in the House requires a bare majority; conviction in the Senate requires a 2/3 vote. "Impeachment" requires both actions. So a House impeachment alone does nothing . . . except record for history that the House voted that the president committed impeachable offenses. Removal from office and disqualification from future office (see below) require the action of both chambers.
What happens if both chambers act?
Two things could happen. First, Congress (again, upon impeachment by the House and conviction in the Senate) could remove the president from office. That only happens, of course, if the president is still in office. So removal would only follow if Congress acted before President Trump's term ends.
Second, Congress can disqualify the president from holding office in the future. Under past congressional practice, this takes a bare majority in both chambers (and not the 2/3 super-majority in the Senate that's required for removal). (The Constitution itself isn't clear on the vote required for disqualification. But when the Constitution isn't clear, and there's no judicial precedent, we often look to past practice to discern the meaning. Past practice on disqualification says that Congress can disqualify with a bare majority vote in both houses.)
Finally, if both chambers act, Congress sets a precedent that behavior like President Trump's is impeachable, and cause for removal and disqualification. Because of the important role that history and practice play in our constitutional tradition, this kind of precedent would be significant, and could influence the future practices of both the President and Congress.
Can Congress impeach the President after his term ends?
Probably yes. The Constitution doesn't explicitly answer this question. But the House has twice impeached officials after they left office--once in 1797 (a Senator, after he was expelled), and once in 1876 (the Secretary of War, after he left office). These precedents are a good indication that Congress could impeach President Trump after he leaves office. (Again: past practice is a good indicator of meaning when the text is silent or ambiguous, and when there's no judicial precedent.) Moreover, as a practical matter, it only makes sense that Congress could impeach an officer after the officer leaves office. Otherwise, an officer could escape removal by resigning, or committing an impeachable offense near the end of the officer's term; and the officer could entirely escape disqualification (because a vote on disqualification often occurs only after an officer leaves office).
On the other hand, some argue that Congress can only impeach a sitting officer, in short, because only a sitting officer can be removed from office.
Can President Trump pardon himself out of impeachment?
No. The pardon power does not extend to impeachments.
Moreover, President Trump probably cannot pardon himself. (The Constitution doesn't say, and there's some disagreement on this. But the Justice Department has long held the view that the president cannot pardon him- or herself, based on the background constitutional principle that no person should be a judge in their own case.)
Can President Trump sue to stop or undo an impeachment?
No. The Supreme Court has ruled that impeachments are "non-justiciable." It said that the impeachment power belongs exclusively to Congress, and that the courts lack authority to second-guess congressional judgments about impeachment and its processes.
Can Congress disqualify President Trump from future office in some other way?
Yes. The 14th Amendment, Sections 3, says that any person who "engaged in insurrection or rebellion" is disqualified from holding federal and state offices, including the presidency. This would require a bare majority vote in both houses, and Congress could disqualify President Trump under the 14th Amendment after he leaves office. (Note that the current House articles of impeachment reference 14th Amendment disqualification.)
Vice President Mike Pence wrote to House Speaker Nancy Pelosi late yesterday declining to invoke the 25th Amendment against President Trump, writing that he does "not believe that such a course of action is in the best interest of our Nation or consistent with our Constitution."
As to why invocation of the 25th Amendment was not "consistent with our Constitution," Pence wrote,
As you know full well, the 25th Amendment was designed to address Presidential incapacity or disability. . . . Under our Constitution, the 25th Amendment is not a means of punishment or usurpation. Invoking the 25th Amendment in such a manner would set a terrible precedent.
He went on to argue that it'd be a bad idea, too, writing that "now is the time for us to come together, now is the time to heal."
For more on the 25th Amendment, check out this Congressional Research Service report.
Friday, January 8, 2021
Here's a short Q&A on some of the more common constitutional questions related to Wednesday's insurgency:
The Twenty-Fifth Amendment
What is it?
Section 4 of the Twenty-Fifth Amendment provides a four-step process for determining when a President "is unable to discharge the powers and duties of . . . office . . . ." Section 4 comes into play when a sitting President cannot or will not determine for him- or herself that he or she is so unable. (Section 3 provides the process for a President to make this determination for him- or herself, e.g., to temporarily designate him- or herself as unable to discharge the duties when he or she goes in for a medical procedure that may render the President temporarily unable to do the job.) If successful, a Section 4 process would make the Vice President the "Acting President."
How does it work?
Section 4 has four steps:
Step 1: The VP and a majority of the principal officers of the executive departments (the cabinet) send a written declaration of inability to the President Pro Tem of the Senate and the Speaker of the House. (There are 15 executive departments, so a majority is 8. Section 4 alternatively allows "such other body as Congress may by law provide" to serve this role. But there's currently no "such other body.") When this happens, the VP automatically becomes Acting President and assumes the powers of the presidency.
Step 2: The President may then send a letter to these congressional leaders stating that he or she has no disability--in other words, contesting the judgment of the VP and the cabinet. Note that the President isn't required to do this. If the President doesn't do it, the VP continues as Acting President. There's no time limit for the President to submit this transmission.
Step 3: The VP and a majority of the principal officers of the executive departments can send another transmission to the congressional leaders, but must do so within four days of the President's transmission. If so, then the VP remains Acting President. (There is some disagreement about who would have the powers of the presidency during the period between the President's transmission and the VP/cabinet's re-submission. There is good textual and historical evidence that the VP would remain Acting President during this period.)
Step 4: Congress shall assemble within 48 hours to decide the issue; it must make a decision within 21 days (of receipt of the last transmission (in Step 3), or, if not in session, after it's required to assemble). If Congress votes by 2/3 in each chamber that the President is unable to discharge the duties of office, then the VP remains Acting President. "[O]therwise, the President shall resume the powers and duties of his office."
What does it mean for President Trump?
If the VP and cabinet activate Section 4, VP Pence is likely to become the Acting President for the rest of President Trump's term, no matter what President Trump does. That's because the VP would become Acting President after Step 1, and because the VP and the cabinet would almost certainly complete Step 3 (having already committed to Step 1). At that point, Congress has a full 21 days--days in which the VP would be Acting President--which would carry us beyond January 20, the date of President-Elect Biden's inauguration. (Congress could easily drag its feet and avoid a vote until after January 20.)
Here's a fantastic Congressional Research Service report on the Twenty-Fifth Amendment.
What is it?
Impeachment is a two-step process by which Congress can remove a sitting President from office and ban the President from holding future office. According to the Congressional Research Service, "[i]t appears that federal officials who have resigned have still been thought to be susceptible to impeachment and a ban on holding future office." A pardon doesn't work on impeachment. An impeached individual could also be subject to criminal liability.
How does it work?
Impeachment is a two-step process:
Step 1: The House votes to impeach. This requires only a bare majority.
Step 2: The Senate then holds a trial and votes to convict. Removal from office requires a 2/3 vote. But under Senate practice, a bare majority could vote to prevent the President from holding future office.
What does it mean for President Trump?
Congress could remove President Trump from office, or ban him from holding office in the future, or both. Congress could ban President Trump from holding future office, even if he resigns from office first. Congress could dispense with its ordinary impeachment procedures (which take a longer time) and move very quickly, even before January 20. That's because impeachment proceedings are non-justiciable (the courts won't hear challenges to them), and President Trump therefore couldn't challenge an impeachment process in court.
Here's an excellent Congressional Research Service Report on impeachment.
President Trump is free to resign from office at any time. There are no restrictions on this. If he resigns, under Section 1 of the Twenty-Fifth Amendment, "the Vice President shall become President."
What is it?
The President has the power to pardon individuals for federal (but not state) crimes. But the President can pardon for crimes arising from past behavior only; the President cannot pardon for future acts. (But by pardoning for past behavior, the President can insulate individuals from future indictments or convictions.) The pardon power is probably not reviewable in the courts, although an improper exercise of the pardon power could be an impeachable offense.
The Justice Department has long held that a President cannot pardon him- or herself. (The OLC memo is here.) But we've never faced that situation, and we have no court rulings.
There's a question as to whether the President can issue a blanket pardon, or whether the President must identify the specific criminal behavior. This has never been tested.
What does it mean for President Trump?
President Trump cannot pardon himself. If he tries--and attempts to use his self-pardon as a defense in a future federal prosecution--he will likely fail. But President Trump could resign from office, or delegate authority to the VP, and VP Pence (as Acting President) could pardon him. (See the discussion on the Twenty-Fifth Amendment, above.)
VP Pence could not pardon President Trump for state crimes. The pardon power only works for federal offenses.
What is it?
The President enjoys certain immunities from the law by virtue of the President's unique position in our constitutional system. For example, the President is absolutely immune from civil liability for official actions. But the President is not immune from civil lawsuits for behavior prior to coming to office.
The Justice Department has long held that a sitting President is immune from federal criminal prosecution while in office. This is not uncontroversial, however, and it's never been tested. At the same time, DOJ has also long held that a President is not immune from federal criminal prosecution after the President leaves office. (Here's the most recent DOJ/OLC memo on this.)
The Supreme Court ruled just this past summer that a sitting President is not absolutely immune from all state criminal processes. President Trump is not immune from state criminal investigations and more, and he will enjoy no immunity from state criminal indictments or convictions when he leaves office.
What does it mean for President Trump?
President Trump is subject to federal and state criminal indictment and conviction for behavior while in office when he leaves office, and maybe sooner. Traditionally, the DOJ has not pursued criminal charges against a former President. But the Constitution does not forbid this.
A pardon, of course, would insulate President Trump from future federal criminal prosecution.
Wednesday, December 30, 2020
The D.C. Circuit ruled this week that members of a House committee have standing to sue to enforce their statutory right to obtain information from executive agencies, in this case the General Services Administration.
The ruling means that the plaintiff-House members can pursue their claim to get the information, but it does not say that they'll win. In any event, the case is likely to become moot under President Biden, when the administration seems much more likely to comply with the request. (The ruling is likely to embolden minority Republican House members to ask for information from the Biden Administration.)
The case, Maloney v. Murphy, arose when Democratic members of the House Oversight Committee, then in a minority, sought information from the GSA related to the Agency's lease with a Trump corporation for the Old Post Office. The members invoked 5 U.S.C. Sec. 2954, which authorizes seven members of the House Oversight Committee or five members of the Senate Homeland Security and Governmental Affairs Committee to request and obtain information from any executive agency. The statute functionally allows a minority group of lawmakers on those committees to obtain information from an executive agency, even if the full committee does not seek that same information.
GSA balked, and the members sued. The district court granted the GSA's motion to dismiss for lack of standing, but the D.C. Circuit reversed.
The court said that the plaintiffs suffered a cognizable informational injury--that the GSA deprived them of information to which they were entitled, and that their lawsuit would redress that injury.
The court went on to say that the injury was "personal," and not "institutional," and therefore the individual lawmakers had standing. (A personal injury is a direct harm to a person, or in this case a lawmaker; the harmed individual, even if a lawmaker, has standing to sue. An institutional injury, in contract, is a generalized harm to the institution, in this case the Committee; the Committee would have standing, but not an individual lawmaker.) The court explained:
The Requestors do not assert an injury to institutional powers of functions that "damages all Members of Congress and both Houses of Congress equally." The injury they claim--the denial of information to which they as individual legislators are statutorily entitled--befell them and only them. Section 2954 vested them specifically and particularly with the right to obtain information. The 34 other members of the Committee who never sought the information suffered no deprivation when it was withheld. Neither did the nearly 400 other Members of the House who were not on the Committee suffer any informational injury. Nor was the House (or Senate) itself harmed because the statutory right does not belong to those institutions.
Judge Ginsburg dissented:
The Plaintiff-Members here allege harm to the House rather than to themselves personally. Their theory of injury is that the General Services Administration (GSA), by refusing their request for certain documents, hindered their efforts to oversee the Executive and potentially to pass remedial legislation. The Complaint is clear and consistent on this point: The Plaintiff-Members were harmed through the "impedance of the oversight and legislative responsibilities that have been delegated to them by Congress . . . ."
Friday, December 18, 2020
The Supreme Court ruled today that the case challenging President Trump's plan to report reapportionment numbers to Congress without accounting for unauthorized aliens was not ripe for judicial review and that the plaintiffs lacked standing to challenge the plan. The Court said nothing about the merits of the case, although its practical effect allows the President to move forward.
The ruling means that the Commerce Secretary can go ahead and report the numbers of unauthorized aliens along with a total head-count to the President, and that the President can go ahead and report apportionment numbers to Congress based on total numbers minus unauthorized aliens.
This is unprecedented. Apportionment has never discounted for unauthorized aliens.
At the same time, it's not at all clear as a practical matter if or how the President will be able to implement this. And even if he does, the plaintiffs can come back and sue later, when they may meet a more friendly Court. (Justices Kavanaugh and Barrett seemed sympathetic to the plaintiffs' arguments during oral argument on the case. They could join Justices Breyer, Sotomayor, and Kagan to rule against the President.)
The case arose when President Trump issued a memo this summer directing the Secretary of Commerce to report two sets of numbers to the President: (1) a raw census total head count; and (2) the number of unauthorized aliens in the country. President Trump wrote that he'd certify apportionment numbers to Congress based on the total head count minus the number of unauthorized aliens in the country.
This would cause some states (with large populations of unauthorized aliens) to lose representation in Congress. It could also allow some states and local jurisdictions to lose vast amounts of federal funds, which are tied to census numbers.
Some of those states sued, arguing that President Trump's memo violated the Constitution and federal law, both of which mandate apportionment based on "the whole number of persons in each State, excluding Indians not taxed."
The Court ruled that the plaintiffs lacked standing, and that the case wasn't ripe for judicial review. In an unsigned opinion, six justices ruled that the plaintiffs' claimed harms--loss of representation and federal funds--weren't certain enough to justify judicial intervention. "At present, this case is riddled with contingencies and speculation that impede judicial review." The Court noted that the President's memo was contingent ("to the extent practicable," for example), and that it's not even clear that the Secretary can compile the data by the statutory deadline. Moreover, it noted that federal funds may not even be affected: "According to the Government, federal funds are tied to data derived from the census, but not necessarily to the apportionment counts addressed by the memorandum."
Justice Breyer wrote a sharp and lengthy dissent, joined by Justices Sotomayor and Kagan. He argued that the plaintiffs had standing and that the case was ripe for review under settled Court precedent, and that the President's memo violated the Constitution and federal law.
Saturday, December 12, 2020
The Supreme Court on Friday dismissed Texas's challenge to election results in Georgia, Pennsylvania, Michigan, and Wisconsin for lack of standing. The brief order simply read,
The State of Texas's motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.
Texas argued that it asserted two harms sufficient to satisfy standing: (1) its citizens were harmed in their votes for president by other states' failures to comply with the Elections Clause; and (2) Texas itself was harmed in its role (as a state) in the Senate, where the vice president could break a tie.
The Court's ruling rejects those theories. It did not say anything about the Elections Clause, however.
Justice Alito filed a statement, joined by Justice Thomas, reiterating their view that the Court lacked "discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction."
The ruling ends this challenge. But Trump supporters have already indicated that they'll seek to file similar challenges on behalf of individual voters in these states.
Friday, December 11, 2020
The Supreme Court ruled this week that a Delaware attorney lacked standing to challenge the state's political balancing requirements for seats on its courts. The ruling means that the Court didn't address the underlying merits question, whether the balancing requirements violate the First Amendment. It also didn't break any significant new ground on standing.
The case, Carney v. Adams, involved Delaware's two political balancing requirements for its courts, the "bare majority" requirement and the "major party" requirement. The bare majority requirement says that no more than a bare majority of judges on any of the state's five major courts "shall be of the same political party." The major party requirement says that judges not in the majority on three of the state's courts "shall be of the other major political party."
Delaware attorney James Adams sued, arguing that the provisions violated his First Amendment right to free association. There was just one problem: Adams failed to show that he was harmed by the two requirements. He hadn't applied for a judgeship and been rejected, and he hadn't even stated a determinate intent to apply for a particular judgeship for which he wouldn't qualify; he only said that he'd like to apply for a judgeship at some undefined point in the future--and that the political balancing requirements would prevent him from getting the job. So the Court ruled that he lacked standing.
Justice Breyer wrote for a unanimous Court. Justice Breyer concluded that Adams failed to show that he was "able and ready" to apply for a judgeship based on three considerations:
First, as we have laid out Adams' words "I would apply . . . " stand alone without any actual past injury, without reference to an anticipated timeframe, without prior judgeship applications, without prior relevant conversations, without efforts to determine likely openings, without other preparations or investigations, and without any other supporting evidence.
Second, the context offers Adams no support. It suggests an abstract, generalized grievance, not an actual desire to become a judge. . . .
Third, if we were to hold that Adams' few words of general intent--without more and against all contrary evidence--were sufficient here to show an "injury in fact," we would significantly weaken the longstanding legal doctrine preventing this Court from providing advisory opinions . . . .
Justice Breyer quoted Justice Powell in United States v. Richardson, reminding us why standing is an important separation-of-powers concern:
[Justice Powell] found it "inescapable" that to find standing based upon [a general interest, common to all members of the public] "would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government." He added that "[w]e should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.
Justice Sotomayor concurred. She wrote to point out that the two requirements were very different and might very well require two different kinds of analysis, if and when this issue comes back to the courts. She also urged lower courts to certify the question of the severability of the two provisions to the state courts.
Thursday, December 3, 2020
The Ninth Circuit affirmed a preliminary injunction yesterday that halted the administration's "public charge" rule--the ban on admission of aliens to the United States who are likely to receive certain public benefits for more than 12 months within any 36 month period. But the court vacated a lower court's nationwide injunction; instead, the ruling temporarily halted the rule within the Ninth Circuit and in other outside states that brought the case.
The ruling aligns with similar rulings in the Second Circuit and Seventh Circuit (where then-Judge Amy Coney Barrett dissented), but conflicts with a ruling out of the Fourth Circuit.
Ordinarily, this case would seem destined for the Supreme Court. But DHS may reverse course in the Biden Administration and render it moot.
The case arose when DHS adopted a rule in August 2019 that re-defined "public charge" under the Immigration and Naturalization Act provision that renders inadmissible any alien who is likely to become a "public charge." In particular, DHS defined "public charge" to mean "an alien who receives one or more [specified] public benefits . . . for more than 12 months in the aggregate within any 36-month period."
The change in definition broke with a long history, "from the Victorian Woodhouse to agency guidance in 1999," defining "public charge" to mean dependence on public assistance for survival--and not "short-term use of in-kind benefits that are neither intended nor sufficient to provide basic sustenance."
The court ruled that the 2019 rule was contrary to law and arbitrary and capricious in violence of the Administrative Procedure Act. It held that the rule violated the long-running meaning of "public charge" under the INA and thus violated the Act. It also held that DHS failed to consider the financial impact of the rule and the health consequences of the rule for immigrants and the public as a whole, and failed to explain its reversal in position (from the 1999 guidance).
Judge VanDyke dissented, relying on the reasoning in the Fourth Circuit ruling, then-Judge Barrett's dissent in the Seventh Circuit case, the earlier Ninth Circuit ruling staying a district court injunction pending appeal, and "the Supreme Court's multiple stays this year of injunctions virtually identical to those the majority today affirms."
Saturday, September 26, 2020
Judge Lucy H. Koh (N.D. Cal.) ruled this week that the Trump Administration's late summer plan to rush census data collection likely violated the Administrative Procedure Act. The ruling halts the implementation of the plan.
The ruling is a blow to the Trump Administration and its latest effort to alter or manipulate census data.
The case arose when the Census Bureau first suspended census operations and then pushed back internal deadlines for census data collection and analysis because of collection problems related to COVID-19. (For one, the Bureau couldn't keep census data doorknockers on the payroll: they kept quitting out of fear of contracting COVID.) The Bureau also announced that it wouldn't be able to meet statutory deadlines for reporting census data. The Bureau said that under its regular deadlines the census would be incomplete and inaccurate.
But then in early August, the Bureau abruptly reversed course and issued the "Replan." The Replan "accelerate[d] the completion of data collection and apportionment counts by our statutory deadline of December 31, 2020 . . . ."
The problem was that the Bureau itself--and the Bureau's unanimous Scientific Advisory Committee, and the GAO, and the Commerce Department's Inspector General--concluded that the Replan increased the risks of an incomplete and inaccurate 2020 census.
Plaintiff organizations and local jurisdictions sued, arguing that the Replan violated the APA and the Enumeration Clause and sought to halt its implementation. The court ruled that the case was justiciable, that the plaintiffs had standing, and that the Replan likely violated the APA. (It did not rule on the Enumeration Clause, because it didn't have to. The APA ruling was enough to say that it likely violated the law.) As to the APA claim, the court wrote:
[T]he Court agreed that Plaintiffs are likely to succeed on the merits of their APA arbitrary and capricious claim for five reasons: (1) Defendants failed to consider important aspects of the problem, including their constitutional and statutory obligations to produce an accurate census; (2) Defendants offered an explanation that runs counter to the evidence before them; (3) Defendants failed to consider alternatives; (4) Defendants failed to articulate a satisfactory explanation for the Replan; and (5) Defendants failed to consider reliance interests.
Friday, September 25, 2020
The D.C. Circuit ruled today that the House of Representatives has standing to challenge President Trump's reprogramming of federal funds to build a border wall.
The ruling is a setback for the Trump Administration and its efforts to build the wall (or at least more of it than Congress authorized through federal funding). But the ruling only says that the House has standing--not that it wins. The case now goes back to the district court for further proceedings, unless the administration seeks en banc or Supreme Court review.
The court said that the House has standing to challenge the reprogramming under the Appropriations Clause, but not under the Administrative Procedure Act. That shouldn't matter much to the future of the case, though: the lower court will still rule whether the Trump administration violated the law (the Constitution) in reprogramming funds.
Aside from allowing this case to move forward, the ruling is also significant because it says that a single house of Congress has standing to challenge executive action in violation of the Appropriations Clause. Appropriations, of course, require both houses of Congress. But the court said that a single house nevertheless suffered sufficient injury to satisfy Article III standing requirements when the executive branch reprograms federal funds in alleged violation of the Appropriations Clause. Here's what the court wrote on that point:
More specifically, by spending funds that the House refused to allow, the Executive Branch has defied an express constitutional prohibition that protects each congressional chamber's unilateral authority to prevent expenditures. It is therefore "an institutional plaintiff asserting an institutional injury" that is both concrete and particularized, belonging to the House and the House alone.
To put it simply, the Appropriations Clause requires two keys to unlock the Treasury, and the House holds one of those keys. The Executive Branch has, in a word, snatched the House's key out of its hands. That is the injury over which the House is suing.
. . .
[U]nder the defendants' standing paradigm [requiring Congress to sue, not just a single house], the Executive Branch can freely spend Treasury funds as it wishes unless and until a veto-proof majority of both houses of Congress forbids it. Even that might not be enough: Under defendants' standing theory, if the Executive Branch ignored that congressional override, the House would remain just as disabled to sue to protect its own institutional interests. That turns the constitutional order upside down.
Thursday, July 9, 2020
Court Says Congress Can Subpoena Trump Financial Records, but Must Account for Separation of Powers Concerns
The Supreme Court ruled today that while Congress has authority to issue subpoenas for the President's personal financial records, courts that judge those subpoenas must take more careful account of the separation-of-powers considerations at play.
The ruling in Trump v. Mazars vacates the lower courts' rulings and remands the case for reconsideration in light of the balancing test that the Court sets out.
The ruling means that the congressional committees won't get President Trump's financial records yet, and maybe never. It all depends on whether Congress can meet the test set out in the Court's opinion. Either way, it almost certainly won't happen before the 2020 election.
The ruling, like Vance, is a short-term victory for President Trump, in that his records probably won't come out soon. But on the other hand, it's a decisive long-term defeat for the presidency (and victory for Congress), as the Court affirmed Congress's power to subpoena the President's personal records, even with a somewhat higher-than-normal requirement.
Chief Justice Roberts wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Justice Thomas dissented, and Justice Alito dissented. (If you're keeping count, that's the same line-up as in Vance.)
The Court first rejected the President's sweeping claim that tried to shoe-horn executive privilege into the case: "We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations."
The Court then acknowledged that Congress has very broad, but still defined, powers of investigation and subpoena, even against the President, and even for the President's personal papers. But the Court said that because these subpoenas sought personal information of the President (as the single head of the Executive Branch), they raised especial separation-of-powers concerns that the lower courts failed sufficiently to account for:
The House's approach fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President's information. . . .
Without limits on its subpoena powers, Congress could "exert an imperious controul" over the Executive Branch and aggrandize itself at the President's expense, just as the Framers feared.
The Court set out a non-exhaustive list of things that courts should look for in judging congressional subpoenas for a President's personal information:
First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. Congress may not rely on the President's information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. . . .
Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress's legislative objective. . . .
Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial the evidence of Congress's legislative purpose, the better. . . .
Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena. . . .
Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list.
The Court vacated the lower courts' opinions and remanded for reconsideration under these factors.
Justice Thomas argued that "Congress has no power to issue a legislative subpoena for private, nonofficial documents--whether they belong to the President or not," unless Congress is investigating an impeachment.
Justice Alito dissented, too, arguing that the bar for Congress should be set higher than the Court's setting, and that "the considerations outlined by the Court can[not] be properly satisfied [on remand] unless the House is required to show more than it has put forward to date."
Wednesday, July 8, 2020
The Supreme Court today upheld the Trump Administration's rules substantially broadening the religious exemption and expanding it to those with a "moral" objection to the Affordable Care Act's contraception guarantee.
The ruling in Little Sisters v. Pennsylvania means that a dramatically expanded group of employers--those with a religious objection or moral objection to contraception--get an automatic free pass on the requirement that employers provide their female employees with health-insurance coverage that includes contraceptives. Covered employers need not file for an self-certified exemption or accommodation; they just have to, well, not provide coverage.
This could mean that between 70,500 and 126,400 women would lose access to contraceptive services under their employer-provided health insurance plans. (This is the Administration's estimate.)
The Court's ruling leaves open another challenge to the rules, however, and the plaintiffs could raise the argument on remand, that is, that the rules are arbitrary and capricious under the Administrative Procedure Act.
Justice Thomas wrote for the Court, joined by Chief Justice Roberts, Alito, Gorsuch, and Kavanaugh. The Court ruled that the Departments had statutory authority to adopt the rules under 42 U.S.C. Sec. 300gg-13(a)(4), which provides that "with respect to women," group health plans must "at a minimum, provide . . . such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by [HRSA]." The Court said that the "as provided for" clause "grants sweeping authority to HRSA to craft a set of standards defining the preventive care that applicable health plans must cover," leaving the HRSA with "virtually unbridled discretion to decide what counts as preventive care and screenings." The Court held that this authority included the power "to identify and create exemptions" like the ones in the challenged rules.
The Court also held that the Departments complied with the procedural requirements in the Administrative Procedure Act in adopting the rules.
The Court expressly declined to say whether RFRA compelled the exemptions in the rules, as the Administration argued. Still, the Court did say that the Departments were within their powers to consider RFRA in writing the rules, and even that "[i]t is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA."
Justice Alito concurred in full, joined by Justice Gorsuch. Justice Alito argued that the Court should have resolved the RFRA question in favor of the Administration--that is, that RFRA compelled the rules. According to Justice Alito, this would have meant that the rules were not impermissibly arbitrary and capricious under the APA, and thus foreclosed that argument on remand.
Justice Kagan, joined by Justice Breyer, concurred in the judgment. Justice Kagan argued that HRSA had statutory authority to exempt certain employers from the contraceptive guarantee, but (different than the Court) because the HRSA was entitled to Chevron deference in its interpretation of the ambiguous statutory language. She also argued that the rules could be arbitrary and capricious--an issue for the lower court on remand.
Justice Ginsburg dissented, joined by Justice Sotomayor. Justice Ginsburg pointed to an earlier provision in the Act that specifies that group health plans and health insurance issuers "shall" cover specified services. She argued that this provision mandates who is required to provide specified services--and that it doesn't include any exemptions. (She argued that the section that the Court relied on only went to what services must be provided, not who must provide them. And yet the rules provide exemptions for who must provide services.) She also argued that the rules weren't compelled by the Free Exercise Clause or RFRA.
Monday, June 29, 2020
The Supreme Court today struck the statutory independence of the Director of the Consumer Financial Protection Bureau, even as it declined to rule the entire CFPB unconstitutional. This means that the CFPB stays in place, Director and all, but that the President can terminate the Director at will. (As to the particular case before the Court, which challenged a CFPB enforcement demand, the ruling invalidates the demand. But the CFPB could reissue it and re-commence enforcement, but without protections for the Director.)
More broadly, the ruling in Seila Law v. CFPB says that Congress lacks authority to create an Executive Branch "independent" principal office, unless that office is part of a larger board or commission, and probably without significant executive power.
The ruling is a victory for the Trump Administration, which opposed independence for the CFPB Director. But at the same time, it sharply restricts Congress's power to create an independent principal office within the Executive Branch.
Under the Dodd-Frank Act, the CFPB has authority to implement and enforce a variety of consumer financial protection laws to "ensur[e] that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive."
The Director is nominated by the President and confirmed by the Senate. In creating an independent Director, Congress legislated that the Director would be appointed for five years and can be removed only for "inefficiency, neglect of duty, or malfeasance in office." It's that "independence" that was at stake in the case.
The Court ruled that this independence violated the separation of powers. Pointing to the Article II Vesting Clause, the Court wrote that "[t]he entire 'executive Power' belongs to the President alone." It held that statutory independence for a principal executive officer who is not a part of a board of commission impermissibly restricts the President's executive power.
The Court distinguished Humphrey's Executor, holding that Humphrey's upheld the independence of a multi-member board, the FTC, whereas the CFPB has a single head. According to the Court, unlike the FTC (at the time), the CFPB's single Director is not a "body of experts," is not "non-partisan," and does not have staggered terms that "prevent complete turnover in leadership." Moreover, the CFPB Director has greater responsibilities than the old FTC did, including the "quintessentially executive power" to seek monetary penalties in federal court.
The Court distinguished Morrison v. Olson, holding that Congress may create an independent inferior officer. The Court said that the CFPB Director was a principal office, and had more wide-ranging authority than the independent counsel in Morrison, and that the independent counsel's prosecutorial authority looked inward, to Executive Branch officials on specified matters, whereas the CFPB Director has authority over "millions of private citizens and businesses, imposing even billion-dollar penalties through administrative adjudications and civil actions."
The Court declined to "extend" those cases to cover the "new situation" of the CFPB Director's independence. The Court said that there was no precedent for this kind of office, and that it "is incompatible with our constitutional structure." "The . . . constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual executive officials will still wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President."
But even as the Court struck statutory independence for the Director, it declined to take down the entire CFPB. The Court ruled that the independence provision was severable from the rest of the Act, and therefore that the CFPB could remain, Director and all, but without the independence protection.
Justice Kagan, dissenting on independence but concurred on severability, and joined by Justices Ginsburg, Breyer, and Sotomayor, wrote:
If a removal provision violates the separation of powers, it is because the measure so deprives the President of control over an official as to impede his own constitutional functions. But with or without a for-cause removal provision, the President has at least as much control over an individual as over a commission--and possibly more. That means the constitutional concern is, if anything, ameliorated when the agency has a single head. . . .
In second-guessing the political branches, the majority second-guesses as well the wisdom of the Framers and the judgment of history. It writes in rules to the Constitution that the drafters knew well enough not to put there. It repudiates the lessons of American experience, from the 18th century to the present day. And it commits the Nation to a new static version of governance, incapable of responding to new conditions and challenges.
Friday, June 26, 2020
In a pair of rulings today, here and here, the Ninth Circuit held that President Trump exceeded his authority under federal law and violated the Appropriations Clause in reprogramming funds to build portions of a border wall between the U.S. and Mexico.
The rulings are a sharp set-back to President Trump's efforts to make good on his promise to build the wall.
Today's rulings come after the case has already been to the Supreme Court. Recall that the Court earlier granted the Administration's motion for a stay of the district court's earlier injunction, affirmed by the Ninth Circuit. The Court's stay meant that the injunction would not remain in place as the case moved forward on the merits. So the case moved forward on the merits, sans injunction. But then the district court ruled in favor of the plaintiffs and granted a new injunction. That's why we got today's rulings.
(There's some weirdness here. The Supreme Court granted the stay, stating, "Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005." Despite this language, the court today ruled that the plaintiffs in both cases did have causes of action.)
The rulings say that President Trump exceeded his authority under the 2019 Defense Department Appropriations Act and violated the Appropriations Clause, and affirmed a permanent injunction.
The court held that in order to reprogram under Sections 8005 and 9002 of the 2019 Defense Department Appropriations Act, (1) there must be for an unforeseen military requirement and (2) Congress must not have previously denied funding. The court said that President Trump's reprogramming violated both requirements.
As to the first, the court said that the border wall was no "unforeseen military requirement." Among other things, the court noted that President Trump had long advocated for the wall, suggesting that it couldn't have been "unforeseen."
As to the second, the court noted that Congress had previously denied the Administration's request for full funding.
Judge Collins dissented in both cases. Judge Collins argued that the plaintiffs didn't have a cause of action (see the weirdness parenthetical, above), and that even if they did they'd lose on the merits.
Wednesday, June 24, 2020
A sharply divided three-judge panel of the D.C. Circuit today ordered Judge Emmet Sullivan to dismiss the criminal case against Michael Flynn for lying to the FBI. This is hardly the final word, though: the extraordinary ruling is sure to go to the full circuit, and perhaps even the Supreme Court.
Flynn was charged with lying to the FBI as part of the FBI's investigation into connections between the Trump campaign and Russia in the 2016 election. He pleaded guilty--twice, before two different federal judges--and agreed to cooperate with the government in its ongoing investigation. The court deferred sentencing to allow Flynn to continue to cooperate.
Flynn then moved to withdraw his plea, arguing that the government failed to produce exculpatory evidence. Most recently, DOJ came across material that, according to the government, means that the prosecution can no longer prove the charge. So the government moved to dismiss the case.
Judge Sullivan appointed an amicus to represent the no-dismissal side, invited other amici to weigh in, and set a hearing date on the motions--all to determine whether he should grant "leave of court" to dismiss. (That's the standard under a Rule 48(a) motion to dismiss a criminal charge.) (Judge Sullivan had serious concerns about the government's motion, given the many, many irregularities in the case.)
Then Flynn filed a writ of mandamus in the D.C. Circuit, and the government weighed in to support it. Note that Judge Sullivan had not yet even held the hearing on the motion to dismiss, much less denied it.
(Just gotta say it: Wow. Not your usual federal prosecution.)
Today the D.C. Circuit ruled for Flynn and ordered the prosecution dismissed. Judge Rao wrote the majority opinion, which concluded that Judge Sullivan committed clear legal error. Moreover, by ordering dismissal without a hearing or further consideration by the lower court, the court said that the district court had no role under the Rule 48(a) "with-leave-of-court" standard.
Judge Rao started by noting that a prosecution's motion to dismiss is entitled to a presumption of regularity. But the court wrote that Judge Sullivan raised nothing to challenge this presumption, or to show that this was the kind of case that warranted a hearing or further judicial inquiry into the motion. As such, the court concluded that Judge Sullivan went beyond his authority in appointing an amicus and scheduling a hearing. Again: All this before Judge Sullivan even held the hearing, much less ruled against dismissal.
Judge Rao explained in separation-of-powers terms:
In this case, the district court's actions will result in specific harms to the exercise of the Executive Branch's exclusive prosecutorial power. The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority. Thus, the district court's appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal.
Judge Rao seemed to try to leave open some room for a district court to determine whether to grant "leave of court" on a Rule 48(a) motion to dismiss. But if this case doesn't fit the bill (again, with all its irregularities), it's not clear what would.
Judge Wilkins dissented. In short:
This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling; the first time any court has held that a district court must grant "leave of court" pursuant to Federal Rule of Criminal Procedure 48(a) without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy [that is, appeal after a denial of the motion to dismiss], on the theory that another party [the government] would not have had an adequate alternative remedy if it had filed a petition as well. Any one of these is sufficient reason to exercise our discretion to deny the petition; together they compel its rejection.
Thursday, May 14, 2020
A sharply divided Wisconsin Supreme Court struck the isolation order issued by the state Department of Health Services Secretary-Designee, effective immediately. The 4-3 ruling said that the order didn't go through administrative rule-making process and exceeded DHS's statutory authority.
The ruling says nothing about Governor Evers's emergency order. And nothing in the ruling restricts the state DHS from going back to the drawing board to tailor an administrative rule or order to the court's ruling.
The majority opinion focuses almost exclusively on administrative law and statutory authority.
But don't stop there: the lengthy concurring and dissenting opinions, and their back-and-forth on the separation of powers, are well worth a look--if only for the dramatically different ways that the Justices apply these principles.
Tuesday, May 12, 2020
The Supreme Court heard oral arguments today in Trump v. Mazars and Trump v. Vance, the cases testing congressional authority and a local D.A.'s authority, respectively, to subpoena President Trump's financial records from his accounting firm and bank.
As usual, it's hard to say where the Court is going to land based on oral arguments. (It might be even harder than usual, given the teleconference format.) But based on questioning, it seems likely that the Court in Mazars could issue a split decision, upholding one or two subpoenas while overturning the other(s). In both cases, the Court'll seriously balance the interference (or not) of the subpoenas with the President's ability to do the job. Look for that balance to split along conventional ideological lines, with Chief Justice Roberts right in the center.
Another possibility: the Court could set a new standard for these subpoenas and remand for reconsideration.
Whatever the Court does, two things seem very likely. First, the rulings will have a dramatic effect on the separation of powers and checks and balances, likely shifting power and immunities (to some degree, more or less) to the President. Second, likely the only way we see President Trump's financial records and taxes before the 2020 election is if the Court outright upholds one of the House Committee's subpoenas. (Even if the Court rules against the President in Vance, grand jury secrecy rules mean that we probably may not see those records until after the election.)
The two cases raise very different questions. Mazars is all about the separation of powers--congressional authority to issue subpoenas to third parties for the President's personal information--while Vance is about federalism and presidential immunities--a local prosecutor's authority, through a grand jury, to subpoena that same material, and the President's claim of absolute immunity from any criminal process.
Despite the differences, though, much of the arguments in both cases focused on how the subpoenas, wherever they came from, would, or would not, "interfere" with the President's execution of the Article II powers. The President's attorneys argued repeatedly that allowing subpoenas in this case could open the door to free-flowing subpoenas from every congressional committee and every local prosecutor, and would thus impede the President's ability to do the job. On the other hand, attorneys for the Committees and the D.A. noted that these particular subpoenas are directed at a third party and don't require the President to do anything.
Look for the Court to incorporate this into its reasoning--the extent to which the subpoenas interfere with the President's job, either in fact (where there's no real evidence that President Trump has actually been distracted by these subpoenas) or in theory (where we can imagine that a future President might be distracted by a flurry of future subpoenas).
Questions in Mazars also focused on the three committees' precise authorities and reasons for their subpoenas. Did they have authority under the House's standing rules? Did the House's subsequent "ratification" of them suffice to demonstrate that the whole House supported them? Were the reasons within a "legitimate legislative purpose"?
These questions suggest that the Court may examine each subpoena separately, and could well uphold one or two, while overturning the other(s).
We also heard some pretty breathtaking claims by the President's attorneys about the scope of presidential powers and immunities. In Mazars we heard that Congress can't regulate the President at all (even if it can regulate other offices in the Executive Branch), and therefore can't investigate (and subpoena) material to help enact law that would regulate the President. In Vance, we heard that the President is absolutely immune from all criminal processes.
The government, weighing in as amicus in both cases in support of the President, dialed back the President's most extreme and categorical positions, and argued instead for a more stringent test for subpoenas directed at the President's personal information. This could give the Court an attractive "middle" position. (This isn't really a middle position. But the President's extreme claims make the government's position look like a middle position.)
On the other side, Congress's attorney in Mazars struggled to identify a limit to Congress's power to subpoena--an issue that several Justices thumped on. The lack of a limiting principle could come back to bite the House Committees, even if these particular subpoenas might've come well within a reasonable limiting principle. That's because if the Court rules for the Committees, it'll have to say why--knowing that the reason will apply to all future congressional subpoenas. If the Committees can't give the Court a limiting principle, the Court could conclude that they see no limit on their authority. And that may be reason enough for at least some of the Justices to rule against them.
Monday, May 11, 2020
The Supreme Court will hear oral argument tomorrow in Trump v. Vance, the case testing whether the President is immune from a state grand jury subpoena for his records that have nothing to do with his official duties. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:
In the summer of 2018, the New York County District Attorney’s Office (the Office) opened an investigation into possible criminal misconduct in activities connected to the Trump Organization. The Office obtained information about transactions and tax strategies by individuals and organizations that raised the prospect that a continuing pattern of criminal activity might have occurred within the Office’s jurisdiction and within the statute of limitations. Importantly, the Office has not eliminated President Trump himself as a potential target.
These transactions include the now-familiar “hush money” payments during the 2016 presidential campaign that President Trump’s attorney, Michael Cohen, paid to two women with whom President Trump had extra-marital affairs. Cohen admitted that he violated campaign finance laws in coordination with, and at the direction of, a person later identified as President Trump. Cohen pleaded guilty to the charges and is now serving a prison sentence.
Around the time of Cohen’s guilty plea, at the request of federal prosecutors and in order to avoid disruption of the ongoing federal investigation, the Office deferred its own investigation. After the Office learned in July 2019 that the federal investigation had concluded without any further charges, the Office then resumed its investigation.
On August 1, 2019, the Office served the Trump Organization with a grand jury subpoena for records and communications concerning certain financial transactions. The Office later informed the Trump Organization’s attorney that the subpoena also required production of certain tax returns. Over the next several months, the Trump Organization produced responsive documents, but not the tax returns.
On August 29, 2019, the Office served a grand jury subpoena on Mazars USA, LLP, President Trump’s accounting firm, for financial and tax records from January 1, 2011, to the date of the subpoena, including records for President Trump himself and entities he owned before becoming President. The Office largely patterned the Mazars subpoena on a similar subpoena to Mazars issued by the House Committee on Oversight and Reform. The Office’s Mazars subpoena does not seek any official government communications or involve any official presidential conduct.
Soon after the Office issued the Mazars subpoena, the Trump Organization informed the Office that they believed that the request for tax records implicated constitutional considerations. The Office agreed to temporarily suspend the tax portion of the subpoena to allow the Trump Organziation to challenge it.
President Trump then sued the Office and Mazars, seeking preliminary injunctive relief to stop Mazars from complying with the subpoena. (The “Vance” in the case name refers to Cyrus R. Vance, Jr., District Attorney of the County of New York.) President Trump argued that as sitting President he enjoyed absolute immunity from any form of “criminal process” or “investigation,” including a subpoena issued to a third party like Mazars.
The district court dismissed the case, ruling that it belonged in state court, not federal court. Alternatively, the district court denied injunctive relief, holding that the President’s claim of absolute immunity from criminal process “finds no support in the Constitution’s text or history” or in the Court’s precedents. The Second Circuit vacated the district court’s ruling that the case belonged in state court, but affirmed its alternative ruling on the merits. This appeal followed.
The Supreme Court has ruled in a series of cases that the President enjoys certain privileges and immunities from various judicial processes. For example, the Court held in United States v. Nixon, 418 U.S. 683 (1974), that the President had an “executive privilege” against disclosure of confidential presidential communications. At the same time, however, the Court ruled that a sufficiently important countervailing need for the information (like a federal court’s need for evidence in a criminal trial, as in that case) could outweigh the President’s interest in confidential communications.
As to immunities, the Court held in Nixon v. Fitzgerald, 457 U.S. 731 (1982), that the President is absolutely immune from civil liability for official acts taken while in office. But the Court held in Clinton v. Jones, 520 U.S. 681 (1997), that the President is not immune from civil suits for unofficial actions taken before he came to office.
The Department of Justice has long held the position that the President is immune from criminal prosecution while in office. But the Supreme Court has never addressed that question, or the related question whether the President is immune from any criminal process that might lead up to a prosecution. That last question is what this case is all about.
President Trump argues that as sitting President he is absolutely immune from any criminal process that targets him, including the Office’s subpoena to a third party like Mazars. President Trump claims that subjecting him to any criminal process at all would interfere with the President’s “unparalleled responsibilities to defend the nation, manage foreign and domestic affairs, and execute federal law.” Moreover, he contends that subjecting the President to any criminal process would “stigmatize the President in ways that will frustrate his ability to effectively represent the United States in both domestic and foreign affairs.” President Trump says that Congress can hold the President to account through impeachment, and that state and federal prosecutors can hold the President to account through criminal processes after he leaves office, but that the President is absolutely immune from criminal process while in office. President Trump asserts that this is consistent with the text, structure, and history of the Constitution and with the longstanding position of the Justice Department.
President Trump argues that the need for absolute immunity from criminal processes is particularly acute when it comes to state and local prosecutors. He says that these processes (unlike federal criminal processes, from which the President also claims absolute immunity) threaten federal supremacy under the Constitution’s Supremacy Clause. In particular, President Trump contends that without absolute immunity, state and local prosecutors, motivated only by their own parochial and political interests, could impede the work of the President and the President’s duties to the entire, undivided nation.
President Trump argues that the Mazars subpoena violates all of these principles. He says that there is “no dispute” that the Mazars subpoena targets him, given that it specifically seeks his records. And he says that it doesn’t matter that his compliance with this subpoena would not burden his official duties (because it is directed as Mazars, not him); instead, he claims that the President’s absolute immunity is based on the mere threat of a like subpoena (or other criminal process) by every state and local prosecutor.
President Trump argues that the Court’s precedents support his position. He points to Nixon v. Fitzgerald, where the Court held that a former President was immune from a suit for civil damages based on the President’s official acts. He says that subjecting the President to criminal processes would be even more burdensome. President Trump distinguishes Clinton and United States v. Nixon, arguing that both cases arose from federal, not state, proceedings, and that they involved different kinds of behavior or processes. Finally, President Trump argues that at the very least United States v. Nixon requires that a prosecutor show a “demonstrated, specific need” for material sought in a subpoena directed at the President, and that the Office failed to show this.
The government weighs in to support President Trump and echoes many of these themes. The government, however, stops short of arguing for absolute immunity from all criminal processes and instead argues only that President Trump is immune from “any process that would risk impairing the independence of his office or interfering with the performance of its functions.” In evaluating any particular process, the government contends that the Court should apply, at a minimum, the “heightened standard of need” in United States v. Nixon. It says that the Mazars subpoena does not meet this standard.
The Office argues in response that the President has no absolute immunity from a state grand jury subpoena for documents unrelated to the President’s official duties. The Office claims that the Court’s precedents extend immunity only to official acts (not private acts), and that the “mere risk of interference” with the President’s official functions cannot support immunity from this kind of subpoena. The Office contends that the Mazars subpoena only seeks information related to President Trump’s private acts, and only raises, at most, a “risk of interference” with the President’s official functions (because it’s directed at Mazars, not President Trump), and so the President is not immune from it.
The Office argues that this result is not altered by the President’s arguments in support of absolute immunity from all criminal processes. It says that responding to a subpoena is far less burdensome than facing indictment or prosecution, and does not stigmatize the President the way an official accusation of wrongdoing might. By way of comparison, it claims that the burdens on the President in United States v. Nixon were far greater, yet the Court still ruled against the President’s claim of privilege.
As to President Trump’s federalism claims, the Office argues that these lack merit. It says that state and local prosecutors are on the front lines of criminal law enforcement in the country, and that they are “cloaked with a presumption of regularity that makes federal interference particularly inappropriate.” Moreover, it asserts that there are other procedural safeguards—including a prohibition on state investigation of official presidential conduct—that protect the President from abusive state and local criminal processes. In any event, the Office contends that the Court already considered and dismissed President Trump’s worry that state and local prosecutors could hassle the President for political reasons when it rejected a similar argument for immunity from a private civil suit against the President in Clinton.
The Office argues further that there are good policy reasons not to provide absolute immunity to the President. For one, such immunity could effectively immunize the President from any post-office indictment and prosecution, because evidence may go stale and statutes of limitations may run. For another, immunity may impede other, related criminal investigations and prosecutions.
In short, the Office argues that there is no basis for absolute presidential immunity from all criminal processes, that there are good reasons not to provide such sweeping immunity, and that in any event the President has plenty of opportunities to claim immunities on a case-specific (and not absolute, categorical) basis.
The Office argues that the alternative test for immunity, the government’s “heightened standard of need,” derives from the Court’s test in evaluating claims of executive privilege, and has no application here. According to the Office, that’s because the subpoena here does not seek privileged material or material related to official conduct. Moreover, it says that the mere risk of the subpoena’s burden on the President is insufficient to justify a heightened standard. And it claims that such a standard would impede state and local law enforcement.
Finally, the Office argues that President Trump has failed to demonstrate that the Mazars subpoena suffers from any of the problems that may immunize the President from it. In particular, the Office says that President Trump has failed to show that it was issued in bad faith, or that it would be overly burdensome. (The Office notes that the district court already ruled on this last point, and that President Trump hasn’t produced any new evidence.)
This case has obvious and much-rehearsed (maybe too much rehearsed) political significance. In short, President Trump’s refusal to release his tax returns has been a central issue of political debate since at least the 2016 primaries. A ruling for President Trump would close this particular channel that could eventually lead to public release. A ruling against him, on the other hand, would require Mazars to turn over President Trump’s taxes to the Office, and thus leave open this channel which could lead to public release. It’s not entirely clear how much this matters, however, given that so many voters are stuck in their support of or opposition to President Trump, whatever his taxes might reveal. In any event, the ruling (which will likely come down this summer) will fast become political fodder for both sides and will certainly play some role in the presidential election.
The case and its companions, Trump v. Mazars USA, LLP, and Trump v. Deutsche Bank AG, raise the specter of a secondary political effect, which is likely far more significant. That is: these cases, as much as any other this Term (given the high-profile role that President Trump’s taxes and finances continue to play in our politics), will put the Court front and center in the ongoing political debates and the 2020 presidential election. Whatever the Court says, polls on one side or the other will claim that our Supreme Court justices are really only politicians masquerading in robes. That inevitable claim could have extra resonance here, in this explosive political environment and on this uniquely red-hot political issue, and could do serious and lasting damage to our collective faith in the judiciary and to the separation of powers.
And speaking of the separation of powers, this case could fundamentally reshape our structural constitution. The Court has never come close to endorsing the President’s claimed sweeping and absolute privilege against all criminal processes. If it creates such a privilege here, the ruling will mark a dramatic shift of power away from Congress, the judiciary, and even the states—and to the Executive Branch. This is big enough that we’ll almost feel the shift in our constitutional tectonic plates.
One final point. This case, of course, is linked with Trump v. Mazars and Trump v. Deutsche Bank AG, the two cases testing congressional authority to get President Trump’s taxes. While those cases raise the same practical bottom-line question—Can anybody get at President Trump’s taxes and financial records?—they involve very different constitutional issues, and therefore have their own (also quite weighty) constitutional significance.
The Supreme Court will hear oral arguments tomorrow in Trump v. Mazars and Trump v. Deutsche Bank, testing whether Congress has authority to subpoena the President's financial records from third-party custodians of those records. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission. (This doesn't address the political question issue, which the Court asked the parties to brief after this came out).
These cases test the authority of three different Committees of the U.S. House of Representatives to issue third-party subpoenas in support of their oversight and investigations into different aspects of President Trump’s private financial dealings. Let’s look at the Committees’ investigations one at a time.
The Oversight Committee Investigation
The House Committee on Oversight and Reform is engaged in an ongoing investigation into Executive Branch ethics and conflicts of interest, presidential financial disclosures, federal lease management, and possible violations of the Constitution’s Emoluments Clauses. As relevant here, the Committee is examining President Trump’s personal business interests and his decision to maintain ties to these interests (and not fully divest from them, consistent with prior presidential practice). In particular, the Committee has identified concerns with the Government Services Administration’s (GSA) ongoing management of the lease of the federal Old Post Office Building for the Trump International Hotel in Washington, D.C.; the adequacy and accuracy of President Trump’s financial disclosures and the adequacy of federal ethics laws; and allegations by Michael Cohen that President Trump falsely reported his assets. According to the Committee, the investigation is designed “to determine the adequacy of existing laws and perform related agency oversight.”
After the Committee heard testimony from Cohen that included allegations that President Trump falsely reported his assets, the chair wrote to Mazars and requested accounting documents related to President Trump and certain of his businesses from January 1, 2009, to the present. Mazars declined to produce this material.
On April 12, 2019, the chair then sent a memorandum to Committee members explaining the need for a subpoena to Mazars. The memo identified four subjects that the Committee had “full authority to investigate”: (1) “whether the President may have engaged in illegal conduct before and during his tenure in office,” (2) “whether [the President] has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions,” (3) “whether [the President] is complying with the Emoluments Clauses of the Constitution,” and (4) “whether [the President] has accurately reported his finances to the Office of Government Ethics and other federal entities.” The chair also wrote that the Committee’s “interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction.”
The Committee then issued a subpoena to Mazars seeking documents related to financial statements, engagement letters, supporting documents, and related communications for President Trump and certain of his businesses, from 2011 through 2018.
The Financial Services Committee Investigation
The Financial Services Committee is engaged in an ongoing, broad investigation into financial institutions’ compliance with banking laws and whether those laws adequately protect against foreign money laundering, other financial crimes, and high-risk loans. As part of this investigation, the Committee is looking into practices at Deutsche Bank and Capital One.
These banks “have long provided business and personal banking services” to President Trump and his family. According to a series of media reports over the last few years, these banks made questionable loans to President Trump. Most recently, a New York Times Magazine article reported that Deutsche Bank had concerns that President Trump’s “real estate projects were laundromats for illicit funds from countries like Russia, where oligarchs were trying to get money out of the country.”
In order to further its investigation, the Committee issued two subpoenas. The first was directed at Deutsche Bank; it sought documents and records that included detailed financial information “belonging to, or likely to reveal information, concerning” President Trump and his family. The Deutsche Bank subpoena covered material from January 1, 2010, to the present (with no closing date). The second subpoena was directed at Capital One; it sought information about various Trump businesses and their principals and “other representatives,” including businesses affiliated with the Trump International Hotel in Washington, D.C. The Capital One subpoena covered material from July 19, 2016, to the present (again with no closing date). Deutsche Bank and Capital One declined to comply.
The Intelligence Committee Investigation
The House Intelligence Committee is engaged in an ongoing investigation into “efforts by Russia and other foreign actors to influence our political process before, during, and since the 2016 election.” The investigation includes assessing “whether foreign actors have financial leverage over President Trump, whether legislative reforms are necessary to address these risks, and whether our Nation’s intelligence agencies have the resources and authorities needed to combat these threats.”
In order to further its investigation, the Committee issued a subpoena to Deutsche Bank, covering the exact same material and time frames as the Financial Services Committee’s subpoena. Deutsche Bank declined to comply.
In all, the three House committees issue four third-party subpoenas for financial information about President Trump.
Before the response date for any of the subpoenas, President Trump brought two separate lawsuits—one in Washington, D.C., and the other in New York City—to stop Mazars and the banks from complying. President Trump sued “solely in his capacity as a private citizen.” Mazars and the banks took no position on the underlying issue—the Committees’ authority to issue the subpoenas—and so the Committees intervened as defendants.
After the President filed suit, the House passed Resolution 507, purporting to ratify the Committees’ subpoenas. The Resolution stated that the House “ratifies and affirms all current and future investigations” and “subpoenas previously issued or to be issued in the future, by any standing or permanent select committee of the House,” related to the President, his immediate family, his businesses and organizations, and others with ties to the President, including any “current or former” government employees.
Both district courts ruled against President Trump, and the D.C. and Second Circuits affirmed. This appeal followed.
Congress has implied authority under the Constitution to engage in investigations and oversight of issues and areas that fall within its legitimate lawmaking power. As part of this implied authority, Congress can issue subpoenas to collect information to advance its investigations and oversight. Either house of Congress can delegate these authorities to its committees.
But a committee’s investigative and oversight authorities are not unbounded. Congressional investigations or oversight must serve a “legitimate legislative purpose,” they must be authorized by their full house, and they may not impermissibly encroach on another branch’s authority.
The parties frame their arguments around these baseline principles.
President Trump argues first that the committees did not have a legitimate legislative purpose in issuing the subpoenas. For one, he says that the subpoenas at best seek information that might lead to legislation. But he claims that this is not enough to bring the subpoenas within Congress’s legitimate lawmaking authority. For another, he asserts that the subpoenas probe into areas where Congress simply cannot legislate, for example, extending conflict-of-interest restrictions to, and imposing disclosure requirements upon, the President, and that they therefore lack a legitimate legislative purpose. For a third, he contends that the bank subpoenas impermissibly seek his personal financial information only as a “case study” for financial sector reform, and that simply does not fit within Congress’s legitimate lawmaking power. For a fourth, he contends that the subpoenas are part of the Committees’ exercise of law enforcement power, not law-making power, and that they impermissibly encroach on executive authority in violation of the separation of powers. And for a fifth, he asserts that the subpoenas are based on the Committees’ pure political interests, not legitimate lawmaking interests.
President Trump argues that for all these reasons even an ordinary congressional subpoena would fail. But he claims that the “unprecedented” congressional subpoenas seeking private information of the President should be subject to an even higher standard, and that under a higher standard these subpoenas would fail all the more.
President Trump argues next that the Committees lack express authority under House rules to issue the subpoenas. He claims that express delegation to the Committees to issue subpoenas is necessary in investigations, like these, that raise serious separation-of-powers issues, because “Congress seeks to encumber the President” and because the Committees are pushing the outer boundaries of congressional authority. Moreover, he says that requiring an express delegation, and ruling against the Committees because they lacked it, would allow the Court to avoid ruling on the underlying constitutional issues. President Trump contends that Resolution 507 did not provide express delegation, because it did not purport to amend House rules, did not expand the Committees’ authority, and acted retroactively “in violation of controlling precedent.” Finally, President Trump argues that interpreting Resolution 507 to expressly delegate power to the Committee to issue these subpoenas would only clear the way for every House Committee to issue its own subpoenas. According to the President, this, in turn, would “keep the President from fulfilling the obligations of his office.”
The government weighs in as amicus to support President Trump. The government lodges arguments similar to President Trump’s, but puts a finer point on the “heightened requirements” that it says Congress must meet in order to subpoena the President’s records. In particular, the government proposes this:
At the threshold, the full [House] chamber should unequivocally authorize a subpoena against the President. Moreover, the legislative purpose should be set forth with specificity. Courts should not presume that the purpose is legitimate, but instead should scrutinize it with care. And as with information protected by executive privilege, information sought from the President should be demonstrably critical to the legitimate legislative purpose. A congressional committee cannot evade those heightened requirements merely by directing the subpoenas to third-party custodians, for such agents generally assume the rights and privileges of their principal . . . .
For many of the same reasons raised by President Trump, the government says that the Committees’ subpoenas do not meet this heightened test.
The Committees counter that legislative subpoena power is an essential and time-tested part of congressional authority. (They rehearse in their merits brief the many similar congressional investigations that illustrate why their own investigations are hardly “unprecedented,” as the President contends.) They say that congressional authority’s “historical pedigree is too strong for it to be narrowed by the arguments” of the President and the government. They contend that instead of applying “heightened requirements” for these subpoenas (as the President and the government argue), the Court should defer to the Committees, so long as the subpoenas are related to a valid legislative purpose—one that “will inform Congress on a subject on which legislation could be had.”
The Committees argue next that they had “multiple legislative purposes” in issuing the subpoenas, as the courts below found. To illustrate this, they point to several pending bills, which are constitutionally permissible, that will be informed by these investigations. Moreover, the Committees contend that it doesn’t matter that they are investigating wrongdoing, so long as the investigations are related to a legitimate legislative purpose (which they are). And they say, contrary to the President and the government, these subpoenas (directed, as they are, to third parties) do not impair the President’s ability to perform his constitutional duties.
The Committees argue that the government’s “heightened standard” for subpoenas for material related to the President’s purely personal behavior conflicts with the Constitution. They say that the government’s proposed requirement that the full House authorize subpoenas concerning the President disregards the House’s constitutional power to determine its own rules. They contend that the proposed requirement that courts more closely scrutinize Congress’s stated purposes “invites inappropriate judicial micromanagement of Congressional oversight.” And they assert that the proposed requirement that a subpoena is “demonstrably critical” to congressional purposes “brazenly stacks the deck in favor of one Branch over another.” But the Committees contend that even if the Court applied the government’s test, their subpoenas would satisfy it.
Finally, the Committees argue that the House properly authorized them to conduct their investigations and issue their subpoenas. They contend that they have explicit authority to issue any subpoenas that they “consider necessary” to carry out “any of [their] functions and duties” under House Rule XI.2(m)(1). And they say that House Resolution 507 ratified and affirmed the specific subpoenas here.
This case, just like the companion case Trump v. Vance, testing whether President Trump has to comply with a state grand jury subpoena for his tax records, has obvious and much-discussed political significance. But the subpoenas in this case sweep more broadly than the subpoena in Vance: these subpoenas seek a variety of material related to President Trump and his business organizations, while the subpoena in Vance now only seeks his tax records. As a result, this case has potentially higher stakes. In particular, a ruling against President Trump could allow the Committees to obtain a trove of material relating to President Trump’s financial dealings and their bearing, if any, on his public duties. On the other hand, a ruling for President Trump could hamstring the Committees’ investigations, or even halt them altogether, and close off this avenue to public disclosure of this material. While President Trump’s taxes may get more play in our popular political debates, his broader financial dealings are likely far more significant.
As with Vance, however, it’s not clear how much any of this will matter. Given President Trump’s remarkably stable and durable base, and given his similarly remarkably stable and durable opposition, the Court’s ruling, whatever it is, will likely be interpreted by the general public in pure political terms (pro-Trump, or anti-Trump). That’s especially true coming on the heels of the impeachment proceedings, when relations between President Trump and House Democrats are already at a new low. In this highly strained political environment, it’s easy to see how partisans will put a political cast on these rulings, and on the justices behind them. It’s equally easy to see how the inevitable reactions to these cases, therefore, threaten to do lasting harm to our collective faith in a politically independent judiciary.
This case also threatens to do lasting harm to Congress. If adopted by the Court, President Trump’s arguments, echoed by the government, could substantially rein in Congress’s investigation and oversight authorities. In particular, if the Court were to adopt the argument that Congress lacked a legitimate legislative purpose—an argument that this administration has pressed hard in other congressional investigations not directly involving the President—this could seriously constrain Congress’s power to check the Executive Branch. In its strongest form, sometimes adopted by this administration, this argument could allow the Executive Branch to wholly ignore congressional oversight and investigations, leaving Congress little practical authority to coax the administration to cooperate. But even at the very least, this argument, if adopted by the Court, could open the door to active judicial intervention in congressional oversight and investigations. In short, this argument, if adopted by the Court, would shift power away from Congress to the Executive Branch and the courts, and thus significantly alter our current separation of powers.
Tuesday, May 5, 2020
The Supreme Court will hear oral arguments in these consolidated cases tomorrow, testing whether the Trump Administration had authority to grant a categorical exemption from the ACA's contraception guarantee for organizations with a religious or moral objection to contraception. Here's my Preivew, from the ABA Preview of United States Supreme Court Cases, with permission:
In 2010, Congress enacted the Patient Protection and Affordable Care Act (ACA) in order “to increase the number of Americans covered by health insurance and decrease the cost of health care.” To those ends, the ACA requires employers, with some exceptions (those with 50 or fewer employees, and those with grandfathered insurance plans), to offer their employees health insurance with certain “minimal essential coverage.” As relevant here, the ACA requires employers to offer insurance to female employees that includes “preventive care and screenings” without cost to the employees. The ACA delegates authority to determine the particular “preventive care and screenings” to the Health Resources and Services Administration (HRSA), an office within the Department of Health and Human Services (HHS).
Pursuant to this authority, the HRSA and other implementing agencies (the Department of Labor and the Department of the Treasury) issued Interim Final Rules (IFRs) that required employers to provide insurance coverage for items in HRSA’s preventive-care guidelines. Those guidelines included all female contraceptives approved by the Food and Drug Administration (FDA). The HRSA and other implementing agencies exempted certain religious employers (like churches), however, out of recognition that some individuals and organizations have faith-based objections to providing coverage for contraception.
The agencies then issued their final rule. The final rule maintained the exemption for certain religious employers (again, like churches), and added an accommodation for certain other religious non-profit employers that objected to the contraceptive guarantee. Under the accommodation, an employer would communicate its objection to its insurer or the third-party administrator (TPA) of its health plan. At that point, the federal government required or encouraged the insurer or TPA to provide contraceptive coverage directly to the employee, separate from the employer’s health-insurance plan, thus bypassing the objecting employer.
Numerous non-profit and for-profit religious organizations (including the Little Sisters) sued to halt the accommodation provision under the Religious Freedom Restoration Act (RFRA). They argued that the provision didn’t really accommodate their faith-based objections to providing contraceptive coverage to employees. Instead, they claimed that the requirement that they communicate their objections to their insurer or TPA triggered their insurer or TPA to provide contraceptive coverage. By this reckoning, the accommodation actually made them complicit in providing contraception to their employees.
Eight of nine circuit courts ruled against the plaintiffs in these cases. The Court stepped in to grant emergency relief in two of them, one brought by the Little Sisters, the other brought by Wheaton College, but the Court did not address the merits. Around the same time, in June 2014, in Burwell v. Hobby Lobby, 573 U.S. 682 (2014), the Court ruled that the contraceptive guarantee violated the RFRA as to closely-held for-profit businesses. (The final rule did not include an accommodation for for-profits.) The Court held that the guarantee substantially burdened those businesses’ exercise of religion, and that there were other ways that the government could provide contraceptive coverage to female employees. As an example, the Court pointed to the accommodation for religious non-profits in the final rule; but it also specifically declined to say whether the accommodation itself violated the RFRA.
In response to the Court’s emergency relief in the non-profit cases and its ruling in Hobby Lobby, the implementing agencies modified the accommodation in two ways. First, they allowed objecting non-profits to notify HHS of their objections, instead of their insurers or TPAs. Next, they extended the accommodation to closely-held for-profits.
In 2016, in Zubick v. Burwell, 136 S. Ct. 1557, the Court finally took up the cases brought by religious non-profits. But rather than ruling on the merits, the Court vacated the lower courts’ rulings and ordered the parties to work out a solution. (The Court only had eight justices at the time. Justice Antonin Scalia had deceased, and the Senate refused to consider President Barak Obama’s nominee to replace him. As a result, the Court was probably evenly divided on the merits, and this solution allowed the Court avoid a four-four ruling on this important question.)
The parties could not work out a solution by the end of the Obama Administration. As a result, the implementing agencies retained the existing accommodation.
Then, in October 2017, the agencies issued IFRs that expanded the exemption for religious organizations. In particular, the IFRs categorically exempted for-profits and non-profits with a religious or moral objection from the contraceptive guarantee. (The agencies added organizations with a “moral” objection.) The agencies acknowledged that the rules would leave between 31,700 and 120,000 women without contraceptive coverage in one year.
Pennsylvania sued to halt these latest IFRs, arguing that the agencies violated the APA. The district court granted a nationwide preliminary injunction barring implementation of the IFRs. (Several other similar cases were also pending at the time, and at least one other court issued an injunction. California v. HHS, 281 F. Supp. 3d (N.D. Cal. 2017).) The court also declined to allow the Little Sisters to intervene in the case, although the Third Circuit later permitted the organization to defend “the portions of the [2017 religious rule] that applied to religious nonprofit entities.”
As the case was pending, the agencies adopted final rules nearly identical to the latest IFRs. In particular, the Final Rules exempted all private entities, including publicly-traded corporations, from the contraceptive guarantee (or allowed them to self-exempt) based on religious objections; exempted all but publicly-traded corporations based on moral objections; and made the accommodation option. The agencies acknowledged that the Final Rules would mean that between 70,500 and 126,400 women would lose access to contraception in one year.
Pennsylvania, now joined by New Jersey, filed an amended complaint. The district court granted another nationwide preliminary injunction. The Third Circuit affirmed, and this appeal followed.
The parties raise four different issues. Let’s take a look, one at a time.
The Little Sisters argue that they have appellate standing, because they have a direct stake in the outcome of this case. They claim that the Third Circuit was wrong when it held that they lacked standing based on the theory that a Colorado injunction in a similar case, also involving the Little Sisters, mooted the Little Sisters’ interests in this case. The organization says that the Colorado injunction is more limited than what the Little Sisters seek in this case, and so they continue to have an independent interest in this case. The Little Sisters contend that their standing is even stronger now that the case is at the Court. After all, they assert, the Court’s ruling will affect all similar cases.
Pennsylvania counters that the Little Sisters lack appellate standing. The state says that the agencies are now enjoined from enforcing the contraceptive guarantee against the organization, and that the district court expressly excluded the organization from the injunction now on appeal. Because the Little Sisters lack a direct stake in this injunction, Pennsylvania claims that the organization lacks appellate standing in this case.
Substantive Statutory Authority
The respondents argue that the agencies had statutory authority to issue the final rules. They claim that the plain text of the ACA delegates sufficiently broad authority to the HRSA to grant categorical exemptions from the preventive-services guarantee, and that the agencies, in issuing the final rules, merely drew on that broad authority. They point out that the agencies provided for a categorical exemption from the beginning (for religious organizations like churches), and claim that this only underscores their position that the ACA delegates authority to grant this categorical exemption.
The respondents argue next that the RFRA requires, or at least permits, the broader exemptions in the final rules. They point to the Court’s ruling in Hobby Lobby that the contraceptive guarantee, without an accommodation, violates the RFRA. And they contend that the accommodation doesn’t really change that calculus. That’s because at least some religious non-profits see the accommodation itself as triggering the contraceptive guarantee, in violation of their religious beliefs. In other words, for some, the accommodation itself violates the RFRA. As a result, the respondents contend that the RFRA required the agencies to adopt the categorical exemptions in the final rules. (The respondents say that even if the RFRA did not require the agencies to adopt the final rules, it at least permitted the agencies to adopt them. They contend that an agency can be more protective of religious rights than the RFRA requires, if it so chooses.)
On the other side, Pennsylvania argues that the ACA does not authorize the agencies to adopt the final rules. The state says that the ACA only delegates authority “to identify which preventive services for women must be covered,” and not to “grant non-health related exemptions to a sub-agency with narrow expertise in health care.” Pennsylvania contends that the original exemption for religious organizations is different, because it was “independently authorized by the well-established church autonomy doctrine,” and not the ACA itself.
Pennsylvania argues next that the RFRA does not authorize the final rules. The state says that the accommodation is consistent with the RFRA, because it does not substantially burden religious exercise. (The state claims that the accommodation simply requires a religious non-profit to report its objection. At that point, federal law, not the religious non-profit, is responsible for guaranteeing contraceptive coverage.) Because the accommodation doesn’t violate the RFRA, the state contends that the RFRA provides no basis for issuing a broader, categorical exemption. Moreover, Pennsylvania asserts that the RFRA doesn’t affirmatively grant federal agencies any rulemaking power, except to the extent that an agency regulates to resolve a RFRA violation in a program the agency administers. But the state says that this is not the case here.
Procedural Compliance with the APA
The respondents argue that the final rules comport with APA requirements. They contend that the final rules—the only rules at issue here—complied with APA notice-and-comment requirements. And they say that the earlier IFRs complied with the APA requirements for interim final rules. They point out that all of the agencies’ rules on the contraceptive guarantee started as interim final rules, and that the latest IFRs are no different.
Pennsylvania replies that the final rules violate the APA. The state contends that the 2017 IFRs violated the APA, because they failed to meet the APA standard for interim final rules, in particular, that they were not so urgent as to allow the agencies to bypass normal notice-and-comment procedures. The state contends that the 2018 final rules violate the APA, too, because the agencies did not allow for pre-publication notice and comment. (Instead, the agencies took comments on the 2017 IFRs, not the proposed 2018 final rules.) Pennsylvania argues that the APA does not permit the agencies to sidestep notice-and-comment requirements this way.
Finally, the respondents argue that the Court should reverse the district court’s nationwide injunction. They claim that the nationwide injunction grants relief far beyond the interests of the states, and thus exceeds the power of the district court. They claim that a nationwide injunction in this case is particularly inappropriate, because it could conflict with rulings in the many other similar cases pending around the country.
Pennsylvania argues in response that the nationwide injunction is consistent with the APA, which requires courts to set aside unlawful rules without limitation and grants courts authority to enter preliminary orders “to postpone the effective date of an agency action or to preserve status or rights.” The state also says that a nationwide injunction fully redresses its injuries, because the final rules would exempt out-of-state entities whose employees, students, or children might come to Pennsylvania and burden the state with the cost of their contraceptive coverage.
This case is the latest chapter, and probably the last one, in the long-running saga over the contraceptive guarantee. This regulatory provision has been under sustained attack from the beginning. While opponents of guaranteed contraception have lost overwhelmingly in the circuit courts, the Supreme Court has been a much friendlier venue. As mentioned above, the Court ruled in Hobby Lobby that the guarantee (without an accommodation) violated the RFRA as to closely-held corporations. Moreover, it granted interim relief in a pair of cases challenging the accommodation for religious non-profits. And while it dodged the underlying issue in Zubick, there’s reason to think that it ruled this way to avoid a four-four split on the eight-justice Court—in other words, that four of the eight justices would have struck the accommodation.
If that’s right, then we might expect that there are now five justices that would rule that the accommodation violates the RFRA. (Since Zubick, Justice Neil Gorsuch replaced Justice Scalia, and Justice Brett Kavanaugh replaced Justice Anthony Kennedy. If the Court would have split four-four on the merits in Zubick, Justice Gorsuch’s addition probably means that there are now five votes for striking the accommodation.)
But that doesn’t necessarily answer the questions in this case. In particular, even if the accommodation violates the RFRA, that alone doesn’t mean that the agencies had authority to issue the Final Rules, or that they issued them consistently with the APA. Remember that the Final Rules categorically exempt a much broader set of organizations than were covered by the accommodation. (Keep an eye on the categorical exemption for organizations with a moral objection to contraception. This opens a potentially gaping hole in the contraceptive guarantee.) Moreover, the government itself estimates that the Final Rules will result in lost contraceptive coverage for tens of thousands of women in one year—seemingly undermining the very purpose of the ACA to provide “minimal essential coverage.” The broad sweep of the Final Rules, and their procedural irregularities, could mean that the agencies lacked authority to adopt them, even if a majority on the Court might agree that the accommodation violated the RFRA.
On a different note entirely: This case raises a critically important question about the authority of district courts to issue nationwide injunctions. This practice is increasingly common, and increasingly controversial, as plaintiffs have sought more and more to halt administration policies across the board. The government invites the Court to address this issue, even if it doesn’t rule in favor of the government on the merits.
This question may seem like it has partisan overtones. But it doesn’t. If the Court rules that district courts lack authority to issue nationwide injunctions, that will take away a key tool that advocates can use—and have used—to challenge government policies in any administration.