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Louisiana abortion law "struck down" says wapo headline
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Jun 29, 2020 15:20
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Roberts joins the liberals (concurring, anyway) again. https://abcnews.go.com/Politics/supreme-court-hands-major-decision-louisiana-abortion-case/story?id=71254751
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Jun 29, 2020 15:21
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lol the chud tears will be delicious.
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Jun 29, 2020 15:25
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Looking forward to right wing outrage that their direct attack on abortion failed (this time).  ...shame that they'll still continue to kill it using the death by a thousand cuts approach, though. e: gently caress the 5th circuit. Their ruling on this case was 100% due to Kennedy retiring and right wingers thinking they could get a favorable ruling on a law already struck down. Evil Fluffy fucked around with this message at 15:33 on Jun 29, 2020 |
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Jun 29, 2020 15:30
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Roberts selling out the social cons and then striking down the cfpb tracks with what his actual priorities are.
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Jun 29, 2020 15:31
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CFPB decision looks like a good one as well. Plus side, it means Biden can immediately remove the Trump appointee if he wins.
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Jun 29, 2020 15:32
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lmao the coward Roberts writes that he still thinks the law should be struck down but abiding by the precedent set by Whole Woman's Health is more important.
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Jun 29, 2020 15:32
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lmao Majority: Breyer, joined by Ginsburg, Sotomayor, Kagan Concourrence-in-judgement: Roberts Dissent: Thomas Dissent: Alito, joined by Gorsuch, Thomas (in part), Kavanaugh (in part) Dissent: Gorsuch Dissent: Kavanaugh No less than FOUR dissenting opinions. I needed some salt to season my food today, thank you for this gift.
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Jun 29, 2020 15:32
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AppropriateUser posted:Roberts selling out the social cons and then striking down the cfpb tracks with what his actual priorities are. CFPB wasn’t struck down; decision held that the removal protections (which were struck down) are severable from the bill as a whole.
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Jun 29, 2020 15:33
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https://twitter.com/mjs_DC/status/1277609894271758336?s=19 Don't see a big problem with this. CFPB will be more politicized but that may not always be a bad thing.
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Jun 29, 2020 15:35
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JesusSinfulHands posted:https://twitter.com/mjs_DC/status/1277609894271758336?s=19 At least Kagan got to have a little fun https://twitter.com/mbmcfarlane/status/1277611153800167426?s=20
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Jun 29, 2020 15:43
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Today is a very large data point in favor of the theory that Roberts cares *A LOT* about his reputation/legacy and/or the reputation and legacy of the court.
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Jun 29, 2020 15:45
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Rigel posted:Today is a very large data point in favor of the theory that Roberts cares *A LOT* about his reputation/legacy and/or the reputation and legacy of the court. And/or that he preferred the quiet part to stay quiet. Which feeds into what you are saying here, yeah.
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Jun 29, 2020 15:50
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Rigel posted:Today is a very large data point in favor of the theory that Roberts cares *A LOT* about his reputation/legacy and/or the reputation and legacy of the court. Obviously SCOTUS is just as politicized and partial, but Roberts likes to pretend it isn't, and Trump undermines that. If it was a different Republican Administration, I bet they'd be getting everything they wanted. I'll accept some good news for now even if it is out of spite and not sincerity.
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Jun 29, 2020 15:56
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yeah, the cynic's interpretation here is that upholding the LA Abortion law would have had basically every constituent part of the Democratic coalition screaming bloody murder to the point where even Biden might have to make noises about adding more justices, and that's something that Roberts would very much like to avoid. throwing liberals a few bones on social issues is worth it in exchange for free reign to keep the gravy train rolling on behalf of the oligarchs who Roberts actually there working for (as opposed to someone like Alito, who's a total culture war hack).
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Jun 29, 2020 16:41
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It'd also send a signal that boils down to "well a lower court didn't like a prior SCOTUS ruling and ignored it, we're ok with that because someone from the prior ruling's majority is gone now." Though the GOP would be far more eager to abuse that than Dems are. We need a way to purge the judiciary of a lot of Trump appointees. Or expand the lower courts significantly. Outlawing arbitration except for very narrow cases like business dealings between two equal parties (ie, not merchant/consumer or employer/employee) would certainly create the need to, say, triple the number of federal judges.
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Jun 29, 2020 16:51
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Evil Fluffy posted:It'd also send a signal that boils down to "well a lower court didn't like a prior SCOTUS ruling and ignored it, we're ok with that because someone from the prior ruling's majority is gone now." Though the GOP would be far more eager to abuse that than Dems are. Yeah Roberts really does not want his legacy to be "SCOTUS decisions don't matter because lower courts that don't like their rulings can just ignore them and hope SCOTUS has changed its mind even if the case was decided in SCOTUS literally like two years earlier".
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Jun 29, 2020 17:01
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One thing I've never understood about the basic Court decision-making process: how does it work at heart after any hearings are completed? Are the justices meeting up and talking over each case, trying to persuade each other and hashing things out on their own, before going off to write their decisions? Or are they writing their own decisions in isolation, submitting them, and then writing commentary in isolation based on each other's decisions and the final vote? Or some other process?
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Jun 29, 2020 20:26
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Xotl posted:One thing I've never understood about the basic Court decision-making process: how does it work at heart after any hearings are completed? Are the justices meeting up and talking over each case, trying to persuade each other and hashing things out on their own, before going off to write their decisions? Or are they writing their own decisions in isolation, submitting them, and then writing commentary in isolation based on each other's decisions and the final vote? Or some other process? This is all our basic understanding based on books written by clerks and what very little the justices have ever said. The quick answer is that they usually don't have 9 written unofficial opinions, no sense in doing the work to research and write the same thing 5 times if 5 judges think the same way. They figure out what does need to be written, and do that. They meet every week during the term on Thursday. Before hearings, they meet for orders and discuss/vote on whether to grant cert. At that point, its understood that the justices probably have a feel for where the case will likely go, but its not firmed up yet and judges can still be persuaded. Throughout all of this we believe they talk to one another to try to persuade each other to their side. After the briefs and hearing, at the Thursday meeting they finally vote to see how many "sides" there are (if more than 2), where everyone lines up in each side, and what collection of arguments/opinions have 5 or more votes. They then try to get someone in the majority to write a majority opinion that includes everything that got 5+ votes, while minority opinions are written by others for concurrences and dissents. If the judge writing the majority opinion happens to have more detail in his own opinion that doesn't get 5+ votes, he can throw that in the majority opinion too and the other judges will just specifically state that they are not voting for those parts of the majority opinion. (so that part without the 5+ votes is basically just a concurrence which does not control) If the one who got assigned the majority opinion is unable to hold the majority (they either change their mind like Roberts apparently did for ACA, or after hashing out the details the other judges find out that they don't agree after all), then someone who is in the new majority takes over.
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Jun 29, 2020 20:36
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From what clerks have said it's a bit of both. The justices have a discussion together and vote what they think. If there is a clear majority, then they go ahead and pick the author. If there is a controversy, then the sides write basic briefs to pass around and try to make a majority up until the decision is officially released to the public.
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Jun 29, 2020 20:38
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Evil Fluffy posted:Or expand the lower courts significantly. There's a good—and nonpartisan—reason to do this. Basically, we've had next to no new judgeships created over the past 30 years - all the confirmations are for vacancies. We need new judges, and that's according to the existing judges. Let me introduce you to the Federal Judicial Conference's biennial recommendation on additional judgeships. This is essentially the policy organization for the federal judiciary, and every two years they come up with a "this is what we need in terms of new judges to get out of crisis levels." We're now about 80 judges short of what we need to get back to minimal function (5 new 9th Cir. and then 73 spread out across various districts). And then you'd presumably want some room for population growth so when we inevitably go 30 years without judges being added again, we aren't screwed. There's actually a hearing on this issue in Senate Judiciary on Wednesday which people are paranoid about as "oh Trump wants to expand judgeships" but it's pretty much just them hearing about the recommendation.
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Jun 29, 2020 22:02
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 Opinions! AGENCY FOR INTERNATIONAL DEVELOPMENT ET AL. v. ALLIANCE FOR OPEN SOCIETY INTERNATIONAL, INC., ET AL. TLDR: Foreign companies have no First Amendment rights, so Congress can put any conditions on their speech to receive funding it wants (here, policies explicitly opposing prostitution and sex trafficking). Majority Opinion (Kavanaugh): To advance the global relief effort [against HIV/AIDS, Tuberculosis, and Malaria], Congress has allocated billions of dollars to American and foreign nongovernmental organizations that combat HIV/AIDS abroad. As relevant here, Congress sought to fund only those organizations that have, or agree to have, a “policy explicitly opposing prostitution and sex trafficking.” .... Plaintiffs are American nongovernmental organizations that receive Leadership Act funds to fight HIV/AIDS abroad. Plaintiffs have long maintained that they do not want to express their agreement with the American commitment to eradicating prostitution. Plaintiffs consider a public stance of neutrality toward prostitution more helpful to their sensitive work in some parts of the world and also to their full participation in the global efforts to prevent HIV/AIDS. After enactment of the Leadership Act, plaintiffs challenged the Policy Requirement, alleging that it violated the First Amendment. In 2013, this Court agreed, concluding that the Policy Requirement ran afoul of the free speech principle that the Government “may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech.” (internal quotation marks omitted). Therefore, the Policy Requirement no longer applies to American organizations that receive Leadership Act funds, meaning that American organizations can obtain Leadership Act funds even if they do not have a policy explicitly opposing prostitution and sex trafficking. But as has been the case since 2003, foreign organizations that receive Leadership Act funds remain subject to the Policy Requirement and still must have a policy explicitly opposing prostitution and sex trafficking. Following this Court’s 2013 decision barring the Government from enforcing the Policy Requirement against American organizations, plaintiffs returned to court, invoking the First Amendment and seeking to bar the Government from enforcing the Policy Requirement against plaintiffs’ legally distinct foreign affiliates. … Plaintiffs’ position runs headlong into two bedrock principles of American law. First, it is long settled as a matter of American constitutional law that foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution. Plaintiffs do not dispute that fundamental principle….As the Court has recognized, foreign citizens in the United States may enjoy certain constitutional rights—to take just one example, the right to due process in a criminal trial...But the Court has not allowed foreign citizens outside the United States or such U. S. territory to assert rights under the U. S. Constitution. … Second, it is long settled as a matter of American corporate law that separately incorporated organizations are separate legal units with distinct legal rights and obligations….Plaintiffs’ foreign affiliates were incorporated in other countries and are legally separate from plaintiffs’ American organizations. … In short, plaintiffs’ foreign affiliates are foreign organizations, and foreign organizations operating abroad have no First Amendment rights. To overcome that conclusion, plaintiffs advance two main arguments. But neither persuades us. First, plaintiffs theorize that the foreign affiliates’ required statement of policy against prostitution and sex trafficking may be incorrectly attributed to the American organizations. Therefore, the theory goes, the American organizations themselves possess a First Amendment right against imposition of the Policy Requirement on their foreign affiliates. As support, plaintiffs point to First Amendment cases involving speech misattribution between formally distinct speakers. But the constitutional issue in those cases arose because the State forced one speaker to host another speaker’s speech. … We appreciate that plaintiffs would prefer to affiliate with foreign organizations that do not oppose prostitution. But Congress required foreign organizations to oppose prostitution in return for American funding. And plaintiffs cannot export their own First Amendment rights to shield foreign organizations from Congress’s funding conditions. … Second, plaintiffs argue that the Court’s 2013 decision in this case encompassed both plaintiffs’ American organizations and their foreign affiliates, meaning that, in plaintiffs’ view, the Court has already resolved the issue before us. That is not correct. The plaintiffs in the 2013 case were these same American organizations. It is true that the Court considered the possibility that an American organization could work through affiliates to potentially avoid the burdens of the otherwise-unconstitutional application of the Policy Requirement. But the Court rejected that alternative, which in essence would have compelled the American organizations to affiliate with other organizations. The Court instead ruled that the Policy Requirement may not be applied to plaintiffs’ American organizations. Therefore, plaintiffs’ current affiliations with foreign organizations are their own choice, not the result of any U. S. Government compulsion. … In sum, plaintiffs’ foreign affiliates are foreign organizations, and foreign organizations operating abroad possess no rights under the U. S. Constitution. We reverse the judgment of the U. S. Court of Appeals for the Second Circuit. Lineup: Kavanaugh, joined by Roberts, Thomas, Alito, and Gorsuch. Concurrence by Thomas. Dissent by Breyer, joined by Ginsburg and Sotomayor. Kagan took no part. Concurrence (Thomas): I agree with the Court that the Policy Requirement does not violate the First Amendment as applied to respondents’ foreign affiliates, and I agree that nothing about this Court’s decision in Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. 205 (2013) (AOSI I), suggests otherwise. I write separately to note my continued disagreement with AOSI I and to explain that the Policy Requirement does not violate the First Amendment for a far simpler reason: It does not compel anyone to say anything. In AOSI I, the Court erred by holding that the Policy Requirement violated respondents’ First Amendment rights by conditioning their receipt of Leadership Act* funds on the affirmation of certain program objectives. “The First Amendment does not mandate a viewpoint-neutral government.” AOSI I, 570 U. S., at 221 (Scalia, J., joined by THOMAS, J., dissenting). Thus, the Government may require those who seek to carry out federally funded programs to support the Government’s objectives with regard to those programs. After all, the Constitution itself “impos[es] affirmative ideological commitments prerequisite to assisting in the government’s work.” It excludes viewpoints such as communism and anarchism, stating that those engaged in government work must swear an oath to support our Constitution’s republican form of government. Moreover, the mere conditioning of funds on “‘the affirmation of a belief’” tied to the purpose of a government program involves “no compulsion at all.” AOSI I, 570 U. S., at 226 (Scalia, J., joined by THOMAS, J., dissenting). Such a condition is “the reasonable price of admission to a limited government-spending program that each organization remains free to accept or reject.” Ibid. Just as respondents are not compelled to associate with their foreign affiliates, they are not compelled to participate in the Leadership Act program. The Policy Requirement does not violate the First Amendment, regardless of whether it is applied to respondents, respondents’ legally distinct foreign affiliates, or any other organization, foreign or domestic. Because the Court properly rejects respondents’ attempt to extend our erroneous precedent, I join its opinion in full. Dissent (Breyer, joined by Ginsburg and Sotomayor): The Court, in my view, asks the wrong question and gives the wrong answer. This case is not about the First Amendment rights of foreign organizations. It is about—and has always been about—the First Amendment rights of American organizations. T he last time this case came before us, those American organizations vindicated their constitutional right to speak freely, both at home and abroad. In Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. 205 (2013) (AOSI I ), we held that the First Amendment forbids the Government from distorting their speech by requiring, as a condition of receiving federal funds, that they “pledge allegiance” to a state-sponsored message. This time, the question is whether the American organizations enjoy that same constitutional protection against government-compelled distortion when they speak through clearly identified affiliates that have been incorporated overseas. The answer to that question, as I see it, is yes. I dissent from the Court’s contrary conclusion. … Respondents should prevail here for the same reasons they prevailed in AOSI I. When respondents speak through legally separate but clearly identified affiliates, we held, that speech is attributed to respondents for First Amendment purposes. So when the Government demands as a condition of federal funding that their clearly identified affiliate “espouse a specific belief as its own,” respondents may express a contrary view through some other corporate channel only on pain of appearing hypocritical. Leveraging Congress’ Article I spending power to distort respondents’ protected speech in this way therefore violates respondents’ First Amendment rights— whatever else might be said about the affiliate’s own First Amendment rights (or asserted lack thereof ). These principles apply with full force to the dispute now before us. Respondents and their affiliates receive federal funding to fight HIV/AIDS overseas. What has been at stake in this case from the beginning, then, is protected speech often aimed at audiences abroad. Our decision in AOSI I shielded respondents’ global message from government-compelled distortion in the eyes of those foreign audiences, as well as listeners here at home. Yet in the wake of our ruling, respondents have continued to suffer that exact same First Amendment harm. True, respondents’ international mission sometimes requires that they convey their message through affiliates incorporated in far-off countries, rather than registered here at home. But so what? Audiences everywhere attribute speech based on whom they perceive to be speaking, not on corporate paperwork they will never see. … The First Amendment protects speakers from government compulsion that is likely to cause an audience to mistake someone else’s message for the speaker’s own views. Corporate separation makes no meaningful difference in this speech-misattribution context, either. … So far as I am aware, we have never before held that an American speaker forfeits First Amendment protection when it speaks though foreign affiliates to reach audiences overseas. It is easy to understand why. Many American news networks operate through clearly identified foreign affiliates when speaking abroad. Viewers attribute that speech to an American speaker: the network. That is the whole point of using clearly identified foreign affiliates. For example, CNN speaks to audiences in the Philippines, Brazil, Indonesia, and other countries using foreign affiliates, usually styled as CNN Philippines, CNN Brazil, CNN Indonesia, and so on. But does that corporate structure mean that CNN—i.e., the American parent organization—has no First Amendment protection against a Government effort to, say, prevent CNN Mexico from covering the fatal shooting of a Mexican child by a U. S. Border Patrol agent? Or to compel CNN Mexico to run a different story, perhaps one produced by Government personnel, that praises American policy at the border? We should be highly skeptical. … The upshot is: (1) The messages at issue here belong to American speakers; (2) clearly identified foreign affiliates are a critical means of conveying those messages overseas; and (3) enforcing the Policy Requirement against those affiliates distorts respondents’ own protected speech—and thus violates respondents’ own First Amendment rights. The majority justifies its contrary result on three main grounds, two of which it says are “bedrock principles” of American law. I do not find these arguments persuasive. The first “bedrock principle” on which the majority relies is the supposedly long-settled, across-the-board rule “that foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution.” That sweeping assertion is neither relevant to this case nor correct on the law. It is not relevant because, as I have said, this case does not concern the constitutional rights of foreign organizations. This case concerns the constitutional rights of American organizations. Every respondent here is—and has always been—American. … The majority’s second supposedly “bedrock principle” is that “separately incorporated organizations are separate legal units with distinct legal rights and obligations.” Sometimes true, sometimes not. This baseline rule gives way in many contexts, and our First Amendment precedents (including AOSI I ) refute any suggestion that a workaday principle of corporate law somehow resolves the constitutional issue here in dispute. As the majority acknowledges, corporate law itself permits courts to pierce or otherwise disregard the corporate veil in a variety of circumstances. Those narrow exceptions, however, are not the only time the law looks past corporate formalities. For instance, we have treated “several nominally separate business entities” as “a single employer” for purposes of federal labor law. Earlier this Term, we reaffirmed that one corporate entity may sometimes invoke the right of another, legally separate entity to compel arbitration. And these are far from the only relevant examples. … The Court today concludes that respondents’ foreign affiliates “do not have a First Amendment right to disregard the Policy Requirement.” Ante, at 9. Respondents have never argued otherwise. Rather, throughout this litigation they have asserted their own First Amendment right to speak their mind, rather than the Government’s message. Here, respondents claim First Amendment protection when they speak through foreign affiliates to address audiences abroad. By denying respondents that protection, I fear the Court’s decision will seriously impede the countless American speakers who communicate overseas in a similar way. That weakens the marketplace of ideas at a time when the value of that marketplace for Americans, and for others, reaches well beyond our shores. With respect, I dissent. https://www.supremecourt.gov/opinions/19pdf/19-177_b97c.pdf JUNE MEDICAL SERVICES L. L. C. ET AL. v. RUSSO, INTERIM SECRETARY, LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS TLDR: Louisiana’s anti-abortion Act 620 is just as bad as the Texas law struck down 4 years ago, so cannot stand based on that precedent. Plurality Opinion (Breyer): In Whole Woman’s Health v. Hellerstedt, 579 U. S. ___ (2016), we held that “‘[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right’ ” and are therefore “constitutionally invalid.” We explained that this standard requires courts independently to review the legislative findings upon which an abortion-related statute rests and to weigh the law’s “asserted benefits against the burdens” it imposes on abortion access. The Texas statute at issue in Whole Woman’s Health required abortion providers to hold “‘active admitting privileges at a hospital’” within 30 miles of the place where they perform abortions. Reviewing the record for ourselves, we found ample evidence to support the District Court’s finding that the statute did not further the State’s asserted interest in protecting women’s health. The evidence showed, moreover, that conditions on admitting privileges that served no “relevant credentialing function,” “help[ed] to explain” the closure of half of Texas’ abortion clinics. Those closures placed a substantial obstacle in the path of Texas women seeking an abortion. And that obstacle, “when viewed in light of the virtual absence of any health benefit,” imposed an “undue burden” on abortion access in violation of the Federal Constitution. In this case, we consider the constitutionality of a Louisiana statute, Act 620, that is almost word-for-word identical to Texas’ admitting-privileges law. As in Whole Woman’s Health, the District Court found that the statute offers no significant health benefit. It found that conditions on admitting privileges common to hospitals throughout the State have made and will continue to make it impossible for abortion providers to obtain conforming privileges for reasons that have nothing to do with the State’s asserted interests in promoting women’s health and safety. And it found that this inability places a substantial obstacle in the path of women seeking an abortion. As in Whole Woman’s Health, the substantial obstacle the Act imposes, and the absence of any health-related benefit, led the District Court to conclude that the law imposes an undue burden and is therefore unconstitutional. See U. S. Const., Amdt. 14, §1. The Court of Appeals agreed with the District Court’s interpretation of the standards we have said apply to regulations on abortion. It thought, however, that the District Court was mistaken on the facts. We disagree. We have examined the extensive record carefully and conclude that it supports the District Court’s findings of fact. Those findings mirror those made in Whole Woman’s Health in every relevant respect and require the same result. We consequently hold that the Louisiana statute is unconstitutional. … We initially consider a procedural argument that the State raised for the first time in its cross-petition for certiorari. As we have explained, the plaintiff abortion providers and clinics in this case have challenged Act 620 on the ground that it infringes their patients’ rights to access an abortion. The State contends that the proper parties to assert these rights are the patients themselves. We think that the State has waived that argument. The State’s argument rests on the rule that a party cannot ordinarily “‘rest his claim to relief on the legal rights or interests of third parties.’” This rule is “prudential.” It does not involve the Constitution’s “case-or-controversy requirement.” And so, we have explained, it can be forfeited or waived. As we pointed out, supra, at 4–5, the State’s memorandum opposing the plaintiffs’ TRO request urged the District Court to proceed swiftly to the merits of the plaintiffs’ undue-burden claim. It argued that there was “no question that the physicians had standing to contest” Act 620. And it told the District Court that the Fifth Circuit had found that doctors challenging Texas’ “identical” law “had third-party standing to assert their patients’ rights.” Noting that the Texas law had “already been upheld,” the State asserted that it had “a keen interest in removing any cloud upon the validity of its law.” It insisted that this suit was “the proper vehicle to do so.” Ibid. The State did not mention its current objection until it filed its cross-petition—more than five years after it argued that the plaintiffs’ standing was beyond question. The State’s unmistakable concession of standing as part of its effort to obtain a quick decision from the District Court on the merits of the plaintiffs’ undue-burden claims bars our consideration of it here. … And even if the State had merely forfeited its objection by failing to raise it at any point over the last five years, we would not now undo all that has come before on that basis. … In any event, the rule the State invokes is hardly absolute. We have long permitted abortion providers to invoke the rights of their actual or potential patients in challenges to abortion-related regulations….And we have generally permitted plaintiffs to assert third-party rights in cases where the “‘enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights.’” … Turning to the merits, we apply the constitutional standards set forth in our earlier abortion-related cases, and in particular in Casey and Whole Woman’s Health. At the risk of repetition, we remind the reader of the standards we described above. In Whole Woman’s Health, we quoted Casey in explaining that “‘a statute which, while furthering [a] valid state interest has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.’”We added that “ ‘[u]nnecessary health regulations’” impose an unconstitutional “‘undue burden’” if they have “‘the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.’” We went on to explain that, in applying these standards, courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” We cautioned that courts “must review legislative ‘factfinding under a deferential standard.’” But they “must not ‘place dispositive weight’ on those ‘findings,’” for the courts “‘retai[n] an independent constitutional duty to review factual findings where constitutional rights are at stake.’” We held in Whole Woman’s Health that the trial court faithfully applied these standards. It “considered the evidence in the record—including expert evidence, presented in stipulations, depositions, and testimony.” It “then weighed the asserted benefits” of the law “against the burdens” it imposed on abortion access. And it concluded that the balance tipped against the statute’s constitutionality. The District Court in this suit did the same. The Court of Appeals disagreed with the District Court, not so much in respect to the legal standards that we have just set forth, but because it did not agree with the factual findings on which the District Court relied in assessing both the burdens that Act 620 imposes and the health-related benefits it might bring. We have consequently reviewed the record in detail ourselves. In doing so, we have applied well-established legal standards.…[Extensive factual discussion snipped]...Taken together, we think that these findings and the evidence that underlies them are sufficient to support the District Court’s conclusion that Act 620 would place substantial obstacles in the path of women seeking an abortion in Louisiana. We turn finally to the law’s asserted benefits. The District Court found that there was “‘no significant health-related problem that the new law helped to cure.’” It found that the admittingprivileges requirement “[d]oes [n]ot [p]rotect [w]omen’s [h]ealth,” provides “no significant health benefits,” and makes no improvement to women’s health “compared to prior law.” Our examination of the record convinces us that these findings are not “clearly erroneous.” … This case is similar to, nearly identical with, Whole Woman’s Health. And the law must consequently reach a similar conclusion. Act 620 is unconstitutional. The Court of Appeals’ judgment is erroneous. It is Reversed. Lineup: Breyer, joined by Ginsburg, Sotomayor, and Kagan (note, not a majority). Concurrence in the judgment by Roberts. Dissent by Thomas. Dissent by Alito, joined by Gorsuch, joined by Thomas (other than Parts III-C and IV-F), and joined by Kavanaugh (as to Parts I-III). Dissent by Gorsuch. Dissent by Kavanaugh. Concurrence in the Judgment (Roberts): In July 2013, Texas enacted a law requiring a physician performing an abortion to have “active admitting privileges at a hospital . . . located not further than 30 miles from the location at which the abortion is performed.” The law caused the number of facilities providing abortions to drop in half. In Whole Woman’s Health v. Hellerstedt, 579 U. S. ___ (2016), the Court concluded that Texas’s admitting privileges requirement “places a substantial obstacle in the path of women seeking a previability abortion” and therefore violated the Due Process Clause of the Fourteenth Amendment. I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case. Today’s case is a challenge from several abortion clinics and providers to a Louisiana law nearly identical to the Texas law struck down four years ago in Whole Woman’s Health. Just like the Texas law, the Louisiana law requires physicians performing abortions to have “active admitting privileges at a hospital . . . located not further than thirty miles from the location at which the abortion is performed.” … The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents. Dissent (Thomas): Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction. As is often the case with legal challenges to abortion regulations, this suit was brought by abortionists and abortion clinics. Their sole claim before this Court is that Louisiana’s law violates the purported substantive due process right of a woman to abort her unborn child. But they concede that this right does not belong to them, and they seek to vindicate no private rights of their own. Under a proper understanding of Article III, these plaintiffs lack standing to invoke our jurisdiction. … For most of its history, this Court maintained that private parties could not bring suit to vindicate the constitutional rights of individuals who are not before the Court. But in the 20th century, the Court began to deviate from this traditional rule against third-party standing. From these deviations emerged our prudential third-party standing doctrine, which allows litigants to vicariously assert the constitutional rights of others when “the party asserting the right has a ‘close’ relationship with the person who possesses the right” and “there is a ‘hindrance’ to the possessor’s ability to protect his own interests.” The plurality feints toward this doctrine, claiming that third-party standing for abortionists is well settled by our precedents. But, ultimately, it dodges the question, claiming that Louisiana’s standing challenge was waived below. Both assertions are erroneous. First, there is no controlling precedent that sets forth the blanket rule advocated for by plaintiffs here—i.e., abortionists may challenge health and safety regulations based solely on their role in the abortion process. Second, I agree with JUSTICE ALITO that Louisiana did not waive its standing challenge below. But even if there were a waiver, it would not be relevant. Louisiana argues that the abortionists and abortion clinics lack standing under Article III to assert the putative rights of their potential clients. No waiver, however explicit, could relieve us of our independent obligation to ensure that we have jurisdiction before addressing the merits of a case. And under a proper understanding of Article III case-or controversy requirement, plaintiffs lack standing to invoke our jurisdiction because they assert no private rights of their own, seeking only to vindicate the putative constitutional rights of individuals not before the Court. … A brief historical examination of Article III’s case-or-controversy requirement confirms what our recent decisions suggest: The rule against third-party standing is constitutional, not prudential. The judicial power is limited to “‘“cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.”’” Thus, to ascertain the scope of Article III’s case-or-controversy requirement, “we must ‘refer directly to the traditional, fundamental limitations upon the powers of common-law courts.’” “One focus” of these traditional limitations was “on the particular parties before the court, and whether the rights that they [were] invoking [were] really theirs to control.” An examination of these limitations reveals that a plaintiff could not establish a case or controversy by asserting the constitutional rights of others. … Applying these principles to the case at hand, plaintiffs lack standing under Article III and we, in turn, lack jurisdiction to decide these cases. … Even if the plaintiffs had standing, the Court would still lack the authority to enjoin Louisiana’s law, which represents a constitutionally valid exercise of the State’s traditional police powers. The plurality and THE CHIEF JUSTICE claim that the Court’s judgment is dictated by “our precedents,” particularly Whole Woman’s Health. For the detailed reasons explained by JUSTICE ALITO, this is not true. But today’s decision is wrong for a far simpler reason: The Constitution does not constrain the States’ ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the “legal fiction” of substantive due process As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone. … The Court first conceived a free-floating constitutional right to privacy in Griswold v. Connecticut, 381 U. S. 479 (1965). In that case, the Court declared unconstitutional a state law prohibiting the use of contraceptives, finding that it violated a married couple’s “right of privacy.” The Court explained that this right could be found in the “penumbras” of five different Amendments to the Constitution—the First, Third, Fourth, Fifth, and Ninth. … As Justice Black observed in his dissent, this general “right of privacy” was never before considered a constitutional guarantee protecting citizens from governmental intrusion. … Just eight years later, the Court utilized its newfound power in Roe v. Wade, 410 U. S. 113 (1973). There, the Court struck down a Texas law restricting abortion as a violation of a woman’s constitutional “right of privacy,” which it grounded in the “concept of personal liberty” purportedly protected by the Due Process Clause of the Fourteenth Amendment. The Court began its legal analysis by openly acknowledging that the Constitution’s text does not “mention any right of privacy.” The Court nevertheless concluded that it need not bother with our founding document’s text, because the Court’s prior decisions—chief among them Griswold—had already divined such a right from constitutional penumbras. ... Roe is grievously wrong for many reasons, but the most fundamental is that its core holding—that the Constitution protects a woman’s right to abort her unborn child—finds no support in the text of the Fourteenth Amendment. Roe suggests that the Due Process Clause’s reference to “liberty” could provide a textual basis for its novel privacy right. Ibid. But that Clause does not guarantee liberty qua liberty. Rather, it expressly contemplates the deprivation of liberty and requires only that such deprivations occur through “due process of law.” As I have previously explained, there is “‘considerable historical evidence support[ing] the position that “due process of law” was [originally understood as] a separation-of-powers concept . . . forbidding only deprivations not authorized by legislation or common law.’”Others claim that the original understanding of this Clause requires that “statutes that purported to empower the other branches to deprive persons of rights without adequate procedural guarantees [be] subject to judicial review.” But, whatever the precise requirements of the Due Process Clause, “the notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” More specifically, the idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical. In 1868, when the Fourteenth Amendment was ratified, a majority of the States and numerous Territories had laws on the books that limited (and in many cases nearly prohibited) abortion. It would no doubt shock the public at that time to learn that one of the new constitutional Amendments contained hidden within the interstices of its text a right to abortion. The fact that it took this Court over a century to find that right all but proves that it was more than hidden—it simply was not (and is not) there. … Because we lack jurisdiction and our abortion jurisprudence finds no basis in the Constitution, I respectfully dissent. Dissent (Alito, joined by Gorsuch, joined by Thomas (other than Parts III-C and IV-F), and joined by Kavanaugh (as to Parts I-III)): The majority bills today’s decision as a facsimile of Whole Woman’s Health v. Hellerstedt, 579 U. S. ___, ___ (2016), and it’s true they have something in common. In both, the abortion right recognized in this Court’s decisions is used like a bulldozer to flatten legal rules that stand in the way. In Whole Woman’s Health, res judicata and our standard approach to severability were laid low. Even Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), was altered. Today’s decision claims new victims. The divided majority cannot agree on what the abortion right requires, but it nevertheless strikes down a Louisiana law, Act 620, that the legislature enacted for the asserted purpose of protecting women’s health. To achieve this end, the majority misuses the doctrine of stare decisis, invokes an inapplicable standard of appellate review, and distorts the record. The plurality eschews the constitutional test set out in Casey and instead employs the balancing test adopted in Whole Woman’s Health. The plurality concludes that the Louisiana law does nothing to protect the health of women, but that is disproved by substantial evidence in the record. And the plurality upholds the District Court’s finding that the Louisiana law would cause a drastic reduction in the number of abortion providers in the State even though this finding was based on an erroneous legal standard and a thoroughly inadequate factual inquiry. THE CHIEF JUSTICE stresses the importance of stare decisis and thinks that precedent, namely Whole Woman’s Health, dooms the Louisiana law. But at the same time, he votes to overrule Whole Woman’s Health insofar as it changed the Casey test. Both the plurality and THE CHIEF JUSTICE hold that abortion providers can invoke a woman’s abortion right when they attack state laws that are enacted to protect a woman’s health. Neither waiver nor stare decisis can justify this holding, which clashes with our general rule on third-party standing. And the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion. For these reasons, I cannot join the decision of the Court. I would remand the case to the District Court and instruct that court, before proceeding any further, to require the joinder of a plaintiff with standing. [Thomas doesn’t want to remand, he wants to dismiss] [much factual discussion skipped] The plurality holds that Louisiana waived any objection to June Medical’s third-party standing, ante, at 12, but that is a misreading of the record. The plurality relies on a passing statement in a brief filed by the State in District Court in connection with the plaintiffs’ request for a temporary restraining order, but the statement is simply an accurate statement of circuit precedent on the standing of abortion providers. It does not constitute a waiver. … This case features a blatant conflict of interest between an abortion provider and its patients. Like any other regulated entity, an abortion provider has a financial interest in avoiding burdensome regulations such as Act 620’s admitting privileges requirement. Applying for privileges takes time and energy, and maintaining privileges may impose additional burdens. Women seeking abortions, on the other hand, have an interest in the preservation of regulations that protect their health. The conflict inherent in such a situation is glaring. … When an abortion regulation is enacted for the asserted purpose of protecting the health of women, an abortion provider seeking to strike down that law should not be able to rely on the constitutional rights of women. Like any other party unhappy with burdensome regulation, the provider should be limited to its own rights. … The decision in this case, like that in Whole Woman’s Health, twists the law, and I therefore respectfully dissent. Dissent (Gorsuch): The judicial power is constrained by an array of rules. Rules about the deference due the legislative process, the standing of the parties before us, the use of facial challenges to invalidate democratically enacted statutes, and the award of prospective relief. Still more rules seek to ensure that any legal tests judges may devise are capable of neutral and principled administration. Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be. Today’s decision doesn’t just overlook one of these rules. It overlooks one after another. And it does so in a case touching on one of the most controversial topics in contemporary politics and law, exactly the context where this Court should be leaning most heavily on the rules of the judicial process. In truth, Roe v. Wade, 410 U. S. 113 (1973), is not even at issue here. The real question we face concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom. When confronting a constitutional challenge to a law, this Court ordinarily reviews the legislature’s factual findings under a “deferential” if not “[u]ncritical” standard. [much Louisiana legislative history skipped] … After overlooking so many facts and the deference owed to the legislative process, today’s decision misapplies many of the rules that normally constrain the judicial process. Start with the question who can sue. To establish standing in federal court, a plaintiff typically must assert an injury to her own legally protected interests—not the rights of someone else. … To arrive at today’s result, rules must be brushed aside and shortcuts taken. While the concurrence parts ways with the plurality at the last turn, the road both travel leads us to a strangely open space, unconstrained by many of the neutral principles that normally govern the judicial process. The temptation to proceed this direction, closer with each step toward an unobstructed exercise of will, may be always with us, a danger inherent in judicial review. But it is an impulse this Court normally strives mightily to resist. Today, in a highly politicized and contentious arena, we prove unwilling, or perhaps unable, to resist that temptation. Either way, respectfully, it is a sign we have lost our way. Dissent (Kavanaugh): I join Parts I, II, and III of JUSTICE ALITO’s dissent. A threshold question in this case concerns the proper standard for evaluating state abortion laws. The Louisiana law at issue here requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of the abortion clinic. The State asks us to assess the law by applying the undue burden standard of Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). The plaintiffs ask us to apply the cost-benefit standard of Whole Woman’s Health v. Hellerstedt, 579 U. S. ___ (2016). Today, five Members of the Court reject the Whole Woman’s Health cost-benefit standard. Ante, at 4–11 (ROBERTS, C. J., concurring in judgment); ante, at 14–20 (THOMAS, J., dissenting); ante, at 4 (ALITO, J., joined by THOMAS, GORSUCH, and KAVANAUGH, JJ., dissenting); ante, at 15–18 (GORSUCH, J., dissenting). A different five Members of the Court conclude that Louisiana’s admitting-privileges law is unconstitutional because it “would restrict women’s access to abortion to the same degree as” the Texas law in Whole Woman’s Health. Ante, at 12 (opinion of ROBERTS, C. J.); see also ante, at 16–40 (opinion of BREYER, J., joined by GINSBURG, SOTOMAYOR, and KAGAN, JJ.). I agree with the first of those two conclusions. But I respectfully dissent from the second because, in my view, additional factfinding is necessary to properly evaluate Louisiana’s law. … In short, I agree with JUSTICE ALITO that the Court should remand the case for a new trial and additional factfinding under the appropriate legal standards. https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf
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Jun 30, 2020 01:12
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SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU TLDR: The Consumer Financial Protection Bureau can stay, but its Director must be removable by the President at will. Holding / Majority Opinion (Roberts): In the wake of the 2008 financial crisis, Congress established the Consumer Financial Protection Bureau (CFPB), an independent regulatory agency tasked with ensuring that consumer debt products are safe and transparent. In organizing the CFPB, Congress deviated from the structure of nearly every other independent administrative agency in our history. Instead of placing the agency under the leadership of a board with multiple members, Congress provided that the CFPB would be led by a single Director, who serves for a longer term than the President and cannot be removed by the President except for inefficiency, neglect, or malfeasance. The CFPB Director has no boss, peers, or voters to report to. Yet the Director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U. S. economy. The question before us is whether this arrangement violates the Constitution’s separation of powers. Under our Constitution, the “executive Power”—all of it—is “vested in a President,” who must “take Care that the Laws be faithfully executed.” Because no single person could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance. Ten years ago, in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 (2010), we reiterated that, “as a general matter,” the Constitution gives the President “the authority to remove those who assist him in carrying out his duties”. “Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.” The President’s power to remove—and thus supervise— those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States, 272 U. S. 52 (1926). Our precedents have recognized only two exceptions to the President’s unrestricted removal power. In Humphrey’s Executor v. United States, 295 U. S. 602 (1935), we held that Congress could create expert agencies led by a group of principal officers removable by the President only for good cause. And in United States v. Perkins, 116 U. S. 483 (1886), and Morrison v. Olson, 487 U. S. 654 (1988), we held that Congress could provide tenure protections to certain inferior officers with narrowly defined duties. We are now asked to extend these precedents to a new configuration: an independent agency that wields significant executive power and is run by a single individual who cannot be removed by the President unless certain statutory criteria are met. We decline to take that step. While we need not and do not revisit our prior decisions allowing certain limitations on the President’s removal power, there are compelling reasons not to extend those precedents to the novel context of an independent agency led by a single Director. Such an agency lacks a foundation in historical practice and clashes with constitutional structure by concentrating power in a unilateral actor insulated from Presidential control. We therefore hold that the structure of the CFPB violates the separation of powers. We go on to hold that the CFPB Director’s removal protection is severable from the other statutory provisions bearing on the CFPB’s authority. The agency may therefore continue to operate, but its Director, in light of our decision, must be removable by the President at will. … In 2010, Congress...created the Consumer Financial Protection Bureau (CFPB) as an independent financial regulator within the Federal Reserve System. Congress tasked the CFPB with “implement[ing]” and “enforc[ing]” a large body of financial consumer 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.”...Congress also vested the CFPB with potent enforcement powers. The agency has the authority to conduct investigations, issue subpoenas and civil investigative demands, initiate administrative adjudications, and prosecute civil actions in federal court. To remedy violations of federal consumer financial law, the CFPB may seek restitution, disgorgement, and injunctive relief, as well as civil penalties of up to $1,000,000 (inflation adjusted) for each day that a violation occurs...The CFPB’s rulemaking and enforcement powers are coupled with extensive adjudicatory authority. … Congress’s design for the CFPB differed from the proposals of Professor Warren and the Obama administration in one critical respect. Rather than create a traditional independent agency headed by a multi-member board or commission, Congress elected to place the CFPB under the leadership of a single Director. The CFPB Director is appointed by the President with the advice and consent of the Senate. The Director serves for a term of five years, during which the President may remove the Director from office only for “inefficiency, neglect of duty, or malfeasance in office.” … We granted certiorari to address the constitutionality of the CFPB’s structure. We also requested argument on an additional question: whether, if the CFPB’s structure violates the separation of powers, the CFPB Director’s removal protection can be severed from the rest of the Dodd-Frank Act. We first consider three threshold arguments raised by the appointed amicus for why we may not or should not reach the merits. Each is unavailing. First, amicus argues that the demand issued to petitioner is not “traceable” to the alleged constitutional defect because two of the three Directors who have in turn played a role in enforcing the demand were (or now consider themselves to be) removable by the President at will….We have held that a litigant challenging governmental action as void on the basis of the separation of powers is not required to prove that the Government’s course of conduct would have been different in a “counterfactual world” in which the Government had acted with constitutional authority. … Second, amicus contends that the proper context for assessing the constitutionality of an officer’s removal restriction is a contested removal. While that is certainly one way to review a removal restriction, it is not the only way. Our precedents have long permitted private parties aggrieved by an official’s exercise of executive power to challenge the official’s authority to wield that power while insulated from removal by the President. … Lastly, amicus contends that we should dismiss the case because the parties agree on the merits of the constitutional question and the case therefore lacks “adverseness.” That contention, however, is foreclosed by United States v. Windsor, 570 U. S. 744 (2013). There, we explained that a lower court order that presents real-world consequences for the Government and its adversary suffices to support Article III jurisdiction—even if “the Executive may welcome” an adverse order that “is accompanied by the constitutional ruling it wants. … We hold that the CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers. … lesser officers must remain accountable to the President, whose authority they wield. As Madison explained, “[I]f any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” That power, in turn, generally includes the ability to remove executive officials, for it is “only the authority that can remove” such officials that they “must fear and, in the performance of [their] functions, obey.” B The President’s removal power has long been confirmed by history and precedent. It “was discussed extensively in Congress when the first executive departments were created” in 1789. “The view that ‘prevailed, as most consonant to the text of the Constitution’ and ‘to the requisite responsibility and harmony in the Executive Department,’ was that the executive power included a power to oversee executive officers through removal.” … Just as the President’s “selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible.” “[T]o hold otherwise,” the Court reasoned, “would make it impossible for the President . . . to take care that the laws be faithfully executed.” … We recently reiterated the President’s general removal power in Free Enterprise Fund. “Since 1789,” we recapped, “the Constitution has been understood to empower the President to keep these officers accountable—by removing them from office, if necessary.” Although we had previously sustained congressional limits on that power in certain circumstances, we declined to extend those limits to “a new situation not yet encountered by the Court”—an official insulated by two layers of for-cause removal protection. In the face of that novel impediment to the President’s oversight of the Executive Branch, we adhered to the general rule that the President possesses “the authority to remove those who assist him in carrying out his duties.” … Free Enterprise Fund left in place two exceptions to the President’s unrestricted removal power. First, in Humphrey’s Executor, decided less than a decade after Myers, the Court upheld a statute that protected the Commissioners of the FTC from removal except for “inefficiency, neglect of duty, or malfeasance in office.”. In reaching that conclusion, the Court stressed that Congress’s ability to impose such removal restrictions “will depend upon the character of the office.” Because the Court limited its holding “to officers of the kind here under consideration,” id., at 632, the contours of the Humphrey’s Executor exception depend upon the characteristics of the agency before the Court. Rightly or wrongly, the Court viewed the FTC (as it existed in 1935) as exercising “no part of the executive power.” Instead, it was “an administrative body” that performed “specified duties as a legislative or as a judicial aid.” It acted “as a legislative agency” in “making investigations and reports” to Congress and “as an agency of the judiciary” in making recommendations to courts as a master in chancery. … We have recognized a second exception for inferior officers in two cases, United States v. Perkins and Morrison v. Olson. In Perkins, we upheld tenure protections for a naval cadet-engineer. And, in Morrison, we upheld a provision granting good-cause tenure protection to an independent counsel appointed to investigate and prosecute particular alleged crimes by high-ranking Government officials. … These two exceptions—one for multi-member expert agencies that do not wield substantial executive power, and one for inferior officers with limited duties and no policymaking or administrative authority—“represent what up to now have been the outermost constitutional limits of permissible congressional restrictions on the President’s removal power.” … The question instead is whether to extend those precedents to the “new situation” before us, namely an independent agency led by a single Director and vested with significant executive power. We decline to do so. Such an agency has no basis in history and no place in our constitutional structure. “Perhaps the most telling indication of [a] severe constitutional problem” with an executive entity “is [a] lack of historical precedent” to support it. An agency with a structure like that of the CFPB is almost wholly unprecedented. … In addition to being a historical anomaly, the CFPB’s single-Director configuration is incompatible with our constitutional structure. Aside from the sole exception of the Presidency, that structure scrupulously avoids concentrating power in the hands of any single individual. … Having concluded that the CFPB’s leadership by a single independent Director violates the separation of powers, we now turn to the appropriate remedy. We directed the parties to brief and argue whether the Director’s removal protection was severable from the other provisions of the Dodd-Frank Act that establish the CFPB. If so, then the CFPB may continue to exist and operate notwithstanding Congress’s unconstitutional attempt to insulate the agency’s Director from removal by the President. … The only constitutional defect we have identified in the CFPB’s structure is the Director’s insulation from removal. If the Director were removable at will by the President, the constitutional violation would disappear. We must therefore decide whether the removal provision can be severed from the other statutory provisions relating to the CFPB’s powers and responsibilities. In Free Enterprise Fund, we found a set of unconstitutional removal provisions severable even in the absence of an express severability clause because the surviving provisions were capable of “functioning independently” and “nothing in the statute’s text or historical context [made] it evident that Congress, faced with the limitations imposed by the Constitution, would have preferred no Board at all to a Board whose members are removable at will.” So too here. The provisions of the Dodd-Frank Act bearing on the CFPB’s structure and duties remain fully operative without the offending tenure restriction. Those provisions are capable of functioning independently, and there is nothing in the text or history of the Dodd-Frank Act that demonstrates Congress would have preferred no CFPB to a CFPB supervised by the President. Quite the opposite. … The judgment of the United States Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Roberts, joined by Thomas, Alito, Gorsuch, and Kavanaugh for Parts I-III, and joined by Alito and Kavanaugh for Part IV (severability). Concurrence in Part and Dissent in Part by Thomas, joined by Gorsuch. Concurrence in the Judgment regarding severability and Dissent in part by Kagan, joined by Ginsburg, Breyer, and Sotomayor. Concurrence in Part and Dissent in Part (Thomas, joined by Gorsuch): The Court’s decision today takes a restrained approach on the merits by limiting Humphrey’s Executor v. United States, 295 U. S. 602 (1935), rather than overruling it. At the same time, the Court takes an aggressive approach on severability by severing a provision when it is not necessary to do so. I would do the opposite. Because the Court takes a step in the right direction by limiting Humphrey’s Executor to “multimember expert agencies that do not wield substantial executive power,” ante, at 16 (emphasis added), I join Parts I, II, and III of its opinion. I respectfully dissent from the Court’s severability analysis, however, because I do not believe that we should address severability in this case. The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a result, the liberty of the American people. The Court concludes that it is not strictly necessary for us to overrule that decision. But with today’s decision, the Court has repudiated almost every aspect of Humphrey’s Executor. In a future case, I would repudiate what is left of this erroneous precedent. … While I think that the Court correctly resolves the merits of the constitutional question, I do not agree with its decision to sever the removal restriction in 12 U. S. C. §5491(c)(3). To resolve this case, I would simply deny the Consumer Financial Protection Bureau (CFPB) petition to enforce the civil investigative demand. … when multiple provisions of law combine to cause a constitutional injury, the Court’s current approach allows the Court to decide which provision to sever. The text of a severability clause does not guide that choice. Nor does the practice of early American courts. The Court is thus left to choose based on nothing more than speculation as to what the Legislature would have preferred. And the result of its choice can have a dramatic effect on the governing statutory scheme. This is not a simple matter of following the “plain language” of a statute. It is incumbent on us to take a close look at our precedents to make sure that we are not exceeding the scope of the judicial power. Given my concerns about our modern severability doctrine and the fact that severability makes no difference to the dispute before us, I would resolve this case by simply denying the CFPB’s petition to enforce the civil investigative demand. Dissent (Kagan, joined by Ginsburg, Breyer, and Sotomayor): Throughout the Nation’s history, this Court has left most decisions about how to structure the Executive Branch to Congress and the President, acting through legislation they both agree to. In particular, the Court has commonly allowed those two branches to create zones of administrative independence by limiting the President’s power to remove agency heads. The Federal Reserve Board. The Federal Trade Commission (FTC). The National Labor Relations Board. Statute after statute establishing such entities instructs the President that he may not discharge their directors except for cause—most often phrased as inefficiency, neglect of duty, or malfeasance in office. Those statutes, whose language the Court has repeatedly approved, provide the model for the removal restriction before us today. If precedent were any guide, that provision would have survived its encounter with this Court—and so would the intended independence of the Consumer Financial Protection Bureau (CFPB). Our Constitution and history demand that result. The text of the Constitution allows these common for-cause removal limits. Nothing in it speaks of removal. And it grants Congress authority to organize all the institutions of American governance, provided only that those arrangements allow the President to perform his own constitutionally assigned duties. Still more, the Framers’ choice to give the political branches wide discretion over administrative offices has played out through American history in ways that have settled the constitutional meaning. From the first, Congress debated and enacted measures to create spheres of administration—especially of financial affairs— detached from direct presidential control. As the years passed, and governance became ever more complicated, Congress continued to adopt and adapt such measures— confident it had latitude to do so under a Constitution meant to “endure for ages to come.” Not every innovation in governance—not every experiment in administrative independence—has proved successful. And debates about the prudence of limiting the President’s control over regulatory agencies, including through his removal power, have never abated. But the Constitution—both as originally drafted and as practiced—mostly leaves disagreements about administrative structure to Congress and the President, who have the knowledge and experience needed to address them. Within broad bounds, it keeps the courts—who do not—out of the picture. The Court today fails to respect its proper role. It recognizes that this Court has approved limits on the President’s removal power over heads of agencies much like the CFPB. Agencies possessing similar powers, agencies charged with smilar missions, agencies created for similar reasons. The majority’s explanation is that the heads of those agencies fall within an “exception”—one for multimember bodies and another for inferior officers—to a “general rule” of unrestricted presidential removal power. And the majority says the CFPB Director does not. That account, though, is wrong in every respect. The majority’s general rule does not exist. Its exceptions, likewise, are made up for the occasion—gerrymandered so the CFPB falls outside them. And the distinction doing most of the majority’s work—between multimember bodies and single directors— does not respond to the constitutional values at stake. 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. Unwittingly, the majority shows why courts should stay their hand in these matters. “Compared to Congress and the President, the Judiciary possesses an inferior understanding of the realities of administration” and the way “political power[] operates.” .... The majority tells Congress that it may “pursu[e] alternative responses” to the identified constitutional defect—“for example, converting the CFPB into a multimember agency.” But there was no need to send Congress back to the drawing board. The Constitution does not distinguish between single-director and multimember independent agencies. It instructs Congress, not this Court, to decide on agency design. Because this Court ignores that sensible—indeed, that obvious—division of tasks, I respectfully dissent. https://www.supremecourt.gov/opinions/19pdf/19-7_n6io.pdf
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Jun 30, 2020 01:12
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Love how it's impossible for Roberts to write an opinion without at least one concurrence-in-part and dissent-in-part. Why didn't Kagan take part in in the First Amendment case, did she have to recuse for some reason?
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Jun 30, 2020 07:35
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hey I just want you to know that I really appreciate you posting these here because I wouldn't read them otherwise
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Jun 30, 2020 07:42
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Sydin posted:Why didn't Kagan take part in in the First Amendment case, did she have to recuse for some reason? SCOTUSblog posted:When the government continued to apply the funding condition to the NGOs’ foreign affiliates after the Supreme Court’s 2013 decision, the NGOs returned to federal court. A federal district judge in New York ruled that the application of the funding condition to the foreign affiliates violates the First Amendment rights of the U.S.-based NGOs, and the U.S. Court of Appeals for the 2nd Circuit upheld that ruling. The federal government asked the Supreme Court to weigh in, which the justices agreed to do last year. ...and whoopsie, now the case comes out almost exactly the opposite way.
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Jun 30, 2020 08:05
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Stereotype posted:hey I just want you to know that I really appreciate you posting these here because I wouldn't read them otherwise 
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Jun 30, 2020 09:42
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Only two opinions today. Booking.com is not generic because people don't perceive it as such and is eligible for trademark protection and Montana's state constitution is unconstitutional because it prohibits using state dollars to fund schools fully owned by churches, and that somehow violates the free exercise clause.
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Jun 30, 2020 15:28
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Roberts seems to be saying that scholarships intended to prepare someone to be a priest can't be funded by the state, but a scholarship to be used for whatever you want to study in a religious school can be state-funded, as long as it doesn't require religious study. The opinion only makes sense if you are a robot who doesn't understand that the environment and culture of the school itself is intended to not-so-subtly indoctrinate students into the religion. No, its "beep boop beep, the school just happens to be owned by the religion, but they aren't making you become priests, I don't see the problem here".
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Jun 30, 2020 15:36
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Roberts absolutely understands whats happening at these schools. He’s just bending over backwards for another handout to churches and the religious right. Also  at almost every justice writing an opinion here.
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Jun 30, 2020 15:42
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Rigel posted:Roberts seems to be saying that scholarships intended to prepare someone to be a priest can't be funded by the state, but a scholarship to be used for whatever you want to study in a religious school can be state-funded, as long as it doesn't require religious study. By a person who doesn't think money has an undue influence on politics.
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Jun 30, 2020 15:50
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It’s almost as if John Roberts is a loving partisan hack.
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Jun 30, 2020 15:52
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I went to a religiously affiliated school. We had chapel and a few of the clergy taught classes. There were assemblies for religious events like first communion but despite all of that I never felt like I was pressured to convert or be a member of the church. We toured a private school for our son recently and I was expecting something similar and holy poo poo was I wrong. It was a distillation of 700 club republican Christianity. The textbooks were from Bob Jones University. Constant prayers adlibbed with “and lord just...” And white. Man was it white. In the Bay Area, not the whitest place in the world, but this place sure was. I don’t know how soon after Brown v Board this school was founded, but it absolutely felt like a segregation academy.
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Jun 30, 2020 16:24
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Yeah private religious schools are nothing more than indoctrination centers and have been that way, in my experience, since at least the 90s. You’ll find some that really are just schools attached to a church or only loosely affiliated, but most of the rest are just a place for lily white parents to send their kids to avoid learning any liberal lies. The school will teach them to listen to god and their father and that’s all they need!
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Jun 30, 2020 16:27
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Ron Jeremy posted:I went to a religiously affiliated school. We had chapel and a few of the clergy taught classes. There were assemblies for religious events like first communion but despite all of that I never felt like I was pressured to convert or be a member of the church. Are catholic schools still predominately the first type?
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Jun 30, 2020 16:31
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hobbesmaster posted:Are catholic schools still predominately the first type? I don't know about predominant, I'm sure there are many bad catholic schools. Catholic schools do tend to be the only ones where you might find something similar to a secular school with just a few religious classes and clergy mixed in. Its the schools attached to evangelical churches that are always nuts.
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Jun 30, 2020 16:37
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I think they reflect the larger power structure. When catholic schools became a thing, it was over which religious topics would be taught in the public schools and it happened in the time when Catholics were largely immigrants and the underclass. When evangelical schools became a thing, the white people were the overclass white flighting away from integrated schools.
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Jun 30, 2020 17:39
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It's funny because yesterday when Alito was  'ing over how abortion rights are being used as a bulldozer to flatten legal rules in its way I thought "Nah but if you swapped out 'abortion' with 'first amendment rights' then you've nailed the conservative justice strategy to a tee" and then they go and prove me right the very next day.
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Jun 30, 2020 17:43
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What's the last day that Mazars can be released? Thursday this week?
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Jun 30, 2020 17:46
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Residency Evil posted:What's the last day that Mazars can be released? Thursday this week? We will probably have more opinions next week.
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Jun 30, 2020 17:47
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