And Then There Were None: Weekly Brief for July 6

The Supreme Court’s term has now come to a close. The Court decided its last seven cases this week, capturing headlines and filling margins across the country. It handed President Trump an 0-1-1 record on his tax returns, ruling against him on the New York subpoena and sending the Congressional subpoena back to the lower court. It ruled that, for the purposes of the Major Crimes Act, the vast majority of eastern Oklahoma is Creek “Indian country” (yes, you read that right). It ruled against “faithless electors.” It rejected a procedural challenge to the Trump administration’s new religious exemptions to Obamacare’s contraceptive mandate. And it struck down an exception to the federal ban on robocalls. At the center of it all was Chief Justice John Roberts, now the Court’s anchor and swing Justice, who voted with the majority in 58 of the term’s 60 cases (a 97% clip). Here is your final weekly brief for O.T. 2019.


This Week:
Decisions: 7
Cert Grants: 4 (for O.T. 2020)
GVRs: 5

O.T. 2019:
Cases Decided: 60
Cases Remaining: ZERO
Weeks Left in Term: ZERO


The Court decided two cases Monday morning:

Barr v. American Assn. of Political Consultants, Inc. (AAPC)
Barr v. AAPC concerns an exception to the Telephone Consumer Protection Act of 1991 (TCPA). The TCPA prohibits almost all robocalls to cellphones, but it has a few exceptions. Relevant here is the “government-debt” exception, which permits robocalls that seek to collect debt owed to the federal government (such as student loans and mortgage debts). The AAPC challenged the government-debt exception under the Free Speech Clause, arguing that it favors “debt collection” speech over other kinds of speech. (Savvy readers might recognize this as an argument for a “content-based” restriction on speech.) The AAPC then urged the Court to strike down the entire TCPA under the First Amendment.

The Court met the AAPC halfway. Justice Kavanaugh, writing for six Justices, agrees that the government-debt exception violates the Free Speech Clause. But he elects to sever the exception from the TCPA, leaving the rest of the statute in place (he wrote for seven Justices here). Thus, robocalls to cellphones are still generally illegal, and there is no longer an exception for collecting federal debt.

Kavanaugh begins by trying to square the government-debt exception with the Free Speech Clause—and finds that he can’t. The Clause declares that Congress “shall make no law . . . abridging the freedom of speech.” This means that the government generally “‘has no power to restrict expression because of its message, its ideas, its subject matter, or its content,'” Kavanaugh explains (quoting Police Dept. of Chicago v. Mosley (1972)). Now there are exceptions for certain times, places, and manners of speech. But the Clause generally precludes the government from regulating speech based on its content. In other words, the government may restrict speech based on the place or manner in which it is said, for such a restriction is “content-neutral.” But it almost always cannot restrict speech based on what is said, for such a restriction is “content-based” (exceptions include things like child pornography, true threats, libel, etc.).

Let’s turn to the government-debt exception. It allows robocalls if the call expresses an intent to collect a debt due the federal government, but it bans robocalls if the call expresses something else. “That is about as content-based as it gets,” Kavanaugh asserts. “[T]he law favors speech made for collecting government debt over political and other speech,” and it is therefore a content-based restriction on speech. This conclusion comports with the Court’s precedents. The government-debt exception “draws distinctions based on the message a speaker conveys,” and it “singles out specific subject matter for differential treatment” (Reed v. Town of Gilbert (2015)).

A content-based restriction on speech must pass strict scrutiny to survive. Kavanaugh says the government-debt exception does not, and even the federal government admits it can’t. Sure, “collecting government debt is no doubt a worthy goal,” Kavanaugh offers. But the government “concedes that it has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as political speech, charitable fundraising, issue advocacy, commercial advertising, and the like.”

Thus, Kavanaugh concludes that the TCPA’s government-debt exception violates the First Amendment. Chief Justice Roberts and Justices Thomas, Alito, Sotomayor, and Gorsuch agree with this baseline conclusion. Kavanaugh then goes on to hold that the rest of the TCPA may stand, severing just the exception from the rest of the statute. Roberts, Ginsburg, Breyer, Alito, Sotomayor, and Kagan agree on this point. (Thomas and Gorsuch drop out.)

Justice Sotomayor penned a brief opinion concurring in the judgment. She disagrees with Kavanaugh that all content-based restrictions on speech are subject to strict scrutiny. Some, she argues, need only pass a lesser standard, or “intermediate scrutiny.” That goes for the TCPA’s government-debt exception—but Sotomayor still thinks the exception fails to clear her lower bar.

Justice Breyer, joined by Justices Ginsburg and Kagan, would take Sotomayor’s route and subject the government-debt exception to intermediate scrutiny. However, contra Sotomayor, Breyer would hold that the exception clears that bar. Nevertheless, since Breyer’s conclusion that the exception does not violate the First Amendment did not carry the day (he was outvoted 6:3), he then agrees that the proper remedy for this case is to sever the exception from the rest of the TCPA.

Finally, Justice Gorsuch (joined in part by Justice Thomas) agrees that the government-debt exception violates the First Amendment because it fails strict scrutiny. However, he thinks the proper remedy would be to issue an injunction against the law’s enforcement as applied to the AAPC—not to just toss the exception overboard. An injunction is “the traditional remedy for proven violations of legal rights likely to work irreparable injury in the future,” he writes.

Chiafalo v. Washington
Chiafalo concerns “faithless electors,” or members of the Electoral College who don’t vote for the candidate for whom they pledged to vote. Washington, Colorado, and thirteen other states have laws fining faithless electors. The electors levied a constitutional challenge to those laws, arguing that electors may vote for whomever they please. But Justice Kagan—writing for a unanimous Court—disagreed, concluding that the Constitution gives states wide latitude to dictate how their electors vote. Justice Thomas offered a concurring opinion. For an in-depth review of Chiafalo, see my post here. (Note: Chiafalo was decided along with an identical case, Colorado Dept. of State v. Baca, in which Sotomayor was recused. The vote in Baca was therefore 8:0.)


The Court held no proceedings on Tuesday.



The Court decided two cases Wednesday morning:

Our Lady of Guadalupe School v. Morrissey-Berru
In Morrissey-Berru, Justice Alito—writing for a 7:2 majority—expanded the Court’s “ministerial exception,” which prohibits courts from hearing employment discrimination claims filed by certain employees against their religious employers. Some context is necessary to start.

The Supreme Court has long held that the First Amendment’s religion clauses give churches and other religious organizations the right “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine” (Kedroff v. Saint Nicholas Cathedral (1952)). However, this principle can butt heads with federal anti-discrimination laws, which allow employees to sue their employers in federal court. In 2012 in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, this dichotomy went to the Supreme Court. There, Chief Justice Roberts (writing for a unanimous Court) held that certain “ministerial” employees cannot file federal employment discrimination claims against their religious employers. The Court didn’t set out a rigid test for determining whether an employee qualifies as “ministerial.” It instead looked to the facts of the particular employee’s case, finding that her duties were almost entirely religious in nature and that she had the title of “minister” (hence the name of the exception).

Here in Morrissey-Berru, two teachers who taught at private religious schools filed wrongful termination suits against the schools. Even though the teachers’ titles weren’t “minister,” the churches argued that their duties were sufficiently religious to bar their suits under Hosanna-Tabor.

Justice Alito, writing for a seven-Justice majority, agrees. He emphasizes that the employee’s title is not itself the guidepost for the ministerial exception. Just because an employee has the title of “minister” doesn’t necessarily mean that the employee performs sufficiently religious functions to invoke the ministerial exception. On the other side of the coin, not every religious employer uses “minister” as a title.

What matters “at bottom,” Alito says, is “what an employee does” for his/her employer. He continues: “[I]mplicit in . . . Hosanna-Tabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” Alito stresses that religious education is “vital” to many faiths in the United States, like Catholicism, Protestantism, Mormonism, Judaism, and Islam, to name just a few. Thus, employees whose primary duties include educating their students in the faith fall into the ministerial exception.

Alito argues the two teachers here qualify. They did not teach purely secular subjects and happen to do so at a parochial school. Instead, they “provide[d] instruction about the Catholic faith” and “guide[d] their students, by word and deed, toward the goal of living their lives in accordance with the faith” (citing the record). “They prayed with their students, attended Mass with the students, and prepared the children for their participation in other religious activities,” Alito adds (again citing the record). So even though they did not possess the title of “minister,” “their core responsibilities as teachers of religion were essentially the same.”

Alito thus expands the ministerial exception as it was originally laid out in Hosanna-Tabor. Now, employees with the title of “minister” are not the only ones who are barred from filing employment discrimination suits against their religious employers; employees who are tasked with teaching students in the faith are also barred. Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh join Alito’s opinion.

Justice Thomas, joined by Justice Gorsuch, penned a short concurrence. He fully agrees that the two teachers here are subject to the ministerial exception because of their duty to educate their students in the Catholic faith. Thomas writes separately because he thinks courts should defer to a religious employer’s “good-faith” claims that the employee concerned is “ministerial.”

Justice Sotomayor, joined by Justice Ginsburg, dissented. Sotomayor argues that Alito, in ruling against the two teachers, “skews the facts” and “ignores the applicable standard of review.” She interprets the Court’s decision as “collaps[ing] Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role.” Doing so allows the Court to expand the ministerial exception “far beyond its historic narrowness,” she argues.

Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania
In Little Sisters, Justice Thomas (for a seven-Justice majority) rejected a procedural challenge to the Trump administration’s new rules that broaden religious exemptions for employers from the Affordable Care Act’s contraceptive mandate. Some context is appropriate to start.

The Affordable Care Act (“ACA,” and popularly known as Obamacare), passed by Congress in 2010, requires employers to give their female employees “preventive care and screenings” without “any cost-sharing requirements” (42 U.S.C. §300gg–13(a)(4)). The ACA does not define “preventive care and screenings” and does not give a list of such healthcare services. Instead, Congress delegated that authority to the Department of Health and Human Services, or “HHS” (specifically, HHS’ Health Resources and Services Administration).

Shortly after the ACA’s enactment, the Obama HHS issued a set of rules stating that employers must include all FDA-approved contraceptives as part of women’s “preventive care and screenings.” After receiving concerned comments from religious employers, HHS issued two more rules. First, it exempted churches from the contraceptive mandate. Second, it exempted some—but not all—of the other religious nonprofits, religious for-profit organizations, and religious employers.

Litigation ensued. Religious employers who failed to qualify challenged the rules under the First Amendment and the 1993 Religious Freedom and Restoration Act (RFRA). Two cases made their way to the Supreme Court, wherein the Obama HHS lost once and drew once. The Obama HHS then went about reformatting the rules to better accommodate religious employers’ beliefs while at the same time ensuring women received proper healthcare coverage.

Then the Trump administration took office. In 2017, the Trump HHS sought to issue two new rules that would greatly expand the Obama HHS’ exemptions to the contraceptive mandate. The first rule would broaden the definition of an exempt religious employer to include those that “object[] . . . based on [their] sincerely held religious beliefs” to “establishing, maintaining, providing, offering, or arranging [for] coverage or payments for some or all contraceptive services.” (This is known as the “expansion provision.”) The second rule would declare that even non-religious organizations with “sincerely held moral” objections to contraceptives are exempt from the ACA’s mandate. (This is known as the “conscience exemption.”) The Trump HHS promulgated its proposed two rules in the form of “interim final rules,” or IFRs; received comments on the proposals; and then issued the final versions of the rules in accordance with the comments received.

Pennsylvania (and New Jersey) sued on narrow grounds. It raised two arguments: first, that the Trump HHS does not have the authority to issue the two new rules; and second, that the manner in which HHS issued the two new rules failed to follow the proper procedure under the Administrative Procedure Act (APA). The case percolated through federal courts, reaching the Supreme Court last year.

Justice Thomas, writing for a 7:2 majority, rejects both arguments. Chief Justice Roberts and Justices Breyer, Alito, Kagan, Gorsuch, and Kavanaugh agree.

After recapping the relevant context (which takes up 13 of his opinion’s 26 pages), Thomas addresses each of Pennsylvania’s arguments in turn. Start with the “lack of authority” claim. The relevant provision in the ACA (§300gg–13(a)(4)) reads:

“With respect to women,” “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for . . . such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [HRSA].”

HHS—acting through the HRSA—issued its two new rules under this provision. Pennsylvania argued that the provision allows HHS only to list the services that qualify as “preventive care and screenings,” not exempt certain employers from that list.

But the text of §300gg–13(a)(4) provides no support for such a limit, responds Thomas. The crucial phrase is “as provided for,” and Thomas uses basic dictionary definitions to define it. The resulting definition “grants sweeping authority to [HHS] to craft a set of standards defining the preventive care that applicable health plans must cover,” he writes. What’s more, the text of the provision is completely silent on the manner in which HHS chooses to create those standards. For example, Congress in other statutes has provided lists of services that qualify as “preventive care and screenings,” but it didn’t do so here. Congress in other statutes has required HHS to consult with other actors, but it didn’t do so here. Congress elsewhere in the ACA set out criteria to guide HHS’ selections, but it didn’t even do that here. HHS, Thomas concludes, therefore has “broad discretion” to define “preventive care and screenings” and determine how that definition should be put in place.

Now Thomas turns to Pennsylvania’s argument that HHS failed to follow proper procedure under the APA in promulgating its two new rules. The state’s arguments are rather weak. First, it claimed HHS didn’t follow the APA’s “notice” requirements since HHS titled the document containing its proposed new rules “Interim Final Rules with Request for Comments” and not “General Notice of Proposed Rulemaking.”

Thomas isn’t taken by this argument. Putting “[f]ormal labels aside, the rules contained all of the elements of a notice of proposed rulemaking as required by the APA,” he writes.  The APA sets out three requirements, and HHS’ new rules hit each one. Its proposed rules contained “a statement of the time, place, and nature of public rulemaking proceedings” (5 U.S.C. §553(b)(1)). They “reference[d] the legal authority under which the rule is proposed,” as we saw with §300gg–13(a)(4) above (id., §(b)(2)). And they contained a “description of the subjects and issues involved” (id., §(b)(3)).

Second, Pennsylvania contended that HHS failed to “maintain[] an open mind throughout the [rulemaking] process.” But even if that’s true, counters Thomas, the APA’s procedures contain no such “open-mindedness” requirement. “We have repeatedly stated that the text of the APA provides the ‘maximum procedural requirements’ that an agency must follow in order to promulgate a rule,” he writes (quoting Vermont Yankee Nuclear Power Corp. v. NRDC (1978) and Perez v. Mortgage Bankers Assn. (2015)). Courts thus have no power to second-guess or add to what Congress has already deemed sufficient in the APA. As the Court held in Pension Benefit Guaranty Corp. v. The LTV Corp. (1990), adopting Pennsylvania’s open-mindedness test would flout the “general proposition that courts are not free to impose upon agencies specific procedural requirements that have no basis in the APA.”

Thus, Thomas concludes for seven Justices that (1) HHS had the statutory authority to issue its “expansion provision” and “moral exemption” rules to the ACA’s contraceptive mandate, and (2) HHS followed proper procedure under the APA in doing so.

If your eyes glazed over while reading this summary, I don’t blame you. Decisions on administrative law are not exactly riveting reading material. (Even the Court’s DACA decision last month was an administrative law case.) So it’s no surprise that administrative law decisions don’t make for good news media. That’s why I think some commentators reported not on the Court’s decision itself, but on its potential effects. The Times‘ Editorial Board said the Court “reminded Americans once again that it is no friend to reproductive rights, or to the vast majority of women who will use some form of birth control in their lifetime.” Even U.S. Senators used it to their political advantage, calling the decision “wrong” for “taking away contraceptive care,” or “right” for “letting religious freedom prevail over government overreach.” As a preliminary matter, no judge or Justice is constitutionally permitted to take the effects—practical or political—of a judicial decision into account when deciding a case. That aside, these are pretty blinkered (even caustic) takes on the unsurprising rejection of a flimsy procedural challenge to administrative rulemaking. That’s all the Court’s decision was about: statutory authority and administrative procedure. For those who want even greater protections for religious freedom and for those who want better healthcare coverage for women, lobby Congress and vote in November. The Court deserves no blame.

Justice Alito (joined by Justice Gorsuch) penned a concurrence. He agrees with the majority’s limited holdings, but he would go a bit further. Alito would conclude that RFRA requires HHS to issue the religious exemptions at issue here (or a form of them), thereby bringing the Little Sisters’ “legal odyssey to an end.”

Justice Kagan (joined by Justice Breyer) also penned a concurrence. She also agrees with the majority’s holdings, though she relies on different reasoning. She then brings to light a potential issue that has not yet been raised: whether HHS’ rules are “arbitrary and capricious” under the APA (that is, whether HHS failed to exercise “reasoned decisionmaking” in issuing them). That is an argument Pennsylvania can raise and lower courts may weigh on remand.

Finally, Justice Ginsburg (joined by Justice Sotomayor) dissented. Though her opinion also stresses the effects of the Court’s decision, her argument is quite clear. Congress in the ACA gave female employees a statutory right to comprehensive healthcare coverage. The relevant provision, as we saw above, says that employers “shall . . . provide . . . preventive care and screenings” for women. Next, Ginsburg says the provision tells HHS to decide the types of things to be included in such care and screenings. But HHS went beyond that, she argues. It did not simply determine that contraceptives should be included; it then exempted certain employers from that very type of coverage. This, Ginsburg argues, “undermine[s] Congress’s initial directive,” and HHS has the power to do no such thing.


The Court held an impromptu private (tele-)conference Wednesday afternoon. The Justices reviewed the petitions on their docket and debated whether to grant review for any of them. We likely will not hear any developments on these petitions until after the Court’s summer recess. Some high profile cases the Justices are considering include:

  • Arlene’s FlowersInc. v. Washington. This case is a mirror-image to that of Masterpiece CakeshopLtd. v. Colorado, on whose merits the Court punted in 2018. The questions before the Court are (1) whether a state violates a floral designer’s Free Exercise and Free Speech rights by forcing her to create custom floral arrangements celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.
  • Hunt v. Board of Regents of the University of New Mexico. This is a First Amendment case which asks whether university disciplinary action for off-campus, political speech violates the Free Speech Clause of the First Amendment.
  • McKesson v. Doe. This is a First Amendment case stemming from a Louisiana protest in which some protesters resorted to violence. The question presented is whether the First Amendment bars a state from suing the leader of the protest for criminal negligence where the leader did not necessarily promote or instigate the violence.
  • Reisman v. Associated Faculties of the University of Maine. This case mixes labor unions with the Free Speech Clause of the First Amendment. The question presented is whether it violates the First Amendment to designate a labor union to represent and speak on behalf of public-sector employees who object to its advocacy.


The Court decided its last three cases Thursday morning:

McGirt v. Oklahoma
The Major Crimes Act provides that any “[a]ny Indian” who commits certain crimes within “Indian country” must be tried under federal law, not under the law of the state in which the crime is committed (18 U.S.C. §1153(a)). The question for the Court was whether much of eastern Oklahoma belongs to the Muscogee Creek Nation and has remained “Indian country” since Congress established the land as a reservation for the Creeks in the early 1800s. Justice Gorsuch, writing for a 5:4 majority, answers “yes.”

In an 1833 treaty, Congress set aside a large tract of land for the Creeks in what would later become the state of Oklahoma. An 1856 treaty clarified the nature of the reservation: “no portion” of the Creek lands “shall ever be embraced or included within, or annexed to, any Territory or State,” and the Creeks were to be “secured in the unrestricted right of self-government” with “full jurisdiction” over their members and property. An 1866 treaty reduced the size of the land but formally referred to it as the “Creek Reservation.”

The question to be decided, says Gorsuch, is whether the Creek Reservation ever ceased to be, well, a reservation. That is, has any act of Congress since the 1800s formally dissolved the borders of the Creek Reservation and handed the land over to Oklahoma? It is not enough for Congress to simply suggest doing so or hint at dissolution, adds Gorsuch. Rather, Congress must “clearly express its intent to do so, ‘commonly with an explicit reference to cession or other language evidencing the present and total surrender of all tribal interests'” (quoting Nebraska v. Parker (2016)).

And believe it or not, Gorsuch concludes that Congress never did. Oklahoma put forth a number of arguments, but each come up short. First, Oklahoma cited the Creek Allotment Agreement in 1901, under which the Creek Reservation was Balkanized into individual parcels and then owned by individual Creeks. But that didn’t result in the “‘present and total surrender of all tribal interests’ in the affected lands,” Gorsuch responds. It merely stated that the land within the Creek Reservation could be privately owned by the Creeks living on it. He adds that courts “for years” have rejected the argument that Congressional allotments automatically dissolve reservations (citing Seymour v. Superintendent (1962), Mattz v. Arnett (1973), and Parker).

Second, the 1898 Curtis Act abolished the Creeks’ tribal courts and required that all tribal ordinances be approved by the president. Gorsuch admits that these laws “represented serious blows to the Creeks.” But the Creeks still retained a considerable degree of sovereignty over their reservation, including the power to collect taxes, run schools, and issue tribal legislation.

Third, the 1906 Five Civilized Tribes Act further reduced Creek sovereignty by giving the president the power to remove and replace the Creek’s chief and forbidding the tribal council to meet more than 30 days in a calendar year. But the Act also recognized “the Creek’s ‘tribal existence and present tribal governmen[t]’ and ‘continued [them] in full force and effect for all purposes authorized by law,'” Gorsuch points out.

Despite the litany of statutes that chipped away at true tribal sovereignty, there was “simply . . . no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation,” Gorsuch concludes. Justices Ginsburg, Breyer, Sotomayor, and Kagan agree.

Chief Justice Roberts—joined by Justices Thomas, Alito, and Kavanaugh—wrote his only dissenting opinion of the term, albeit in his trademark mild-mannered style. (Note: he did join Alito’s dissenting opinion in Ramos v. Louisiana.) Roberts argues that Gorsuch used too narrow an inquiry, examining each of the Congressional statutes “in isolation.” Instead, says Roberts, Parker requires courts to “examin[e] the relevant Acts of Congress and ‘all the [surrounding] circumstances,’ including the ‘contemporaneous and subsequent understanding of the status of the reservation.'”

“Our ‘touchstone'” in reservation cases like these is “congressional ‘purpose’ or ‘intent,'” Roberts writes (quoting South Dakota v. Yankton Sioux Tribe (1998)). As laid out in Solem v. Bartlett (1986), this requires a three-step inquiry: consider (1) “the relevant Congressional statutes”; (2) “the historical context and contemporaneous understanding of those statutes”; and (3) “the resulting understanding of the status of the relevant reservation.”

Gorsuch, as we saw, relies on only the first step, deeming it sufficient for concluding that Congress never abrogated the borders of the Creek Reservation. This is misguided, contends Roberts. It eschews “‘examin[ing] all the circumstances surrounding the opening of a reservation'” and “confronting the cumulative import of all of Congress’s actions”—which, Roberts points out, courts are required to do under Hagen v. Utah (1994).

If pure textualist reasoning is in fact the correct approach for cases like this, Roberts says, then “what have we been doing all these years?” Such an approach calls into question “[e]very single one of our disestablishment cases,” including unanimous decisions in Bartlett and Yankton Sioux Tribe.

Justice Thomas penned his own dissent, a short one at only three pages. He agrees with Roberts, but he also contends that the Court has no jurisdiction to review the Oklahoma state court’s judgment below. That judgment rests on an “adequate and independent state ground,” he argues, not on a federal ground (emphasis added).

Trump v. Vance
At long last, the Court weighed in on the release of President Trump’s tax returns. The first case, Trump v. Vance, involved a subpoena from Cyrus Vance, the Manhattan District Attorney, seeking Trump’s personal and corporate financial records as part of a state grand jury investigation. Trump challenged the subpoena, arguing that a sitting president enjoys absolute immunity from state criminal process and, alternatively, that Vance failed to show a “heightened need” for Trump’s tax records. But Chief Justice Roberts, writing for a 7:2 majority, rejected both arguments. A recap of the decision is available elsewhere on this blog.

Trump v. Mazars USA, LLP
The other case concerned a group of subpoenas from three different committees of the U.S. House of Representatives. The House argued it has the authority to subpoena ten years’ worth of Trump’s financial records because it’s possible the information they contain would relate to some legislative purpose. Trump countered that it had no such authority. The real problem, however, is that no party (or court) meaningfully addressed the separation-of-powers issues at play when Congress subpoenas the private documents of a sitting president. Therefore, says Roberts (writing for the same 7:2 majority), the Court will not decide the merits of this case now. Instead, it will remand the case back to the lower court, so that it can address the separation-of-powers concerns.

Roberts begins by underscoring the uniqueness of this case—even within the sparsely-populated field of subpoenas served on presidents. This is the first case ever in which Congress subpoenaed the private documents of a sitting president. “Historically, disputes over congressional demands for presidential documents have not ended up in court,” Roberts notes. “Instead, they have been hashed out in the ‘hurly-burly, the give-and-take of the political process between the legislative and the executive'” (quoting an Office of Legal Counsel Memo from the late Justice Antonin Scalia).

With this in mind, Roberts turns to House’s authority to serve subpoenas. The subpoena power is an “adjunct” to Congress’ power to legislate. Consequently, it comes with several limitations. Broadly speaking, subpoenas must be an exercise of legislative power and not of judicial or executive power, since the Constitution reserves to Congress only the power to legislate. Roberts thus sets out the boundaries for Congressional subpoenas. Such a subpoena is valid only if:

The purpose of a Congressional subpoena cannot be one of “law enforcement,” Roberts reiterates. So, Congress cannot use its subpoena power to “‘try’ someone ‘before [a] committee for any crime or wrongdoing'” (quoting Quinn). And anyone served a Congressional subpoena will “retain their constitutional rights throughout [Congress’] investigation” (citing Watkins).

This paints quite a small picture of Congress’ subpoena power. But Trump argued it should be even smaller, since this case involves a Congressional subpoena for a president’s personal papers. Specifically, Trump urged the Court to adopt the “demonstrated, specific need” standard set out in the Nixon Watergate cases—that is, that Congress must show a “demonstrated, specific need” for presidential documents.

But Roberts demurs. In fact, he argues that Trump’s argument is self-defeating. The fact that Congress is seeking Trump’s personal papers, not any documents related to Trump’s official as duties as President of the United States, is exactly why Congress need not clear that higher bar. It’s true that a president’s official documents and communications—which may be subject to executive privilege—deserve “‘the greatest protection consistent with the fair administration of justice,'” Roberts says (quoting United States v. Nixon (1974)). But that does not hold when the information sought is “private information, which by definition does not implicate sensitive Executive Branch deliberations.” Besides, requiring Congress to clear a higher hurdle where no official documents are concerned would only “imped[e] Congress in carrying out its responsibilities” and give “short shrift” to Congress’ power to legislate, Roberts adds.

But while Trump strikes out, the House proceeds to do the same. The House argued its subpoenas here do indeed “relate to a valid legislative purpose” or “concern a subject on which legislation could be had” (standards we discussed above). But even if that’s true, remember: just because a subpoena meets one of those criteria does not mean the subpoena is automatically constitutional. Those are necessary requirements for constitutionality, not sufficient ones, and the House thus makes the classic logical mistake of conflating necessity with sufficiency.

The House’s reasoning is all the more problematic in this case, Roberts argues, because here it’s the president whose papers are sought. So, Congress must clear not only the “legislation-related” bar identified above; it must clear the separation-of-powers bar too. “Without limits on its subpoena powers,” Roberts explains, “Congress could ‘exert an imperious controul’ over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared” (quoting Alexander Hamilton in The Federalist No. 71). He continues: A “limitless subpoena authority” would empower Congress to “walk away from the bargaining table and compel compliance in court” instead of “negotiating over information requests,” as the political branches are meant to do. And the House’s fallback argument—that it subpoenaed not Trump but the third-party accounting firms that hold his tax returns—makes no difference. “[I]t is, after all,” still “the president’s information.”

Roberts thus ascertains that neither Trump nor the House offered a workable standard for determining whether the subpoenas at issue are constitutional. Trump’s standard would hamstring an already narrow Congressional subpoena power without any legal justification. The House’s standard mistakes a necessary condition for a sufficient one. And both fail to address the weighty separation-of-powers issues that plague a case like this. So, Roberts sets out his own standard, a “balanced” one that requires courts to take “adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the ‘unique position’ of the President” (quoting Clinton v. Jones (1997)).

Roberts’ standard has four prongs. First, courts must “carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers.” If Congress can obtain the information it seeks from other sources besides the president, then it must subpoena the other sources, Roberts says.

Second, courts must “insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.” Doing so mitigates potential conflict between Congress and the president and “serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President” (Cheney v. United States District Court for D.C. (2004)).

Third, courts must “be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose.” In other words, “[t]he more detailed and substantial the evidence of Congress’ legislative purpose, the better.” Roberts adds that this is especially true where the legislation Congress is contemplating raises constitutional issues.

Fourth, courts must “careful[ly] assess the burdens imposed on the President by a subpoena.” As the Court noted in Clinton and in Vance (the other subpoena for Trump’s tax returns, decided just before this case), subpoenas that burden a president’s time and attention—and thus burden his ability to exercise the constitutional duties of his office—are likely invalid.

“Other considerations may be pertinent as well,” Roberts admits, since “one case every two centuries does not afford enough experience for an exhaustive list.” Nevertheless, Roberts’ approach is one that a majority of the Court feels is the proper standard for determining whether a Congressional subpoena served on the president passes constitutional muster. And since the Supreme Court is (almost always) not a court of “first review,” Roberts remands this case back to the D.C. Circuit Court of Appeals (which will remand it to the district court) so that it may apply Roberts’ standard for the first time. As in Vance, Justices Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh join Roberts’ opinion.

Justice Thomas penned a 21-page dissent. In short, Thomas would hold that the Constitution does not give Congress the power to subpoena “private, nonofficial documents” from anyone—president or otherwise—for the purpose of potential future legislation. And if Congress wants to obtain such documents from a sitting president, he argues, it may do so only as part of an impeachment inquiry.

Finally, Justice Alito authored a short, three-page dissent. Alito doesn’t sign on to Thomas’ categorical statement (though he does say Thomas makes a “valuable argument”). Instead, Alito would have the lower courts use a different standard than Roberts’. First, Alito says the House must “provide a description of the type of legislation being considered” that is “sufficient to permit a court to assess whether the particular records sought are of any special importance.” Second, the House must “spell out its constitutional authority to enact the type of legislation that it is contemplating.” And third, the House must “justify the scope of the subpoenas in relation to the articulated legislative needs.” Alito also says the House “should explain why the subpoenaed information, as opposed to information available from other sources, is needed.”


Thursday afternoon, the Court released its last full orders list of the term. The Justices added four cases to next term’s docket. One is Collins v. Mnuchin, a separation-of-powers challenge to the Director of the Federal Housing Finance Agency, who can only be removed by the president for cause. Collins mirrors Seila Law v. CFPB (decided two weeks ago), and I listed it for several weeks as a “high-profile petition” the Justices were considering. The other grants are:

  • AMG Capital Mgmt., LLC v. Federal Trade Commission, which asks whether the FTC has the statutory authority to seek monetary relief, such as restitution, from persons who use unfair or deceptive practices in or affecting commerce.
  • Facebook, Inc. v. Duguid, which asks the Court to clarify the meaning of “automatic telephone dialing system” in the Telephone Consumer Protection Act of 1991 (TCPA). As noted above, this is the second time in as many years that the Court has taken up a TCPA case.
  • Uzuegbunam v. Preczewski, which asks whether nominal damages claims become moot if the defendant, during litigation, changes the policy that gave rise to the claims.

The Court held no proceedings on Friday.

A Look Ahead

The Supreme Court is now on its summer recess. All cases from O.T. 2019 have been decided, and the Court will not resume formal proceedings until the first Monday of this coming October (the start of O.T. 2020). This means that for the next two months and change, the Court will not be releasing any decisions, will not hear oral arguments, will not hold weekly private conferences, and will not release weekly orders. The Court may release a rare summer order at some point.

I will be taking the next few months to study the cases the Court has granted for O.T. 2020, and I will announce in due course the case next term for which I will write my own opinion. At first glance, Collins v. Mnuchin is enticing. Stay tuned.

As for my weekly briefings, they will take a temporary hiatus until the Court begins O.T. 2020. If the Court releases any orders this summer, I will write a short brief discussing any such orders. Once the first Monday of October 2020 rolls around, your weekly briefs and analysis of the action at the Court will resume.

Until then, enjoy your summers. Signing off on a riveting O.T. 2019.

Photo Credits: Bloomberg

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