Formalism Resurgent? Seila Law v. CFPB

The Supreme Court has a new mixed drink: it’s five parts formalism to four parts functionalism, with a splash of Humphrey’s Executor. This new drink was on full display in Seila Law LLC v. CFPB, in which five Justices concluded that Congress violated the separation of powers when it placed limits on the President’s power to fire the CFPB’s director. Those five Justices used what’s called the “formalist” approach, prevailing over the competing “functionalist” approach adopted by the four dissenting Justices. Throughout history, the Court has oscillated between formalism and functionalism, especially in cases involving the President’s power to remove public officials. For the latter half of the 20th century, functionalism appeared to be the dominant approach to removal-power cases—until two recent decisions from the Roberts court. Might formalism now be seeing a resurgence?

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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.

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Presidential Disappointment: Trump v. Vance

In an historic decision yesterday, Chief Justice Roberts held for a 7:2 majority that a sitting president isn’t absolutely immune from a state grand jury subpoena seeking the president’s private documents, and that a state prosecutor need not show a “heightened need” for such documents. It is a resounding legal defeat for President Trump, who had challenged the authority of a state district attorney to subpoena Trump’s personal and corporate financial records. But the decision may be a political win; more likely than not, Trump will be able to stave off the release of his tax records until after the November election. Here is a recap of the Court’s decision in Trump v. Vance.

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Fides et Ratio: Espinoza v. Montana Dept. of Revenue

Fides et ratio, or “faith and reason,” was the penultimate encyclical of Pope John Paul II. He argued that faith and reason do—and must—go hand in hand. Doubtless, among those who would agree with this principle are the Montana parents who sued in Espinoza v. Montana Dept. of Revenue to send their children to parochial schools after winning tax-credit-funded scholarships. At first, the parents lost; the Montana Supreme Court invalidated the entire scholarship program. Last week, however, the U.S. Supreme Court reversed that decision by a 5:4 vote, concluding that it violates the Free Exercise Clause of the First Amendment to strike down the program under a version of the Blaine Amendment in the Montana state constitution. Here’s my analysis.

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July? Julying! Weekly Brief for June 29

For the first time since 1996, the Supreme Court’s term has officially extended into the month of July. The Court decided five cases this week, touching on abortion, free speech, religious liberty, administrative agencies, and copyright law. It also added four cases to next term’s docket, one of which concerns the release of grand jury materials from Special Counsel Mueller’s investigation into Russian meddling in the 2016 election. Here’s a recap of the Court’s busy week.

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A Testament to Precedent: June Medical Services v. Russo

Last Monday, the Supreme Court in June Medical Services, L.L.C. v. Russo struck down a Louisiana abortion law as unconstitutional. Abortion always makes for a blockbuster topic at the high court, but this decision was about as narrow as it could have been. The case hinged entirely on the vote of Chief Justice Roberts, whose opinion rested on an extraordinary application of stare decisis. What does this mean for Louisiana and, more importantly, future abortion cases at the Court? Read more to find out:

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Gorsuch Makes His Mark: Weekly Brief for June 15

Oyez, oyez, oyez!“That is the Marshal’s call, signaling to all that the Supreme Court is in session. Even though the Court is not meeting in person, the Oyezs this week rang loud and clear. The Court handed down two of the term’s biggest decisions. On Monday, Justice Neil Gorsuch held for a six-Justice majority that Title VII of the 1964 Civil Rights Act outlaws workplace discrimination on the basis of sexual orientation and gender identity. And on Thursday, Chief Justice Roberts held for a five-Justice majority that the Trump administration violated the Administrative Procedure Act when it sought to rescind Deferred Action for Childhood Arrivals, or “DACA.” Beyond these firecrackers, the Court also set off some streamers in its Monday orders list, denying a host of high-profile petitions concerning gun rights, qualified immunity, and “sanctuary” laws. In an ordinary week, the Supreme Court’s presence is not felt around the country. But this was no ordinary week. The Court made its mark—starting with Justice Gorsuch.

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Dream On, DACA! DHS v. University of California

Yesterday, Chief Justice Roberts concluded that the Trump administration violated the Administrative Procedure Act when it attempted to rescind Deferred Action for Childhood Arrivals, or DACA. Roberts’ opinion is momentous—both in what it says and in what it does not say. For example, Roberts is coy on whether DACA itself is legal. He concludes only that the manner in which the Trump administration sought to cancel it did not follow the proper administrative procedure. On the other hand, three Justices—Clarence Thomas, Samuel Alito, and Neil Gorsuch—were not shy in saying the opposite, bluntly declaring that DACA is illegal and that there’s no other justification required to terminate it. For now, Roberts’ opinion keeps DACA on the books and its recipients in the country. Their dream remains alive, albeit temporarily. Read more for an in-depth analysis of the Court’s decision in Department of Homeland Security v. Regents of the University of California.

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Litigating Coronavirus: Weekly Brief for May 25

At the outset, this week looked as if it’d be a quiet one; no opinions were expected, and oral arguments wrapped up a few weeks ago. Even this week’s orders list turned out as unremarkable as any. But a series of emergency, coronavirus-related petitions wound up in the Court’s hands. All told, the Court issued rulings on four such petitions, culminating in a 1:00am, Saturday morning decision to reject a California church’s assertion that the state’s stay-at-home orders discriminate against houses of worship (a decision made on a 5:4 vote). So while Court-watchers expected this to be the last “dead-week” before the Court’s term concludes in July, it turned out to be anything but.

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A $12 Billion Tab: Weekly Brief for April 27

The Supreme Court handed down three decisions this week, each one consequential in its own regard. In the only Second Amendment case of the term, six Justices found the case to be, well, no longer a case—in other words, they dismissed it as moot and didn’t opine on the Second Amendment implications (see my in-depth analysis of the decision here [forthcoming]). Next, the Court slapped Congress and the Department of Health and Human Services on the wrist—along with a $12 billion tab due private insurers. Finally, a 5:4 majority barred legislators from copyrighting annotations they write to state laws. Here’s your brief for the week of April 27.

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