The Supreme Court suspended oral arguments this week due to concerns about the spread of the coronavirus, but just before its hiatus, the Court heard two of the most anticipated cases of the term: June Medical Services LLC v. Russo, the first major abortion case the Court has heard since 2016, and Seila Law LLC v. Consumer Financial Protection Bureau, a lawsuit over the constitutionality of the leadership structure of the Consumer Financial Protection Bureau (CFPB) that raises questions about presidential power.
Advocates involved in both of those cases, argued the first week of March, recently joined host Jeffrey Rosen on We the People. They recapped the arguments on both sides of the cases, predicted their likely outcomes, and explored their potential impact. Here are some highlights from those conversations, and background on these key cases.
June Medical Services LLC v. Russo
The June case, argued on March 4, is a challenge to the Louisiana Unsafe Abortion Protection Act. That law requires doctors performing abortions to have “admitting privileges”—the ability to admit patients to a hospital within 30 miles of where the procedure takes place.
Because this case largely turns on the facts surrounding admitting privileges—including whether they actually promote women’s health and safety, or, instead, represent a veiled attempt to limit abortion access—that was the crux of the debate between Julie Rikelman and Catherine Glenn Foster on last week’s episode of We the People. Rikelman, litigation director at the Center for Reproductive Rights, argued this case on behalf of the abortion providers at June Medical Services. Foster, president of Americans United for Life, co-authored an amicus brief on behalf of Members of Congress on the opposing side.
Rikelman reiterated her Supreme Court argument in asserting that admitting privileges are medically unnecessary.
“What I said to the court in answer to Justice Roberts’ and Justice Kavanaugh’s questions was: Perhaps the burdens of a law could change a bit state by state, but these laws have no benefits,” Rikelman said. “They do nothing for women's health, and so the burdens that they impose on access are unconstitutional.”
Rikelman cited findings by the American Medical Association and the American College of Obstetricians and Gynecologists in making that point.
“Every major medical organization in the United States has come out against these laws, saying that all they do is hurt women’s health rather than help them,” she said. “Only anti-abortion politicians have supported these laws, not medical professionals . . . These laws have nothing to do with protecting women’s health and safety. They're about closing down access to abortion.”
Foster disagreed, expressing her support for laws requiring admitting privileges.
“What we need is a way to ensure that women are getting the emergency care that we deserve,” Foster said. “This case is simple: it's about whether states are allowed to protect the health and safety of their citizens with common sense protections that are commonplace for almost all other medical providers.”
Rikelman countered that admitting-privileges laws actually single out abortion providers for “regulation that isn’t applied to other types of physicians.”
Rikelman and Foster also discussed how the June case might square with the precedent set by the Court in its last major abortion case—Whole Woman’s Health v. Hellerstedt (2016). Hellerstedt struck down a Texas law that contained several provisions. One was a requirement that any physician performing an abortion have admitting privileges at a hospital within 30 miles of where the abortion was performed. The law also required that all abortion clinics comply with standards for ambulatory surgical centers.
In deciding that case, the Court reaffirmed the “undue burden” standard—that abortion laws should not place an undue burden on women seeking a legal abortion—set by Planned Parenthood of Southeastern PA v. Casey (1992).
Foster argued that that standard is too vague:
"I would say certainly that the Supreme Court's ruling in Whole Woman’s Health was confusing. It was unworkable, and it was a complete failure as an objective legal standard. The whole reason that June Medical Services is even being heard by the Supreme Court is because the court has not provided clarity on what their decision in Whole Woman’s Health means for states who do wish to pass common sense health and safety standards. And so we implored the court to provide clarity and urge the court to allow states to protect the citizens under their jurisdiction, by passing common-sense health and safety protections.”
She added, however, that “finding that Louisiana’s law is constitutional does not require overturning Hellerstedt” and “it is entirely possible that the court could uphold this law without touching Hellerstedt.”
Rikelman, in contrast, argued that the Louisiana law “is identical to the Texas law and it was modeled on it,” and thus should be overturned. She emphasized that the aim of both laws was to close down abortion clinics, and that the likely impact of the Louisiana law would be that only one abortion provider would remain open, in New Orleans, to service the entire state.
The fate of the Louisiana law will likely be decided by the Supreme Court this summer.
Seila Law LLC v. Consumer Financial Protection Bureau
The Supreme Court may also soon decide whether the leadership structure of the Consumer Financial Protection Bureau is constitutional, when it rules in Seila. Following the March 3 oral argument in that case, Richard Cordray, the first Director of the CFPB from 2012-2017 who supports the bureau, and Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and author of an amicus brief supporting Seila Law, joined Rosen on We the People.
Cordray shared his firsthand experience with the CFPB, a regulatory agency responsible for consumer protection in the financial sector that aims to “protect people in the marketplace,” as Cordray put it. When the CFPB was formed, its director was granted a degree of independence from the president. The CFPB head can only be fired “for cause,” meaning only for wrongdoing, not for a policy disagreement. That leadership structure and other aspects of the CFPB have been controversial for some time.
“There was a cloud hanging over the new agency from the very beginning when it was created in 2010—questions about its constitutionality, questions about the structure of the agency,” said Cordray. He added that those questions led Republican senators to block his confirmation for almost two years after he was nominated by President Obama. With the next administration, he said the controversy escalated.
“After President Donald Trump was elected in November 2016, I held over for almost a year after that and was obviously, in many respects, out of step with the new administration,” Cordray said. “So it really cast into stark relief this issue of whether an agency of this kind can be independent of the president’s direction.”
That question is at the heart of the Seila case, which asks whether the restriction on firing the CFPB director violates presidential power and the separation of powers, and, if so, can it be struck down without invalidating the entire Dodd-Frank Act, which created the CFPB?
Though the case might seem a bit technical, Shapiro called it one of the “top lines” of the term. He and Cordray both attributed the buzz surrounding the case, in some part, to different causes.
Cordray partially attributed it to an appreciation of the importance of the CFPB’s work amongst the American public. In the wake of the financial crisis, the agency drafted new rules in an effort to safeguard the mortgage market against another meltdown. Cordray also led efforts to rein in big banks including Wells Fargo, payday lenders, and debt collectors during his tenure.
Shapiro suggested the case has been given so much attention because it raises and reflects larger questions about how executive branch agencies function, and whether they are responsive enough to the president and to voters.
“People are recognizing, whatever your political persuasion, that, Washington is really powerful and . . . this is a major agency, and how other agencies are structured is really, really important,” he said. “Generally there’s a concern about agencies that are not accountable to the people, are not accountable to the political branches."
He also emphasized the concerns over separation of powers and presidential powers that he says are raised by this case.
"Whether you have a ‘drain the swamp’ kind of attitude supporting President Trump or kind of more conventional constitutional conservative concerns about Congress delegating powers or creating institutions that are separate from the original structures of the Constitution as we understand them—I think these are various serious concerns," Shapiro said. "There’s a constitutional crisis of sorts because if the CFPB is part of the executive branch [and the president can’t fire them], then the president is prevented from faithfully executing the laws, as he sees them.”
Cordray responded by pointing out what he said are some important checks on the CFPB.
“These overheated claims that the director of the [CFPB] or these independent agencies can do anything they want and are uncontrolled is just to blink away reality. In fact, the agencies are always subject to Congress. If Congress doesn’t like what they’re doing, it can overturn their regulations, as has been done from time to time," he said. "Second, anything they do is subject to challenge in the courts. The fact that this case is in front of the United States Supreme Court is a reaffirmation that the bureau is not uncontrolled.”
In addition to challenging the CFPB’s leadership structure, the Seila case also raises questions about key precedent which Shapiro and Cordray discussed as well. They debated the merits of two relevant cases about presidential appointments: Myers v. United States (1926) and Humphreys Executor v. United States (1935).
In Myers, the Supreme Court ruled that the power to remove appointed officers is vested in the president alone, and to deny him that power would prevent him from discharging “his own constitutional duty of seeing that the laws be faithful executed,” as Chief Justice William Howard Taft wrote in his opinion. But in Humphreys Executor, Justice George Sutherland on behalf of a unanimous Court —while not directly overruling Myers because he said it was not applicable to the situation at hand—asserted that the Constitution had never given the president “illimitable Power of removal” over agency heads. To do so, according to Sutherland, would violate separation of powers.
Shapiro said he hopes Humphreys will either be overturned, or be clarified to ensure that the president retains control over the appointment and removal of executive branch officials. Cordray, on the other hand, drew a distinction between those powers—saying that, while the president has broad appointment powers, the Constitution does not grant the president sole removal powers.
Cordray and Shapiro both agreed, however, that the justices will likely be split in terms of their opinions on Humphreys and on whether to overturn the CFPB’s leadership structure. They predicted that the Court will issue multiple opinions in Seila.
A decision is expected sometime this summer, should the Court be able to resume business as usual soon.
