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SCOTUS Rules on Abortion, Free Speech, and Separation of Powers

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SCOTUS Rules on Abortion, Free Speech, and Separation of Powers

The United States Supreme Court revealed decisions in three hot cases Monday morning. On June 29, 2020, the High Court ruled a Louisiana law regulating abortions unconstitutional, a law restricting free speech rights of foreign groups funded in part by U.S. taxpayers legal, and, finally, that the head of the Consumer Finance Protection Board must answer to – and be fireable by – by the president of the United States. Chief Justice John Roberts joined the liberals for two of these three decisions. As the justices prepare for their summer break, expect more fresh rulings on Tuesday.

Abortion – June Medical Services v. Russo

One of the most prominent cases this term was June Medical Services v. Russo – or at least it had the potential to be, as it concerned access to abortions. The Supreme Court ruled that Louisiana’s law restricting abortions to those with nearby hospital admitting privileges is unconstitutional. Justice Stephen Breyer was joined by Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Chief Justice Roberts in the ruling. The issue presented in this case had previously been dealt with by the Court – and not long ago, as Liberty Nation reported. “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,” Justice Breyer said. And, since the Court previously ruled that the Texas law had to go, the Louisiana law must join it for the same reasons.

Justice Roberts did not join the reasoning of his brother and sisters on the bench, however.  He ruled against Louisiana for the primary purpose of maintaining “stare decisis,” or the legal principle that gives great weight to previous decisions, writing:

“Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh all dissented from the opinion of the Court and all filed separately written dissents. While these Justices are thought to be proponents of ending abortion and overturning Roe v. Wade, they wrote mostly about the significant process-based issues that would have prevented June Medical from winning. One of those arguments is that the legislature passed the law, in part, to protect women who seek abortions from providers who are insufficiently prepared for possible complications. June Medical performs abortions, and this argument says they can’t sue here because they are the ones the law acts against, not women seeking abortions.

Justice Alito wrote:

“[T]he 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

Separation of Powers – Seila Law v. Consumer Financial Protection Bureau

Seila Law is a consumer debt-relief company that does not wish to be regulated by the Consumer Financial Protection Bureau (CFPB). Seila sued after the CFPB investigated it and its telemarketing practices. The company argued that the CFPB itself was not a validly constituted legal entity; therefore, it had no right to regulate Seila. The CFPD was created in 2010 under the Dodd-Frank Act as a response to the 2008 financial crisis. It’s headed by a single director, who is appointed by the president and confirmed by the Senate to serve a five-year term. The law says the rule that the director may only be removed for inefficiency, neglect, or malfeasance violates the separation of powers. There are two questions presented for the Court: Does that provision constitute a violation of the separation of powers, and, if so, what of the decade of work and decisions the CFBP has already completed?

Chief Justice Roberts wrote the decision, joined in most part by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Roberts said, “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.” And that was too much executive power to not be under the control of the executive. The Court ruled:

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.

Justice Kagan wrote in dissent about the main issue of whether the CFPB’s structure was allowed by the Constitution, and in agreement with the severability issue. She and her fellow liberals – Ginsburg, Breyer, and Sotomayor – argued that the rest of the CFBP need not be thrown out with the bathwater. The provision regarding the director’s supervision is not allowed, but the rest of the bureau and its work will be unaffected.

Free Speech – Agency for Int’ l Development v. Alliance for Open Society

When Congress passed a funding measure that to fight HIV/AIDS abroad, the law required organizations that got the money to “have a policy explicitly opposing prostitution and sex trafficking.” That was held to violate the free speech rights of those organizations in 2013. Justice Roberts then wrote that the law “requires them to pledge allegiance to the Government’s policy of eradicating prostitution. That condition on funding violates the First Amendment.” He was joined at the time by Justices Kennedy, Ginsburg, Breyer, and Sotomayor. Justice Scalia dissented from that ruling, joined by Justice Thomas. Justice Kagan recused herself.

The new ruling has to do with whether the funding restriction can be applied to organizations outside the United States. It can. The Court ruled 5-4 that foreign organizations operating abroad do not possess rights under the U. S. Constitution and so the compelled speech required by the law is legal as applied to them. The majority rejected the claim “that because a foreign affiliate’s policy statement may be attributed to them, American organizations themselves possess a First Amendment right against the Policy Requirement’s imposition on their foreign affiliates.” Justice Kavanaugh wrote for the Court and was joined by Justices Roberts, Alito, Gorsuch, and Thomas.

Justice Kagan recused herself again from the case, and Justice Breyer wrote in dissent, joined by Justices Ginsburg and Sotomayor. The dissenters would uphold the argument that both domestic organizations and their foreign associates should be protected by the First Amendment. They would hold that such a restriction equals compelled speech in violation of the Constitution. Breyer said, “I fear the Court’s decision will seriously impede the countless American speakers who communicate overseas in a similar way.”

The United States Supreme Court still has many significant cases left to decide before they break for the summer. The Court has traditionally concluded its work by July 1, but the Senate trial of President Trump, combined with the COVID-19 restrictions, may see them extend their work. Still undecided are cases about faithless electors in the electoral college, as well as who can get access to Trump’s taxes.


Read more from Scott D. Cosenza.

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