Supreme Court October Term 2019: A Review of Selected Major Rulings

Supreme Court October Term 2019: A Review of Selected Major Rulings

Supreme Court October Term 2019:
September 4, 2020
A Review of Selected Major Rulings
Valerie C. Brannon,
The Supreme Court term that began on October 7, 2019 was one of the most eventful in recent
Coordinator
history. The Coronavirus Disease 2019 (COVID-19) pandemic colored much of the Court’s
Legislative Attorney
work, leading the Court to close its building to the public indefinitely, postpone oral arguments

originally scheduled for March and April of 2020, and, for the first time in history, telephonically
Jared P. Cole
conduct oral arguments in roughly a dozen cases over two weeks in May 2020. The Court, which
Legislative Attorney
typically recesses for the summer in late June, continued to issue opinions through the second

week of July 2020 because of delays caused by the pandemic. And substantively, the October
2019 Term included the Court issuing several orders concerning litigation over various state-
Todd Garvey
government responses to the pandemic.
Legislative Attorney

Beyond the effects of the pandemic, the October 2019 Term was notable because the Court
Mainon A. Schwartz
issued a host of significant decisions. Of particular note for Congress’s work, the Court’s term
Legislative Attorney
included these opinions:


Jon O. Shimabukuro
Bostock v. Clayton County, holding that an employer who fires an individual for being
Legislative Attorney
gay or transgender violates Title VII of the Civil Rights Act of 1964;

 Espinoza v. Montana Department of Revenue, ruling that Montana violated the Free
Exercise Clause by excluding religious schools from a program aiding private schools;

 June Medical Services LLC v. Russo, striking down a Louisiana law requiring abortion
providers to obtain admitting privileges at a local hospital;
 McGirt v. Oklahoma, holding that a large portion of Northeastern Oklahoma reserved for the Creek Nation
remains “Indian country” for purposes of the Major Crimes Act;
 Seila Law v. Consumer Financial Protection Bureau (CFPB), holding that the CFPB’s leadership
structure—a single director who could only be removed from office for cause—violated separation-of-
powers principles; and
 Trump v. Mazars, holding that adjudication over a congressional demand for certain presidential
documents must consider unique separation-of-powers concerns implicated by such a demand.
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Contents
Civil Rights and Employment Law .................................................................................... 2
Bostock v. Clayton County.......................................................................................... 2
Freedom of Religion........................................................................................................ 7
Espinoza v. Montana Department of Revenue ................................................................ 7
Abortion ...................................................................................................................... 11
June Medical Services LLC v. Russo .......................................................................... 11
Indian Law: Treaty Interpretation and Reservation Status .................................................... 16
McGirt v. Oklahoma ................................................................................................ 16
Separation of Powers ..................................................................................................... 21
Seila Law v. Consumer Financial Protection Bureau ..................................................... 21
Access to Personal Presidential Records ........................................................................... 27
Trump v. Vance ....................................................................................................... 28
Trump v. Mazars USA, LLP ...................................................................................... 30

Tables

Table A-1. Cases the Court Heard During the October 2019 Term......................................... 36
Table A-2. Per Curiam Opinions Issued by the Court without Oral Argument as of
September 8, 2020 ...................................................................................................... 49

Appendixes
Appendix. Supreme Court’s October 2019 Term ................................................................ 36

Contacts
Author Information ....................................................................................................... 50

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he Supreme Court term that began on October 7, 2019 was one of the most eventful in
recent history.1 The Coronavirus Disease 2019 (COVID-19) pandemic colored much of the
T Court’s work.2 The pandemic resulted in the Court indefinitely closing its building to the
public, postponing oral arguments original y scheduled for March and April of 2020, and, for the
first time in history, telephonical y conducting oral arguments in roughly a dozen cases over two
weeks in May 2020.3 The Court, which typical y recesses for the summer in late June, continued
to issue opinions through the second week of July 2020 because of delays caused by the
pandemic.4 And substantively, the October 2019 Term included the Court issuing several orders
concerning litigation over various state-government responses to the pandemic.5
Beyond the effects of the pandemic, the October 2019 Term was notable because of the
substantive opinions that the Court issued throughout the term.6 During the term, the Court issued
a host of decisions that define the limits of Congress’s powers vis-à-vis the President,7 as wel as
several opinions concerning the role of government with respect to religion,8 abortion rights,9
tribal lands,10 and the scope of federal civil rights protections for gay and transgender workers.11
This report provides an overview of these opinions, including a discussion of their broader
implications for Congress. In the Appendix to the report, Table A-1 and Table A-2 provide brief
summaries of al of the Court’s written opinions issued during the October 2019 Term.

1 See J. OF THE SUPREME COURT OF THE UNITED STATES 1 (Oct. 7, 2019), https://www.supremecourt.gov/orders/journal/
Jnl19.pdf.
2 See Adam Liptak, In a Term Full of Major Cases, the Supreme Court Tacked to the Center, N.Y. T IMES (July 10,
2020), https://www.nytimes.com/2020/07/10/us/supreme-court -term.html (discussing the pandemic’s effect on the
October 2019 T erm); see also Mark Sherman and Jessica Gresko, Thom as Spoke, Roberts Ruled in Unusual Suprem e
Court Term , ASSOCIATED PRESS (July, 10, 2020), https://apnews.com/2e55337e5aa46ce2c60a47212d2b5216 (exploring
how the “coronavirus outbreak change[d] things at the Supreme Court”); Joan Biskupic, Chief Justice Roberts Gave
Everyone Som ething to Call a Win, CNN (July 9, 2020), https://www.cnn.com/2020/07/09/politics/john-roberts-
supreme-court/index.html (“ All told, the decisions culminated an unprecedented term marked by the coronavirus
pandemic, national strife and myriad cases involving the T rump agenda. ”).
3 See COVID-19 Announcements, Supreme Court of the United States,
https://www.supremecourt.gov/announcements/COVID-19.aspx (last visited Sept. 4, 2020).
4 See Liptak, supra note 2 (observing that while the Court “t ypically ends its term in late June,” “this year it issued its
last decisions in July, which has not happened since 1996 ”).
5 See, e.g., S. Bay United Pentecostal Church v Newsom, 140 S. Ct. 1613 , 1613 (2020) (denying, by a 5-4 vote, a
request to enjoin the Governor of California’s executive order limiting attendance at places of worship); Republican
Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1206 (2020) (per curiam) (staying a lower court order
prompted by the pandemic to count absentee ballots postmarked after April 7, 2020, the date of a Wisconsin election);
see generally Stephen Wermiel, SCOTUS for Law Students: COVID-19 and Suprem e Court
Em ergencies, SCOT USBLOG (May. 19, 2020, 2:45 PM), https://www.scotusblog.com/2020/05/scotus-for-law-students-
covid-19-and-supreme-court -emergencies/.
6 See Liptak, supra note 2 (“T he term, which ended T hursday, included rulings that will be taught to law students for
generations . . . .”).
7 See supra “Seila Law v. Consumer Financial Protection Bureau”; “Trump v. Mazars USA, LLP.”
8 See supra “Espinoza v. Montana Department of Revenue.”
9 See supra “June Medical Services LLC v. Russo.”
10 See supra “McGirt v. Oklahoma.”
11 See supra “Bostock v. Clayton County.”
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Civil Rights and Employment Law
Bostock v. Clayton County12
In perhaps the most notable opinion of the past term, the Supreme Court issued a decision
consolidated under the title of Bostock v. Clayton County concerning a series of lawsuits brought
by gay and transgender workers.13 These workers al eged that their employers fired them because
of their sexual orientation or gender identity and, in doing so, violated Title VII of the Civil
Rights Act of 1964 (Title VII) by discriminating against them “because of . . . sex.”14 In a ruling
that wil have implications beyond Title VII, the Bostock Court held by a 6-3 vote that Title VII
forbids employers from firing an employee for being gay or transgender.15
Background: Title VII prohibits employment discrimination on several different bases, including
barring covered employers from discriminating against individuals “because of . . . sex.”16 The
statute does not explicitly specify whether that prohibition applies to discrimination based on
someone’s sexual orientation or gender identity, although Congress has considered bil s that
would do so.17 The Supreme Court has previously interpreted the statute’s prohibition as more
expansive than just a general bar on employers treating members of one sex different from
members of another sex.18 For instance, in Price Waterhouse v. Hopkins, a four-Justice plurality
recognized that treating an employee differently because she failed to conform to stereotypes
about how women should behave qualified as unlawful discrimination under Title VII.19 And in
Oncale v. Sundowner Offshore Services, Inc., the Court held that a male victim of sexual
harassment by other men could bring a Title VII claim.20
In recent years, the question of whether Title VII prohibits employment discrimination based on
sexual orientation has split lower federal courts.21 Likewise, courts have reached divergent
conclusions about whether Title VII protects transgender employees from employment
discrimination.22

12 Jared P. Cole, CRS Legislative Attorney, authored this section of the memorandum.
13 See Zarda v. Altitude Express, Inc., 883 F.3d 100, 108 (2d Cir. 2018) (en banc); Equal Employment Opportunity
Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 574–75 (6th Cir. 2018); Bostock v. Clayton Cnty.
Bd. of Commissioners, 894 F.3d 1335 (11th Cir. 2018 ) (en banc) (denying rehearing en banc).
14 42 U.S.C. § 2000e-2(a)(1).
15 Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020).
16 42 U.S.C. § 2000e-2(a)(1).
17 Id. See Equality Act, H.R. 5, 116th Cong. (2019).
18 T itle VII authorizes employers to make employment decisions based on sex when doing so is a “bona fide
occupational qualification reasonably necessary to the normal operation” of employment. 42 U.S.C. § 2000e-2(e).
19 Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51 (1989).
20 Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998).
21 Compare Zarda v. Altitude Express, Inc., 883 F.3d 100, 108 (2d Cir. 2018) (en banc) (ruling that “sexual orientation
discrimination is a subset of sex discrimination,” and that “[s]exual orientation discrimination is also based on
assumptions or stereotypes about how members of a particular gender should be, including to whom they should be
attracted”), and Hively v. Ivy T ech Cmty. Coll. of Indiana, 853 F.3d 339, 341 (7th Cir. 2017) (en banc) (“[W] e
conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination.”) , with Evans v.
Georgia Reg’l Hosp., 850 F.3d 1248, 1257 (11th Cir. 2017) (ruling that T itle VII does not recognize discrimination
claims based on sexual orientation and declining to recognize a claim under the sex -stereotyping theory of Price
Waterhouse).
22 Compare Equal Emp. Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 574–75 (6th
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Bostock concerned three consolidated cases, the first two of which centered on whether Title VII
bars discrimination based on someone’s sexual orientation. In Zarda v. Altitude Express, Inc., an
en banc panel of the Second Circuit23 held that Title VII prohibits discrimination based on an
employee’s sexual orientation on three different grounds.24 First, the lower court concluded that
“because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is
attracted,” discriminating on the basis of sexual orientation necessarily takes sex into account.25
Second, drawing upon Price Waterhouse, the Second Circuit reasoned that decisions based on
sexual orientation inappropriately rely on “assumptions or stereotypes about how members of a
particular gender should be.”26 And third, the lower court maintained that such discrimination is
associational discrimination akin to prohibited discrimination against employees in interracial
relationships.27 In contrast, in Bostock v. Clayton County, the Eleventh Circuit denied rehearing en
banc in a case that dismissed a Title VII claim brought by a gay man, relying on prior circuit
precedent holding that Title VII does not prohibit sexual orientation discrimination.28 In the
underlying decision, the court noted that it had previously rejected the argument that the Supreme
Court’s decisions in Price Waterhouse and Oncale supported a cause of action al eging sexual
orientation discrimination.29
The third case, a decision by the Sixth Circuit in EEOC v. R.G. & G.R. Harris Funeral Homes,
Inc., ruled that an employer’s termination of an employee for being transgender violated Title VII
on two separate bases.30 First, the lower court held that the firing was based on sex stereotypes
about gender norms in violation of the rule of Price Waterhouse.31 Second, the Sixth Circuit
concluded that discrimination based on someone’s transgender status is itself a per se violation of
Title VII because: (1) it is “analytical y impossible” to fire someone based on their transgender
status without being motivated in part by their sex; and (2) “discrimination against transgender
persons necessarily implicates Title VII’s proscriptions against sex stereotyping.”32
The Supreme Court granted the petition for certiorari in the first two cases, Altitude Express and
Bostock, on whether discrimination based on sexual orientation amounts to discrimination
because of sex under Title VII.33 The Court also granted the petition for certiorari in Harris
Funeral Homes on whether Title VII prohibits discrimination against transgender individuals
based on (1) their status as transgender; or (2) as a form of sex stereotyping under Price

Cir. 2018) (recognizing that transgender employees may bring T itle VII claims under the sex stereotyping theory of
Price Waterhouse and holding that “ discrimination on the basis of transgender and transitioning status violates T itle
VII”), with Etsitty v. Utah T ransit Auth., 502 F.3d 1215, 1222 (10th Cir. 2007) (concluding that transgender people
“are not a protected class under T itle VII”).
23 For purposes of brevity, references to a particular circuit in this memorandum (e.g., the Second Circuit) refer to the
U.S. Court of Appeals for that particular circuit (e.g., the U.S. Court of Appeals for the Second Circuit).
24 Altitude Express, 883 F.3d 100, 131 (2d Cir. 2018) (en banc).
25 Id.
26 Id.
27 Id.
28 Bostock v. Clayton Cnty. Bd. of Commissioners, 894 F.3d 1335 (11th Cir. 2018 ) (en banc) (denying rehearing en
banc).
29 Bostock v. Clayton Cnty. Bd. of Commissioners, 723 F. App’x 964, 964–65 (11th Cir. 2018).
30 Equal Emp. Opportunity Comm’n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 574–75 (6th Cir.
2018).
31 Id. at 572.
32 Id. at 575.
33 Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1738 (2020).
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Waterhouse.34 The Court’s final decision in Bostock consolidated al three of these cases in a
majority opinion written by Justice Gorsuch.35 Justice Alito, joined by Justice Thomas, issued a
dissenting opinion;36 and Justice Kavanaugh authored a separate dissent.37
Supreme Court’s Decision: Justice Gorsuch’s majority opinion focused on Title VII’s text and
its ordinary meaning to conclude that Title VII’s prohibition of discrimination “because of . . .
sex” extends to discrimination based on sexual orientation or gender identity.38 In reaching that
result, the Court made several preliminary observations. First, Title VII’s language, the Court
explained, incorporates the “but-for” standard of causation: if an outcome would not have
occurred without, or “but-for,” the purported cause, causation is established.39 As Justice Gorsuch
observed, there can be multiple but-for causes of the same event. The majority opinion gave an
example: if a car crash occurred both because a defendant ran a red light and because a plaintiff
failed to signal, both mistakes qualify as but-for causes.40 Under Title VII, as long as sex is one
factor that was the cause of the discrimination, il icit sex discrimination has occurred. It does not
matter, the Court explained, if an employer also considered factors other than sex in making the
employment decision, so long as sex remained a but-for cause of that decision.41
Second, the Court emphasized that Title VII’s prohibition against discrimination is focused on
discrimination against individuals, rather than different treatment across groups.42 That is, the law
prohibits discrimination against a single employee even if an “employer treated women as a
group the same when compared to men as a group.”43 The focus on individuals means an
employer cannot successfully defend its discrimination simply because both sexes were subject to
the same discriminatory policy.44
Applying that analysis to the three cases, the Court ruled that discriminating against an employee
based on sexual orientation or gender identity constituted discrimination based on sex in violation
of Title VII. The Court reasoned that it is impossible to act on either basis without considering
sex.45 As an example, Justice Gorsuch pointed to a situation where two employees, a man and a
woman, are attracted to men.46 If an employer fires the man for being attracted to men, but not the
woman who is also attracted to men, in the view of the majority, the employer has discriminated

34 R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Emp. Opportunity Comm’n, 139 S. Ct. 1599 (2019).
35 Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737–54 (2020).
36 Id. at 1754 (Alito, J., dissenting)
37 Id. at 1822 (Kavanaugh, J., dissenting).
38 Id. at 1738–43 (majority opinion).
39 Id. at 1739.
40 Id.
41 Id. T he Court has applied a different causation standard for T itle VII cases in the past. See Price Waterhouse v.
Hopkins, 490 U.S. 228, 250–51 (1989) (“ To construe the words ‘because of’ as colloquial shorthand for ‘but -for
causation,’ as does Price Waterhouse, is to misunderstand them.”). T he majority opinion also noted that Congress
amended T itle VII (and partially superseded Price Waterhouse) to provide an alternative “ motivating factor” standard.
Civil Rights Act of 1991, § 107, 105 Stat. 1075, codified at 42 U.S.C. § 2000e–2(m). Applying that standard, liability
can sometimes attach “ even if sex wasn’t a but -for cause of the employer’s challenged decision,” but the Bostock
majority believed it unnecessary to resolve the case under t his more lenient standard for establishing liability. Bostock,
140 S. Ct. at 1739–40.
42 Bostock, 140 S. Ct. at 1740.
43 Id. at 1741.
44 Id. at 1744.
45 Id. at 1741.
46 Id.
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against him for traits the employer tolerates in a woman.47 For the Court, the employee is singled
out in part because of his sex—a but-for cause of the discrimination.48 Likewise, the Court
observed, if an employer fires a transgender man (assigned female gender at birth who now
identifies as a man) for being transgender, the employer penalizes that person for being assigned
the female gender at birth for traits that it would tolerate in a person assigned the male gender at
birth.49
The majority opinion, while acknowledging the potential implications of the Court’s decision for
other areas of the law, such as other statutes that prohibit discrimination based on sex, as wel as
for religious liberty claims under the Constitution, declined to examine the application of its
reasoning to circumstances outside the cases before it.50 In doing so, it rejected the argument that,
because the legislative authors of Title VII likely did not anticipate that the statute prohibited
discrimination based on sexual orientation or gender identity, Title VII should not be interpreted
to do so.51 The Court ruled that the plain meaning of Title VII controlled, irrespective of the
principal goals of its congressional authors.52
Dissenting Opinions: Justice Alito’s dissenting opinion, which Justice Thomas joined, claimed
that the majority was functional y legislating through the guise of a judicial decision. His opinion
argued that discrimination based on sexual orientation or gender identity does not necessarily rely
on “sex,” because one could do so without considering a person’s sex at al .53 For instance, he
reasoned, an employer could have a blanket policy of not hiring gay or transgender people, no
matter their biological sex.54 He argued that virtual y no one in 1964 would have understood the
statute to prohibit discrimination on the basis of sexual orientation or gender identity.55 Justice
Alito concluded his dissent by highlighting arenas in which the Court’s reasoning would have
“far-reaching consequences.”56 He argued, among other things, that the Court’s holding wil
“threaten freedom of religion, freedom of speech, and personal privacy and safety.”57 For Justice
Alito, given these potential policy consequences and given Title VII’s silence on sexual
orientation or gender identify, whether Title VII bars discrimination on these bases should be the
product of legislative deliberation, rather than judicial construction.58
Justice Kavanaugh’s dissent similarly criticized the majority opinion for judicial y amending the
text of Title VII.59 He contended that the majority relied on a “literalist” reading of the statute, an
approach that conflicted with the ordinary meaning of “discriminate because of sex,” which
Justice Kavanaugh argued was not commonly understood to encompass discrimination related to
sexual orientation or gender identity.60 He also stressed that while he rejected the Court’s attempt

47 Id.
48 Id.
49 Id.
50 Id. at 1753–54.
51 Id. at 1749.
52 Id.
53 Id. at 1758–59 (Alito, J., dissenting).
54 Id.
55 Id. at 1755
56 Id. at 1778.
57 Id.
58 Id.
59 Id. at 1822–23 (Kavanugh, J., dissenting).
60 Id. at 1824–25.
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to rewrite the statute as beyond the proper role of the judiciary, he admired the hard work of gay
and lesbian Americans to achieve equal treatment under the law and agreed that as a policy matter
they should not be treated as outcasts or inferior.61
Implications for Congress: The Court’s decision wil have important effects for mil ions of
employees across the country as Title VII applies to employers with 15 or more employees.62 And
as both the majority and dissenting opinions appeared to acknowledge, Bostock could have
important implications for other statutory and constitutional provisions.63 For instance, Title VII
contains an exception permitting sex discrimination when sex is a “bona fide occupational
qualification [(BFOQ)] reasonably necessary to the normal operation” of employment.64 Courts
have already wrestled with the circumstances in which sex is a BFOQ necessary to the operations
of a business; they may now need to determine how Bostock applies in those circumstances.65 In
addition, courts have in the past examined the interplay between Title VII’s general requirements
and its exemptions for religious entities66 and the Constitution’s provisions protecting religious
liberty.67 Courts wil likely be asked to apply Bostock in similar situations. Likewise, because
Title VII and Title IX of the Education Amendments of 1972 both prohibit discrimination based
on sex, courts often draw on Title VII to interpret Title IX.68 Courts have already begun
examining whether Bostock means that Title IX69 and statutes that incorporate Title IX’s
provisions70 also prohibit discrimination based on sexual orientation and gender identity.
While the Court’s decision in Bostock wil have important results both in the context of Title VII
and in other areas, the majority opinion rested on the text of Title VII, rather than a constitutional
provision. Congress may amend the law if it disagrees with the Court’s decision. In the past,
Congress has sometimes responded to judicial decisions interpreting Title VII by amending the
text of the statute. For instance, after the Court held in General Electric Co. v. Gilbert that Title
VII did not prohibit discrimination based on pregnancy,71 Congress amended Title VII to do so.72
Likewise, Congress may modify provisions in other statutes addressing sex discrimination, such
as Title IX or the Affordable Care Act, including to clarify whether, post-Bostock, these statutes
should be understood to apply to discrimination on the basis of sexual orientation or transgender
status. Options might include supplying an explicit definition of what discrimination “because of

61 Id. at 1823, 1837.
62 See Brief for Petitioner at 22, Altitude Express, Inc. v. Zarda, No. 17-1623 (2019); 42 U.S.C. § 2000e(b).
63 Bostock, 140 S. Ct. at 1778 (Alito, J., dissenting).
64 42 U.S.C. § 2000e-2(e). Generally this exception allows employers, in narrow circumstances, to make employment
decisions based on an individual’s sex when the “ essence” of a job would be undermined by hiring members of both
sexes. Dothard v. Rawlinson, 433 U.S. 321, 335 (1977) .
65 See, e.g., Everson v. Michigan Dep’t of Corr., 391 F.3d 737, 747 (6th Cir. 2004) (ruling that gender is a BFOQ for
certain positions at a women’s prison).
66 42 U.S.C. §§ 2000e-1(a); 2000e-2(e)(2).
67 See, e.g., Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2055 (2020).
68 20 U.S.C. § 1681.
69 See, e.g., Adams by & through Kasper v. Sch. Bd. of St. Johns Cnty., No. 18-13592, 2020 WL 4561817, at *12 (11th
Cir. Aug. 7, 2020) (“With Bostock’s guidance, we conclude that T itle IX, like T itle VII, prohibits discrimination
against a person because he is transgender, because this constitutes discrimination based on sex.”).
70 See, e.g., Walker v. Dep’t of Health & Human Servs., No. 20-CV-2834, 2020 WL 4749859, at *1 (E.D.N.Y. Aug.
17, 2020) (concluding that recent HHS rules which interpret “ sex” under T itle IX not to include gender identity or
sexual orientation are “contrary to Bostock”).
71 Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 128 (1976).
72 Pregnancy Discrimination Act of 1978, Pub. L. No. 95–555, 92 Stat. 2076 (1978) (codified at 42 U.S.C. § 2000e(k)).
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… sex” means.73 In addition, Congress could carve out exceptions for particular circumstances or
expand the scope of statutory exceptions that already exist, such as for religious entities.74
Freedom of Religion
Espinoza v. Montana Department of Revenue75
In Espinoza v. Montana Department of Revenue, the Supreme Court built on recent jurisprudence
holding that the government may violate the First Amendment’s Free Exercise Clause by
excluding religious organizations from public aid programs.76 While the Court had previously
ruled that a state violated the Constitution by excluding religious organizations from a grant
program funding playground materials,77 this opinion extended that ruling to programs involving
indirect financial aid.78 Espinoza also suggested that more broadly, state constitutional provisions
excluding religious organizations from receiving state aid could be subject to heightened scrutiny,
and may prompt further chal enges to such laws.79
Background: The Free Exercise Clause of the First Amendment provides that the government
“shal make no law . . . prohibiting the free exercise” of religion.80 In Trinity Lutheran Church of
Columbia v. Comer, decided in 2017, the Supreme Court ruled that a state grant program
excluding churches and other religious organizations from receiving grants to purchase rubber
playground surfaces violated the Free Exercise Clause.81 The Court held the program
unconstitutional because it discriminated against organizations based on their religious status.82
The Supreme Court acknowledged that in a prior case, Locke v. Davey, it had ruled that a state
could, without violating the Free Exercise Clause, prohibit students from using publicly funded
scholarships to pursue a degree in devotional theology.83 In Locke, the Court recognized the
state’s “historical and substantial state interest” in not using government funds to support clergy.84
Trinity Lutheran distinguished the earlier case, saying the state in Locke had permissibly chosen
to deny a scholarship because of what the recipient “proposed to do—use the funds to prepare for
the ministry.”85 By contrast, in Trinity Lutheran, the Supreme Court held that the state was
impermissibly denying funds because of what the recipient “was”—a church.86
The Trinity Lutheran Court said that because the state’s playground grant program required a
religious organization “to renounce its religious character in order to participate in an otherwise

73 42 U.S.C. § 2000e-2(a).
74 See, e.g., 42 U.S.C. §§ 2000e-1(a); 2000e-2(e)(2).
75 Valerie C. Brannon, CRS Legislative Attorney, authored this section of the memorandum.
76 Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2261 (2020).
77 T rinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 202 4 (2017).
78 Espinoza, 140 S. Ct. at 2251.
79 Id. at 2257.
80 U.S. CONST. amend. I.
81 Trinity Lutheran, 137 S. Ct. at 2024.
82 Id. at 2023.
83 Id.; see also Locke v. Davey, 540 U.S. 712, 715 (2004).
84 Locke, 540 U.S. at 725.
85 Trinity Lutheran, 137 S. Ct. at 2023.
86 Id.
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general y available public benefit program,”87 the program was subject to “the strictest scrutiny”88
and could only be justified by “a state interest ‘of the highest order.’”89 The state claimed that its
interest in avoiding state support for religion justified the law.90 The Supreme Court rejected this
argument, saying that such an interest could not “qualify as compel ing” in light of the policy’s
“clear infringement on free exercise.”91
The plaintiffs in Espinoza were parents of children who wanted to participate in a tuition
scholarship program but were barred from doing so because the students attended religious
schools.92 The state program as original y created offered tax credits for donating to private
organizations that granted scholarships to private schools, including religious schools.93 The
Montana Supreme Court, however, invalidated the tax credit program, holding that it violated a
state constitutional provision known as the No-Aid Clause that prohibited the government from
providing direct or indirect financial support to religious schools.94
Supreme Court’s Decision: Chief Justice Roberts wrote the majority opinion in Espinoza, which
held that applying the No-Aid Clause to disqualify religious schools from the tax credit program
solely because of their religious character violated the U.S. Constitution.95 The state argued that
Trinity Lutheran did not govern because the No-Aid Clause excluded religious schools based on
how they would use the funds—for religious education.96 The Supreme Court disagreed, pointing
to the text of the No-Aid Clause, which singled out “sectarian” schools, and observing that the
state supreme court had applied the clause “solely by reference to religious status.”97
Distinguishing Locke, the Court emphasized that Montana had not merely excluded any
“particular ‘essential y religious’ course of instruction,” but barred al aid to religious schools.98
Further, unlike the “‘historical and substantial’ state interest in not funding the training of clergy”
at issue in Locke, there was no similar historical y grounded interest in disqualifying religious
schools from public aid.99
Because the No-Aid Clause “discriminate[d] based on religious status,”100 the Supreme Court
applied strict scrutiny to analyze the state supreme court’s decision to bar religious schools and
parents from the program.101 Following Trinity Lutheran, the Court said that the state’s general
interest in separating church and state beyond what was required by the U.S. Constitution was

87 Id. at 2024.
88 Id. at 2022.
89 Id. at 2024 (quoting McDaniel v. Paty, 435 U.S. 618, 628 (1978)).
90 Id.
91 Id.
92 Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2252 (2020).
93 Id. at 2251.
94 Id. at 2253.
95 Id. at 2255.
96 Id.
97 Id. at 2255–56.
98 Id. at 2257.
99 Id. at 2257–58.
100 Id. at 2257.
101 Id. at 2260. T he Court did not hold that this state constitutional provision was facially unconstitutional, but
concluded that the No-Aid Clause could not be applied in a way that excluded religious schools based solely on the ir
religious status. Id. at 2256, 2260. However, some of the language in the opinion did refer to the No -Aid Clause as a
whole. See, e.g., id. at 2257 (“ Montana’s no-aid provision discriminates based on religious status.”).
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insufficiently compel ing.102 The Court also rejected Montana’s arguments that the No-Aid
Clause promoted religious freedom by protecting taxpayers’ religious liberty and “keeping the
government out of” the operations of religious organizations.103 The Court did “not see how”
denying religious organizations the option to participate in the government program promoted
religious liberty.104 And in response to Montana’s claim that the No-Aid Clause advanced the
state’s interest in supporting public education, the Court ruled that the provision was “fatal y
underinclusive,” as it excluded only religious private schools and stil al owed public support to
be diverted to nonreligious private schools.105 Ultimately, Chief Justice Roberts concluded that
while the state was not required to “subsidize private education,” once it had decided to do so, it
could not “disqualify some private schools solely because they are religious.”106
Concurring and Dissenting Opinions: Justices Thomas, Alito, and Gorsuch each filed separate
concurring opinions. In an opinion joined by Justice Gorsuch, Justice Thomas cal ed for the Court
to reconsider its Establishment Clause jurisprudence.107 In brief, Justice Thomas restated his view
that the Court should interpret the Establishment Clause more narrowly, asserting that the Court’s
current jurisprudence reflects a hostility to religion that “hamper[s] free exercise rights.”108
Justice Alito wrote separately to argue that anti-Catholic bias may have motivated at least some
states in adopting no-aid provisions, maintaining that evidence of discriminatory motives was
relevant to assessing the constitutionality of Montana’s No-Aid Clause.109 Justice Gorsuch’s
concurrence echoed concerns he raised in Trinity Lutheran, expressing doubt about the validity of
free exercise decisions distinguishing religious use from religious status.110
Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented in three separate opinions. Justice
Ginsburg, joined by Justice Kagan, focused on the procedural posture of the case, arguing that
because the Montana Supreme Court had struck down the entire scholarship program, the state
could no longer be characterized as impermissibly discriminating against religious schools.111
After the state court decision, she pointed out, there was no differential treatment placing a
burden on the parents’ religious exercise; “secular and sectarian schools alike are ineligible for
benefits.”112 Justice Breyer, joined in part by Justice Kagan, would have concluded that Montana
could permissibly have excluded religious schools from the tax credit program.113 He wrote that,
as in Locke, Montana had permissibly “chosen not to fund” a religious activity: “an education

102 Id. at 2260.
103 Id.
104 Id. at 2261.
105 Id.
106 Id.
107 Id. at 2263 (T homas, J., concurring).
108 Id. In particular, Justice T homas reiterated his view that the Establishment Clause should apply only against the
federal government, not the states, and asserted that a separationist view of the Establishment Clause is motivated by
religious hostility, causing “free exercise rights . . . to suffer.” Id. at 2263, 2266–67.
109 Id. at 2267–68 (Alito, J., concurring).
110 Id. at 2275 (Gorsuch, J., concurring).
111 Id. at 2279 (Ginsburg, J., dissenting).
112 Id. In response to this claim, the majority said that the state court’s reasoning in invalidating the program violated
the Free Exercise Clause, creating a reversible error of federal law “at the beginning.” Id. at 2262 (majority opinion).
Accordingly, the state supreme court should not have terminated the program, and its decision could not “ be defended
as a neutral policy decision.” Id.
113 Id. at 2281 (Breyer, J., dissenting).
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designed to ‘induce religious faith.’”114 Final y, writing for herself, Justice Sotomayor asserted
that the Montana Supreme Court had reached its decision based on state-law grounds, and that the
majority opinion violated ordinary principles of judicial review when it—in her
characterization—essential y ruled that the No-Aid Clause was facial y invalid under the federal
Free Exercise Clause.115
Implications for Congress: The Supreme Court’s interpretation of Montana’s No-Aid Clause
wil likely have significant national implications, given that the majority of states have some
version of a no-aid clause in their state constitutions.116 To the extent that other state provisions
exclude religious organizations from general y available benefits programs solely because of their
religious character, under Espinoza, such an exclusion is subject to strict scrutiny under the Free
Exercise Clause.117
Further, any federal laws that exclude religious organizations from public aid programs because
of the religious status of beneficiaries rather than the religious use of funds may be
constitutional y suspect under Espinoza.118 Even prior to Espinoza, the executive branch had
argued that at least two federal statutes violate the Free Exercise Clause insofar as they could be
applied to bar religious schools from receiving certain higher-education funds.119
Espinoza did not overrule Locke, though, suggesting that there may be circumstances where
Congress is permitted to prohibit federal funds from being used for religious purposes.120 In fact,
such restrictions may sometimes be required under the First Amendment’s Establishment Clause,
which the Supreme Court has previously viewed as prohibiting “sponsorship, financial support,
and active involvement of the sovereign in religious activity.”121 However, the Court also stated in
Espinoza that the Establishment Clause is “not offended when religious observers and
organizations benefit from neutral government programs.”122 There are a number of federal
statutes restricting public funds from being used for religious worship, instruction, or other
sectarian activity.123 The Court’s ruling in Espinoza may warrant review of those laws to ensure
they are consistent with the Court’s modern Free Exercise and Establishment Clause
jurisprudence.124 Both of the Religion Clauses remain relevant considerations when Congress
determines whether and how to include religious entities in public aid programs.

114 Id. at 2285.
115 Id. at 2292 (Sotomayor, J., dissenting). In response, the majority again pointed to the state court decision’s “error of
federal law” in failing to recognize that excluding religious schools violated the Free Exercise Clause. Id. at 2262.
(majority opinion).
116 Petition for a Writ of Certiorari at i, Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246 (2020) (No. 18-1195).
117 See Espinoza, 140 S. Ct. at 2257.
118 See id.
119 Religious Restrictions on Capital Financing for Historically Black Colleges and Universities, slip op. at 28 (Op.
O.L.C. Aug. 15, 2019), https://www.justice.gov/olc/file/1200986/download (discussing 20 U.S.C. §§ 1066c(c) and
1068e(1)).
120 See Espinoza, 140 S. Ct at 2257–58 (discussing Locke).
121 Walz v. T ax Comm’n, 397 U.S. 664, 668 (1970).
122 Espinoza, 140 S. Ct at 2254.
123 See, e.g., 20 U.S.C. § 1011k(c); 29 U.S.C. § 3248(a)(3); 42 U.S.C. § 9920(c).
124 Relevant to this inquiry, a number of federal statutes and regulations already provide that religiously affiliated
institutions may not be excluded from generally applicable programs solely because of their religious character. See,
e.g., 42 U.S.C. § 604a(c); 34 C.F.R. § 75.52(a)(2); 45 C.F.R. § 87.3; cf., e.g., 20 U.S.C. § 1412(a)(10)(A)(i)(III) (stating
that a program includes students at religious schools).
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Abortion
June Medical Services LLC v. Russo125
In June Medical Services L.L.C. v. Russo, the Supreme Court struck down a Louisiana law that
required physicians who perform abortions to have admitting privileges at a hospital within 30
miles of the location where the procedure is performed.126 A majority of the Court concluded that
the law imposed an undue burden on a woman’s ability to obtain the procedure. Justice Breyer
authored an opinion, joined by Justices Ginsburg, Sotomayor, and Kagan, that relied heavily on
Whole Woman’s Health v. Hellerstedt, a 2016 decision that invalidated a similar admitting
privileges law from the State of Texas.127 Justice Breyer maintained that the laws reviewed in
June Medical Services and Whole Woman’s Health were “nearly identical” and that the Louisiana
law “must consequently reach a similar conclusion.”128 In a separate opinion, Chief Justice
Roberts concurred in the judgment.129 Emphasizing his continued belief that Whole Woman’s
Health was wrongly decided, the Chief Justice nevertheless contended that the legal doctrine of
stare decisis required June Medical Services to be decided like Whole Woman’s Health.130
Legal Background: Courts reviewing the constitutionality of abortion regulations apply a
standard that a plurality of the Supreme Court adopted in Planned Parenthood of Southeastern
Pennsylvania v. Casey, a 1992 decision concerning the legality of several Pennsylvania abortion
restrictions.131 In Casey, a plurality of the Court concluded that an abortion regulation violates the
substantive component of the Fourteenth Amendment’s Due Process Clause if it imposes an
undue burden on a woman’s ability to obtain the procedure.132 The plurality explained that an
undue burden exists if the purpose or effect on an abortion regulation is to “place a substantial
obstacle in the path of a woman seeking an abortion before the fetus attains viability.”133
Evaluating Texas’s admitting privileges law in Whole Woman’s Health, the Court provided
additional guidance on the undue burden standard. In an opinion written by Justice Breyer and
joined by former Justice Kennedy and Justices Ginsburg, Sotomayor, and Kagan, the Court
maintained that the standard requires a reviewing court to balance the health benefits conferred by
an abortion regulation for women seeking the procedure against any burdens imposed on abortion
access.134 After examining the Texas law and considering the evidence collected by the district
court, the Court concluded that the evidence before the district court showed that the law did not
cure a significant health-related problem or provide any health benefit.135 At the same time,
however, the record demonstrated that the law caused the closure of abortion facilities, increased
driving distances for women seeking abortions, and created longer wait times for the

125 Jon O. Shimabukuro, CRS Legislative Attorney, authored this section of the memorandum.
126 June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020).
127 Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). For further discussion of Whole Woman’s Health v.
Hellerstedt , see CRS Report R44205, Abortion and Whole Wom an’s Health v. Hellerstedt, by Jon O. Shimabukuro.
128 June Medical Services, 140 S. Ct. at 2133.
129 Id. at 2134 (Roberts, C.J., concurring in the judgment).
130 Id.
131 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (plurality opinion).
132 Id. at 876.
133 Id. at 877.
134 Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016).
135 Id. at 2311.
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procedure.136 Balancing these burdens against the absence of any health benefit, the Court
concluded that the law imposed an undue burden under Casey.137
June Medical Services and the Fifth Circuit: In 2017, a Louisiana federal district court
invalidated the admitting privileges law at issue in June Medical Services.138 A year later, the
Fifth Circuit reversed the lower court’s decision, distinguishing the Louisiana law from the Texas
admitting privileges law invalidated in Whole Woman’s Health.139 The Fifth Circuit maintained
that admitting privileges were easier to obtain in Louisiana and that only one of the state’s six
physicians who perform abortions made a good-faith effort to obtain such privileges.140 The
appel ate court reasoned that if the remaining physicians obtained admitting privileges, existing
abortion facilities would remain open and Louisiana residents would not suffer the same kinds of
burdens the Supreme Court identified in Whole Woman’s Health, such as fewer abortion clinics
and longer wait times for the procedure.141
In June Medical Services, the Supreme Court considered not only the constitutionality of
Louisiana’s admitting privileges law, but a procedural question involving standing and whether
abortion providers can chal enge an abortion regulation on behalf of their clients. Louisiana
argued that the petitioners—an abortion clinic and physicians who perform abortions—lacked
standing because they did not have a sufficiently close relationship with abortion patients.142 The
state also contended that the petitioners’ opposition to a health regulation intended to protect
patients evidenced a conflict of interest with these patients, making them an unsuitable party to
assert the rights of their clients.143
On the merits of the Louisiana law, the petitioners argued that admitting privileges conferred no
health or safety benefits to women seeking abortions.144 The petitioners further maintained that
the law burdened abortion access by leaving just one physician to perform abortions at a single
clinic in the state.145 According to the petitioners, the Fifth Circuit not only discounted the
burdens imposed by the law, but did not balance these burdens against the lack of any benefit
conferred by the law, as required by Whole Woman’s Health.146
The state argued that the admitting privileges requirement addressed serious safety concerns by
serving as a kind of credential for physicians who perform abortion.147 The state also contended
that at least three of Louisiana’s physicians who perform abortions did not act in good faith to
obtain admitting privileges.148 If the physicians obtained such privileges, the state maintained that

136 Id. at 2312.
137 Id. In Whole Woman’s Health, the Court also invalidated a separate requirement for abortion facilities to satisfy the
same standards as ambulatory surgical centers after similarly balancing the benefits and burdens of that requirement. Id.
at 2318.
138 June Med. Servs. L.L.C. v. Kliebert, 250 F. Supp. 3d 27 (M.D. La. 2017).
139 June Med. Servs. L.L.C. v. Gee, 905 F.3d 787 (5th Cir. 2018).
140 Id. at 807.
141 Id. at 810–13.
142 See Brief for the Respondent/Cross-Petitioner at 41, June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) (No.
18-1323).
143 Id. at 42.
144 See Petition for a Writ of Certiorari at 21, June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) (No. 18 -1323).
145 Id. at 26.
146 Id. at 31.
147 See Brief for the Respondent/Cross-Petitioner, supra note 142, at 81.
148 Id. at 75.
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abortion facilities would not close and the law would not impose a substantial obstacle to abortion
access.149
June Medical Services Plurality Opinion: In the plurality opinion, Justice Breyer concluded that
the state waived its standing argument when it opposed the petitioners’ initial request for a
temporary restraining order against the admitting privileges law.150 In a memorandum opposing
the request, Louisiana had stated that there was “no question that the physicians had standing to
contest [the law.]”151 The plurality therefore determined that the state’s “unmistakable
concession” barred the Court’s consideration of the argument.152 Nevertheless, the plurality also
emphasized the Court’s longstanding recognition of abortion providers invoking the rights of
their actual and potential patients in chal enges to abortion regulations. Citing several of the
Court’s past decisions from both the abortion and non-abortion contexts recognizing third-party
standing, Justice Breyer rejected overruling those past decisions.153 In his concurring opinion,
Chief Justice Roberts indicated his agreement with this portion of the plurality opinion.154
Addressing the merits of the admitting privileges law, Justice Breyer applied the undue burden
standard, reiterating in line with the Whole Woman’s Health majority that it requires balancing an
abortion regulation’s benefits against any burdens it imposes.155 The plurality maintained that the
district court faithfully engaged in this balancing and concluded that the district court’s factual
determinations were supported by ample evidence and were not clearly erroneous.156
With regard to any health benefit associated with an admitting privileges requirement, the
plurality discussed both the district court’s findings and similar findings by the district court in
Whole Woman’s Health. Writing for the Court in Whole Woman’s Health, Justice Breyer had
emphasized that deference should be given to the district court’s evaluation of the record
evidence.157 In June Medical Services, the plurality deferred to the lower court’s finding that an
admitting privileges requirement serves no “relevant credentialing function” because privileges
may be denied for reasons other than a doctor’s ability to perform abortions.158
The plurality also maintained that direct and circumstantial evidence supported the district court’s
finding that the admitting privileges law burdened abortion providers.159 For the plurality, this
evidence refuted the Fifth Circuit’s conclusion that some providers did not act in good faith to
obtain admitting privileges. For example, in the plurality’s view, direct evidence established that
some of the providers were denied privileges for reasons other than their ability to perform
abortions safely.160 And the plurality also noted circumstantial evidence il ustrating how
application costs and reputational risks that accompany rejection could prevent providers from

149 Id.
150 June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2117 (2020) (plurality opinion).
151 Id. at 2118.
152 Id.
153 Id.
154 Id. at 2139 n.4 (Roberts, C.J., concurring in the judgment).
155 Id. at 2120 (plurality opinion).
156 Id. at 2132.
157 Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2310 (2016).
158 June Medical Services, 140 S. Ct. at 2122.
159 Id. at 2122–23.
160 Id.
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seeking privileges at some hospitals.161 According to the plurality, the evidence collected by the
district court supported its conclusion that enforcing the admitting privileges law would result in
most of the state’s abortion facilities closing.162 For the plurality, fewer abortion facilities would
also create additional burdens for women seeking abortions, such as longer wait times and
increased driving distances.163
Accepting the district court’s findings and legal conclusions, including its balancing of the
burdens imposed by the admitting privileges law against the absence of any real health benefit,
the plurality agreed with the lower court’s determination that the Louisiana law imposed an undue
burden on a woman’s ability to obtain an abortion. Because the district court applied the undue
burden standard in June Medical Services that the district court in Whole Woman’s Health had
applied, the plurality maintained that the same result was required.
Chief Justice Roberts’ Concurrence: Concurring in the judgment, Chief Justice Roberts agreed
that the Louisiana law and the Texas law at issue in Whole Woman’s Health were nearly
identical.164 Although he dissented in Whole Woman’s Health and indicated in his June Medical
Services concurrence that the Texas case was wrongly decided, he nevertheless maintained that
stare decisis required invalidating the Louisiana law.165
Despite his concurrence in the judgment, however, Chief Justice Roberts questioned how the
plurality applied the undue burden standard in light of Whole Woman’s Health.166 Discussing
balancing an abortion regulation’s benefits and burdens, the Chief Justice contended that nothing
in Casey suggested that courts should engage in this kind of weighing of factors.167 According to
the Chief Justice, Casey focused on the existence of a substantial obstacle as sufficient to
invalidate an abortion regulation and did not “cal for consideration of a regulation’s
benefits[.]”168 Reviewing the burdens that the Louisiana law imposed, such as fewer abortion
providers and facility closures, the Chief Justice agreed with the plurality that “the determination
in Whole Woman’s Health that Texas’s law imposed a substantial obstacle requires the same
determination about Louisiana’s law.”169 However, the Chief Justice further observed that “the
discussion of benefits in Whole Woman’s Health was not necessary to its holding.”170
Existing precedent suggests that because only four Justices in June Medical Services viewed
Casey to require courts to balance an abortion regulation’s benefits and burdens, courts would
likely construe Chief Justice Roberts’s formulation of the undue burden standard to control. The
Supreme Court has maintained that when a fragmented Court decides a case and five Justices do
not agree to a single rationale for the decision, the Court’s holding may be viewed as the position
taken by the Justices who concurred in the judgment on the narrowest grounds.171 Here, the Chief

161 Id.
162 Id. at 2129.
163 Id. at 2129–30.
164 Id. at 2133 (Roberts, C.J., concurring in the judgment).
165 Id. at 2134.
166 Id. at 2136.
167 Id.
168 Id. at 2139.
169 Id.
170 Id. at n.3.
171 See Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that
position taken by those Members who concurred in the judgments on the narrowest grounds . . .’”) (quoting Gregg v.
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Justice’s concurrence in the judgment, applying the undue burden standard with a focus only on
the burdens imposed by the Louisiana law, could arguably be viewed as the narrowest position
supporting the judgment and could inform future chal enges to abortion regulations.172
Dissenting Opinions: In a dissenting opinion, Justice Alito also questioned the use of a balancing
test to determine whether an abortion regulation imposes an undue burden on the ability to obtain
an abortion.173 Justice Alito maintained that Whole Woman’s Health “simply misinterpreted Casey
. . . [and] should be overruled insofar as it changed the Casey test.”174 In a separate dissenting
opinion, Justice Gorsuch criticized the balancing test not so much as a misinterpretation of Casey,
but as an unpredictable test that wil produce different results based on the factors considered by a
given judge and the weight accorded to each of them.175
In another dissenting opinion, Justice Thomas reiterated his view that Roe v. Wade and its
progeny were wrongly decided.176 Contending that the Constitution does not constrain the states’
ability to regulate or even prohibit abortion, Justice Thomas observed: “[T]he putative right to
abortion is a creation that should be undone.”177 Justice Kavanaugh, also in dissent, maintained
that additional fact finding was needed to assess whether Louisiana’s admitting privileges law
imposed a similar burden as the Texas law at issue in Whole Woman’s Health.178
These dissenting opinions and Chief Justice Robert’s concurring opinion evidence a skepticism
with the balancing test used in Whole Woman’s Health and June Medical Services. Given these
opinions from five Justices, it seems possible that a different test to evaluate abortion regulations
could be forthcoming.
Conclusion: The Court’s evolving abortion jurisprudence, as evidenced by the various opinions
in June Medical Services, may affect the work of Congress and other actors. Federal legislation to
regulate abortion has been introduced in the 116th Congress.179 And as states continue to adopt a
variety of new laws to regulate the procedure, it seems likely that new legal chal enges wil
occur.180 How courts wil apply the undue burden standard after June Medical Services is not
entirely certain. In light of Chief Justice Roberts’ concurrence, the Eighth Circuit vacated a 2017
preliminary injunction that prevented the enforcement of four Arkansas laws that sought to
regulate abortion.181 The court remanded the case for reconsideration in accordance with the
concurrence, identifying the “appropriate inquiry” as whether the laws impose a substantial

Georgia, 428 U.S. 153, 169 n.15 (1976)).
172 Compare Hopkins v. Jegley, 2020 WL 4557687 (8th Cir. August 7, 2020) (remanding abortion case for
reconsideration in light of Chief Justice Roberts’ concurrence in June Medical Services), with Am. C. of Obstetricians
& Gynecologists v. FDA, 2020 WL 3960625 , at *17 (D. Md. July 29, 2020) (applying the balancing test as prescribed
by Whole Wom an’s Health v. Hellerstedt because it “ remains the most recent majority opinion delineating the full
parameters of the undue burden test . . .”).
173 June Medical Services, 140 S. Ct. at 2153 (Alito, J., dissenting).
174 Id. at 2154.
175 Id. at 2179–80 (Gorsuch, J., dissenting).
176 Id. at 2142 (Kavanaugh, J., dissenting).
177 Id. at 2149.
178 Id. at 2182 (Alito, J., dissenting).
179 See, e.g., Pregnant Women Health and Safety Act of 2020, S. 3226, 116th Cong. (2020).
180 For additional information on recently enacted state abortion laws, see CRS Legal Sidebar LSB10346, Reviewing
Recently Enacted State Abortion Laws and Resulting Litigation , by Jon O. Shimabukuro.
181 Hopkins v. Jegley, 2020 WL 4557687, at *1 (8th Cir. August 7, 2020).
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obstacle and not “whether benefits outweighed burdens.”182 At least one other court, however, has
continued to engage in the balancing described in Whole Woman’s Health and the June Medical
Services plurality opinion.183 Although it is not certain when the Supreme Court wil next review
an abortion regulation, a future case seems likely. In his dissent, Justice Gorsuch suggested that
another case should be expected, particularly if courts are expected to balance a regulation’s
benefits and burdens.184 He stated: “Some judges have thrown up their hands at the task put to
them . . . . If everything comes down to balancing costs against benefits, they have observed, ‘the
only institution that can give an authoritative answer’ is this Court[.]”185
Indian Law: Treaty Interpretation and Reservation
Status
McGirt v. Oklahoma186
On July 9, 2020, the Supreme Court announced its decision in McGirt v. Oklahoma, a 5-4
decision ruling that land reserved for the Muscogee (Creek) Nation (Creek Nation) in the 19th
century remained “Indian country” for criminal jurisdiction purposes.187 In an opinion authored
by Justice Gorsuch, the Court explained that Congress had established a reservation for the tribe
in various treaties, including in an 1866 treaty that “forever set apart” certain land as “a home for
said Creek Nation.”188 In a ruling that may have important consequences for not only criminal
law in Oklahoma, but federal Indian law more general y, the Court then held that, despite
subsequently creating the State of Oklahoma and limiting tribal sovereignty within that area,
Congress had never disestablished that Creek reservation in what is now eastern Oklahoma.189
Background: States general y may not prosecute Indians for crimes committed in “Indian
country,” absent a grant of jurisdiction from Congress.190 In relevant part, the Major Crimes Act
reserves federal jurisdiction over certain serious crimes, like murder and kidnapping, as long as
they are committed by an Indian within Indian country.191 Other legislation has extended state
criminal jurisdiction over major crimes in Indian country in some states, but not in Oklahoma.192
The relevant federal criminal statute defines “Indian country” to mean (1) al land within an
Indian reservation, (2) al dependent Indian communities, and (3) al Indian al otments that stil
have Indian titles.193 An area qualifies as Indian country if it fits within any of these three
categories, meaning a formal designation of Indian lands as a “reservation” is sufficient, but not
necessary, for those lands to be considered Indian country.

182 Id. at *2.
183 Am. C. of Obstetricians & Gynecologists v. FDA, 2020 WL 3960625 , at *17 (D. Md. July 29, 2020).
184 June Medical Services, 140 S. Ct. at 2180 (Gorsuch, J., dissenting).
185 Id.
186 Mainon A. Schwartz, CRS Legislative Attorney, authored this section of the memorandum.
187 McGirt v. Oklahoma, 140 S. Ct. 2452, 2482 (2020); see 18 U.S.C. § 1151 (defining “Indian country”).
188 McGirt, 140 S. Ct. at 2461.
189 Id. at 2468.
190 Negonsott v. Samuels, 507 U.S. 99, 102–03 (1993).
191 18 U.S.C. § 1153.
192 See, e.g., 18 U.S.C. § 1162.
193 18 U.S.C. § 1151.
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It was against this legal backdrop that Jimcy McGirt, a member of the Seminole Nation of
Oklahoma who was convicted by the state for serious crimes committed there, claimed that his
conviction was unlawful because he was prosecuted for a crime committed within the Creek
Nation’s stil -existing reservation.194
The Supreme Court’s Decision: Oklahoma argued that eastern Oklahoma had always been
exempt from the Major Crimes Act because of its unique history, but the Court squarely rejected
that proposition: “When Oklahoma won statehood in 1907, the [Major Crimes Act] applied
immediately according to its plain terms.”195 Oklahoma could not identify any subsequent grant
of jurisdiction.196 Thus, if McGirt committed his crimes in Indian country, Oklahoma lacked the
authority to prosecute him. That meant the central questions before the Court were whether the
Creek Nation had original y been granted a reservation, and if so, whether it continued to exist.
The Court answered both those questions in the affirmative. As to whether the Creek Nation’s
treaty lands were a reservation, the Court acknowledged that the Oklahoma land where McGirt
committed his crimes has a complex history: “One thing everyone can agree on is this history is
long and messy.”197 In the 1820s, the federal government relocated the Creek Nation and several
other tribes (often referred to collectively as the Five Tribes) to what is now present-day
Oklahoma.198 As part of that relocation, the government signed a series of treaties with the Five
Tribes that functional y created a reservation, ultimately giving them a vast area of land in
present-day Oklahoma in exchange for the cession of tribal homelands further east.199 Later
treaties reduced that tract of land.200 The final reduction occurred after the Civil War, when the
Treaty of 1866 required each of the Five Tribes to surrender large parts of their new lands.201
The State of Oklahoma advanced the argument that the Creek lands were never a reservation at
al because the treaties predated the widespread use of the term “reservation” and its
accompanying policies.202 The Court found that argument unconvincing, noting that neither the
Solicitor General’s amicus brief on Oklahoma’s behalf nor the dissent adopted it.203 Instead,
Justice Gorsuch wrote, it “should be obvious” that “Congress established a reservation for the
Creeks” because of the nature of the promises Congress made about the land.204
The question remained, then, whether Congress had ever disestablished the reservation. Though
the Creek Nation experienced many changes in its relationship with the federal government—
most notably related to tribal governance and a push for individual ownership of the land—the
boundaries of its land general y remained unchanged until at least the early 1900s.205 At that
point, Oklahoma began to transition toward statehood, effectively including eastern Indian lands

194 McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020).
195 Id. at 2477.
196 Id. at 2477–78.
197 Id. at 2476.
198 Id. at 2460–61; id. at 2483 (Roberts, C.J., dissenting).
199 Id. at 2460–61 (majority opinion).
200 Id. at 2461.
201 Id.
202 Id. at 2474.
203 Id.
204 Id. at 2460.
205 Id. at 2463, 2465–66.
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and western non-Indian lands within a single geographic entity206 and al otting reservation lands
to individual tribal members.207 In its brief submitted to the Supreme Court, Oklahoma claimed
that no one (including state law enforcement and prosecutors) had treated the relevant land like a
reservation since at least 1907, after Oklahoma statehood.208 It also argued that because Congress
broke certain promises in the treaties that had established the reservation, Congress must have
intended to disestablish it.209
As it set out to determine whether Congress intended to disestablish the Creek reservation land,
the Court clarified the three categories of evidence it could consider, as described in Solem v.
Bartlett in 1984.210 Under the Solem framework, courts evaluating possible disestablishment of a
reservation may examine: (1) the language of the governing federal statute; (2) the historical
circumstances of the statute’s enactment; and (3) subsequent events, such as Congress’s later
treatment of an affected area.211 The Solem framework instructs courts to resolve any uncertainty
in favor of the tribes: if the evidence is not clear, the reservation continues to exist.212
The majority explained that steps 2 and 3 exist only to clarify statutory texts, so
[t]here is no need to consult extratextual sources when the meaning of a statute’s terms is
clear. Nor may extratextual sources overcome those terms. The only role s uch materials
can properly play is to help “clear up . . . not create” ambiguity about a statute’s original
meaning. And, as we have said time and again, once a reservation is established, it retains
that status “until Congress explicitly indicates otherwise.”213
The Court further warned that states—“often in good faith, perhaps sometimes not”—have often
overstepped their authority in Indian country, underscoring “the danger of relying on state
practices” to evaluate reservation status.214 Thus, the majority concluded, Oklahoma’s arguments
that eastern Oklahoma had not been considered or treated like a reservation for more than a
century could not change the Court’s assessment that Congress had “plainly . . . left the Tribe
with significant sovereign functions over the lands in question.”215 Because “there simply arrived
no moment when any Act of Congress dissolved the Creek Tribe or disestablished its
reservation,” the Court finished its Solem analysis with the first category of evidence;
Oklahoma’s arguments about the area’s subsequent treatment were not relevant.216
Oklahoma argued that the Solem analysis was inapplicable because the Creek land became a
“dependent Indian community” rather than a reservation once the Creek Nation received fee title
to its land.217 But the Court concluded that fee title is not incompatible with reservation status,218

206 Id. at 2477 (citing Oklahoma Enabling Act, Act of June 16, 1906, § 20, 34 Stat. 277).
207 Id. at 2463 (citing, e.g., Creek Allotment Agreement, ch. 676, 31 Stat. 861 (1901)).
208 Brief for Respondent at 42–43, McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) (No. 18-9526).
209 Id. at 29–31.
210 McGirt, 140 S. Ct. at 2468 (citing Solem v. Bartlett, 465 U.S. 463, 470–72 (1984)); see also id. at 2485–86
(Roberts, C.J., dissenting) (explaining and applying the “methodology” outlined in Solem).
211 Solem, 465 U.S. at 470–72.
212 Id. at 472.
213 McGirt, 140 S. Ct. at 2468 (majority opinion) (alteration in original) (citat ion omitted) (first quoting Milner v. Dep’t
of the Navy, 562 U.S. 562, 574 (2011); and then quoting Solem , 465 U.S. at 470).
214 Id. at 2471.
215 Id. at 2466.
216 Id. at 2467–69.
217 Id. at 2474.
218 Id. at 2475 (citing Maxey v. Wright, 54 S.W. 807, 810 (Indian T err. 1900)).
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rejecting the “untenable” assertion that the Creek Nation’s choice to receive fee title to its lands
“made their tribal sovereignty easier to divest rather than harder.”219
Dissenting Opinion: Chief Justice Roberts, joined by Justices Alito, Kavanaugh, and Thomas,
dissented from the Court’s opinion.220 In the dissent’s view, “Congress disestablished any
reservation possessed by the Creek Nation through a relentless series of statutes leading up to
Oklahoma statehood,” a view which the dissent accused the majority of avoiding by refusing to
look at the statutes cumulatively rather than individual y.221 Then, instead of stopping at the first
category of evidence in the Solem framework, the dissent would have proceeded to examine
contemporaneous and subsequent treatment of the Creek lands, concluding that “no reservation
persisted past statehood.”222
Considerations for Congress: One certain consequence of McGirt is that the burden of
prosecuting many serious offenses involving Indian offenders or victims in eastern Oklahoma
wil shift to the federal and tribal governments—at least, absent other federal statutory authority
al owing the state to prosecute. Congress could pass a law expressly giving Oklahoma jurisdiction
to prosecute the crimes named in the Major Crimes Act, perhaps through a vehicle similar to “P.L.
280,” the 1953 law that expressly authorized various states to prosecute most crimes that occurred
in Indian country in those states.223 Alternatively, Congress could appropriate funds to offset the
financial costs of increased federal and tribal prosecutions, which may include the retrials of
individuals who were convicted of major crimes in Oklahoma state courts. The majority and the
dissent disagreed about the likely magnitude of this burden. The majority pointed out that “even
Oklahoma admits that the vast majority of its prosecutions wil be unaffected” by this ruling,224
while the dissent posited that “thousands of convictions . . . across several decades” wil be drawn
into question.225
Reprosecutions are unlikely to run afoul of the Double Jeopardy Clause,226 but could face other
hurdles, such as lapsed statutes of limitations or limited resources. McGirt’s dissent noted that the
federal government “may lack the resources to reprosecute al of” the convictions unsettled by the
majority opinion, and the “odds of convicting again are hampered by the passage of time, stale
evidence, fading memories, and dead witnesses,” which may also translate to a need for more
prosecutorial resources.227
Other consequences are less certain. McGirt holds only that the Creek reservation remains Indian
country for the purposes of the Major Crime Act, but the majority’s analysis seems likely to lead
to determinations that other Five Tribes’ reservations are likewise Indian country, possibly for
purposes beyond the Major Crimes Act. The State of Oklahoma offered a lengthy list of potential
legal implications, including new or altered applicability of various federal statutes and programs
in areas such as: homeland security grants; nutritional programs; drug enforcement; tobacco
regulation; timber protection; disability programs; schools; highway funding; primary care

219 McGirt, 140 S. Ct. at 2475–76.
220 Id. at 2482–2504 (Roberts, C.J., dissenting). Justices Alito and Kavanaugh joined the Chief Justice’s dissent in full;
Justice T homas joined except as to footnote 9. Id. at 2482.
221 Id. at 2489.
222 Id. at 2500.
223 Pub. L. No. 83-280 (1953), codified as 18 U.S.C. § 1162, 28 U.S.C. § 1360, and 25 U.S.C. §§ 1321–26.
224 McGirt, 140 S. Ct. at 2479 (majority opinion).
225 Id. at 2500 (Roberts, C.J., dissenting).
226 See Gamble v. United States, 139 S. Ct. 1960, 1964 (2019) (affirming dual-sovereignty doctrine).
227 McGirt, 140 S. Ct. at 2501 (Roberts, C.J., dissenting).
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clinics; cultural artifacts; housing assistance; and historical preservation.228 Some observers have
speculated that the McGirt ruling could affect oil and gas regulation in the state.229 Congress
could enact legislation to provide clarity on application of these laws and programs to the Creek
or Five Tribes’ reservations.
Tax implications are also likely, as states general y lack authority to tax Indians in Indian
country,230 and tribes may in some circumstances tax non-Indians on reservation land.231 The Five
Tribes may gain more exclusive jurisdiction over adoptions and custody disputes involving Indian
children,232 though they already had the right to intervene in such proceedings or petition for
transfer regardless of a child’s location.233 At least one lawsuit has been filed seeking
disgorgement of fines and court costs levied by the State of Oklahoma against tribal members
found guilty of misdemeanors and traffic offenses.234
Some of the open jurisdictional questions may be resolved through agreements and negotiations
between states and tribal governments, though congressional actions remain an option. On July
15, 2020, the State of Oklahoma publicly released an apparent agreement with the Five Tribes
titled Murphy/McGirt Agreement-in-Principle, which stated that “intergovernmental cooperation
wil best serve our shared interests in consistency, predictability, and a mutual respect for
sovereign rights and interests.”235 The agreement cal ed on Oklahoma’s congressional delegation
to implement legislation that would primarily restate existing federal Indian law principles, but
also provide Oklahoma with jurisdiction over al offenders “with the exception of crimes
involving Indians committed on Indian trust or restricted lands”—i.e., on a fraction of the original
reservations.236 However, on July 17, two of the Five Tribes apparently repudiated the cal for
federal legislation.237
Beyond Oklahoma, McGirt may have ramifications for other tribes who were once promised
lands by treaty, but whose reservations Congress never clearly disestablished. It is difficult to
assess how widespread such cases may be. Each such claim wil likely be separately litigated
because the Solem inquiry, even as clarified by McGirt, requires a fact-intensive investigation of
the federal actions affecting each tribe. Multiple tribes outside Oklahoma have already invoked
McGirt in attempts to reestablish sovereignty over reservation lands.238 And a federal circuit court

228 See Brief for Respondent at 43–44, McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) (No. 18-9526).
229 E.g., Dino Grandoni, Now That Half of Oklahoma is Officially Indian Land, Oil Industry Could Face New Costs and
Environm ental Hurdles, WASH. POST (July 17, 2020, 2:33 PM),
https://www.washingtonpost.com/business/2020/07/17/supreme-court -oklahoma-oil-/.
230 See generally Okla. T ax Comm’n v. Sac & Fox Nation, 508 U.S. 114 (1993).
231 McGirt, 140 S. Ct. at 2502 (Roberts, C.J., dissenting) (citing Kerr-McGee Corp. v. Navajo T ribe, 471 U.S. 195, 198
(1985)); see also Brief for Muscogee (Creek) Nation as Amicus Curiae at 18 n.6, McGirt v. Oklahoma, 140 S. Ct. 2452
(2020) (No. 18-9526).
232 See 25 U.S.C. § 1911(a).
233 Id. § 1911(b), (c).
234 Complaint, Pickup v. Dist. Ct. of Nowata Cnty., No. 4:20-cv-00346-JED-FHM (N.D. Okla. July 20, 2020), ECF No.
2.
235 See Derrick James, Oklahoma Tribes and AG Release Agreement in Principle, MCALESTER NEWS-CAPITAL (July 16,
2020), https://www.mcalesternews.com/news/oklahoma-tribes-and-ag-release-agreement -in-
principle/article_de770c46-c78a-11ea-9f3b-37bba8b7d797.html.
236 Id.
237 Sean Murphy, 2 Oklahoma Tribal Leaders Say They Don’t Support Agreement, WASH. POST (July 17, 2020, 7:32
PM), https://www.washingtonpost.com/national/2 -oklahoma-tribal-leaders-say-they-dont-support-
agreement/2020/07/17/bfc7d3e2-c885-11ea-a825-8722004e4150_story.html.
238 E.g., 28(j) Letter to Court dated July 14, 2020, Cayuga Indian Nation v. Seneca Cnty., Case No. 19-0032-cv (2d Cir.
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recently relied on both Solem and McGirt to hold that the Oneida Reservation in Wisconsin—
established by treaty in 1838—remains Indian country, and the tribe’s on-reservation activities
are not subject to a local government ordinance.239
On the broadest level, the choice of whether to disestablish any reservation stil lies solely with
Congress.240 Congress could enact a statute disestablishing the Creek reservation (including or
excluding the other Five Tribes’ reservations), which would severely limit this decision’s
applicability in the future. If Congress chooses not to act, the uncertainties of jurisdiction may be
settled among Oklahoma and the Five Tribes over time, whether by mutual agreement or through
litigation in the courts.
Separation of Powers
Seila Law v. Consumer Financial Protection Bureau241
In Seila Law v. Consumer Financial Protection Bureau (CFPB), the Supreme Court held that the
CFPB’s structure violates the Constitution’s separation of powers.242 In a 5-4 decision, the Court
held that a statutory provision insulating the CFPB Director, the sole head of the agency, from
removal except for cause interfered with the President’s constitutional authority to execute the
law.243 Seila Law may have effects beyond the realm of consumer financial regulation, as the case
was the latest articulation by the Roberts Court of the limits on Congress’s authority to restrict the
President’s authority to remove an agency head for policy disagreements.
Background: Congress created the CFPB in the wake of the 2008 financial crisis. In 2010,
Congress passed the Dodd-Frank Wal Street Reform and Consumer Protection Act (Dodd-
Frank),244 which established the CFPB as an independent financial regulatory agency within the
Federal Reserve System.245 The CFPB is charged with implementing and enforcing a variety of
consumer protection laws.246 The agency’s authority includes the power to promulgate regulations
under those statutes247 and to enforce them by issuing subpoenas,248 conducting adjudications,249
and prosecuting civil actions in federal court.250

July 14, 2020), ECF No. 70-1; En Banc Supplemental Reply Brief of Penobscot Nation, Penobscot Nation v. Frey,
Case Nos. 2016-1424, 2016-1435, 2016-1474, 2016-1482 (1st Cir. Aug. 13, 2020).
239 See Oneida Nation v. Vill. of Hobart, 968 F.3d 664 (7th Cir. 2020).
240 McGirt v. Oklahoma, 140 S. Ct. 2452, 2462 (2020) (“To determ ine whether a tribe continues to hold a reservation,
there is only one place we may look: the Acts of Congress,” because the power to breach a treaty “belongs to Congress
alone,” and the Court will not “lightly infer such a breach once Congress has established a reservation.”).
241 Jared P. Cole, CRS Legislative Attorney, authored this section of the memorandum.
242 Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2192 (2020) .
243 Id. T he Court also held that this provision was “severable from the ot her statutory provisions bearing on the CFPB’s
authority.” Id.
244 Dodd-Frank Wall Street Reform and Consumer Protection Act , Pub. L. No. 111-203, 124 Stat. 1376 (2010).
245 12 U.S.C. § 5491(a).
246 Id. § 5511. Dodd-Frank entrusted the CFPB with enforcing a new consumer protection law, id. § 5536(a)(1)(B), as
well as 18 other existing statutes. See Seila Law, 140 S. Ct. at 2193.
247 See 12 U.S.C. §§ 5531(a)–(b), 5581(a)(1)(A), (b).
248 Id. § 5562.
249 Id. § 5563.
250 Id. § 5564.
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The Dodd-Frank Act established a somewhat unusual structure for the CFPB. Instead of creating
a “traditional independent agency headed by a multi-member commission,”251 Congress stationed
a single director in charge of the CFPB.252 That director is appointed by the President and
confirmed by the Senate, for a term of five years.253 The Dodd-Frank Act provides that during that
time, the President may only remove the CFPB Director for “inefficiency, neglect of duty, or
malfeasance in office,”254 a provision that is general y understood to restrict the President from
removing the Director for policy disagreements.255
The case originated when the CFPB, during an investigation of Seila Law LLC for potential
violations of marketing laws, sought to enforce a civil investigative demand (similar to a
subpoena) in federal court.256 Seila Law LLC argued that the demand was invalid because the
CFPB’s single-Director structure was unconstitutional.257 The dispute made its way to the Ninth
Circuit, which upheld the constitutionality of the CFPB.258 In so doing, the Ninth Circuit largely
relied on the 2018 en banc decision of the D.C. Circuit in PHH Corp. v. CFPB.259 The Supreme
Court granted the petition for certiorari in the Ninth Circuit case on whether the CFPB’s structure
violates the separation of powers.260
Supreme Court’s Decision: Chief Justice Roberts wrote the majority opinion for the Court,
emphasizing that Article II of the Constitution places the executive power in one person—the
President.261 While lesser executive officers may help him carry out that executive power, in the
view of the majority, the Constitution requires that the President must general y be able to hold
officers accountable, including by removing them.262 As Chief Justice Roberts explained, that
principle derives from Article II’s text, history, including decisions of the first Congress,263 as
wel as the Court’s precedent, including Myers v. United States.264 The majority opinion
characterized that decision, written in 1926 by Chief Justice Taft, as recognizing that the power to

251 Seila Law, 140 S. Ct. at 2193.
252 12 U.S.C. § 5491(b)(1).
253 Id. §§ 5491(b)(2), (c)(1).
254 Id. at § 5491(c)(3).
255 See PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 98 (D.C. Cir. 2018) (en banc) (“Consider the case
of Hum phrey’s Executor. T here, President Roosevelt attempted to remov e an FT C Commissioner based on policy
disagreements. Of course, the Supreme Court put a stop to the President's effort to sway the agency, upholding the
Commissioner's removal protection.”); id. at 123 (Wilkins, J., concurring) (asserting that the CFPB’s for cause removal
restriction was not “properly construed to allow removal for mere policy disagreements”). But see id. at 124 (Griffith,
J., concurring in the judgment) (concluding that the CFPB’s removal restriction permits removal “for ineffective policy
choices”).
256 See Seila Law, 140 S. Ct. at 2194.
257 See id.
258 Consumer Fin. Prot. Bureau v. Seila Law LLC, 923 F.3d 680, 682 (9th Cir.) .
259 PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 77 (D.C. Cir. 2018) . T hat decision included a dissenting
opinion by then-Judge Kavanaugh, now an Associate Justice of the Supreme Court. See id. at 164 (Kavanaugh, J.,
dissenting).
260 Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 427, 427 (2019) . T he Court also directed the parties to
address whether, if CFPB’s structure is unconstitutional, the statutory provision insulating the Director from removal is
severable from the Dodd-Frank Act. Id. at 427–28.
261 See id.; U.S. CONST. Art. II, § 1, cl. 1.
262 Seila Law, 140 S. Ct. at 2197.
263 Id.
264 See 272 U.S. 52, 163–64 (1926).
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remove executive officers is essential for the President to “take care” that the law is faithfully
executed.265
In the past, the Court observed, it had upheld restrictions on the President’s power to remove
officers, but the majority opinion reasoned that those cases were limited to two exceptions to the
general rule that the President must be able to remove executive officers at wil .266 In the 1935
case of Humphrey’s Executor v. United States, the Court upheld a statutory provision that
shielded the Commissioners of the multimember Federal Trade Commission (FTC) from removal
except for cause.267 The Seila Law Court understood that decision as upholding removal
protections because the Commissioners of the FTC, at least as described in Humphrey’s Executor
in 1935, engaged in roles that merely aided factfinding for legislative or judicial actions.268 And in
the 1988 case of Morrison v. Olson, the Court upheld removal protections for an independent
counsel overseen by the Attorney General and appointed to investigate crimes al egedly
committed by certain government officials.269 According to the Seila Law majority, Morrison
upheld the removal restrictions on the independent counsel because they concerned an inferior
officer with limited duties and tenure who exercised no policymaking or administrative
authority.270 The majority opinion characterized these exceptions as, at least until now, the
“outermost constitutional limits” on Congress’s authority to restrict the President’s removal
power.271
The majority opinion concluded that the CFPB’s structure did not fit within either of these
exceptions. The CFPB’s single-Director structure contrasted with the model approved in
Humphrey’s Executor, a multimember expert body “balanced along partisan lines.”272 And the
CFPB’s wide ranging regulatory and enforcement authority contrasted, the Chief Justice
reasoned, with the FTC’s powers that the Court considered in 1935, which were limited to
“specified duties as a legislative or as a judicial aid,” such as conducting investigations and
reporting to Congress, as wel as making recommendations to courts.273 Likewise, the majority
opinion rejected Morrison as support for the CFPB’s removal restriction, as the CFPB Director is
not an inferior officer like the independent counsel in that case.274 The Court observed that the
duties of the CFPB Director are “far from limited” in the way that the independent counsel’s

265 Seila Law, 140 S. Ct. at 2197 (citing Myers, 272 U.S. at 164). See U.S. CONST. Art. II, § 1, cl. 3.
266 Seila Law, 140 S. Ct. at 2198.
267 Humphrey’s Ex’r v. United States, 295 U.S. 602, 631 (1935).
268 Seila Law, 140 S. Ct. at 2198. Justice Kagan’s dissent argued that the FT C’s powers were much more substantial in
1935 than the majority opinion recognized, and that “ in any case, the relevant point of comparison is the present -day
FT C, which remains independent.” Id. at 2239 n.10 (Kagan, J., dissenting). However, the majority opinion also stated
that its conclusion in Hum phrey’s Executor “ that the FTC did not exercise executive power has not withstood the test
of time.” Id. at 2198 n.2 (majority opinion).
269 Morrison v. Olson, 487 U.S. 654, 669 (1988).
270 Seila Law, 140 S. Ct. at 2199–200.
271 Id. (“T hese two exceptions—one for multimember 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.’”) (quoting PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 196 (D.C. Cir. 2018) (Kavanaugh, J.,
dissenting).
272 Id. at 2200. T he FT C had (and continues to have) five commissioners; no more than three can come from the same
political party. Humphrey’s Ex’r v. United States, 295 U.S. 602, 624 (1935); 15 U.S.C. § 41.
273 Seila Law, 140 S. Ct. at 2198, 2200 (quoting Humphrey’s Ex’r, 295 U.S. at 628).
274 Id.
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were.275 While the independent counsel’s jurisdiction was limited to specific government
officials, the CFPB wields “the coercive power of the state” over mil ions of people and private
businesses.276
Having distinguished these cases, the Court then asked whether it should “extend those
precedents” to affirm a unique type of entity—an independent agency with substantial executive
power led by a single Director.277 The Court declined to do so, reasoning that the unprecedented
nature of the CFPB’s structure was itself evidence of a constitutional violation.278 Chief Justice
Roberts observed that Congress has created four other agencies with a similar design to the
CFPB: the Comptroller of the Currency, the Social Security Administration, the Office of Special
Counsel, and the Federal Housing Finance Agency.279 But the Court dismissed these examples,
concluding that they were not suggestive of a sustained historical practice evidencing their
constitutionality. For example, the Comptroller only enjoyed removal protection for one year
during the Civil War, after which the position has remained subject to removal at wil by the
President.280 As for the other three examples, the Court reasoned that these are modern
innovations whose constitutionality has similarly been questioned.281 Moreover, the Court
concluded that none of those agencies are entrusted with the substantial regulatory and
enforcement power over private parties that the CFPB enjoys.282
The Court also concluded that the CFPB’s concentration of power in one person who is protected
from removal is inconsistent with the Constitution’s general structure.283 According to the Chief
Justice’s majority opinion, the Framers chose to divide governmental power as a means of
preventing its abuse: between the three branches of government, and again within the legislative
branch.284 But the Court viewed the executive power as unique in the constitutional structure in
that it is placed with one person, the President, who is directly accountable to the whole nation
through elections.285 The majority opinion concluded that the CFPB’s structure violated this
constitutional framework by placing significant power in a single individual who is not
accountable to the people or subject to the control of someone who is (the President).286
Responding to the argument that the statutory removal restriction at issue could be interpreted to
retain substantial discretion in the President to remove the CFPB Director and maintain control
over him, the Court concluded that no workable standard for removal had been advanced that was
rooted in the statutory text.287 And the Court likewise dismissed the argument in Justice Kagan’s
dissent for a pragmatic approach to structuring agencies that reflects the enormous technological
and economic changes in society since the Constitution was written.288 The majority opinion

275 Id. at 2200–01.
276 Id. at 2200.
277 Id. at 2201.
278 Id.
279 Id. at 2201–02.
280 Id. at 2201.
281 Id. at 2201–02.
282 Id.
283 Id. at 2204.
284 Id. at 2202–03.
285 Id. at 2203.
286 Id. at 2203–04.
287 Id. at 2206.
288 Id. at 2207.
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instead concluded that the urge to respond to societal change with novel governmental structures
“must be tempered by constitutional restraints that are not known—and were not chosen—for
their efficiency or flexibility.”289
While the Chief Justice’s analysis above was joined by Justices Thomas, Alito, Gorsuch and
Kavanaugh, the question of the proper remedy in the case split the coalition.290 Having concluded
that a single Director heading the CFPB with removal protection violated the separation of
powers, Chief Justice Roberts determined that the proper remedy in the case was to sever the
statutory removal restriction from the rest of the Dodd-Frank Act.291 This portion of the opinion
was joined by Justices Alito and Kavanaugh, but not by Justices Thomas and Gorsuch, who
issued an opinion dissenting from the severability analysis.292 Justice Kagan, joined by Justices
Breyer, Sotomayor, and Ginsburg, who dissented from the Court’s analysis regarding the CFPB’s
constitutionality, concurred in the judgment as to the proper remedy in the case.293
Concurring and Dissenting Opinions: Justice Thomas, joined by Justice Alito, issued an
opinion concurring and dissenting in part.294 He agreed with the majority opinion that the CFPB’s
structure violated the Constitution.295 But whereas the majority opinion viewed Humphrey’s
Executor as a narrow opinion with continued vitality, Justice Thomas would have overruled the
1935 case.296 He argued that the decision was wrongly decided at the time and its underlying
reasoning had been seriously eroded by subsequent decisions.297
He also dissented as to the majority opinion’s remedy of severing the removal restriction.298
Instead, Justice Thomas would have denied the petition to enforce the CFPB’s demand for
information from Seila Law LLC.299 He reasoned that while the Chief Justice’s decision to sever
the removal provision resolved the constitutional violation, there were other statutory provisions
that, if severed, would do the same.300 For instance, if the Court held that the CFPB lacked the
authority to issue the demand in the first place, that would similarly resolve the issue.301 And
because the statute’s severability clause gave no guidance as to which provision must be severed
here, the Court should simply deny enforcement of the demand,302 presumably leaving the choice
of amending the statute to Congress.
Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, issued a decision concurring
in the judgment as to severability but dissenting as to substantive constitutional issue.303 Her
opinion disputed the majority’s general rule that the President has unrestricted power to remove

289 Id.
290 See id. at 2191; id. at 2211 (T homas, J., concurring in part and dissenting in part).
291 Id. at 2209 (plurality opinion).
292 Id. at 2211 (T homas, J., concurring in part and dissenting in part).
293 Id. at 2224 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part).
294 Id. at 2211 (T homas, J., concurring in part and dissenting in part).
295 Id.
296 Id. at 2219.
297 Id. at 2216–18.
298 Id. at 2219.
299 Id. at 2220.
300 Id. at 2224.
301 Id.
302 Id.
303 Id. at 2224 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part ).
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officers except for two exceptions.304 Instead, she argued, Congress enjoys discretion to structure
administrative agencies as needed, so long as the President retains the ability to carry out his
duties under the Constitution.305 The Court’s imposition of its own rule—not grounded, according
to Justice Kagan, in the Constitution, history, or judicial precedent—impermissibly interferes with
the authority of the political branches and “commits the Nation to a static version of governance,
incapable of responding to new conditions and chal enges.”306 She also wrote, counter to the
majority’s concern that the CFPB’s single-Director structure improperly shields the agency from
presidential control, an agency headed by a single Director is actual y more responsive to a
President than a multimember Commission.307 For Justice Kagan, a multimember structure
diminishes accountability to the President because it is harder to control a group than a single
person.308 In fact, “that is why Congress so often resorts to hydra-headed agencies” in the first
place.309 Final y, although Justice Kagan disagreed with the Chief Justice’s decision as to the
constitutional issue, her opinion concurred with the Chief Justice’s ruling as to the proper remedy
in the case, to sever the offending removal restriction.310
Implications for Congress: Chief Justice Roberts’ decision in Seila Law contains significant
consequences for Congress’s ability to structure federal agencies. The majority opinion applied a
baseline constitutional rule of presidential power to remove officers at will, subject to the two
“exceptions” of Humphrey’s Executor and Morrison.311 By characterizing those exceptions as the
“outermost constitutional limits” of judicial y recognized restrictions on the President’s removal
authority, and rejecting the expansion of those limits to uphold the CFPB, the Court may view
attempts to create other agencies with structural independence from the President with skepticism
unless they closely mirror the configurations approved in those two cases.312 And the Court’s
emphasis on the CFPB’s novelty as indicative of a constitutional infirmity further suggests that
future attempts to create agencies with structural independence from the President must likely
conform to prior historical examples.313
That said, while the Court’s decision severed the CFPB Director’s statutory removal restriction,
this decision does not irrevocably tie Congress’s hands. If Congress currently prefers the CFPB to
possess insulation from presidential control, it could perhaps create an expert multimember Board
with removal protections to head an agency with authorities in aid of judicial and legislative
functions to fit within the exception of Humphrey’s Executor.314 Alternatively, Congress could

304 Id. at 2226.
305 Id.
306 Id.
307 Id. at 2242–43.
308 Id. at 2243.
309 Id. at 2243.
310 Id. at 2224.
311 Id. at 2199–200 (majority opinion).
312 Id. Aspects of Seila Law may even question the status of some existing multimember commissions. T he Court
described the exception of Hum phrey’s Executor as limited to “ multimember expert agencies that do not wield
substantial executive power.” Id.; see also Sunstein, Cass R. & Vermeule, Adrian, T HE UNITARY EXECUTIVE: PAST,
PRESENT, FUTURE (August 3, 2020). Forthcoming, Supreme Court Review, available
at https://ssrn.com/abstract=3666130.
313 Seila Law, 140 S. Ct. at 2201 (“ Such an agency has no basis in history and no place in our constitutional
structure.”).
314 Id. (“Our severability analysis does not foreclose Congress from pursuing alternative responses to the problem —for
example, converting the CFPB into a multimember agency.”).
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subject the Director to supervision and narrow his jurisdiction while providing the Director with
removal protections to fit within Morrison’s exception.315
Seila Law wil also have implications for existing agencies. The Court identified three other
agencies whose sole heads currently possess statutory removal protections.316 It distinguished the
Social Security Administration and the Office of Special Counsel as not wielding regulatory or
enforcement authority akin to the CFPB, perhaps indicating that the Court does not consider those
agencies to possess the substantial executive authority requiring presidential removal at wil .317
With respect to the Federal Housing Finance Agency, however, the Court noted that an en banc
Fifth Circuit already ruled that the agency’s structure violated the separation of powers.318 The
Court has granted certiorari in that case,319 in which it could apply and further clarify the
principles of Seila Law.
Access to Personal Presidential Records320
On July, 9 2020, the Supreme Court issued a pair of decisions written by Chief Justice Roberts
concerning subpoenas issued for the President’s personal financial records and tax returns. In
Trump v. Vance the Court held that (1) the President is not categorical y immune from state
investigative subpoenas; and (2) state prosecutors (or state grand juries) need not satisfy a
heightened standard to issue a subpoena for a sitting President’s private papers.321 In Trump v.
Mazars, the Court similarly clarified that there is no categorical bar to Congress issuing a
subpoena for the President’s “personal information,” but held that when evaluating such a
subpoena, courts must adequately consider the “weighty” separation-of-powers issues
involved.322 Although making important threshold determinations, neither Vance nor Mazars
directed that the subpoenaed documents be turned over to the requesting parties. Both opinions
instead remanded the cases to the courts below for further proceedings, leaving the question of
whether the President’s personal records must be disclosed for another day.323

315 Morrison v. Olson, 487 U.S. 654, 669 (1988).
316 Seila Law, 140 S. Ct. at 2201.
317 Id. at 2201–02. T hat said, application of the Court’s baseline rule of presidential power to remove officers at will
except for two narrow exceptions might call into question the structure of those agencies as well.
318 See Collins v. Mnuchin, 938 F.3d 553, 587–88 (5th Cir. 2019).
319 Collins v. Mnuchin, No. 19-422, 2020 WL 3865248, at *1 (July 9, 2020).
320 T odd Garvey, CRS Legislative Attorney, authored this section of the memorandum.
321 T rump v. Vance, 140 S. Ct. 2412, 2429, 2430 (2020).
322 T rump v. Mazars USA, LLP, 140 S. Ct. 2019, 2035 (2020).
323 Vance, 140 S. Ct. at 2431; Mazars, 140 S. Ct. at 2036. On remand in Vance, President T rump challenged the state
subpoena on various grounds, but notably did not “allege separate and discrete constitutional claims of the sort
suggested by the Supreme Court.” T rump v. Vance, No. 19 Civ. 8694, 2020 WL 4914390, at *21 n.13 (S.D.N.Y. Aug.
20, 2020). For example, the President did “not specify any presidential duties or policies that the District Attorney
allegedly sought to manipulate, and . . . [did] not clearly allege that Mazars’ compliance with the subpoena would
impede any specific Article II duty.” Id. Instead, the President challenged the subpoena on the grounds that it was
“overbroad” and issued in “bad faith.” Id. at *3. On August 20, 2020, the district court rejected those arguments. Id.
T hat decision has been appealed to the U.S. Court of Appeals for the Second Circuit. T he district court has not yet ruled
in the Mazars remand.
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Trump v. Vance
Background: Vance arose from a state-grand-jury subpoena issued by the New York County
District Attorney in the course of an investigation into the business practices of President Trump
and the Trump Organization.324 The subpoena, which sought financial records from 2011 to the
present, was not issued to the President or the Trump Organization, but to Mazars USA (Mazars),
the President’s personal accounting firm. President Trump then brought suit against Mazars and
the District Attorney, seeking to block Mazars from complying with the subpoena on the ground
that “under Article II and the Supremacy Clause, a sitting President enjoys absolute immunity
from state criminal process.”325 The district court dismissed the case, finding the President’s
immunity argument “repugnant to the nation’s governmental structure and constitutional values,”
but choosing not to exercise jurisdiction under an abstention doctrine that general y discourages
courts from intervening in an ongoing state criminal proceeding.326 The Second Circuit disagreed,
determining that abstention was inappropriate and holding that “presidential immunity does not
bar the enforcement of a state grand jury subpoena directing a third party to produce non-
privileged material, even when the subject matter under investigation pertains to the President.”327
The Supreme Court has previously considered arguments for a presidential immunity from
judicial process. For example, the Court has held that the President enjoys “absolute immunity”
from civil liability for his “official acts”328 but is not immune from civil suits predicated on
“private conduct” occurring prior to taking office.329 In the criminal realm, the Court also
determined in the landmark case of United States v. Nixon that a subpoena for documents may be
issued (and enforced) against a sitting President as part of a federal criminal proceeding.330 But
prior to Vance, the Court had never directly addressed how presidential immunity applies, if at al ,
in the context of a state criminal investigation.
Supreme Court’s Decision: The Court made two key holdings in Vance. First, the Court
unanimously held that the President is not categorical y immune from state criminal subpoenas.331
And second, seven justices concluded that the Constitution does not require that state grand jury
subpoenas for a President’s personal documents satisfy a “heightened need standard.”332

324 Vance, 140 S. Ct. at 2420.
325 Id.
326 T rump v. Vance, 395 F. Supp. 3d 283, 290 (S.D.N.Y. 2019). In the event that the Second Circuit disagreed with its
abstention holding, the district court, as an alternative holding, also rejected the President’s asserted immunity. Id. at
301.
327 T rump v. Vance, 941 F. 3d 631, 637, 640 (2d Cir. 2019).
328 Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982) (holding that “absolute immunity from damages liability predicated
on [a President’s] official acts” was a “ functionally mandated incident of the President’s unique office, rooted in the
constitutional tradition of the separation of powers and supported by our history”).
329 Clinton v. Jones, 520 U.S. 681, 705 (1997) (rejecting a claim of temporary presidential immunity from civil suits
predicated on “unofficial conduct”).
330 United States v. Nixon, 418 U.S. 683, 713 (1974). T he Vance opinion clarified that the Nixon holding is supported
by the practice of Presidents who have generally provided information in federal criminal proceedings since at least the
administration of T homas Jefferson. Vance, 140 S. Ct. at 2421–24. T he Court also relied heavily on United States v.
Burr, 25 F. Cas. 30, 34 (CC Va. 1807) (No. 14,692d), an opinion in which Chief Justice John Marshall, presiding as a
circuit justice over the Aaron Burr trial, held that the Constitution does not exempt the P resident from subpoenas issued
as part of a criminal trial. Vance, 140 S. Ct. at 2421–23.
331 Vance, 140 S. Ct. at 2429 (“[W]e cannot conclude that absolute immunity is necessary or appropriate under Article
II or the Supremacy Clause. Our dissenting colleagues agree.”).
332 Id.
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On the question of categorical immunity, the Court reasoned that presidential immunity from a
subpoena is appropriate only where compliance would amount to a “constitutional y forbidden
impairment of the Executive’s ability to perform its constitutional y mandated functions.”333 The
President asserted that state criminal subpoenas categorical y constituted such an impairment by
(1) distracting him from his duties; (2) creating a stigma that would “undermine his leadership”;
and (3) subjecting him to harassment.334 The Court, after noting numerous historical instances in
which Presidents have previously either testified or provided documents in federal criminal
proceedings, rejected al three arguments in the context of a state criminal investigation.335 In so
doing, the Court relied primarily on Clinton v. Jones, a previous opinion in which it had rejected
similar assertions of impermissible distraction and interference arising from a subpoena in the
context of a federal civil suit.336 Even when the President is the target of the investigation, the
Court reasoned that “[t]wo centuries of experience . . . confirm that a properly tailored criminal
subpoena wil not normal y hamper the performance of a President’s constitutional duties.”337 Nor
could the stigma of being subpoenaed or concerns of harassment justify absolute immunity,
according to the Court, especial y in light of the various “safeguards” that deter abuse of specific
state investigative subpoenas.338
The Court also held that the Constitution does not require a heightened showing of need before a
state grand jury can issue a subpoena for a President’s private papers. The Solicitor General,
arguing on behalf of the government, took the position that a “threshold showing” of a “critical”
and imminent need was necessary to support the state subpoena,339 a legal standard derived from
cases involving executive privilege. The Court rejected that argument, concluding that such a
standard would “extend protection designed for official documents to the President’s private
papers” and conflict with the “public interest in fair and effective law enforcement” potential y
“hobbl[ing] the grand jury’s ability to acquire” information necessary for its investigation.340
The Court clarified, however, that its holding did not leave the President without recourse when
faced within a state criminal subpoena. Although not categorical y immune, a President remains
free to chal enge a specific state subpoena demand on various grounds, including that it
impermissibly interferes with the President’s official duties in violation of the Supremacy Clause
or perhaps that the subpoena demands privileged information, including communications
protected by executive privilege.341
Concurring and Dissenting Opinions: Justice Kavanaugh issued a concurring opinion joined by
Justice Gorsuch, agreeing that the President possessed no absolute immunity from the state

333 Id. at 2425 (citing Clinton, 520 U.S. at 702–03).
334 Id. at 2425–29.
335 Id. at 2421–29.
336 Id. at 2426–27 (repeatedly noting that “nearly identical” arguments were rejected in Clinton).
337 Id. at 2418.
338 Id. at 2429. Examples of existing safeguards include grand jury secrecy rules; the fact that “ grand juries are
prohibited from engaging in ‘arbitrary fishing expeditions’ or initiating investigations ‘ out of malice or an intent to
harass’”; and that the “ Supremacy Clause prohibits state judges and prosecutors from interfering with a President’s
official duties.” Id. at 2428 (quoting United States v. R. Enters., Inc., 498 U.S. 292, 299 (1991)).
339 Id. at 2429. As the Court noted, the proposed heightened standard “ derived from executive privilege cases.” Id.
340 Id. at 2430.
341 Id. (“Rejecting a heightened need standard does not leave Presidents with ‘no real protection.’”). The President also
retains objections that may be raised by ordinary citizens. Id. (noting that these objections include “ the right to
challenge the subpoena on any grounds permitted by state law, which usually include bad faith and undue burden or
breadth”).
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subpoena (and therefore concurring in the judgment), but somewhat diverging from the majority
opinion on the question of whether to apply a heightened need standard.342 Justice Kavanaugh
would have applied a heightened standard adopted by the Court in Nixon under which a state
prosecutor would need to “establish a ‘demonstrated, specific need’ for the President’s
information.”343
Justices Thomas and Alito authored dissenting opinions. Although both rejected the President’s
position that he was immune from the merely being subject to any state subpoena, each Justice
would have required additional considerations before enforcing a specific subpoena. Justice
Thomas would have vacated and remanded the lower court opinion to address whether
enforcement of the subpoena should be enjoined if the President can establish that “his duties as
chief magistrate demand his whole time for national objects.”344 Justice Alito, similarly would
have concluded that “a subpoena like the one now before us should not be enforced unless it
meets a test that takes into account the need to prevent interference with a President’s discharge
of the responsibilities of the office.”345
Implications for Congress: The Vance opinion’s direct implications for Congress are not readily
apparent. The holding applies to state level criminal investigations, and therefore most directly
affects the operation of state prosecutors and state grand juries. But the opinion’s general
separation-of-powers principles and rejection of the asserted Presidential immunity, especial y in
conjunction with the Courts holding in Mazars, may weaken other absolute and categorical
immunity arguments that have been made in response to congressional demands for
information.346 The opinion may also prove important if Congress chooses to legislate on the
issue of Presidential immunity general y.347
Trump v. Mazars USA, LLP
Background: The Supreme Court has previously established that because the power to issue and
compel compliance with a congressional subpoena derives from the Constitution’s grant of
“legislative power,” it may only be exercised in “aid [of the] legislative function.”348 Although the
resulting investigative power is both “penetrating” and “far-reaching,” the Court has general y
implemented the required nexus between a subpoena and the legislative function by mandating
that the subpoena serve a valid “legislative purpose.”349 In the past, this standard has queried
whether the subpoenaed information is “related to, and in furtherance of, a legitimate task of

342 Vance, 140 S. Ct. at 2431–33 (Kavanaugh, J. concurring).
343 Id. at 2432 (“ T he Nixon ‘demonstrated, specific need’ standard is a tried-and-true test that accommodates both the
interests of the criminal process and the Article II interests of the Presidency. ”) (quoting United States v. Nixon, 418
U.S. 683, 713 (1974)).
344 Id. at 2434 (T homas, J. dissenting) (quoting United States v. Burr, 25 F. Cas. 30, 34 (CC Va. 1807) (No. 14,692d))
(internal quotation marks omitted).
345 Id. at 2448 (Alito, J. dissenting); see also id. at 2449 (“ T hus, in a case like this one, a prosecutor should be required
(1) to provide at least a general description of the possible offenses that are under investigation, (2) to outline how the
subpoenaed records relate to those offenses, and (3) to explain why it is important that the records be produced and
why it is necessary for production to occur while the President is still in office.”).
346 See CRS Legal Sidebar LSB10301, Legislative Purpose and Adviser Immunity in Congressional Investigations, by
T odd Garvey (discussing claims of absolute immunity for close presidential advisers).
347 See Brett M. Kavanaugh, Separation of Powers During the Forty Fourth Presidency and Beyond , 93 MINN. L. REV.
1454, 1459–62 (2009) (discussing Congress’s authority to affect presidential immunity through legislation).
348 Kilbourn v. T hompson, 103 U.S. 168, 189 (1881).
349 Barenblatt v. United States, 360 U.S. 109, 111 (1959).
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Congress.”350 Because Congress exercises authority over an immense range of subjects, the
legislative purpose test has imposed only a handful of relatively narrow limitations on the topics
appropriate for congressional investigation. Congress may not, for example, probe purely private
conduct with no relation to the legislative function351 or investigate for purposes of “law
enforcement,” for example by seeking to “try” or “punish” an individual for a “crime or
wrongdoing.”352 Even if Congress has a legislative purpose for seeking information, committee
investigations also remain subject to other external constitutional restrictions, including the
separation of powers and the rights and privileges of the Bil of Rights.353
The Mazars opinion addressed the consolidated cases of Trump v. Mazars USA, LLP and Trump v.
Deutsche Bank.354 Both cases involved lawsuits filed by President Trump, his family, and the
Trump Organization to block private financial entities from complying with subpoenas issued by
House committees for various personal financial records, ranging from 2010 to the present and
including the President’s tax returns.355 The chal enged subpoenas were issued as part of different
ongoing committee investigations: the House Committee on Oversight and Reform sought
information in connection to its ongoing review of federal ethics laws; the House Financial
Services Committee sought information in connection to its investigation into abuses of the
financial system; and the House Permanent Select Committee on Intel igence sought information
in connection to its investigation into foreign interference in U.S. elections.356 President Trump
and the other plaintiffs objected to these subpoenas, but did not argue that he was categorically
immune from congressional subpoenas or that the information sought was privileged. Instead, the
President asserted that the Committees had no “legitimate legislative purpose” for inquiring into
his private affairs and transactions and therefore no constitutional authority to compel the

350 Watkins v. United States, 354 U.S. 178, 187 (1957).
351 McGrain v. Daugherty, 273 U. S. 135, 173–74 (1927).
352 Id. at 179; Quinn v. United States, 349 U.S. 155, 161 (1955).
353 Watkins, 354 U.S. at 188. In Mazars, the Court stated that recipients of a subpoena “have long been understood to
retain com m on law and constitutional privileges with respect to certain materials, such as attorney-client
communications and governmental communications protected by executive privilege.” Mazars, 140 S. Ct. at 2032
(emphasis added). Although congressional commit tees will at times accept assertions of common law privileges like
the attorney-client privilege during an investigation, the Court’s statement in Mazars is in conflict with existing and
historically long-held congressional views that Congress is not legally bound by the assertion of such privileges. See,
e.g. H. REP . NO 105-569 at 21 (“ Moreover, as to judicially created attorney -client and deliberative process privileges for
litigation, precedent dictates that those privileges do not apply to Congressional Committees. Chairman Cubin stated
that it is ‘for the Congress to determine at its sole and sound discretion to accept any claim of any attorney privilege
that the executive exerts.’”); CRS Report RL30240, Congressional Oversight Manual, coordinated by Christopher M.
Davis, Walter J. Oleszek, and Ben Wilhelm at 40 (noting that a claim of attorney client privilege may “ receive
substantial weight” but “it is the congressional committee alone that determines whether to accept” such a claim);
Andrew McCanse Wright, Congressional Due Process, 85 MISS. L.J. 401, 443 (2016) (noting that “Congress treats”
common law privileges as “as advisory rather than binding”) For example, two standing House committees have
existing rules stating that claims of “common-law privileges” made during hearings or investigations “are applicable
only at the discretion of the Chair.” See Rules Adopted by the Committees of the House of Representatives, RCP 116 -
25, 116th Cong. (2019) at 188, 225 (Rules of the Committee on Natural Resources, Committee on Science Space and
T echnology).
354 T rump v. Mazars USA, LLP, 140 S. Ct. 2019, 2028 (2020).
355 Id. T he suits were brought by the “ President in his personal capacity, along with his children and affiliated
businesses.” Id. T he grand jury subpoena at issue in Vance “ essentially copied” the subpoena issued to Mazars by the
Committee on Oversight and Reform. See Vance, 140 S. Ct. at 2420 n.2.
356 Mazars, 140 S. Ct. at 2027–28.
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disclosure of the information sought.357 The House intervened in each case to protect its
institutional interests.358
Applying the deferential legislative-purpose standard used by the Court in previous cases,359 the
opinions below concluded that the chal enged subpoenas were valid as the committees had a valid
legislative purpose for seeking the President’s personal records in that the requests were intended
to inform possible legislation.360 On appeal to the Supreme Court, Mazars presented the Court
with its first opportunity to directly consider the legislative purpose test in an investigation of the
President.
Supreme Court’s Decision: As a threshold matter, the Court began by characterizing the case as
a “significant departure from historical practice.” Interbranch disputes361 over congressional
access to information, the Court observed, have historical y been resolved through a “tradition of
negotiation and compromise” rather than through litigation.362 As a result, Mazars was the “first
of its kind to reach” the Court.363 That “longstanding practice” of judicial non-intervention was “a
consideration of great weight” that, the Court reasoned, “imposes on us a duty of care to ensure
that we not needlessly disturb ‘the compromises and working arrangements that [those] branches
. . . themselves have reached.’”364
With that background in mind, the Mazars opinion clarified that in the context of congressional
investigations the President must, as a constitutional matter, be treated differently than others.365
Writing for a seven-Justice majority, Chief Justice Roberts described the courts below as having
mistakenly “treated these cases much like any other,” applying standards and principles
established in “precedents that do not involve the President’s papers.”366 Subpoenas for the
President’s personal records, the Court determined, involve significant separation-of-powers
concerns that trigger a different, more scrutinizing approach to the scope of Congress’s power.
But as in Vance, the Court again rejected as inappropriate invitations to import the heightened
“demonstrated, specific need” or “demonstrably critical” standards that had been used in prior

357 Id. at 2028.
358 Mazars and Deutsche Bank took no position on the case. Id.
359 See CRS Legal Sidebar LSB10301, Legislative Purpose and Adviser Immunity in Congressional Investigations, by
T odd Garvey.
360 Mazars, 140 S. Ct. at 2028–29.
361 Although the committee subpoenas were not issued directly to the President and the lawsuits were brought by the
President (in his private capacity) against a private bank and accounting firm, the Court nevertheless viewed the case as
an “interbranch conflict” between the President and the House of Representatives. Id. at 2035 (“Congressional demands
for the President’s information present an interbranch conflict no matter where the information is held—it is, after all,
the President’s information.”).
362 Id. at 2031.
363 Id. Investigative disagreements between the branches have previously reached the lower federal courts. See, e.g.,
Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 , 726 (D.C. Cir. 1974); Comm. on
Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 104, 107 (D.D.C. 2016); Comm. on the Judiciary v. Miers,
558 F. Supp. 2d 53, 63–64 (D.D.C. 2008); United States v. U.S. House of Representatives, 556 F. Supp. 150, 151–52
(D.D.C. 1983).
364 Mazars, 140 S. Ct. at 2031 (alterations in original) (internal quotation mark omitted) (quoting NLRB v. Noel
Canning, 573 U.S. 513, 524, 526 (2014)).
365 Id. at 2026. See also United States v. Burr, 25 F. Cas. 187, 192 (CC Va. 1807) (No. 14,694) (noting that the court
would not “proceed against the president as against an ordinary individual”). T he Mazars opinion also treated a
congressional investigat ion as “ different” from a “ judicial proceeding.” Mazars, 140 S. Ct. at 2026.
366 Mazars, 140 S. Ct. at 2033.
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cases involving executive privilege.367 Instead, the Chief Justice identified at least four “special
considerations” to help lower courts to appropriately balance the “legislative interests of
Congress” with “the ‘unique position’ of the President” when a committee subpoena seeks the
President’s private papers.368
 First, a reviewing court should “carefully assess whether the asserted legislative purpose
warrants the significant step of involving the President and his papers.”369 The Court
elaborated that Congress’s “interests are not sufficiently powerful to justify access to the
President’s personal papers when other sources could provide Congress the information
it needs.”370
 Second, courts “should insist on a subpoena no broader than reasonably necessary to
support Congress’s legislative objective.”371 Specific demands, the High Court reasoned,
are less likely to “intrude” on the operation of the Presidency.372
 Third, “courts should be attentive to the nature of the evidence offered by Congress to
establish that a subpoena advances a valid legislative purpose.”373 To this end,
Congress’s position is strengthened when a congressional committee can provide
“detailed and substantial evidence” of its legislative purpose.374
 Fourth, “courts should be careful to assess the burdens imposed on the President by a
subpoena.”375 Here the Court reasoned that in comparison to the burdens imposed by
judicial subpoenas like those addressed in Vance, the burdens imposed on the President
by congressional subpoenas “should be carefully scrutinized, for they stem from a rival
political branch that has an ongoing relationship with the President and incentives to use
subpoenas for institutional advantage.”376
These “special considerations” appear to subject congressional subpoenas for the President’s
personal records to a less deferential standard than other congressional subpoenas. The Court did
not apply these considerations to the committee subpoenas at issue, but instead left that task to the
lower courts on remand. Moreover, the Court cautioned that “other considerations,” besides those
specifical y identified, might also be relevant, as “one case every two centuries does not afford
enough experience for an exhaustive list” of factors to be considered by a reviewing court.377
Dissenting Opinions: Justices Thomas and Alito issued dissenting opinions.

367 Id. at 2032–33 (“ We disagree that these demanding standards apply here. . . . We decline to transplant that
protection root and branch to cases involving nonprivileged, private information, which by definition does not
implicate sensitive Executive Branch deliberations.”). T he Court also rejected the House’s proposed approach, which it
characterized as failing to “ take adequate account of the significant separation of powers issues raised by congressional
subpoenas for the President’s information.” Id. at 2033.
368 Id. at 2035 (quoting Clinton v. Jones, 520 U.S. 681, 698 (1997)).
369 Id.
370 Id. at 2036.
371 Id.
372 Id.
373 Id.
374 Id.
375 Id.
376 Id.
377 Id.
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Justice Thomas would have held that “Congress has no power to issue a legislative subpoena for
private, nonofficial documents—whether they belong to the President or not.”378 That conclusion,
he argued, flows from a lack of historical precedent prior to 1830, including the fact that “no
founding-era Congress issued a subpoena for private, non-official documents.”379 Justice Thomas
also cast doubt on the validity of McGrain v. Daugherty, the Court’s 1927 opinion recognizing a
broad congressional subpoena power, describing that opinion as “lack[ing] any foundation in text
or history” at least as regards its application to private documents.380 In Justice Thomas’s view, if
the committee wished to require disclosure of the information it seeks, it could do so only under
the impeachment power.381
Justice Alito found the majority’s “special considerations” to be “inadequate” to protect the
President’s interests.382 Because “legislative subpoenas for a President’s personal documents are
inherently suspicious,” he would have gone further and required the House to justify its need for
the information more fully. The committees, Justice Alito would have held, should be made to
“provide a description of the type of legislation being considered,” “spel out its constitutional
authority to enact the type of legislation that it is contemplating,” “justify the scope of the
subpoenas in relation to the articulated legislative needs” and “explain why the subpoenaed
information, as opposed to information available from other sources, is needed.”383
Implications for Congress: The Court neither approved nor rejected the individual committee
subpoenas issued to Mazars or Deutsche Bank. Nor did it hint at how each individual subpoena
should fare in the face of the new considerations other than to observe general y that “[l]egislative
inquiries might involve the President in appropriate cases.”384 However applied, the majority
opinion sought to chart a course for reviewing subpoena requests for the President’s personal
information that was somewhere between the standard favored by the House, which the Court
described as “ignor[ing] that these suits involve the President,” and the standard advanced by the
President and the Solicitor General, which would have applied “the same exacting standards to al
subpoenas for the President’s information, without recognizing distinctions between privileged
and nonprivileged information, between official and personal information, or between various
legislative objectives.”385
The identified considerations do, however, indicate that the enforceability of the subpoenas must
be addressed on a case-by-case basis. Although the committee subpoenas overlap, each
committee provided different justifications to support their demands.386 As a result, the nature of
each committee’s need for the President’s personal information varies, and it is therefore
conceivable—and perhaps likely—that the lower courts, though applying the same standards, wil
reach different conclusions as to the validity of the individual committee subpoenas. It appears,
for example, that a committee articulating a specific and detailed need for a narrow set of
documents is in a stronger position than one who can assert only a generalized need for a broad

378 Mazars, 140 S. Ct. at 2037 (T homas, J. dissenting).
379 Id. at 2040.
380 Id. at 2045.
381 Id. at 2045–47.
382 Id. at 2048 (Alito, J. dissenting).
383 Id.
384 Mazars, 140 S. Ct. at 2033 (majority opinion).
385 Id.
386 Id. at 2027–28.
Congressional Research Service
34

Supreme Court October Term 2019: A Review of Selected Major Rulings

array of documents, or one that is using the President as a “case study.”387 Ultimately, the Mazars
“special considerations”388 are likely to spur ongoing and perhaps protracted litigation regarding
the validity of the existing committee subpoenas.
Given the Mazars opinion’s focus on the office of the President and its specific role in the
separation of powers, the opinion itself does not purport to extend beyond subpoenas for
presidential records, to also affect congressional investigations of other executive branc h officials
or agencies.389 Although not directly addressed by the Court, those investigations and any
resulting subpoenas, would appear to remain subject to the traditional—and more deferential—
“legislative purpose” test. As to future investigations of the President, the opinion provides
congressional committees with four central considerations when issuing subpoenas for
presidential records. For example, it would appear that committees wil be in a stronger position
if they issue a narrow and targeted subpoena while thoroughly articulating the committee’s need
for the information and its close relationship to the committee’s legislative purpose.390
However interpreted, the Mazars opinion appears to add an arrow to the President’s quiver when
responding to congressional investigations. Future subpoenas for presidential records may very
wel be met with arguments that the committee lacks authority to seek presidential information
grounded in the considerations identified by the majority opinion. These arguments may be made
not only in court, but also much earlier in the investigative process during political negotiations
between the legislative and executive branches over disputed information.391 For example,
Congress may be faced with claims that the President need not comply with congressional
subpoenas because the information sought can be obtained elsewhere, or that unlike in judicial
fact finding which requires “full disclosure of al the facts,” “efforts to craft legislation involve
predictive policy judgments” that may not require “every scrap of potential y relevant
evidence.”392 And these claims relate only to the threshold question of whether a given subpoena
is within Congress's authority to issue. Once these arguments are addressed, committees and
courts must stil resolve any objections based on applicable privileges.

387 Id. at 2036.
388 Id. at 2035.
389 T he majority opinion repeatedly refers to the office of the Presidency and its role in the separation of powers, rather
than the executive branch writ large. See, e.g., id. at 2034 (“ The President is the only person who alone composes a
branch of government.”); id. at 2035 (“Congressional demands for the President’s information present an interbranch
conflict no matter where the information is held—it is, after all, the President’s information.”); id. (“ We therefore
conclude that, in assessing whether a subpoena directed at the President’s personal information is ‘related to, and in
furtherance of, a legitimate task of the Congress,’ courts must perform a careful analysis that takes adequate account of
the separation of powers principles at stake . . . .”) (citations omitted); id. at 2036 (referring to “ President’s unique
constitutional position”).
390 Id. at 2035–36.
391 See CRS Report R45653, Congressional Subpoenas: Enforcing Executive Branch Compliance, by T odd Garvey at
28 (noting Congress’s reliance on the “t raditional process of negotiation, accommodation, and compromise to
encourage compliance”).
392 Mazars, 140 S. Ct. at 2036.
Congressional Research Service
35

Appendix. Supreme Court’s October 2019 Term
Table A-1. Cases the Court Heard During the October 2019 Term
Central Question(s) Presented (Italics) and Holding (Bold)
Case
Date of
(as Quoted from SCOTUSBlog.com and the Supreme Court Syl abus with minor
Name of Case
Number
Opinion
alterations)
Area(s) of Lawa
Agency for Int’l
19-177
6/29/20
Fol owing the Supreme Court’s decision in Agency for International Development v. Al iance
Constitutional Law
Development v.
for Open Society International Inc. ruling that a law requiring United States-based
Al iance for Open
organizations to adopt a policy opposing prostitution violated the First Amendment, whether the
Society
First Amendment further bars enforcement of that law with respect to legal y distinct foreign
entities operating overseas that are affiliated with respondents.
Because foreign affiliates of American nongovernmental organizations
possess no First Amendment rights, the United States Leadership Against
HIV/AIDS, Tuberculosis, and Malaria Act’s funding requirement that
organizations have “a policy explicitly opposing prostitution and sex
trafficking,” 22 U.S.C. § 7631(f), is not unconstitutional as applied to them.
Al en v. Cooper
18-877
3/23/20
Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy
Constitutional Law
Clarification Act in providing remedies for authors of original expression whose federal copyrights
Copyright Law
are infringed by states.
Congress lacked authority to abrogate the states’ sovereign immunity from
copyright infringement suits in the Copyright Remedy Clarification Act of
1990.
Atlantic Richfield Co. v.
17-1498
4/20/20
(1) Whether a common-law claim for restoration seeking cleanup remedies that conflict with
Environmental Law
Christian
remedies the Environmental Protection Agency (EPA) ordered is a jurisdictional y barred
“chal enge” to the EPA’s cleanup under 42 U.S.C. § 9613 of the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA); (2) whether a landowner at a Superfund
site is a “potential y responsible party” that must seek EPA approval under 42 U.S.C.
§ 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered
the landowner to pay for a cleanup; and (3) whether CERCLA pre-empts state common-law
claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.
The Montana Supreme Court erred by holding that respondent landowners
were not potentially responsible parties under CERCLA and thus did not
need EPA’s approval to take remedial action.
CRS-36

Central Question(s) Presented (Italics) and Holding (Bold)
Case
Date of
(as Quoted from SCOTUSBlog.com and the Supreme Court Syl abus with minor
Name of Case
Number
Opinion
alterations)
Area(s) of Lawa
Babb v. Wilkie
18-882
4/6/20
Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967
Civil Rights
(ADEA), which provides that personnel actions affecting agency employees aged 40 years or
older shal be made free from any “discrimination based on age,” 29 U.S.C. §633a(a), requires
a plaintiff to prove that age was a but-for cause of the chal enged personnel action.
The plain meaning of 29 U.S.C. § 633a(a), the federal-sector provision of the
ADEA, demands that personnel actions be untainted by any consideration of
age, and while age need not be a but-for cause of an employment decision,
but-for causation is important in determining the appropriate remedy that
may be obtained.
Banister v. Davis
18-6943
6/1/20
Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized
Criminal Law &
as a second or successive habeas petition under Gonzalez v. Crosby.
Procedure
Because a Federal Rule of Civil Procedure 59(e) motion to alter or amend a
habeas court’s judgment is not a second or successive habeas petition under
28 U.S.C. § 2244(b), Banister’s appeal was timely.
Barr v. American Assn.
19-631
7/6/20
Whether the government-debt exception to the Telephone Consumer Protection Act of 1991’s
Communications Law
of Political Consultants,
automated-cal restriction violates the First Amendment, and whether the proper remedy for any
Constitutional Law
Inc.
constitutional violation is to sever the exception from the remainder of the statute.
The Fourth Circuit’s judgment—that the robocall restriction’s government-
debt exception in 47 U.S.C. § 227(b)(1)(A)(iii) violates the First Amendment
but is severable from the remainder of the statute—is affirmed.
Barton v. Barr
18-725
4/23/20
Whether a lawful y admitted permanent resident who is not seeking admission to the United
Immigration
States can be “render[ed] . . . inadmissible” for the purposes of the stop-time rule, 8 U.S.C.
§ 1229b(d)(1).
In determining eligibility for cancellation of removal of a lawful permanent
resident who commits a serious crime, an offense listed in 8 U.S.C.
§ 1182(a)(2) committed during the initial seven years of residence can
preclude cancellation of removal even if it was not one of the offenses that
provided the grounds for removal.
Bostock v. Clayton
17-1618
6/15/20
Whether discrimination against an employee because of sexual orientation constitutes
Civil Rights Law
Countyb
prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the
Labor & Employment
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
Law
An employer who fires an individual merely for being gay or transgender
violates Title VII of the Civil Rights Act of 1964.
CRS-37

Central Question(s) Presented (Italics) and Holding (Bold)
Case
Date of
(as Quoted from SCOTUSBlog.com and the Supreme Court Syl abus with minor
Name of Case
Number
Opinion
alterations)
Area(s) of Lawa
Chiafalo v. Washington
19-465
7/6/20
Whether a Washington state law that fines presidential electors who vote contrary to how the
Constitutional Law
law directs is unconstitutional because a state has no power to enforce how a presidential
elector casts his or her bal ot and a state penalizing an elector for exercising his or her
constitutional discretion to vote violates the First Amendment.
A State may enforce an elector’s pledge to support his party’s nominee—and
the state voters’ choice—for President.
CITGO Asphalt
18-565
3/30/20
Whether under federal maritime law a safe-berth clause in a voyage charter contract is a
Admiralty & Maritime
Refining Co. v. Frescati
guarantee of a ship’s safety or a duty of due diligence.
Law
Shipping Co., Ltd.
The plain language of the safe-berth clause in the parties’ subcharter
agreement—requiring petitioners to designate a safe berth for a vessel to
load and discharge cargo—establishes a warranty of safety.
Colorado Dept. of
19-518
7/8/20
Whether Article II or the 12th Amendment bars a state from requiring its presidential electors
Constitutional Law
State v. Baca
to fol ow the state’s popular vote when casting their electoral-col ege bal ots.
The Tenth Circuit’s judgment is reversed for the reasons stated in Chiafalo v.
Washington, which held that a State may enforce an elector’s pledge to
support his party’s nominee—and the state voters’ choice—for President.
Comcast Corp. v.
18-1171
3/23/20
Whether a claim of race discrimination under 42 U.S.C. § 1981 fails in the absence of but-for
Civil Rights
National Association of
causation.
African American-
A plaintiff who sues for racial discrimination in contracting under 42 U.S.C.
Owned Media
§ 1981 bears the burden of showing that race was a but-for cause of the
plaintiff’s injury, and that burden remains constant over the life of the
lawsuit.
County of Maui,
18-260
4/23/20
Whether the Clean Water Act (CWA) requires a permit when pol utants originate from a point
Environmental Law
Hawai v. Hawai
source but are conveyed to navigable waters by a nonpoint source, such as groundwater.
Wildlife Fund
Because the CWA forbids “any addition” of any pollutant from “any point
source” to “navigable waters” without the appropriate EPA permit, 33
U.S.C. §§ 1311(a), 1362(12)(A), the CWA requires a permit when there is a
direct discharge from a point source into navigable waters or when there is
the functional equivalent of a direct discharge.
CRS-38

Central Question(s) Presented (Italics) and Holding (Bold)
Case
Date of
(as Quoted from SCOTUSBlog.com and the Supreme Court Syl abus with minor
Name of Case
Number
Opinion
alterations)
Area(s) of Lawa
Department of
18-587
6/18/20
(1) Whether the Department of Homeland Security’s (DHS) decision to wind down the
Administrative Law
Homeland Security v.
Deferred Action for Childhood Arrivals (DACA) policy is judicial y reviewable; and (2) whether
Immigration
Regents of the
DHS’s decision to wind down the DACA policy is lawful.
University of Californiab
DHS’s decision to rescind the DACA program was arbitrary and capricious
under the Administrative Procedure Act.
Department of
19-161
6/25/20
Whether, as applied to the respondent, 8 U.S.C. § 1252(e)(2) is unconstitutional under the
Constitutional Law
Homeland Security v.
Suspension or Due Process Clauses.
Immigration
Thuraissigiam
As applied here, 8 U.S.C. § 1252(e)(2)—which limits the habeas review
obtainable by an alien detained for expedited removal—does not violate the
Suspension or Due Process Clauses.
Espinoza v. Montana
18-1195
6/30/20
Whether invalidating a general y available and religiously neutral student-aid program because
Constitutional Law
Department of
the program affords students the choice of attending religious schools violates the religion
Revenue
clauses of the United States Constitution.
Applying the Montana Constitution’s “no-aid” provision to a state program
providing tuition assistance to parents who send their children to private
schools discriminated against religious schools and the families whose
children attend or hope to attend them in violation of the Federal
Constitution’s Free Exercise Clause.
Financial Oversight and
18-1334
6/1/20
Whether the Appointments Cause governs the appointment of members of the Financial
Constitutional Law
Management Board
Oversight and Management Board for Puerto Rico.
Bankruptcy Law
for Puerto Rico v.
The Appointments Clause does not restrict the appointment or selection of
Aurelius Investment,
members of Puerto Rico’s Financial Oversight and Management Board, who
LLC b
are appointed by the President without the Senate’s advice and consent.
GE Energy Power
18-1048
6/1/20
Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards
Civil Procedure
Conversion France SAS
permits a nonsignatory to an arbitration agreement to compel arbitration based on the doctrine
International Law
v. Outokumpu
of equitable estoppel.
Stainless USA LLC
The Convention on the Recognition and Enforcement of Foreign Arbitral
Awards does not conflict with domestic equitable estoppel doctrines that
permit the enforcement of arbitration agreements by nonsignatories to
those agreements.
CRS-39

Central Question(s) Presented (Italics) and Holding (Bold)
Case
Date of
(as Quoted from SCOTUSBlog.com and the Supreme Court Syl abus with minor
Name of Case
Number
Opinion
alterations)
Area(s) of Lawa
Georgia v.
18-1150
4/27/20
Whether the government edicts doctrine extends to—and thus renders uncopyrightable—works
Copyright Law
Public.Resource.Org
that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.
Inc.
Under the government edicts doctrine, the annotations beneath the
statutory provisions in the Official Code of Georgia Annotated are ineligible
for copyright protection.
Guerrero-Laspril a v.
18-776
3/23/20
Whether a request for equitable tol ing, as it applies to statutory motions to reopen, is judicial y
Civil Procedure
Barrb
reviewable as a “question of law.”
Immigration
Because the phrase “questions of law” in the Immigration and Nationality
Act’s Limited Review Provision, 8 U.S.C. § 1252(a)(2)(D), includes applying a
legal standard to undisputed or established facts, the Fifth Circuit erred in
holding that it had no jurisdiction to consider petitioners’ “factual” due
diligence claims for equitable tolling purposes.
Hernandez v. Mesa
17-1678
2/25/20
Whether, when the plaintiffs plausibly al ege that a rogue federal law-enforcement officer
Civil Rights
violated clearly established Fourth and Fifth amendment rights for which there is no alternative
Constitutional Law
legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics.
A cross-border shooting by a United States Border Patrol agent does not
give rise to a damages claim pursuant to Bivens.
Holguin-Hernandez v.
18-7739
2/26/20
Whether a formal objection after pronouncement of sentence is necessary to invoke appel ate
Criminal Law &
United States
reasonableness review of the length of a defendant’s sentence.
Procedure
Petitioner’s district-court argument for a specific sentence (nothing or less
than 12 months) preserved, for purposes of Fed. Rule Crim. Proc. 51(b), his
claim on appeal that the sentence imposed was unreasonably long.
Intel Corp. Investment
18-1116
2/26/20
Whether the three-year limitations period in Section 413(2) of the Employee Retirement
Civil Procedure
Policy Committee v.
Income Security Act (ERISA), which runs from “the earliest date on which the plaintiff had
Pensions & Benefits
Sulyma
actual knowledge of the breach or violation,” bars suit when al the relevant information was
Law
disclosed to the plaintiff by the defendants more than three years before the plaintiff filed the
complaint, but the plaintiff chose not to read or could not recal having read the information.
Under ERISA requirement that plaintiffs with “actual knowledge” of an
alleged fiduciary breach must file suit within three years of gaining that
knowledge, 29 U.S.C. § 1113(2), a plaintiff does not necessarily have “actual
knowledge” of the information contained in disclosures that he receives but
does not read or cannot recall reading.
CRS-40

Central Question(s) Presented (Italics) and Holding (Bold)
Case
Date of
(as Quoted from SCOTUSBlog.com and the Supreme Court Syl abus with minor
Name of Case
Number
Opinion
alterations)
Area(s) of Lawa
June Medical Services
18-1323
6/29/20
Whether the U.S. Court of Appeals for the Fifth Circuit’s decision upholding Louisiana’s law
Constitutional Law
LLC v. Russo
requiring physicians who perform abortions to have admitting privileges at a local hospital
Healthcare Law
conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v.
Hel erstedt.
The Fifth Circuit’s judgment, upholding a Louisiana law that requires
abortion providers to hold admitting privileges at local hospitals, is reversed.
Kansas v. Garcia
17-834
3/3/20
(1) Whether the Immigration Reform and Control Act (IRCA) expressly preempts states from
Constitutional Law
using any information entered on or appended to a federal Form I-9, including common
Immigration
information such as name, date of birth, and social security number, in a prosecution of any
person (citizen or alien) when that same, commonly used information also appears in non-IRCA
documents, such as state tax forms, leases, and credit applications; and (2) whether IRCA
impliedly preempts Kansas’ prosecution of respondents.
The Kansas statutes under which respondents, three unauthorized aliens,
were convicted—for fraudulently using another person’s Social Security
number on state and federal tax-withholding forms submitted to their
employers—are not expressly preempted by IRCA; and respondents’
argument that those laws are preempted by implication is rejected.
Kansas v. Glover
18-556
4/6/20
Whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for
Constitutional Law
an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent
Criminal Law &
any information to the contrary.
Procedure
When a police officer lacks information negating an inference that a person
driving is the vehicle’s owner, an investigative traffic stop made after running
the vehicle’s license plate and learning that the registered owner’s driver’s
license has been revoked is reasonable under the Fourth Amendment.
Kahler v. Kansas
18-6135
3/23/20
Whether the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense.
Constitutional Law
Due process does not require Kansas to adopt an insanity test that turns on a
Criminal Law &
defendant’s ability to recognize that his crime was morally wrong.
Procedure
CRS-41

Central Question(s) Presented (Italics) and Holding (Bold)
Case
Date of
(as Quoted from SCOTUSBlog.com and the Supreme Court Syl abus with minor
Name of Case
Number
Opinion
alterations)
Area(s) of Lawa
Kel y v. United States
18-1059
5/7/20
Whether a public official “defraud[s]” the government of its property by advancing a “public
Criminal Law &
policy reason” for an official decision that is not her subjective “real reason” for making the
Procedure
decision.
Because the scheme to reduce the number of George Washington Bridge
toll lanes dedicated to Fort Lee, New Jersey, morning commuters as political
retribution against Fort Lee’s mayor did not aim to obtain money or
property from the federal Port Authority, Baroni and Kelly could not have
violated the federal-program fraud or wire fraud laws.
Little Sisters of the
19-431
7/8/20
Whether the federal government lawful y exempted religious objectors from the regulatory
Administrative Law
Poor Saints Peter and
requirement to provide health plans that include contraceptive coverage.
Healthcare Law
Paul Home v.
The Departments of Health and Human Services, Labor, and the Treasury
Pennsylvaniab
had authority under the Patient Protection and Affordable Care Act of 2010
to promulgate rules exempting employers with religious or moral objections
from providing contraceptive coverage to their employees; and those rules
satisfy the Administrative Procedure Act’s notice requirements.
Liu v. Securities and
18-1501
6/22/20
Whether the Securities and Exchange Commission may seek and obtain disgorgement from a
Securities Law
Exchange Commission
court as “equitable relief” for a securities law violation even though the Supreme Court has
determined that such disgorgement is a penalty.
In a Securities and Exchange Commission enforcement action, a
disgorgement award that does not exceed a wrongdoer’s net profits and is
awarded for victims is equitable relief permissible under 15 U.S.C.
§ 78u(d)(5).
Lomax v. Ortiz-
18-8369
6/8/20
Whether a dismissal without prejudice for failure to state a claim counts as a strike under 28
Civil Procedure
Marquez
U.S.C. § 1915(g).
A Prison Litigation Reform Act of 1995 provision that generally prevents a
prisoner from bringing suit in forma pauperis if he has had three or more
prior suits “dismissed on the ground[ ] that [they] . . . fail[ed] to state a
claim upon which relief may be granted,” 28 U.S.C. § 1915(g), refers to any
dismissal for failure to state a claim, whether with prejudice or without.
CRS-42

Central Question(s) Presented (Italics) and Holding (Bold)
Case
Date of
(as Quoted from SCOTUSBlog.com and the Supreme Court Syl abus with minor
Name of Case
Number
Opinion
alterations)
Area(s) of Lawa
Lucky Brand
18-1086
5/14/20
Whether, when a plaintiff asserts new claims, federal preclusion principles can bar a defendant
Civil Procedure
Dungarees Inc. v.
from raising defenses that were not actual y litigated and resolved in any prior case between the
Trademark Law
Marcel Fashion Group
parties.
Inc.
Because the trademark action at issue challenged different conduct—and
raised different claims—from an earlier action between the parties, Marcel
cannot preclude Lucky Brand from raising new defenses, including a defense
that Lucky Brand failed to press fully in the earlier suit.
Maine Community
18-1023
4/27/20
(1) Whether an appropriations rider whose text bars the agency’s use of certain funds to pay a
Appropriations Law
Health Options v.
statutory obligation can be held to repeal the obligation implicitly; and (2) whether the
Healthcare Law
United Statesb
presumption against retroactivity applies to an appropriations rider that is claimed to have
impliedly repealed the government’s obligation.
The Patient Protection and Affordable Care Act’s now expired “Risk
Corridors” statute—which set a formula for calculating payments to
healthcare insurers for unexpectedly unprofitable plans during the first three
years of online insurance marketplaces—created a Government obligation to
pay insurers the full amount of their computed losses; and petitioners
properly relied on the Tucker Act to sue for damages in the Court of Federal
Claims.
Monasky v. Taglieri
18-935
2/25/20
(1) Whether a district court’s determination of habitual residence under the Hague Convention
International Law
should be reviewed de novo, under a deferential version of de novo review, or under clear-error
review and (2) whether, when an infant is too young to acclimate to her surroundings, a
subjective agreement between the infant’s parents is necessary to establish her habitual
residence under the Hague Convention.
Under the Hague Convention on the Civil Aspects of International Child
Abduction, a child’s “habitual residence” depends on the totality of the
circumstances specific to the case, not on categorical requirements such as
an actual agreement between the parties.
McKinney v. Arizona
18-1109
2/25/20
(1) Whether the Arizona Supreme Court was required to apply current law when weighing
Constitutional Law
mitigating and aggravating evidence to determine whether a death sentence is warranted; and
Criminal Law &
(2) whether the correction of error under Eddings v. Oklahoma requires resentencing.
Procedure
When a capital sentencing error under Eddings v. Oklahoma is found on
collateral review, a state appellate court may reweigh aggravating and
mitigating evidence, as permitted by Clemons v. Mississippi on collateral
review.
CRS-43

Central Question(s) Presented (Italics) and Holding (Bold)
Case
Date of
(as Quoted from SCOTUSBlog.com and the Supreme Court Syl abus with minor
Name of Case
Number
Opinion
alterations)
Area(s) of Lawa
McGirt v. Oklahoma
18-9526
7/9/20
Whether the prosecution of an enrol ed member of the Creek Tribe for crimes committed within
Criminal Law &
the historical Creek boundaries is subject to exclusive federal jurisdiction.
Procedure
Land in Northeastern Oklahoma reserved for the Creek Nation since the
Indian Law
19th century remains “Indian country” for purposes of the Major Crimes
Act, which places certain crimes under federal jurisdiction if they were
committed by “[a]ny Indian” within “the Indian country.”
Nasral ah v. Barr
18-1432
6/1/20
Whether, notwithstanding 8 U.S.C. § 1252(a)(2)(C), the courts of appeals possess jurisdiction to
Immigration
review factual findings underlying denials of withholding (and deferral) of removal relief.
8 U.S.C. § 1252(a)(2)(C) and (D) do not preclude judicial review of a
removable noncitizen’s factual challenges to an order denying relief under
the international Convention Against Torture, which protects noncitizens
from removal to a country where they would likely face torture.
New York State Rifle & 18-280
4/27/20
Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a
Constitutional Law
Pistol Association Inc. v.
home or shooting range outside city limits is consistent with the Second Amendment, the
Criminal Law &
City of New York, New
commerce clause and the constitutional right to travel.
Procedure
York
Petitioners’ claim for declaratory and injunctive relief with respect to the
City’s old rule on transporting firearms is moot, and any claim for damages
with respect to that rule may be addressed in the first instance by the Court
of Appeals and the District Court on remand.
Opati v. Republic of
17-1268
5/18/20
Whether, consistent with the Supreme Court’s decision in Republic of Austria v. Altmann, the
Civil Procedure
Sudan
Foreign Sovereign Immunities Act applies retroactively, thereby permitting recovery of punitive
International Law
damages under 28 U.S.C. § 1605A(c) against foreign states for terrorist activities occurring prior
to the passage of the current version of the statute.
Plaintiffs in a suit against a foreign state for personal injury or death caused
by acts of terrorism under 28 U.S.C. § 1605A(c) may seek punitive damages
for preenactment conduct.
Our Lady of Guadalupe
19-267
7/8/20
Whether the First Amendment’s religion clauses prevent civil courts from adjudicating
Civil Rights Law
School v. Morriseey-
employment-discrimination claims brought by an employee against her religious employer, when
Labor & Employment
Berrub
the employee carried out important religious functions.
Law
The First Amendment’s Religion Clauses foreclose the adjudication of the
employment-discrimination claims of the Catholic school teachers in the two
cases before the Court.
CRS-44

Central Question(s) Presented (Italics) and Holding (Bold)
Case
Date of
(as Quoted from SCOTUSBlog.com and the Supreme Court Syl abus with minor
Name of Case
Number
Opinion
alterations)
Area(s) of Lawa
Patent and Trademark
19-46
6/30/20
Whether, when the Lanham Act states generic terms may not be registered as trademarks, the
Trademark Law
Office v. Booking.com
addition by an online business of a generic top-level domain (“.com”) to an otherwise generic
B. V.
term can create a protectable trademark.
A term styled “generic.com” is a generic name for a class of goods or
services—and thus ineligible for federal trademark protection—only if the
term has that meaning to consumers.
Peter v. NantKwest Inc. 18-801
12/11/19
Whether the phrase “[a]l the expenses of the proceedings” in 35 U.S.C. § 145 encompasses
Patent Law
the personnel expenses the United States Patent and Trademark Office incurs when its
Civil Procedure
employees, including attorneys, defend the agency in Section 145 litigation.
The Patent and Trademark Office cannot recover the salaries of its legal
personnel as “expenses” in civil actions brought by patent applicants
pursuant to 35 U.S.C. § 145.
Ramos v. Louisiana
18-5924
4/20/20
Whether the Fourteenth Amendment ful y incorporates the Sixth Amendment guarantee of a
Constitutional Law
unanimous verdict.
Criminal Law &
The Louisiana Court of Appeal’s holding that nonunanimous jury verdicts are
Procedure
constitutional is reversed.
Retirement Plans
18-1165
1/14/20
Whether Fifth Third Bancorp v. Dudenhoeffer’s “more harm than good” pleading standard
Civil Procedure
Committee of IBM v.
can be satisfied by generalized al egations that the harm of an inevitable disclosure of an
Pensions & Benefits
Jander
al eged fraud general y increases over time.
Law
The judgment is vacated, and the case is remanded to give the Second
Circuit the opportunity to decide whether to entertain the parties’
arguments on ERISA’s duty of prudence.
Ritzen Group Inc. v.
18-938
1/14/20
Whether an order denying a motion for relief from the automatic stay is a final order under 28
Bankruptcy Law
Jackson Masonry, LLC
U.S.C. § 158(a)(1).
A bankruptcy court’s order unreservedly denying relief from the automatic
stay of creditor debt-collection efforts outside the bankruptcy forum, see 11
U.S.C. § 362(a), is final and immediately appealable under 28 U.S.C. § 158(a).
CRS-45

Central Question(s) Presented (Italics) and Holding (Bold)
Case
Date of
(as Quoted from SCOTUSBlog.com and the Supreme Court Syl abus with minor
Name of Case
Number
Opinion
alterations)
Area(s) of Lawa
Rodriguez v. Federal
18-1269
2/25/20
Whether courts should determine ownership of a tax refund paid to an affiliated group based
Tax Law
Deposit Insurance
on the federal common law “Bob Richards rule,” as three circuits hold, or based on the law of
Corp.
the relevant state, as four circuits hold.
The rule of In re Bob Richards Chrysler-Plymouth Corp., 473 F. 2d 262 (9th Cir.
1973)—which specifies how federal tax refund proceeds should be allocated
among members of an affiliated group of corporations that file a consolidated
return—is not a legitimate exercise of federal common lawmaking.
Romag Fasteners Inc.
18-1233
4/23/20
Whether, under Section 35 of the Lanham Act, 15 U.S.C. § 1117(a), wil ful infringement is a
Trademark Law
v. Fossil Inc.
prerequisite for an award of an infringer’s profits for a violation of Section 43(a), 15 U.S.C.
§ 1125(a).
A plaintiff in a trademark infringement suit is not required to show that a
defendant willfully infringed the plaintiff’s trademark as a precondition to an
award of profits.
Rotkiske v. Klemm
18-328
12/10/19
Whether the “discovery rule” applies to tol the one-year statute of limitations under the Fair
Banking Law
Debt Col ection Practices Act.
Civil Procedure
Absent the application of an equitable doctrine, the Federal Debt Collection
Practices Act’s statute of limitations for bringing a private civil action against
debt collectors who engage in certain prohibited practices, 15 U.S.C.
§ 1692k(d), begins to run when the alleged violation occurs, not when it is
discovered.
Seila Law LLC v.
19-7
6/29/20
Whether vesting substantial executive authority in the Consumer Financial Protection Bureau, an
Constitutional Law
Consumer Financial
independent agency led by a single director, violates the separation of powers.
Banking Law
Protection Bureau
The Consumer Financial Protection Bureau’s leadership by a single Director

removable only for inefficiency, neglect, or malfeasance violates the
separation of powers.
Shular v. United States
18-6662
2/26/20
Whether the determination of a “serious drug offense” under the Armed Career Criminal Act
Criminal Law &
requires the same categorical approach used to determine a “violent felony” under the act.
Procedure
For purposes of the Armed Career Criminal Act’s sentence enhancement for
a defendant convicted of being a felon in possession of a firearm who has at
least three convictions for “serious drug offense[s],” 18 U.S.C. § 924(e)(1),
the “serious drug offense” definition requires only that a state offense involve
the conduct specified in the statute; it does not require that the state offense
match certain generic offenses.
CRS-46

Central Question(s) Presented (Italics) and Holding (Bold)
Case
Date of
(as Quoted from SCOTUSBlog.com and the Supreme Court Syl abus with minor
Name of Case
Number
Opinion
alterations)
Area(s) of Lawa
Thole v. U.S. Bank,
17-1712
6/1/20
(1) Whether an ERISA plan participant or beneficiary may seek injunctive relief against fiduciary
Pensions & Benefits
N.A.
misconduct under 29 U.S.C. § 1132(a)(3) without demonstrating individual financial loss or the
Law
imminent risk thereof; (2) whether an ERISA plan participant or beneficiary may seek
restoration of plan losses caused by fiduciary breach under 29 U.S.C. § 1132(a)(2) without
demonstrating individual financial loss or the imminent risk thereof; and (3) whether petitioners
have demonstrated Article III standing.
Because petitioners, whose defined-benefit retirement plan guarantees them
a fixed payment each month regardless of the plan’s value or its fiduciaries’
investment decisions, have no concrete stake in this Employee Retirement
Income Security Act of 1974 lawsuit against the fiduciaries, they lack Article
III standing.
Thryv, Inc. v. Click-To-
18-916
4/20/20
Whether 35 U.S.C. § 314(d) permits appeal of the Patent Trial and Appeal Board’s decision to
Patent Law
Cal Technologies, LP
institute an inter partes review upon finding that 35 U.S.C. § 315(b)’s time bar did not apply.
35 U.S.C. § 314(d) precludes judicial review of a Patent Trial and Appeal
Board’s decision to institute inter partes review upon finding that § 315(b)’s
time bar did not apply.
Trump v. Mazars USA,
19-715
7/9/20
Whether various congressional committees have constitutional and statutory authority to issue a
Constitutional Law
LLPb
subpoena to the accountant for President Trump and several of his business entities demanding

private financial records belonging to the president.
The courts below did not take adequate account of the significant separation
of powers concerns implicated by congressional subpoenas for the
President’s information.
Trump v. Vance
19-635
7/9/20
Whether a grand-jury subpoena served on a custodian of the president’s personal records,
Constitutional Law
demanding production of nearly 10 years’ worth of the president’s financial papers and his tax
Criminal Law &
returns, violates Article II and the Supremacy Clause of the Constitution.
Procedure
Article II and the Supremacy Clause do not categorically preclude, or require
a heightened standard for, the issuance of a state criminal subpoena to a
sitting President.
CRS-47

Central Question(s) Presented (Italics) and Holding (Bold)
Case
Date of
(as Quoted from SCOTUSBlog.com and the Supreme Court Syl abus with minor
Name of Case
Number
Opinion
alterations)
Area(s) of Lawa
United States v.
19-67
5/7/20
Whether the federal criminal prohibition against encouraging or inducing il egal immigration for
Constitutional Law
Sineneng-Smith
commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and
Immigration
(B)(i), is facial y unconstitutional.
The Ninth Circuit panel’s drastic departure from the principle of party
presentation constituted an abuse of discretion where the court addressed a
question never raised by respondent, namely, whether 8 U.S.C. §
1324(a)(1)(A)(iv) is unconstitutionally overbroad.
United States Forest
18-1584
6/15/20
Whether the United States Forest Service has authority to grant rights-of-way under the Mineral
Environmental Law
Service v. Cowpasture
Leasing Act through lands traversed by the Appalachian Trail within national forests.
River Preservation
Because the Department of the Interior’s decision to assign responsibility
Assn.
over the Appalachian Trail to the National Park Service did not transform
the land over which the Trail passes into land within the National Park
System, the Forest Service had authority under the Mineral Leasing Act to
grant a natural-gas pipeline right-of-way through lands in the George
Washington National Forest traversed by the Appalachian Trail.
Source: Created by CRS.
Notes: List includes cases granted via a writ of certiorari or cases in which the Court has otherwise opted to have a merits hearing.
a. Based on LEXIS-NEXIS Practice Area or Industry Headings.
b. Lead Case of Several Consolidated Cases.

CRS-48

link to page 51
Table A-2. Per Curiam Opinions Issued by the Court without Oral Argument as of September 8, 2020
Name of
Case
Date of
Opinion’s Central Holding
Case
Number
Opinion
(as Quoted from Supreme Court Syllabus)
Area(s) of Lawa
Andrus v.
18-9674
6/15/20
Because there is a significant question whether the court below properly considered
Constitutional Law
Texas
whether counsel’s clearly deficient performance prejudiced Andrus, the judgment of
Criminal Law &
the Texas Court of Criminal Appeals is vacated and the case is remanded for the
Procedure
court to address the prejudice question.
Barr v. Lee
20A8
7/14/20
The District Court’s order preliminarily enjoining the executions of four federal
Constitutional Law
prisoners is vacated.
Criminal Law &
Procedure
Davis v. United
19-5421
3/23/20
There is no legal basis for the Fifth Circuit’s practice of declining to review c ertain
Criminal Law &
States
unpreserved factual arguments for plain error.
Procedure
Republican
19A1016
4/6/20
The District Court’s order granting a preliminary injunction is stayed to the extent it
Constitutional Law
National
requires Wisconsin to count absentee ballots postmarked after April 7, 2020, the

Committee v.
date of the State’s election.
Democratic
National
Committee
Roman
18-921
2/24/20
A Puerto Rico trial court had no jurisdiction to issue payment and seizure orders
Civil Procedure
Catholic
after a pension benefits proceeding was removed to Federal District Court but before
Pensions & Benefits
Archdiocese of
the proceeding was remanded back to the Puerto Rico court; thus the orders are
Law
San Juan v.
void.
Acevedo
Feliciano
Sharp v.
17-1107
7/9/20
The judgment of the United States Court of Appeals for the Tenth Circuit is affirmed
Criminal Law &
Murphy
for the reasons stated in McGirt v. Oklahoma.
Procedure
Indian Law
Thompson v.
19-122
11/25/19
The judgment is vacated, and the case is remanded for the Ninth Circuit to revisit
Constitutional Law
Hebdon
whether Alaska’s political contribution limits are consistent with this Court’s First
Amendment precedents.
Source: Created by CRS.
c. Based on LEXIS-NEXIS Practice Area or Industry Headings.
CRS-49

Supreme Court October Term 2019: A Review of Selected Major Rulings

Author Information

Valerie C. Brannon, Coordinator
Mainon A. Schwartz
Legislative Attorney
Legislative Attorney

Jared P. Cole
Jon O. Shimabukuro
Legislative Attorney
Legislative Attorney

Todd Garvey

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should n ot be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
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Congressional Research Service
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