The Dark Side of Mazars—Should a New York Prosecutor Have More Power to Check the President than the House of Representatives?

For the first time in almost 100 years, the Supreme Court has placed limits, of its own design, on Congress’s power to check the President. In general, pundits have failed to emphasize this rather dramatic legal development, celebrating instead that the Supreme Court rejected the President’s “I’m-absolutely-immune” arguments in both Trump v. Vance (emerging from criminal proceedings in New York) and Trump v. Mazars (emerging from congressional subpoenas related to money laundering and foreign influence on elections). Rejecting the Trump lawyers’ extreme unitary executive arguments is good news for the rule of law. But Mazars has a darker side: the Court’s latent hostility to Congress is on full display when one compares the ruling in Mazars to that in Vance. Taken together, the cases raise powerful questions about the separation of powers that only the future will decide. Put bluntly, why should the citizens of New York (or any other state for that matter) have an easier time checking the President than the citizens of the entire nation (as reflected in the House of Representatives)?

The New Presidential Exceptionalism

The Mazars opinion states that “all citizens” have a duty to comply with congressional subpoenas. But that is not the Mazars holding. One citizen has a different duty—the President. When Congress seeks personal documents from you or me, or more likely, corporations like Enron or Facebook, the Court has granted Congress great leeway. A capacious standard has, until now, applied to Congress’s efforts to expose criminal activity within the executive branch. As the Supreme Court wrote in 1927, in McGrain v. Daugherty, when Congress was investigating the Attorney General (AG) for failing to prosecute fraud within the administration: “we are of opinion that the power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function.” The Court presumed Congress had a proper purpose, even though lawyers argued that Congress was trying to “prosecute” the AG, an argument the Court rejected. (In truth, the Congress can never prosecute because it cannot punish an individual citizen with jailtime).

Enter Mazars, which places a far heavier burden on Congress when investigating the President. Do not forget that the subpoenas in these cases were directed to private entities—third party banks and accounting firms. The President sued to stop those third parties from complying—in his personal capacity. But that did not seem to matter: now there is one standard for every citizen and corporation in America—and a different standard for the citizen who is President. Under Mazars, a president’s personal records can only be subpoenaed if the request is (1) such that no “other sources could reasonably provide Congress the information it needs in light of its particular legislative objective”; (2) “no broader than reasonably necessary to support Congress’s legislative objective;” (3) based on “detailed and substantial” evidence of a legislative purpose; and (4) “carefully scrutinized” to avoid burdening the President’s attention to his official duties. If that were not enough, these standards may well be impossible to meet in cases where Congress is attempting to regulate the Presidency. (The White House is in fact highly regulated, but Trump’s lawyers and some members of the Court have invited the lawyers on remand to make an argument that the President cannot be regulated.)

The Mazars rules appear nowhere in the text of the constitution nor in any prior case. As Justice Thomas wrote, in dissent, the court provides “a nonexhaustive four-factor test of uncertain origin.” These rules apply to only one citizen: the President. More than a decade ago, the Court reaffirmed the principle that Presidents and citizens should abide by the same rules when it comes to their private behavior. President Clinton once argued that he could not be sued over a personal matter that occurred before his Presidency—claims of sexual harassment prior to his taking office. The Supreme Court replied that the President was not above the law. Two things have happened since Clinton v. Jones was decided:  the court’s members have changed to include those who believe in a strong theory of the presidency and its corollary—contempt for Congress. Second, in Clinton, it was the courts, not the Congress, who was doing the investigation.

That brings me to the real winner in these cases, at least in terms of constitutional power—the judiciary.  In Vance, where financial records were sought for a grand jury investigation, the court was quite deferential, rejecting all the President’s arguments including the argument that the subpoena had to have a “higher” showing because its target was the President. In Mazars, Congress was not given that same deference: precisely because the President was involved, a “higher” standard was imposed, one to be administrated by the courts. When given a choice of investigators—courts or Congress—courts chose themselves. One rule applies to judicial investigations of Donald Trump, another to congressional investigations.

Lawyers are likely to embrace that result because politics is messy and given to partiality in ways that judicial proceedings avoid. Congress should be treated differently, they might say. But the Supreme Court rejected that approach in 1927 in McGrain v. Daugherty, presuming Congress’s legitimate motives despite a “spirit of hostility” toward the Attorney General. More importantly, when it comes to every other citizen in the United States, and every other official, McGrain remains good law, recognizing Congress’s broad power of “inquiry.” Why should Congress be able to be more intrusive with respect to my private records than with the records of the President? Should not Congress have more power to investigate the President, who is elected to serve the people, than the average citizen?

The Separation of Powers: Did the People Lose?

No one should be confused that, in the battle between Congress and the President in Mazars, the Supreme Court chose the President. At the very least, they delayed the case in a way that makes it unlikely that Congress will see the Trump tax records in the short term and without extensive briefing on a new and vague standard. Nor should anyone be confused that the Vance Court applied a different standard. For students of the separation of powers, putting the cases together raises questions. Why it is that a single district attorney in New York has more power to check the President than the entire House of Representatives? Does not this prefer the voters of New York to the voters of the entire country? Perhaps there are advantages to this system but, if one believes, as I have written, that the separation of powers exists to protect voter choices, a choice to prefer fewer rather than more voters raises questions. (And if you don’t believe me, see Stephenson & Nzelibe).

Conventionally, lawyers like to think of constitutional power as an activity to which they attach adjectives. There is something called “executive power” and the President has it. There is something called “legislative power” and the Congress has it. There is something called “judicial power” and the courts have it. The only problem with this adjectival theory is that it is incomplete in most cases and wrong in others. It is wrong as a matter of fact: in the administrative state, for example, the executive department adjudicates and legislates daily. It is also wrong as a matter of the text and history of the constitution. The text tells us that the departments share powers; if they did not, then they could not check each other. Take the President: he has the executive power listed in Article II, but also the veto power in Article I (the “legislative power” article) meaning that he has “legislative” powers. Congress, has “all legislative powers,” granted in Article I but Article I’s “necessary and proper clause,” U.S. Const. Art. 1, sec. 8, cl. 13, grants Congress the power to legislate to “execut[]” all enumerated powers as well as “all other powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof.” (See Mikhail). Without the Departments—Treasury, State, Justice—created by Congress, the President would be sitting in the White House, alone.

Constitutional power is not only a type of activity, but the essence of democracy: popular voice and accountability. Long ago, I wrote that if adjectives do not work well to separate power under the constitutional text, the electoral provisions do a better job of actually working to separate the branches because they give elected officials electoral incentives to push back. In relatively small groups, the people elect the entire House of Representatives every two years, and a differently aggregated set of people – aggregated by state – elect some members of the Senate every two years. Every four years, a different aggregation of people, the nation, elects the President. Elected officials have incentives to prefer the group of people they represent (relative to other groups), and to align themselves with their own institution. Those incentives produce institutional conflict. No one teaches these basic clauses in constitutional law courses, see U.S. Const. Art. I, secs. 2-3, Art. II, sec. 1, but without them, we have no democracy and we have no checks and balances.

If this is right, the constitution gives power to the House (and those who elect the House) to check the President. That is precisely what happened when the House subpoenaed President Trump’s personal financial records. It follows that to limit the power of the House to check the President is to increase the President’s power. More worrisome, for the future, however, is not Mazars alone (most presidential candidates fully disclose their financial records) but Mazars and Vance put together. It is now just as easy, if not easier, for state prosecutors in a single state to investigate a president for potential criminal activity (don’t forget that the criminal law is vast, any false statement will do), than the entire House of Representatives. Perhaps this will help Presidents find a less politicized forum in which to settle unfounded allegations (remember the Obama birther claim); or perhaps it will embroil the state courts—and future Presidents—in highly partisan investigations politicizing the rule of law far more than anyone expected.

The Administration’s Latest Blow to International Students and How Universities Can Respond

Amid the ongoing health and safety challenges posed by COVID-19, colleges and universities across the country have been planning for the fall semester on the assumption that, whether they offered classes entirely online or through a hybrid approach with both online and in-person classes, their international students would be able to continue their studies while living in the United States.

This assumption seemed reasonable under guidance that Immigration and Customs Enforcement (ICE) had issued in March suspending its typical restriction for international students studying on an F-1 visa – the primary visa for international students studying full-time at universities in the United States – of only a single course (or its equivalent) online in a term. ICE’s guidance at the time stated this revised policy would be “in effect for the duration of the emergency,” so universities fully expected it would continue to apply in the fall given the current course of the pandemic.

All that changed on July 6, when ICE reversed its spring guidance through a news release, a somewhat more detailed message to schools, and a Frequently Asked Questions (FAQs) document. This new policy, issued without any advance notice or opportunity for affected parties to comment, prohibits international students from remaining in the United States if their university will offer courses exclusively online for the fall semester. International students may remain in the United States, or enter the United States, only if they are taking a portion of their course load for the fall semester in person and their school certifies they are taking no more online classes than necessary to make normal progress in their program. In the announcement, ICE indicated it would issue a temporary final rule codifying this new policy, although it gave no timetable for doing so beyond the “near future”.

Making a bad situation even worse, the ICE directive provides schools little time to comply with its various requirements. Universities which plan to offer their instruction entirely online must notify ICE by July 15, less than 10 days after the new directive was announced. While universities that plan to offer hybrid instruction have until August 4 to notify ICE, they must submit a new compliance form for each international student by that date. As an official at Indiana University explained, reissuing the new forms to all international students is “not trivial … [i]t’s an all-hands-on-deck exercise.” It also may be impossible for some schools, as the deadline for students to register for fall classes is after August 4th at several universities.

Under ICE’s new policy, international students in programs that are entirely online for the fall face several difficult options. They can, as ICE suggests, try to transfer to a university offering some in-person education – though that will be difficult to do so close to the beginning of the semester. Or they can depart the United States and try to continue their studies online while living abroad.

This is easier said than done, as leaving the United States presents serious financial, health, and educational challenges for many international students. Last-minute international travel is often expensive, and many countries are maintaining travel restrictions that will make it difficult or impossible for international students arriving from the United States to enter. These students may also face significant expenses for breaking leases or other commitments they made when they planned to study in the United States during the coming year. Travel during the pandemic itself also presents well-known health risks. And once in another country, students may have limited access to the internet or may have to navigate the challenges posed by living in a much different time zone from where their classes are being offered. Yet if international students are in an all-online program and do not leave the United States, ICE has made clear they will face deportation and potentially other immigration consequences.

It is not only universities that plan to offer instruction exclusively online that are affected by ICE’s abrupt reversal. Even at schools offering a hybrid of in-person and online classes, some students still will not be able to enroll in the limited number of in-person courses that will be offered. Any international students in this position will be out of compliance with the new ICE guidance, as it includes essentially no flexibility on the requirement to take at least one class face-to-face to maintain their visa status. Moreover, the ICE directive states that if schools offering hybrid programs shift to all online instruction mid-semester due to health and safety concerns, the international students will still be subject to the same restrictions as those at schools that offered all online programs from the outset of the semester – they will need to transfer to a school that offers in-person classes or depart the United States.

From virtually every perspective – health, educational, and financial – this new approach makes little sense, particularly given that COVID-19 cases continue to increase in many parts of the country. The true motivation for the policy may actually be an effort to force universities to abandon plans for online only instruction in the fall or to exploit the COVID-19 crisis to achieve the current administration’s objectives to reduce legal immigration.

Perhaps unsurprisingly, university leaders widely denounced the policy, emphasizing the central role that international students play as part of their communities and vowing to do whatever they could to reverse the policy or limit its effects.

So, what can universities do to support their international students in light of this new policy?  They have three main paths:

Adjust their plans for the fall to create targeted in-person opportunities for international students. For schools that are planning to offer instruction entirely online in the fall, it is likely they will need to provide targeted opportunities for international students to take some of their courses in person. ICE has failed to make clear how much in-person instruction is necessary for international students to maintain their status, but many believe that a single in-person class, or even a single hybrid class, will be enough. Several schools have indicated they will create new in-person courses or adapt existing courses to provide a face-to-face component for international students. Others have announced their faculty will provide one-on-one independent study for international students as needed for them to maintain their status. Some faculty members have taken to social media to let international students know they are willing to offer them independent study, although others have cautioned against offering that as an option until there is clear guidance from ICE on whether independent study will count as sufficient in-person education under the new directive. Students at some schools started a spreadsheet to help non-international students swap slots in face-to-face classes with their international classmates.

For schools that are planning to offer hybrid instruction, they will need to work with international students individually to make sure they have a qualifying in-person course. One way to do this at schools where students have not completed registration for fall classes is to offer international students priority registration for spaces in in-person courses. This and other support for international students will be critical, and it is already underway: Some universities in this group have informed their international students they will reach out directly to them to develop a plan, and others have offered them one-on-one immigration advising to help them navigate the new policy.

Engage in advocacy to encourage ICE to reverse this policy. The best course of action – in terms of minimizing the economic, health, and educational costs that will result from ICE’s directive – would simply be for ICE to reverse this policy. At the same time that universities are working to support their international students, they can also press ICE to change course. Some universities have said they are starting this advocacy directly and through higher education associations. As part of this work, universities can also enlist allies to advocate for reversing the policy to expand the voices raising concerns about the negative impact of the new directive not just on universities but on a diverse array of communities and the economy more broadly. Some allies have already stepped up. The U.S. Chamber of Commerce, for instance, has already declared that it will consider pursuing legislative (and legal options) if the administration does not reverse the policy.

Pursue litigation to halt the policy. Harvard and MIT, which had announced plans to offer most of their instruction online for the fall semester, filed the first lawsuit challenging the new ICE policy only a few short days after it was issued. Their lawsuit claims that “increasing the number of in-person sessions beyond those currently planned would increase the risk to faculty, staff, and students of contracting COVID-19.”  It asserts that ICE’s action violates the rules of the Administrative Procedure Act – a claim that has proven successful in challenging other immigration policies of the current administration, including the effort to rescind the Deferred Action for Childhood Arrivals (DACA) program. This lawsuit seeks a temporary restraining order to prevent the enforcement of the policy while the litigation is ongoing. Other universities are supporting this challenge. Additional lawsuits are expected in the coming days. However, even if just one of these lawsuits succeed in halting the policy in lower courts, it is a good bet that the administration will seek an emergency stay by the Supreme Court of any injunction.

Universities, students, and their allies may yet succeed in mitigating or invalidating this policy through one or all of these paths. But it is difficult to overstate the impact of ICE’s new directive on international students, on universities and their communities, and on businesses and the economy if it remains in effect— yet another cruel attempt by the current administration to target immigrants and close off America from the world.

The Trump Subpoena Cases: More Losses Than Wins for the President, but No One Is Going to See His Tax Returns Soon

This column originally appeared in the George Washington Law Review.

From the perspective of the public, they want to know who won and who lost in the two cases decided by the Supreme Court on July 9th, both by votes of 7-2, and both written by Chief Justice John Roberts. The answer depends on whether you look at the results in the short term, an intermediate horizon, or the long run. But first, a summary of both rulings in Trump v Vance1 and Trump v. Mazars USA, LLP.2

Until he became President, Donald Trump resided and filed tax returns for his family and the Trump Organization in New York. In Vance, a grand jury sitting in Manhattan issued a subpoena for a wide range of financial records that might bear on whether Mr. Trump or his organization committed tax fraud, in particular whether payments shortly before the 2016 election to two women with whom then private citizen Trump had extra-marital relations were improperly deducted on either his personal or business tax returns. Trump claimed that New York could not investigate a sitting President at all, and every justice except Clarence Thomas agreed that the President had no such immunity, and, with the exception of Justice Samuel Alito, that no special rules make it more difficult to subpoena private records of the President than anyone else.

The Court did not order the records turned over immediately to the grand jury because, as the appeals court recognized, Trump had some sub-constitutional defenses that had not been decided by the district court. These include whether the subpoena was too broad or whether any of the records are privileged. That litigation will take a while to conclude, but it is unlikely to reach the Supreme court again. On the other hand, the grand jury is unlikely to see any, and surely not most, of these records before Election Day, with public access way down the road. Thus, if the President’s main goal was—as it seems to be more generally—to avoid all bad news until after November 3rd, he is a winner on that score. But if he is re-elected, he will be back in court if New York tries to indict him, let alone take him to trial as a sitting President. In the long run, this is a win for state prosecutors and also for future independent counsels like Robert Mueller if a President seeks to block even an investigation as Donald Trump did here.

The House subpoenas did not fare as well, at least as issued. They had been issued by three separate committees, two of which wanted the information to be able to legislate on the general subject of money laundering and the other on the subject of conflicts of interest, broadly understood. Like the New York grand jury subpoena, they were very broad and directed to companies that had the financial records of the President and his businesses. The President claimed total immunity, and the House argued that judicial review should be very minimal; the Court found that the answer lay somewhere in the middle. It rejected the President’s claim because that would have seriously undercut the ability of the House to legislate. As for the House position that this subpoena was not different from any other, the Court observed:

“We would have to be “blind” not to see what “[a]ll others can see and understand”: that the subpoenas do not represent a run-of-the mill legislative effort but rather a clash between rival branches of government over records of intense political interest for all involved.”3

The Court’s response, which Justice Alito criticized as vague and too favorable to the Congress, was to create a “balanced” four-part test that imposed significant, but by no means impossible burdens to enforce a congressional subpoena.4 Those requirements include:

“First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers . . .
Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective. . .
Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. . .
Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena.”5

These are not the only relevant considerations because “one case every two centuries does not afford enough experience for an exhaustive list.”6

Although the Court did not hold that the congressional subpoenas here failed that test, that is almost certainly what the lower courts should conclude on remand. In essence, the Court told the House to go back and do a better job if it wanted to enforce these subpoenas. Although the contexts are different, the Chief Justice’s insistence here in requiring the House to follow what some would call legal niceties is reminiscent of his 5-4 rulings in the census case in 20197 and the DACA case this year8 when he set aside agency actions of the Trump administration for failing to follow the basic requirements of administrative law.

In the short run, this is a loss for the House. It has to go back almost to square one, and it will surely not get any of these records before Inauguration Day next January. But if it still wants to try to get some (but surely not all) of these records, it can continue the fight (although it may have to re-issue the subpoenas) and seems likely to prevail on the most significant records, whether or not Donald Trump is still President, provided that it is willing to put together a coherent set of reasons why it wants and needs these documents. Even more significant is that Congress now has a roadmap that it can follow when it wants to obtain documents from the public at large, as well as the executive branch. Although the ruling does not deal with official as opposed to private records, it is hard to imagine that if Congress meets the four-part test set forth above, it will not be able to gain access to records that it needs from federal agencies. And with the right to go to court, it will be in a much better bargaining position with the President than it has been to date.

In some ways, the Mazars majority opinion is most interesting because it mentioned “impeachment” only once in passing,9 as did Justice Alito.10 By contrast, Justice Thomas’ dissent was based on his reading of the Constitution under which subpoenas can only be used by Congress in connection with an impeachment, so that if the House had wanted these records, it would have had to announce that it was doing so for that purpose, which Justice Thomas said was more than a “mere formality.”11 The conclusion that I draw is that enforcing a subpoena in connection with impeachment by the House, or trial by the Senate, will be standard and subject to requirements no more strenuous than the four-part test announced in this case—and quite possibly less. That is a major victory for Congress, not for now, but in its long running battle with the President.

So, if you are keeping score, the President won the short-term battle to keep his tax returns and other information away from those who want to see them. But in the long run Congress has been armed with the tools it needs to gather the information that it wants to carry out its legislative responsibilities, although it will have to do a better job of justifying what it wants and why it needs it.

Dean Morrison is the Lerner Family Associate Dean for Public Interest Law at The George Washington University Law School, where he teaches constitutional law and civil procedure.

  1. Trump v. Vance, No. 19-635 (U.S. July 9, 2020).
  2. Trump v. Mazars USA, LLP, No. 19-175 (U.S. July 9, 2020).
  3. Mazars, slip op.at 16-17 (quoting Child Labor Tax Case, 259 U.S. 20, 37 (1922)).
  4. Id. at 18.
  5. Id. at 19–20.
  6. Id. at 20.
  7. 139 S. Ct. 2551 (2019).
  8. 140 S. Ct. 1891 (2020).
  9. Mazars, slip op. at 6.
  10. Id. at 2 (Alito, J., dissenting).
  11. Id. at 21 (Thomas, J., dissenting).

Recommended Citation
Alan B. Morrison, Response, The Bottom Lines in the Trump Subpoena Cases: More Losses Than Wins for the President, but No One Is Going to See His Tax Returns Soon, Geo. Wash. L. Rev. On the Docket (July 9, 2020), https://www.gwlr.org/the-bottom-lines-in-the-trump-subpoena-cases-more-losses-than-wins-for-the-president-but-no-one-is-going-to-see-his-tax-returns-soon/.

Judicial Legitimacy and the Future of Congress's Impeachment Power: The Mueller Report Goes to Court

Last Thursday, the Supreme Court granted certiorari in Department of Justice v. House Committee on the Judiciary, which presents the issue of the Judiciary Committee's demand for grand jury material underlying the Mueller Report. Federal law establishes a general rule that grand jury material must be kept secret. Federal Rule of Criminal Procedure 6(e)(3)(E)(i) creates an exception where the material is sought in connection with a "judicial proceeding." The House Judiciary Committee requested access to the grand jury material underlying the Mueller Report in connection with its impeachment inquiry.  The Justice Department denied the request on the grounds that impeachment is not a "judicial proceeding." The House filed a lawsuit to enforce its demand for the material. The D.C. District Court ruled in favor of the House, issuing a lengthy opinion explaining that the founders understood impeachment to be a judicial proceeding, that the Constitution's text embraces that understanding, and that impeachment in fact functions as a judicial proceeding. The D.C. Circuit affirmed the District Court, over a dissent by Judge Neomi Rao.

The Justice Department's argument is weak, bordering on frivolous. To be sure, the substance of impeachment -- the issue of what are impeachable "high crimes and misdemeanors" -- involves political rather than legal judgment. But the Constitution's text plainly regards the impeachment process as judicial. The House's authority to indict is and always has been understood to be the equivalent of a grand jury's authority to indict. The Senate's role is expressly denominated as being to "try all impeachments" and provides that "when the President of the United States is being tried, the Chief Justice shall preside." If indictment and trial are not "judicial proceedings," I honestly have no idea what a judicial proceeding is. More to the point, the framers would have had no idea either. Remarkably, this was precisely the position of the President's lawyers during the impeachment. From the premise that impeachment is a judicial proceeding, they argued the non sequitur that the protections of an ordinary criminal proceeding must be observed.

It is, of course, likely that the drafters of the Federal Rules of Criminal Procedure were not thinking about impeachments when they promulgated the phrase "judicial proceeding." After all, the paradigmatic application for the rules is ordinary criminal proceedings in federal courts. But even if the Federal Rules were not drafted with impeachment in mind (if, in fact that is so) it does not follow that "judicial proceedings" do not include impeachments. Rather, it becomes a question of statutory interpretation and the Supreme Court's ruling in this Term's Title VII cases, Bostock v. Clayton County, Georgia, made clear what the approach should be to questions of statutory interpretation when it held that just because the drafters of Title VII did not contemplate employment protections for LGBTQ persons does not mean the law lacks those protections. Indeed, this is the essence of textualism. If the words of a law comprehend a thing (whether it is LGBTQ protection or impeachments), then the law includes those things regardless of what its authors expected.

The issue in this case is not an interesting one. What is interesting is the question of why the Court granted certiorari. I do not profess to know the answer, but the obvious possibilities are all disturbing. Perhaps the Court simply wants to affirm the D.C. Circuit's obviously correct disposition of the case.  But then, why grant certiorari? The Supreme Court only takes cases where it has something important to say and a simple affirmance won't serve that purpose. Moreover, the grant of certiorari will have the effect of ensuring that the information in the grand jury materials will not be available to the House or importantly, to the public, before the next election. That, of course, may be the reason the Court granted certiorari -- to protect the President from such disclosure. But such a move would risk obliterating the Court's legitimacy and, just as importantly, the public's perception of its legitimacy. It is difficult to imagine Chief Justice Roberts, who has so assiduously attended to the perception of the Court, sitting idly by as the Court makes such a move. That leaves the possibility that the Court is interested in limiting Congress's ability to demand information even in the context of impeachment. What precisely this might be is anyone's guess and we will have to wait and see. But it leaves me anticipating the imminent decision in the consolidated Mazars cases (the subpoenas for the President's tax returns) with real dread.

Severability, Robocalls, and the Legacy of Marbury v. Madison: Why the Challenge to the ACA Must Fail

Next term, the Supreme Court will be hearing California v. Texas, the latest in the long line of attacks on the Affordable Care Act (“ACA”). Seeking to weaponize the doctrine of severability, Texas, joined by the Trump administration, are urging the Supreme Court to strike down the ACA in its entirety.  They claim the ACA’s individual mandate is unconstitutional because, in 2017, Congress reduced the tax payment for failing to comply with the individual mandate to zero.  Shockingly, they insist the proper remedy is to strike down the law in its entirety, even though Congress left the ACA in place when it zeroed out the shared responsibility payment.  As the Supreme Court wraps up its current term, a pair of rulings make clear that this is not how severability doctrine works.  Courts must save, not destroy, partially valid statutes.  These rulings make clear that it would be a flagrant violation of settled legal principles to strike down the ACA even if the Court were to wrongly conclude that the mandate is now unconstitutional.

Earlier this week, in Barr v. American Association of Political Consultants, the Supreme Court struck down part of a federal statute prohibiting robocalls, concluding that Congress violated the First Amendment when it amended the statute to permit robocalls to collect government debts.  This introduced an unconstitutional content-based distinction into the law.  But rather than striking down the statute in its entirety, seven Justices agreed that the remedy was to sever the unconstitutional government-debt exception, leaving the robocall ban in place.

The lead opinion, written by Justice Brett Kavanaugh, made clear that courts must “presume[] that an unconstitutional provision in a law is severable from the remainder of the law or statute.”   This “keep[s] courts from unnecessarily disturbing a law apart from invalidating the provision that is unconstitutional.”  While courts must ensure that the remainder of the statute is “capable of functioning independently,” he noted, “it is fairly unusual for the remainder of a law not to be operative.”

Justice Kavanaugh traced these basic principles of judicial restraint all the way back to Marbury v. Madison, insisting that, for centuries, the Court’s severability doctrine has “reflect[ed] a decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause.”  Justice Kavanaugh continued, “Constitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute.  If the rule were otherwise, the entire Judiciary Act of 1789 would be invalid as a consequence of Marbury v. Madison.”  This is exactly what Texas and the Trump administration are trying to do.  Justice Kavanaugh’s ruling in Barr shows that throwing out the entire ACA would turn severability doctrine on its head.

The parallels to the upcoming ACA case go even deeper.  Barr made clear that when a court strikes down a later-enacted amendment to a constitutionally valid law, it should not strike down the law in its entirety.  Rather, the “unconstitutional statutory amendment ‘is a nullity’ and ‘void’ when enacted, and for that reason has no effect on the original statute.”  Justice Kavanaugh laid out a number of the Court’s precedents applying severability doctrine in the context of unconstitutional amendments to a law.  As these cases teach, if a statutory amendment has a constitutional flaw, courts should not use that as an excuse to invalidate the law in its entirety.  The implications for California v. Texas are clear: The Supreme Court has no basis for striking down the entire ACA.

Barr is not the only important severability precedent of late.  In Seila Law v. Consumer Finance Protection Bureau, the Supreme Court refused to strike down the Dodd-Frank Act in its entirety after holding that the CFPB’s leadership structure violated separation of powers.  In an opinion by Chief Justice John Roberts, the majority refused to “junk our settled severability doctrine,” recognizing its duty to save as much of the statute as possible.  As in Barr, the Supreme Court recognized that it was required to “use a scalpel rather than a bulldozer in curing the constitutional defect we identify today.”

The severability question in California v. Texas is an easy one.  It should be even easier now that the conservative wing of the Supreme Court has reaffirmed that the whole point of severability doctrine is to save, not destroy, partially valid statutes.  The Supreme Court should, once again, reject the ACA’s opponents’ efforts to have the Court strike down the ACA.

For more on severability please read David Gans’ ACS Issue Brief To Save and Not to Destroy: Severability, Judicial Restraint, and the Affordable Care Act.

 

 

 

 

 

Five Thoughts on Espinoza

No one should have been surprised by the Supreme Court’s 5-4 decision yesterday in Espinoza. It represented the continuation of an ongoing constitutional program, launched years ago by members of the majority, to weaken the Establishment Clause and strengthen the Free Exercise Clause. Here are five initial takeaways.

First, the Court has now decisively moved from the rule that school choice programs are permitted by the Establishment Clause to include religious schools to a rule that these tax programs are required by the Free Exercise Clause to include religious schools whenever they benefit private schools. After the Court ruled in 2002 that school voucher programs could include religious schools, several governments established voucher programs that supported only secular schools. Courts upheld these programs, reasoning that the “play between the joints” between the two religion clauses gives governments discretion to adopt a vision of separationism that is not required by nonestablishment, just as they can adopt a vision of religious liberty that’s not required by free exercise. I provided theoretical support for these decisions in an article in the Penn Law Review. But in Espinoza the Supreme Court has constrained governmental discretion as a matter of federal constitutional law—taking the matter out of the hands of states and localities, and out of the hands of voters and the officials they elect.

Second, Chief Justice Roberts, writing for the majority, purports to constrain the majority’s holding in Espinoza by arguing that it only applies to government support programs that exclude religious entities, not to exclusions of religious uses. (This distinction between status and conduct was foreshadowed in footnote 3 of Trinity Lutheran, a 2017 decision, where the distinction seemed to have been required by Justice Kagan and was pointedly not joined by Justices Gorsuch and Thomas.) But in Espinoza, Roberts is careful to avoid committing the Court to the status/conduct distinction. In his dissent, Justice Breyer argues that excluding religious schools from funding programs is tantamount to excluding religious practices, since many or most parochial and sectarian schools include theological instruction, prayer practices, and even worship services. Roberts rejects this view, holding that Montana’s exclusion of religious schools from its school choice program “discriminated” against them on the basis of status, not sectarian activity. “None of this is meant to suggest,” Roberts nevertheless insists, “that we agree with [Montana] that some lesser degree of scrutiny applies to discrimination against religious uses of government aid.”

Roberts’ reluctance is understandable, because the status/use distinction is unstable. Imagine that, after Espinoza, a government adopted a school choice program that prohibited funding for core sectarian practices like theological instruction, prayer, or worship. Would such a program really escape a presumption of unconstitutionality? The Court would likely reason that there is no tradition against funding for religious instruction, just as it found in Espinoza that there was no founding-era prohibition on funding religious schools. (Never mind that this way of telling the story privileges a time when states had established churches and ignores the nineteenth century, when Americans decisively rejected those establishments, when public schools came into existence, and when Reconstruction amendments to the Constitution incorporated the religion clauses against the states.) The Roberts Court would then overrule Locke v. Davey, reasoning that its legal foundations have been undermined by subsequent legal developments—chiefly, Trinity Lutheran and Espinoza. Any earlier attempt to forestall a rule that school choice programs are constitutionally obligated to direct tax support to core religious uses has failed.

Technically, Espinoza concerns only “indirect aid”—government support that flows to religion only via the independent choices of private citizens. But my third point is that the decision has implications for direct aid, as well. Under current law, the constitutional rule is that tax dollars, and other forms of public aid, cannot flow directly to religious practices. But Roberts Court is moving unmistakably toward a different rule, namely that tax dollars may flow directly to prayer and worship, so long as the aid is neutral among religions, and between religion and nonreligion, and so long as the aid is nonreligious in content. In Espinoza, Roberts points toward this outcome in dicta when he says “the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.” While it’s unclear whether Espinoza itself is the marker, or whether we should point instead to Congress’s decision to direct hundreds of millions of dollars toward clergy salaries in the PPP program, it is clear that the era of American separationism has ended. The United States is headed for a system much more like the one in Europe, where religious schools can be funded alongside secular ones, and where even congregations themselves can receive tax support.

Fourth, the Espinoza decision creates tensions with other areas of constitutional law. For some time, it’s been the rule that while government may not unduly burden the exercise of fundamental liberties, it need not support or subsidize them. So government cannot censor speech, but it is not constitutionally compelled to subsidize the expression of private speakers. And, crucially, the government is not obligated to support the ability to terminate a pregnancy, even though reproductive freedom is a constitutional right. An implication of Espinoza, however, is that government is actually compelled to subsidize free exercise whenever it supports comparable secular activity. Otherwise, it’s engaged in “discrimination.” Now, members of the majority will argue that the Free Exercise Clause contains an equality requirement that’s missing from due process doctrine. Yet reproductive freedom supports the equal citizenship status of women in an obvious way. While I have concerns about the rule that fundamental rights need not be subsidized, I find it hard to see how that rule is being applied coherently across constitutional law.

Finally, Espinoza deepens difficulties surrounding the specialness of religion in constitutional law. If Chief Justice Roberts is right that free exercise “protects religious observers against unequal treatment and against laws that impose special disabilities on the basis of religious status,” then the principle of nonestablishment is itself in constitutional question. It suggests that religion can never be singled out for special burdens, or even denied support, without triggering a presumption of unconstitutionality. But of course that is what the Establishment Clause does—it insists that there are special difficulties with government support for commitments of conscience. Not only has the Court narrowed the “play in the joints” between the religion clauses, in other words, but it has created tensions between the principles driving the clauses themselves.

The United States has long been seen as exceptional among constitutional democracies—exceptionally committed to the separation of church and state, and exceptionally religious in its people’s private practices. It’s far from clear that this description is correct, that these two characteristics are causally related, or that the strictest forms of separationism have ever been workable or attractive. But regardless, the country now is moving into a new constitutional arrangement, one that carries dangers of religious preferentialism, government entanglement in religious affairs, and political conflict along religious lines. We should begin the work of adjusting to that new reality.