This month’s oral arguments are truly historic. Due to the COVID-19 pandemic, the Court will not be meeting in person, but rather hearing arguments remotely via telephone, where the Justices will ask questions in order of seniority. Most intriguing, this month’s arguments will be available for live streaming—an unprecedented move by the Court as it has traditionally resisted pressure to allow live video or audio transmissions of proceedings. For the first time ever, you can tune in to the oral arguments via the C-SPAN Radio app.
May 4
United States Patent and Trademark Office v. Booking.com B.V.
No. 19-46, 4th Cir.
Preview by Jacob Reiskin, Online Editor
The primary issue in Booking.com is whether a generic word combined with “.com” (a top-level domain), as in BOOKING.COM, is eligible for registration as a trademark under the Lanham Act.
Under the Lanham Act, entities may not register marks that are generic. 15 U.S.C. § 1051 (2018). “Generic” is one categorization for labeling the distinctiveness, and thus registrability, of a mark. To determine whether a mark is generic, courts apply the “primary significance” test. Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 113–14 (1938). A word is generic if it primarily refers to a class of goods as opposed to signaling to a consumer who the producer of the good is. This case originated in the United States Patent and Trademark Office (“USPTO”). The examining attorney refused to approve registration of the mark BOOKING.COM because the word “booking” is generic and adding “.com” does not create a protectable mark. The Trademark Trial and Appeal Board affirmed, finding that “booking” referred to a class of services. Booking.com appealed to district court, which held that BOOKING.COM was eligible for protection because top-level domain names are source identifying marks and eligible for protection upon acquired distinctiveness. The court relied on the results of Booking.com’s Teflon survey, a type of survey “which teaches survey respondents the difference between generic terms and brands, then asks respondents to identify terms as generic or as likely brands.” Brief for Respondent at 30, United States Patent and Trademark Office v. Booking.com B.V., No. 19-46 (U.S. filed Feb. 12, 2020). The Teflon survey concluded that 74.8% of consumers recognized the Booking.com brand. A divided Fourth Circuit affirmed, applying the “primary significance” test, relying heavily on the Teflon survey, and finding that the BOOKING.COM mark signaled the specific service provider, not just booking services generally. The dissent wrote that businesses always have a choice between picking a distinctive protectable name as opposed to a non-protectable generic name.
The USPTO now primarily argues that a per se rule is necessary to prohibit registration of “generic.com” marks, as the agency hopes to avoid allowing monopolization of certain classes of goods or services. Brief for Petitioners at 17–18, United States Patent and Trademark Office v. Booking.com B.V., No. 19-46 (U.S. filed Jan. 6, 2020). The agency rests chiefly on Goodyear, an 1888 Supreme Court decision holding that generic words are not registrable merely by adding “company” or “Inc..” Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U.S. 598, 602–03 (1888). The USPTO argues that even though that case precedes the Lanham Act, the Act was intended to unite common law through federal codification, and thus Goodyear is still good law. The agency also argues that Booking.com has plenty of protection because it owns the domain name and can register other stylized elements of the brand.
Booking.com argues that the lower courts’ reliance on its Teflon survey was well-founded because the survey demonstrates that BOOKING.COM is not generic under the “primary significance” test. Many of the amici similarly argue that a fact-specific analysis is more fitting than a per se rule for deciding whether a mark is generic. See, e.g., Brief of Trademark and Internet Law Professors as Amici Curiae in Support of Respondent, United States Patent and Trademark Office v. Booking.com B.V., No. 19-46 (U.S. filed Feb. 19, 2020). In addition to arguing the irrelevance of Goodyear in light of the later Lanham Act, Booking.com also argues that creating a per se rule would be an “extinction event” for other seemingly generic marks. Brief for Respondent at 46, United States Patent and Trademark Office v. Booking.com B.V., No. 19-46 (U.S. filed Feb. 12, 2020). This, it argues, would hurt consumers who have come to rely on marks that identify specific producers. Further, Booking.com added that domain names offer little protection from competitors.
May 5
United States Agency for International Development v. Alliance for Open Society International, Inc.
No. 19-177, 2d Cir.
Preview by Emma Liggett, Online Editor
In 2003, Congress enacted the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (“Leadership Act”). 22 U.S.C. §§ 7601–7682 (2018). Through the Leadership Act, Congress apportioned billions of dollars towards funding non-governmental organizations (NGOs) involved in the fight against HIV/AIDS. In order to receive funding, NGOs had to satisfy certain conditions, including the requirement that they “have a policy explicitly opposing prostitution and sex trafficking.” 22 U.S.C. § 7631(f) (2012). However, in 2013 the Supreme Court held that the First Amendment bars enforcement of this requirement upon Respondents, who are US-based organizations receiving funding under the Leadership Act. See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 221 (2013). In that case, the government argued that § 7631(f) did not violate the First Amendment because the guidelines allowed respondents to speak freely through their affiliates while complying themselves and receiving funding, or vice versa. Id. at 219. The Court rejected this argument, stating that recipients of the funds would risk “evident hypocrisy” by using affiliates who are “clearly identified” with them to express beliefs inconsistent with their own. Id. The issue today is whether the First Amendment further bars enforcement of § 7631(f) upon Respondents’ legally distinct overseas affiliates.
After the 2013 ruling, Respondents sought to obtain a permanent injunction against the enforcement of § 7631(f) against themselves and their foreign affiliates. A divided Second Circuit affirmed the injunction, stating that this question was answered by the 2013 Court. All. for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 911 F.3d 104, 109-10 (2d Cir. 2018), cert. granted, 140 S. Ct. 660 (2019). By requiring Respondents’ foreign affiliates to abide by § 7631(f), the Second Circuit reiterated, the Government violates the First Amendment rights of the domestic Respondents by compelling them to choose between adopting a Government-sanctioned idea or engaging in “evident hypocrisy” by sending conflicting messages from their foreign affiliates. Id. (quoting Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 219 (2013)). The Government appealed.
The Government’s argument is four-fold. First, it contends that foreign entities operating abroad do not have constitutional rights. Second, enforcing § 7631(f) against foreign affiliates does not violate the rights of domestic organizations, because they are legally distinct entities. Under corporate law, the Government contends, “distinct legal entities have distinct responsibilities and rights.” Brief for Petitioners at 17, U.S. Agency for Int’l Dev. v. All. For Open Soc’y Int’l, Inc., No. 19-177 (U.S. filed Jan. 27, 2020). Third, the Second Circuit erroneously interpreted the Court’s 2013 statement regarding hypocrisy, which was confined to the context of applying § 7631(f) to domestic organizations. In order to receive funding, domestic organizations would have to use foreign affiliates to express their true beliefs, while they themselves complied with § 7631(f). The issue of hypocrisy is not present here, says the Government, because domestic organizations can express their desired beliefs and receive funding without the use of affiliates. Finally, the Government contends that applying § 7631(f) to foreign affiliates advances Congress’s goal of fighting HIV/AIDS.
Respondents counter that the Court’s reasoning in 2013 compels the decision reached by the Second Circuit. Citing the 2013 Court, Respondents state that the compelled viewpoint in § 7631(f) cannot be attributed to one affiliate alone, but will effectively be attributed to all others and thus constrain their speech as well. Respondents would suffer a First Amendment violation if an affiliate is subject to § 7631(f), because they are “unified organizations that use the same name, brand, and logo and speak as one.” Brief for Respondents at 22, U.S. Agency for Int’l Dev. v. All. For Open Soc’y Int’l, Inc., No. 19-177 (U.S. filed Feb. 26, 2020). Thus, the foreign affiliates’ compelled speech would be imputed to Respondents, and they would suffer from the “evident hypocrisy” discussed by the Court in 2013. Id. at 23. Furthermore, the foreign affiliates’ legal separation would not lessen the likelihood of this attribution. Finally, Respondents state that the Government’s policy arguments have no merit. U.S. foreign aid’s effectiveness does not hinge on the requirement of § 7631(f), as is shown by success in many other areas.
Considering that both the Government and the NGOs have the same goal of promoting health and development abroad, it will be interesting to see how the Court determines which means are more appropriate for doing so.
May 6
Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania
No. 19-431, 3d Cir.
Preview by Emma Liggett, Online Editor
In 2017, the Departments of Health and Human Services, Labor, and the Treasury (“the agencies”) issued two interim final rules (“2017 IFRs”) allowing employers, educational institutions, non-profits, and closely-held entities to self-exempt from the Affordable Care Act’s (ACA) contraceptive mandate based on “sincerely held religious beliefs” or “moral convictions.” 82 Fed. Reg. 47,808-11, 47,850-51 (Oct. 13, 2017). Pennsylvania successfully sued President Trump to enjoin enforcement of the 2017 IFRs. Pennsylvania v. Trump, 281 F. Supp. 3d 553, 585 (E.D. Penn. 2017). Petitioners, non-profit religious employer Little Sisters of the Poor (“Little Sisters”), moved to intervene to defend the rules but were denied. The agencies and the Little Sisters appealed, and the agencies promulgated new rules (2018 final rules) nearly identical to the 2017 IFRs. See 83 Fed. Reg. 57,536, 57,592 (Nov. 15, 2018). In response, Pennsylvania, joined by New Jersey, sought a nationwide injunction against the final rules, which the district court granted.
The Third Circuit consolidated all appeals and affirmed the nationwide injunction. The court also concluded that the Little Sisters lack appellate standing because another district court granted them a permanent injunction, meaning they are “no longer aggrieved by the District Court’s ruling.” Pennsylvania v. President, 930 F.3d at 559 n.6 (July 12, 2019); see Little Sisters of the Poor v. Azar, No. 1:13-cv-02611, Dkt. No. 82 at 2–3 (D. Colo. May 29, 2018).
The Court will address two main issues: (1) Does a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lack standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court? (2) Did the federal government lawfully exempt religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage?
Little Sisters’ argument is three-fold. First, they have appellate standing because “[t]hey have a direct stake in the legality of the religious exemption,” which protects their religious beliefs when administering health insurance to their employees. Brief for Petitioner at 20, Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, No. 19-431 (U.S. filed Mar. 2, 2020). Second, the government is obligated by the Religious Freedom Restoration Act (RFRA) to exempt “objecting religious employers” entirely from the contraceptive mandate, because the exemption is “the most straightforward means” for rectifying the burden the mandate places on employers as recognized in Burwell v. Hobby Lobby Stores, Inc, 573 U.S. 682, 683 (2014). Brief for Petitioner at 28. Even without the RFRA, Petitioners continue, the ACA “independently authorize[s]” the final rule because it “grants the executive branch substantial discretion with respect to the preventive-services mandate from which the contraceptive mandate springs.” Id. at 22.
Finally, Petitioners argue that the final rule does not violate the Administrative Procedure Act (APA) because the agencies had “good cause” in issuing the IFR without notice-and-comment because of the Court’s “extraordinary remand and injunction” in Zubick v. Burwell, 136 S. Ct. 1557 (2016). Id. at 46–47. In Zubick, the Court declined to reach the merits of a challenge under the RFRA to a religious employer accommodation for the contraceptive mandate, instead enjoining the mandate’s application to employers and ordering the parties to seek a balanced solution. 136 S. Ct. at 1559–60. The Trump administration echoes that the final rules are procedurally valid and that the ACA and RFRA authorize the expanded religious exemptions. See Brief of Donald J. Trump, President of the United States, et al. at 32, 15–22, Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, No. 19-454 (U.S. filed Mar. 2, 2020).
Respondent replies with five main arguments. First, the agencies violated the APA by promulgating two procedurally invalid rules. Brief for Respondent at 19. The agencies had no express statutory authority to promulgate the 2017 IFRs, nor good cause to bypass notice-and-comment procedures. Thus, the 2018 final rules were invalid because the agencies “received comments on [the invalid 2017 IFRs] before promulgating the 2018 [final] rules,” making the 2018 final rules invalid as a result. Id. at 24.
Second, the ACA does not authorize the 2018 final rules because it gave HRSA the authority to define “what preventive services for women must be covered, not who must cover them.” Id. at 29 (emphasis in original). Third, the RFRA does not justify the 2018 final rules . The exemption is not required for compliance with the RFRA as objecting employers can use the preexisting accommodation to opt-out of covering contraceptives. Additionally, the “RFRA is a limitation on government power, not a grant of it,” and there is no RFRA violation here to justify government action. Id. at 48.
Fourth, the nationwide injunction is an appropriate remedy because anything more limited would “expose respondent states to continuing harm” by making them “bear the cost of contraceptive care for persons covered under exempted out-of-state health plans.” Id. at 54–55. Finally, Respondents argue that the Little Sisters lack appellate standing because they are protected from an injunction in Colorado and thus not required to comply with the mandate or claim a religious exemption. Id. at 55.
Each side argues for a circumstance that seems to fundamentally oppose the other. Freedom of religion is of vital importance in our society, but we also live in a society that ties health care coverage to employment. Both of these interests are of immense importance, and how the Court chooses to balance them will be telling of which interest (ostensibly) deserves more respect.
Barr v. American Association of Political Consultants
No. 19-631, 4th Cir.
Preview by Austin Martin, Senior Online Editor
In 1991, Congress passed the Telephone Consumer Protection Act (TCPA) which, in part, bans calls to cellphones made by automated telephone machines or artificial or prerecorded voices. 47 U.S.C. § 227(b)(1)(A)(iii) (2018). In 2015, Congress created an exception to this rule for cellphone calls “made solely to collect a debt owed to or guaranteed by the United States.” Id. Respondents are a group of political consultants who wish to use automated cellphone calls as a cost-effective means of conducting political polls, soliciting donations, encouraging voter turnout, and other political activities. The TCPA, however, stands in their way.
Respondents now challenge the TCPA and its government-debt exception as an unconstitutional “content-based” restriction on the First Amendment right to freedom of speech. If the Court agrees on that issue, it must also decide whether severing the exception is the proper remedy.
Respondents argue that the government-debt exception makes the TCPA’s automated call restriction content-based because the restriction’s applicability turns on the subject matter of the phone call. They argue that “[i]f a caller discusses only the collection of a government backed-debt, then he is not subject to any liability; but, if the subject-matter of the conversation changes to a different topic,” the call becomes prohibited. Brief for Respondents at 13-14, Barr v. Am. Ass’n of Political Consultants, No. 19-631 (U.S. filed Mar. 25, 2020). Content-based restrictions on speech receive strict scrutiny. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). Respondents argue that the TCPA and government-debt exception fail this test because protecting the public from unwanted communication is not a compelling interest and the law is overly broad.
The Government contends that neither the TCPA’s automated call restriction nor the government-debt exception discriminate on content, but rather conduct surrounding a particular economic activity: owing and collecting upon a government-backed debt. Thus, the Government argues that only intermediate scrutiny should apply to both. The Government asserts that the TCPA’s automated call restriction serves a significant government interest by protecting individual privacy and is narrowly tailored to only prohibit calls by automated machines. Reply Brief for Petitioners at 11, Barr v. Am. Ass’n of Political Consultants, No. 19-631 (U.S. filed Apr. 24, 2020). The government-debt exception, it is argued, serves a significant interest in assisting quick collection of government-backed debt, and debt-collection calls “do not implicate the same privacy concerns as most other automated calls.” Id. at 8. Respondents reject the Governments arguments here largely for a lack of narrow tailoring. See Brief for Respondents at 32-33.
Should the Court find the government-debt exception unconstitutional, the Government argues that severing the exception is the preferred remedy because Congress specifically indicated that any provision held invalid shall not affect the rest of the TCPA. See 47 U.S.C. 608 (2018). Respondents argue that to invalidate only the government-debt exception without invalidating the entire TCPA “penaliz[es] more speech.” Brief for Respondents at 33 (emphasis in original). They contend that severance alone does not remedy the TCPA’s unconstitutionality because it is the automated call restriction that must fail, not just the exception to the restriction, in order to protect speech. See Id. at 44-45.
Respondents have a lot on the line in this decision, as a decision in their favor could heavily impact campaign strategy in the upcoming election season. The COVID-19 pandemic is already forcing campaigns to rethink their outreach strategies as volunteers and voters are far more difficult to mobilize under stay-at-home orders. As much as consumers dislike “robocalls,” the Court may find them worthy of First Amendment protection, nonetheless.
May 11
McGirt v. Oklahoma
No. 18-9526, Okla. Crim. App.
Preview by Emma Liggett, Online Editor
The Major Crimes Act (MCA) gives the federal government exclusive jurisdiction over the prosecution of Indians for major crimes, such as murder or rape, committed on Indian reservations. 18 U.S.C. § 1153 (2018). In McGirt, the Court will resolve whether the State of Oklahoma had jurisdiction to prosecute Petitioner Jimmy McGirt, a member of the Seminole Nation of Oklahoma, for an alleged sexual assault committed in a suburb of Tulsa, land within the historical boundaries of the Creek Nation territory of eastern Oklahoma. Because this land has not been treated as a reservation since 1907, an answer in the negative would have significant implications, including the potential reversal of thousands of state convictions, the transfer of taxation and regulatory authority to the federal government, and the creation of the most populated Indian reservation in America.
In determining whether land is a reservation, the Court typically asks (1) whether the land used to be a reservation and (2) whether a federal statute explicitly terminates the land’s reservation status. See Nebraska v. Parker, 136 S. Ct. 1072, 1078–79 (2016). McGirt argues that the Creek land was a reservation at some point because Congress referenced such lands as “reservation” in relevant treaties and statutes. Reply Brief for Petitioner at 3–4, McGirt v. Oklahoma, No. 18-9526 (U.S. filed Apr. 10, 2020). He further argues that a federal statute must textually indicate Congressional “intent to diminish reservation boundaries,” just as Parker recently reaffirmed. Id. at 12 (quoting Parker, 136 S. Ct. at 1079). Because Oklahoma is unable to point to any statute containing clear language terminating the Creek’s reservation status, Congress did not disestablish the Creek reservation. See id.
Oklahoma argues that the Creek’s former territory was never a reservation to begin with, but rather a “dependent Indian communit[y]” subject to Indian control only if they held it communally or “individually . . . as restricted allotments.” Brief for Respondent at 8, McGirt v. Oklahoma, No. 18-9526 (U.S. filed Mar. 13, 2020) (quoting 18 U.S.C. § 1151(b) (2018)). When Oklahoma passed into statehood and Congress ended the allotment restrictions, the dependent Indian community ended as well. See id. Oklahoma continues that it had jurisdiction to prosecute McGirt regardless of the land’s status, however, because Congress transferred race-neutral jurisdiction over all Oklahoma residents to state courts at statehood. See id. at 21.
This is the second time in two years the Court faces this issue. In Sharp v. Murphy, the Court heard argument on whether Oklahoma could prosecute a Creek Nation member for murder committed in eastern Oklahoma. No. 17-1107 (U.S. argued Nov. 27, 2018). The Justices requested more briefing on whether Oklahoma retained prosecutorial criminal jurisdiction even if the land is a reservation, but never rescheduled the argument, likely because Justice Gorsuch was recused from Murphy, and McGirt raises a similar question. Notably, Oklahoma has changed its original argument. In Murphy, it argued that the land was a reservation at one point, but Congress disestablished it when it granted Oklahoma statehood and broke up the Creek land patents. See Brief for Petitioner at 26–28, Carpenter v. Murphy, No. 17-1107 (U.S. filed Jul. 23, 2018). While the Justices may look unfavorably upon a last-minute change of argument, the ramifications of calling the entire eastern half of Oklahoma a reservation for MCA purposes may persuade them to agree with Oklahoma’s newfound reasoning.
Our Lady of Guadalupe School v. Agnes Morrissey-Berru
No. 19-267, 9th Cir.
St. James School v. Biel
No. 19-348, 9th Cir.
Preview by Summer Flowers, Senior Notes Editor
In Our Lady of Guadalupe School v. Agnes Morrissey-Berru and St. James School v. Biel, the Supreme Court will determine the scope of the ministerial exception to employment discrimination claims. The ministerial exception, founded in both the Establishment and the Free Exercise Clause of the First Amendment, prohibits the government from interfering “with the decision of a religious group to fire one of its ministers.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 181 (2012). This exception bars religious employees from bringing employment discrimination lawsuits against religious organizations. In this case, the Court is being asked to more clearly define the test to determine whether an employee of a religious institution is a “minister” for the purposes of the ministerial exception.
In these cases, St. James Catholic School fired Biel after she was diagnosed with breast cancer, and Our Lady of Guadalupe School fired Morrissey-Berru when she was in her sixties. Both teachers taught fifth grade and neither teacher had a religious degree. After they were fired, both teachers filed discrimination claims with the EEOC and sued their schools. Neither St. James Catholic School nor Our Lady of Guadalupe School “advanced a religious reason for firing” these teachers. Brief for Respondents at 14, Our Lady of Guadalupe Sch. v. Morrissey-Berru, Nos. 19-267 & 19-348 (U.S. filed March 4, 2020). In both of these cases, the district court granted summary judgment for the schools, holding that the ministerial exception barred the teacher’s claims. On appeal, the Ninth Circuit reversed, holding that the teachers were not ministers and allowed the employment discrimination claims to proceed. The religious schools sought certiorari.
Petitioners St. James Catholic School and Our Lady of Guadalupe School state the question presented as whether civil courts can hear “employment discrimination claims brought by an employee against her religious employer, where the employee carried out important religious functions.” Brief of Petitioners at i, Our Lady of Guadalupe Sch. v. Morrissey-Berru, Nos. 19-267 & 19-348 (U.S. filed Feb. 3, 2020). Petitioners argue that Hosanna-Tabor, the Supreme Court case establishing the ministerial exception, supports a functional approach to determining when the ministerial exception applies. They argue the teachers here (1) “carried out the important religious function of teaching the Catholic faith to the next generation,” (2) had religiously significant titles, and (3) had “religious training.” Id. at 45–52. Accordingly, Petitioners argue the teachers fall “within the ministerial exception” and are barred from bringing their employment discrimination claims against their religious employer. Id. at 47.
Respondents Morrissey-Berru and Biel, however, frame the issue as “[w]hether the First Amendment’s Religion Clauses prohibit lay teachers at religious elementary schools from bringing employment discrimination claims.” Brief for Respondents at i. They argue that Hosanna-Tabor established a “framework for assessing ministerial status,” which includes religious “titles, training, and whether [the employees] hold themselves out as spiritual leaders.” Id. at 15. Respondents argue that none of the factors established by Hosanna-Tabor apply to them, and thus they are not ministers and are not barred by the ministerial exception from bringing employment discrimination claims against their schools.
This case has important implications in determining the scope of protection from employment discrimination suits under the ministerial exception. If employers can define roles and religious titles such that mostly secular employees are covered by the ministerial exception, it may undercut employee protections. But if truly religious employees can avoid falling under the exception, the ministerial exception could be rendered useless for religious employers.
May 12
Trump v. Mazars USA, LLP
No. 19-715, D.C. Cir.
Trump v. Deutsche Bank AG
No. 19-760, 2d Cir.
Preview by Jacob Reiskin, Online Editor
The Court will answer in Mazars and Deutsche Bank whether the House of Representatives has the power to subpoena personal and business financial records of President Trump and the Trump organization. Both the Second Circuit and the D.C. Circuit held that Congress has the authority to do so. See Trump v. Deutsche Bank AG, 943 F.3d 627 (2d Cir. 2019); Trump v. Mazars USA, LLP, 940 F.3d 710 (2019).
The House Oversight Committee, Permanent Select Committee on Intelligence, and Committee on Financial Services all issued subpoenas to financial institutions connected to the Trump family. This included Mazars USA, the President’s accountant, Deutsche Bank (now of infamy because of Russian money laundering and questionable loans to the Trump organization), and Capital One. The President intervened to quash the subpoenas.
The President argues that this is a separation of powers case and that Congress’ subpoena power is restricted to legislative purposes. See Brief for Petitioner at 33, Trump v. Mazars USA, LLP, Nos. 19-715 &19-760 (U.S. filed Jan. 27, 2020). The President insists that the subpoenas of the President and his family’s records have nothing to do with legislation because it is law enforcement inquiry related to money laundering and financial crimes. Declining to mention that his family holds senior roles in the White House and the Trump organization, the President argues that he and his family should not be a “congressional ‘case study.’” Id. at 20. The President adds that Congress does not have the power to regulate the office of the President, a coequal branch of government, especially without legislative purpose. The Solicitor General backs the President on this point. See Brief for the United States as Amicus Curiae Supporting Petitioners at 10–13, Trump v. Mazars USA, LLP, Nos. 19-175 & 19760 (U.S. filed Jan. 27, 2020).
In response, the House of Representatives argues unequivocally that each of the committees had a legislative purpose to the subpoenas: The Financial Services Committee is hoping to counter illicit banking schemes, the Intelligence Committee has broad authority to legislate against external and internal threats to the US and to prevent interference by foreign governments, and the Oversight Committee hopes to consider legislation pertaining to the President’s conflicts of interest and Emoluments clause violations. See Brief for Respondent at 14–30, Trump v. Mazars USA, LLP, Nos. 19-715 & 19-760 (U.S. filed Feb. 26, 2020). Though the House concedes that the President may object to subpoenas that impair his ability to run the executive branch, Congress argues no grounds for such an objection exist here. Citing a Nixon case concerning surrendering privacy in exchange for public office, The House of Representatives wrote: “The fact that the President is the principal owner of the Trump Organization cannot provide it immunity from Congressional investigation.” Brief for Respondent at 65 (citing Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 455 (1977).
Both parties also disagree about whether the House rules allow for subpoenaing the President, but the larger point of disagreement is whether the subpoenas were permissible as legislative tools, for which Congress has broad authority. The President argues for a strict test for determining legislative intent in separation of powers cases concerning document requests against the President. On the other hand, the House of Representatives argues that judicial supervision of Congress is inappropriate and inconsistent with a rich history of legislative inquiry, and also with existing laws concerning presidential financial disclosures.
Trump v. Vance
No. 19-635, 2d Cir.
Preview by Amy Orlov, Online Editor
Trump v. Vance is the third case in a series concerning President Trump’s tax returns following Trump v. Mazars USA, LLP and Trump v. Deutsche Bank. During his 2016 presidential campaign, Donald Trump famously refused to release his tax returns, a largely unprecedented decision for presidential candidates. He has further refused to release his tax returns since taking office. In 2019, the District Attorney for New York City, Cyrus Vance, served Mazars USA, LLP, the President’s accounting firm, a grand jury subpoena seeking various documents and records concerning, including the President’s tax returns from 2011 up to the present. President Trump informed the District Attorney that he would seek to prevent enforcement of this subpoena for all documents related to his tax returns. Thus, President Trump filed a claim in the United States District Court in the Southern District of New York to restrain the subpoena issued to Mazars.
Relying on Younger v. Harris, 401 U.S. 37 (1971), the district court held that federal courts should decline to intervene in state criminal prosecutions. It further held that there was no constitutional basis to temporarily restrain or enjoin the subpoena in this case. Thus, the district court declined to exercise jurisdiction and dismissed the case. The U.S. Court of Appeals for the Second Circuit affirmed, reasoning that any presidential immunity from state law prosecutions does not extend to early investigative proceedings like grand jury subpoenas. However, the Second Circuit found that Younger v. Harris did not apply to this case and remanded the issue of broad federal court jurisdiction in state criminal prosecutions to the lower court.
The Court must now decide if this subpoena violates Article II and the Supremacy Clause of the Constitution. More specifically, the Court will determine whether the Constitution allows a local prosecutor to subpoena a third party for the financial records of a sitting president. President Trump argues that only Congress can hold the president accountable for wrongdoing. As such, the President should be categorically immune from any state and local prosecutions while he is in office as any proceeding may become overly political and may distract the President from his official duties. See Brief for Petitioner at 19, 28–29, Trump v. Vance, No. 19–635 (U.S. filed Jan. 27, 2020). Vance argues that the President and his records are not categorically immune from state grand jury subpoenas for documents that do not concern the President’s official duties and responsibilities while in office. See Brief for Respondent at 12–17, Trump v. Vance, No. 19-635 (U.S. filed Jan. 27, 2020).
The Court’s decision in this case will likely have broad implications for the presidency, in addition to Trump himself and his businesses. The Department of Justice under Attorney General William Barr has weighed in on the case and asserts that a president has temporary absolute immunity, and thus, the Court should restrict the subpoena. See Brief for the United States as Amicus Curiae Supporting Petitioner at 8–11, Trump v. Vance, No. 19-635 (U.S. filed Jan. 27, 2020). Even if the Supreme Court rules in favor of Vance, it is unlikely that the public will see Trump’s tax returns as grand jury proceedings are conducted in secret. Additionally, it is not clear if Trump could be indicted following the grand jury subpoena, although the Court may refrain from answering this question.
May 13
Chiafalo v. Washington
No. 19-465, Wash.
Colo. Dep’t of State v. Baca
No. 19-518, 10th Cir.
Preview by Amy Orlov, Senior Online Editor
Chiafalo v. Washington and Colorado Department of State v. Baca stem from the 2016 United States presidential election between Hillary Clinton and Donald Trump. These two cases center around the issue of “faithless electors”—those members of the United States Electoral College who vote for a presidential or vice-presidential candidate for whom they have not previously pledged to vote. These cases are significant as the general public has expressed growing criticism towards the Electoral College and has called for reforms following the 2016 presidential election. Although faithless electors have never changed the outcome of an election, there is concern that faithless electors could influence a future election should there be a close Electoral College vote.
As with all presidential elections, voters in the United States do not directly elect the president and vice president, and instead, a group of appointed electors votes to select these two executive positions. Leading up to an election, each state political party will choose a group of electors equal to the number of senators and representatives allotted to that state. The electors from the political party of the candidates that win the popular vote in that state will ultimately cast the vote for the president and vice president in early December for that state. In both the states of Washington and Colorado, the winner of the popular vote receives all of a state’s electoral votes.
Washington and Colorado each have laws restricting the ability for an Electoral College designee to become a faithless elector—i.e. laws that restrict the ability for an elector to break with the candidate to whom they pledged and vote for someone else. In Washington, any elector who does not vote for their party’s candidate is subject to a fine up to $1,000. In Colorado, state law mandates that all electors be required to vote for the candidates who won the popular vote.
In 2016, Hillary Clinton and Tim Kaine received the popular vote in both Washington and Colorado. In Chiafalo, Peter Bret Chiafalo and two other individuals served as three of the twelve electors for the Washington Democratic Party. For president, they each voted for Colin Powell, and for vice president, they each voted for someone other than Tim Kaine. In Baca, Michael Baca and two other individuals served as three of the nine electors for the Colorado Democratic Party. Baca attempted to vote for John Kasich as the presidential nominee, and the other electors also desired to vote for someone other than Hillary Clinton as president. These individuals were trying to create a coalition of electors from both the Democratic and Republican parties who would vote for candidates other than Donald Trump and Hillary Clinton in order to deny Trump a majority in the Electoral College, thus resulting in a contingent election in the House of Representatives. See Consolidated Opening Brief for Presidential Electors at 12, Chiafalo v. Washington, Nos. 19-465 & 19-518, (U.S. filed Mar. 2, 2019).
While these two cases were originally consolidated, the Supreme Court chose to separate the cases after Justice Sotomayor recused herself from Baca since she was previously friends with one of the respondents. Attorney Lawrence Lessig, the founder of an organization that seeks to promote election reform, represents the electors in both cases.
In Chiafalo, the state fined each petitioner $1,000 for failing to vote for his or her party’s nominee. The electors filed a case in state court challenging their fines, but the Washington Supreme Court ultimately upheld the punishment and ruled in favor of the government. See In re Guerra, 193 Wash. 2d 380, 402 (2019). In Baca, Colorado election officials removed Baca as an elector and replaced him with an alternate elector who voted for Clinton and Kaine. The two other respondents ultimately cast their votes for Hillary Clinton. Baca and his fellow electors filed a case in federal court claiming that the Colorado laws restricting their voting abilities are unconstitutional. The U.S. Court of Appeals for the Tenth Circuit agreed with the electors and held that the Colorado laws prohibiting faithless voting violate the Constitution. See Baca v. Colo. Dep’t of State, 935 F.3d 887, 902 (10th Cir. 2019).
The merits issue in both cases is whether states have the constitutional power to bind electors to their pledged nominee following the popular vote election. The electors assert that the state’s authority to dictate their votes ended following their appointment and that they were free to vote as they desired under the Twelfth Amendment of the Constitution. See Consolidated Opening Brief for Presidential Electors at 18–26. The electors further argue that they are free to vote as they choose based on the direct wording of the Constitution and the historical intentions of the founding fathers. See id. at 17–29. In contrast, the states believe that Article II of the Constitution allows states to control their electors’ voting capabilities in order to give meaning to their state’s popular vote. See Brief for Respondent State of Washington at 21–25, Chiafalo v. Washington, No. 19-465 (U.S. filed Apr. 1, 2019).
There is one additional issue in Baca: whether the electors had standing to bring their case in federal court as the electors are considered state officials. Colorado argues that state officials cannot bring federal lawsuits challenging state laws that detail the responsibilities of the state officials. See Brief for Petitioner at 10, Colo. Dep’t of State v. Baca, No. 19-518 (U.S. filed Apr. 1, 2019). This argument is consistent with the views expressed in the Tenth Circuit’s dissent.
