As the U.S. Supreme Court enters into the new year, the justices are preparing to confront a series of hot-button issues in the second half of what is widely viewed as a historic term.
Since the start of the term in October, the court has already heard arguments on a number of high profile cases such as on the second amendment, the Obama-era Deferred Action for Childhood Arrivals (DACA) program, the deportation of lawful permanent residents convicted of felonies, and whether the Civil Rights Act of 1964 applies to LGBTQ workers.
Troutman Sanders attorney Misha Tseytlin, who leads the firm’s national appellate and Supreme Court practice, said he believes the second half of the 2019-2020 term will also contain a couple of big-ticket cases comparable to the first half but he said it is difficult to judge the significance of a case until it has been decided.
“Sometimes the court has a big high profile case, and then it doesn’t actually render a decision that is actually a precedent or meaningful,” Tseytlin told The Epoch Times. “The ingredients are there for the second half of the court term to be blockbuster but the Supreme Court could also decide issues very narrowly or not decide them at all.”
Some Supreme Court fights to keep an eye on in 2020 include cases on Louisiana abortion restrictions, state aid for religious schools, the constitutionality of the Consumer Financial Protection Bureau (CFPB), and President Donald Trump’s bid to shield his financial records.
Trump’s Financial Records
The fight to stop the House and a New York investigation from having access to the president’s financial records reached the high court last month when the Supreme Court agreed to take on Trump’s appeals of the three subpoena-related cases. The cases present important separation of power questions to the justices.
One of the cases stems from a subpoena issued by the House Oversight Committee to Trump’s accounting firm Mazars USA to hand over eight years of financial records involving Trump and his business in April as part of its probe into allegations about the president’s financial statements.
In a separate House-related case, the House Financial Services and House Intelligence committees issued subpoenas to two banks—Deutsche Bank AG and Capital One Financial Corp.—asking them to turn over Trump’s financial documents. The House committee investigations are unrelated to the impeachment proceedings.
Meanwhile, the third case centers on a subpoena issued by District Attorney of New York County Cyrus Vance Jr. in a criminal investigation in Manhattan. Vance is investigating hush money allegedly paid to two women during the 2016 presidential campaign—adult film actress Stormy Daniels and former Playboy model Karen McDougal. Trump has denied the affairs and any other wrongdoing.
According to a court order in December, the cases will be scheduled for argument in March (pdf).
These cases have “a lot of important legal issues about the power of the courts, Congress, and the states to target the financial records of the president, but [they] also [have] a lot of current political relevance, because [they] involve the current president in the midst of the run-up to the 2020 election,” Tseytlin said.
Lousiana Abortion Restrictions
This abortion-related case will be the court’s first since Trump’s two nominees, Justices Brett Kavanaugh and Neil Gorsuch, took the bench.
The right to abortion is not an issue, in this case, instead, the case at hand, cited as June Medical Services LLC v. Gee, asks the court to decide whether an unconstitutional burden has been placed on women seeking abortions after Louisiana passed a law, Act 620, requiring doctors performing abortions to have admitting privileges within 30 miles of where the procedure was taking place.
For a doctor to have admitting privileges to a hospital, they are required to be a member of a hospital’s medical staff and have the ability to admit patients in order to provide diagnostic and therapeutic services.
The state argued that admitting privileges were necessary to protect patients’ health and safety. But the appellants, June Medical Services and two doctors, argued that the law imposes an “undue burden” on women seeking abortion services.
“While the case itself deals with a discrete type of regulation on abortion clinics, a lot of folks are looking at the case to see what the Supreme Court’s attitude is going to be towards abortion laws in general, and abortion lawsuits since the appointment of President Trump’s two latest Supreme Court justices,” Tseytlin said.
Last week, over 200 lawmakers, mainly Republicans, and the Trump administration filed “friend of the court” briefs to urge the top court to back the state abortion law. The case is set for argument on March 4.
State Aid for Religious Schools
The case will test the legality of a state scholarship program funded by public money that helps students attend private schools of their families’ choice, including religious ones. It centers on a Montana program that provides a dollar-for-dollar tax credit up to $150 for individuals who donate to non-profit organizations that fund scholarships for families who wish to send their children to private schools.
Shortly after the program was created, the state’s Department of Revenue enacted a rule that limits the program to non-religious schools to comply with the state constitution.
Parents of students who attend a private religious school in Montana sued tax officials over the rule. A trial court sided with the families, saying that they could use the scholarships at religious schools.
But in a 5-2 ruling, the Montana Supreme Court reversed the trial court decision in December 2018, adding that the program’s inclusion of religious options was “unconstitutional.” The court said by allowing the program to be used in religious schools, it “violates Montana’s constitutional guarantee to all Montanans that their government will not use state funds to aid religious schools.” The court then invalidated the entire program. This prompted the families to appeal to the U.S. Supreme Court.
The question before the top court now is whether the Montana Supreme Court’s invalidation of the scholarship program because of its inclusion of religious options violates the religious clauses and equal protection clauses of the U.S. Constitution. Oral argument for this case is set for Jan. 22.
Consumer Financial Protection Bureau (CFPB)
The justices will also be faced with another important question of whether the structure of the CFPB, a federal agency, is constitutional, in particular, whether it violates the separation of powers by prohibiting the president from removing the agency’s head except for specific circumstances.
The CFPB was established under the Dodd-Frank Act to ensure that all consumers have access to markets for consumer financial products and services. It is widely considered the brainchild of Sen. Elizabeth Warren (D-Mass.), who is now a 2020 Democratic presidential candidate.
The agency was given an unusual level of independence and is largely funded by the Federal Reserve System. It is headed by a director, who is appointed by the president and requires Senate consent. The director then serves for a term of five years and cannot be removed by the president unless the termination is for “inefficiency, neglect of duty, or malfeasance in office.” It is unusual because those who lead federal agencies often serve “at the pleasure of” the sitting president.
The case was brought by a California-based law firm, Seila Law, who challenged the agency’s composition.
The Department of Justice has refused to defend the CFPB and Paul D. Clement has been appointed to join and argue the case for the agency. Moreover, the CFPB has also filed a brief in September (pdf) last year, saying that the bureau’s director, Kathleen Kraninger, has “reconsidered” her position on the case and agrees that the bureau is unconstitutionally structured because the director cannot be removed except “for cause” and not at the president’s discretion.
Oral argument for this case is set for March 3.
Another case that the Supreme Court might hear but has not taken up is a review of a lower court ruling that could possibly lead to the invalidation of former President Barack Obama’s Affordable Care Act, also known as Obamacare. The U.S. House of Representatives and a group of Democrat-led states, in two separate appeals, have asked the Supreme Court to review a lawsuit challenging Obamacare.
Early this month, lawmakers and state officials urged the court to accept the case and issue a ruling before its current term ends in June. They argued that the court’s expeditious consideration is necessary because of the uncertainty the lower court’s decision has on health insurance and the health care marketplace, as well as for millions of Americans who have purchased health insurance under Obamacare (pdf).
It’s unclear whether the Supreme Court will take up the case this year, given its busy docket. The court has asked the respondents to provide a response to the House and state official’s motions by 4 p.m. Friday, Jan 10.
Matthew Vadum contributed to this report.