Supreme Court Strikes Down Louisiana Abortion Law, Finds Consumer Financial Protection Bureau’s Structure Unconstitutional

What’s the story?

• The Supreme Court issued decisions in a pair of prominent cases Monday morning as it winds down its current term. More opinions are scheduled to be released tomorrow.
• In Seila Law LLC v. Consumer Financial Protection Bureau, the Court issued a 5-4 decision which held that the removal protections for the director of the Consumer Financial Protection Bureau (CFPB) are a violation of the separation of powers and that those protections are severable from the rest of the law.
• In June Medical Services, LLC v. Russo, Interim Secretary, Louisiana Department of Health and Hospitals, the Court issued a 5-4 decision which struck down a Louisiana law requiring abortion providers to have admitting privileges at a nearby hospital as an unconstitutional burden on womens’ right to access an abortion.

What did the justices say about the CFPB case?

• Chief Justice John Roberts wrote the majority opinion which was joined by Justice Clarence Thomas, Justice Samuel Alito, Justice Neil Gorsuch, and Justice Brett Kavanaugh. Justice Thomas also authored an opinion concurring in part & dissenting in part that Justice Gorsuch joined. Chief Justice Roberts’ majority opinion read in part:

“In organizing the CFPB, Congress deviated from the structure of nearly every other independent administrative agency in our history. Instead of placing the agency under the leadership of a board with multiple members, Congress provided that the CFPB would be led by a single Director, who serves for a longer term than the President and cannot be removed by the President except for inefficiency, neglect, or malfeasance. The CFPB Director has no boss, peers, or voters to report to. Yet the Director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U.S. economy… We therefore hold that the structure of the CFPB violates the separation of powers. We go on to hold that the CFPB’s removal protection is severable from the other statutory provisions bearing on the CFPB’s authority. The agency may therefore continue to operate, but its Director, in light of our decision, must be removable by the President at will.”

• Justice Elena Kagan wrote a dissenting opinion concurring in the judgement with respect to severability, and dissenting in part, which was joined by Justice Ruth Bader Ginsburg, Justice Stephen Breyer, and Justice Sonia Sotomayor. Justice Kagan’s opinion read in part:

“Throughout the Nation’s history, this Court has left most decisions about how to structure the Executive Branch to Congress and the President, acting through legislation they both agree to. In particular, the Court has commonly allowed those two branches to create zones of administrative independence by limiting the President’s power to remove agency heads. The Federal Reserve Board. The Federal Trade Commission (FTC). The National Labor Relations Board. Statute after statute establishing such entities instructs the President that he may not discharge their directors except for cause ― most often phrased as inefficiency, neglect of duty, or malfeasance in office. Those statutes, whose language the Court has repeatedly approved, provide the model for the removal restriction before us today. If precedent were any guide, that provision would have survived its encounter with this Court ― and so would the intended independence of the Consumer Financial Protection Bureau (CFPB).”

What did the justices say about the abortion case?

• Justice Stephen Breyer wrote the majority opinion, which was joined by Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan, while Chief Justice John Roberts wrote an opinion of his own concurring with the judgment. Breyer’s opinion read in part:

“In Whole Woman’s Health v. Hellerstedt, we held that “‘[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right’” and are therefore “constitutionally invalid.” We explained that this standard requires courts independently to review the legislative findings upon which an abortion-related statute rests and to weigh the law’s “asserted benefits against the burdens” it imposes on abortion access… This case is similar to, nearly identical with, Whole Woman’s Health. And the law must consequently reach a similar conclusion. Act 620 is unconstitutional.”

• Justice Clarence Thomas filed a dissenting opinion, as did Justice Samuel Alito (which was joined in part by Justices Gorsuch, Thomas, and Kavanaugh), and Justice Neil Gorsuch & Justice Brett Kavanaugh each filed their own dissenting opinions as well. Justice Thomas’s opinion read in part:

“Despite the fact that we granted Louisiana’s petition specifically to address whether “abortion providers [can] be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients,” a majority of the Court all but ignores the question. The plurality and the Chief Justice ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support form our Constitution’s text. Our abortion precedents are grievously wrong and should be overruled. Because we have neither jurisdiction nor constitutional authority to declare Louisiana’s duly enacted law unconstitutional, I respectfully dissent.”

— Eric Revell

(Photo Credit: jordanuhl7 via Flickr / Creative Commons)