SUPREME COURT NOTEBOOK

 

Border wall challenge declined

WASHINGTON (AP) — The Supreme Court is leaving in place a decision that rejected environmental groups’ challenge to sections of wall the Trump administration is building along the U.S. border with Mexico.

The high court on Monday declined to hear an appeal involving construction of 145 miles of steel-bollard walls along the border in Arizona, California, New Mexico, and Texas.

The Center for Biological Diversity, the Animal Legal Defense Fund, Defenders of Wildlife, and the Southwest Environmental Center had challenged a federal law that allows the secretary of Homeland
Security to waive any laws necessary to allow the quick construction of border fencing. The groups had argued that violates the Constitution’s separation of powers. But a lower court dismissed the case.

This is not the first time the Supreme Court has weighed in on border wall construction during the Trump administration. Last year, the high court gave the administration the go-ahead to tap billions of dollars in Pentagon funds to replace barriers along the border with Mexico in Arizona, California and New Mexico with more robust fencing.


Appeal from imprisoned Chinese billionaire rejected

WASHINGTON (AP) — The Supreme Court rejected an appeal Monday from a Chinese billionaire who was convicted of bribing United Nations officials to buy their support for a proposed U.N. center in Macau that was never built.

The justices did not comment, leaving in place the bribery conviction of Ng Lap Seng, one of China’s richest men. The 71-year-old Ng is serving a federal prison sentence.

Prosecutors persuaded jurors at Ng’s 2017 trial in New York that he paid more than $1.7 million in bribes in an effort to build a center to serve struggling Southern Hemisphere nations.

Paul Clement, Ng’s Supreme Court lawyer, argued that his client was seeking formal support for a center he intended to build for free. “The object of this alleged bribery was not to funnel UN funds to petitioner, but very nearly the opposite,” Clement wrote.


Prostitution pledge for AIDS funding upheld

WASHINGTON (AP) — The Supreme Court has upheld a provision of federal law that requires foreign affiliates of U.S.-based health organizations to denounce prostitution as a condition of receiving taxpayer money to fight AIDS around the world.

The Supreme Court ruled 5-3 on Monday. Justice Brett Kavanaugh wrote for the court’s conservatives that “plaintiffs’ foreign affiliates are foreign organizations, and foreign organizations operating abroad possess no rights under the U. S. Constitution.”

Justice Elena Kagan sat out the case, presumably because she worked on an earlier version of it when she served in the Justice Department before joining the court.

The case was the second time the justices weighed in on a federal program that has spent nearly $80 billion to combat the spread of HIV/AIDS.

The court ruled in 2013 that the anti-prostitution pledge, contained in a 2003 law, improperly restricts the U.S. groups’ constitutional rights. The new question, when the case was argued by telephone because of the coronavirus in May, was whether the administration can subject the foreign organizations to the pledge.

The case is USAID v. Alliance for Open Society International Inc., 19-177.


Louisiana abortion clinic limit thrown out

By Mark Sherman
Associated Press

WASHINGTON (AP) — A divided Supreme Court on Monday struck down a Louisiana law regulating abortion clinics, reasserting a commitment to abortion rights over fierce opposition from dissenting conservative justices in the first big abortion case of the Trump era.

Chief Justice John Roberts and his four more liberal colleagues ruled that a law that requires doctors who perform abortions must have admitting privileges at nearby hospitals violates abortion rights the court first announced in the landmark Roe v. Wade decision in 1973.

The outcome is far from the last word on the decades-long fight over abortion with dozens of state-imposed restrictions winding their way through the courts. But the decision was a surprising defeat for abortion opponents, who thought that a new conservative majority with two of President Donald Trump’s appointees on board would start chipping away at abortion access.

The key vote belonged to Roberts, who had always voted against abortion rights before, including in a 2016 case in which the court struck down a Texas law that was virtually identical to the one in Louisiana.
The chief justice explained that he continues to think the Texas case was wrongly decided, but believes it’s important for the court to stand by its prior decisions.

“The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law,” Roberts wrote. He did not join the opinion written by Justice Stephen Breyer for the other liberals in Monday’s decision, and his position left abortion-rights supporters more relieved than elated.

The case was the third in two weeks in which Roberts, a George W. Bush appointee, joined the court’s liberals in the majority. One of the earlier decisions preserved the legal protections and work authorization for 650,000 immigrants who were brought to the U.S. as children. The other extended federal employment-discrimination protections to LGBT Americans, a decision that Justice Neil Gorsuch also joined and wrote.

In dissent on Monday, Justice Clarence Thomas wrote, “Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction.”

Trump’s two high-court picks, Gorsuch and Brett Kavanaugh, were in dissent, along with Samuel Alito. The presence of the new justices is what had fueled hopes among abortion opponents, and fears on the other side, that the Supreme Court would be more likely to uphold restrictions.

The Trump administration had sided with Louisiana in urging the court to uphold the law. White House Press Secretary Kayleigh McEnany criticized the decision. “In an unfortunate ruling today, the Supreme Court devalued both the health of mothers and the lives of unborn children by gutting Louisiana’s policy that required all abortion procedures be performed by individuals with admitting privileges at a nearby hospital,” McEnany said.

Marjorie Dannenfelser, president of the anti-abortion Susan B. Anthony List, said, “Today’s ruling is a bitter disappointment. It demonstrates once again the failure of the Supreme Court to allow the American people to protect the well-being of women from the tentacles of a brutal and profit-seeking abortion industry.”

On the other side, support for the decision mixed with a wariness that the future of abortion rights appears to rest with Roberts.

Nancy Northup, president and CEO of the Center for Reproductive Rights, said Monday’s decision by no means ends the struggle over abortion rights in legislatures and the courts.

“We’re relieved that the Louisiana law has been blocked today but we’re concerned about tomorrow. With this win, the clinics in Louisiana can stay open to serve the one million women of reproductive age in the state. But the Court’s decision could embolden states to pass even more restrictive laws when clarity is needed if abortion rights are to be protected,” Northup said.

In his reasoning, Roberts “signaled a willingness to lessen the legal protections for abortion,” University of Michigan law professor Leah Litman wrote on the Take Care blog. However, she also acknowledged that Roberts’ “emphasis on the importance of adhering to the Court’s prior decisions does not sound like the thinking of a person who is inclined to overrule Roe v. Wade.”

A trial judge had said the law would not provide health benefits to women and would leave only one clinic open in Louisiana, in New Orleans. That would make it too hard for women to get abortions, in violation of the Constitution, the judge ruled.

But the appeals court in New Orleans rejected the judge’s findings and upheld the law in 2018, doubting that any clinics would have to close and saying that doctors had not tried hard enough to establish relationships with local hospitals.

The clinics filed an emergency appeal at the Supreme Court, asking that the law be blocked while the justices evaluated the case.

Early last year, Roberts joined with the four liberal members of the court to grant that request and keep the law on hold.

Roberts’ vote was a bit of a surprise because of his earlier vote in the Texas case. It may have reflected his new role since Justice Anthony Kennedy’s  retirement as the court’s swing justice, his concern about the court being perceived as a partisan institution and his respect for a prior decision of the court, even one he disagreed with. Roberts didn’t write anything explaining his position at the time of the Texas case.

The regulations at issue in Louisiana are distinct from other state laws making their way through court challenges that would ban abortions early in a pregnancy. Those include bans on abortion once a fetal heartbeat is detected, as early as 6 weeks, and the almost total ban passed in Alabama.


Court refuses to block upcoming federal executions

By Mark Sherman
Associated Press

WASHINGTON (AP) — The Supreme Court on Monday refused to block the execution of four federal prison inmates who are scheduled to be put to death in July and August.

The executions would mark the first use of the death penalty on the federal level since 2003.

The justices rejected an appeal from four inmates who were convicted of killing children. Justices Ruth Bader Ginsburg and Sonia Sotomayor noted that they would have blocked the executions from going forward.

The court’s action leaves no obstacles standing in the way of the executions, the first of which is scheduled for July 13.

The inmates are separately asking a federal judge in Washington to impose a new delay on their executions over other legal issues that have yet to be resolved.

The activity at the high court came after Attorney General William Barr directed the federal Bureau of Prisons to schedule the executions. Three of the men had been scheduled to be put to death when Barr first announced the federal government would resume executions last year, ending an informal moratorium on federal capital punishment as the issue receded from the public domain.

“The American people, acting through Congress and Presidents of both political parties, have long instructed that defendants convicted of the most heinous crimes should be subject to a sentence of death,” Barr said in a statement last month. “The four murderers whose executions are scheduled today have received full and fair proceedings under our Constitution and laws. We owe it to the victims of these horrific crimes, and to the families left behind, to carry forward the sentence imposed by our justice system.”

The federal government’s initial effort was put on hold by a trial judge after the inmates challenged the new execution procedures, and the federal appeals court in Washington and the Supreme Court both declined to step in late last year. But in April, the appeals court threw out the judge’s order.

The federal prison in Indiana where the executions would take place, USP Terre Haute, has struggled to combat the coronavirus pandemic behind bars. One inmate there has died from COVID-19.

The inmates scheduled for execution are: Danny Lee, who was convicted in Arkansas of killing a family of three, including an 8-year-old; Wesley Ira Purkey, of Kansas, who raped and murdered a 16-year-old girl and killed an 80-year-old woman; Dustin Lee Honken, who killed five people in Iowa, including two children; and Keith Dwayne Nelson, who kidnapped a 10-year-old girl who was rollerblading in front of her Kansas home and raped her in a forest behind a church before strangling the young girl with a wire.

Three of the executions — for Lee, Purkley and Honken — are scheduled days apart beginning July 13. Nelson’s execution is scheduled for Aug. 28. The Justice Department said additional executions will be set at a later date.

Ruth Friedman, an attorney for Lee, decried the federal death penalty as “arbitrary, racially-biased, and rife with poor lawyering and junk science.”

“Despite these problems, and even as people across the country are demanding that leaders rethink crime, punishment, and justice, the government is barreling ahead with its plans to carry out the first federal executions in 17 years,” Friedman said in a statement. “Given the unfairness built into the federal death penalty system and the many unanswered questions about both the cases of the men scheduled to die and the government’s new execution protocol, there must be appropriate court review before the government can proceed with any execution.”

Purkey’s lawyers separately filed court papers last week asking a federal judge to halt his execution, arguing that he isn’t mentally fit to be executed because he suffers from “advancing Alzheimer’s disease and deteriorating cognitive functioning.” The lawyers argue that Purkey doesn’t understand why the government plans to execute him and that he believes it is retaliation for many complaints about conditions in the federal prison system.

Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier.

White House press secretary Kayleigh McEnany said the decision means the families of the victims and those in their communities will “finally receive some long-overdue justice.”

“The Supreme Court today rightly rejected yet another attempt by four death row inmates to escape justice,” McEnany said in a statement. “These four men each stand convicted of horrendous acts of violence — including the brutal rape and murder of children.”


Court says president can fire Consumer board head ‘at will’

By Jessica Gresko
Associated Press

WASHINGTON (AP) — In a ruling underscoring the power of the president, the Supreme Court on Monday made it easier for the president to fire the head of the Consumer Financial Protection Bureau.

The justices struck down restrictions Congress had written on when the president can remove the bureau’s director.

“The agency may ... continue to operate, but its Director, in light of our decision, must be removable by the President at will,” Chief Justice John Roberts wrote.

The court’s five conservative justices agreed that restrictions Congress imposed on when the president can fire the agency’s director violated the Constitution. But they disagreed on what to do as a result.

Roberts and fellow conservative justices Samuel Alito and Brett Kavanaugh said the restrictions could be stricken from the law. The court’s four liberals agreed, though they disagreed the restrictions were improper.

The decision doesn’t have a big impact on the current head of the agency. Kathy Kraninger, who was nominated to her current post by the president in 2018, had said she believed the president could fire her at any time.

Under the Dodd-Frank Act that created the agency in response to the 2008 financial crisis, the CFPB’s director is appointed by the president and confirmed by the Senate to a five-year term. The law had said the president could only remove a director for “inefficiency, neglect of duty or malfeasance in office.” That structure could leave a new president with a director chosen by the previous president for some or all of the new president’s time in office.

“We hold that the CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers,” Roberts wrote.

The Trump administration had argued that the restrictions improperly limited the power of the president.

“While the President has full confidence in the current director of the CFPB and believes that she has fully upheld her statutory duties, the President also believes that no official should hold such immense powers without, at least, being directly accountable to a democratically-elected President regardless of party affiliation,” White House press secretary Kayleigh McEnancy said in a statement following the ruling.

Defenders of the law’s removal provision had argued the restrictions insulated the agency’s head from presidential pressure.

Justice Elena Kagan, writing for herself and three liberal colleagues, called the majority opinion simplistic.

“What does the Constitution say about the separation of powers — and particularly about the President’s removal authority? (Spoiler alert: about the latter, nothing at all.) The majority offers the civics class version of separation of powers — call it the Schoolhouse Rock definition of the phrase,” she said, referencing the educational, animated short films.

“Today’s decision wipes out a feature of that agency its creators thought fundamental to its mission— a measure of independence from political pressure. I respectfully dissent,” Kagan wrote.

Experts had previously said that a decision in the case could affect how easily the president can fire a host of other heads of independent agencies, including those run by commissions. Roberts’ opinion distinguished the CFPB from those more traditional agencies. Only the Office of the Special Counsel, Social Security Administration and Federal Housing Finance Agency have a structure similar to the CFPB. Roberts wrote that their structure has also been contested and that they “do not involve regulatory or enforcement authority remotely comparable to that exercised by the CFPB.”

The CFPB was the brainchild of Elizabeth Warren, the Massachusetts senator and former Democratic presidential candidate.

After the ruling, Warren wrote in a series of tweets that the Supreme Court had “handed over more power to Wall Street’s army of lawyers and lobbyists to push out a director who fights for the American people.” But, she said that even after the ruling, the CFPB is “still an independent agency.”

“The director of that agency still works for the American people. Not Donald Trump. Not Congress. Not the banking industry. Nothing in the Supreme Court ruling changes that,” Warren wrote.

The case is Seila Law LLC v. Consumer Financial Protection Bureau, 19-7.