The Supreme Court’s October 2020 Term: A Review of Selected Major Rulings
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The Supreme Court’s October 2020 Term:
A Review of Selected Major Rulings
September 14, 2021
Congressional Research Service
https://crsreports.congress.gov
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SUMMARY
The Supreme Court’s October 2020 Term:
A Review of Selected Major Rulings
The Supreme Court issued the last merits decision of its 2020–2021 Term on July 1, 2021. This
term was also Justice Amy Coney Barrett’s first term as an Associate Justice of the Supreme
Court. The Court issued 55 merits decisions in all, addressing a wide range of issues in American
public law. Many of these decisions have potential implications for federal law or litigation and
thus are likely to be of general interest to Congress.
Among the Court’s major rulings was Brnovich v. Democratic National Committee, where, for
the first time, the Supreme Court issued a decision interpreting Section 2 of the Voting Rights
Act in the context of state voting rules. While it did not establish a standard to govern all
Section 2 challenges, the Court identified five specific circumstances for courts to consider.
Going forward, the ruling will guide lower courts in determining if recently enacted state election
laws comply with the Voting Rights Act.
In another case with potential ramifications for election law, Americans for Prosperity
Foundation v. Bonta, the Court held that a California requirement that charities disclose their
significant donors to the state violated the First Amendment freedom of association. The Court’s
ruling is potentially significant because it suggests that any disclosure requirement that burdens
associational rights must, at a minimum, be narrowly tailored to advance an important
governmental interest. That rule could be extended, for example, to federal campaign finance
disclosures.
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September 14, 2021
David Gunter, Coordinator
Section Research Manager
Victoria L. Killion,
Coordinator
Legislative Attorney
Jared P. Cole
Legislative Attorney
Kevin J. Hickey
Legislative Attorney
Brandon J. Murrill
Legislative Attorney
L. Paige Whitaker
Legislative Attorney
In a case impacting property rights and organized labor, the Supreme Court ruled that a
California regulation allowing union organizers to enter agricultural employers’ property for a
certain amount of time each year was an unconstitutional taking of property in violation of the Takings Clause of the Fifth
Amendment. The decision, Cedar Point Nursery v. Hassid, may mark a shift toward greater scrutiny of government actions
affecting property rights, including state and federal property regulations beyond the labor context.
TransUnion LLC v. Ramirez involved the constitutional requirements for standing in class action litigation alleging violations
of the Fair Credit Reporting Act. The Court held that only those class members whose inaccurate credit reports had been
provided to third-party businesses had suffered concrete reputational harm sufficient to establish standing. The Court’s
decision may limit Congress’s ability to confer standing on plaintiffs to recover damages in federal court for procedural
violations of privacy laws.
United States v. Arthrex held that administrative patent judges’ authority to issue final decisions regarding the validity of
previously issued patents for the federal government violated the Constitution’s Appointments Clause. Arthrex could affect
other patent proceedings and agencies because it suggests that administrative adjudicators with protections from at-will
removal may not issue final, unreviewable decisions on behalf of the government unless they are appointed by the President
with the Senate’s advice and consent. This decision may also inform how Congress chooses to structure agencies in the
future.
In Collins v. Yellen, the Court ruled that the structure of the Federal Housing Finance Agency (FHFA) violates the
Constitution’s separation of powers. The FHFA is headed by a single Director who, under the statute establishing the agency,
could be removed by the President only for cause, rather than at will. The Court’s ruling, which comes on the heels of a
decision last year invalidating the similarly structured Consumer Financial Protection Bureau (CFPB), could affect
Congress’s ability to configure agencies in the executive branch with relative independence from the President.
The Index at the end of this report lists all of the Court’s merits decisions, states their holdings in summary form, and
provides a directory to CRS resources that address selected cases in more detail.
Congressional Research Service
The Supreme Court’s October 2020 Term: A Review of Selected Major Rulings
Contents
Brnovich v. Democratic National Committee: Election Law and Section 2 of the Voting
Rights Act ..................................................................................................................................... 5
Background ............................................................................................................................... 5
The Supreme Court’s Decision ................................................................................................. 7
Concurring and Dissenting Opinions ....................................................................................... 11
Considerations for Congress .................................................................................................... 11
Americans for Prosperity Foundation v. Bonta: Freedom of Association and Donor
Disclosures ................................................................................................................................. 13
Background ............................................................................................................................. 13
The Supreme Court’s Decision ............................................................................................... 15
Concurring and Dissenting Opinions ...................................................................................... 16
Considerations for Congress ................................................................................................... 17
Cedar Point Nursery v. Hassid: The Takings Clause and Union Access....................................... 18
Background ............................................................................................................................. 19
The Takings Clause ........................................................................................................... 19
The Dispute in Cedar Point .............................................................................................. 20
The Supreme Court’s Decision ............................................................................................... 21
Concurring and Dissenting Opinions ...................................................................................... 22
Considerations for Congress ................................................................................................... 22
TransUnion v. Ramirez: Standing in Consumer Protection Litigation .......................................... 23
Background ............................................................................................................................. 23
The Supreme Court’s Decision ............................................................................................... 26
Dissenting Opinions ................................................................................................................ 27
Considerations for Congress ................................................................................................... 27
United States v. Arthrex: The Appointments Clause and Administrative Patent Judges ............... 29
Background ............................................................................................................................. 29
The Appointments Clause ................................................................................................. 29
Administrative Patent Judges, the PTAB, and Inter Partes Review ................................. 30
The Dispute in Arthrex ...................................................................................................... 31
The Supreme Court’s Opinions ............................................................................................... 32
Opinions on the Appointments Clause Issue .................................................................... 32
Opinions on the Remedial Issue ....................................................................................... 33
Considerations for Congress ................................................................................................... 33
Collins v. Yellen: Separation of Powers and the FHFA.................................................................. 36
Background ............................................................................................................................. 37
The Supreme Court’s Decision ............................................................................................... 38
Opinions on the Question of Removal Protection ............................................................ 38
Opinions on the Remedy ................................................................................................... 41
Considerations for Congress ................................................................................................... 43
Index of Cases ............................................................................................................................... 45
Selected Additional Resources ...................................................................................................... 66
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The Supreme Court’s October 2020 Term: A Review of Selected Major Rulings
Contacts
Author Information........................................................................................................................ 66
Congressional Research Service
The Supreme Court’s October 2020 Term: A Review of Selected Major Rulings
n its first term with Justice Amy Coney Barrett, the Supreme Court issued 55 merits
decisions, addressing a wide range of issues in American public law.1 This report highlights
selected major rulings from the Court’s October 2020 Term spanning six legal areas. The
decisions discussed in this report are: (1) Brnovich v. Democratic National Committee;
(2) Americans for Prosperity Foundation v. Bonta; (3) Cedar Point Nursery v. Hassid;
(4) TransUnion v. Ramirez; (5) United States v. Arthrex; and (6) Collins v. Yellen. For each case,
the report explains the factual and procedural background of the case, summarizes the Supreme
Court’s decision and any concurring or dissenting opinions, and examines the relevance that the
Court’s ruling could have for Congress. The report then provides an Index of all of the Court’s
merits decisions. The Index states the holdings of these decisions in summary form and provides
a directory to CRS resources that address selected cases in more detail.
I
Brnovich v. Democratic National Committee:
Election Law and Section 2 of the Voting Rights Act2
For the first time, in Brnovich v. Democratic National Committee (DNC), the Supreme Court
issued a decision interpreting Section 2 of the Voting Rights Act (VRA) in the context of state
voting rules.3 The Court held that two Arizona voting rules—restrictions on out-of-precinct voting
and third-party ballot collection—do not violate Section 2.4 In interpreting the statutory language,
the Court determined that Section 2 requires that voting be “‘equally open’ to minority and nonminority groups alike” and that courts should apply a broad “totality of circumstances” test to
determine whether state voting rules violate Section 2.5 While not establishing a standard to
govern all Section 2 challenges, the Court identified “certain guideposts,” including five specific
circumstances for courts to consider.6 Going forward, the ruling will guide lower courts in
determining if recently enacted state election laws7 comply with the VRA.
Background
Section 2 of the VRA allows private citizens or the federal government to challenge state
discriminatory voting practices or procedures, including those alleged to diminish or weaken
minority voting power.8 Under Section 2, challengers can prove violations under an “intent test”
or under a “results test.”9 Coextensive with the Fifteenth Amendment, the “intent test” requires a
challenger to prove that a voting procedure was enacted with an intent to discriminate.10 As a
1 In this report, “merits decisions” refers to cases for which the Supreme Court granted certiorari, received briefing or
heard oral argument from the parties on the merits, and issued a written opinion on the questions presented. The Court
issued the last merits decision of its 2020–2021 Term on July 1, 2021.
2 L. Paige Whitaker, CRS Legislative Attorney, authored this section of the report.
3
141 S. Ct. 2321 (2021).
4 See id. at 2343–44.
5 Id. at 2337.
6 Id. at 2336.
7 See Nat’l Conf. of State Legislatures, 2021 Election Enactments (Aug. 3, 2021), https://www.ncsl.org/research/
elections-and-campaigns/2021-election-enactments.aspx (tracking recently enacted election laws across the nation).
8 52 U.S.C. §§ 10301, 10303(f).
9 DNC v. Hobbs, 948 F.3d 989, 1038 (9th Cir. 2021) (“A violation of Section 2 may now be shown under either the
results test or the intent test.”).
10 See id. at 1037–39.
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consequence of the 1982 amendments to the VRA, Section 2 also provides for a “results test.” 11
Section 2 currently provides:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall
be imposed or applied by any State or political subdivision in a manner which results in a
denial or abridgement of the right of any citizen of the United States to vote on account of
race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this
title, as provided in subsection (b).
(b) A violation of subsection (a) is established if, based on the totality of circumstances, it
is shown that the political processes leading to nomination or election in the State or
political subdivision are not equally open to participation by members of a class of citizens
protected by subsection (a) in that its members have less opportunity than other members
of the electorate to participate in the political process and to elect representatives of their
choice. The extent to which members of a protected class have been elected to office in the
State or political subdivision is one circumstance which may be considered: Provided, That
nothing in this section establishes a right to have members of a protected class elected in
numbers equal to their proportion in the population. 12
The portions of this language most relevant here are the prohibition against voting practices that
result in the “denial or abridgement” of the right to vote based on race, color, or membership in a
language minority,13 and the establishment of a “totality of circumstances” standard for proving a
violation.14 In the landmark decision Thornburg v. Gingles,15 the Supreme Court held that the
totality of circumstances test includes several factors that originated in the legislative history
accompanying enactment of Section 2.16
Historically, Section 2 has been invoked primarily to challenge redistricting maps, also known as
“vote dilution” cases.17 In certain circumstances, the Supreme Court has interpreted Section 2 to
require the creation of one or more “majority-minority” districts, which can ensure that a racial or
language minority group is not submerged into the majority and, thereby, denied an equal
opportunity to elect candidates of their choice.18
More recently, plaintiffs have invoked Section 2 to challenge other types of state voting and
election administration laws, also known as “vote denial” cases.19 The 2013 Supreme Court ruling
in Shelby County v. Holder20 has likely contributed to the expanded reliance by plaintiffs on
Section 2.21 In Shelby County, the Court invalidated the coverage formula in Section 4(b) of the
VRA, thereby rendering the Section 5 preclearance requirements inoperable.22 Under the
11 Pub. L. No. 97-205, § 3, 96 Stat. 134 (1982) (codified at 52 U.S.C. § 10301).
12 52 U.S.C. § 10301.
13 Id. § 10301(a).
14 Id. § 10301(b).
15 478 U.S. 30 (1986).
16 Id. at 44 (quoting S. REP. NO. 97-417, at 28 (1982), reprinted in 1982 U.S.C.C.A.N. 177).
17 See, e.g., CRS Report R44798, Congressional Redistricting Law: Background and Recent Court Rulings, by L. Paige
Whitaker, at 3 (discussing vote dilution cases).
18 Bartlett v. Strickland, 556 U.S. 1, 13 (2009) (“In majority-minority districts, a minority group composes a numerical,
working majority of the voting-age population. Under present doctrine, § 2 can require the creation of these districts.”)
19 Daniel P. Tokaji, Applying Section 2 to the New Vote Denial, 50 HARV. C.R.-C.L. L. REV. 439, 440 (2015).
20 570 U.S. 529 (2013).
21 See Tokaji, supra note 19, at 440 (“Although preclearance was of limited use in stopping vote denial, Shelby County
shifted the focus to § 2 of the VRA.”)
22 See Shelby Cnty., 570 U.S. at 557. The Court held that the application of the coverage formula to certain states and
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coverage formula, nine states and jurisdictions within six additional states were required under
Section 5 to obtain prior approval or “preclearance” before implementing any proposed change to
a voting law.23 In order to be granted preclearance, the covered state had the burden of proving
that the proposed law would have neither the purpose nor the effect of denying or abridging the
right to vote on account of race or color, or membership in a language minority group.24 Since
Shelby County was decided, plaintiffs have increasingly turned to Section 2 to challenge state
voting laws.25 As a result of this relatively new application of Section 2 to vote denial claims,
Brnovich is the first time that the Supreme Court has addressed this issue.
This case began in 2016 when the DNC, the Democratic Senatorial Campaign Committee, and
the Arizona Democratic Party brought suit in federal district court seeking to enjoin two Arizona
voting rules. The first was an Arizona policy whereby ballots that a voter casts outside their
designated precinct are discarded instead of being fully or partially counted, otherwise known as
the out-of-precinct (OOP) policy. The second was an Arizona statute that criminalizes the
collection of another person’s early ballot (with some exceptions, such as collection by a family
member), also known as H.B. 2023.26 Among other things, the challengers argued that the
Arizona voting rules (OOP and H.B. 2023) violate Section 2 of the VRA “by adversely and
disparately impacting the electoral opportunities of Hispanic, African American, and Native
American” citizens, and that H.B. 2023 violates Section 2 and the Fifteenth Amendment because
the Arizona legislature enacted the law “with the intent to suppress voting by Hispanic and Native
American voters.”27 The district court held that the challengers did not prove that the Arizona
voting rules violate the VRA or the Constitution,28 and a Ninth Circuit three-judge panel agreed.29
The Ninth Circuit, sitting en banc, reversed and enjoined both Arizona voting rules as violations
of Section 2.30
The Supreme Court’s Decision
In a 6-3 decision written by Justice Samuel Alito, the Supreme Court in Brnovich v. DNC
reversed the Ninth Circuit ruling and held that the two Arizona voting rules do not violate
Section 2 of the VRA.31 The Court began its analysis by focusing on the text of Section 2. After
observing that most of the Court’s Section 2 case law relies on Gingles—a redistricting case
jurisdictions departed from the “fundamental principle of equal sovereignty” among the states without justification “in
light of current conditions.” Id. at 544, 554.
23 Dep’t of Justice, Jurisdictions Previously Covered By Section 5, https://www.justice.gov/crt/jurisdictions-previouslycovered-section-5 (Sept. 11, 2020).
24 52 U.S.C. § 10303(a).
25 See, e.g., Dale E. Ho, Building an Umbrella in a Rainstorm: The New Vote Denial Litigation Since Shelby County,
127 YALE L.J. F. 799, 801 (2018) (“In order to contend with the resurgence of registration and ballot restrictions
sweeping the country after Shelby County was decided, voting rights litigators were faced with the formidable task of
establishing a clear and robust test for vote denial liability under Section 2, and litigated a flurry of new vote denial
cases under Section 2 in the 2014 and 2016 election cycles.”).
26 See DNC v. Reagan, 329 F. Supp. 3d 824, 831–32 (D. Ariz. 2018).
27 Id. at 832.
28 See id. at 882–83.
29 See DNC v. Reagan, 904 F.3d 686, 731–32 (9th Cir. 2018).
30 See DNC v. Reagan, 948 F.3d 989, 1046 (9th Cir. 2020) (en banc); see also, CRS Legal Sidebar LSB10583, Supreme
Court Considers Standard for Voting Rights Act Claims, by L. Paige Whitaker (discussing the lower court ruling in this
case).
31 See Brnovich v. DNC, 141 S. Ct. 2321, 2350 (2021).
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involving vote dilution—the Court explained that Brnovich marks the first time that the Court has
considered how Section 2 applies to “generally applicable time, place or manner voting rules.”32
Therefore, the Court reasoned that “a fresh look” at the statute was needed.33
Although the operative phrase in Section 2(a) prohibits state voting rules operating “in a manner
which results in a denial or abridgement of the right . . . to vote on account of race or color,” the
Court explained that Section 2(b) sets forth what must be proved to establish a violation.34 Under
Section 2(b), the Court determined that a violation exists where “the political processes leading to
nomination or election are not equally open to participation by members of the relevant protected
group in that its members have less opportunity than other members of the electorate to
participate in the political process and to elect representatives of their choice.”35 According to the
Court, the phrase “in that” in Section 2(b) means that the standards of “equal openness and equal
opportunity are not separate requirements,” and that “equal opportunity helps to explain the
meaning of equal openness.”36 The Court further explained that the term “opportunity” means “a
combination of circumstances, time, and place suitable or favorable for a particular activity or
action.”37 The Court determined that, in “putting [all of] these terms together . . . the core of §2(b)
is the requirement that voting be ‘equally open’” and that “[t]he statute’s reference to equal
‘opportunity’ may stretch that concept to some degree to include consideration of a person’s
ability to use the means that are equally open. But equal openness remains the touchstone.”38
The Court also interpreted Section 2(b)’s command that courts evaluate “the totality of
circumstances” in assessing a plaintiff’s challenge.39 Cautioning that the list is not exhaustive, the
Court outlined five circumstances for courts to consider:
1. The “size of the burden” placed by the challenged voting rule is “highly relevant”
and there must be an “absence of obstacles and burdens that block or seriously
hinder voting.”40 “Mere inconvenience” is insufficient to prove a violation, and
“the ‘usual burdens of voting’” that accompany an equally open process must be
permitted.41
2. The “degree to which a voting rule departs” from voting practices that were in
effect in 1982—when Section 2 was last amended—should be considered
because it is “doubt[ful]” that Congress meant to displace “facially neutral time,
place, and manner regulations” with “a long pedigree” or “in widespread use.”42
3. The “size of any disparities” in a voting rule’s effect on “members of different
racial or ethnic groups” should be taken into account because small disparities
have less probability than large disparities to signify that an election system is not
32 Id. at 2333.
33 Id. at 2337.
34 Id. at 2337.
35 Id. at 2332 (internal quotations and citations omitted).
36 Id. at 2337–38.
37 Id. at 2338.
38 Id.
39 Id.
40 Id.
41 Id.
42 Id. at 2338–39.
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“equally open.”43 To the degree that minorities and non-minorities differ
regarding “employment, wealth, and education,” even neutral laws may render
“some predictable disparities,” although “the mere fact there is some disparity in
impact does not necessarily” constitute a violation.44
4. The opportunities afforded by “a State’s entire system of voting” should be
considered when evaluating the burden imposed by a challenged voting rule.45
Where a state offers several methods of voting, the burden on voters who opt for
one method “cannot be evaluated without also taking into account the other
available means.”46
5. The “strength of the state interests” served by the challenged voting rule is to be
considered because voting rules that are justified by robust state interests “are
less likely” to contravene Section 2.47 The prevention of electoral fraud is a
“strong and entirely legitimate state interest” because fraud can affect the results
of close elections; fraudulent votes can dilute the value of legal votes; and
election fraud can compromise public confidence in elections.48 In addition,
ensuring that votes are cast “without intimidation or undue influence” constitutes
“a valid and important state interest.”49
The Court applied these circumstances to the two Arizona voting rules.50 With regard to the OOP
policy, the Court held that in light of the “modest burdens allegedly imposed” by the restriction,
the “small size” of its disparate impact, and the justifications proffered by the State of Arizona,
the policy does not violate Section 2.51 Requiring voters to identify and travel to their correct
polling places to vote “does not exceed the ‘usual burdens of voting,’” the Court found.52 Section
2 also does not require states to demonstrate that their chosen voting rules are essential or that
less restrictive rules would not sufficiently serve their governmental interests.53
With regard to the ballot collection restrictions, the Court held that in view of the limited
evidence of a racially disparate burden, taken into consideration with the state’s justifications, the
restrictions likewise do not violate Section 2.54 According to the Court, the challengers failed to
provide “concrete,” “statistical evidence” demonstrating that the law affected minority voters in a
disparate manner as compared with non-minority voters.55 Furthermore, in evaluating the state’s
justifications for the restrictions, the Court remarked that “it should go without saying that a State
may take action to prevent election fraud without waiting for it to occur and be detected within its
43 Id. at 2339.
44 Id.
45 Id. at 2339.
46 Id.
47 Id. at 2339–40.
48 Id. at 2340.
49 Id.
50 See id. at 2343–48.
51 Id. at 2346.
52 Id. at 2344.
53 See id. at 2345–46.
54 See id. at 2348.
55 Id. at 2346–47.
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own borders.”56 Section 2 “surely does not demand that ‘a State’s political system sustain some
level of damage before the legislature [can] take corrective action,’” the Court announced.57
In addition, the Court held that the restrictions on ballot collection were not enacted with a
discriminatory intent.58 Observing that the district court properly applied precedent, the Court
explained that it had considered the events leading to the enactment of the law; searched for any
divergence from “the normal legislative process”; examined relevant legislative history; and
assessed the impact of the restrictions on various racial groups.59 Although the Court
acknowledged that the record reflected that some opponents of the law had alleged that the
proponents had “racially discriminatory motives,” the Court underscored that this “view was not
uniform.”60 The Court further reasoned that even though a “racially-tinged” video prompted the
legislature’s debate about ballot collection restrictions, the district court did not find evidence
“that the legislature as a whole was imbued with racial motives.”61 While the district court
considered evidence on whether one legislator’s “enflamed partisanship” may have provided the
impetus for the legislative debate, the Court emphasized that “partisan motives are not the same
as racial motives.”62
The Court also expressly rejected the adoption of certain tests for establishing a Section 2
violation, observing that the parties, amici, and lower courts had proposed at least 10 different
standards.63 For example, because the Gingles factors were designed to be used in vote dilution
cases, their relevance “is much less direct” in cases regarding “neutral time, place, and manner
rules”—although the Court cautioned that they should not be disregarded.64 The Court also
refused to adopt the disparate impact test that is used under Title VII of the Civil Rights Act and
the Fair Housing Act, as proposed in an amicus brief.65 Under that test, the Court criticized the
“tight fit” that would be required by imposing a “necessity requirement,” thereby forcing states to
show that their governmental interests can only be effected by the challenged voting rules.66 In
addition, the Court disapproved of the effective “transfer” of election regulation from the states to
the federal courts that would result from adopting that test.67
In response to the disparate impact test proffered by the dissent, the Court characterized it as
“radical,” focused “almost entirely” on one circumstance instead of considering the totality of the
circumstances, as required by the statute.68 In the view of the Court, such a “freewheeling” test
would restrict any voting rule with “‘discriminatory effects,’ loosely defined.”69 Further, imposing
such a test would require states to prove that a challenged voting rule is the only way that a
56 Id. at 2348.
57 Id.
58 See id. at 2349–50.
59 Id. at 2349 (observing that the district court properly applied Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252, 266–68 (1977)).
60 Id.
61 Id. at 2349–50.
62 Id. at 2349.
63 Id. at 2336.
64 Id. at 2340.
65 See id. at 2340–41.
66 Id. at 2341.
67 Id.
68 Id.
69 Id.
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governmental interest can be achieved, an interpretation of Section 2 that is not grounded in the
statutory text or Court precedent, the Court determined.70 The Court also warned that adoption of
the dissent’s test would potentially “invalidate just about any voting rule a State adopts.”71
Concurring and Dissenting Opinions
Justice Neil Gorsuch wrote a concurrence, joined by Justice Clarence Thomas,72 and Justice Elena
Kagan wrote a dissent, joined by Justices Stephen Breyer and Sonia Sotomayor.73 The concurring
justices wrote separately to add explicitly that the Court had not addressed whether Section 2
provides “an implied cause of action.”74
The dissent argued that by ignoring the “promise” of the VRA to protect equal access to elections
for all eligible Americans and the “expansive” text of Section 2 that was written to achieve that
goal, the Court had “lessen[ed]” the statute, cutting it down to the Court’s “preferred size.”75
Instead, the dissent maintained that Section 2 should be construed more broadly. According to the
dissent, a proper interpretation of Section 2 would permit courts to invalidate any state voting rule
“that contribute[s] to a racial disparity in the opportunity to vote, taking all the relevant
considerations into account.”76 In particular, the dissent criticized the Court for establishing five
factors for courts to consider in Section 2 cases, characterizing them as “a set of extra-textual
exceptions and considerations to sap the Act’s strength.”77 For example, denouncing the Court for
requiring courts to consider whether a voting rule was in effect in 1982, the dissent argued that
“Section 2 was meant to disrupt the status quo, not to preserve it—to eradicate then-current
discriminatory practices, not to set them in amber.”78 In sum, the dissent maintained that if
Section 2 is to be rewritten, Congress “gets to make that call,” not the Supreme Court.79
Considerations for Congress
The Court’s ruling in Brnovich will likely have consequences for state election laws across the
nation, thereby affecting how federal elections are conducted. Lower courts will likely apply the
five factors articulated by the Court in adjudicating challenges to such state laws under Section 2
of the VRA, and it remains to be seen precisely how the Supreme Court’s ruling in Brnovich will
play out in such court cases. Many legal commentators predict that the ruling will make it harder
for plaintiffs to establish Section 2 violations.80 For instance, the decision requires lower courts to
70 See id. at 2342.
71 Id. at 2343.
72 See id. at 2350 (Gorsuch, J., concurring).
73 See id. 2350–73 (Kagan, J., dissenting).
74 Id. at 2350 (Gorsuch, J., concurring).
75 Id. at 2351, 2372 (Kagan, J., dissenting).
76 Id. at 2357 (Kagan, J., dissenting).
77 Id. at 2372–73 (Kagan, J., dissenting).
78 Id. at 2363–64 (Kagan, J., dissenting).
79 Id. at 2373 (Kagan, J., dissenting).
80 See, e.g., Nina Totenberg, What The Supreme Court’s Arizona Decision Means For The Voting Rights Act, NPR
(July 1, 2021), https://www.npr.org/2021/07/01/1012294417/what-the-supreme-courts-arizona-decision-means-for-thevoting-rights-act (quoting Professor Rick Hasen: “I think it’s fair to say that all of the major paths to challenging voting
rules in federal court have been severely cut back.”); see also Richard Luedeman, Voting as a Genuinely Religious Act
in a World of Free Exercise Maximalism, 55 U.C. DAVIS L. REV. ONLINE 1, 14 (2021) (“Brnovich v. Democratic
National Committee . . . has set a high and unpredictable bar for plaintiffs.”).
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consider the “degree to which a voting rule departs” from voting practices that were in effect in
1982. Lower courts could therefore determine that limits on early and absentee voting81 comport
with that principle because, as the Court explains, in 1982 most states required almost all voting
to occur on Election Day.82
The Supreme Court in Brnovich did not identify constitutional limits on Congress’s power to
address state voting rules, but rather resolved a question of statutory interpretation.83 Congress
remains free to amend the VRA. By way of historical example, following the Court’s 1980
decision in City of Mobile v. Bolden,84 Congress amended Section 2 in 1982 to change the effects
of that ruling.85 Any similar legislation would have to be consistent with the Constitution, as
interpreted by the Court. In the 117th Congress, H.R. 4, which passed the House of
Representatives on August 24, 2021, would respond to the Brnovich ruling.86 Section 2 of H.R.
4 proposes a two-part test for courts to apply in evaluating a vote denial claim.87 Generally, a
violation would be established if the challenged voting rule imposes “greater costs or burdens” in
voting on members of the protected class as compared with other voters; and those greater
burdens are at least partially “caused by or linked to social and historical conditions that have
produced,” on the date that the challenge is brought, “discrimination against members of the
protected class.”88 Factors relevant to evaluating the totality of circumstances would
expressly not include, among others, the degree to which the voting rule “has a long pedigree” or
was in effect on an earlier date; access to alternative voting methods; and the “[m]ere invocation
of interests” in preventing voter fraud.89
81 For further information see CRS In Focus IF11477, Early Voting and Mail Voting: Overview & Issues for Congress,
by Sarah J. Eckman and Karen L. Shanton; CRS Legal Sidebar LSB10470, Election 2020 and the COVID-19
Pandemic: Legal Issues in Absentee and All-Mail Voting, by L. Paige Whitaker.
82 See Brnovich v. DNC, 141 S. Ct. 2321, 2339 (2021) (“[I]n 1982 States typically required nearly all voters to cast
their ballots in person on election day and allowed only narrow and tightly defined categories of voters to cast absentee
ballots.”).
83 But see Restoring the Voting Rights Act After Brnovich and Shelby County: Hearing Before the S. Comm. on the
Judiciary, Subcomm. on the Constitution, 117th Cong. (2021) (written testimony of Professor Richard L. Hasen)
(suggesting that if Congress amends Section 2 in response to Brnovich, Congress will need to consider the portion of
the decision where the Court said that the disparate impact test supported by the dissent could infringe on states’
authority to enact non-discriminatory time, place and manner voting rules, and characterizing the Court’s statement as
“appear[ing] like a threat to find new congressional voting rights legislation unconstitutional.”)
84 446 U.S. 55 (1979).
85 Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, § 3, 96 Stat. 134 (1982) (codified at 52 U.S.C.
§ 10301). See, e.g., Samuel Issacharoff, Polarized Voting and the Political Process: The Transformation of Voting
Rights Jurisprudence, 90 MICH. L. REV. 1833, 1846 (“As has been well chronicled, Congress in 1982 amended the
Voting Rights Act expressly to repudiate Bolden and to outlaw electoral practices that “result in” the denial of equal
political opportunity to minority groups.”).
86 See H.R. 4, 117th Cong. § 2 (2021) (as passed by the House of Representatives). Additional legislation would
address the VRA. For example, H.R. 1, 117th Cong. (2021) (as passed by the House of Representatives) and S. 1, 117th
Cong. (2021) include findings of a “commitment of Congress to restore the Voting Rights Act.” In addition, in the last
Congress, H.R. 4, 116th Cong. (2019) (as passed by the House of Representatives); H.R. 1799, 116th Cong. (2019); S.
561, 116th Cong. (2019); and S. 4263, 116th Cong. (2020) would have amended the VRA to establish a new coverage
formula for Section 5 preclearance.
87 See H.R. 4, 117th Cong. § 2 (2021) (as passed by the House of Representatives).
88 Id.
89 Id.
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Americans for Prosperity Foundation v. Bonta:
Freedom of Association and Donor Disclosures90
In Americans for Prosperity Foundation (AFP) v. Bonta, the Court held that a California
requirement that charitable organizations disclose their significant donors to the state violated the
First Amendment freedom of association.91 The Court’s ruling is potentially significant because it
suggests that any disclosure requirement that burdens associational rights must, at a minimum, be
narrowly tailored to advance an important governmental interest.92 Accordingly, the case has
potential implications for disclosure regimes within and outside of the charitable-giving context.
These regimes include federal campaign finance requirements, which courts previously have
evaluated under an arguably less stringent standard of review.
Background
Although the First Amendment does not explicitly list the “freedom of association,” the Supreme
Court has long considered association to be an “inseparable aspect” of the freedom of speech.93
This freedom includes the right to associate to advance particular ideas or beliefs, whether they
relate to “political, economic, religious or cultural matters.”94 It also includes, to some extent, the
right to speak and associate anonymously.95 Although requiring disclosure of a person’s
affiliations does not restrict speech directly, it can dissuade that person from engaging in those
associations and thus chill protected speech.96 Thus, compelling disclosure of an individual’s
membership in an organization implicates protected associational rights, as the Court recognized
in NAACP v. Alabama ex rel. Patterson.97
NAACP involved an Alabama court’s contempt order against the NAACP for refusing to produce
the names and addresses of its Alabama members in litigation involving the organization’s
compliance with state business registration requirements.98 The Court considered whether
compelled disclosure of the organization’s “rank-and-file members” to the State would violate
their freedom to associate “in support of their common beliefs.”99 “Uncontroverted” evidence
showed that on past occasions, publicly identified NAACP members experienced “economic
reprisal, loss of employment, threat of physical coercion, and other manifestations of public
hostility.”100 The threat of these harms, the Court concluded, could lead current members to leave
90 Victoria L. Killion, CRS Legislative Attorney, authored this section of the report.
91 Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2385 (2021).
92 Id. at 2383 (plurality opinion); id. at 2390 (Thomas, J., concurring in part and concurring in the judgment).
93 NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 460 (1958). See generally First Amendment, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/amendment-1/.
94 NAACP, 357 U.S. at 460.
95 See, e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (explaining that “an author’s decision to
remain anonymous” is “an aspect of the freedom of speech protected by the First Amendment”).
96 See Shelton v. Tucker, 364 U.S. 479, 486–87, 490 (1960) (holding that a statute requiring teachers, as a condition of
employment, to disclose all of the organizations to which they belonged or contributed over a five-year period violated
the teachers’ right of free association).
97 NAACP, 357 U.S. at 460.
98 Id. at 451.
99 Id. at 460.
100 Id. at 462.
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the NAACP or discourage others from joining it.101 The Court held that Alabama had not
advanced an interest “sufficient to justify the deterrent effect” of the disclosures because the
NAACP had already given the State other records with which it could verify compliance with the
registration requirement.102
While NAACP concerned an organization’s members, the Supreme Court also has recognized that
compelled disclosure of an organization’s donors can have similar chilling effects on association.
In Buckley v. Valeo, the Court considered a federal law requiring political committees and
candidates to disclose to the Federal Election Commission (FEC) the names, addresses, and
contributions of each person who contributed more than $100 in a single year, and required the
FEC to make this information publicly available.103 The Court held that the First Amendment
protects contributors’ anonymity, reasoning that “the invasion of privacy of belief may be as great
when the information sought concerns the giving and spending of money as when it concerns the
joining of organizations, for ‘[f]inancial transactions can reveal much about a person’s activities,
associations, and beliefs.’”104 The Court interpreted NAACP and subsequent decisions to require
“exacting scrutiny” and a “‘substantial relation’ between the governmental interest and the
information required to be disclosed.”105 Applying this standard, the Court concluded that the
disclosure requirements were justified in relation to the burden they placed on individual rights.106
The Supreme Court continued to apply Buckley’s formulation of exacting scrutiny in subsequent
cases involving election-related disclosure requirements.107
The Supreme Court’s reasoning in NAACP and Buckley informed the arguments and judicial
decisions in AFP v. Bonta, which concerned a First Amendment challenge to California’s donor
disclosure requirement for charitable organizations.108 California law requires charities operating
in or soliciting funds in the State to register with the State and to file certain documents with the
State Attorney General on an annual basis.109 These documents include Form 990, which is a
federal form that certain tax-exempt organizations file with the Internal Revenue Service (IRS)
for tax purposes110—along with any applicable “attachments and schedules.”111 Starting in 2010,
the State Attorney General began to send deficiency notices to organizations that did not include
in their state filing “Schedule B” to Form 990,112 an IRS schedule which generally lists the
names, addresses, and total contributions of donors who gave $5,000 or more to the organization
during a single tax year.113 Facing suspension of their registrations for continued withholding of
101 Id. at 462–63.
102 Id. at 463–65.
103 Buckley v. Valeo, 424 U.S. 1, 63–64 (1976) (per curiam).
104 Id. at 66.
105 Id. at 64.
106 Id. at 68.
107 See Citizens United v. FEC, 558 U.S. 310, 366 (2010); Doe v. Reed, 561 U.S. 186, 196 (2010).
108 Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021).
109 Id. at 2379–80.
110 Form 990 Resources and Tools, IRS.GOV (last updated Mar. 4, 2021), https://www.irs.gov/charities-non-
profits/form-990-resources-and-tools.
111 CAL. CODE REGS. tit. 11, § 301; see also Schedules for Form 990, IRS.GOV (last updated Mar. 3, 2021),
https://www.irs.gov/forms-pubs/about-form-990-schedules.
112 Ams. for Prosperity Found., 141 S. Ct. at 2380.
113 26 C.F.R. § 1.6033-2(a)(2)(ii)(F); see also About Schedule B, IRS.GOV (last updated Jun. 17, 2021),
https://www.irs.gov/forms-pubs/about-schedule-b-form-990-990-ez-or-990-pf (linking to the current revision of the
Schedule B form).
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Schedule B information, two organizations filed lawsuits challenging the Schedule B requirement
as violating their and their donors’ associational rights under the principles of NAACP and related
precedents.114
In both cases, the district court held after a trial that California’s Schedule B requirement violates
the First Amendment as applied to the plaintiff organizations and permanently enjoined the State
Attorney General from enforcing the requirement against them.115 The U.S. Court of Appeals for
the Ninth Circuit reversed in a consolidated appeal.116 The appellate panel held that the
Schedule B requirement survived exacting scrutiny under Buckley and its progeny because it is
“substantially related to an important state interest in policing charitable fraud.”117
The Supreme Court’s Decision
In a 6-3 decision, the Supreme Court held that California’s Schedule B requirement violated the
First Amendment and reversed the Ninth Circuit’s judgment.118
While ultimately reaching the same result, the Justices in the majority disagreed over the level of
scrutiny that should apply to this and other disclosure requirements. Chief Justice John Roberts,
Jr. and Justices Brett Kavanaugh and Amy Coney Barrett opined that Buckley’s exacting scrutiny
test applies not just to election-related cases, but to all “compelled disclosure requirements.”119
Three additional Justices joined most of Chief Justice Roberts’s opinion, but wrote separately on
the question of the appropriate standard to apply.120 Significantly, though, all six Justices in the
majority appeared to agree that exacting scrutiny requires a law to be not only “substantially
related” to an important government interest (i.e., the language used in Buckley), but also
“narrowly tailored” to that interest.121
The majority concluded that California’s Schedule B requirement failed to meet this exacting
scrutiny standard.122 Writing for the majority, Chief Justice Roberts reasoned that while California
has an “important interest in preventing wrongdoing by charitable organizations,” there is a
“dramatic mismatch” between that interest and its “up-front,” “blanket demand” for
Schedule Bs.123 The Court credited the district court’s finding that “there was not ‘a single,
concrete instance in which pre-investigation collection of a Schedule B did anything to advance
114 Ams. for Prosperity Found., 141 S. Ct. at 2380; see also Complaint for Preliminary and Permanent Injunctive Relief
and for a Declaratory Judgment at 12, Americans for Prosperity Foundation v. Harris, No. 14-cv-09448 (C.D. Cal.
Dec. 9, 2014), ECF No. 1; First Amended Complaint for Preliminary and Permanent Injunctive Relief, for a
Declaratory Judgment, and for Damages and Attorney’s Fees and Costs at 1–2, Thomas More Law Center v. Harris,
15-cv-03048 (C.D. Cal. June 11, 2015), ECF No. 25.
115 Ams. for Prosperity Found. v. Harris, 182 F. Supp. 3d 1049 (C.D. Cal. 2016); Thomas More Law Ctr. v. Harris, No.
CV 15-3048-R, 2016 U.S. Dist. LEXIS 158851, at *1 (C.D. Cal. Nov. 16, 2016).
116 Ams. for Prosperity Found. v. Becerra, 903 F.3d 1000 (9th Cir. 2018).
117 Ams. for Prosperity Found., 903 F.3d at 1004; see also id. at 1008 (applying the “substantial relation” standard
applied in Doe v. Reed, 561 U.S. 186, 196 (2010), which comes from Buckley).
118 Ams. for Prosperity Found., 141 S. Ct. at 2389.
119 Id. at 2383 (plurality opinion).
120 See infra “Concurring and Dissenting Opinions.”
121 Ams. for Prosperity Found., 141 S. Ct. at 2383–84 (majority opinion). The majority concluded that unlike the “strict
scrutiny” that applies to some speech restrictions, “narrow tailoring” under exacting scrutiny does not require that
disclosure be the “least restrictive means” of achieving the government’s interest. Id. at 2384.
122 Id. at 2385–87.
123 Id.
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the [State] Attorney General’s investigative, regulatory or enforcement efforts.’”124 For the
majority, California seemed to have a greater interest in “ease of administration,” which was
insufficient to justify the burden that the Schedule B requirement placed on donors’ associational
rights.125 The Court also concluded that the disclosure requirement was not appropriately tailored
to the government’s interest, reasoning that California “cast[] a dragnet for sensitive donor
information” without exploring narrower alternatives such as subpoenas or audit letters.126
Five of the six Justices in the majority also concluded that the Schedule B requirement violated
the First Amendment “on its face” because “a substantial number of its applications are
unconstitutional.”127 For those Justices, the “lack of tailoring to the State’s investigative goals is
categorical—present in every case—as is the weakness of the State’s interest in administrative
convenience.”128
Concurring and Dissenting Opinions
Justice Thomas joined much of the principal opinion, but he would have applied a strict scrutiny
standard, which he views as consistent with the Court’s precedents on compelled disclosures of
association.129 He also dissented from the majority’s holding that the regulation was overbroad
and therefore invalid on its face, questioning whether courts can, consistent with their
constitutional authority, invalidate a law beyond its application to the parties and circumstances
before the court.130
Justices Alito and Gorsuch reasoned that because the Schedule B requirement clearly fails
exacting scrutiny, it “necessarily” fails strict scrutiny too.131 Accordingly, they deemed it
unnecessary to decide in Americans for Prosperity which standard applies to this or other
circumstances involving the compelled disclosure of associations.132
Justice Sotomayor wrote a dissent, which Justices Breyer and Kagan joined.133 The dissent would
have upheld California’s Schedule B requirement under a more flexible exacting scrutiny test
“whereby the degree of means-end tailoring required is commensurate to the actual burdens on
associational rights.”134 In the dissent’s view, the majority “discard[ed]” the Court’s “decadeslong requirement that, to establish a cognizable burden on their associational rights, plaintiffs
must plead and prove that disclosure will likely expose them to objective harms, such as threats,
harassment, or reprisals.”135 The Court’s analysis, the dissent posited, “marks reporting and
124 Id. at 2386 (quoting Ams. for Prosperity Found. v. Harris, 182 F. Supp. 3d 1049, 1055 (C.D. Cal. 2016)).
125 Id. at 2387.
126 Id. at 2386–87.
127 Id. at 2387.
128 Id. at 2387.
129 Id. at 2390 (Thomas, J., concurring in part and concurring in the judgment). Under strict scrutiny, the government
must prove that the challenged law furthers a compelling governmental interest and is narrowly tailored to achieve that
interest, which, for strict scrutiny, requires the law to be the least restrictive means of furthering that interest. United
States v. Playboy Entm’t Grp., 529 U.S. 803, 813 (2000).
130 Ams. for Prosperity Found., 141 S. Ct. at 2390–91.
131 Id. at 2391 (Alito, J., concurring in part and concurring in the judgment).
132 Id. at 2392.
133 Id. at 2392 (Sotomayor, J., dissenting).
134 Id.
135 Id.
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disclosure requirements with a bull’s eye” by presuming that “all disclosure requirements impose
associational burdens,” thereby requiring “close scrutiny” whenever a litigant expresses “a
subjective preference for privacy.”136
Considerations for Congress
Although the scope of the Court’s ruling addressed only California’s Schedule B requirement, the
AFP decision has prompted additional litigation and changes in how some other states regulate
charitable organizations.137 In response to the decision, New York State has suspended its
collection of Schedule B forms and donor-identifying information from charities while the State
reviews its policies.138 New Jersey also ceased “upfront” collection of Schedule Bs.139
The decision could have implications for donor disclosure requirements in federal tax law as well.
Certain nonprofit organizations that are exempt from federal taxation under Section 501(c)(3) of
the Internal Revenue Code (such as the petitioners in AFP) must file Schedule B to Form 990
with the IRS on an annual basis.140 Additionally, certain political organizations described in
Section 527 of the Internal Revenue Code must also report information about their donors who
contributed at least $200 in a calendar year on Schedule A of Form 8872.141 Because the federal
government is responsible for enforcing federal income tax laws, it may be able to assert different
regulatory or law enforcement interests than California to support its donor disclosure
requirements. In an amicus filing in AFP, the United States argued that the federal disclosure
requirement for Section 501(c)(3) organizations is a permissible condition on a federal benefit;
that is, the federal government’s subsidization of 501(c)(3)s through tax-exempt status and
deductions for charitable contributions.142
The decision also may have consequences for campaign finance disclosures. In Citizens United v.
FEC, the Court upheld the challenged disclaimer and disclosure requirements on electioneering
communications as applied to a political documentary.143 The Court explained that while
“[d]isclaimer and disclosure requirements may burden the ability to speak,” they “do not prevent
anyone from speaking.”144 As such, the Court stated, they are subject to “‘exacting scrutiny,’”
invoking the Buckley standard requiring “a ‘substantial relation’ between the disclosure
136 Id. at 2392, 2395.
137 See Jennifer McLoughlin, New York, New Jersey Face Challenges to Donor Disclosure Policies, 88 EXEMPT ORG.
TAX REVIEW 73 (Aug. 2021) (discussing two cases filed by the Liberty Justice Center to challenge New York and New
Jersey’s Schedule B requirements) (citing Liberty Justice Center v. James, No. 21-cv-06024 (S.D.N.Y. July 15, 2021)
and Liberty Justice Center v. Grewal, No. 21-cv-13616 (D.N.J. July 14, 2021)).
138 N.Y. State Office of the Att’y Gen., Schedule B Collection Suspension, CHARITIESNYS.COM,
https://www.charitiesnys.com/ (last visited Aug. 17, 2021); see also James Nani, NY Halts Donor Info Collection After
Justices Reject Calif. Rule, LAW360 (Aug. 3, 2021), https://www.law360.com/tax-authority/articles/1409355/ny-haltsdonor-info-collection-after-justices-reject-calif-rule.
139 N.J. Div. of Consumer Affairs, Office of the Att’y Gen., Charities Registration Section: Notice,
NJCONSUMERAFFAIRS.GOV, https://www.njconsumeraffairs.gov/charities (last visited Aug. 17, 2021).
140 26 U.S.C. § 6033; 26 C.F.R. § 1.6033-2(a)(2)(ii)(F).
141 26 U.S.C. § 527; see also Form 8872—Contents of Report, IRS.GOV (last updated Mar. 4, 2021),
https://www.irs.gov/charities-non-profits/political-organizations/form-8872-contents-of-report.
142 Brief for the United States as Amicus Curiae Supporting Vacatur and Remand at 24, Ams. for Prosperity Found. v.
Becerra, Nos. 19-251, 19-255 (U.S. Mar. 1, 2021).
143 Citizens United v. FEC, 558 U.S. 310, 321 (2010).
144 Id. at 366 (internal quotation marks and citation omitted).
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requirement and a ‘sufficiently important’ governmental interest.”145 The Court rejected Citizen
United’s argument that disclosing the names of certain contributors to the FEC would chill
donations to the organization, because Citizens United had not offered any evidence that its
members were reasonably likely to face harassment or retaliation as a result of the disclosure.146
Several legal commentators have described AFP as changing the exacting scrutiny standard as
formulated in Buckley and applied in Citizens United by adding a new requirement that disclosure
laws be narrowly tailored to the asserted governmental interest.147 If so, then the government may
face a heavier burden to justify campaign finance disclosures in future litigation.
Because the Court’s decision in AFP was based on constitutional constraints, Congress has
limited ability to address that decision through legislation. Instead, the AFP decision could affect
pending legislation, both within and outside the area of campaign finance. For example, some
Members of the 117th Congress have introduced legislation that would require private
foundations to report contributions to donor-advised funds to the IRS.148 AFP suggests that such
requirements, if challenged in court, could be subject to a narrow tailoring analysis.
Cedar Point Nursery v. Hassid: The Takings Clause
and Union Access149
In a case with important implications for property rights and organized labor, the Supreme Court
ruled that a California regulation allowing union organizers to enter agricultural employers’
property for several hours a day for several months each year was an unconstitutional taking of
property in violation of the Takings Clause of the Fifth Amendment.150 The decision, Cedar Point
Nursery v. Hassid, may mark a shift toward greater scrutiny of state actions affecting property
rights. The Court’s majority categorized the union access regulation as a per se taking requiring
compensation for property owners, rather than applying the multifactor balancing approach the
Court has often used to evaluate property regulations under the Takings Clause. Although it
remains to be seen how broadly the Cedar Point opinion will be applied, the Court’s ruling could
have significant effects on other types of state and federal property regulations beyond the labor
context.151
145 Id. at 366–67 (quoting Buckley v. Valeo, 424 U.S. 1, 64–66 (1976) (per curiam)).
146 Id. at 370.
147 See, e.g., Amanda H. Nussbaum & Richard M. Corn, The Impact of Americans for Prosperity Foundation v. Bonta
on Donor Disclosure Laws, PROSKAUER ROSE LLP TAX TALKS BLOG (July 30, 2021),
https://www.proskauer.com/blog/the-impact-of-americans-for-prosperity-foundation-v-bonta-on-donor-disclosurelaws; Ian Millhiser, The Supreme Court Just Made Citizens United Even Worse, VOX (July 1, 2021),
https://www.vox.com/2021/7/1/22559318/supreme-court-americans-for-prosperity-bonta-citizens-united-john-robertsdonor-disclosure.
148 Accelerating Charitable Efforts Act, S. 1981, 117th Cong. § 5 (as introduced, June 9, 2021). See CRS Report
R45922, Tax Issues Relating to Charitable Contributions and Organizations, by Jane G. Gravelle, Donald J. Marples,
and Molly F. Sherlock (explaining that, with a donor-advised fund, an individual makes a gift to a fund in a sponsoring
organization that administers payment of grants to charities based on recommendations from the donor).
149 Kevin J. Hickey, CRS Legislative Attorney, authored this section of the report.
150 Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2080 (2021).
151 See, e.g., Jeffrey Braun & James Greilsheimer, The Supreme Court Further Expands the Definition of a Physical
“Taking” of Property That Violates Fifth Amendment Protections, KRAMERLEVIN.COM (July 30, 2021),
https://www.kramerlevin.com/en/perspectives-search/the-supreme-court-further-expands-the-definition-of-a-physicaltaking-of-property-that-violates-fifth-amendment-protections.html (“[Cedar Point] expands the concept of what is a
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Background
The Takings Clause
The final clause of the Fifth Amendment provides that “private property [shall not] be taken for
public use, without just compensation.”152 The Takings Clause thus recognizes the right of the
government to appropriate property in some cases, such as the exercise of its eminent domain
power.153 At the same time, the Clause puts limits on that power. First, government takings of
property must be for “public use”—the government may not, for example, simply transfer
property from one private party to another without a public purpose.154 Second, if the government
takes property for a public use, it must provide “just compensation” to the owner.155 Although
originally limited to the federal government, the Takings Clause applies to state governments as
well through the Fourteenth Amendment.156
A recurring issue in Takings Clause cases is determining when government actions that affect
property rights suffice to effect a “Taking” of property within the meaning of the Fifth
Amendment. The Supreme Court’s Takings Clause jurisprudence distinguishes between physical
appropriations of property by the government, and regulations restricting uses of private
property. For physical appropriations, the Court applies a per se rule: such appropriations, even if
minor, are takings that the government must compensate.157 Property use regulation that falls
short of physical appropriation, however, is only a taking (and thus only requires compensation)
when the regulation goes “too far.”158 To determine whether a so-called “regulatory taking” has
occurred, courts typically weigh the factors that the Supreme Court listed in Penn Central
Transportation Co. v. New York City: the “economic impact of the regulation,” its interference
with “investment-backed expectations,” and “the character of the governmental action.”159
Because of the “essentially ad hoc, factual” nature of the Penn Central test,160 property owners
physical taking and raises questions about the further expansions of takings law that may follow.”).
152 U.S. CONST. amend. V.
153 See, e.g., United States v. Miller, 317 U.S. 369, 370–71 (1943) (involving condemnation of land by federal
government for a railroad); Kohl v. United States, 91 U.S. 367, 372–73 (1876) (interpreting Takings Clause as an
“implied assertion” of federal eminent domain power). See generally Takings Clause: Overview, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/amdt5-5-1-1/ALDE_00000920/.
154 See Kelo v. City of New London, 545 U.S. 469, 477 (2005) (“[T]he sovereign may not take the property of A for the
sole purpose of transferring it to another private party B [but] a State may transfer property from one private party to
another if future ‘use by the public’ is the purpose of the taking. . . .”).
155 Knick v. Twp. of Scott, 139 S. Ct. 2162, 2170 (2019).
156 Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 231 (1984); Chicago, Burlington & Quincy R.R. v. City of Chicago,
166 U.S. 226, 241 (1897).
157 See, e.g., Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 322 (2002) (“When the
government physically takes possession of an interest in property for some public purpose, it has a categorical duty to
compensate the former owner [under the Takings Clause].”); Loretto v. Teleprompter Manhattan CATV Corp., 458
U.S. 419, 421 (1982) (holding that “a minor but permanent physical occupation of an owner's property authorized by
government” is a per se taking).
158 See Tahoe-Sierra, 535 U.S. at 325–26 (citing Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)).
159 438 U.S. 104, 124 (1978). There is an exception to this rule when a government regulation destroys all economic
value of the property; such regulations are treated as per se takings despite being regulatory in nature. See Lucas v. S.C.
Coastal Council, 505 U.S. 1003, 1015 (1992) (“[W]e have found categorical treatment appropriate [under the Takings
Clause] where regulation denies all economically beneficial or productive use of land.” (citations omitted)).
160 Penn Central, 438 U.S. at 124.
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often seek to characterize governmental actions as per se physical takings, which the government
must compensate regardless of the Penn Central factors.
For example, the Court has found a per se taking when the government mandates installation of
rooftop cable lines for apartment tenants,161 takes title to a share of a farm’s agricultural output,162
or causes recurring flooding of a property.163 On the other hand, the Court has applied the Penn
Central test when the government regulates land use through temporary building moratoria,164
rent controls,165 or limitations on mining rights.166
Some of the Court’s Takings Clause precedents, like Cedar Point, concern rights of access to
private property. In PruneYard Shopping Center v. Robins, the Court applied the Penn Central test
to hold that California’s requirement that private shopping malls allow citizens to exercise their
rights of petition and free speech on their property was not a regulatory taking.167 In Nollan v.
California Coastal Commission, the Court addressed whether California could condition a grant
of permission to rebuild a house on a transfer from the owner to the public of an easement across
a beachfront property.168 The Court explained that a governmental seizure of such an easement,
outside of the building permit context, would be a per se physical taking because it grants a
“permanent and continuous right to pass to and fro . . . even though no particular individual is
permitted to station himself permanently upon the premises.”169
The Dispute in Cedar Point
Under the California Agricultural Labor Relations Act of 1975, it is an “unfair labor practice” for
an agricultural employer to interfere with the right of its employees to self-organize and bargain
collectively.170 To “encourage and protect” the right of self-organization, the California
Agricultural Labor Relations Board promulgated a regulation that permits union organizers to
access the property of an agricultural employer for up to four 30-day periods per year.171 To
exercise this right, a labor organization must file a written notice of its “intention to take access”
with the employer and the Board.172 The organizers may then enter the employer’s property to
meet and talk with employees for up to one hour before work, one hour during the lunch break,
and one hour after work during each 30-day period.173
Cedar Point Nursery is a strawberry grower in California that employs around 400 seasonal
workers and 100 full-time workers.174 After union organizers entered their property without
notice, Cedar Point and other agricultural employers sued, arguing that California’s regulation
161 Loretto, 458 U.S. at 421.
162 Horne v. Dep’t of Agric., 576 U.S. 351, 361 (2015).
163 United States v. Cress, 243 U.S. 316, 327–29 (1917).
164 Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 341–42 (2002).
165 Yee v. City of Escondido, 503 U.S. 519, 529 (1992).
166 Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 485 (1987).
167 447 U.S. 74, 82–84 (1980).
168 483 U.S. 825, 827 (1987).
169 Id. at 832.
170 CAL. LABOR CODE §§ 1152, 1153(a).
171 CAL. CODE REGS., tit. 8, § 20900(a), (e)(1)(A).
172 Id. § 20900(e)(1)(B).
173 Id. § 20900(e)(3)(A)–(B).
174 Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2069 (2021).
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mandating union access to their property without compensation violated the Taking Clause.175 In
the litigation, Cedar Point argued that the union access right effected a per se physical taking and
made no attempt to satisfy the Penn Central test for regulatory takings.176 The district court and a
divided Ninth Circuit panel rejected Cedar Point’s argument, holding that California’s regulation
was not a physical taking because the access granted was not “permanent and continuous” within
Nollan’s definition of a physical occupation.177
The Supreme Court’s Decision
By a vote of 6 to 3, the Supreme Court reversed the Ninth Circuit, holding that California’s union
access right was a per se physical taking.178 Chief Justice Roberts wrote the opinion for the Court,
joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. In the view of the Court,
California’s union access regulation grants labor organizers a “right to invade the grower’s
property” and is therefore a per se physical taking.179 The Court’s analysis emphasizes that the
right to exclude others is fundamental to property ownership, and that (as in Nollan) its cases
have treated “government-authorized invasions of property” as per se takings.180
The majority rejected the argument that the temporary nature of the union access regulation—
three hours a day, four months a year—meant it did not constitute a per se taking. The Court
reasoned that there is “no reason the law should analyze an abrogation of the right to exclude in
one manner if it extends for 365 days, but in an entirely different manner if it lasts for 364.”181
Relying on Nollan and other precedents, that Court found that its cases have recognized that
“physical invasions constitute takings even if they are intermittent,”182 and regardless of whether
the union access right would constitute an easement under state property law.183 Finally, the Court
distinguished the public access afforded in PruneYard by noting that, unlike the shopping malls at
issue in that case, the agricultural farms are not generally “open to the public.”184
Responding to the dissent’s claim that the majority’s rule would endanger “a host of state and
federal government activities involving entry onto private property,” the majority set forth several
explicit limitations on its holding.185 First, the Court noted that the holding does not disturb “the
distinction between trespass and takings,” so that “[i]solated physical invasions, not undertaken
pursuant to a granted right of access” are not appropriations of property.186 Second, the Court
clarified that government-authorized physical invasions will not be takings if “consistent with
longstanding background restrictions on property rights,” such abatements of nuisances or
175 Id. at 2070.
176 Id.
177 Cedar Point Nursery v. Shiroma, 923 F.3d 524, 532 (9th Cir. 2019), rev’d sub nom., Cedar Point Nursery, 141 S. Ct.
2063.
178 Cedar Point Nursery, 141 S. Ct. at 2072.
179 Id.
180 Id. at 2072–74.
181 Id. at 2074.
182 Id. at 2075.
183 Id. at 2075–76.
184 Id. at 2076–77.
185 Id. at 2078.
186 Id.
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reasonable searches and seizures.187 Third, the government may constitutionally require an owner
to cede a right of access as a condition of receiving a regulatory benefit, if consistent with
precedents like Nollan.188 The majority observed that this final exception would generally allow,
among other things, “government health and safety inspection regimes.”189
Concurring and Dissenting Opinions
Justice Kavanaugh wrote a brief concurrence to express his view that NLRB v. Babcock & Wilcox
Co., a 1954 case interpreting the National Labor Relations Act, also supported the Court’s
decision.190
Justice Breyer, joined by Justices Sotomayor and Kagan, dissented. In Justice Breyer’s view, the
union access regulation is not a per se taking because it “does not ‘appropriate’ anything,” but
merely “regulates the employers’ right to exclude others.”191 Looked at “through the lens of
ordinary English,” Justice Breyer maintained that the union access provision is regulatory “in
both label and substance” and “only awkwardly” fits with the term “physical appropriation.”192 In
the view of the dissent, the California regulation was not a physical appropriation as it did not
take the owner’s right to exclude, but merely limited that right temporarily against certain third
parties.193
Turning to the Court’s precedents, Justice Breyer argued that the Court had previously stated that
“‘[n]ot every physical invasion is a taking,” and had distinguished the “permanence and absolute
exclusivity of a physical occupation” from “temporary limitations on the right to exclude.”194
Justice Breyer further observed that PruneYard—which “fits this case almost perfectly”—was an
example of a temporary physical invasion not treated as a per se taking.195
Finally, the dissent argued that the majority’s elimination for the “permanent/temporary
distinction” creates practical problems for government regulation.196 Governments may require
“access to private property” for reasons as varied as restaurant inspections, environmental
regulations, or compliance with preschool licensing requirements.197 Although the majority’s
limitations on its holding may limit these “adverse impact[s],” the dissent argued that the
majority’s “new system” raises “complex” questions about the scope of those exceptions.198
Considerations for Congress
Cedar Point represents the latest case in the Court’s centuries-long development of its Takings
Clause jurisprudence. Cedar Point is particularly significant for its application of the per se rule
to temporary, government-authorized invasions of private property, which raises questions about
187 Id. at 2079.
188 Id.
189 Id.
190 Id. at 2080–81 (Kavanaugh, J., concurring).
191 Id. at 2081 (Breyer, J., dissenting).
192 Id. at 2082.
193 Id. at 2083.
194 Id. at 2083 (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 n.12 (1982)).
195 Id. at 2085.
196 Id. at 2087.
197 Id. at 2087–88.
198 Id. at 2088–89.
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whether courts will find other types of property regulations to be physical takings. When crafting
laws that affect property rights, Congress may wish to be mindful of the Takings Clause, as its
laws may require compensation for property owners when government actions appropriate
property.
Legislative drafters may also consider the various exceptions that the majority identified in Cedar
Point. For example, a statute may be less vulnerable to Takings Clause challenges if Congress
includes statutory language or legislative findings that connect property regulations to the
acceptance of government benefits or to longstanding background restrictions on property rights.
TransUnion v. Ramirez: Standing in Consumer
Protection Litigation199
In a decision that could have widespread implications for future consumer privacy legislation,
TransUnion LLC v. Ramirez, the Supreme Court examined the Constitution’s limits on
Congress’s ability to confer standing on private individuals.200 The case concerned whether
thousands of consumers, who were members of a class action lawsuit alleging violations of the
Fair Credit Reporting Act (FCRA),201 had suffered concrete injuries sufficient to recover damages
in federal court.202 In a 5-4 decision, the Supreme Court held that only those class members
whose inaccurate credit reports had been provided to third-party businesses had suffered concrete
reputational harm sufficient to establish standing to recover retrospective damages.203 The Court’s
decision may effectively prevent Congress from conferring standing on plaintiffs to recover
damages in federal court for harms, such as procedural violations of privacy laws, that were not
traditionally recognized as providing a basis for a lawsuit in American courts.204
Background
Article III of the Constitution limits the power of federal courts to resolving “cases” and
“controversies.”205 The concept of “standing” derives from Article III and broadly refers to a
litigant’s right to have a court rule upon the merits of particular claims for which he seeks judicial
relief.206 The Supreme Court has held that, as a threshold procedural matter,207 and during each
199 Brandon J. Murrill, CRS Legislative Attorney, authored this section of the report.
200 TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2200 (2021).
201 15 U.S.C. §§ 1681–1681x. FCRA distinguishes between a “credit report,” which is communicated to third parties,
and a “credit file,” which is maintained internally by the credit reporting agency. Id. § 1681a(d), (g).
202 TransUnion, 141 S. Ct. at 2200–01.
203 Id.
204 For further analysis, see CRS Legal Sidebar LSB10629, Privacy Law and Private Rights of Action: Standing After
TransUnion v. Ramirez, by Eric N. Holmes. The Supreme Court has also previously recognized certain prudential
limitations on the exercise of federal courts’ jurisdiction, which, although lacking constitutional status, may nonetheless
result in a court’s refusal to hear a case. United States v. Windsor, 570 U.S. 744, 760 (2013). Congress, through express
legislation, may abrogate these prudential standing requirements, to the extent that they remain viable and are not
mandated by the Constitution. Warth v. Seldin, 422 U.S. 490, 501 (1975).
205 U.S. CONST. art. III, § 2.
206 Warth, 422 U.S. at 498; BLACK’S LAW DICTIONARY 1536 (9th ed. 2009) (defining “standing” as “a party’s right to
make a legal claim or seek judicial enforcement of a duty or right”). See generally Standing Requirement: Overview,
CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C1-2-5-1/ALDE_00001197/.
207 Federal courts must necessarily resolve standing inquiries before proceeding to the merits of a lawsuit. See, e.g.,
Davis v. FEC, 554 U.S. 724, 732 (2008). Even if no party to the lawsuit contests standing, a court may raise the issue of
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stage of the litigation,208 a litigant must have standing in order to invoke the jurisdiction of a
federal court so that the court may exercise its “remedial powers on his behalf.”209 In general, for
a party to establish Article III standing, it must prove that it has a genuine stake in the outcome of
the case because it has personally suffered (or will imminently suffer) (1) a concrete and
particularized injury (2) that is traceable to the allegedly unlawful actions of the opposing party,
and (3) that is redressable by a favorable judicial decision.210
The Supreme Court has also held that Article III constrains Congress’s ability to confer standing
on private individuals through the enactment of “citizen-suit” provisions that authorize private
individuals to enforce federal laws against the government or private parties.211 Congress has
some ability to expand standing beyond the Court’s traditional conception by granting a litigant a
separate concrete interest, apart from a bare procedural right,212 that could serve as the basis for
an injury-in-fact if violated.213 At the same time, Congress must respect the limits that Article III
establishes, and it cannot elevate certain categories of harm to the status of concrete injuries. For
example, Congress likely cannot elevate a trivial injury, such as a company reporting an incorrect
zip code for an individual, to the status of an Article III injury.214 When Congress creates a right,
the question for courts is whether the violation of that right causes the kind of harm that “has
traditionally been regarded as providing a basis for a lawsuit in English or American courts.”215 In
considering this question, courts must give at least some weight to Congress’s judgments about
which intangible harms amount to concrete Article III injuries.216
In TransUnion, the named plaintiff, Sergio Ramirez, went to a car dealership in California with
family members.217 After Ramirez and his wife had chosen a car, the dealership ran a credit check
on them.218 The dealership informed Ramirez that his credit report, which TransUnion had
provided, listed him as a potential match with an individual in a U.S. Department of the Treasury
Office of Foreign Assets Control (OFAC) database of known terrorists and criminals.219 The car
standing sua sponte (i.e., of its own accord) in order to ensure that it has jurisdiction. See, e.g., Adarand Constructors,
Inc. v. Mineta, 534 U.S. 103, 110 (2001) (per curiam).
208 Hollingsworth v. Perry, 570 U.S. 693, 705 (2013).
209 Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976) (quoting Warth, 422 U.S. at 498–99). See also Davis,
554 U.S. at 732; Simon, 426 U.S. at 37 (“No principle is more fundamental to the judiciary’s proper role in our system
of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies. The
concept of standing is part of this limitation.”) (citation omitted).
210 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (listing the elements of standing).
211 Id. at 577.
212 In Summers v. Earth Island Institute, the Supreme Court reaffirmed that the deprivation of a litigant’s procedural
right–the right to use a federal administrative appeals process to challenge certain actions of the U.S. Forest Service–
without injury to any separate concrete interest cannot support Article III standing to sue. 555 U.S. 488, 496 (2009).
213 Massachusetts v. EPA, 549 U.S. 497, 516–17 (2007).
214 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1550 (2016).
215 Id. at 1549. In Spokeo v. Robins, the Court clarified that Congress cannot confer standing on plaintiffs who do not
face at least a material risk of injury from the defendant’s violation of statutory rights. Id. at 1550.
216 Id. at 1549.
217 TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2201–02 (2021).
218 Id.
219 Id. TransUnion identified a “potential match” with names on OFAC’s database by comparing the consumer’s first
and last name to the first and last names in the database. Id. This process generated many false positive OFAC alerts.
Id.
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salesman declined to sell the car to Ramirez because his name appeared on a “terrorist list.”220
Ramirez’s wife purchased the car in her name.221
Exercising his rights under FCRA, Ramirez obtained a copy of his credit file from TransUnion.222
The first mailing he received from the company did not list the OFAC alert; instead, a letter
notifying him of the potential OFAC database match arrived in the mail separately.223 However,
this letter did not include a copy of the “summary of rights” that FCRA requires.224 Subsequently,
TransUnion removed the OFAC alert from Ramirez’s credit file.225
Ramirez sued TransUnion for statutory and punitive damages, alleging that the company had
violated FCRA by failing to (1) “follow reasonable procedures to ensure the accuracy of
information in his credit file”;226 (2) furnish him with a complete credit file upon request;227 and
(3) provide him with the statutorily required “summary of rights” with the second mailing.228
Ramirez also sought the certification of a class of “all people in the United States to whom
TransUnion sent a mailing during the period from January 1, 2011, to July 26, 2011, that was
similar in form to the second mailing that Ramirez received.”229
To recover damages at the final judgment stage in federal court, each member of the class action
had to have standing.230 In TransUnion, the U.S. District Court for the Northern District of
California certified the class,231 holding that all 8,185 members had Article III standing.232 Of
these members, 1,853 had credit reports that had been disseminated to third parties.233 Defendant
TransUnion argued unsuccessfully before the lower courts that more than 75 percent of the class
action plaintiffs had not suffered any concrete injuries for standing purposes because the
misleading information in their credit files had not been disclosed to a third party.234 After trial,
the jury awarded the plaintiff class $60 million in statutory and punitive damages, which
amounted to over $7,000 per plaintiff.235 The U.S. Court of Appeals for the Ninth Circuit reduced
the damages award to $40 million, or about $4,000 per class member.236 The circuit court
220 Id. OFAC regulations generally prohibit transactions with such “specially designated nationals.” 31 C.F.R. pt. 501
App. A.
221 TransUnion, 141 S. Ct. at 2201–02.
222 Id.
223 Id.
224 Id.
225 Id.
226 Id. See also 15 U.S.C. §1681e(b).
227 TransUnion, 141 S. Ct. at 2201–02. See also 15 U.S.C. § 1681g(a)(1).
228 TransUnion, 141 S. Ct. at 2201–02. See also 15 U.S.C. § 1681g(c)(2).
229 TransUnion, 141 S. Ct. at 2202.
230 See Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017). In TransUnion, the Supreme Court
confirmed that each class member must have standing to recover damages, but it declined to address “the distinct
question [of] whether every class member must demonstrate standing before a court certifies a class.” TransUnion, 141
S. Ct. at 2208 n.4.
231 Ramirez v. Trans Union, LLC, 301 F.R.D. 408, 426 (N.D. Cal. 2014).
232 See TransUnion, 141 S. Ct. at 2202.
233 See id.
234 See Brief for Petitioner at 1–3, TransUnion v. Ramirez, No. 20-297 (2021).
235 TransUnion, 141 S. Ct. at 2202.
236 See id.
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affirmed that all of the class members had Article III standing to bring all of their claims.237 The
court determined that the class members had standing because “TransUnion’s reckless handling
of OFAC information exposed every class member to a real risk of harm to their concrete privacy,
reputational, and informational interests protected by the FCRA.”238
The Supreme Court’s Decision
In a 5-4 opinion authored by Justice Kavanaugh, the Supreme Court held that more than 75
percent of the class members lacked standing.239 In its decision, the Court specifically relied on
Spokeo v. Robins, confirming Spokeo’s holding that all litigants—even those asserting a right
created by Congress—must have a concrete harm sufficient to establish standing.240 The Court
again held that any such “concrete harm” must have a “close relationship” to “a harm
traditionally recognized as providing a basis for a lawsuit in American courts.”241
Applying this standard to the TransUnion plaintiffs, the Court held that the 1,853 class members
whose misleading credit reports were provided to prospective creditors had standing to recover
damages for their “reasonable-procedures” claim because they had suffered a harm that bore a
close relationship to the tort of defamation (i.e., publication of a false, defamatory statement
about somebody to a third party).242 However, the remaining 6,332 class members whose
misleading credit files were not disclosed to a third party lacked standing to recover damages
because their information had not been published.243 In addition, the court held that none of the
plaintiffs other than Ramirez had standing to recover damages for FCRA claims concerning
formatting defects in TransUnion mailings.244
The Court also held that the class members who sought damages because of the risk that their
credit file might be disclosed to a third party at some future time had failed to demonstrate
concrete harm.245 There was not a sufficient likelihood that the harm would materialize in the
future, and the plaintiffs had not alleged that exposure to the risk of that future harm amounted to
a separate, concrete injury (e.g., emotional injury).246 The Court reversed the Ninth Circuit’s
judgment and remanded the case, instructing the circuit court to “consider in the first instance
whether class certification is appropriate in light of our conclusion about standing.”247
237 Ramirez v. TransUnion, 951 F.3d 1008, 1037 (9th Cir. 2020).
238 Id.
239 TransUnion, 141 S. Ct. at 2200.
240 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1550 (2016).
241 TransUnion, 141 S. Ct. at 2200, 2206.
242 Id. at 2208–09. Although the statements identifying class members as “potential” matches with the OFAC database
were arguably misleading rather than false, the Court held that FCRA’s cause of action was close enough to the tort of
defamation to constitute a concrete harm. Id.
243 Id. at 2212–13. The Court compared such harm to a situation in which “someone wrote a defamatory letter and then
stored it in her desk drawer.” Id. at 2210.
244 Id. at 2214.
245 Id. at 2210–11. Similarly, the court rejected the theory that consumers (other than Ramirez) who received
information about the OFAC alert in their credit file in a separate mailing had suffered a concrete injury from a risk of
future harm because the consumers might not have known to ask for corrections to their file in time. Id. at 2213–14.
246 Id. at 2211–12.
247 Id. at 2214.
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Dissenting Opinions
Four Justices dissented, reasoning that the Supreme Court should have given more weight to the
judgment of Congress in applying Article III. Justice Thomas authored a dissenting opinion in
which Justices Breyer, Sotomayor, and Kagan joined.248 Justice Thomas argued that when
Congress enacted FCRA, it granted individual consumers private statutory rights.249 It also
conferred standing on consumers to seek redress in federal court for violations of those rights
even in the absence of actual damages.250 Consequently, Justice Thomas would have held that the
class members had standing because they sought to vindicate an individual right and not an
abstract duty owed to the community at large.251 Furthermore, Justice Thomas argued, the
majority should have “accord[ed] proper respect for the power of Congress . . . to define legal
rights” instead of attempting to decide for itself which injuries were sufficiently “concrete.”252
Justice Kagan wrote a separate dissent in which Justices Breyer and Sotomayor joined.253 Justice
Kagan disagreed to some extent with Justice Thomas, arguing that that Congress lacked plenary
authority to recognize new individual legal rights and confer standing on private parties to sue to
vindicate those rights.254 However, she agreed that the majority should have accorded deference
to Congress’s judgment about “when something causes a harm or risk of harm in the real
world.”255 She wrote that “overriding an authorization to sue is appropriate . . . only when
Congress could not reasonably have thought that a suit will contribute to compensating or
preventing the harm at issue.”256
Considerations for Congress
The Supreme Court’s decision in TransUnion may inform any potential future federal legislation
that creates new rights, including consumer privacy legislation.257 Relying on Spokeo, the Court
held that although Congress may “elevate” real-world harms to the status of Article III injuries,
federal courts must independently review whether such harms are in fact “concrete injuries”
sufficient for standing purposes.258 Also, in TransUnion, the Court provided some additional
guidance on what types of harms to consumers may constitute concrete injuries in federal court.
The decision appears to limit the category of plaintiffs who may recover damages for procedural
violations of a future privacy law to those who can demonstrate concrete injuries resulting from
such violations.259 Consequently, the Court’s decision may effectively prevent Congress from
248 Id. at 2214 (Thomas, J., dissenting).
249 Id. at 2218.
250 Id. at 2217–18.
251 Id. at 2218–19.
252 Id. at 2218.
253 Id. at 2225 (Kagan, J., dissenting).
254 Id. at 2226.
255 Id.
256 Id.
257 It may also have implications for litigation under existing federal consumer protection laws that provide private
rights of action, such as the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692–1692p, and Telephone Consumer
Protection Act, 47 U.S.C. § 227.
258 TransUnion, 141 S. Ct. at 2204–05 (majority opinion).
259 See id. at 2200. The Court did not address the extent to which its holding may prohibit consumers from seeking
injunctive relief to prevent an imminent and substantial harm from occurring. Id. at 2210.
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conferring standing on plaintiffs to recover damages in federal court for some kinds of violations
of privacy laws.260
In addition, the Court determined that the mere risk that a consumer’s credit file might be
disclosed to a third party at some future time was insufficient to demonstrate concrete harm to
recover damages.261 This determination may have implications for federal privacy laws that
provide a damages remedy for the risk of future harm from a data breach when the data has not
been disclosed to a third party. The Court’s decision suggests that plaintiffs could have standing
to recover damages in those circumstances only if the exposure to the risk of that future harm
amounts to a separate, concrete injury (e.g., emotional injury)262 or if there is a “sufficient
likelihood” of disclosure of the plaintiff’s information.263
After TransUnion, Congress must closely consider how any rights that it creates by statute will
fare in a standing analysis when litigants assert those rights.264 Previously, Congress may have
determined that authorizing plaintiffs to sue defendants for violations of newly created rights
would deter certain harmful conduct, even if some of those plaintiffs had not yet incurred actual
damages as a result of that conduct.265 By requiring that plaintiffs have suffered a past concrete
harm in order to have standing to recover damages for violations of statutory rights in federal
court, the TransUnion majority may have limited this deterrent effect.266 Nonetheless, the Court
did not specifically hold that the Constitution prohibits Congress from creating a cause of action
for a violation of statutory rights.267 Consequently, it is possible that the Court’s decision will lead
plaintiffs who have not suffered concrete harm to file more lawsuits in state courts, which may
have their own standing rules that are more flexible than the rules that federal courts apply.268
260
For further analysis, see CRS Legal Sidebar LSB10629, Privacy Law and Private Rights of Action: Standing After
TransUnion v. Ramirez, by Eric N. Holmes.
261 TransUnion, 141 S. Ct. at 2210–14.
262 See id.
263 See id. For recent circuit court cases addressing standing to sue third-party companies for allegedly retaining a
consumer’s data in violation of federal law, see Gubala v. Time Warner Cable, Inc., 846 F.3d 909, 912 (7th Cir. 2017)
(“Violations of rights of privacy are actionable, but . . . there is no indication of any violation of the plaintiff’s privacy
because there is no indication that [the cable company] has released, or allowed anyone to disseminate, any of the
plaintiff’s personal information in the company’s possession.”); Braitberg v. Charter Commc’ns, Inc., 836 F.3d 925,
930 (8th Cir. 2016) (stating that “the retention of information lawfully obtained, without further disclosure, traditionally
has not provided the basis for a lawsuit in American courts”).
264 For example, in recent Congresses, Members have introduced privacy legislation that would have provided damages
remedies to consumers for violations of various newly created individual rights with respect to covered information
held by certain entities. See CRS Legal Sidebar LSB10441, Watching the Watchers: A Comparison of Privacy Bills in
the 116th Congress, by Jonathan M. Gaffney. Even if Congress had enacted this legislation, the Supreme Court’s
decision in TransUnion could effectively prevent consumers who have suffered violations of these statutory rights from
maintaining a lawsuit in federal court.
265 See TransUnion, 141 S. Ct. at 2226 (Kagan, J. dissenting).
266 Furthermore, in the context of class action lawsuits, a consumer who has suffered concrete harm from a defendant’s
statutory violations cannot aggregate his claims with other consumers who are potentially harmed, but have not actually
suffered harm, in order to make a lawsuit economically viable. See id. at 2214 (majority opinion) (“On remand, the
Ninth Circuit may consider in the first instance whether class certification is appropriate in light of our conclusion
about standing.”).
267 Rather, the Court held that Congress could not confer standing in federal court on plaintiffs who had not suffered
concrete harm as the result of such violations. See id. at 2200.
268 See id. at 2224 n.9 (Thomas, J., dissenting). See also Asarco, Inc. v. Kadish, 490 U.S. 605, 617 (1989).
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United States v. Arthrex: The Appointments Clause
and Administrative Patent Judges269
In United States v. Arthrex, the Court held that the authority exercised by the administrative
patent judges of the Patent Trial and Appeal Board (PTAB) to issue final decisions on the validity
of previously issued patents was inconsistent with the Constitution’s Appointments Clause.270 To
address this constitutional defect, the Court granted the Director of the U.S. Patent and Trademark
Office (the Director) unilateral power to review PTAB decisions.271 Arthrex has potential
implications for other proceedings and agencies because it suggests that administrative
adjudicators whose agency heads cannot remove them at will may not issue final, unreviewable
decisions on behalf of the government, unless they are appointed by the President with the
Senate’s advice and consent.
Background
The Appointments Clause
The Appointments Clause—Article II, Section 2, Clause 2 of the Constitution—provides the
method of appointment for “Officers of the United States,” which include cabinet-level officials,
agency heads, and, in some circumstances, federal employees who preside over agency
adjudications.272 The Clause does not apply to those who are “simply employees” of the federal
government273—only to “officers” who “occupy a ‘continuing’ position established by law” and
exercise “significant authority pursuant to the laws of the United States.”274 The Clause’s default
method of appointment for such officers is presidential appointment with the advice and consent
of the Senate.275 However, the Clause also creates an exception to that procedure, providing that
Congress may vest the appointment of “inferior [o]fficers” in “the President alone, in the Courts
of Law, or in the Heads of Departments.”276 Thus, department heads (such as the Secretary) may
appoint inferior officers, when Congress grants that authority by statute. Only the President,
however, may appoint non-inferior “Officers of the United States”—whom the Supreme Court
calls principal officers—with the Senate’s advice and consent.277
The Supreme Court has not set forth an “exclusive criterion for distinguishing between principal
and inferior officers for Appointments Clause purposes.”278 That said, in recent years, the Court
has applied the approach outlined in Edmond v. United States.279 Edmond stated that “[w]hether
269 Kevin J. Hickey, CRS Legislative Attorney, authored this section of the report.
270 United States v. Arthrex, 141 S. Ct. 1970, 1985 (2021).
271 Id. at 1986–87 (opinion of Roberts, C.J.); id. at 1997 (Breyer, J., concurring in the judgment in part and dissenting in
part).
272 See generally Article II, Section II, Clause 2, THE CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/article-2/section-2/clause-2/.
273 Lucia v. SEC, 138 S. Ct. 2044, 2051 (2018).
274 Id. (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam)).
275 See U.S. CONST. art. 2, § 2, cl. 2.
276 Id.
277 See Lucia, 138 S. Ct. at 2051 n.3; Edmond v. United States, 520 U.S. 651, 659 (1997).
278 Edmond, 520 U.S. at 661.
279 See Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2199 n.3 (2020) (“More recently, we have focused on whether the
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one is an ‘inferior’ officer depends on whether he has a superior.”280 Thus, “inferior officers” are
those “whose work is directed and supervised at some level by others who were appointed by
Presidential nomination with the advice and consent of the Senate.”281 Edmond itself concluded
that certain military judges had the requisite supervision to qualify as inferior officers.282 The
Court noted that a higher-level official could remove military judges from their judicial
assignments “without cause”—a “powerful tool for control.”283 Additionally, military judges had
“no power to render a final decision” on the federal government’s behalf “unless permitted to do
so by other Executive officers.”284
Administrative Patent Judges, the PTAB, and Inter Partes Review
In 2011, Congress enacted a major patent reform bill, the Leahy-Smith America Invents Act.285
Among other things, the Act created new adversarial administrative proceedings within the Patent
and Trademark Office to review the validity of already issued patents and cancel those that should
not have been issued.286 The PTAB, which is primarily composed of administrative patent judges
(APJs,) conducts these proceedings, which include adjudications on the validity of issued patent
claims through inter partes review (IPR).287 IPR allows third parties to challenge the validity of
an existing patent granted to another person.288 If a PTAB panel (usually, three APJs) rules that a
patent claim is invalid, a party may appeal that determination directly to the U.S. Court of
Appeals for the Federal Circuit.289 Unless the Federal Circuit overturns the PTAB decision, the
Director cancels the patent claims at issue; that is, they no longer have legal effect.290
The Secretary of Commerce (the Secretary) appoints APJs, in consultation with the Director.291
The President appoints both the Secretary and the Director with the advice and consent of the
Senate.292 The Director is a member of the PTAB,293 and maintains a degree of authority over the
APJs. The Director may, among other things, determine the composition of APJs on each PTAB
panel; issue regulations governing the conduct of PTAB proceedings; or designate a PTAB
decision as precedential and thus binding on future panels.294 Prior to Arthrex, the Director lacked
statutory authority to overturn APJs’ decisions in IPR proceedings, as the statute allows review of
officer’s work is ‘directed and supervised’ by a principal officer.” (quoting Edmond, 520 U.S. at 663)).
280 Edmond, 520 U.S. at 662.
281 Id. at 663.
282 Id. at 666.
283 Id. at 664.
284 Id. at 665.
285 Pub. L. No. 112-29, 125 Stat. 284 (2011).
286 Id. at §§ 6–7, 18 (codified at 35 U.S.C. §§ 6, 311–329, 321 note).
287 35 U.S.C. § 6(b)(4).
288 Id. § 311.
289 Id. § 319.
290 Id. § 318(a)–(b).
291 Id. § 6(a).
292 15 U.S.C. § 1501; 35 U.S.C. § 3(a)(1).
293 35 U.S.C. § 6(a).
294 Id. §§ 2(b)(2), 6(c); PATENT TRIAL & APPEAL BD., STANDARD OPERATING PROCEDURE 2 (REV. 10): PRECEDENTIAL
OPTION PANEL TO DECIDE ISSUES OF EXCEPTIONAL IMPORTANT INVOLVING POLICY OR PROCEDURE (2018),
https://www.uspto.gov/sites/default/files/documents/SOP2%20R10%20FINAL.pdf; see generally 37 C.F.R. pt. 42
(PTAB regulations).
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IPR decisions only by the PTAB itself or by appeal to the Federal Circuit.295 In addition, neither
the Secretary nor the Director can remove an APJ without cause.296
The Dispute in Arthrex
Arthrex, Inc. owns a patent relating to a knotless suture securing assembly used in medical
surgery.297 Arthrex accused Smith & Nephew, Inc., of infringing its patent.298 In response, Smith
& Nephew sought the cancellation of Arthrex’s patent through IPR.299 A panel of three APJs
heard the IPR and determined Arthrex’s patent was invalid and therefore should be canceled.300
Arthrex appealed to the Federal Circuit, arguing that the decision was invalid because APJs were
not properly appointed under the Appointments Clause.301
The Federal Circuit agreed with Arthrex. It found that two factors from Edmond weighed in favor
of finding that APJs are principal officers: the Director cannot “single-handedly review, nullify or
reverse” a panel decision or unilaterally rehear a decision;302 and the Director could only remove
an APJ for “such cause as will promote the efficiency of the service.”303 The other factor weighed
in favor of inferior officer status, as the Federal Circuit determined that the Director had
significant supervisory power APJs through regulations and policy interpretations governing how
APJs conduct IPRs.304 On balance, though, the Federal Circuit concluded that APJs are principal
officers who were not appointed in the constitutionally required manner (i.e., appointment by the
President with the Senate’s advice and consent).305
To remedy the violation, the Federal Circuit took what it perceived to be the “narrowest viable
approach” to correcting the constitutional defect while preserving the statutory scheme Congress
enacted.306 It severed statutory for-cause removal protections as applied to APJs, vacated the
underlying PTAB decision, and remanded the case for a decision by a panel of properly appointed
APJs.307 Arthrex, Smith & Nephew, and the federal government all petitioned for Supreme Court
review.308 The Court granted the petitions to review both the Federal Circuit’s merits holding on
the appointments issue and its choice of remedy.309
295 See 35 U.S.C. §§ 6(c), 319.
296 See 5 U.S.C. § 7513(a); 35 U.S.C. § 3(c).
297 United States v. Arthrex, 141 S. Ct. 1970, 1978 (2021).
298 Id.
299 Id.
300 Id.
301 Arthrex v. Smith & Nephew, Inc., 941 F.3d 1320, 1325 (Fed. Cir. 2019), vacated sub nom., Arthrex, 141 S. Ct.
1970.
302 Id.
303 Id. at 1333.
304 Id. at 1332.
305 Id. at 1335.
306 Id. at 1337.
307 Id. at 1338–40.
308 United States v. Arthrex, 141 S. Ct. 1970, 1978 (2021).
309 Id.
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The Supreme Court’s Opinions
Opinions on the Appointments Clause Issue
Chief Justice Roberts (joined by Justices Alito, Gorsuch, Kavanaugh, and Barrett) delivered the
Court’s opinion on the merits of the Appointments Clause issue. Unlike the Federal Circuit, the
Court did not explicitly find that APJs were principal officers under the PTAB structure that
Congress enacted. Rather, the majority found a constitutional violation in the mismatch between
APJs’ unreviewable decisionmaking authority and their appointment to an inferior office, holding
that “[o]nly an officer properly appointed to a principal office may issue a final decision binding
the Executive Branch in [an IPR].”310
The Supreme Court relied primarily on Edmond in considering whether APJs are inferior or
principal officers. In contrast to Edmond, in which the work of the military judges was “directed
and supervised at some level by” presidentially appointed executive officers,311 Chief Justice
Roberts found that “review by a superior executive officer” was lacking with respect to APJs.312
The majority reasoned that because only the PTAB itself (and not the Director) can grant
rehearing of PTAB decisions, APJs effectively have the final word in the executive branch on
patentability decisions in IPRs.313 Although the Director has a variety of tools to control APJs
(e.g., setting their pay, panel assignment, the decision to institute IPR, and IPR regulations), the
Court found that these less-direct means of control, if exploited as “machinations” to affect IPR
outcomes, would only “blur the lines of accountability” for PTAB decisions within the executive
branch.314 As a result, the majority held that “the unreviewable executive power exercised by
APJs is incompatible with their status as inferior officers.”315
Justice Thomas (joined by Justices Breyer, Sotomayor, and Kagan) dissented on the merits issue,
arguing that the PTAB’s structure adhered to the Appointments Clause.316 In Justice Thomas’s
view, APJs are plainly inferior officers for two main reasons. First, they are “lower in rank to at
least two different officers”—the Director and the Secretary.317 Second, APJs are “functionally”
inferior because the Director has many tools to supervise and control APJs.318 Comparing the
oversight of APJs to the judges at issue in Edmond, Justice Thomas argued that the Director’s
functional control over APJs was “greater” than in Edmond: the Director decides in the first
instance whether to institute an IPR at all, controls which APJs hear an IPR, and can add
additional members (including himself) to PTAB panels.319
Justice Breyer (joined by Justices Sotomayor and Kagan) joined most of Justice Thomas’s
dissent, but also wrote separately to emphasize his view that the Court’s recent separation-ofpowers jurisprudence had taken what he viewed as a “mistake[n]” turn toward inflexible
310 Id. at 1985.
311 Edmond v. United States, 520 U.S. 651, 663 (1997).
312 Arthrex, 141 S. Ct. at 1981.
313 Id.
314 Id. at 1982.
315 Id. at 1983.
316 Id. at 1997–98 (Thomas, J., dissenting)
317 Id. at 2000.
318 Id. at 2000–01.
319 Id. at 2001–02.
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formalism.320 Justice Breyer argued that the Appointments Clause grants Congress “a degree of
leeway” in establishing and empowering federal offices, and that the Court should “take account
of, and place weight on, why Congress enacted a particular statutory limitation” and consider the
“practical consequences” of that choice.321 In this case, Justice Breyer argued that the Court
should have considered the “technical nature of patents, the need for expertise, and the
importance of avoiding political interference” as reasons supporting Congress’s decision to give
APJs a degree of independence from politics.322
Opinions on the Remedial Issue
A different group of Justices formed a majority in selecting a remedy for the constitutional
violation that the Court identified. Chief Justice Roberts delivered a plurality opinion (joined by
Justices Alito, Kavanaugh, and Barrett) rejecting Arthrex’s request to hold the entire IPR regime
unconstitutional. Instead, the Court opted to “sever[] the unconstitutional portion” of the statute
while preserving the rest.323 Because APJs are inferior officers “[i]n every respect save the
insulation of their decisions from review within the Executive Branch,” the Court reasoned, the
proper course was to allow the Director to review final PTAB decisions.324 The Court
accomplished this by holding that 35 U.S.C. § 6(c)—which limits the power to rehear PTAB
decisions—was unenforceable as applied to the Director.325 The Court’s remedy thus differed
both from the Federal Circuit’s solution (allowing the Secretary to remove APJs at will) and the
more sweeping remedy urged by Arthrex.
To provide a majority on the appropriate remedy, Justices Breyer (joined by Justices Sotomayor
and Kagan) concurred in that part of the Court’s judgment. Although these Justices did not agree
that there was a constitutional violation at all, they did agree that granting the Director power to
review PTAB decisions would address the constitutional violation identified by the majority.326
Justice Gorsuch dissented on the remedial issue. In Justice Gorsuch’s view, the Supreme Court’s
“severance” doctrine—in which the Court excises part of a statute to cure a constitutional
problem—is inappropriate when there is more than “one possible way” to cure the constitutional
problem and Congress has provided no specific direction.327 Justice Gorsuch urged the Court to
follow the “traditional” approach of declining to enforce the statute in the case before it—
effectively allowing for challengers to vacate PTAB decisions until the constitutional problem is
fixed—so that the Court would not have to guess “what a past Congress would have done if
confronted with a contingency it never addressed.”328
Considerations for Congress
The consequences of Arthrex for the PTAB appear straightforward. APJs will continue to conduct
and decide IPR proceedings, but the Director has discretion to review their decisions. Shortly
320 Id. at 1996 (Breyer, J., concurring in the judgment in part and dissenting in part).
321 Id. at 1994–95.
322 Id. at 1996.
323 Id. at 1986 (opinion of Roberts, C.J.).
324 Id.
325 Id. at 1987.
326 Id. at 1997 (Breyer, J., concurring in the judgment in part and dissenting in part).
327 Id. at 1990 (Gorsuch, J., concurring in part and dissenting in part).
328 Id. at 1990, 1992.
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after the Arthrex decision, the Patent and Trademark Office implemented an interim procedure for
the Director to review PTAB decisions.329 A party may request review by the Director within 30
days of a final written PTAB decision, or the Director may initiate review on his own accord.330
Review by the Director is de novo and may address any issue of fact or law.331 The acting
Director has already denied the first requests for review under Arthrex.332
While the Arthrex ruling was limited to IPR, the case raises several broader questions of possible
interest to Congress because of its potential effects on agency adjudications outside of the patent
context.333
First, the Arthrex majority identified two boards that are similar to the PTAB.334 The first is the
Civilian Board of Contract Appeals, an “independent tribunal” within the General Services
Administration that “resolve[s] contract disputes between government contractors and
agencies.”335 Board members are appointed by the Administrator of General Services (i.e., not
through advice and consent) and can be removed only for cause.336 The second board named in
the decision is the Postal Service Board of Contract Appeals, whose judges are appointed by the
Postmaster General.337 Both boards are authorized to issue “final” written decisions.338 Although
these decisions may be appealed to the Federal Circuit, the relevant statute does not authorize
review by a principal officer in the executive branch.339 Thus, “[w]hatever distinct issues” these
boards might present, the absence of principal officer review may lead to legal challenges based
on the reasoning of Arthrex.
Second, although the Supreme Court did not mention it in the Arthrex opinion, the Federal Circuit
repeatedly compared APJs to Copyright Royalty Judges (CRJs) in its decision.340 In 2012, the
D.C. Circuit ruled that CRJs, who “set the terms of exchange for musical works” through royalty
rate determinations, were principal officers.341 In that case, Intercollegiate Broadcasting System v.
Copyright Royalty Board, the court reasoned that CRJs were “supervised in some respects” by the
Librarian of Congress (who appoints them) and by the Register of Copyrights, “but in ways that
329 USPTO Implementation of an Interim Director Review Process Following Arthrex, U.S. PATENT & TRADEMARK
OFF., https://www.uspto.gov/patents/patent-trial-and-appeal-board/procedures/uspto-implementation-interim-directorreview (last visited Sept. 2, 2021).
330 Id.
331 Arthrex Q&As, U.S. PATENT & TRADEMARK OFF., https://www.uspto.gov/patents/patent-trial-and-appealboard/procedures/arthrex-qas (last updated July 20, 2021).
332 Ryan Davis, Temporary USPTO Chief Rejects First 2 Arthrex Review Bids, LAW360 (Aug. 2, 2021),
https://www.law360.com/ip/articles/1409172/temporary-uspto-chief-rejects-first-2-arthrex-review-bids.
333 A panel of the U.S. Court of Appeals for the Federal Circuit already has rejected an Appointments Clause challenge
to the Trademark Trial and Appeal Board (TTAB) based on Arthrex, reasoning that the Director’s authority to review
TTAB decisions is comparable to the Director’s post-Arthrex authority with respect to IPR proceedings. Piano Factory
Grp., Inc. v. Schiedmayer Celesta GMBH, No. 2020-1196, 2021 U.S. App. LEXIS 26344, at *8–20 (Fed. Cir. Sept. 1,
2021).
334
United States v. Arthrex, 141 S. Ct. 1970, 1984 (2021).
335 United States Civilian Board of Contact Appeals, U.S. CIVILIAN BD. OF CONTRACT APPEALS, https://www.cbca.gov/
(last visited Sept. 2, 2021).
336 41 U.S.C. § 7105(b)(2)–(3).
337 Id. § 7105(d).
338 Id. § 7107(a)(1).
339 See id.
340 See Arthrex v. Smith & Nephew, Inc., 941 F.3d 1320, 1331, 1334–35 (Fed. Cir. 2019), vacated sub nom., Arthrex,
141 S. Ct. 1970.
341 Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1338–41 (D.C. Cir. 2012).
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leave broad discretion.”342 Additionally, the Librarian (a principal officer) could only remove
CRJs for “misconduct or neglect of duty.”343 The D.C. Circuit chose to remedy the Appointments
Clause violation by granting the Librarian power to remove CRJs without cause, thus rendering
them, in that court’s view, inferior officers.344 The Federal Circuit in Arthrex modeled its remedy
after this approach, allowing the Director to remove APJs without cause to render APJs “inferior”
officers.345 The Supreme Court chose a different remedy, however, identifying the constitutional
problem as the failure to subject APJs’ decisions to meaningful executive review.346 At least one
federal court has read the Arthrex decision to suggest that removal at will may be insufficient to
make an officer inferior to a principal officer in such circumstances (although the Supreme Court
expressly declined to decide that question).347 Accordingly, while the direction and control over
CRJs’ rate determinations might be distinguishable from APJs in IPR,348 there could be a renewed
focus on the constitutionality of CRJs’ appointments as inferior officers as a result of Arthrex.
Third, the Arthrex opinion may have ramifications for other types of agency decisions. In Lucia v.
SEC, the Court clarified that administrative law judges (ALJs) need not have the authority to
render final, binding decisions in order to be “officers”—their duties and discretion in presiding
over adversarial hearings were enough to make them inferior officers.349 Arthrex implies that
adjudicators whose decisions are not only potentially final, but also unreviewable within the
executive branch, may be principal officers.350 At the same time, the majority cautioned that
“[m]any decisions by inferior officers do not bind the Executive Branch to exercise executive
power in a particular manner” and did not opine on “supervision outside the context of
adjudication.”351 In these circumstances, it is unclear whether this rule would apply in agency
proceedings that do not share the trial-like procedures of IPR. For example, within the Social
Security Administration (SSA), the Appeals Council issues the “final action” for the agency in
appeals from certain benefits determinations.352 According to SSA, at least since July 2018,
administrative appeals judges on the Appeals Council have been appointed by the Commissioner
or Acting Commissioner of the SSA.353 Because these administrative appeals judges are
342 Id. at 1338.
343 Id. at 1340.
344 Id. at 1334.
345 See Smith & Nephew, Inc., 941 F.3d at 1338 (“The narrowest remedy here is similar to the one adopted in
Intercollegiate, the facts of which parallel this case.”).
346 See Arthrex, 141 S. Ct. at 1988 (“[T]he source of the constitutional violation is the restraint on the review authority
of the Director, rather than the appointment of APJs by the Secretary.”) (opinion of Roberts, J.); but see id. at 1987
(declining to decide “whether the Government is correct that at-will removal by the Secretary would cure the
constitutional problem”).
347 Villarreal-Dancy v. U.S. Dep’t of the Air Force, No. 19-2985 (RDM), 2021 U.S. Dist. LEXIS 138551, at *33 n.5
(D.D.C. July 26, 2021) (“[Arthrex] casts constitutional doubt on any statutory scheme that grants unreviewable
authority to inferior officers, regardless of how easily those inferior officers can be removed.” (internal citations
omitted)).
348 Cf. 17 U.S.C. § 802(f).
349 See Lucia v. SEC, 138 S. Ct. 2044, 2052–53 (2018).
350 See Arthrex, 141 S. Ct. at 1983 (“[T]he unreviewable executive power exercised by APJs is incompatible with their
status as inferior officers.”).
351 Id. at 1985–86.
352 See Brief History and Current Information about the Appeals Council, SOC. SECURITY ADMIN., https://www.ssa.gov/
appeals/about_ac.html (last visited Sept. 2, 2021); see generally CRS Report R44948, Social Security Disability
Insurance (SSDI) and Supplemental Security Income (SSI): Eligibility, Benefits, and Financing, by William R. Morton,
at 47–50.
353 See SSR 19-1p: Titles II and XVI: Effect of the Decision in Lucia v. Securities and Exchange Commission (SEC) on
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appointed as inferior rather than principal officers, further litigation could test the validity of their
SSA benefits determinations under Arthrex.354
Thus, while open questions remain, Arthrex emphasizes the importance of final decisionmaking
authority when differentiating between principal and inferior officers in the agency adjudication
context.
Collins v. Yellen: Separation of Powers and the
FHFA355
The President’s ability to control or remove federal officers was an important issue in a second
major case last Term. In Collins v. Yellen, the Supreme Court ruled 7-2 that the structure of the
Federal Housing Finance Agency (FHFA) violates the Constitution’s separation of powers.356 The
decision has already had practical effects, as President Biden removed the FHFA Director from
office the day after the Court’s decision,357 and subsequently removed the head of the SSA358 (a
position protected by a similar statutory removal provision).359 The FHFA is headed by a single
Director who, under the statute establishing the agency, could be removed by the President only
for cause, rather than at will.360 The single-headed structure of the FHFA contrasts with the
multimember structure of most other agencies headed by officials that are similarly insulated
from presidential control through for-cause removal protections.361 The Court’s ruling, which
comes on the heels of a decision last year invalidating the similarly structured Consumer
Cases Pending at the Appeals Council, SOC. SEC. ADMIN., https://www.ssa.gov/OP_Home/rulings/oasi/33/SSR201901-oasi-33.html (Mar. 15, 2019); Important Information Regarding Possible Challenges to the Appointment of
Administrative Law Judges in SSA’s Administrative Process, SOC. SEC. ADMIN.,
https://secure.ssa.gov/apps10/reference.nsf/links/08062018021025PM (last updated Aug. 6, 2018).
354 See Carr v. Saul, 141 S. Ct. 1352, 1356 (2021) (holding that claimants did not forfeit Appointments Clause
challenge to ALJs’ denial of disability benefits); Jimmy Hoover, In Arthrex, Justices Deal New Blow to Agency
Independence, LAW360, https://www.law360.com/articles/1396489/in-arthrex-justices-deal-new-blow-to-agencyindependence (June 22, 2021) (discussing potential implications for Arthrex on the Social Security Administration and
other federal agencies).
355 Jared P. Cole, CRS Legislative Attorney, authored this section of the report.
356 Collins v. Yellen, 141 S. Ct. 1761, 1783 (2021).
357 See Matthew Goldstein et al., Biden Removes Chief of Housing Agency After Supreme Court Ruling, N.Y. TIMES
(June 23, 2021), https://www.nytimes.com/2021/06/23/us/biden-housing-agency-supreme-court.html; Andrew
Ackerman & Brent Kendall, Biden Administration Removes Fannie, Freddie Overseer After Court Ruling, WALL ST. J.
(June 23, 2021), https://www.wsj.com/articles/supreme-court-issues-mixed-ruling-on-government-seizure-of-fanniefreddie-profits-11624459222.
358 See Jim Tankersley, Biden Fires Trump Appointee as Head of Social Security Administration, N.Y. TIMES (July 9,
2021), https://www.nytimes.com/2021/07/09/business/biden-social-security-administration.html; Andrew Restuccia &
Richard Rubin, Biden Ousts Social Security Chief, WALL ST. J. (July 9, 2021), https://www.wsj.com/articles/bidenousts-social-security-chief-11625871710.
359 See 42 U.S.C. § 902(a)(3).
360 12 U.S.C. § 4512(b)(2).
361 See Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2201 (2020) (characterizing the Consumer Financial Protection
Bureau, an agency with a single head protected by a statutory removal provision, as “almost wholly unprecedented”);
see also Lisa Schultz Bressman & Robert B. Thompson, The Future of Agency Independence, 63 VAND. L. REV. 599,
610 (2010) (“Independent agencies have other structural features that distinguish them from executive-branch agencies.
They are generally run by multi-member commissions or boards, whose members serve fixed, staggered terms, rather
than a cabinet secretary or single administrator who serves at the pleasure of the President and thus will likely depart
with a change of administration, if not before.”).
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Financial Protection Bureau (CFPB), could inform Congress’s ability to configure agencies in the
executive branch with relative independence from the President.362
Background
The Supreme Court in recent years has examined the relationship between the President and the
heads of executive agencies, probing whether statutory limitations on the President’s ability to
control executive officers are consistent with the Constitution’s placement of executive power
with the President.363 In Seila Law LLC v. CFPB, the Court ruled that a statutory provision
insulating the Director of the CFPB from removal by the President except for “inefficiency,
neglect of duty, or malfeasance” was unconstitutional.364 The Court explained in that case that,
while it had on occasion upheld legislative restrictions on the President’s power to remove
executive officers under Article II of the Constitution,365 those restrictions were permissible only
because they fell within two narrow exceptions to the President’s otherwise “unrestricted removal
power”: “one for multimember expert agencies that do not wield substantial executive power,”
and the other for inferior officers “with limited duties and no policymaking or administrative
authority.”366 The Court characterized these exceptions as constituting the “outermost
constitutional limits” on Congress’s authority to restrict the President’s removal power.367 In Seila
Law, the Court declined to “extend these precedents” to the context of the CFPB, an independent
agency led by a single director with “significant executive power.”368 The Court in that case
concluded that the CFPB’s structure “lacks a foundation in historical practice and clashes with
362 See Seila Law, 140 S. Ct. at 2197 (“We hold that the CFPB’s leadership by a single individual removable only for
inefficiency, neglect, or malfeasance violates the separation of powers.”).
363 U.S. CONST. art. 2, § 1, cl. 1. See Shannon Roesler, Agency Reasons at the Intersection of Expertise and Presidential
Preferences, 71 ADMIN. L. REV. 491, 505 (2019) (asserting that “the constitutional theory of the unitary executive has
gained ground both in the Supreme Court and in legal scholarship”). Compare Lawrence Lessig & Cass R.
Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 2–4 (1994) (asserting that the Framers did not
envision a unitary executive), with Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the
Laws, 104 YALE L.J. 541, 547–50 (1994) (arguing that the theory of a unitary executive flows from an originalist
interpretation of the Constitution’s meaning). See generally Removing Officers: Current Doctrine, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/artII-S2-C2-2-1-5-2/ALDE_00001143/.
364 Seila Law, 140 S. Ct. at 2192. See 12 U.S.C. § 5491(c)(3).
365 The Seila Law Court explained that Article II of the Constitution vests the executive power in the President, which
includes the authority to remove executive officials. Seila Law, 140 S. Ct. at 2197–98; U.S. CONST. art. II, § 1, cl. 1.
The Court acknowledged this power in Myers v. United States, which concluded that Article II provides the President
with “general administrative control of those executing the laws, including the power of appointment and removal of
executive officers.” 272 U.S. 52, 163–64 (1926). See Seila Law, 140 S. Ct. at 2197–98 (discussing how precedent and
history confirm the President’s general power of removal).
366 Seila Law, 140 S. Ct. at 2198, 2199–200. In Seila Law, the Court noted that the first exception stemmed from its
decision in Humphrey’s Executor v. United States, in which the Court upheld removal protections for the
Commissioners of the Federal Trade Commission (FTC). See 295 U.S. 602, 631–32 (1935). The second exception is
illustrated in the case of Morrison v. Olson, where the Court upheld removal restrictions for an independent counsel
appointed to investigate and prosecute specific crimes by high-level government officials. 487 U.S. 654, 662–63, 696–
97 (1988). But see Seila Law, 140 S. Ct. at 2233–344, 2239 n.10 2240–41 (Kagan, J., concurring in the judgment with
respect to severability and dissenting in part) (criticizing the majority opinion’s characterization of these cases and
arguing that the FTC’s powers in 1935 were much more substantial than the majority opinion acknowledged).
367 Seila Law, 140 S. Ct. at 2200 (quoting PHH Corp. v. CFPB, 881 F.3d 75, 196 (D.C. Cir. 2018) (Kavanaugh, J.,
dissenting)).
368 Id. at 2192.
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constitutional structure by concentrating power in a unilateral actor insulated from Presidential
control.”369
The principal legal question in Collins closely mirrored the issues addressed in Seila Law. The
dispute arose from a financing arrangement the FHFA, acting as a conservator for the Federal
National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation
(Freddie Mac), reached with the Treasury Department.370 Fannie Mae and Freddie Mac are
government-sponsored enterprises (GSEs) that provide liquidity to banks and credit unions to
help support the home mortgage market.371 The Housing and Economic Recovery Act of 2008
(Recovery Act), among other things, established the FHFA to oversee Fannie Mae and Freddie
Mac and authorized the FHFA to act as a conservator for them in certain situations.372 Not long
after the FHFA was established, the agency placed both GSEs into a conservatorship and
negotiated agreements on their behalf with the Treasury Department.373 Subsequently, the
agencies agreed to a series of amendments, the third of which (Third Amendment) led to this
litigation.374
A group of shareholders challenged the Third Amendment on both statutory and constitutional
grounds.375 Because the government took the position that the Director’s statutory removal
protection was unconstitutional, the Court appointed an amicus curiae to defend the
constitutionality of the statute.376 An additional question for the Court, however, was what should
happen to the Third Amendment if the Director had been exercising authority pursuant to an
unconstitutional statute. The shareholders contended that the Third Amendment should be
invalidated entirely, and all dividend payments made pursuant to the Amendment returned to
Fannie Mae and Freddie Mac.
The Supreme Court’s Decision
Opinions on the Question of Removal Protection
In an opinion by Justice Alito, the Supreme Court ultimately held that the statutory restriction on
the President’s power to remove the FHFA Director was unconstitutional.377 The Court explained
369 Id.
370 Collins v. Yellen, 141 S. Ct. 1761, 1770 (2021).
371 12 U.S.C. § 2512. See History of Fannie Mae and Freddie Mac Conservatorships, FED. HOUS. FIN. AGENCY (last
visited Aug. 19, 2021), https://www.fhfa.gov/Conservatorship/Pages/History-of-Fannie-Mae--FreddieConservatorships.aspx.
372 Housing and Economic Recovery Act of 2008, Pub. L. No. 110-289, 122 Stat. 2654 (codified at 12 U.S.C. § 4501 et
seq.).
373 Collins, 141 S. Ct. at 1770.
374 As explained in Collins, “Treasury committed to providing each company with up to $100 billion in capital, and in
exchange received, among other things, senior preferred shares and quarterly fixed-rate dividends.” Id. “Four years
later, the FHFA and Treasury amended the agreements and replaced the fixed-rate dividend formula with a variable one
that required the companies to make quarterly payments consisting of their entire net worth minus a small specified
capital reserve.” Id. This “Third Amendment” “caused the companies to transfer enormous amounts of wealth to
Treasury” and “resulted in a slew of lawsuits.” Id. For more details on these arrangements, see CRS Report R44525,
Fannie Mae and Freddie Mac in Conservatorship: Frequently Asked Questions, by Darryl E. Getter.
375 Collins, 141 S. Ct. at 1770.
376 Id. at 1775.
377 Id. at 1783. The Court also dismissed the claim that the FHFA “exceeded its statutory authority” in adopting the
Third Amendment. Id. at 1775. The Recovery Act limits judicial review of the FHFA’s actions as conservator,
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that its reasoning from last year’s decision in Seila Law essentially decided the constitutional
question.378 The FHFA, like the CFPB, is an agency with a single Director, and the statute
establishing the FHFA, like the law establishing the CFPB, restricts the President’s power to
remove that Director.379 The Court rejected various arguments raised by the Court-appointed
amicus to distinguish the two agencies.
First, Justice Alito’s majority opinion rejected the argument that the FHFA Director exercises less
authority than the CFPB director, and that Congress should therefore have more flexibility to
insulate the FHFA Director from the President. The majority opinion explained that the “nature
and breadth” of an agency’s power does not control whether Congress may restrict the President’s
removal power.380 The President’s power of removal is essential to exercising some measure of
control over the executive branch in accordance with the policies the President was elected to
advance.381 As the people elect the President, but not agency officials, the removal power
maintains electoral accountability for executive branch actions.382 In addition, the majority
opinion noted the “severe practical problems” attendant to establishing a workable standard to
distinguish those agency heads whose authority is substantial enough to require presidential
control from those whose power is not; while the CFPB might wield more authority than the
FHFA in some ways, the situation might be reversed in others.383 For instance, while the CFPB
has regulatory authority over various private interests, the FHFA oversees entities that “dominate
the secondary mortgage market and have the power to reshape the housing sector.”384
The amicus also argued that when the FHFA steps into the shoes of an entity as a conservator, it
assumes the status of a private entity and does not wield executive power.385 The Court disagreed,
explaining that the FHFA does not always act in that capacity, and even when it does so, its
authority stems from a specific federal statute, the Recovery Act, not the background laws that
govern conservatorships.386 The majority opinion stressed that the FHFA’s task—interpreting a
law passed by Congress and implementing a legislative mandate—is the essence of exercising
executive power.387
Justice Alito’s majority opinion also disposed of the argument that because of the nature of the
entities the FHFA regulates, there was no separation-of-powers violation.388 The amicus argued
providing that courts may not restrain the agency’s actions unless review is specifically authorized by one of its
provisions or requested by the Director. 12 U.S.C. § 4617(f). The Court joined the consensus view of the federal courts
of appeals below and concluded that the statute prohibits judicial relief where an FHFA action falls within its authority
as a conservator, but judicial relief is available if the FHFA exceeds its authority. Collins, 141 S. Ct. at 1776. The Court
ultimately ruled that “the FHFA did not exceed its authority as a conservator,” and the statutory challenge to the
agency’s action was therefore barred. Id. at 1778.
378 Collins, 141 S. Ct. at 1783 (“Indeed, our decision last Term in Seila Law is all but dispositive.”).
379 Id.
380 Id.
381
Id.
382 Id.
383 Id.
384 Id. at 1784–85.
385 Id. at 1785.
386 Id. The Court also observed that the agency’s authority under the Recovery Act differs from those of most other
conservatorships. The FHFA can, for instance, “subordinate the best interests of the company to its own best interests
and those of the public.” Id. See 12 U.S.C. § 4617(b)(2)(J)(ii).
387 Collins, 141 S. Ct. at 1785–86.
388 Id. at 1786.
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that because the FHFA regulates GSEs, rather than private parties, the individual liberty interests
protected by separation-of-powers principles are not implicated.389 The majority disagreed,
contending that the President’s removal power is crucial regardless of whether the relevant
agency regulates the public directly or takes actions that have important indirect effects.390
Last, the Court dismissed the argument that the removal protection for the FHFA Director only
offered a modest tenure protection that did not create a constitutional problem.391 The amicus
argued that, if the Director refused to follow an order from the President, then the for-cause
standard would be satisfied and the President could remove the Director.392 This feature,
according to the reasoning of the amicus, preserved presidential control over the Director.393 The
majority opinion acknowledged that the Recovery Act’s for-cause provision likely gave the
President more discretion to remove the Director than other statutory provisions insulating
officials from removal, such as the standard of “inefficiency, neglect of duty, or malfeasance” that
applied to the CFPB Director.394 Even so, the Court ruled that “the Constitution prohibits even
‘modest restrictions’ on the President’s power to remove the head of an agency with a single top
officer.”395
Justice Kagan wrote separately, joining the majority opinion in most aspects but concurring only
in the judgment on the constitutional question.396 First, she disputed the majority’s assertion that
because at-will presidential removal is crucial to ensure that the executive branch is subject to a
degree of electoral accountability, “courts should grant the President that power in cases like this
one.”397 Instead, she argued, the correct method of achieving accountability is to let decisions
about the government’s structure rest with the branches that are accountable to the people, such as
Congress.398 Second, she objected to what she characterized as the “majority’s extension of Seila
Law’s holding.”399 That case, Justice Kagan wrote, emphasized that its rule was limited to barring
removal protections for a single-director agency that exercises “significant executive power.”400
However, the majority opinion in Collins, she remarked, ignored that limitation on Seila Law’s
reasoning to instead conclude that the constitutionality of a removal restriction does not turn on
“the nature and breadth of an agency’s authority.”401
389 Id. See Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2202–03 (2020) (observing that “[t]he Framers recognized that, in
the long term, structural protections against abuse of power were critical to preserving liberty.”) (quoting Bowsher v.
Synar, 478 U.S. 714, 730 (1986)).
390 Collins, 141 S. Ct. at 1786.
391 Id. at 1786–87.
392 Id. at 1786.
393 See id. at 1786.
394 Id.
395 Id. at 1787.
396 Justice Kagan had dissented from the majority opinion in Seila Law as to the constitutionality of the removal
restriction for the CFPB, Seila Law, 140 S. Ct. at 2224 (Kagan, J., concurring in the judgment with respect to
severability and dissenting in part), but concluded that principles of stare decisis compelled application of its reasoning
here as the FHFA was not legally distinguishable from the CFPB. Collins, 141 S. Ct. at 1799–800 (Kagan, J.,
concurring in part and concurring in the judgment).
397 Collins, 141 S. Ct. at 1800 (Kagan, J., concurring in part and concurring in the judgment).
398 Id.
399 Id.
400 Id. at 1800–01.
401 Id. at 1801 (quoting id. at 1784).
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Justice Sotomayor, in an opinion joined by Justice Breyer, dissented from the Court’s decision on
this constitutional question.402 Echoing the point raised by Justice Kagan, she argued that Seila
Law limited its holding to a single-director agency entrusted with “significant executive
power.”403 For Justice Sotomayor, the FHFA’s authority over GSEs did not rise to this level. In
addition, Seila Law distinguished one of the situations in which the Court has approved removal
protections—that of an independent counsel—on the grounds that the independent counsel’s
authority was “trained inward” to high-level government officials identified by others.404
Likewise, Justice Sotomayor wrote, the FHFA’s power is “trained inward” toward GSEs, which
are distinct from purely private entities due to their ties to the government.405 Finally, she argued
that independence for the FHFA was supported by historical tradition, pointing to the examples of
single-director agencies with limited executive power, such as the Office of Special Counsel and
the SSA, as well as the independence enjoyed by other federal financial regulators.406
Opinions on the Remedy
While the shareholders succeeded in their constitutional challenge to the removal restriction on
the FHFA Director, they did not obtain their preferred remedy of undoing the Third Amendment
in its entirety.407 The Court focused on the fact that an Acting Director of the FHFA—and not a
Senate-confirmed Director—completed the agreement.408 An Acting FHFA Director, the Court
ruled, was not protected from removal as a Senate-confirmed FHFA Director would be.409
Therefore, there was no constitutional violation that harmed shareholders when the agreement
was adopted. The Court thus ruled that it would only consider a remedy for actions taken by
subsequent Senate-confirmed FHFA Directors (who were protected from removal under the
statute) to implement the agreement.410
The Court noted another wrinkle in the claim for relief—while the removal restriction protecting
an FHFA Director was unconstitutional, the FHFA Directors that followed the Acting Director
and implemented the Third Amendment were appointed consistent with the Constitution.411
Because there was no constitutional defect with their manner of appointment, they had authority
to carry out the functions of that office, and there was thus no reason to void their actions simply
because the statute included an improper removal restriction.412 Instead, in order to obtain
retrospective relief, the shareholders needed to show that they were harmed by the removal
protection.413 For instance, the Court offered, if the President stated publicly that he disagreed
402 Id. at 1802 (Sotomayor, J., concurring in part and dissenting in part).
403 Id. at 1804–05.
404 Id. at 1806–07.
405 Id. at 1807.
406 Id.
407 Id. at 1787 (Alito, J., majority opinion).
408 Id. at 1787.
409 Id. at 1783.
410 Id. at 1787.
411 Id.
412 Id. at 1787–88. See Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018) (ruling that the proper “remedy for an adjudication
tainted with an appointments violation is a new ‘hearing before a properly appointed’ official”) (quoting Ryder v.
United States, 515 U.S. 177, 188 (1995)). Cf. United States v. Arthrex, Inc., 141 S. Ct. 1970, 1988 (2021) (plurality
opinion) (“Because the source of the constitutional violation is the restraint on the review authority of the Director,
rather than the appointment of APJs by the Secretary, Arthrex is not entitled to a hearing before a new panel of APJs.”).
413 Collins, 141 S. Ct. at 1788–99.
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with a decision of the Director and would have removed him were it not for the for-cause
protection, that statement might show that the unconstitutional provision caused harm. 414 The
Court decided that whether such a harm occurred here was unclear and remanded the matter to
the lower courts to resolve.415
The Court’s decision to remand the case without setting aside the Third Amendment (the
shareholders’ requested remedy) sparked three separate opinions. Justice Kagan wrote separately
to reflect her agreement with the majority’s approach on this point.416 She argued that this line of
reasoning, if applied in future cases, could also prevent the unnecessary upheaval of an agency’s
past decisions by preventing the courts from retroactively invalidating various routine agency
actions that “would never have risen to the President’s notice.”417
Justice Thomas, though joining the majority opinion in full, wrote separately to emphasize a
related point—that “[t]he government does not necessarily act unlawfully even if a removal
restriction is unlawful in the abstract.”418 The parties here had assumed that “the lawfulness of
agency action turns on the lawfulness of the removal restriction.”419 As the majority had also
observed, the officials here were properly appointed and validly exercised their statutory
authority. Therefore, in order for a court to invalidate the Third Amendment, it must conclude that
either the implementation or adoption of the Third Amendment itself was unlawful.420 Because
the parties did not raise these issues, Justice Thomas concluded that the majority opinion
correctly resolved the questions presented.421 He encouraged courts to, in future cases, “ensure
not only that a provision is unlawful but also that unlawful action was taken.”422
By contrast, Justice Gorsuch, who otherwise joined the rest of the majority opinion, was the only
Justice who disagreed with the Court’s remedy.423 He argued that the task assigned on remand to
the lower courts was indeterminate, questioning “how . . . judges and lawyers [are] supposed to
construct the counterfactual history” to determine “whether the President would have removed
the Director had he known he was free to do so.”424
414 Id. at 1789.
415 Id.
416 Id. at 1801; id. (Kagan, J., concurring in part and concurring in the judgment) (“The majority’s remedial holding
limits the damage of the Court's removal jurisprudence. As the majority explains, its holding ensures that actions the
President supports—which would have gone forward whatever his removal power—will remain in place.”). Justice
Sotomayor, joined by Justice Breyer, joined Justice Kagan’s opinion as to the proper remedy. Id. at 1803 n.1
(Sotomayor, J., concurring in part and dissenting in part).
417 Id. at 1801–02.
418 Id. at 1789 (Thomas, J., concurring).
419 Id. at 1791.
420 Id. at 1790.
421 Id. at 1795.
422 Id. (emphasis in original).
423 Id. at 1795 (Gorsuch, J., concurring in part). Justice Sotomayor’s separate opinion, which was joined by Justice
Breyer, while dissenting on the constitutional question of the removal restriction, nonetheless joined the majority
opinion’s analysis as to the proper remedy in the case. Id. at 1803 n.1 (Sotomayor, J., concurring in part and dissenting
in part).
424 Id. at 1798 (Gorsuch, J., concurring in part) (emphasis in original).
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Considerations for Congress
Collins represents another development in the Court’s separation-of-powers jurisprudence that
recently has tended to look with skepticism at statutory restrictions on the removal of agency
officials.425 Given the reasoning of Seila Law and Collins, Congress’s future ability to shield an
executive branch agency headed by a single Director from presidential control seems likely
foreclosed, at least so long as those entities wield “significant executive power.”426 Whether the
Court would hold that the few existing agencies—such as the Office of Special Counsel and the
SSA—with a single head protected by a for-cause removal protection comport with the
Constitution remains to be seen.427 Following the Court’s decision in Collins, President Biden
removed the head of the SSA even though the position is protected by a statutory removal
restriction.428 A memorandum from the Department of Justice’s Office of Legal Counsel
concluded that “the best reading” of Collins and Seila Law is that the statutory removal restriction
for the head of the SSA is unconstitutional, and the President may therefore remove the
Commissioner at will.429
Future litigation will likely address how the principles of these cases might apply to other agency
officials with removal protections,430 such as ALJs.431 Justices Kagan and Sotomayor both
criticized the majority opinion in Collins for what they viewed as an improper expansion of Seila
Law’s holding.432
Although the Court’s recent decisions in cases challenging removal restrictions identify limits on
Congress’s power to shape the executive branch, Congress still has a wide assortment of tools to
shape and influence executive branch activities.433 The Court’s approach to crafting a remedy for
425 See, e.g., Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 483–84 (2010) (ruling that the
combination of a removal restriction for principal officers, who in turn are restricted from removing inferior officers
below them, is unconstitutional); Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020).
426 See Seila Law, 140 S. Ct. at 2201 (ruling that “an independent agency led by a single Director and vested with
significant executive power . . . has no basis in history and no place in our constitutional structure”). Compare Collins
v. Yellen, 141 S. Ct. 1761, 1784 (2021) (“But the nature and breadth of an agency’s authority is not dispositive in
determining whether Congress may limit the President’s power to remove its head.”); with id. at 1800–01 (Kagan, J.,
concurring in part and concurring in the judgment) (criticizing the majority opinion for improperly extending Seila
Law’s holding, which was limited to single-director agencies that wield “significant executive power”).
427 See 42 U.S.C. § 902(a)(3) (Social Security Commissioner); 5 U.S.C. § 1211(b) (Office of Special Counsel).
428 See Jim Tankersley, Biden Fires Trump Appointee as Head of Social Security Administration, N.Y. TIMES (July 9,
2021), https://www.nytimes.com/2021/07/09/business/biden-social-security-administration.html; Andrew Restuccia &
Richard Rubin, Biden Ousts Social Security Chief, WALL ST. J. (July 9, 2021), https://www.wsj.com/articles/bidenousts-social-security-chief-11625871710.
429 Constitutionality of the Commissioner of Social Security’s Tenure Protections, Dep’t of Justice, Office of Legal
Counsel 10 (July 8, 2021) (slip op.), https://www.justice.gov/olc/file/1410736/download.
430 See, e.g., Petition for Writ of Certiorari at 29–31, 32 n.4, Axon Enterprise, Inc. v. Federal Trade Commission, No.
21-86 (U.S. July 20, 2021) (arguing that removal protections for ALJs at the Federal Trade Commission (FTC) are
unconstitutional and noting that, because the petitioner preserved a challenge to the protections for the FTC
Commissioners, the case also affords the Court an opportunity to revisit the reasoning of Humphrey’s Executor v.
United States, 295 U.S. 602 (1935)). In Humphrey’s Executor, the Court upheld removal restrictions for the
Commissioners of the FTC. Humphrey’s Ex’r v. United States, 295 U.S. 602, 631–32 (1935).
431 5 U.S.C. § 7521 (stating that an employing agency can take certain actions against an ALJ, including removal, “only
for good cause established and determined by the Merit Systems Protection Board” after an opportunity for a hearing).
432 Collins v. Yellen, 141 S. Ct. 1761, 1800–01 (2021) (Kagan, J., concurring in part and concurring in the judgment);
id. at 1808 (Sotomayor, concurring in part and dissenting in part).
433 See CRS Report R45442, Congress’s Authority to Influence and Control Executive Branch Agencies, by Todd
Garvey and Daniel J. Sheffner.
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the plaintiffs in Collins suggests that, even if litigants identify a constitutional problem in an
agency’s statutory structure, they may not be able to obtain the wholesale invalidation of that
agency’s actions. The Court remanded the case to the lower courts to determine whether the
shareholders suffered harm as a result of the unconstitutional removal restriction.434 Limiting the
remedy in this way, as Justice Kagan observed, will likely curb the potential impact of an adverse
judicial decision on an agency’s previous actions, at least for those that would not “capture a
President’s attention.”435
434 Collins, 141 S. Ct. at 1789 (majority opinion).
435 Id. at 1802 (Kagan, J., concurring in part and concurring in the judgment).
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Index of Cases
This Index includes cases listed on the Supreme Court’s “granted and noted” list as of July 2,
2021,436 with the following exceptions: (1) cases in which the Court granted certiorari but
remanded a case, without a merits opinion, for further consideration in light of a decision in a
different case; and (2) cases in which the Court granted a writ of certiorari and set an argument
date, but subsequently removed that argument from its calendar. Cases that the Court
consolidated for argument or decided together in the same opinion are listed together.
The “questions presented” in the Index are adapted from the Supreme Court’s statement of the
questions presented.437 The holdings are summarized from the Supreme Court’s syllabus for the
case, which is prepared by the Supreme Court’s Reporter of Decisions. The docket for each case
can be found by entering the docket number in the Docket Search bar on the Supreme Court’s
website.438 The Court provides hyperlinks to its opinions on the dockets themselves and lists them
by month of issuance on its Opinions of the Court page.439
The American Law Division of CRS has followed selected cases throughout the Court’s term.
Where a prior CRS product offers a description of the lower court’s decision, a preview of the
case as it was presented in the Supreme Court, or analysis of the Supreme Court’s decision, those
products are noted.440 Resources related to non-merits cases and general topics involving the
Court are also identified at the end of the report. Further analysis is available to Congress by
contacting CRS using the contact information on the first page of this report, or by accessing the
Constitution of the United States of America: Analysis and Interpretation (“Constitution
Annotated”) at https://constitution.congress.gov/.
Tanzin v. Tanvir, No. 19-71
Argued:
Decided:
Topics:
10/6/20
12/10/20
Constitutional Law, Civil Rights
Question Presented: Does the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb
et seq., permit suits seeking money damages against individual federal employees?
Holding: The Religious Freedom Restoration Act permits litigants, when appropriate, to obtain
money damages against federal officials in their individual capacities.
Opinion: Justice Thomas (for the Court)
436 Supreme Court of the United States Granted & Noted List: October Term 2020 Cases for Argument As of July 2,
2021, SUPREMECOURT.GOV (July 29, 2021), https://www.supremecourt.gov/orders/20grantednotedlist.pdf. This list
excludes some cases in which the Supreme Court simultaneously granted certiorari and reversed a lower court in a
published per curiam opinion, but did not take merits briefing or hear oral argument.
437 The Supreme Court in many cases restates the question presented as framed by the party advocating for a writ of
certiorari. For some of the listed cases, CRS has adapted this statement of the question for a general audience (for
example, by providing context or detail based on reporting by http://www.SCOTUSBlog.com).
438 Docket Search, SUPREMECOURT.GOV, https://www.supremecourt.gov/docket/docket.aspx (last visited Se
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.