By Andrew Cohen
Recent oral arguments in two key U.S. Supreme Court cases hinted at disappointing results for the Obama administration, according to faculty experts.
In McCullen v. Coakley, argued on January 15, several Justices voiced concern about a Massachusetts law that establishes a 35-foot “content-neutral” buffer zone around health-care facilities that perform abortions. The First Circuit Court of Appeals upheld the law, citing the importance of providing patients with safe, harassment-free access to their reproductive health care.
Many state and municipal buffer-zone laws around the country seek to balance protecting such access as well as free speech. Berkeley Law Professor Kristin Luker, faculty director of the school’s Center on Reproductive Rights and Justice, sees the Massachusetts law as a “narrowly tailored, time-and-place regulation that safeguards prospective patients and clinic employees without offending others’ First Amendment rights.”
The Obama administration joined Massachusetts during oral arguments. The state claimed that the law aims to prevent incidents of violence and harassment outside abortion clinics that occurred in the past, noting that its past buffer-zone law proved ineffective. But several Justices asked how Massachusetts can differentiate between those who want to peaceably protest or consult people outside of the facility and those who intend to be violent or disruptive.
Opponents of the law argue that creating an exception for clinic employees permits “viewpoint discrimination” by favoring pro-abortion speakers over opponents. Luker, an award-winning author and longtime expert on reproductive rights, disagrees: “The law has to have some kind of exemption for the people going in and out of the clinics,” she said. “Otherwise, they too would violate the law whenever they set foot in the buffer zone. Also, as the First Circuit noted, there is no evidence of workers in these facilities actually advocating for abortion.”
In Hill v. Colorado (2000), the Supreme Court upheld a state law that drew a line 100 feet around health-care facilities—and made it illegal for anti-abortion protesters to go within eight feet of anyone within that buffer zone. Since then, Luker noted, the Court twice declined to hear
McCullen—which has been litigated for more than a decade.
But the Court’s composition has changed dramatically, and the dissent in Hill was written by Justice Anthony Kennedy—now the frequent swing vote. The current Court has also shown a propensity for protecting highly controversial speech from government interference.
“This case marks yet another example of how abortion is increasingly being contested at every level of state government,” Luker said. “From zoning laws to health laws to consent laws, we’re seeing a widespread attempt to make abortions more difficult and more stigmatized.”
The true meaning of recess
In NLRB v. Noel Canning, argued on January 13, questions from nearly every Justice indicated skepticism about recent presidential appointments of senior federal officials while the U.S. Senate was in recess. Although the Constitution requires that the Senate confirm such officials before they assume office, the President may act alone in making a “recess appointment” to fill vacancies that arise. To remain in effect, it must be approved by the Senate by the end of the next session of Congress, or the position becomes vacant again.
“The delays we’ve seen in getting top officials into agency positions have important consequences for public policy,” said Professor Anne Joseph O’Connell, Berkeley Law’s associate dean for faculty development and research. “This case could create even more obstacles for federal agencies to fulfill their obligations.”
In January 2012, Obama appointed three members to fill vacancies on the National Labor Relations Board (NLRB). About a month later, three NRLB members—including two of the Obama appointees—affirmed a ruling that the Noel Canning Corporation had committed an unfair labor practice. The company filed for review in the D.C. Circuit Court of Appeals, challenging—among other things—the constitutionality of the President’s appointments.
In a decision inconsistent with those of other federal appeals courts, the D.C. Circuit declared Obama’s recess appointments unconstitutional. The court said such appointment power can only be exercised during recesses between enumerated sessions of Congress, and that the President can make appointments only to vacancies that arise during the recess—not vacancies that already exist.
“The D.C. Circuit’s ruling is a literalist interpretation, because the Recess Appointments Clause of the Constitution describes filling vacancies that happen during ‘the’ Senate recess,” O’Connell said. “I disagree with that interpretation, because at the time of the Constitution and for decades afterward there were no intra-session recess appointments and in the past century there have been dozens. It is at odds with modern practice.”
O’Connell, who clerked for a D.C. Circuit judge as well as Supreme Court Justice Ruth Bader Ginsburg, is a leading national expert on the qualifications and tenure of agency officials, vacancies in agency positions, and patterns of agency rulemaking. Concluding that recess appointment power is only available to presidents between sessions of Congress, O’Connell said, “doesn’t mesh” with the fact that more than 300 federal officials have received such appointments during congressional sessions since 1981.
The question of when vacancies arise “seems even more of a stretch to me than the first,” she said. “This isn’t a partisan issue. Yes, Republican Senate members were mad at some of these appointments, but in the past the Office of Legal Counsel under Republican presidents has argued the opposite of what the D.C. Circuit held. This case is more about separation of powers between our executive and legislative branches.”
The question of whether pro forma sessions prevent recess appointments is a much more difficult question, according to O’Connell, and one the court appeared to be wrestling with during oral arguments.