Path 2
Noel Francisco

Noel Francisco

Noel Francisco, who served as Trump’s solicitor general, has fought for years against abortion access. It’s no surprise he has been floated as a potential Supreme Court pick for Trump. Francisco’s record includes fighting in favor of abortion restrictions, trying to hinder contraception access, and even attempting to require a teenage immigrant to carry an unwanted pregnancy to term.

Noel Francisco On Abortion 

Francisco Called On The Supreme Court To Allow A Louisiana Abortion Restriction To Go Into Effect

Francisco Urged The Supreme Court To Allow A Louisiana Abortion Restriction To Go Into Effect

Francisco Urged The Supreme Court To Allow A Louisiana Abortion Restriction To Go Into Effect. According to CNN, “The Trump administration urged the Supreme Court on Friday to allow a Louisiana abortion access law to go into effect, arguing that it does not pose an unconstitutional burden on women seeking an abortion. […] In Friday’s filing, Solicitor General Noel Francisco told the court in briefs that the law comports with Roe v. Wade, the landmark 1973 Supreme Court decision that legalized abortion nationwide.” [CNN, 1/3/20]

Critics Said The Law Was Medically Unnecessary

Critics Said The Requirements Were Not Medically Necessary. According to CNN, “The law at issue requires doctors to have admitting privileges in a local hospital within 30 miles of the facility where the abortion is performed. Critics say there is no medical justification for the law and are fearful that the case will provide the justices with a chance to chip away at abortion rights.” [CNN, 1/3/20]

Francisco Went To The Supreme Court To Argue Against Allowing An Undocumented Immigrant Teen In U.S. Custody To Obtain An Abortion

Francisco Fought At The Supreme Court To Prevent An Undocumented Immigrant Teenager In U.S. Custody From Obtaining An Abortion

The Trump Administration Fought At The Supreme Court To Keep An Undocumented Immigrant Teenager In U.S. Custody From Obtaining An Abortion. According to the Washington Post, “The Supreme Court on Monday dismissed a lower court’s decision that allowed an undocumented immigrant teenager to obtain an abortion over the protests of the Trump administration. The action, which came in an unsigned opinion without noted dissents, wipes out the lower court’s ruling as precedent. […] The case centers on a Central American teenager, identified in court papers as Jane Doe, who was being held in a government-funded shelter last fall. She had been seeking an abortion since learning, shortly after she crossed the border, that she was pregnant. But the administration said it would not ‘facilitate’ abortions for minors in federal custody.” [Washington Post, 6/4/18]

Francisco Brought The Complaint To The Supreme Court. According to the Washington Post, “That Solicitor General Noel Francisco went to the court with the complaint says much about the political salience of the abortion issue and the changed nature of the administration’s position.” [Washington Post, 6/4/18]

Francisco Argued Against New York Abortion Coverage Protections

Francisco Argued Against An Abortion Coverage Mandate In New York State

Francisco Represented The Roman Catholic Diocese Of Albany In A Case Against An Abortion Coverage Mandate. According to Bloomberg Law, “Judges on New York’s highest court questioned whether the state’s insurance coverage requirements for medically necessary abortions are constitutional, referencing a 2021 US Supreme Court decision at oral arguments Tuesday. The New York Department of Financial Services’ 2017 regulations improperly give the state discretion to ‘pick winners and losers’ when deciding which religious organizations are exempt, said Noel Francisco of Jones Day, arguing for the Roman Catholic Diocese. The regulations, which require health insurance policies in the state to provide coverage for medically necessary abortions, must provide an exemption for religious employers who certify that their purpose is to teach their religious values and who employ and primarily serve those who share the same religious tenets of the employer. But that criteria unconstitutionally burdens religious entities, Francisco said.” [Bloomberg Law, 4/16/24

Francisco Argued To Remove A State Regulation Requiring Group Health Insurers To Offer Medically Necessary Abortions To Employees. According to ALM, “Jones Day partner Noel Francisco asked New York’s top court to remove a state regulation requiring group health insurers to offer medically necessary abortions to employees, in an appeal that stands to have broad implications on the division of religious freedoms and state oversight.” [ALM, 4/16/24]

Francisco Argued Against The ACA’s Contraception Mandate

Francisco Represented A Number Of Groups Arguing Against The Affordable Care Act’s Requirement That Most Employer Health Plans Include Free Contraception

Francisco Challenged The Affordable Care Act’s Requirement That Most Employer Health Plans Include Free Contraception. According to the Washington Spectator, “This argument was made in the 2016 Supreme Court case Zubik v. Burwell by Noel Francisco, now the U.S. solicitor general and then the lawyer representing the Roman Catholic archbishop of Washington, Priests for Life, and several other clients who were challenging the Affordable Care Act’s sound preventive requirement that most employer health care insurance plans include free contraception.” [Washington Spectator, 1/5/18]

Noel Francisco On The Affordable Care Act

Francisco Called The Affordable Care Act Illegal

Francisco Said The Trump Administration Would Not Defend The ACA Because It Was Illegal

Francisco Said That The Affordable Care Act Was Illegal Because Congress Eliminated The Individual Mandate And The Trump Administration Would Not Defend It In Court. According to NPR, “In a filing with the U.S. Supreme Court, the Trump administration has reaffirmed its position that the Affordable Care Act in its entirety is illegal because Congress eliminated the individual tax penalty for failing to purchase medical insurance. Solicitor General Noel Francisco, the government’s chief advocate before the Supreme Court, said in a brief that the other provisions of Obamacare are impossible to separate from the individual mandate and that ‘it necessarily follows that the rest of the ACA must also fall.’” [NPR, 6/26/20]

Francisco Argued That The Individual Mandate Could Not Be Separated From The Other Provisions Of The ACA, So The Entire Law Must “Fall.” According to NPR, “Solicitor General Noel Francisco, the government’s chief advocate before the Supreme Court, said in a brief that the other provisions of Obamacare are impossible to separate from the individual mandate and that ‘it necessarily follows that the rest of the ACA must also fall.’” [NPR, 6/26/20]

The Supreme Court Upheld The ACA 

The Supreme Court Upheld The Affordable Care Act In A 7-2 Decision. According to Oyez, “The plaintiffs lack standing to challenge the Affordable Care Act’s minimum essential coverage provision. Justice Stephen Breyer authored the 7-2 majority opinion of the Court. To have standing to bring a claim in federal court, a plaintiff must ‘allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.’ No plaintiff in this case has shown such an injury.” [Oyez, viewed 6/25/24

Noel Francisco On Immigration

Francisco Said The Trump Administration Had The Right To End DACA

Francisco Argued That The Trump Administration Had The Right To End DACA

Francisco Argued That The Trump Administration’s Decision To End The Deferred Action for Childhood Arrivals Program Was Legal Because DACA, “At Worst, It Is Illegal.” According to CNN, “The Justice Department told the Supreme Court late Monday night that the Trump administration acted lawfully when it decided in 2017 to wind down the Deferred Action for Childhood Arrivals program, which protects undocumented immigrants who came to the United States as children from deportation. ‘At best, DACA is legally questionable,’ Solicitor General Noel Francisco argued in legal briefs. ‘At worst, it is illegal.’ Francisco stressed that the executive branch was within its authority to phase out the Obama-era program and that the lower courts ‘erred’ in ‘second-guessing’ the Department of Homeland Security’s ‘entirely rational judgment to stop facilitating ongoing violations of federal law on a massive scale.’” [CNN, 8/20/19

The Supreme Court Blocked The Trump Administration From Dismantling DACA 

The Supreme Court Blocked The Trump Administration From Dismantling DACA In A 5-4 Decision. According to NPR, “In a major rebuke to President Trump, the U.S. Supreme Court has blocked the administration’s plan to dismantle an Obama-era program that has protected 700,000 so-called DREAMers from deportation. The vote was 5-4, with Chief Justice John Roberts writing the opinion.” [NPR, 6/18/20

Noel Francisco On LGBTQ Rights

Francisco Opposed LGBTQ Rights

Francisco Said That Gay And Transgender Workers Did Not Have Federal Protection Against Discrimination 

Francisco Argued That Gay And Transgender Workers Were Not Protected By Federal Civil Rights Law. According to NBC News, “The Trump administration Friday filed a brief with the Supreme Court arguing that gay workers are not protected by federal civil rights law. The filing came exactly one week after the administration argued the same for transgender workers. The brief was submitted in combined cases concerning Gerald Bostock, a gay man fired from his job as a child welfare services worker by Clayton County, Georgia, and the late Donald Zarda, a gay man fired from his job as a skydiving instructor by New York company Altitude Express. The Bostock and Zarda cases are two of three cases concerning LGBTQ workers’ rights that the Supreme Court is expected to hear this fall. This latest brief, submitted by Solicitor General Noel J. Francisco and other Department of Justice attorneys, argues that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin, ‘does not bar discrimination because of sexual orientation.’” [NBC News, 8/23/19

The Supreme Court Said The Civil Rights Act Of 1964 Covered LGBTQ Workers 

The Supreme Court Ruled 6-3 That The 1964 Civil Rights Act Protected LGBTQ Workers From Discrimination. According to the Associated Press, “The Supreme Court ruled Monday that a landmark civil rights law protects gay, lesbian and transgender people from discrimination in employment, a resounding victory for LGBT rights from a conservative court. The court decided by a 6-3 vote that a key provision of the Civil Rights Act of 1964 known as Title VII that bars job discrimination because of sex, among other reasons, encompasses bias against LGBT workers.” [Associated Press, 6/15/20]

Noel Francisco And Trump’s Travel Ban

Francisco Argued For Trump’s Travel Ban 

Francisco Argued In Favor Of The Constitutionality Of Trump’s Travel Ban Before The Supreme Court

April 2018: Francisco Argued Before The Supreme Court That Trump Had The Authority To Institute A Travel Ban From Muslim-Majority Countries. According to ABC News, “In its final oral argument of the term, the U.S. Supreme Court on Wednesday heard one of the most highly-anticipated cases of the Trump presidency: Travel Ban 3.0. After two failed attempts by the Trump administration to bar immigration to the United States from certain foreign countries, Trump signed a Presidential Proclamation on Sept. 24, 2017, that indefinitely restricted most travel from the majority-Muslim countries of Iran, Libya, Somalia, Syria and Yemen — linking the restrictions to those countries’ purported vetting deficiencies. Solicitor General Noel Francisco argued for the administration that the latest ban was the result of a ‘worldwide multi-agency review,’ was based on ‘foreign policy judgment’ rather than religious animus, and excludes ‘almost all the world – including almost all the majority-Muslim world.’” [ABC News, 4/25/18

Francisco Told The Court To Ignore Donald Trump’s Statements As A Candidate And Argued That The Travel Ban Was Not A Muslim Ban. According to ABC News, “Francisco urged the court not to focus on the words of candidate Donald Trump, saying that a president-elect taking the oath of office ‘marks a fundamental transformation.’ ‘This is not a Muslim ban. If it was it would be the worst Muslim ban in the world,’ Francisco said, because it excludes the vast majority of the Muslim world.’” [ABC News, 4/25/18]

The Supreme Court Ruled 5-4 In Favor Of Trump 

The Supreme Court Sided With Trump In A 5-4 Decision. According to Oyez, “The Court assumed without deciding that the plaintiffs’ claims are justiciable and held that the Proclamation does not violate the president’s statutory authority or the Establishment Clause. The Court did not resolve the question whether the district court’s global injunction is impermissibly overbroad. Chief Justice John Roberts authored the opinion for the 5–4 majority.” [Oyez, viewed 6/25/24

Noel Francisco And Executive Power

Francisco Argued For An Expansive View Of Executive Power

Francisco Argued That Trump Did Not Have To Respond To A Subpoena From New York 

Francisco Argued Before The Supreme Court That There Limits As To What Authorities The President Of The United States Had To Respond To. According to the New Republic, “While Americans generally can’t shield themselves or their records from grand juries and Congress, the president argued that he could do so because of his unusual constitutional status. ‘He is the sole person in whom all executive power is vested,’ Solicitor General Noel Francisco told the justices at oral arguments in May. ‘And so that necessarily implies that there are limits on what others can do to unduly burden him in his ability to do his job.’” [New Republic, 7/9/20

The Supreme Court Ruled That The President Did Not Have Absolute Immunity From State Actions  

The Supreme Court Ruled 7-2 That The President Was Not Immune From Subpoenas From State Courts. According to Oyez, “Article II and the Supremacy Clause neither categorically preclude, nor require a heightened standard for, the issuance of a state criminal subpoena to a sitting President. All nine justices agreed that a President does not have absolute immunity from the issuance of a state criminal subpoena, but a seven-justice majority voted to affirm the decision of the Second Circuit below.” [Oyez, viewed 6/25/24]

Francisco Argued That The Judicial Branch Could Not Reject Prosecutorial Decisions From The Executive Branch 

Francisco Argued That The Judicial Branch Did Not Have The Authority To Reject Prosecutorial Decisions Made By The Executive Branch In The Michael Flynn Case. According to the New York Times, “Most recently, Mr. Francisco wrote a brief asking an appeals panel to force Judge Emmet G. Sullivan of the United States District Court for the District of Columbia to grant the Justice Department’s motion to withdraw its case against Michael T. Flynn, Mr. Trump’s first national security adviser. Mr. Francisco essentially argued that the courts did not have the authority to reject prosecutorial decisions made by the executive branch.” [New York Times, 6/11/20

The Case Was Dismissed After Michael Flynn Was Pardoned 

The Case Was Dismissed As Moot After Trump Pardoned Flynn. According to CNN, “Judge Emmet Sullivan of the DC District Court on Tuesday dismissed Michael Flynn’s criminal case as moot, following Flynn’s pardon by President Donald Trump, ending a tortured three-year-long proceeding.” [CNN, 12/8/20

Francisco Argued That Congress Did Not Have The Right To Grand Jury Materials In An Impeachment Investigation 

Francisco Argued That Congress Did Not Have The Right To See Redacted Materials From The Mueller Report. According to the New York Times, “This May, the Supreme Court temporarily blocked Congress from seeing redacted portions of the special counsel’s report that contained grand jury information. Democrats had argued that they needed the materials as part of their impeachment proceedings against the president. Mr. Francisco had argued that the materials should not be released because Congress did not have the right to obtain grand jury materials as part of an impeachment proceeding.” [New York Times, 6/11/20

The Case Was Vacated After Trump Left Office

July 2021: The Supreme Court Vacated The Judgment After Trump’s Term Ended. According to SCOTUSblog, “The motion to vacate the judgment is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the District of Columbia Circuit with instructions to direct the District Court to vacate the October 25, 2019 order granting the application of the Committee on the Judiciary, U. S. House of Representatives. See United States v. Munsingwear, Inc., 340 U. S. 36 (1950).” [SCOTUSblog, viewed 6/25/24

Noel Francisco And The Census

Francisco Argued That The Census Could Add A Citizenship Question

Francisco Argued That The Trump Administration Had The Authority To Ask About Citizenship Status On The 2020 Census

2019: Francisco Argued That The Trump Administration Could Add A Question About Citizenship To The Census. According to the New York Times, “The Supreme Court’s conservative majority seemed ready on Tuesday to allow the Trump administration to add a question on citizenship to the 2020 census, which critics say would undermine its accuracy by discouraging both legal and unauthorized immigrants from filling out the forms. […] Solicitor General Noel J. Francisco, representing the Trump administration, acknowledged that the question could depress participation. But he said the information it would yield was valuable. ‘At the end of the day,’ he said, ‘if you add any particular question onto the census, you’re always trading off information and accuracy.’” [New York Times, 4/23/19

The Supreme Court Rejected The Trump’s Administration’s Justification 

The Supreme Court Disagreed In A 5-4 Decision, Ruling That The Trump Administration Justification “Seemed To Have Been Contrived.” According to the Associated Press, “During arguments in the case at the Supreme Court in April it seemed as though the Trump administration would win because Chief Justice John Roberts and other conservatives appointed by Republican presidents did not appear to see anything wrong with Commerce Secretary Wilbur Ross’ decision to add the question. Ultimately, however, Roberts joined the court’s four more liberal members in saying the administration’s current justification for the question ‘seems to have been contrived.’ The Trump administration had said the question was being added to aid in enforcement of the Voting Rights Act, which protects minority voters’ access to the ballot box. But the Justice Department had never previously sought a citizenship question in the 54-year history of the landmark voting rights law. ‘Altogether, the evidence tells a story that does not match the explanation the secretary gave for his decision,’ Roberts wrote.” [Associated Press, 6/27/19

Noel Francisco And Corruption

Francisco Defended Bob McDonnell In His Public Corruption Appeal 

Francisco Argued To Overturn The Conviction Of Bob McDonnell

2016: Francisco Represented Former Virginia Governor Bob McDonnell Before The Supreme Court In His Attempt To Overturn His Bribery Convictions. According to the Washington Post, “Francisco had originally been named as the No. 2 in the solicitor general’s office, which represents the federal government in ­appellate courts. He might be best known as the lawyer who ­represented former Virginia ­governor Robert F. McDonnell last year when the Supreme Court unanimously overturned McDonnell’s conviction on corruption charges.” [Washington Post, 3/8/17]

2014: McDonnell Was Convicted On Eleven Counts Of Conspiracy, Bribery, And Extortion For Trading Favors With A Vitamin Executive While Governor. According to the New York Times, “Former Gov. Bob McDonnell of Virginia and his wife, Maureen, were convicted of corruption in federal court on Thursday, after a trial that shattered the political career of the onetime Republican star and peeled back the couple’s private life to the bone. As he was pronounced guilty on 11 counts of conspiracy, bribery and extortion, […] The defense used the self-debasing portrait to argue that the McDonnells were too estranged to conspire criminally to trade favors with the vitamin executive, Jonnie R. Williams Sr. The jury, which heard from 67 witnesses, had to decide whether gifts from Mr. Williams and Mr. McDonnell’s actions on his behalf over two years added up to bribery and extortion. At issue was whether the McDonnells accepted the largess with corrupt intent. They were not forbidden under Virginia ethics laws from taking $120,000 in undocumented loans from Mr. Williams, nor the gifts he bestowed — such as a custom golf bag for the governor, Louis Vuitton shoes for the first lady, and a $15,000 check for their daughter’s wedding at a time the first couple owed $31,000 on their credit cards and were hemorrhaging money on beachfront property.” [New York Times, 9/5/14

The Supreme Court Overturned The Conviction 

The Supreme Court Unanimously Overturned McDonnell’s Conviction. According to SCOTUSblog, “The federal bribery statute, 18 U.S.C. § 201, makes it a crime for a public official to ‘receive or accept anything of value’ in exchange for being ‘influenced in the performance of any official act.’ An ‘official act’ is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy’; that question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official. To qualify as an ‘official act,’ the public official must make a decision to take an action on that question or matter, or agree to do so. Setting up a meeting, talking to another official, or organizing an event — without more — does not fit that definition of ‘official act.’ Because jury instructions in the case of former Virginia governor Bob McDonnell were erroneous, and those errors are not harmless beyond a reasonable doubt, McDonnell’s convictions are vacated. Judgment: Vacated and remanded, 8-0, in an opinion by Chief Justice Roberts on June 27, 2016.” [SCOTUSblog, viewed 6/25/24

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