Two Federal Appellate Courts Uphold Subpoenas for Trump Accounting Records  (Updated 11/22/19)   

Over the last two weeks two federal appellate courts have upheld different subpoenas to the Mazars USA accounting firm for records relating to Donald J. Trump.

D.C. Circuit Court of Appeals

As discussed in a prior post, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on October 11, 2019, upheld (2-1) a subpoena by an U.S. House of Representatives committee to Mazars for certain Trump accounting records.

A month later, on November 13, that court denied, 8-3, Trump’s motion for the full (en banc) court to review that decision of the three-judge panel.[1] As is typical, there was no opinion by the eight judges denying the motion. However, two of the three dissenting judges, wrote opinions.

Judge Gregory Katsas joined by Judge Karen Henderson, said, “this case presents exceptionally important questions regarding the separation of powers among Congress, the Executive Branch, and the Judiciary. For the second time in American history, an Article III court has undertaken to enforce a congressional subpoena for the records of a sitting President. The first time this was attempted with then President Nixon, this court refused to enforce the subpoena, stressing “the availability of impeachment foreclosed any conclusion that the records at issue were ‘demonstrably critical to the responsible fulfillment’ of Congress’s legislative prerogatives, even when Congress was investigating significant allegations of presidential misconduct. Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731–33 (D.C. Cir. 1974) (en banc).”

The other dissenting opinion, by Judge Neomi Rao, who also was joined by Judge Henderson, emphasized that this subpoena was not really justifiable by the congressional power to enact new laws. It was really a subpoena looking for impeachable offenses, which is not part of the legislative power.

Afterwards an attorney for Trump said that he would now petition the U.S. Supreme Court to review the case.

And on November 15, his attorneys did just that by asking Chief Justice John Roberts, who is responsible for emergency requests from the D.C. Circuit, for a stay of proceedings while the Supreme Court considers his petition for review of the merits of the lower court’s decision. This request argued for such a stay for the following reasons: (I) “There is a reasonable probability that the Court will grant certiorari to determine whether the Committee’s subpoena is lawful.” (II) “There is a fair prospect that this Court will reverse the D.C. Circuit’s decision upholding the subpoena.” (III) “Applicants will suffer irreparable harm without a stay.” (IV) “The balance of equities and relative harms weigh strongly in favor of granting a stay.” [2]

On November 18, the attorneys for the House Committee filed a letter with the Supreme Court announcing that they planned to file an opposition to the requested stay on November 22, but that out of courtesy to the Court the Committee does not oppose “a short ten-day administrative stay, beginning on November 20, 2019, to enable the Court to receive an opposition by the Committee and then rule on the request for a stay. Thereafter the same day, Chief Justice Roberts ordered “that the mandate of . . . [the D.C. Circuit] is hereby stayed pending receipt of a response, due on or before Thursday, November 21, 2019, by 3 p.m. ET, and further order of the undersigned or of the Court.”[3]

One of Trump’s attorneys, William S. Consovoy, “said the Supreme Court’s intervention was imperative. Under the lower court’s decision, ‘any committee of Congress can subpoena any personal information from the President; all the committee needs to say is that it’s considering legislation that would force Presidents to disclose that same information. Given the temptation to dig up dirt on political rivals, intrusive subpoenas into personal lives of Presidents will become our new normal in times of divided government — no matter which party is in power. If every committee chairman is going to have this unbounded authority, this Court should be the one to say so.”

In accordance with that order, the House Committee on November 21 submitted its opposition to the Trump motion. It argued that the Court’s precedents involving Presidents Richard M. Nixon and Bill Clinton make clear that the chief executive enjoys no special privilege to be free from investigation or legal action and that a stay would cause irreparable harm to the Congress and the public, outweighing whatever harm enforcement of the subpoena would cause Trump and Mazars. The House Committee also argued that if the Court agrees to a stay of a lower court’s order, the Court should expedite a decision on whether to order a full briefing and a hearing on the case.[4]

Second Circuit Court of Appeals

Such a petition to the Supreme Court would join a similar one by Trump from a November 4 unanimous decision by a three-judge panel of the U.S. Court of Appeals for the Second Circuit in New York City upholding a state grand jury subpoena for accounting records from the Mazars firm relating to a probe into whether the accounting for payments Mr. Trump’s former lawyer, Michael Cohen, made to two women violated state laws against falsifying business documents. .[5]

During the oral appellate argument of this case, one of the judges asked the Trump attorney if local authorities could investigate President Trump if he shot someone on Fifth Avenue in New York City, and the attorney said the authorities could not so investigate.

After the Second Circuit’s decision, Jay Sekulow, an attorney for Trump, said that Trump would ask the U.S. Supreme Court to review the case because, he claimed, ““The issue raised in this case goes to the heart of our republic. The constitutional issues are significant.”

In fact, on November 14, Trump petitioned the Supreme Court for a review of the following issues in this case: (I) “Whether the President is absolutely immune is an important and unsettled issue of federal law that the Court should resolve” and (II)   “The Second Circuit incorrectly decided this important immunity question.” The petition also alleged, “For the first time in our nation’s history, a state or local prosecutor has launched a criminal investigation of the President of the United States and subjected him to coercive criminal process. . . . Politically motivated subpoenas like this one are a perfect illustration of why a sitting president should be categorically immune from state criminal process.”[6]

In a contemporaneous statement, Sekelow stated, “”The Second Circuit decision is wrong and should be reversed. In our petition, we assert that the subpoena violates the U.S. Constitution and therefore is unenforceable. We are hopeful that the Supreme Court will grant review in this significant constitutional case and reverse the dangerous and damaging decision of the appeals court.”

The Department of Justice also filed with the Supreme Court an amicus brief supporting Trump’s petition while saying that there are instances when a local prosecutor might legally seek a president’s documents — but that this was not one of them.[7]

Trump filed this petition so immediately because of his attorneys’ agreement with the New York prosecuting attorneys whereby the latter “agreed not to seek the tax returns until the case is resolved by the Supreme Court” so long as Trump agreed to “a very quick briefing schedule, one that would allow the Supreme Court to announce whether it will hear the case as soon as next month and to issue a decision by June, as the presidential election enters its final stages.”

Conclusion

Now the parties to these cases will be joined by all of us in the U.S. and elsewhere for the briefing on whether the Supreme Court should grant such review, the Court’s decision on these petitions and, if review is granted, the briefing and oral arguments in that court and its ultimate decision (in the midst of the 2020 presidential campaign).

==================================

[1]  Order, Trump v. Mazars USA, LLP and Committee on Oversight and Reform of the U.S. House of Representatives, No. 19-5142 (D.C. Cir. Nov. 13, 2019); Savage, Court Rejects Trump’s Appeal in Fight to Keep Financial Records from Congress, N.Y. Times (Nov. 13, 2019); Reuters, U.S. Appeals Court Again Backs House Request for Trump Tax Documents, N.Y. Times (Nov. 14, 2019).

[2] Emergency Application for a Stay of Mandate Pending the Filing and Disposition of a Petition for a Writ of Certiorari, Trump v. Mazars USA, LLP, Committee on Oversight and Reform of the U.S. House of Representatives, No. 19A545 (Nov. 15, 2019); Liptak, Trump Again Asks Supreme Court to Block Release of His Financial Records, N.Y. Times (Nov. 15, 2019); Hurley & Freifeld, Trump asks Supreme Court to block disclosure of financial records to Congress, Reuters (Nov. 15, 2019); Barnes & Marimow, Trump appeals to Supreme Court again, this time to block House committee’s subpoena seeking his financial records, Wash. Post (Nov. 15, 2019).

[3] Letter, House Committee to Clerk of Supreme Court, Trump v. Mazars USA, No. 19A545 (Nov. 18, 2019); Order, Trump v. Mazars USA, No. 19A545 (Nov. 18, 2019) Trump v. Mazars USA, No. 19A545 (Nov. 18, 2019); Barnes, Supreme Court puts temporary hold on Trump financial records ruling, Wash. Post (Nov. 18, 2019); Liptak, Chief Justice Gives Trump Temporary Reprieve in Financial Records Case, N.Y. Times (Nov. 18, 2019).

[4] Barnes, Supreme court precedents do not shield Trump financial records, House, prosecutors argue, Wash. Post (Nov. 21, 2019); Reuters, Democrats Urge U.S. Supreme Court Not to Protect Trump Financial Records, N.Y. Times (Nov. 21, 2019); House Committee, Opposition to Emergency Application for a Stay of Mandate, No. 19A545 (Sup. Ct. Nov. 21, 2019).

[5] Opinion, Trump v. Vance, No. 19-3204 (2d Cir. Nov. 4, 2019); Weiser & Liptak, Trump Taxes: Appeals Court Rules President Must Turn Over 8 Years of Tax Returns, N.Y. Times (Nov. 14, 2019); Neumeister, Appeals court agrees Trump tax returns can be turned over, Wash. Post (Nov. 4, 2019).

[6] Petition for Writ of Certiorari, Trump v. Vance, No. —- (U.S. Sup Ct. Nov. 14, 2019); Liptak, Trump Asks Supreme Court to Bar Release of His Tax Returns, N.Y. Times (Nov. 14, 2019); Barnes & Marimow, Trump asks Supreme Court to shield his tax returns from prosecutors, setting up historic separation-of-powers showdown, Wash. Post (Nov. 14, 2019); Bravin, Kendall & Ramey, Trump Asks Supreme Court to Block New York Subpoena for Tax Records, W.S.J. (Nov. 14, 2019); Samuelson & Gerstein, Trump lawyers take fight over tax returns to Supreme Court, Politico (Nov. 14, 2019); deVogue, Trump asks Supreme Court to block subpoena for tax returns, CNN.com (Nov. 14, 2019).

[7] Barnes, Supreme court precedents do not shield Trump financial records, House, prosecutors argue, Wash. Post (Nov. 21, 2019); Reuters, Democrats Urge U.S. Supreme Court Not to Protect Trump Financial Records, N.Y. Times (Nov. 21, 2019); Liptak, Justice Dept. Urges Supreme Court to Back Trump in Tax Records Case, N.Y. Times (Nov. 22, 2019); Vance, Jr.,  Brief in Opposition, No. 19-635 (Sup. Ct. Nov. 21, 2019).

 

 

 

 

Two Federal Appellate Courts Uphold Subpoenas for Trump Accounting Records

Over the last two weeks two federal appellate courts have upheld different subpoenas to the Mazars USA accounting firm for accounting records relating to Donald J. Trump.

D.C. Circuit Court of Appeals

As discussed in a prior post, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on October 11, 2019, upheld (2-1) in an opinion by Judge David S. Tatel a subpoena by an U.S. House of Representatives committee to Mazars, USA for certain accounting records of Donald J. Trump.

A month later, on November 13, that court denied, 8-3, Trump’s motion for the full (en banc) court to review that decision of the three-judge panel.[1] As is typical, there was no opinion by the eight judges denying the motion. However, two of the three dissenting judges, wrote opinions.

Judge Gregory Katsas joined by Judge Karen Henderson, said, “this case presents exceptionally important questions regarding the separation of powers among Congress, the Executive Branch, and the Judiciary. For the second time in American history, an Article III court has undertaken to enforce a congressional subpoena for the records of a sitting President. The first time this was attempted with then President Nixon, this court refused to enforce the subpoena, stressing “the availability of impeachment foreclosed any conclusion that the records at issue were ‘demonstrably critical to the responsible fulfillment’ of Congress’s legislative prerogatives, even when Congress was investigating significant allegations of presidential misconduct. Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731–33 (D.C. Cir. 1974) (en banc).”

The other dissenting opinion, by Judge Neomi Rao, who also was joined by Judge Henderson, emphasized that this subpoena was not really justifiable by the congressional power to enact new laws. It was really a subpoena looking for impeachable offenses, which is not part of the legislative power.

Afterwards an attorney for Trump said that he would now petition the U.S. Supreme Court to review the case.

Second Circuit Court of Appeals

Such a petition would join a similar one by Trump from a November 4 unanimous decision by Chief Judge Robert Katzmann for a three-judge panel of the U.S. Court of Appeals for the Second Circuit in New York City upholding a subpoena by the District Attorney of the County of New York in Manhattan for similar accounting records from the Mazars accounting firm.[2]  During the oral argument of this case, one of the judges asked the Trump attorney if local authorities could investigate President Trump if he shot someone on Fifth Avenue in New York City, and the attorney said the authorities could not so investigate.

After that decision, Jay Sekulow, an attorney for Trump, said that Trump would ask the U.S. Supreme Court to review the case because, he claimed, ““The issue raised in this case goes to the heart of our republic. The constitutional issues are significant.”

Conclusion

Now the parties to these cases will be joined by all of us in the U.S. and elsewhere for the briefing on whether the Supreme Court should grant such review, the Court’s decision on these petitions and, if review is granted, the briefing and oral arguments in that court and its ultimate decision (in the midst of the 2020 presidential campaign).

============================

[1]  Order, Trump v. Mazars USA, LLP and Reform of the U.S. House of Representatives, No. 19-5142 (D.C. Cir. Nov. 13, 2019); Savage, Court Rejects Trump’s Appeal in Fight to Keep Financial Records from Congress, N.Y. Times (Nov. 13, 2019); Reuters, U.S. Appeals Court Again Backs House Request for Trump Tax Documents, N.Y. Times (Nov. 14, 2019).

[2] Opinion, Trump v. Vance, No. 19-3204 (2d Cir. Nov. 4, 2019); Weiser & Liptak, Trump Taxes: Appeals Court Rules President Must Turn Over 8 Years of Tax Returns, N.Y. Times (Nov. 4, 2019); Neumeister, Appeals court agrees Trump tax returns can be turned over, Wash. Post (Nov. 4, 2019)

 

 

Courts Reject Lawsuit Challenging U.S. Senate’s Filibuster Rule

Today is Election Day in the U.S. Most public opinion polls and political commentators say that the Republican Party is likely to emerge from the election with at least a simple majority in the U.S. Senate, i.e., more than 50 Senate seats. As a Democrat I lament this likely result and probably should be glad that the Senate’s filibuster rule will provide the Democrats in the Senate with a means to block at least some of the Republican-backed measures in the next Session of Congress. But I am not pleased with the possible use of the filibuster by the Senate Democrats. I have believed, and still believe, that the filibuster rule is an abomination and should be eliminated, as has been discussed in many prior posts.

Such elimination, however, will not come from the courts.

As discussed in a prior post, on May 14, 2012, Common Cause, a non-profit organization, joined by four members of the U.S. House of Representatives and three private citizens commenced a lawsuit challenging the constitutionality of U.S. Senate Rule XXII that requires at least 60 votes to stop debate and proceed to a vote on the merits of a bill or other proposal. In other words, the rule that permits filibusters.

The U.S. District Court for the District of Colombia on December 21, 2012, dismissed the complaint in the case. (Common Cause v. Biden, 909 F. Supp. 2d 9 (D.D.C. 2012).) The court held that none of the plaintiffs had standing to bring the case and that the case presented a non-justiciable political question. This decision also was covered in a prior post.

On April 15, 2014, the U.S. Court of Appeals for the District of Colombia Circuit unanimously affirmed the dismissal of the complaint, but on different grounds.

According to the Court of Appeals, the plaintiffs failed to sue the proper defendant: the U.S. Senate or a U.S. Senator. The reason this was not done is apparent. The U.S. “Constitution’s Speech or Debate Clause provides that ‘for any Speech or Debate in either House,’ Senators and Representatives ‘shall not be questioned in any other Place.’ U.S. CONST. art I, § 6. The Clause confers immunity for any act that falls ‘within the sphere of legitimate legislative activity.’ Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 503 (1975); see also Kilbourn v. Thompson, 103 U.S. 168, 204 (1880) (the Clause covers all ‘things generally done in a session of the House [or Senate] by one of its members in relation to the business before it’). And it protects not only elected legislators but their aides, to whom legislative work is delegated. See Gravel v. United States, 408 U.S. 606, 616-18 (1972). That is, the Clause covers aides when their conduct ‘would be a protected legislative act if performed by the Member himself.’ Id. at 618.”

As a result, the Court of Appeals held it had no jurisdiction to decide the case on the merits.

On November 3, 2014, the case ended with the U.S. Supreme Court’s denial of the plaintiffs’ petition for a writ of certiorari, i.e., refusal to hear the case on the merits. (Common Cause v. Biden, No. 14-253 (U.S. Sup. Ct. Nov. 3, 2014).)

Common Cause immediately issued a statement criticizing the Supreme Court’s action. Its President, Miles Rapoport said, “The Supreme Court’s refusal to hear Common Cause’s case challenging the constitutionality of the U.S. Senate’s filibuster rule is both shortsighted and ominous. Instead of protecting debate, the 60-vote filibuster rule has shut down discussion on important legislation, from a living wage to addressing climate change.” Rapoport added, “the extreme use of the filibuster has led to partisan gridlock and dysfunction that ultimately robs the American people of a Senate that should be responsive to the needs of our country.” Moreover, “the Supreme Court let stand a DC Circuit Court of Appeals decision that makes it logically impossible to challenge Senate rules that violate the Constitution.”

Although I share Common Cause’s disappointment in the failure to have the filibuster rule eliminated, I am not surprised by the courts’ refusal to treat the issue on the merits. Indeed, courts in our constitutional system should not be deciding issues like this.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Federal Appellate Court Allows Lawsuit by Guantanamo Detainees

On February 11th the U.S. Court of Appeals for the District of Columbia Circuit in Washington, D.C. ruled, 2 to 1, that the federal courts had jurisdiction over habeas corpus petitions by three detainees challenging their being subjected to force-feeding at  the U.S. Naval Station at Guantanamo Bay, Cuba.

Therefore, the court reversed the district court’s dismissal of the petitions and remanded the cases to that court for further proceedings. (Aamer v. Obama, No. 13-5223 (D.C. Cir. Feb. 11, 2014).)[1]

These claims arose after a major hunger strike at Guantánamo a year ago. Detainees who lost sufficient weight were forced to eat a nutritional supplement.

The Majority Opinion

1. Federal courts’ jurisdiction.

The key issue for the court was whether habeas jurisdiction was forbidden by section 7(1) of the Military Commissions Act of 2006 (“MCA”), which provided as follows:

  • “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”
Judge David S. Tatel
Judge David S. Tatel

In reaching its conclusion that this provision did not foreclose jurisdiction, the court in an opinion by Circuit Judge David S. Tatel that was joined by Circuit Judge Thomas B. Griffith started with the U.S. Supreme Court’s decision in Boumediene v. Bush, 553 U.S. 723 (2008).

In Boumediene the Supreme Court held that this statutory section was unconstitutional under Article One, Section 9, Clause 2 of the U.S, Constitution (the Suspension Clause), which states, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” This was so, held the Supreme Court, because there was no other means for a Guantanamo detainee to attempt to show that he was being held pursuant to an erroneous application or interpretation of relevant law before a court with the power to order his conditional release.

The next step in the analysis was determining that the D.C. Circuit’s own subsequent decisions had decided that Boumediene had invalidated section 7(1) of the MCA for all habeas petitions by Guantanamo detainees. As a result, the determinative issue for the majority in Aamer was whether these petitioners’ claims were the sort that properly could be raised in habeas petitions.

The circuit court then concluded that these claims were properly within the scope of habeas corpus. This was so, the majority stated, because (a) the Supreme Court had suggested that habeas covers claims challenging conditions of confinement while leaving the issue open for that Court’s decision in a future case; (b) the D.C. Circuit’s own binding precedents had established that “one in custody may challenge the conditions of his confinement “ by a habeas petition; and (c) “the weight of the reasoned precedent” in other circuits had reached the same conclusion.

2. Preliminary injunction.

The detainees on appeal also challenged the district court’s denial of their requests for preliminary injunctive relief against their force-feeding, but the D.C. Circuit affirmed that denial because they had not shown likelihood of success on the merits.

This was so even though the appellate court said,”[W]e have no doubt that force-feeding is a painful and invasive process that raises serious ethical concerns.” But “it is not enough for us to say that force-feeding may cause physical pain, invade bodily integrity, or even implicate petitioners’ fundamental individual rights.”

The majority in Aamer recognized that this claim for injunctive relief had to be evaluated under Turner v. Safley, 482 U.S. 78 (1987), which held that “the legality of a prison regulation that ‘impinges on’ an inmate’s constitutional rights” must be upheld if it “’is reasonably related to legitimate penological interests.’”

Here, said the majority, the government had asserted two penological interests: “preserving the lives of those in its custody and maintaining security and discipline in the detention facility.”  These were legitimate interests as “the overwhelming majority of courts have concluded . . . that absent exceptional circumstances prison officials may force-feed a starving inmate actually facing the risk of death.”

The Dissent

Senior Judge Stephen F. Williams’ dissenting opinion concluded that the majority should have followed what he deemed to be Congress’s intentions in enacting the MCA and affirmed the dismissal of the cases. Congress, he said, “unmistakably sought to prevent the federal courts from entertaining claims based on detainees’ conditions of confinement.” “Such evident congressional intent would seem to counsel a cautious rather than a bravura reading” of whether such claims fell into the category of habeas corpus lawsuit.

Conclusion

We now wait to find out what the government will do. Ask the entire D.C. Circuit (en banc) to rehear the case?   Petition the U.S. Supreme Court to hear the case? Or return to the district court and litigate the claims there?

The majority in this case emphasized that they were only addressing the likelihood of the petitioners’ succeeding on their claims for preliminary injunctive relief, and not the actual merits. But the majority’s analysis and language, in my opinion, suggests that it is highly unlikely that the petitioners would succeed on the merits.

This case is not the only one involving Guantanamo detainees before the D.C. Circuit.

On February 21, 2014, Judge Tatel joined by Circuit Judges Janice Rogers Brown and A. Raymond Randolph heard oral arguments in an appeal from a dismissal of a complaint for money damages by six such detainees against former Defense Secretary Donald Rumsfeld and former U.S. military officials for alleged torture, religious abuse and other mistreatment at Guantanamo. (Allaithi v. Rumsfeld, No. 13-5096 (D.C. Cir.).) The main issues in this case are the following:

  • whether the claims are barred by the Westfall Act (28 U.S.C. sec. 2679), which makes lawsuits against the U.S. the exclusive remedy for injury “arising or resulting from the negligent or wrongful act or omission of any [government] employee while acting within the scope of his office or employment;” and
  • whether the defendants are immune from such a suit.

A decision on this case should issue later this year.


[1] The D.C. Circuit’s opinion was reported in the New York Times and Associated Press. Judge Tatel is a University of Chicago Law School classmate and friend of the blogger.

U.S. Supreme Court Invalidates Key Provision of Voting Rights Act of 2006

U.S. Supreme Court Building
U.S. Supreme Court Building

 

As widely reported, the U.S. Supreme Court in Shelby County v. Holder recently held unconstitutional a key provision of the Voting Rights Act of 2006.[1]

That provision, section 4, which was part of the original statute enacted in 1965, established a formula to determine which states were subject to pre-clearance by the U.S. Department of Justice or a three-judge federal district court of any changes to the state’s voting procedures. Such pre-clearance approval could be obtained only if the proposed change was shown to have neither “the purpose [nor] the effect of denying or abridging the right to vote on account of race or color.”

Section 4’s formula, as amended in 1975, established as “covered jurisdictions” those States or political subdivisions that had maintained a test or device (literacy or knowledge tests, good moral character requirements, vouchers from registered voters, providing English-only voting material s in places where over 5% of voting-age citizens spoke a language other than English) as a prerequisite to voting as of November 1, 1972, and had less than 50% voter registration or turnout in the 1972 presidential election.

Majority Opinion

Chief Justice John Roberts
Chief Justice John Roberts

The opinion for the Court by Chief Justice John Roberts (joined by Justices Scalia, Kennedy, Thomas and Alito) held that this formula imposed current burdens on the covered jurisdictions that were not justified by current needs. Section 4, therefore, violated basic principles of equal state sovereignty or autonomy over voting and was unconstitutional. This conclusion was reached even though the Chief Justice acknowledged that “voting discrimination still exists.”

The fundamental factual premise of the opinion was the assertion that the U.S. had significantly changed in racial discrimination in voting since 1965. As the Chief Justice said, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”[2]

Dissenting Opinion

Associate Justice Ruth Bader Ginsburg
Associate Justice Ruth Bader Ginsburg

Justice Ginsburg, who was joined by Justices Breyer, Sotomayor and Kagan, issued a stinging dissenting opinion.

She emphasized that the Fifteenth Amendment to the Constitution granted to Congress, not the courts, the power to enact legislation to enforce the Amendment’s  ban on racial discrimination in voting. Moreover, the Supreme Court itself repeatedly has held that Congress’ judgment on such matters warrants “substantial deference” and that congressional power is “at its height” when it so acts.

As a result, the proper question for the courts is whether Congress had employed “rational means” in re-enacting section 4 as part of the 2006 Act. According to the dissenting opinion, section 4 meets that test. There was abundant evidence of continued racial discrimination in voting before Congress when it adopted the 2006 Act, and Congress acted with “great care and seriousness” in so doing.

Indeed, Justice Ginsburg stressed, the formula in section 4 is subject to statutory provisions “allowing jurisdictions to ‘bail out’ of preclearance, and for court-ordered “bail ins.” These mechanisms were seen by Congress as “effective means of adjusting the [Act’s] coverage over time.” Therefore, the dissent asserted it is erroneous for the Court’s majority to see the Act as “static, unchanged since 1965. Congress designed the [statute] to be a dynamic statute, capable of adjusting to changing circumstances.”

In short, the dissent says, “Hubris is a fit word for today’s demolition of the [statute].” The majority of the Court “errs egregiously by overriding Congress’ decision.”

Conclusion

The key failure of the majority opinion for me is its narrow focus on the coverage formula in section 4 instead of looking at how the formula works in the statute as a whole. As Justice Ginsburg and previously the D.C. Circuit emphasized, the coverage formula has to be seen with the statutory mechanisms for adjusting coverage to new circumstances through the bail-in or bailout provisions. It is dynamic and capable of adjusting to new circumstances.

Indeed, the Supreme Court did just that in 2009 in Northwest Austin Municipal Utility District No. One v. Holder. The Court’s opinion by Chief Justice Roberts provided a broad reading of the bail out provision to allow the political subdivision in the case to bailout from coverage under sections 4 and 5.


[1] The Supreme Court opinions in Shelby County are available online. Prior posts have discussed the original Voting Rights Act of 1965, the Voting Rights Act of 2006, a prior Supreme Court decision on the latter statute (Northwest Austin), the D.C. Circuit’s decision in Shelby County and the recent Supreme Court oral argument in that case.

[2] Justice Thomas issued a concurring opinion that section 5 of the Act was unconstitutional as well.

 

Judging on the U.S. Court of Appeals for the D.C. Circuit

The U.S. Court of Appeals for the District of Columbia Circuit, the second most important court in the U.S., is once again back in the news.

"Sri" Srinivasan
“Sri” Srinivasan

The immediate issue is the need for the U.S. Senate to confirm President Obama’s appointment of Srikanth “Sri” Srinivasan to one of the four vacancies on this Court.[1]

Srinivasan has a blue-chip resume. Currently he is the Principal Deputy Solicitor General of the U.S. and has argued 20 cases before the U.S. Supreme Court. He previously clerked for the Reagan-appointed Supreme Court Justice Sandra Day O’Connor. He also served with distinction in the Justice Department for both Presidents George W. Bush and Barack Obama and with the Washington, D.C. office of the eminent law firm of O’Melveny & Myers. A native of India, Srinivasan grew up in Kansas and earned a bachelor’s degree in 1989 from Stanford University and a J.D./M.B.A. degree in 1995 from its Law School and Graduate School of Business.

On April 10th Srinivasan had an uneventful 90-minute hearing before the Senate Judiciary Committee. His nomination is strongly supported by the Obama Administration and by noted conservative and liberal lawyers and academics.

The next step is for the Committee to vote on whether to send this nomination to the Senate floor for a vote. At least one of the eight Republican members of the Committee, Orrin Hatch, said he was impressed and would support such a motion. Assuming all 10 Democratic Committee members support such a motion, then it should be approved by a vote of at least 11 to 7. Then the whole Senate would vote on the nomination unless there was a filibuster of same.[2]

Perhaps the partisan wrangling over appointments to this Court is overwrought.

Senior Judge David B. Sentelle
Senior Judge David B. Sentelle

Evidence for a less partisan view of this Court is found in its April 5th Presentation Ceremony of the Portrait of D.C. Circuit Senior Judge David B. Sentelle, who was appointed to the Court in 1987 by Republican President Ronald Reagan. For remarks of appreciation from his own Court, Judge Sentelle chose Circuit Judge David S. Tatel, who was appointed by Democratic President Bill Clinton in 1994.[3]

Judge David S. Tatel
Judge David S. Tatel

Judge Tatel commented on the apparent oddity of his speaking for Judge Sentelle.  Tatel said, “those who believe that judges’ decisions are driven by ideology may wonder why Dave [Sentelle] asked me to speak. After all, you would be hard pressed to find two judges with more different backgrounds, different worldviews, different beliefs, and, indeed, different shoes than we two Davids. But those who focus on these differences do not understand what it means to be a federal judge, do not understand this Court’s long tradition of collegiality, and surely do not understand Dave Sentelle.”  Tatel continued, “when Judge Sentelle and I sit together, we very rarely disagree.” In “the nineteen years we’ve served together, we have disagreed less than 3% of the time.”

The answer to why there had been so little disagreement, according to Judge Tatel, was “Judge Sentelle’s decisions are driven not by personal preferences, but by a conscientious application of the principles and texts that bind us. Uncommonly peppered with the hallmarks of restrained decision-making, his opinions are full of phrases like, ‘If the intent of Congress is clear, that is the end of the matter’; ‘Courts must accord substantial deference to Congress’s findings’; ‘We are bound by the decisions of the Supreme Court’; ‘One three judge panel has no authority to overrule another’; ‘We owe agency fact-finding great deference’; ‘Issues not raised on appeal are deemed waived’; and ‘Absent jurisdiction we are powerless to act.’ For Judge Sentelle, “the tenets of judicial restraint are not mere slogans to be invoked when convenient; they are the building blocks of all that we do here.”

Judge Tatel also complimented Judge Sentelle’s judicial opinions. According to Tatel, Judge Sentelle “crafts opinions that treat every one of his colleagues, as well as every citizen who appears before us, with respect and a true generosity of spirit. Flipping through his opinions, including his dissents, you’ll find no sarcasm, no belittling remarks, no callous dismissals. This is, after all, a United States Court, and Judge Sentelle’s opinions are a credit to the dignity of this institution. In his five years as our Chief Judge, Dave has protected our proudly nurtured tradition of collegiality.”

In conclusion, Judge Tatel said, Judge Sentelle is “a man who has the greatest respect for the office he holds and an abiding dedication to a life of service and the rule of law.”


[1] President Obama’s only other eminently qualified nominee to the court, Caitlin J. Halligan, was named in 2010 to fill the vacancy created by the elevation of John G. Roberts Jr. to the Supreme Court. In March of this year Republicans for a second time mounted a filibuster that prevented the Senate from voting on Ms. Halligan, and President Obama granted her request to withdraw her nomination saying, “This unjustified filibuster obstructed the majority of Senators from expressing their support. I am confident that with Caitlin’s impressive qualifications and reputation, she would have served with distinction.” Her nomination was supported by the New York Times and Washington Post .

[2] If the Srinivasan nomination is filibustered , then Senate Majority Leader Harry Reid has threatened to modify the Senate Rules to bar such filibusters on at least judicial nominees. I frequently have voiced my strong disapproval of the filibuster rule and practice.

[3] Judge Tatel is a University of Chicago Law School classmate and friend of mine, and I have written a post about his opinion for the D.C. Circuit in the Voting Rights Act case now pending in the U.S. Supreme Court.

U.S. Supreme Court Shows Unjustified Hostility to the Voting Rights Act of 2006

On February 27, 2013, the U.S. Supreme Court heard oral arguments in Shelby County, Alabama v. Holder, No. 12-96, which raises the following issue:

  •  “Whether Congress’ decision in 2006 to reauthorize [for 25 years] Section 5 of the Voting Rights Act [of 1965] under the pre-existing coverage formula of Section 4(b) of [that] Act [requiring certain states to obtain preclearance from the U.S. Department of Justice or a special federal court for any changes in their election laws] exceeded           its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.”[1]

As has been frequently reported, during the argument Chief Justice John Roberts and Associate Justices Antonin Scalia, Samuel Alito and Anthony Kennedy asked questions and made comments strongly suggesting that they were prepared to invalidate this statutory provision,[2] a conclusion that already had been reached by Associate Justice Clarence Thomas in a prior case. If this is a correct reading of the recent argument, then there would be at least a 5-4 majority on the Court to declare the provision unconstitutional.

According to Linda Greenhouse, a leading Supreme Court follower, the “goal of [the petitioner] Shelby County and [apparently a majority] . . . on the Supreme Court is to depict Section 5 as an anachronism, a needless cudgel held by the big bad federal government over the head of a transformed South.“

Here are just a couple of examples of that attitude from the argument.

Chief Justice John Roberts
Chief Justice         John Roberts

Chief Justice Roberts asked or, as Greenhouse put it, “taunted” the U.S. Government’s lawyer (Solicitor General Donald Verrilli) with the following questions (and Roberts’ own answers) apparently to express Roberts’ belief that Mississippi has a better record than Massachusetts on black voter registration and turnout and that the Voting Rights Act provision at issue is no longer needed and, therefore, unconstitutional:

  • “Do you know how many submissions there were for preclearance to the Attorney          General in 2005?” (Roberts: “3700.”)
  • “Do you know how many objections the Attorney General lodged?” (Verrilli: “There          was one in that year.”)
  •  “[D]o you know which State has the worst ratio of white voter turnout to African American voter turnout?” (Roberts: “Massachusetts.”)
  •  “[W]hat [state] has the best, where African American turnout actually exceeds white       turnout?” (Roberts: “Mississippi.”)
  •  “Which State has the greatest disparity in registration between white and African American?” (Roberts: “Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration rate.”)
  •  “[I]s it the government’s submission that the citizens in the South are more racist             than citizens in the North?”  (Verrilli: “It is not.”)

Roberts did not identify the source of his statistics, but afterwards the Massachusetts Secretary of State, William F. Galvin, and political scientists speculated that Roberts drew his conclusions from the U.S. Census Bureau’s “The Current Population Survey,” which collects information on voting and registration every other year. This data, however, should not be used in the way that Roberts did because of their large margins of error, as reported by Nina Totenberg of National Public Radio.

Indeed, Secretary Galvin said that Roberts’ assertion about Massachusetts and Mississippi is just plain wrong and that the only way that the Census Bureau source supports Roberts’ assertion is by including Massachusetts’ non-citizen blacks who are not entitled to vote. To do what Roberts did, according to Galvin, is “deceptive” and “a slur on black voters in Massachusetts.”

Nate Silver, the statistician, also criticizes Roberts’ trumpeting these figures about Mississippi and Massachusetts apparently to justify a conclusion that the Voting Rights Act provisions in question are no longer needed and, therefore, unconstitutional.

According to Silver, “If [Roberts] . . . meant to suggest that states covered by Section 5 consistently have better black turnout rates than those that aren’t covered by the statute, then his claim is especially dubious.” Moreover, says Silver, it is outright fallacious to conclude from this simple comparison of two states, however flawed the data, that the provisions of section 5 of the Voting Rights Act and the formula in section 4(b) are no longer needed. For example, such data say nothing about whether whatever gains have been made in racial minority voting “might be lost if the Section 5 requirements were dropped now.”

I also fault the Chief Justice for focusing on only one small piece of evidence, however flawed or subject to qualification. Instead, he should be focusing on fundamental principles of judicial restraint as repeatedly proclaimed by the U.S. Supreme Court itself and as cited by the D.C. Circuit in its opinion in this case.

These precedents emphasize that “Congress’s laws are entitled to a ‘presumption of validity’” and that “when Congress acts pursuant to its enforcement authority under the Reconstruction Amendments [including the Fifteenth Amendment], its judgments about ‘what legislation is needed . . . are entitled to much deference.‘“  Such deference is paid “‘out of respect for [Congress’] . . .  authority to exercise the legislative power,’” and in recognition that Congress “is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.” (Citations omitted.)[3]

Justice Antonin Scalia
Justice Antonin Scalia

Associate Justice Scalia also interrupted Solicitor General Verrilli to make this long statement:

  •  “This Court doesn’t like to get involved . . . in racial questions such as this one. It’s something that can be . . . left to Congress.
  • “The problem here, however, is . . . that the initial enactment of this legislation in a time when the need for it was so much more abundantly clear . . . in the Senate, . . . it was double-digits against it. And that was only a 5-year term. Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.
  • “And this last enactment [in 2006], not a single vote in the Senate against it. And the House is pretty much the same.
  •  “Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is . . . very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity . . .  unless a court can say it does not comport with the Constitution.
  •  “You have to show, when you are treating different States differently, that there’s a good reason for it. That’s . . . the concern that those of us . . . who have some questions about this statute have. It’s . . .  a concern that this is not the kind of a question you can leave to Congress.
  •  “There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose . . . votes if they do not reenact the Voting Rights Act.
  •  “Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?”

These remarks are shocking and totally inconsistent with the Court’s long-established principles of judicial restraint mentioned above and with Justice Scalia’s persistently stated views about judicial interpretation of statutes.

Indeed, Scalia’s remarks provoked the Washington Post’s Editorial Board to proclaim that Scalia was in “contempt of Congress.” The editorial concluded with these words, “Congress, after careful review, came to an overwhelming conclusion that protection of the franchise in America is much improved but not guaranteed, especially in certain areas. We heard in . . . [the Supreme Court] argument no grounds for the court to claim superior wisdom on that question.”

 Conclusion

What is your opinion on how the Voting Rights Act issue should be resolved? Some argue for holding that provision unconstitutional.[4] Others agree with me that the provision should be upheld.[5]

I went to the University of Chicago Law School before Mr. Scalia was on the faculty, and I have never met him. By all reports, he is a brilliant man who is gracious and funny in social settings. But his comments in this and other Court arguments along with some of his opinions lead me to believe that life tenure for Supreme Court Justices and perhaps other federal judges causes at least some of them to believe that they are omniscient.

A possible solution to such arrogance, as I suggested in a comment to a prior post, is to amend  the U.S. Constitution to impose a term limit on U.S. Supreme Court Justices and perhaps other federal judges. All 50 states in the U.S. and all major nations have age or term limits for high-court judges. The International Criminal Court limits its judges to one term of nine years. Such limits are not seen as restrictions on the necessary independence of the judiciary.

The U.S. Constitution does not specifically grant life tenure to the justices or other federal judges. The Constitution merely says, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . . .” Paul Carrington, a Duke University law professor, has suggested that the “good Behaviour” provision was not intended to provide life-time appointments and that term limits could be imposed by statute.


[1]  This issue was phrased by the Supreme Court itself in granting review of the case. Previous posts have reviewed the Voting Rights Act of 1965; the Voting Rights Act of 2006; the prior Supreme Court case regarding the latter statute (Northwest Austin Municipal Utility District No. One v. Holder); and the decision of the U.S. Court of Appeals for the District of Columbia Circuit in the Shelby County case. The transcript of the recent Supreme Court arguments in Shelby County is available online as are the petitioner’s brief, the respondent’s brief for the U.S. Government and the reply brief for the petitioner in the case. Other briefs in the case for three intervenors, 19 amici curiae (friends of the court) supporting the petitioner and 28 amici curiae supporting the U.S. Government can also be found on the web. Excellent commentaries about the case are available on the respected scotusblog.

[2]  E.g., Liptak, Voting Rights Law Draws Skepticism from Justices, N.Y. Times (Feb. 27, 2013); Gerstein, 5 Takeaways from the Voting Rights Act arguments, Politico (Feb. 27, 2013).

[3] Roberts’ hostility to the Voting Rights Act apparently goes back to 1981 when as a young lawyer in the Department of Justice he was working on Reagan Administration efforts to weaken the Voting Rights Act.

[4]  E.g., Blum, The Supreme Court Can Update the Obsolete Voting Rights Act, W.S.J. (Feb. 24, 2013); Room for Debate: Is the Voting Rights Act Still Needed?, N.Y. Times (Feb. 27, 2013) (Shapiro; Pilder); Savage, Decision on Voting Law Could Limit Oversight, N.Y. Times (Feb. 28, 2013); Will, The Voting Rights Act stuck in the past, Wash. Post (Mar. 1, 2013).

[5] E.g., Room for Debate: Is the Voting Rights Act Still Needed?, N.Y. Times (Feb. 27, 2013) (Wydra; Charles & Fuentes-Rohwer; Garza; Smith), supra;  Savage, Decision on Voting Law Could Limit Oversight, N.Y. Times (Feb. 28, 2013), supra.

 

The D.C. Circuit’s Decision Upholding the Validity of the Voting Rights Act of 2006

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision in the Voting Rights Act of 2006. That provision imposes a requirement in section 5 for certain states to obtain pre-clearance from a special federal court or the U.S. Attorney General for any changes in their election laws.

Before we discuss that argument, we will review the decision that was the subject of that argument: the U.S. Court of Appeals for the D.C. Circuit’s decision in Shelby County, Alabama v. Holder upholding, 2 to 1, the constitutionality of that statute and, therefore, affirming the trial court’s judgment to the same effect.[1]

Judge David S. Tatel
Judge David S. Tatel
Judge Thomas Griffith
Judge Thomas B. Griffith
Judge Stephen F. Williams
Judge Stephen F. Williams

 

 

 

 

 

 

 

 

The opinion for the majority in the Circuit Court was written by Judge David S. Tatel, a President Clinton appointee in 1994 and a University of Chicago Law School classmate and friend of mine. He was joined by Circuit Judge Thomas B. Griffith, an appointee of President George W. Bush in 2005, while the dissenter was Circuit Judge Stephen F. Williams, an appointee in 1994 by President Reagan.

Opinion of the Circuit Court

The D.C. Circuit stressed that it was “bound by fundamental principles of judicial restraint” as repeatedly proclaimed by the U.S. Supreme Court. These precedents emphasize that “Congress’s laws are entitled to a ‘presumption of validity’” and that “when Congress acts pursuant to its enforcement authority under the Reconstruction Amendments [including the Fifteenth Amendment], its judgments about ‘what legislation is needed . . . are entitled to much deference.‘“  Such deference is paid “‘out of respect for [Congress’] . . .  authority to exercise the legislative power,’”and in recognition that Congress ”‘is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.’” (Citations omitted.)

Indeed, the Circuit Court quoted the Supreme Court’s opinion in deciding a prior case about this very statute when that Court emphasized that “judging the constitutionality of an Act of Congress is `the gravest and most delicate duty that [a court] is called on to perform,’'” and that “[t]he Fifteenth Amendment empowers `Congress,’ not the Court, to determine in the first instance what legislation is needed to enforce it.”

These long-standing principles of judicial restraint, I believe, are even more relevant and important, when Congress adds congressional findings of fact to the statute itself, as it did in the Voting Rights Act of 2006.

The D.C. Circuit then addressed the two concerns or questions about the Voting Rights Act of 2006 that the Supreme Court had raised in the Northwest Austin case.

First, are the current burdens imposed by section 5 “justified by current needs”?

Even though there has been significant progress in combatting racial discrimination in voting, the D.C. Circuit stressed that “Congress [had] found that this progress did not tell the whole story.

It documented ‘continued registration and turnout disparities’ in both Virginia and South Carolina.” In addition, “although the number of African Americans holding elected office had increased significantly, they continued to face barriers to election for statewide positions. Congress found that not one African American had yet been elected to statewide office in Mississippi, Louisiana, or South Carolina. In other covered states, “`often it is only after blacks have been first appointed to a vacancy that they are able to win statewide office as incumbents.'”

The D.C. Circuit also noted that “Congress considered other types of evidence that, in its judgment, ‘show[ed] that attempts to discriminate persist and evolve, such that Section 5 is still needed to protect minority voters in the future.’  It heard accounts of specific instances of racial discrimination in voting. It heard analysis and opinions by experts on all sides of the issue.”

Congress considered six distinct categories of evidence, according to the D.C. Circuit: “(1) [U.S.] Attorney General objections issued to block proposed voting changes that would, in the Attorney General’s judgment, have the purpose or effect of discriminating against minorities; (2) ‘more information requests’ issued when the Attorney General believes that the information submitted by a covered jurisdiction is insufficient to allow a preclearance determination; (3) successful lawsuits brought under section 2 of the Act; (4) federal observers dispatched to monitor elections under section 8 of the Act; (5) successful section 5 enforcement actions filed against covered jurisdictions for failing to submit voting changes for preclearance, as well as requests for preclearance denied by the United States District Court for the District of Columbia; and (6) evidence that the mere existence of section 5 deters officials from even proposing discriminatory voting changes.”

Finally, said the D.C. Circuit, “Congress heard evidence that case-by-case section 2 litigation was inadequate to remedy the racial discrimination in voting that persisted in covered jurisdictions.”

The Circuit court then carefully reviewed the legislative record and concluded that it contained “sufficient probative evidence from which Congress could reasonably conclude that racial discrimination in voting in covered jurisdictions is so serious and pervasive that section 2 litigation remains an inadequate remedy.”

Second, does the congressional record support the requisite ‘showing that the statute’s disparate geographic coverage is sufficiently related to the problem that it targets?

In addressing this issue, the Circuit court emphasized that the statute’s disparate geographic coverage depended not only on section 4(b)’s formula, but on the statute as a whole, including its mechanisms for bail-in and bailout. Therefore, for this court the question was whether the statute as a whole, not just the section 4(b) formula, ensures that jurisdictions subject to section 5 are those in which unconstitutional voting discrimination is concentrated.

After reviewing in detail the congressional record on this issue and the total structure of the statute, including bailout and bail-in, the D.C. Circuit concluded that the statute “continues to single out the jurisdictions in which discrimination is concentrated.”

Dissenting Opinion

The dissenting opinion of Judge Williams concluded that the formula in section 4(b) of the statute was unconstitutional because the significant burdens it imposed on “covered jurisdictions” were not “congruent and proportional” to the problems of racially discriminatory voting laws that it targeted.

—————————-

[1] Prior posts examined the original Voting Rights Act of 1965, the Voting Rights Act of 2006 and the prior U.S. Supreme Court case regarding the latter statute.

 

District Court Dismisses Lawsuit Challenging Constitutionality of U.S. Senate’s Filibuster Rule

On December 21, 2012, Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia dismissed the lawsuit challenging the constitutionality of the U.S. Senate’s filibuster rule.[1]

The court did not reach or discuss the merits of the constitutional issues even though it said that the filibuster rule was “an important and controversial issue” and that “in recent years, even the mere threat of a filibuster is powerful enough to completely forestall legislative action.” (P. 2.)[2]

Instead, there were two jurisdictional grounds given by the court for the dismissal. First, none of the plaintiffs, the court stated, had the necessary standing to sue. Second, the court found that “this case presents a non-justiciable political question.[3]

No Standing To Sue

In the introduction of the opinion, the Court said it “cannot find that any of the Plaintiffs have standing to sue,” which is a “bedrock requirement of an Article III court’s jurisdiction to resolve only those cases that present live controversies.” (P. 2.) This conclusion was elaborated in the “Analysis” portion of the opinion.

According to the court, there is a doctrine of “procedural standing” when (i) “the government violated [the plaintiff’s] . . . procedural rights designed to protect their threatened, concrete interest” and (ii) the violation resulted in injury to their concrete, particularized interest.” (P. 15.) However, the plaintiffs in this case “are unable to demonstrate that any alleged procedural right to majority consideration of proposed legislation is designed to protect [their] . . . particularized, concrete interests.” (P. 18.)

Quoting a Supreme Court case, Judge Sullivan said for an “irreducible constitutional minimum” showing of Article III standing, a plaintiff must show “(1) he has suffered an ‘injury in fact’ which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) there is a causal connection between the alleged injury and the conduct complained of that is fairly traceable to the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” (P. 14.)

The plaintiffs in this case, however, concluded the court, “cannot show that the invalidation of the Cloture Rule [the filibuster rule] has any connection to, or will have any connection to, their ability to benefit from a particular piece of legislation.” (P.27.)

Non-Justiciable Political Question

The opinion’s introduction stated, “the Court is firmly convinced that to intrude into this area would offend the separation of powers on which the Constitution rests. Nowhere does the Constitution contain express requirements regarding the proper length of, or method for, the Senate to debate proposed legislation. Article I reserves to each House the power to determine the rules of its proceedings. And absent a rule’s violation of an express constraint in the Constitution or an individual’s fundamental rights, the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court.” (P. 3.)

In the detailed analysis of this issue, the opinion appropriately quotes the relevant U.S. Supreme Court precedent of Baker v. Carr, 369 U.S. 186, 210 (1962). Judge Sullivan said that the “nonjusticiability of a political question is primarily a function of the separation of powers.” The Judge then concluded that three of the six circumstances listed by the Baker decision for such political questions were presented by this case.

First, there was “a textually demonstrable constitutional commitment of the issue to a coordinate political department.”  Here, Article I, § 5(2) of the Constitution grants each House of the Congress the power to “determine the Rules of its Proceedings.” Moreover, there is no constitutional provision that explicitly limits this power. (Pp. 37-43.)

Second, according to Judge Sullivan, “no judicially manageable standards exist against which to review the Senate’s rules governing debate.” (Pp. 43-44.)

Third, it was impossible for “a court’s undertaking independent resolution [of the case] without expressing lack of respect due coordinate branches of government.”  Indeed, said the court, “reaching the merits of this case would require an invasion into internal Senate processes at the heart of the Senate’s constitutional prerogatives as a House of Congress, and would thus express  a lack of respect for the Senate as a coordinate branch of government.”  In short, “it is for the Senate, and not this Court, to determine the rules governing debate.” (Pp. 45-46.)

Conclusion

Immediately after the decision, Common Cause, the lead plaintiff, said it would appeal the case to the U.S. Court of Appeals for the District of Columbia Circuit.


[1] The complaint in this case was the subject of a prior post.

[2] A prior post discussed the merits of the constitutional challenge to the filibuster rule.

[3]  A prior post reviewed the jurisdictional arguments raised by the dismissal motion while the hearing on the motion was mentioned in another post.

Interpreting the U.S. Constitution Regarding Limitations on Economic Regulation

By the end of June the U.S. Supreme Court should issue its decisions on the constitutionality of the federal Affordable Health Care Act and the Arizona immigration law. These cases involve important issues requiring the interpretation of the U.S. Constitution.

These cases and recent commentaries by Supreme Court Justice Antonin Scalia, columnist George Will, two judges on the U.S. Court of Appeals for the D.C. Circuit and a law professor reveal another important issue of legitimate federal power that is bubbling below the surface: what should be the constitutional standard for review of federal and state regulation of economic activities under the Fifth and Fourteenth Amendments to the U.S. Constitution.

U.S. Supreme Court Justice Antonin Scalia

Justice Scalia

A new bookReading Law: The Interpretation of Legal Texts –by U.S. Supreme Court Justice Antonin Scalia and Bryan A. Garner discusses the general approach to such interpretation used by the Justice. It comes with this disclaimer: “The views expressed in this book are those of the authors as legal commentators. Nothing in this book prejudges any case that might come before the [U.S.] Supreme Court.”

The book is a series of short essays on principles or canons of statutory and constitutional construction that supposedly guide judges and lawyers. The book, however, does make telling comments on issues in the pending health care and immigration cases.

One of the central precedents advanced by the Obama Administration for the constitutional validity of the Affordable Care Act is a 1942 Supreme Court case, Wickard v. Filburn, 317 U.S. 111 (1942), which held that a farmer’s cultivation of wheat for his own consumption affected interstate commerce and, therefore, could be regulated by the federal government under the Commerce Clause of the U.S. Constitution that grants (in Article 1, Section 8) Congress the power “To regulate Commerce . . . among the several States. . . .”  The new Scalia-Garner book, however, says the Court in the Wickard case “expanded the Commerce Clause beyond all reason.”

Another canon says that “a federal statute is presumed to supplement rather than displace state law.” In other words, Congress must make express any intent to displace or preempt state law. This relates to the pending case about the Arizona immigration law. The main argument for its unconstitutionality is preemption of state law regarding immigration by federal law.

The book also says, “A statute presumptively has no extraterritorial application.” Again this is a presumption and thus requires Congress to make explicit any intention for a statute to have extraterritorial application. This relates to a case to be reargued next term on whether the federal Alien Tort Statute of 1789 applies to alleged foreign human rights violations. A related issue is whether corporations may be held liable under that statute.

Another canon is “Words must be given the meaning they had when the text was adopted.” Moreover, for Justice Scalia, as he writes in the book and in many judicial opinions, it is the words of the text under consideration that must be at the center of legal inquiry. Other sources and values — the intentions of those who wrote the words or the consequences of a given interpretation — are, in his opinion, illegitimate.

Columnist George Will

George Will

 George Will in his recent column, “Unleash the high court” lambasts a recurrent theme in many Supreme Court cases that express deference to the choices of the democratically-elected legislative and executive branches. Similarly Mr. Will criticizes George Romney’s presidential campaign website for saying that federal judges should “leave the governance of the nation to elected representatives.” Will argues that “judicial deference to elected representatives can be dereliction of judicial duty.”

Will specifically targets the Supreme Court’s decision in the Slaughterhouse Cases, 16 Wallace 36 (1873), regarding the “privileges or immunities” clause of Section 1 of the 14th amendment to the U.S. Constitution that was ratified in 1868. That provision is as follows:

  • No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis added.)

At issue in the Slaughterhouse Cases was whether a Louisiana statute that granted one firm a monopoly of the slaughterhouse business in New Orleans and banned already established competitors was valid under the “privileges or immunities” clause, and the Court held, 5 to 4, that it was constitutional.

The Court in the Slaughterhouse Cases reached this conclusion after it had determined that there was a distinction between U.S. citizenship and state citizenship and that this clause of the 14th Amendment only protected the former. Such U.S. citizenship privileges or immunities, according to the Court in this case, included the right of a citizen “to come to the seat of the government to assert any claim he may have upon that government;” the “right of free access to its seaports;” and the right “to demand the care and protection of the Federal government over his life, liberty, and property on the high seas, or within the jurisdiction of a foreign government.” But they did not include the right to engage in a business.

The Slaughterhouse Cases also rejected the claims that the Louisiana statute violated the “due process” clause and the “equal protection” clauses of the 14th amendment.

According to George Will, the decision in the Slaughterhouse Cases was a “still-reverberating mistake . . . [by taking] a cramped view of the 14th Amendment’s protection of Americans’ “privileges or immunities,” saying these did not include private property rights, freedom of contract and freedom from arbitrary government interference with the right to engage in enterprise.” This led, he says, in the 1930s to the Court’s formally declaring economic rights to be inferior to ‘fundamental’ rights. As a result, according to Will, the Slaughterhouse Cases “begot pernicious judicial restraint — tolerance of capricious government abridgements of economic liberty.”

Circuit Judges Brown and Santelle

Chief Judge Sentelle & Judge Brown

George Will’s call for “unleashing” the Supreme Court was made more explicit in an astonishing concurring opinion in April of this year by two judges on the U.S. Court of Appeals for the D.C. Circuit–Judge Janice Rogers Brown and Chief Judge David Bryan Sentelle— in Hettinga v. United States.

In that case the appellate court, 3-0, affirmed the dismissal of a complaint alleging that a federal statute subjecting large milk producers-handlers to financial contributions to a fund for payments to producers violated the Fifth Amendment to the Constitution’s due process and implied equal protection provisions. Following Supreme Court precedents, as the circuit court was required to do, the latter’s per curiam opinion stated the governing legal principle as follows:

  • “We grant statutes involving economic policy a “strong presumption of validity.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993). A statutory classification that “neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. at 313. “Where there are plausible reasons for Congress’ action, our inquiry is at an end.” Id. at 313–14. The challenger bears the burden of showing that the statute is not a rational means of advancing a legitimate government purpose. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001).”

The appellate court then found that the challenged federal statute did have the requisite rational basis and, therefore, was constitutional.

The concurring opinion that was authored by Judge Brown and joined by Chief Judge Sentelle said that no other result was possible in light of the Supreme Court precedents. They then went on to suggest that the Supreme Court should overturn its large body of cases holding that economic regulations were subject to a rational basis test and return to the Lochner-era when there was strict judicial scrutiny of such regulations. The concurring opinion said:

  • “America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.”
  • “First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979). “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.
  • “As the dissent predicted in Nebbia, the judiciary’s refusal to consider the wisdom of legislative acts—at least to inquire whether its purpose and the means proposed are “within legislative power”—would lead to only one result: “[R]ights guaranteed by the Constitution [would] exist only so long as supposed public interest does not require their extinction.” 291 U.S. at 523. In short order that baleful prophecy received the court’s imprimatur. In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights. 304 U.S. at 153 n.4. . . .”
  • “The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 260 (2004).
  • “The hope of correction at the ballot box is purely illusory. . . . Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more.”

The third circuit judge on the panel in Hettinga, Judge Thomas B. Griffith, filed his own concurring opinion to announce that he did not join the concurring opinion of Judge Brown and Chief Judge Sentelle “with its spirited criticism of the Supreme Court’s long-standing approach to claims of economic liberty. Although by no means unsympathetic to their criticism nor critical of their choice to express their perspective, I am reluctant to set forth my own views on the wisdom of such a broad area of the Supreme Court’s settled jurisprudence that was not challenged by the petitioner.” (Emphasis added.)

As of the close of business on June 19th, the Supreme Court website did not report the filing of a petition for certiorari in the Hettinga case. But keep watching for such a petition and for the Court’s ruling thereon. If it grants the petition, be on guard. 

Supreme Court Interpretation of Constitutional Restraints of Federal and State Economic Regulations

Will’s article and, to a lesser extent, the Brown and Sentelle concurring opinion jump over an important period of our constitutional history.

Starting in 1905 in the U.S. Supreme Court used the “due process” clause of the 14th amendment to invalidate numerous state statutes regulating various aspects of economic activity. An early leading example of this jurisprudence was Lochner v. New York, 198 U.S. 45 (1905), that held a New York statute limiting the hours of labor in bakeshops to be unconstitutional. This approach continued into the early 1930s when the Court held various New Deal statutes unconstitutional until the conflict between the Court and President Roosevelt’s New Deal legislation reached a head in early 1937 with a presidential proposal for reorganizing the federal judiciary by appointing additional judges when an incumbent reached his 70th birthday (the so-called “Court-packing” proposal).

This proposal never went anywhere, but the Court suddenly changed course by upholding various federal and state economic regulations. This was the so-called “switch in time that saved nine.” Important cases in this reversal of course by the Supreme Court were West Coast Hotel  Co. v. Parrish, 300 U.S. 379 (1937) and United States v. Caroline Products Co., 304 U.S. 144 (1938). In West Coast Hotel, the Court, 5 to 4, upheld a state minimum wage law and overruled a contrary decision from 1923 (Adkins v. Children’s Hospital of D.C., 261 U.S. 525 (1923)). In Caroline Products, it upheld the constitutionality of a federal statute prohibiting certain milk from being shipped in interstate commerce because it was supported by substantial public-health evidence and was not arbitrary or irrational. The latter case also explained that regulations of economic activity would be subject to a “rational basis” review while restrictions on more fundamental rights would be subject to a higher level of scrutiny. Presumably George Will was referring to Caroline Products as the 1930s decision that, in his opinion, dastardly relegated economic rights to an inferior position to fundamental rights.

Another case in this new Supreme Court direction was Palko v. Connecticut, 302 U.S. 329 (1937), although it did not involve economic rights. Instead this case held that a state statute permitting the prosecution to take appeals from lower courts in criminal cases did not violate the 14th Amendment. This conclusion followed from the Court’s decision that this Amendment did not protect all of the rights set forth in the first eight amendments to the U.S. Constitution, but only to those “implicit in the concept of ordered liberty” and those principles of justice “so rooted in the traditions and conscience of our people to be ranked as fundamental.”

Also important in the Court’s new direction was the previously discussed Wickard v. Filburn, 317 U.S. 111 (1942), which upheld a federal statute establishing a wheat-marketing quota system that included wheat consumed on the same farm. It thereby repudiated an old distinction in the law between direct and indirect effects on interstate commerce. This case–the one criticized by Justice Scalia–made it clear that the Court would uphold the federal regulation of any economic activity, no matter how local, if it could have a demonstrable effect on interstate commerce.

This interpretation of the 14th Amendment as applied to economic regulations has now been followed for roughly 75 years in a huge body of cases in the Supreme Court and other U.S. courts.

As discussed in a prior post, in the mid-1970s I relied upon this well established body of law in a successful defense of an acquisition of an Iowa bank by an out-of-state bank holding company at about the same time that the Supreme Court upheld the constitutionality of a New Orleans ordinance that only allowed two push-cart vendors in the French Quarter of that city.

Given this long-established and firmly embedded interpretation of the Constitution, I was astounded to discover the George Will column and the concurring opinion in Hettinga calling for obliteration of this large body of law.  I also was startled to read a commentary by David Bernstein, the George Mason University Foundation Professor at the George Mason University School of Law:”There is virtual unanimity among modern conservative and libertarian scholars that the broadening of federal power during the New Deal era resulted from mistaken Supreme Court decisions.”

Prof. Geoffrey Stone

Such a position seems to me to be contrary to the principle of starie decisis. As stated by Geoffrey Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago (my alma mater), “Stare decisis is, after all, the bedrock principle of the rule of law. Not only does it promote stability and encourage judges to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.”

Chief Justice          John Roberts
Justice Samuel Alito

Indeed, in the infamous Citizens United v. Federal Election Commission case from 2010 that overruled a prior Supreme Court case regarding election financing, Chief Justice Roberts submitted a concurring opinion that was joined by Justice Samuel Alito solely “to address the important principles of judicial restraint and stare decisis implicated in this case.” After this concurring opinion reviewed the reasons for starie decisis, it quoted earlier Supreme Court decisions that said the principle was not an “inexorable command” or a “mechanical formula of adherence to the latest decision.” Otherwise, Chief Justice Roberts (and Justice Alito) said, “minimum wage laws would be unconstitutional.” Here, Chief Justice Roberts cited with approval West Coast Hotel Co. v. Parrish’s overruling of Adkins v. Children’s Hospital of D.C.

Presumably that would at least make it more difficult for Roberts and Alito now to overrule 75 years of Supreme Court case law on the constitutionality of economic regulations and to hold, explicitly or implicitly, that West Coast Hotel was an erroneous decision.

I, therefore, was somewhat relieved to read Professor Bernstein’s further observation that “there is less unanimity on what to do about it [the belief by some legal scholars that the rational basis standard for review of economic regulations was erroneous]. One school of thought, represented by former Judge Robert Bork and Judge Ralph Winter of the U.S. Court of Appeals for the Second Court, says it is too late to rely on the judiciary to reverse the centralizing trend of modern government. Winter claims that the unraveling of the modern Leviathan must be done through the political process, because it would be too disruptive to society and to the economy for judges to strike down federal programs wholesale. And, because judges must act on principle, they cannot pick and choose which laws to declare unconstitutional. Richard Epstein argues that, at least on the margins, the Supreme Court can still restrain national economic regulation. He thinks “that it is possible to make incremental changes by principled adjudication.”

Conclusion

In a subsequent post I will review other theories of interpreting the Constitution.In the meantime, I invite comments correcting, amplifying or contesting the assertions in this post.