Some questions and answers, on judicial review and McCardle

QUESTION: On Lincoln versus Faubus: If the analysis is that there is very little difference between the president's and the governor's power to openly proceed as they wished notwithstanding the holding of the SCOTUS, what then, is the power of the SCOTUS?

 

ANSWER: Good question. Isn't the lesson, to some degree, that it depends on the degree to which other political figures will go along with (and enforce) the Court's decisions? Lincoln had a much broader and more powerful political coalition behind his position. Faubus was representing a vocal but geographically small minority, which was ultimately overwhelmed by the prevailing national view on the morality of racial segregation.

 

QUESTION: If the argument is that because both officials swore in order to come into office that they will uphold the Constitution of the United States, and that oath gave them the power to interpret the constitution, what then prevents, as you pointed out, a clerk of a federal judge, when he or she swore to uphold the Constitution of the United States, from openly defying the SCOTUS's decision when he or she sincerely believe the decision is against the principles of the Constitution?

 

ANSWER: Another good question. First, on a very practical level, that clerk might well be fired if her boss disagrees. Second, there is now a very strong general sense among Americans that it just does not work very well if we do not defer to the Supreme Court in its interpretations of the Constitution. That is, the Nation might well grind to a halt if everyone was always litigating their own understanding of the Constitution. Perhaps the larger point is that it is really norms and customs, rather than the strict dictates of law, that prevents this from happening.

 

QUESTION: While freedom of speech guarantees every individual citizen the right to advocate at the top of their lungs in which her fellows advocate at the top of their lungs in opposition, fundamentally there is a line between advocacy, the right to speech, and rebellion, the acts in defiance. Here, and in other cases, Lincon and Faubus not only advocated the unconstitutionality of SCOTUS's decisions, but that they performed in opposition. Are they, the president and the governor, then, by their actions, demonstrating that they are above the law? Or even worse, that they are the law? Who decides?

 

ANSWER: I think you could make decent arguments that neither were acting "unlawfully" (though Lincoln plainly was when he defied the court in the habeas case, In re Merryman). But there is a difference between the letter and the spirit of the law. And you could say that both acted contrary to its broader spirit -- Lincoln in a noble cause, Faubus in a rather pathetic one.

 

QUESTION: In a system of check and balances, where the Congress, the President, and the Court play a role in this dance of justice for the country, if each branch disagrees with the other on the interpretation of fundamental, constitutional matters, wouldn't we arrive at a system where everyone would be shouting to the rain on their issues, claiming that their perspectives are constitutional and that the perspectives of their opponents are not.

 

ANSWER: Two responses. First, again, the Nation will not tolerate too much of this, and generally has disciplined political leaders that they believed had not shown adequate respect for the rule of law. Second, everyone shouting to the rain about fundamental issues . . . is that really so different from the system we have now?

 

QUESTION: How could resolution arrive from such a system? Wouldn't the natural foreseeable path for such a system be chaos and disorder?

 

ANSWER: Perhaps, and I think that is precisely what has operated as the ultimate check. The People would not tolerate it. And that means that it generally not in political officials' interests to act in this fashion. But if it were -- witness the unhappy Terry Shiavo affair -- things can get a little messy. As I think Justice Breyer explained well in his essay, these things turn more on habits of mind and cultural and political norms of a people and a society. We just don't really tolerate this sort of behavior in our elected officials, and thus they are much less apt to challenge the Court.

 

QUESTION: Obviously, we have not yet reached that state in the US, so the begging question again, is, who has the ultimate power to prevent such an undesirable outcome?

 

ANSWER: There is no clear answer to this. It depends. It is sort of up to each generation to decide. In our system, to some degree, it is up for grabs. Different periods of history have seen different allocations of this authority. I think it is fair to say, though, that over time we have gradually moved closer and closer to a system of judicial supremacy.

QUESTION: At least twice in history, the President has repealed Supreme Court's writ of habeas corpus, and at least once, the President has defied the SCOTUS holding that the president lacks the power to repeal SCOTUS's writ of habeas corpus. Under Article III, section 2, clause 1 of the Constitution, it states "the judicial power shall extend to all cases...arising under the Constitution," and then clause 2 states, "the Supreme Court shall have appellate jurisdiction...under such regulations as the congress shall make."

 

ANSWER: But that is not mandatory. That provision is setting out the full scope of the subject matter jurisdiction that Congress is permitted to invest in the federal courts. Congress has never--ever--given the federal courts the full scope of the jurisdiction spelled out in Art. III, sec. 2, clause 1. 

 

QUESTION: How could these paragraphs reconcile in cases where they contradict? For example, imagine a situation where Congress has taken away SCOTUS's entire power for appellate review, and yet, dispute arising under the Constitution review occurs. Under Article III, section 1, clause 1, SCOTUS would have the power to review it, not just through original jurisdiction but also by appellate jurisdiction, as indicated by the language "all cases." However, under Article III, section 2, clause 2 would clearly state SCOTUS lacks the jurisdiction for review. Again, how does one reconcile situations such as this?

 

ANSWER: I think there are a few different questions here. First, with respect to the lower federal courts, this has always been the case. That is, there have always been cases to which "the judicial power shall extend" under Article III, but for which Congress has not granted the lower federal courts jurisdiction. We will talk about this Wednesday (1/26), but this has always been assumed to be part of the original compromise, to leave the existence and jurisdiction of lower federal courts to the discretion of Congress. As to the Supreme Court, I think it is a harder question. What if Congress completely cut off any way to get to the Supreme Court on a constitutional claim? I think the law is unclear as to whether Congress could do this. McCardle does not answer it. Certainly, Congress can give the Supreme Court discretion as to whether to hear such a claim. Thus, there is no individual "right" to have your federal claim considered on the merits by the Supreme Court. But what if Congress forbid it? I think the answer remains unclear.

 

QUESTION: Who decides?

 

ANSWER: The Court, I think, in interpreting the scope of Article III. And if the People disagree with the Court, then we get back to all the questions raised above.

 

QUESTION: Further, if Congress can take away SCOTUS's fundamental appellate jurisdiction such as the writ of habeas corpus, what is the limit of Congress's power?

 

ANSWER: Again, I think this is unclear. The check may ultimately be more political than legal.

 

QUESTION: How much of SCOTUS's responsibilities can the Congress chip away through legislature such that the framework provided by Article III, section 1--"the judicial power of the United States, shall be vested in one Supreme Court"--would still hold? How much of SCOTUS's responsibility can be disposed of before it cease to have the judicial power of the United States?

 

ANSWER: Very good question. It is not just an Article III question, but one that invokes basic separation of powers principles. Again, I do not think any authoritative sources of law give us a clear answer.

 

QUESTION: Finally, On Ex parte McCardle: I still struggle with the interpretation of the last paragraph. My feeble attempt at deciphering this paragraph is that Chief Justice Chase is trying to articulate, while Congress has the power to regulate the appellate jurisdiction of the Supreme Court, any regulation has only post hoc effect, and any judgment prior to the enactment of the repeal act would still be effective. From the discussion in class, this does not seem to be the significance of that last paragraph, and if I am not mistaken, you suggested that SCOTUS still had jurisdiction on some levels. What is that level? How would you have interpreted the last paragraph?

 

ANSWER: As to the narrower question, yes, litigants like McCardle could have gotten to the Court with their habeas claims through a different route, under the Judiciary Act of 1789 using, in conjunction with the writ of habeas corpus, a writ of certiorari. As to your broader question, about how I would interpret that last paragraph, here is my best stab. Chase is basically saying this: "Look, we are not deciding whether this Repeal Act would be constitutional if it completely removed the Supreme Court's appellate jurisdiction in all cases in which the litigant was seeking a writ of habeas corpus. There is another statute that provides for that jurisdiction, on which prior litigants have relied, and which we have used to review habeas petitions on appeal. Now, we are not saying that the Repeal Act would necessarily be unconstitutional if it had completely cut off all appellate routes to the Court. Rather, we want to make clear that we are not deciding this issue one way or  the other today. We reserve it for another day."

Cohens v. Virginia and the Supreme Court's original jurisdiction

Madhuri asked a great question yesterday concerning Cohens and Article III's allocation of the Supreme Court's original and appellate jurisdiction. In essence her question was this: if Marbury held that Article III defines what must be in the Court's original and appellate jurisdiction, and Virginia was a party in Cohens, and Article III states that the Court shall have original jurisdiction "In all Cases . . . in which a State shall be a Party," what gives? How can these fit together?

 

They can't. So the Court (and Chief Justice Marshall himself, the author of both) effectively overruled this part of Marbury in Cohens. He held (in a portion of the opinion not included in the casebook) that, although Congress cannot expand the original jurisdiction of the Supreme Court beyond those cases specified in Article III (which was the precise problem in Marbury), Congress can permit those same cases to come to the Court on appeal (in Cohens, from a state court).

 

Why? The basic problem is that something had to give. A state is always a party in a criminal prosecution initiated by a state. (At that time, as now, more than 90%, perhaps 99%, of criminal prosecutions were initiated by states, not the federal government.) By necessity, a criminal case initiated by a state against a defendant originates in a state trial court. Thus, such a case simply could never reach the Supreme Court of the United States if the Supreme Court could only exercise original jurisdiction over cases in which a state was a party. In other words, that reading of Article III would render every single criminal prosecution initiated by a state immune from federal judicial review, no matter the federal constitutional or statutory problems it raised.

 

(Perhaps such convictions could be challenged by seeking a writ of habeas corpus in federal court. But that is an indirect challenge to a conviction, not a direct appeal. Moreover, federal habeas review of state criminal convictions did not exist until the 20th century.)

 

Faced with this structural implication, the Court held that Congress could authorize the Court to exercise appellate jurisdiction in cases that Article III specifies as falling within the Court's original jurisdiction.

 

As the Judiciary Act currently reads, there is only one set of cases in which the Supreme Court's jurisdiction is original and exclusive: suits between two states. The others may be brought as an original matter, but need not be. The Court can review them on appeal as well, and it basically always does.

Tiers of scrutiny

QUESTION: What is the scrutiny applied in Eisenstadt v. Baird? We have that it is the minimum rationality standard. But doesn't this case decide that the right to privacy is fundamental, so strict scrutiny should apply?

ANSWER: You are right -- if the Court had decided the case on due process grounds. But that sentence in our casebook was really an aside. If you look at the full opinion, you will see that the Court decided the case based on the Equal Protection Clause. The statute (at least in its application) discriminated on the basis marital status. The Court subjected this discrimination to rational basis review, and held (perhaps disingenuously) that the law failed to rationally further a legitimate state interest. (More candidly, I would call this rational basis "plus," as the Court was certainly more demanding than the test of Lee Optical.)

QUESTION: What level of scrutiny applied in Griswold? We think it's strict scrutiny because our notes say "high level of scrutiny" and again it concerns fundamental right to privacy.

ANSWER: That seems like a logical inference to me. The Court does not use the magic words, but yes, I think it was applying strict scrutiny.

QUESTION: What are the strict scrutiny cases? Griswold, Eisenstadt, and Lochner?

ANSWER: Due process decisions that seem to apply strict scrutiny, or something like strict scrutiny, would include Lochner, Pierce, Meyer, Griswold, Roe, Casey, Loving, Zablocki, arguably Lawrence, and Perry v. Schwarzenegger. 

When are agencies part of the Executive Branch?

QUESTION: I'm a little confused on what agencies are classified as, such as the EPA. In your 2008 model answer it was stated that the commission was placed in the executive branch (I think), and thus the line-item veto and non-delegation doctrine doesn't really apply in regards to the President's authority over what is actually goes into law. I thought the Commission to be a quasi-legislative branch that has both authority to create the law and dictate enforcement (although that was limited as custom agents would which is strictly a part of the executive branch). I would argue that having the President able to essentially veto what he wants from the agency, and the agency is more legislative then not. So the President is overstepping the boundaries set by separation of power as he is essentially deciding what laws gets passed. Is this an incorrect analysis or just a different viewpoint (that would still receive mostly full credit if this was an exam answer)?

ANSWER: I would say, candidly, that your analysis is largely incorrect. Let me try to explain in a few steps. First, where an agency is "placed" is not really the issue. Rather, the issue is whether the agency is involved in the execution or implementation of federal law. Any agency so doing is part of the "executive branch," at least in a sense. Now, some people will say that independent agencies are not part of the Executive Branch because they are independent of the President--independent typically because their heads are not removable by the President at will. I would say that this lessens presidential control, but it does nothing to obviate the underlying reality that the agency is executing federal law. Second, sure, the agency is "quasi legislative" in the sense you describe. But so is every agency. All execution of law involves some discretion, and often it is sensible to announce in advance, in the form of regulations (that look like statutes) how the agency plans to exercise that discretion. But this does not make them an extension of Congress, or part of the legislative branch. Recall that, under cases such as Chadha and Bowsher and Buckley that Congress can play no role in the execution of federal law. So this agency cannot constitutionally be a part of the legislative branch. Third, once we resolve that the agency is part of the bureaucracy that is executing federal law (whatever exact label we place on it), it should become clear that there can be no line-item veto problem. the President is merely adjusting how the law is being executed; he is not altering the statute itself. Finally, the delegation issue is only relevant in evaluating the standard that Congress has given the executive branch as a whole. So long as that states an intelligible principle for enforcement, that doctrine is satisfied.

  

QUESTION: Also, what are agencies like the EPA actually classified under and who is in charge of them? It seems that they are legislative in the fact that they create regulations but also executive as they enforce these regulations (through fines and whatnot). So is the legislative branch or he executive branch in charge of them or are they independent from both?

ANSWER: The EPA has responsibilities of enforcing and executing federal law, thus it is a part of the Executive Branch. The head is the Administrator of the EPA. Again, you are right that much of what it does seems legislative in nature. But the better way to understand this is as the exercise of discretion in the enforcement of federal law. 

Jurisdictional elements

QUESTION: I am a little confused about the idea of jurisdictional element. Is the only way to satisfy jurisdictional element to state specifically in the legislation "X in interstate commerce," or would something that is clearly used only in connection to interstate commerce suffice?

ANSWER: The term "jurisdictional element" refers specifically to additional explicit language in the statute. So, as you have phrased the question, I think yes, by definition, there is no jurisdictional element if that connection to interstate commerce is not specifically stated in the statute. (That is not to say, of course, that every statute needs a jurisdictional element. Indeed, many things, by their nature, are always in interstate commerce, such that it would be superfluous to include such additional language.)

QUESTION: For example, if there were legislation that barred handguns at weigh stations on interstate freeways, would the inclusion of the location "weigh stations" work as a jurisdictional element (assuming the only possible connection weigh stations have to commerce is in interstate commerce) and obviate the need to include " handguns in interstate commerce" in the phrasing of the law?

ANSWER: I would say "weigh stations on interstate freeways" would probably be a considered a jurisdictional element, yes. It is limited the scope of the regulated activity to a subclass with a closer connection to interstate commerce. Notice, too, that this jurisdictional element might actually bring the regulation into a different category under Lopez--namely, it might render the statute a regulation of the use of the channels of interstate commerce.

QUESTION: Congress is seeking to regulate the substantial effect, so it seems valid to transfer the jurisdictional element from "handguns in interstate commerce" to "handguns at place that is used exclusively for intestate commerce." The Lopez court used the phrasing "nexus with interstate commerce" and it seems as if, in this hypo, the weigh station is as good a nexus as any.

ANSWER: I would generally agree. I would just caution, though, that the existence of a "jurisdictional element" in a statute will not necessarily render a statute a valid use of the commerce power. Jurisdictional elements can come in sorts of different shapes and sizes, some creating a close nexus with interstate commerce and some requiring only a very attenuated one. So it all depends on how much work the jurisdictional element actually does.

QUESTION: For reference: in Lopez the court found that the statute stating "'for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.'" 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V)" was not within the commerce clause for lack of a jurisdictional element. However, the inclusion of "firearm that has moved in or that otherwise affects interstate or foreign commerce" solved the jurisdictional element problem. 

ANSWER: Not necessarily. That was Congress's fix, but the Supreme Court has not held that it was sufficient. So this remains a bit unclear at this point.

QUESTION: If the requirement is that Congress add the phrasing adopted in the second statute, the whole exercise seems rather silly. Can't that just be implied (hello, implied pre-emption!), like so many other things?

ANSWER: I agree, at least to some degree. But again, we are not sure that Congress's fix was sufficient. Moreover, Lopez might have been more symbolic than real. And yes, I think it could be inferred in some circumstances (as mentioned above), but obviously the Court was unwilling to make that inference in Lopez. 

Some questions (and answers)

QUESTION: I have a question regarding the case of Raines v. Byrd (page 46 of the casebook), involving a challenge to the Line Item Veto Act by senators. I am not sure if I clearly see why the injury is "abstract and widely dispersed" as Chief Justice Rehnquist decided. If my duty is to pass bills, and someone can render them ineffective (partially), why isn't that a concrete injury? And the only people affected are the Senators and Congressmen, so why is it widely spread? Is this a borderline case where subjective opinion makes all the difference or I am missing something?

ANSWER: I think the decision is more defensible on the ground that the injury was not sufficiently concrete (too abstract) than on the ground it was too dispersed (not sufficiently particularized). The Senators' claim was that their voting strength on bills subject to the LVA was diluted to some degree, as the LVA decreased their leverage over the President vis-a-vis his preferences. It is not hard to see that this lacks much concreteness. You describe the LVA as rendering their votes "partially ineffective," but that is debatable. Consider this: the budget bill at issue in Clinton v. New York contained more than 2,000 pages, and the President line-item vetoed two lines. To what degree did the LVA really affect Senator Byrd's voting power in the Senate? Consider also that the LVA only applied to certain sorts of bills, and certain line items within those bills. I think all of this suggests that the injury being alleged was somewhat conjectural, and somewhat abstract. (Of course, as your last sentence suggests, the vote was 5-4, so it obviously was not clear.)

QUESTION: I had a question concerning your model outline/answer #3 for Section 901 on the 2010 exam. Could you explain a little bit more about this one? While I understand that it's not the same as Clinton v. NY because the law would have already gone through presentment procedures, I'm confused on how Congress can basically allow the President to choose whether or not to enforce the law at all or in part. Is Congress really allowed to basically say to the President/executive "do whatever you think best"? Is that what you meant by the "delegation in subsection (a) might violate the non-delegation doctrine"?

ANSWER: Yes, I think that gets the gist of it. There is certainly nothing unconstitutional per se in Congress delegating discretion in the enforcement of federal law to the Executive Branch. Indeed, such delegations are inherent in any law, as no law is so clear as to preclude any discretion in enforcement. Typically, that discretion is in the form of how to enforce a statute. But there is no reason it does not also extend to whether to enforce a statute, or at least a portion thereof. In fact, it is unclear we could draw a clear distinction between the two. Consider federal criminal laws. If the Attorney General (or someone lower in DOJ) decides not to prosecute a particular individual (even though there might exist sufficient evidence to obtain a conviction), is that an exercise of discretion as to how to enforce the statute? Or is it discretion as to whether to enforce the statute? The larger point is that there is nothing inherently problematic in Congress delegating discretion in enforcement to the Executive Branch. The relevant question in such circumstances is whether the delegation is too broad, meaning that Congress has failed to provide an "intelligible principle" to guide the executive's enforcement or implementation of the law.

Channels and instrumentalities

QUESTION: First, when discussing interstate commerce, is it acceptable to determine whether the legislation has substantial effects on interstate commerce before determining whether the legislation is regulating channels or instrumentalities of interstate commerce? My reasoning is that the vast majority of examples I've come across have been substantial effects examples, so I'd rather start start with the usual suspect.

 

YES, THAT IS FINE. THERE IS NO MANDATED ORDERING. BUT JUST TO BE CLEAR, IT IS THE REGULATED ACTIVITY THAT MUST HAVE A SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE, NOT THE LEGISLATION.

QUESTION: Second, and an alternative reason for wanting to start with Substantial Effects test, is can you clarify or distinguish channels and instrumentalities again? Is it fair to say that the channels are the mode of interstate activity and instrumentalities are the means? For example, highway trucking -- the highways are the mode and the trucks are the means?

 

YES, I THINK THAT IS ESSENTIALLY CORRECT, THOUGH THE COURT HAS NEVER USED THOSE PRECISE TERMS. I THINK OF CHANNELS AS THE "RIVERS" THROUGH WHICH COMMERCE FLOWS -- ROADS, NAVIGABLE WATERWAYS, RAILWAYS, TELECOMMUNICATION NETWORKS -- AND INSTRUMENTALITIES AS THE OBJECTS THAT FACILITATE THE COMMERCE -- RAILROAD CARS, AIRPLANES, ROUTERS, SERVERS, AND THE LIKE. BUT, BECAUSE THE COURT HAS NOT DECIDED A CASE INVOLVING ONE OF THESE CATEGORIES SINCE LOPEZ, WE ARE NECESSARILY GUESSING A LITTLE BIT.