A number of students have raised questions since Monday's class concerning the appropriate analysis of Problem 5. That seems a fair indication that my first presentation of the material was not so clear. So here is another effort, walking step-by-step through the basic points.
The first question you want to ask is whether the patent judges are "Officers of the United States" within the meaning of the Appointments Clause. For if they are not, the Appointments Clause is irrelevant, and there is unlikely to be any constitutional issue (absent some other sort of separation of powers problem). The standard for who constitutes an "Officer" is articulated in Freytag, among other places, and it basically provides that an officer is someone who exercises more than a trivial amount of discretion in the execution, enforcement, or application of federal law. Do the patent judges meet this standard? Almost certainly. They appear to have a decent amount of discretion, and they are applying federal law to parties in a manner that is often final.
Because the patent judges are "Officers," their appointments must conform to the prescriptions of the Appointments Clause. This means that, if they are principal (or "superior") officers, they must be appointed by the President with the advice and consent of the Senate. If they are inferior officers, they can be appointed in the same manner, or Congress can vest their appointment in the President alone, a court of law, or a head of a department.
Here, it is irrelevant whether the patent judges would be considered principal or inferior officers, as their appointment by the Director of the PTO does not fit within ANY of the permissible means for the appointment of officers of the United States. Clearly, the patent judges have not been appointed by the President alone or with the advice and consent of the Senate. The Director of the PTO is not a "court of law." (The Director does sit on the Board of Patent Appeals and Interferences, but that is only one of his responsibilities. His official position is an an undersecretary in the Department of Commerce, an executive department. Thus, although the Director might exercise some adjudicative responsibilities, his position is quite different from that of the Chief Judge of the Tax Court at issue in Freytag.) Finally, the PTO Director cannot be the head of a department. He is an undersecretary of Commerce who reports to the Secretary. Assuming arguendo that the Commerce Department is a "Department" under the Appointments Clause, the Director of the PTO cannot be the head of that department, as there is someone above him who does, in fact, head the department: the Secretary of Commerce.
Thus, the appointment of the patent judges is unconstitutional. And this is why Congress amended the statute in August 2008 to provide that the patent judges shall be henceforth appointed by the Secretary of Commerce (in consultation with the Director of the PTO).
Thursday, March 26, 2009
Tuesday, March 17, 2009
Obama's first judicial nominee
President Barack Obama is said to have selected his first judicial nominee, one to fill a vacancy on the United States Court of Appeals for the Seventh Circuit. He is current United States District Court Judge David Hamilton of Indiana. Hamilton is reportedly a very moderate Democrat, and his nomination has the support of both Indiana senators (Evan Bayh, a Democrat, and Richard Lugar, a Republican).
The announcement of Hamilton as the administration's first judicial nominee is being seen as an attempt by the President to dampen the recent partisan and ideological rancor over judicial nominees. Also noteworthy is that President Obama has apparently reinstated the role of the American Bar Association in pre-screening judicial nominees before their nominations become public. This had been the practice for roughly 50 years before the Bush administration discarded it in the spring of 2001. You can find the New York Times story on the nomination of Judge Hamilton here.
The announcement of Hamilton as the administration's first judicial nominee is being seen as an attempt by the President to dampen the recent partisan and ideological rancor over judicial nominees. Also noteworthy is that President Obama has apparently reinstated the role of the American Bar Association in pre-screening judicial nominees before their nominations become public. This had been the practice for roughly 50 years before the Bush administration discarded it in the spring of 2001. You can find the New York Times story on the nomination of Judge Hamilton here.
Thursday, March 12, 2009
President Obama's first signing statement
As if on cue for our class, the President yesterday issued his first signing statement in signing the omnibus budget bill (for fiscal year 2009) into law. In doing so, he declared that several provisions of the bill were unconstitutional intrusions on his presidential authority, and that he would decline to enforce them.
The President's constitutional objections varied (as might be expected given the sprawling nature of the bill). One provision, which dictates that no federal funds can be spent on NATO peacekeeping missions where U.S. troops are placed under the command of a foreign commander, President Obama declared interfered with his powers as commander in chief and unconstitutionally constrained his authority in diplomatic negotiations. Other provisions, which stated that money could not be spent or reallocated without the consent of congressional committees, effectively amounted to legislative vetoes. The President called these "impermissible forms of legislative aggrandizement."
You can find President Obama's signing statement here. And you can find an article from this morning's New York Times on the signing statement here.
The President's constitutional objections varied (as might be expected given the sprawling nature of the bill). One provision, which dictates that no federal funds can be spent on NATO peacekeeping missions where U.S. troops are placed under the command of a foreign commander, President Obama declared interfered with his powers as commander in chief and unconstitutionally constrained his authority in diplomatic negotiations. Other provisions, which stated that money could not be spent or reallocated without the consent of congressional committees, effectively amounted to legislative vetoes. The President called these "impermissible forms of legislative aggrandizement."
You can find President Obama's signing statement here. And you can find an article from this morning's New York Times on the signing statement here.
Delegating the "lawmaking" power
One of you asked a terrific question after yesterday's class: If Article I assigns the legislative power to Congress (and to Congress alone), how can Congress delegate any of its legislative authority to administrative agencies (or anyone else) without violating the Constitution? The answer, I think, lies in distinguishing lawmaking in its technical, formal sense from "lawmaking" in a more practical, on-the-ground sense.
No doubt, only Congress has the formal constitutional authority to enact federal laws. At the same time, every time a federal law is implemented, some policymaking discretionary judgment is at play. Consider a very simple example (involving a state law, but the point is the same). Suppose a law prohibits anyone from driving an automobile "hazardously" or "recklessly" in a manner that "endangers public safety." A police officer sees a driver changing lanes continuously to move more quickly through traffic, often nearly clipping other cars. Does this conduct fall within the statute? Maybe. The police officer -- the person executing the law -- will have to make a discretionary judgment. And this judgment is effectively a policy judgment (even if not so intended by the officer). The same is true, of course, when the EPA establishes a standard of parts per million of soot for what limit is "requisite to protect the public health."
Indeed, virtually every act of law implementation, enforcement, or administration involves some judgment. And those judgments effectively make policy. They determine, in a very real sense, what the law means and how it will effectively govern human conduct. Do these discretionary judgments constitute "lawmaking"? Not in a technical sense; they are only permissible to the extent that they are authorized by the relevant statute. In promulgating its standard for soot, for instance, the EPA had to justify and explain its judgment according to 109(b)(1). It had to be a plausible implementation of the statute. Still, you can see why many people believe that these sorts of judgments amount to lawmaking in a practical sense.
This is essentially the difference between Justices Scalia and Stevens in Whitman. They are no different in their practical analyses of the legal issue: section 109(b)(1) of the Clean Air Act, at least interpreted to mean "sufficient, but not more than necessary," provides an "intelligible principle" to the EPA and thus is constitutional. But they differ on the semantic question of whether this is a delegation of discretion in enforcement (Scalia) or a delegation of lawmaking power (Stevens).
No doubt, only Congress has the formal constitutional authority to enact federal laws. At the same time, every time a federal law is implemented, some policymaking discretionary judgment is at play. Consider a very simple example (involving a state law, but the point is the same). Suppose a law prohibits anyone from driving an automobile "hazardously" or "recklessly" in a manner that "endangers public safety." A police officer sees a driver changing lanes continuously to move more quickly through traffic, often nearly clipping other cars. Does this conduct fall within the statute? Maybe. The police officer -- the person executing the law -- will have to make a discretionary judgment. And this judgment is effectively a policy judgment (even if not so intended by the officer). The same is true, of course, when the EPA establishes a standard of parts per million of soot for what limit is "requisite to protect the public health."
Indeed, virtually every act of law implementation, enforcement, or administration involves some judgment. And those judgments effectively make policy. They determine, in a very real sense, what the law means and how it will effectively govern human conduct. Do these discretionary judgments constitute "lawmaking"? Not in a technical sense; they are only permissible to the extent that they are authorized by the relevant statute. In promulgating its standard for soot, for instance, the EPA had to justify and explain its judgment according to 109(b)(1). It had to be a plausible implementation of the statute. Still, you can see why many people believe that these sorts of judgments amount to lawmaking in a practical sense.
This is essentially the difference between Justices Scalia and Stevens in Whitman. They are no different in their practical analyses of the legal issue: section 109(b)(1) of the Clean Air Act, at least interpreted to mean "sufficient, but not more than necessary," provides an "intelligible principle" to the EPA and thus is constitutional. But they differ on the semantic question of whether this is a delegation of discretion in enforcement (Scalia) or a delegation of lawmaking power (Stevens).
Friday, March 6, 2009
Some questions on standing
I just received a few questions concerning the doctrine of standing. Here are my efforts at a few answers.
QUESTION: Regarding mootness, for example in Los Angeles v. Lyons, if I remember correctly, an injunction could not be granted because the case would become moot and there was little chance of Lyons being placed in a chokehold again. Why can't the plaintiff just always sue for compensatory damages then to avoid having his case declared moot?
ANSWER: Actually, mootness was not a problem in Lyons. Rather, the problem was standing, and specifically it was redressability. The Court held that the injunction would not redress the plaintiff's harm because, as you point out, he could not show that the injunction would do anything to redress his injury. (Factually, he could not show that he was likely to be subjected to another chokehold.) Mootness technically refers to circumstances where standing existed at the beginning of the lawsuit but went away at some point thereafter, typically because the plaintiff no longers had an injury or the relief requested could no longer redress the injury. Lyons does not fit this description because the plaintiff never had standing, at any point, to pursue an injunction.
As to your broader point: couldn't the plaintiff simply avoid the problem (even if it is not a mootness problem) by seeking damages? Sure. But he cannot seek an injunction. I'm not sure this avoids the problem if what he really wants is an injunction.
QUESTION: If we read about a potential first amendment violation in the news, such as a judge erecting slabs of 10 commandments in front of the court, this seems like a generalized grievance question. But if no individual citizen can speak out about it in the courts, how do we address the issue? (legislature?) Do we have to wait for someone to sustain an injury-in-fact? Because I've always wondered why a person must present, like in Lujan the plaintiff had to have a ticket showing she would physically see the animals again, to have sustained an injury-in-fact. Why does a person have to be there physically? Can't the same injury effect be felt by person who merely hears it or knows about it through a different source (like the news)?
ANSWER: Well, I guess the candid answer is because the Court said so. As your question suggests, there is nothing in Article III that clearly defines a "case" or "controversy." The Court has held, however, that it requires the plaintiff to have an injury in fact that is actual or imminent and concrete and particularlized. Why? I guess for the reasons stated in Lujan. In essence, if merely reading in the newspaper that the government has acted unlawfully were sufficient, then all 310 million of us could sue anytime we hear about the govornment doing something we think is illegal. Aside from the possibility that this might subject virtually every governmental action to legal challenge, it would involve the judiciary in the constant monitoring of executive action. More generally, we do have a mechanism other than litigation for changing the behavior of government when it affects all of us more less equally: elections and the political process. As I understand the subtext of your question, this can seem a bit random in certain applications. Person A might be much more offended by the Ten Commandments, but Person B walks in front of them, and only Person B has Article III standing. True enough; that seems a legitimate critique of the rule. By the same token, almost all legal rules, when applied to the marginal case, produce some odd results. I'm not sure that really undermines the idea that plaintiffs must be affected by the allegedly unlawful activity in a more particular way than the public at large. Rather, it might simply go to how we determine the particularity of the injury.
QUESTION: Regarding mootness, for example in Los Angeles v. Lyons, if I remember correctly, an injunction could not be granted because the case would become moot and there was little chance of Lyons being placed in a chokehold again. Why can't the plaintiff just always sue for compensatory damages then to avoid having his case declared moot?
ANSWER: Actually, mootness was not a problem in Lyons. Rather, the problem was standing, and specifically it was redressability. The Court held that the injunction would not redress the plaintiff's harm because, as you point out, he could not show that the injunction would do anything to redress his injury. (Factually, he could not show that he was likely to be subjected to another chokehold.) Mootness technically refers to circumstances where standing existed at the beginning of the lawsuit but went away at some point thereafter, typically because the plaintiff no longers had an injury or the relief requested could no longer redress the injury. Lyons does not fit this description because the plaintiff never had standing, at any point, to pursue an injunction.
As to your broader point: couldn't the plaintiff simply avoid the problem (even if it is not a mootness problem) by seeking damages? Sure. But he cannot seek an injunction. I'm not sure this avoids the problem if what he really wants is an injunction.
QUESTION: If we read about a potential first amendment violation in the news, such as a judge erecting slabs of 10 commandments in front of the court, this seems like a generalized grievance question. But if no individual citizen can speak out about it in the courts, how do we address the issue? (legislature?) Do we have to wait for someone to sustain an injury-in-fact? Because I've always wondered why a person must present, like in Lujan the plaintiff had to have a ticket showing she would physically see the animals again, to have sustained an injury-in-fact. Why does a person have to be there physically? Can't the same injury effect be felt by person who merely hears it or knows about it through a different source (like the news)?
ANSWER: Well, I guess the candid answer is because the Court said so. As your question suggests, there is nothing in Article III that clearly defines a "case" or "controversy." The Court has held, however, that it requires the plaintiff to have an injury in fact that is actual or imminent and concrete and particularlized. Why? I guess for the reasons stated in Lujan. In essence, if merely reading in the newspaper that the government has acted unlawfully were sufficient, then all 310 million of us could sue anytime we hear about the govornment doing something we think is illegal. Aside from the possibility that this might subject virtually every governmental action to legal challenge, it would involve the judiciary in the constant monitoring of executive action. More generally, we do have a mechanism other than litigation for changing the behavior of government when it affects all of us more less equally: elections and the political process. As I understand the subtext of your question, this can seem a bit random in certain applications. Person A might be much more offended by the Ten Commandments, but Person B walks in front of them, and only Person B has Article III standing. True enough; that seems a legitimate critique of the rule. By the same token, almost all legal rules, when applied to the marginal case, produce some odd results. I'm not sure that really undermines the idea that plaintiffs must be affected by the allegedly unlawful activity in a more particular way than the public at large. Rather, it might simply go to how we determine the particularity of the injury.
Tuesday, February 3, 2009
Another historical comparison to contemplate
Problem 2 poses a question involving outright presidential defiance of a binding legal order from the Chief Justice of the United States. In thinking about that problem, it might also be helpful to consider the following two examples from U.S. history, and what they say about the power of courts (and the constitutional obligations of others).
Example 1: The Supreme Court decided Brown v. Board of Education in May 1954, holding that in the field of public education, "separate is inherently unequal." Racial segregation violates the Equal Protection Clause of the Fourteenth Amendment. There were five school districts who were actual parties to Brown, and most everyone agreed that those five school districts were bound by whatever remedial order the court issued. Thousands of other school districts (outside the deep South) desegregated their schools in an orderly fashion. Tens of thousands of school districts in the deep South, however, stated that they disagreed with the Court's reading of the Constitution and refused to follow it. They stated that they would follow a judicial order directed at them specifically as parties (though this was not always honored), but they asserted their independent right to interpret the Constitution. As a result, roughly 1 percent of African-American children were attending desegregated schools in the deep South as of 1965, eleven years after Brown had been decided. History has largely judged the South's resistance to Brown as shameful and lawless.
Example 2: In 1857, the Supreme Court handed down its infamous decision in Scott v. Sanford (also known as Dred Scott). In that decision, among other things, the Court held that Congress had no authority to regulate slavery in the territories, that the Missouri Compromise was unconstitutional, that no African-American could be a citizen of the United States, and thus that Mr. Dred Scott remained a slave owned by Sanford (even though he had been taken for a time to "free" territory). Abraham Lincoln stated that, although he (and everyone else) clearly had an obligation to obey the specific judgment in Dred Scott, and thus not to challenge the idea that Mr. Scott was still owned by Mr. Sanford, he (and we) had no obligation to obey the Court's construction of constitutional meaning, or what Lincoln called Dred Scott's "political rule." For if we did--if we simply let the Supreme Court decide, once and for all time, what the Constitution means--then we have given over our government "of the people, by the people, for the people" to the courts. History has judged Lincoln's position to be courageous, and indeed he remains widely viewed as the nation's single greatest political leader.
Is the only difference the underlying moral rightness (or wrongness) of the two causes? If so, does that mean that school districts in the deep South were just as justified as Lincoln in asserting an independent authority to interpret the Constitution for themselves?
Example 1: The Supreme Court decided Brown v. Board of Education in May 1954, holding that in the field of public education, "separate is inherently unequal." Racial segregation violates the Equal Protection Clause of the Fourteenth Amendment. There were five school districts who were actual parties to Brown, and most everyone agreed that those five school districts were bound by whatever remedial order the court issued. Thousands of other school districts (outside the deep South) desegregated their schools in an orderly fashion. Tens of thousands of school districts in the deep South, however, stated that they disagreed with the Court's reading of the Constitution and refused to follow it. They stated that they would follow a judicial order directed at them specifically as parties (though this was not always honored), but they asserted their independent right to interpret the Constitution. As a result, roughly 1 percent of African-American children were attending desegregated schools in the deep South as of 1965, eleven years after Brown had been decided. History has largely judged the South's resistance to Brown as shameful and lawless.
Example 2: In 1857, the Supreme Court handed down its infamous decision in Scott v. Sanford (also known as Dred Scott). In that decision, among other things, the Court held that Congress had no authority to regulate slavery in the territories, that the Missouri Compromise was unconstitutional, that no African-American could be a citizen of the United States, and thus that Mr. Dred Scott remained a slave owned by Sanford (even though he had been taken for a time to "free" territory). Abraham Lincoln stated that, although he (and everyone else) clearly had an obligation to obey the specific judgment in Dred Scott, and thus not to challenge the idea that Mr. Scott was still owned by Mr. Sanford, he (and we) had no obligation to obey the Court's construction of constitutional meaning, or what Lincoln called Dred Scott's "political rule." For if we did--if we simply let the Supreme Court decide, once and for all time, what the Constitution means--then we have given over our government "of the people, by the people, for the people" to the courts. History has judged Lincoln's position to be courageous, and indeed he remains widely viewed as the nation's single greatest political leader.
Is the only difference the underlying moral rightness (or wrongness) of the two causes? If so, does that mean that school districts in the deep South were just as justified as Lincoln in asserting an independent authority to interpret the Constitution for themselves?
A little more on political questions
I just wanted to add a couple of thoughts to yesterday's class discussion. First, the criteria from Baker v. Carr are certainly relevant to determining whether a case presents a non-justiciable political question, but they are dramatically overinclusive, making them relatively useless as a predictive guide as to what a court will do. The first two criteria--whether there is a textual commitment of the matter to another branch, and whether the issue is not amenable to judicially manageable standards--seem to be the most important.
Second, the courts seem to use the political questions doctrine in practice as a sort of safety valve, a means to staying out of a controversy (or type of controversy) where the judiciary's involvement is apt to cause it some long-term institutional damage. This might be because courts would have real difficulty deciding cases according to rules that look at all judicial in character rather than legislative; that is, the judiciary's involvement might make the courts look especially political (or results-oriented), thus damaging its reputation. Or it might be (as Brian mentioned in class yesterday with respect to Ashwander) because the Court realizes its decision might not be obeyed, and thus would expose it as powerless.
Third, and relatedly, it makes some sense to think of the political questions doctrine--though it is a constitutional rule, derived from the "case" or "controversy" requirement of Article III--as working in practice as a sort of constitutional avoidance principle, much like those listed in Ashwander. It is a dramatic avoidance principle, as it entails the judiciary's complete withdrawal from the field, leaving resolution of the constitutional question entirely to the other branches. But it operates as means of avoidance all the same, and is invoked by the courts for largely the same reasons.
Second, the courts seem to use the political questions doctrine in practice as a sort of safety valve, a means to staying out of a controversy (or type of controversy) where the judiciary's involvement is apt to cause it some long-term institutional damage. This might be because courts would have real difficulty deciding cases according to rules that look at all judicial in character rather than legislative; that is, the judiciary's involvement might make the courts look especially political (or results-oriented), thus damaging its reputation. Or it might be (as Brian mentioned in class yesterday with respect to Ashwander) because the Court realizes its decision might not be obeyed, and thus would expose it as powerless.
Third, and relatedly, it makes some sense to think of the political questions doctrine--though it is a constitutional rule, derived from the "case" or "controversy" requirement of Article III--as working in practice as a sort of constitutional avoidance principle, much like those listed in Ashwander. It is a dramatic avoidance principle, as it entails the judiciary's complete withdrawal from the field, leaving resolution of the constitutional question entirely to the other branches. But it operates as means of avoidance all the same, and is invoked by the courts for largely the same reasons.
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