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?
Tuesday, February 3, 2009
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.
Friday, January 30, 2009
Marbury and McCardle
An interesting student question on the relationship between the Court's decisions in Marbury v. Madison and Ex parte McCardle.
QUESTION: In McCardle, the SCOTUS listened to the legislature because of the exceptions clause and agreed to repeal their jurisdiction of issuing writs of habeus corpus. But in Marbury, the SCOTUS decided that the Judiciary Act giving original jurisdiction for writs of mandamus is unconstitutional, implying that the Judiciary Act falls outside the exceptions clause. I don't remember the SCOTUS explicitly reasoning in Marbury why the Judiciary Act falls outside the exceptions clause. What makes something passed by Congress fall inside (or outside) the exceptions clause?
ANSWER: A couple points in response. First, the Court in Marbury did not hold the entire Judiciary Act to be unconstitutional. It merely held that the provision attempting to confer original jurisdiction on the Supreme Court in all cases where mandamus is the appropriate remedy is unconstitutional (or at least unconstitutional as applied in cases like Marbury, where the controversy does not otherwise meet the criteria for original jurisdiction under Art. III, sec. 2, clause 2).
QUESTION: In McCardle, the SCOTUS listened to the legislature because of the exceptions clause and agreed to repeal their jurisdiction of issuing writs of habeus corpus. But in Marbury, the SCOTUS decided that the Judiciary Act giving original jurisdiction for writs of mandamus is unconstitutional, implying that the Judiciary Act falls outside the exceptions clause. I don't remember the SCOTUS explicitly reasoning in Marbury why the Judiciary Act falls outside the exceptions clause. What makes something passed by Congress fall inside (or outside) the exceptions clause?
ANSWER: A couple points in response. First, the Court in Marbury did not hold the entire Judiciary Act to be unconstitutional. It merely held that the provision attempting to confer original jurisdiction on the Supreme Court in all cases where mandamus is the appropriate remedy is unconstitutional (or at least unconstitutional as applied in cases like Marbury, where the controversy does not otherwise meet the criteria for original jurisdiction under Art. III, sec. 2, clause 2).
Second, the Exceptions Clause grants Congress the authority to make "exceptions" to, and "regulations" of, the Supreme Court's appellate jurisdiction. A law purporting to give the Court original jurisdiction in a given class of cases simply could not be an exception to, or a regulation of, the Court's appellate jurisdiction.
Finally, to address your actual question, "What makes something passed by Congress fall inside (or outside) the exceptions clause?" I don't think we have a good answer. McCardle provides a very partial response, but it leaves a great deal undecided. Certainly it must plausibly be a regulation of the Court's appellate jurisdiction. But can it completely cut off any path to the Supreme Court for certain constitutional claims? Can it be done selectively, to produce the "underenforcement" of certain constitutional rights, or to undermine the practical force of certain judicial decisions? These questions remain largely unanswered.
Wednesday, January 28, 2009
On "procedural injuries" and standing
A number of you raised good questions after class about the nature of procedural injuries and how they relate to standing. Let me try to clarify things a bit (though I'm happy to answer more questions).
First, a "procedural injury" is nothing more fancy than an injury that is tied, in some way, to the government's allegedly unlawful failure to follow a certain, legally required process. One can contrast a procedural injury with a direct harm in the following way. If the government illegally dumped toxic waste on your property, that would be a direct injury. If the government illegally failed to complete the required environmental impact statement before dumping toxic waste on your property, the injury would be "procedural" in the sense that the unlawful action was the failure to follow a certain process, and not the dumping of the toxic waste per se. (Indeed, after following the lawful process, it might be that the government could still dump the waste on your property.)
Second, why is this significant? Well, the basic point is that, if the Court did not relax the standing requirements to some extent for these so-called "procedural injuries," plaintiffs might lack standing to challenge a wide range of governmental action, despite being clearly affected by it. That is, in any case in which the allegedly unlawful conduct was the failure to follow a certain process--e.g., to initiate a rulemaking to consider whether carbon dioxide is a pollutant under the Clean Air Act, or to evaluate student applications without regard to race--the plaintiff would still have to show that, had the government followed the lawful process, the result would have been different. This is often quite difficult, if not impossible. How could Barbara Grutter, for instance, really have demonstrated that she would have been admitted to the Michigan Law School had the school not considered her race in evaluating her application?
Plaintiffs would thus lack standing to challenge all sorts of unlawful actions by the government. It is therefore significant that the Court has said that this is not necessary--that plaintiffs have standing when the procedural injury (the failure to follow a legally mandated process) is connected to an underlying injury in fact (denial of a subcontract, or loss of coastline, or whatever). So long as following the lawful procedure would make it more likely that the plaintiff would obtain the ultimate benefit (or avoid the ultimate harm), then the plaintiff has an injury in fact.
Third, it is worth reiterating that a procedural injury standing alone will be insufficient for purposes of Article III. It is not enough to assert that the government simply failed to follow the law. Such an "injury" is too abstract and widely shared. Rather, the alleged procedural injury must be connected to an underlying injury in fact that is both (a) concrete and particular, and (b) actual or imminent. This is why the procedural injury in Lujan was insufficient (it was not sufficiently imminent), but it was enough in Massachusetts v. EPA (because if the EPA did initiate rulemaking proceedings, it would be more likely that it would take steps to regulate CO2, which would in turn affect the state's coastal property).
First, a "procedural injury" is nothing more fancy than an injury that is tied, in some way, to the government's allegedly unlawful failure to follow a certain, legally required process. One can contrast a procedural injury with a direct harm in the following way. If the government illegally dumped toxic waste on your property, that would be a direct injury. If the government illegally failed to complete the required environmental impact statement before dumping toxic waste on your property, the injury would be "procedural" in the sense that the unlawful action was the failure to follow a certain process, and not the dumping of the toxic waste per se. (Indeed, after following the lawful process, it might be that the government could still dump the waste on your property.)
Second, why is this significant? Well, the basic point is that, if the Court did not relax the standing requirements to some extent for these so-called "procedural injuries," plaintiffs might lack standing to challenge a wide range of governmental action, despite being clearly affected by it. That is, in any case in which the allegedly unlawful conduct was the failure to follow a certain process--e.g., to initiate a rulemaking to consider whether carbon dioxide is a pollutant under the Clean Air Act, or to evaluate student applications without regard to race--the plaintiff would still have to show that, had the government followed the lawful process, the result would have been different. This is often quite difficult, if not impossible. How could Barbara Grutter, for instance, really have demonstrated that she would have been admitted to the Michigan Law School had the school not considered her race in evaluating her application?
Plaintiffs would thus lack standing to challenge all sorts of unlawful actions by the government. It is therefore significant that the Court has said that this is not necessary--that plaintiffs have standing when the procedural injury (the failure to follow a legally mandated process) is connected to an underlying injury in fact (denial of a subcontract, or loss of coastline, or whatever). So long as following the lawful procedure would make it more likely that the plaintiff would obtain the ultimate benefit (or avoid the ultimate harm), then the plaintiff has an injury in fact.
Third, it is worth reiterating that a procedural injury standing alone will be insufficient for purposes of Article III. It is not enough to assert that the government simply failed to follow the law. Such an "injury" is too abstract and widely shared. Rather, the alleged procedural injury must be connected to an underlying injury in fact that is both (a) concrete and particular, and (b) actual or imminent. This is why the procedural injury in Lujan was insufficient (it was not sufficiently imminent), but it was enough in Massachusetts v. EPA (because if the EPA did initiate rulemaking proceedings, it would be more likely that it would take steps to regulate CO2, which would in turn affect the state's coastal property).
Thursday, January 22, 2009
The Obama administration takes action in Al-Marri
You may recall that, on the first day of class, we discussed the case of Al-Marri v. Spagone, a case on which the Supreme Court has granted certiorari but has yet to hear oral arguments. At issue is a very important question in the government's prosecution of the "war on terrorism" to this point: whether the President can indefinitely detain a lawful United States resident on the grounds that the detainee constitutes an "enemy combatant." The case has been litigated to this point by the Bush administration. But there is a new sheriff in town, so to speak, and there has been speculation that the federal government would shift its position. Today, President Obama announced that the government will seek a delay in the filing of its brief at the Court (currently due February 20), and he has ordered the Justice Department to re-examine its legal position. You can find the President's announcement here.
Wednesday, January 21, 2009
Constitutional crisis averted!
For those of you concerned that the bungling of "faithfully" had left our nation without a constitutionally legitimate president, please rest assured. The world is safe again for democracy!
As just reported by the New York Times, Chief Justice Roberts and President (or quasi-President, or whatever) Obama got together in the Map Room of the White House tonight and went through the whole thing again. No modifiers were misplaced, and Mr. Obama is now unquestionably the President of the United States of America.
Phew!
As just reported by the New York Times, Chief Justice Roberts and President (or quasi-President, or whatever) Obama got together in the Map Room of the White House tonight and went through the whole thing again. No modifiers were misplaced, and Mr. Obama is now unquestionably the President of the United States of America.
Phew!
Schedule for symposium on the Roberts Court
Here is an approximate schedule of the events for Friday's Law Review symposium:
9:00 Welcoming remarks
9:15 to 10:45 Panel 1: Robin Conrad, Brian Wolfman, and Sri Srinivasan (with me as the moderator).
10:45 to 12:15 Panel 2: David Franklin, Mitch Pickerill, and Tracey George as moderator.
12:15 to 1:45 Lunch
1:45 to 3:15 Panel 3: Pam Karlan, Jonathan Adler, Vik Amar, and Terri Peretti as moderator.
3:15-3:30 Break
3:30 Keynote address by Jeffrey Rosen.
Approximately 4:20 Reception
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