FEDERAL COURTS
AND THE FEDERAL SYSTEM
SYLLABUS
SPRING, 2016
TEXT:
Low and Jeffries, Federal Courts and the Law of Federal-State Relations
(8th Ed.) and Supplement
PROFESSOR:
Richard E. Welch III
E-Mail:
[email protected]
Phone: (978) 462-4474 (Business)
NOTE:
Handouts specified in Syllabus are attached. All assignments also include
checking the textbook supplement.
RECOMMENDED (but not required): Erwin Chemerinsky, Federal Jurisdiction (6th
Edition), Aspen/Wolters Kluwer Publishers.
Class 1 [Note that class one does not require any reading from textbook]
INTRODUCTION
In the Beginning: The Articles of Confederation, The Constitution, and Marbury.
1.
What if Turkey and Greece (two members of the NATO alliance) began
hostilities against one another. The NATO treaty (to which the U.S. is a party)
requires intervention by all NATO allies when a fellow member is attacked from
outside its borders. President Obama, occupied with other international matters
and seeking political cover, asks the federal court to interpret the NATO treaty as
to whether intervention is necessary when two NATO countries attack each other.
Could the federal court rule on such an action? Why or why not?
2.
Think back on the Clinton impeachment. What if Senator Lott, unsure of
himself, asks the Supreme Court for an opinion as to whether perjury at a civil
deposition concerning a private lawsuit constitutes a “high crime or
misdemeanor” for purposes of the impeachment clause?
3.
What if the Senate convicted President Clinton of impeachment and the
President filed suit in federal court asserting that the impeachment was
unconstitutional in that perjury concerning a private affair did not constitute a
“high crime or misdemeanor.” Would the Federal Court (and the Supreme Court
on appeal) have the jurisdiction and/or the constitutional power to hear this case
(or Senator Lott’s action)? Would the Supreme Court interpret the phrase “high
crimes as misdemeanors?” Why or why not?
4.
The Affordable Care Act ("Obamacare") constituted a major piece of
economic legislation passed by both Houses after heated debate. Even the
harshest critics of the law recognized that the law did not implicate any "discrete,
insular minority" or raise any equal protection or due process concerns. Should
the Supreme Court have decided the Affordable Care Act case, or should the
Court have allowed the political process to resolve the dispute? In a democracy, is
the Court more justified in deciding the constitutional challenge to the Defense of
Marriage Act? Why or why not?
The Nature of the Federal Judicial Function - Its Sources
1.
Before the Constitution: Read Attachments entitled "Summary of The Articles of
Confederation", "The Articles of Confederation, State Sovereignty, and Related Matters";
and "A Note on the Constitutional Convention" .
2.
The U.S. Constitution, Article III, and the Supremacy Clause: Read Attached "Selections
from the Constitution".
3.
Correspondence to the Justices, read attachment "Correspondence of the Justices".
Advisory Opinions: Why not? Does the Constitution prohibit them, or is this a selfimposed restriction?
4.
Marbury v. Madison. Read attachment "The lazy man’s (and/or woman’s) Marbury".
(The power to interpret the Constitution: who has the power? Where does the Court get
its power? Who gets the last word? In what contexts? Who interprets the constitutional
phrase “high crimes and misdemeanors” in the impeachment clause?).
The Supreme Court frequently (and as recently as the Windsor DOMA 2013 decision)
and proudly citing Marbury, states that it is the Court's power and function to "say what the law
is." But is that always true? What about a national boundary dispute? Does the Supreme Court
make that determination – i.e., say what the law is – or Congress? What about when a President
declares a law unconstitutional and refuses to enforce it? (See Scalia's dissent in Windsor
discussed in next class materials).
5. Read attachment " Marbury and the Dilemma of Judicial Review".
The Power of the Court: A Current Example Ripped from the Headlines
An enjoyable aspect of this course is that you do not have to use your imagination and
make up hypotheticals; the political process produces plenty of fodder. Take this recent news
tidbit: The Speaker of the House, John Boehner announced on June 25, 2014 that he (on behalf
of the House of Representatives) would “file suit in the coming weeks in an effort to compel the
president to follow his oath of office and faithfully execute the laws of our country.” Boehner
complained that President Obama was using his executive powers to propound executive orders
(e.g. EPA regulations and minimum wage standards for federal contractors) and, at the same
time, was not enforcing certain (albeit unspecified) laws. The Speaker was quick to say that such
a lawsuit was “not about impeachment”, but rather a lawsuit “about faithfully executing the laws
of our country.” He explained that “the Judicial Branch has the power to resolve disputes
between the Executive and Legislative Branches.”
If such a lawsuit was filed, would a federal court have jurisdiction? Why or why not?
What relief might a federal court order?
A SUMMARY OF THE ARTICLES OF CONFEDERATION
Richard E. Welch III
The United States was first governed by the Articles of
Confederation. A quick timeline may be useful. In June of 1776 (before
even the Declaration of Independence) the continental Congress resolved
that a “committee be appointed to prepare … the form of a confederation to
be entered into between these colonies.” In November of 1777, the
Continental Congress adopted the Articles of Confederation and sent them
to the colonies (which at that point were in rebellion) to be ratified. Within
the year (November 1778), the requisite supermajority of the colonies (they
called themselves “states” at this point despite the fact that the American
Revolution was a long way from being over) ratified and adopted the
Articles of Confederation. The last state to adopt the Articles was Maryland
(in 1781). After about a decade of use, there existed wide-spread
agreement that the Articles needed to be amended. In February of 1787
congress approved a plan to hold a convention in Philadelphia to revise the
Articles of Confederation.
The Articles of Confederation were dramatically different from the
later Constitution. For example, the Articles did not adopt the tri-partite
system of checks and balances favored by John Locke and Montesquieu.
The Articles set up only a Congress in which each state had one vote
(there was no federal judiciary or executive). After all, many of the states
already had three body (governor, legislature, judiciary) system of
government and the Articles were intended to simply be a treaty amongst
the separate independent states. For a modern equivalent, think of the
European Union.
COMPARING THE ARTICLES WITH THE CONSTITUTION
The following is an edited version of the Articles. Notice particularly the
underlined portions of the document. In stark contrast to the Constitution, the
Articles allowed the States to mint their own money, equip their own naval
vessels, raise its own army to defend against threatened Indian attacks, and
maintained a state’s existing power to regulate trade and relations with the
Indian nations.
I.
The Stile of this Confederacy shall be "The United States of America".
II.
Each state retains its sovereignty, freedom, and independence, and every power,
jurisdiction, and right, which is not by this Confederation expressly delegated to the
United States, in Congress assembled.
III.
The said States hereby severally enter into a firm league of friendship with each other,
for their common defense, the security of their liberties, and their mutual and general
welfare, binding themselves to assist each other, against all force offered to, or
attacks made upon them, or any of them, on account of religion, sovereignty, trade, or
any other pretense whatever…
In determining questions in the United States in Congress assembled, each State shall
have one vote. Freedom of speech and debate in Congress shall not be impeached or
questioned in any court … or place out of Congress, and the members of Congress
shall be protected in their persons from arrests or imprisonments, during the time of
their going to and from, and attendence on Congress, except for treason, felony, or
breach of the peace...
V.
VI.
…but every State shall always keep up a well-regulated and disciplined militia,
sufficiently armed and accoutered, and shall provide and constantly have ready for use,
in public stores, a due number of filed pieces and tents, and a proper quantity of arms,
ammunition and camp equipage.
No State shall engage in any war without the consent of the United States in Congress
assembled, unless such State be actually invaded by enemies, or shall have received
certain advice of a resolution being formed by some nation of Indians to invade such State
IX.
The United States in Congress assembled, shall have the sole and exclusive right and
power of determining on peace and war, except in the cases mentioned in the sixth
article -- of sending and receiving ambassadors -- entering into treaties and alliances,
provided that no treaty of commerce shall be made whereby the legislative power of the
respective States shall be restrained from imposing such imposts and duties on
foreigners, as their own people are subjected to, or from prohibiting the exportation or
importation of any species of goods or commodities whatsoever -- of establishing rules
for deciding in all cases, what captures on land or water shall be legal, and in what
manner prizes taken by land or naval forces in the service of the United States shall be
divided or appropriated -- of granting letters of marque and reprisal in times of peace -appointing courts for the trial of piracies and felonies commited on the high seas and
establishing courts for receiving and determining finally appeals in all cases of
captures, provided that no member of Congress shall be appointed a judge of any of the
said courts.
The United States in Congress assembled shall also be the last resort on appeal in all
disputes and differences now subsisting or that hereafter may arise between two or more
States concerning boundary, jurisdiction or any other causes whatever….
The United States in Congress assembled shall also have the sole and exclusive right and
power of regulating the alloy and value of coin struck by their own authority, or by that of the
respective States -- fixing the standards of weights and measures throughout the United States
-- regulating the trade and managing all affairs with the Indians, not members of any of the
States, provided that the legislative right of any State within its own limits be not infringed or
violated -- establishing or regulating post offices from one State to another, throughout all the
United States, and exacting such postage on the papers passing through the same as may be
requisite to defray the expenses of the said office -- appointing all officers of the land forces, in
the service of the United States, excepting regimental officers -- appointing all the officers of
the naval forces, and commissioning all officers whatever in the service of the United States -making rules for the government and regulation of the said land and naval forces, and directing
their operations.
X.
The Committee of the States, or any nine of them, shall be authorized to execute, in the
recess of Congress, such of the powers of Congress as the United States in Congress
assembled, by the consent of the nine States, shall from time to time think expedient to
vest them with; provided that no power be delegated to the said Committee, for the
exercise of which, by the Articles of Confederation, the voice of nine States in the Congress
of the United States assembled be requisite.
A NOTE ON THE CONSTITUTIONAL CONVENTION
by
Richard E. Welch III
This course does not pretend to be a substitute for a semester studying American history
and this adjunct professor is far from a competent authority on the subject. Of course, one could
argue that a law student might be just as well served taking history, political science and
philosophy courses from a bunch of impressive graduate school professors as studying the
Uniform Commercial Code. Perhaps thinking along the same lines, former Senator Fritz
Hollings stated during a particularly unsuccessful run for the presidency that, if elected, he would
fire all the pollsters and political advisors and replace them with historians. But even judges
know a bit of history. And anyone teaching this course had better brush up on the subject
because this course – perhaps uniquely in the law school curriculum – focuses upon the interplay
between American history, the development and interpretation of the Constitution, and the role of
the state and federal courts within our federal government. So let us begin with a bit of a history
lesson that you probably learned – and may have forgotten– during a college course.
After the successful conclusion of the American Revolution, the new American states
(i.e. the former thirteen colonies) were governed under the Articles of Confederation. With a
confederation – unlike a federal government– the states retained sovereignty and could not be
forced to comply with some national command unless their was nearly unanimous consent of the
states. There were no federal executive or judicial branches and each state retained authority to
impose duties or taxes on interstate commerce. Great difficulties arose enforcing the national
commands of the Confederation’s Congress and likewise many states had no appetite to enforce
court judgments from other states against their own citizens. The general historical consensus is
that the Articles of Confederation were unworkable in that they made the functioning of any
national foreign policy very difficult and erected considerable barriers to the smooth and efficient
workings of the rapidly expanding commerce between the states.
The problems with the Articles of Confederation were set in rather bold relief during the
mid 1780s due to rapid economic expansion, the resulting increase in the number of creditors and
debtors, and the states’ own economic woes related to Revolutionary War debts. Perhaps the
most stunning example of these problems reaching the boiling point occurred in western
Massachusetts in the form of Shay’s Rebellion. Such problems resulted in the calling of the now
famous convention in Philadelphia that produced the United States Constitution in 1787. The
fight for ratification of the new constitution, together with the publishing of the famous Federalist
papers, followed. And the rest, as they say, is history.
Despite the historical trashing of the Articles of Confederation, it should be remembered
that those Articles were adopted for a reason. The long and bloody Revolutionary War was
fought on the principle that persons were to be governed by a local government of their choosing
and not some distant centralized force with a king-like leader with authoritarian powers. And
make no mistake that in the late 1700s almost every revolutionary patriot, be it Washington,
Jefferson, or Adams, considered their “country” the state from which they came. Thus, the
centralizing of power in a national government, as represented by the Constitution, was bitterly
opposed by large numbers of people, known as the Anti-Federalists. And the Constitution had to
confront – or at least paper over– some of the contradictions between a centralized central
government and revolutionary principles. Some of these compromises and contradictions
resurface with surprising consistency (and often with even more surprising results) in
contemporary Supreme Court decisions. For example, the issue of state sovereignty – or the lack
of it – is perhaps the most divisive and important issue confronting the current Supreme Court.
Much of the debate between the Supreme Court majority and minority can be traced back to
differing views of the adoption of the Constitution.
Professor Joseph Ellis, in his recent and highly readable book Founding Brothers,
touches upon the tension between revolutionary war principles embodied in the Declaration of
Independence and the latter adoption of the Constitution. As he notes: “the very arguments used
to justify secession from the British Empire also undermined the legitimacy of any national
government capable of overseeing such a far-flung population, or establishing uniform laws that
knotted together the thirteen sovereign states.... The national government established during the
war under the Articles of Confederation accurately embodied the cardinal conviction of
revolutionary-era republicanism; namely, that no central authority empowered to coerce or
discipline the citizenry was permissible, since it merely duplicated the monarchical and
aristocratic principles that the American Revolution had been fought to escape.”
But how to get from Athens-like principles of democracy to the governing of a cohesive,
geographically large, and diverse nation? The answer was, at least in the minds of James
Madison, Alexander Hamilton, and others, was produced in what Catherine Drinker Bowen
termed the “miracle at Philadelphia”. While perhaps not miraculous, the drafting of the
Constitution was truly an impressive achievement. After all, it was truly the first such document
of its kind and continues to stand as a world wide model. That being said, the Constitution does
contain what are arguably contradictions and certainly centralized power into a national
government.
Again, it is worth quoting Professor Ellis: “the Constitution professed to solve what was
an apparently insoluble political problem. For it purported to create a consolidated federal
government with powers sufficient to coerce obedience to national laws–in effect, to discipline a
truly continental union–while remaining true to the republican principles of 1776. At least
logically, this was an impossibility, since the core impulse of these republican principles, the
original ‘spirit of ‘76', was an instinctive aversion to coercive political power of any sort and a
thoroughgoing dread of the inevitable corruptions that result when unseen rulers congregate in
distant places.....Historians have emphasized the several compromises the delegates in
Philadelphia brokered to produce the constitutional consensus: the interest of large versus small
states; federal versus state jurisdiction; the sectional bargain over slavery. The most revealing
feature in this compromise motif is that on each issue, both sides could plausibly believe they had
gotten the best of the bargain. On the all-important question of sovereignty, the same artfully
contrived ambiguity also obtained: Sovereignty did not reside with the federal government or the
individual states; it resided with “the people.” What that meant was anyone’s guess.....”
Such artfully contrived ambiguities will be revisited in this course. But, as you think
about them and various of the other domestic political disputes of today, you may conclude that
many were created when that relatively small group of political leaders met in Philadelphia
during the hot and humid summer of 1787.
THE ARTICLES OF CONFEDERATION, STATE
SOVEREIGNTY, AND RELATED MATTERS
by
Richard E. Welch III
“We have become a nation.” Dr. Benjamin Rush, July 1788, remarking upon the
ratification of the Constitution.
“It is remarkable in establishing [the Constitution] the people exercised their own
rights and their own proper sovereignty....By this great compact however, many
prerogatives were transferred to the national government....” Chief Justice John Jay,
Chisholm v. Georgia, 2 U.S. 419 (1793).
“We cannot accept the basic premise...that [the State of Rhode Island] has no
...obligation to enforce a valid ... law of the United States..... Such a broad
assumption flies in the face of the fact that the States of the Union constitute a
nation.” Black, J., Testa v. Katt, 330 U.S. 386 (1947).
“each state is a sovereign entity in our federal system.” Kennedy, J., Alden v. Maine,
527 U.S. 706, 729 (1999).
This course deals with the complex and delicate topic of American federalism. One
of the often recurring issues that arises is the power that the states retain under the United
States Constitution. As you will see, there is much talk in the Eleventh Amendment case
law regarding the extent of state “sovereignty”. In order to reach an intelligent position on
this perennial issue, a bit of historical perspective goes a long way.
A dictionary is not a bad place to begin this investigation. According to Webster’s
and the American Heritage dictionaries, sovereignty means “complete independence and
self government” and the holding of “supreme rank”. Now you might ask, how can a state
which is merely part of the federal union be sovereign or completely independent? At least
when it comes to its relationship with the federal government established under the U.S.
Constitution? These are good questions and we will explore them during the course.
Once each colony claimed independence from Great Britain through the
Declaration of Independence of 1776 (if not before), those former colonies (call them
“states” for convenience sake) were independent countries and were sovereign within their
borders. Although the issue of “sovereignty” was considered differently on this side of the
Atlantic than it was in the monarchies of Europe in that the newly liberated colonists
considered the “people” to be sovereign. Between 1774 and 1777, the Continental
Congress debated how the thirteen former colonies should interact. In 1777, the Third
Continental Congress drafted and finalized the Articles of Confederation. Because the
Revolutionary War was ongoing, the Articles were not ratified by the states until 1781.
A confederation (or a federation – the two words are synonymous) is a joinder of
individual nations for limited purposes. For example an agreement that two, three or
twenty nations join together in certain defense treaties, economic agreements, etc. The
nature of a confederation is not to create one nation, but rather to bind together two or
more sovereign nation states. Remember that the term the “United States of America” (a
name created by the Articles of Confederation) was considered a plural in popular usage
until after the Civil War.
The Articles of Confederation stressed that the thirteen states remained sovereign.
At the very beginning of the document, it is provided that: “each state retains its
sovereignty, freedom, and independence”. See Article II of the Articles of Confederation.
You will search in vain for equivalent language in the United States Constitution.
The independence that each state retained under the Articles of Confederation is
displayed by the fact that each state could print and mint its own money, each state taxed
its own citizens (the federal government did not have the power to raise revenue from the
citizens); there existed no federal president or executive and no federal judiciary; and, the
each state could raise and equip there own navy. Needless to say, the United States
Constitution drafted in 1787 and ratified in 1788 was a considerably different document
that centralized power in a federal government in a much different way. After the
Constitution was ratified, there was no more confederacy. The states no longer controlled
interstate commerce, the printing of money, the raising of an army or navy, commerce with
the Indian tribes or nations. Under the Constitution, the federal government was headed
by a President, there was a federal Supreme Court and judiciary, and the federal
government could tax and fund itself. Were states “sovereign” after agreeing to join the
Union under the Constitution?
Even after the sometimes bitter debate surrounding the ratification of the
Constitution, the issue of the sovereignty of each state remained (and remains) an issue of
contention. Sometimes the matter is phrased as “states rights” and sometimes the phrase
“sovereignty” is used. As early as 1798 (just ten years after the Constitution was ratified),
several states argued that they did not have to obey a particularly controversial federal law.
James Madison (who is more responsible for drafting the Constitution than any one else)
drafted the famous “Virginia Resolution of 1798" and Thomas Jefferson drafted a similar
resolution for Kentucky. The state assemblies of both Kentucky and Virginia adopted
these resolutions and declared that the hated Alien and Sedition Acts (two federal laws
directed at silencing domestic political attacks against the ruling Federalist party) conflicted
with the First Amendment and declared those two laws unconstitutional and, thus, not
binding upon the citizens of Virginia and Kentucky. The Virginia and Kentucky Resolutions
are sometimes cited as evidence that Madison had a change of heart after initially
championing the Constitution. This may be an overly simplistic analysis. A careful reading
of the Resolutions reveal a devotion to the Constitution and the protections contained in
that document. Instead, Madison and Jefferson confronted an issue that had not been fully
considered during the Constitutional Convention, i.e. what is the responsibility of each
state when the national government passes a blatantly unconstitutional law. Remember
this issue arises well before the concept of judicial review of an unconstitutional law is
established in Marbury v. Madison.
A few years later, after the Federalists were voted out of power and Jefferson and
then Madison assumed the Presidency, the issue of the power of states to dispute federal
statutes and/or policy arose again. This time the roles were reversed and it is the
Federalist Party (largely confined to the New England states by 1814) that was
complaining about the federal government. The Federalists were bitter about the
Jeffersonian Embargo Act of 1807 (which froze the lucrative shipping trade for a time) and
equally dismayed by the ongoing War of 1812 with Great Britain (called derisively “Mr.
Madison’s War” by certain Federalists). In late 1814, various Federalists organized a
convention to address their concerns. Each New England state sent a delegation to the
convention held in Hartford, Connecticut. Certain of the more extreme Federalists, called
the “Essex Junto” because they hailed mostly from Essex County, Massachusetts, called
for succession from the union and suggested that the New England states pursue a
separate peace treaty with Great Britain. Cooler and more moderate heads prevailed and
the Convention did not propose any disobedience to federal law but did produce a series of
suggested amendments to the Constitution that addressed the supposed advantage given
the Southern states under the Constitution. By the time these suggested amendments
were presented to the President and Congress, the War of 1812 was over and Andrew
Jackson had won the Battle of New Orleans. As a result, the Federalists’ complaints
appeared dated and rather silly. The Federalist Party never regained its lost prestige and,
soon thereafter, was not a national political party.
Then, in 1832, John C. Calhoun (then Vice President and later a Senator from
South Carolina) developed his theory of “nullification” in response to a federal tariff law that
appeared to favor northern manufacturing over southern agricultural interests. Calhoun,
using arguments that had at least a hint of the flavor of the earlier Virginia and Kentucky
Resolutions, asserted that each state retained the authority to declare a federal law
unconstitutional. South Carolina passed a statute declaring the federal statute null and
void and not binding upon the State of South Carolina. Then President Andrew Jackson
wasted no time and issued his Proclamation to the People of South Carolina(1833) that
made it clear that any action taken to enforce nullification would be considered treason.
Jackson declared that the Union would be preserved and that nothing would be permitted
“to weaken our government at home or abroad.” Notice that Andrew Jackson considered it
to be one government – “our government”–and not a series of sovereign nations.
Calhoun’s nullification theories became a wellspring during the increased tensions
between the northern and southern states. The declaration of a Confederacy of Southern
States and the Civil War, of course, constituted an absolute assertion of the sovereignty of
each of the southern states. As we will see, the result of that bloody and costly five year
conflict produced a much different Constitution and much different federalism.
One might think of all of this as ancient history. History, however, has the ability to
teach lessons and define terms. Without an historical perspective, words–such as state
sovereignty– may be empty phrases.
Selected Portions of the Constitution
Article III
Section 1. The judicial power of the United States, shall be vested in one Supreme Court,
and in such inferior courts as the Congress may from time to time ordain and establish. the
judges, both of the supreme and inferior courts, shall hold their offices during good
behaviour, and shall, at stated times, receive for their services, a compensation, which
shall not be diminished during their continuance in office.
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this
Constitution, the laws of the United States, and treaties made, or which shall be made
under their authority;-- to all cases affecting ambassadors....to all cases or admiralty and
maritime jurisdiction;--to controversies to which the United States shall be a party;--to
controversies between two or more states;--between a state and citizens of another state;-between citizens of different states....
Article VI
....... This Constitution, and the laws of the United States which shall be made in pursuance
thereof; and all treaties made, or which shall be made, under the authority of the United
States, shall be the supreme law of the land; and the judges in every state shall be bound
thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
The Correspondence of the Justices -- 1793
by Richard E. Welch III
There is little doubt that George Washington had an all-star cabinet. Henry Knox was the
Secretary of War, Alexander Hamilton was the Secretary of the Treasury, and Thomas Jefferson
served as Secretary of State. By 1793, Jefferson and Hamilton -- whose political beliefs were
evolving in different directions -- were at each other's throats. One of their foremost disagreements
revolved around the perenially simmering tension between France and Great Britain (and the effect
that this on-going war had on the young United States and its commerce). To simplify matters,
Hamilton sided with the British and Jefferson with the French. France, having assisted the colonies
in the American Revolution, had entered into an advantageous treaty with the U.S. and occasionally
used its privileges to outfit its naval vessels (which then attacked British vessels) in U.S. harbors.
Spirited debate errupted within Washington's cabinet as to whether such actions were permitted by
the French treaty. After a stalemate between Hamilton and Jefferson, Jefferson made the practical
suggestion of asking for the opinion of the Supreme Court on the issue. Washington agreed and
directed Jefferson to write a letter to Chief Justice John Jay asking the Supreme Court to answer
numerous questions concerning the interpretation of the Treaty. The questions included: whether
France was allowed, under the treaty, to outfit its ships for war in American harbors; if so, did the
right apply to particular types of vessels; whether the United States could sell ships to both France
and Great Britain under the treaty and "may they be pierced for guns?" The questions continued and
totalled 29 in number.
Jefferson sent the letter in July and Chief Justice Jay and the Associate Justices
replied on August 8, 1793:
"Sir:
We have considered the previous question stated....The lines of separation drawn
by the Constitution between the three departments of the government--their being in
certain respects checks upon each other--and our being judges of a court in the last resort-are considerations which afford strong arguments against the propriety of our
extrajudically deciding the questions alluded to; especially as the power given by the
constitution to the President of calling on the heads of departments for opinions, seems to
have been purposely as well as expressly limited to the executive departments."
Note that John Jay refused to answer the questions because it would be improper
to "extrajudically" decide them. What did he mean? Weren't the justices competent to
interpret a legal document like the treaty and anwer the questions? Why didn't they
answer these pressing questions? Is there something in Article III that prevented them?
In the decision of Muskrat v. United States, 219 U.S. 346, 354-56 (1911), the
Supreme Court relied in part on the Opinion of the Justices and related that opinion to an
important Article III principle:
In 1793, by direction of the President, Secretary of State Jefferson addressed to
the Justices of the Supreme Court a communication soliciting their views upon the
question whether their advice to the executive would be available in the solution of
important questions of the construction of treaties, laws of nations and laws of the land,
which the Secretary said were often presented under circumstances which "do not give a
cognizance of them to the tribunals of the country." The answer to the question was
postponed until the subsequent sitting of the Supreme Court, when Chief Justice Jay and
his associates answered to President Washington that in consideration of the lines of
separation drawn by the Constitution between the three departments of government, and
being judges of a court of last resort, afforded strong arguments against the propriety of
extrajudicially deciding the questions alluded to, and expressing the view that the power
given by the Constitution to the President of calling on heads of departments for opinions
"seems to have been purposely, as well as expressly, united to the executive
departments." Correspondence & Public Papers of John Jay, vol. 3, p. 486.......
It therefore becomes necessary to inquire what is meant by the judicial power thus
conferred by the Constitution upon this court, and with the aid of appropriate legislation
upon the inferior courts of the United States. "Judicial power," says Mr. Justice Miller in his
work on the Constitution, "is the power of a court to decide and pronounce a judgment and
carry it into effect between persons and parties who bring a case before it for decision."
Miller on the Constitution, 314.
As we have already seen by the express terms of the Constitution, the exercise of
the judicial power is limited to "cases" and "controversies." Beyond this it does not extend,
and unless it is asserted in a case or controversy within the meaning of the Constitution,
the power to exercise it is nowhere conferred.
The lazy man's or woman's Marbury
Yes, read this severly edited version again. Note the bolded portions in
particular.
5 U.S. 137 (____)
1. 1 Cranch 137
WILLIAM MARBURY
v.
JAMES MADISON, SECRETARY OF STATE OF THE UNITED
STATES.
Supreme Court of United States.
Opinion of the Court.
............
2dly. If he has a right, and that right has been violated, do the laws of his country afford
him a remedy?
The very essence of civil liberty certainly consists in the right of every individual to
claim the protection of the laws, whenever he receives an injury. One of the first duties
of government is to afford that protection....
The government of the United States has been emphatically termed a government of
laws, and not of men. It will certainly cease to deserve this high appellation, if the laws
furnish no remedy for the violation of a vested legal right....
By the constitution of the United States, the president is invested with certain important
political powers, in the exercise of which he is to use his own discretion, and is
accountable only to his country in his political character and to his own
conscience....
But when the legislature proceeds to impose on that officer other duties: when he is
directed peremptorily to perform certain acts; when the rights of individuals are
dependent on the performance of those acts; he is so far the officer of the law; is
amenable to the laws for his conduct; and cannot at his discretion sport away the vested
rights of others.
The conclusion from this reasoning is, that where the heads of departments are the
political or confidential agents of the executive, merely to execute the will of the
president, or rather to act in cases in which the executive possesses a constitutional or
legal discretion, nothing can be more perfectly clear than that their acts are only
politically examinable. But where a specific duty is assigned by law, and individual
rights depend upon the performance of that duty, it seems equally clear that the
individual who considers himself injured, has a right to resort to the laws of his country
for a remedy....
The province of the court is, solely, to decide on the rights of individuals, not to inquire
how the executive, or executive officers, perform duties in which they have a
discretion. Questions in their nature political, or which are, by the constitution and
laws, submitted to the executive, can never be made in this court....
If one of the heads of departments commits any illegal act, under colour of his
office, by which an individual sustains an injury, it cannot be pretended that his
office alone exempts him from being sued in the ordinary mode of proceeding, and
being compelled to obey the judgment of the law....
This original and supreme will organizes the government, and assigns to different
departments their respective powers. It may either stop here, or establish certain limits
not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the
legislature are defined and limited; and that those limits may not be mistaken, or
forgotten, the constitution is written. To what purpose are powers limited, and to
what purpose is that limitation committed to writing, if these limits may, at any time, be
passed by those intended to be restrained? The distinction between a government with
limited and unlimited powers is abolished, if those limits do not confine the persons on
whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.
It is a proposition too plain to be contested, that the constitution controls any legislative
act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternative there is no middle ground. The constitution is either a
superior paramount law, unchangeable by ordinary means, or it is on a level with
ordinary legislative acts, and, like other acts, is alterable when the legislature shall
please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the
constitution is not law: if the latter part be true, then written constitutions are absurd
attempts, on the part of the people, to limit a power in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as
forming the fundamental and paramount law of the nation, and, consequently, the
theory of every such government must be, that an act of the legislature, repugnant
to the constitution, is void.....
It is emphatically the province and duty of the judicial department to say what the
law is. Those who apply the rule to particular cases, must of necessity expound
and interpret that rule. If two laws conflict with each other, the courts must decide
on the operation of each....
The judicial power of the United States is extended to all cases arising under the
constitution.
Could it be the intention of those who gave this power, to say that in using it the
constitution should not be looked into? That a case arising under the constitution should
be decided without examining the instrument under which it arises?
This is too extravagant to be maintained....
Why does a judge swear to discharge his duties agreeably to the constitution of the
United States, if that constitution forms no rule for his government? if it is closed upon
him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or,
to take this oath, becomes equally a crime....
The rule must be discharged.
Marbury and the dilemma of judicial review in a
current context.
by Richard E. Welch III
Students undoubtedly shudder when confronted in their third year with the
assignment of once again reading Marbury v. Madison. The silent response to such an
assignment often may be: “but I read that in Constitutional Law, I learned about it in
college, I know that the case stands for the important proposition that the Supreme
Court may review the constitutionality of a law and declare it invalid, i.e.
unconstitutional.”
Such a response is understandable. In my experience, however, few students
fully grasp the importance of Marbury when they first read it. For example, where does
the Court get the power to declare a law unconstitutional? Do other branches of the
federal government have the right to make similar constitutional determinations? What
are the dangers of judicial review and the power to declare a law unconstitutional?
The power to strike down a law created by a democratic majority presents what
many scholars have considered the counter-majoritarian dilemma. In other words, “a
nagging concern about the legitimacy of judicial review – a worry that constitutional
law may, as Judge Learned Hand feared, be merely a screen for judicial value
judgments.” Farber & Sherry, Desperately Seeking Certainty: The Misguided Quest for
Constitutional Foundations, p. 160. This is the concern that animated the Court in
Marbury v. Madison. It was issue that enraged President Andrew Jackson, when after
the Court’s decision supporting the Cherokee Indian tribe against the land grabbing
government of Georgia (Worcester v. Georgia), he reportedly uttered the famous
words: “John Marshall has made his decision: now let him enforce it!” Needless to say,
the Court’s mandate was not enforced. And the issue concerned Abraham Lincoln
when he responded to the Supreme Court’s wretched Dred Scott decision in his first
inaugural address:
The candid citizen must confess that if the policy of the government upon vital
questions affecting the whole people is to be irrevocably fixed by decisions of the
Supreme Court, the instant they are made in ordinary litigation between parties in
personal actions the people will have ceased to betheir own rulers, having to that extent
practically resigned their government into the hands of that eminent tribunal.
Franklin D. Roosevelt had similar misgivings about judicial review when
confronted with a hostile Supreme Court reviewing New Deal legislation. And on it
goes. For a more detailed analysis of this branch of constitutional law history, you
might read: Welch, "They Will Not Open Their Ears": Should We Listen to the Supreme
Court and Should the Court Listen to Us?, 47 New England Law Review,101-133
(2013).
I am always confronted with certain law students who throw up their hands and
declare (on the basis of a handful of courses) that they are convinced that most every
judge – and particularly those enjoying tenure on the Supreme Court– is an
unprincipled sort who decides a case according to his or her own whim or his or her
own political leanings. Unfortunately, this view can be supported by various Supreme
Court opinions – some of which leave me shaking my head. The Bush v. Gore, 531
U.S. 98 (2000) decision is perhaps the most stark example of these politically inspired
decisions. This view that judges are simply making personal value judgments appears
to be held not just by law students, but also the public at large and politicians in
particular. What is peculiar is that this rather widely held belief has not led people to
reconsider the legitimacy of judicial review. Rather, Americans seem rather satisfied –
or at least complacent– that the Supreme Court – and other federal courts– decide
rather thorny and hotly debated public issues. For example, there was little debate over
whether the Supreme Court should tackle the constitutional challenge to the Affordable
Care Act ("Obamacare") or the Defense of Marriage Act. Instead of questioning the
limits of judicial review and its counter-majoritarian implications, the response, at least
from the two leading political parties, arguably has been to nominate federal judicial
candidates based on their political leanings and value judgments. This is a far cry from
seeking applicants who are open minded on the legal issues they may confront and seek
to resolve the dispute in a neutral fashion consistent with the wording of the
Constitution, historical development, and case law.
The result of this rather cynical view of judges, and their proper role in our
democracy, may be the judicial confirmation gridlock that one now sees (and has seen
for the last ten years) practiced by both major political parties in the United States
Senate. Justice James McHugh, of the Massachusetts Appeals Court, addressed this
important issue:
Intense partisan conflict is a logical, perhaps inevitable, product of a politicized
judiciary, or at least a politicized process for selecting judges, in a nation as
closely divided as we are over fundamental cultural issues. When people turn to
the courts for victories over cultural disputes that each side was unable to win in
the legislatures, it does not take long for combatants to realize that victory is
more certain if decision makers are cultural allies and, thus, to focus on winning
through selection of agreeable judges......The corrosive effect of the partisan
struggle is hard to overstate. After all, the very existence of the rule of law
depends on one’s ability to predict the outcome of civil and criminal disputes by
looking at principles of even-handed application, not at the identity of the
dispute resolver. But many are coming to view the judge’s identity and
ideological hardwiring as more important to the outcome of a given case than the
application of settled principle to the discrete set of facts a case presents. The
greater that view’s currency, the more the judicial process morphs into an
exercise in power, pure and simple, shedding as it does the moral authority that
historically has given the process, if not its life, then at least its character.
Justice McHugh concludes (citing the work of Professors Farber and Sherry) that
the solution to the counter-majoritarian dilemma is to avoid appointing “willful
judges.” As he states:
Preservation of the rule of law and of the moral authority required for
popular acceptance of counter-majoritarian decisions requires substantial
self-restraint by appointed judges. In turn however, preservation of a
judiciary willing to exercise that self-restraint requires self-restraint on
the part of those invested with the appointing and confirming power.
Self-restraint of that type requires appointments of moderation,
appointments that is, of men and women committed to a deliberative
process in which all views receive thoughtful consideration before a
decision is made. An appointing authority whose commitments lie
elsewhere, an authority focused simply on installation of judges likely to
serve up decisions confirming preordained ideological and cultural
results, risks far more than prolonged and contentious confirmation
battles. Indeed, efforts to enshrine ideology place at risk the entire legal
system that has been carefully, if sometimes fitfully, developed over the
last two centuries.
James H. McHugh, Book Review, Massachusetts Law Review (Vol.87, No.4)
(Spring 2003).
The goal of having judges decide matters in a neutral, principled fashion–an
approach promoted by such scholars as Herbert Wechsler and Henry Hart who
first created the Federal Courts curriculum back in the early 1950s-- is
sometimes considered unrealistic and old fashioned. Such popular legal
columnists as Jeffery Toobin argue that federal judges–particularly Supreme
Court justices– always have reflected political philosophies and should continue
to do so. Such a belief, however, appears to conflict with the entire premise
justifying judicial review in a democracy. Whether a judge can or should attempt
to find nuetral prinicples in deciding a case or, on the contrary, decide matters
based on his or her societal and political hardwiring is ultimately a question that
any student of the Federal Courts class must answer. See Wechsler, Toward
Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).
The issues of the legitimate limits of judicial review will continue to crop up
throughout the course, as they continue to crop up throughout the life of this Republic.
Class 2
Standing and Political Questions: the Judicial “Discretion” to Refuse to Adjudicate
1.
Remember Chief Justice Marshall’s famous corollary to Marbury stated in
Cohens v. Virginia: “We have no more right to decline the exercise of
jurisdiction which is [constitutionally] given, than to usurp that which is not
given.”
2.
Standing: Introductory Note on Standing, pp. 254-256; Allen v. Wright, pp. 256270. Notes on Standing as a Constitutional Requirement 1 and 2 (concerning
Schlessenger case) pp. 271-278 and Introductory Note on Taxpayer Standing 297298.
3.
Discretion and Standing: Elk Grove Unified School District v. Newdow, Read
Attachments "Prudential Standing and the Refusal to Accept Jurisdiction"
and "Standing: Article III, Discretion and the 'Primary Role of the Court':
Winsdor Decision".
Is standing a constitutionally mandated doctrine? How much discretion should
federal courts have to decline to hear a case? Also, note Justice Powell’s
concurring opinion in United States v. Richardson (Read Attachment
"Standing: The Role of the Court and Role of Congress). Does this discussion
remind you of a constitutional law theory?
4.
Standing and Congress: Lujan v. Defendant of Wildlife, pp. 281-292,
particularly Part IV of Scalia’s majority opinion and Part II of Blackmum’s dissent.
Notes on Statutory Standing, pp.292-296. Can Congress expand the standing doctrine?
If so, in what circumstances? If one component of standing is some sort of separation of
powers concern, does Congress’ determination that certain persons should be able to
enforce a particular right override this component of standing? Read Friends of the Earth
v. Laidlaw,293-295 where Scalia is in the dissenting minority. After Laidlaw is Lujan
good law?
“Standing” and Congressional Authorization: a Current Example
Congress has included so-called “citizen suit” provisions in almost every piece of
modern environmental legislation. These statutes allow for the federal government (i.e.
the U.S. EPA), the state environmental agency, or any citizen to sue a party who is
discharging pollutants above the federally mandated level. The waste company Laidlaw
has been violating the federal Clean Air Act for the last five years by operating an
incinerator which discharges mercury levels five times greater than the federal level.
Over the past five years, the state authorities have been working with Laidlaw to reduce
mercury admissions by developing a new technology. The state or federal government
has never instituted any type of enforcement action against Laidlaw. Laidlaw is on the
verge of installing this new technology.
The Environmental Defense Fund (“EDF”),utilizing the citizen suit provision,
brings suit against Laidlaw for its five years of Clean Air Act violations claiming
statutory penalties and attorney’s fees. EDF membership includes numerous people who
live in the vicinity of the Laidlaw plant. Laidlaw soon thereafter comes into compliance.
Does the EDF have standing? Is the case moot?
See Friends of the Earth v. Laidlaw, pp. 293-295.
Political Questions:
A Current Example: What if a member of the House of Representatives, distressed with
the American military activities in Iraq, sues the President in federal court and requests
an injunction to stop all military occupation and all war-like activities. The
Representative argues that the military action in Afghanistan is unconstitutional because
the House has never declared war. Does the House member have standing? Is this a case
or controversy? If so, will the federal court decide the case?
Another Current Example: Assume that the 2000 presidential election ended up in the
U.S. House of Representatives pursuant to Article II, Sec. 1 of the Constitution. Assume
further that Florida has two slates of electors (one loyal to Gore and another-selected by
the Florida legislature supporting Bush). The House narrowly votes to accept the Bush
slate of electors. Gore appeals to the Supreme Court. Can/should the court determine
which is the legitimate slate.
Political Questions: Introductory Notes, pp. 410-415. Read Nixon v. United States, and
following notes (1-4), pp. 415-421. Why was Bush v. Gore not a political question?
Remember Justice Powell’s concurrence in U.S. v. Richardson.
Is the political question doctrine based upon Article III case or controversy/constitutional
limitations or is this a doctrine motivated by separation of powers and prudential
concerns?
When should/can a Federal Court decline to decide a case based upon this doctrine? Is
there some neutral principle one could use as a guidepost?
In Powell v. McCormack, why does not the Constitution show a “textually demonstrable
commitment of the issue” [i.e. judging the qualification of a member of Congress] to
Congress?
Compare the positions of Wechsler with Bickel and Souter. Would Bickel have
recommended that the Supreme Court decide the Bush v. Gore case? Would Wechsler?
Note Justice Powell’s approach in his Goldwater v. Carter, p. 542, concurrence. Might
the doctrine of ripeness be used to avoid at least some of the judicial interference in hotly
debated political issues and alleviate some of Bickel’s concerns?
Is the determination of the boundaries of the United States a political question? The
extent of the sovereignty of the United States? The territorial extent to which the writ of
habeas corpus applies? See Boumediene v. Bush.
For impeachment, who determines what is a “high crime or misdemeanor?” The Senate,
the Courts, the Chief Justice?
Could one argue that the political question doctrine has no legitimate basis and that it is
contrary to Marbury v. Madison?
What argument supports limiting the political question doctrine to cases of impeachment
and constitutional amendment?
“PRUDENTIAL” STANDING AND THE REFUSAL TO ACCEPT
JURISDICTION
by
Richard E. Welch III
The famous Marbury decision stands for many things. One of the most basic
holdings is that a federal court’s jurisdiction is limited by Article III and the court cannot
accept more jurisdiction than permitted by the Constitution. Chief Justice John Marshall
stated a famous corollary to this Marbury holding in the case of Cohens v. Virginia: “We
have no more right to decline the exercise of jurisdiction which is [constitutionally]
given, than to usurp that which is not given.” In other words, federal courts may be
courts of limited jurisdiction but they have to hear the cases that Congress says they can
hear (as long as Article III permits Congress to give that jurisdiction). This all seems
rather obvious. One cannot seriously consider a federal system of justice that would
permit a judge to decline jurisdiction simply because the case is controversial, difficult,
lengthy, or boring. For example, assume a judge came on the bench and announced that
he/she would not hear a case involving various restrictions on abortion or a case
involving the right to protest at a political convention. The hypothetical judge’s
reasoning might be: “look, these are delicate and difficult issues that stir up a great deal
of public controversy and scrutiny. I am not here to make waves. You can always
pursue this case in state court. Therefore, I decline jurisdiction.” Such a judge could
expect a prompt, critical and curt opinion from the Court of Appeals reversing this ruling
and telling the judge, in essence, “hey, do your job.”
But, not so fast. There are various doctrines, including the doctrine of standing,
that may permit a judge to exercise discretion to decline to hear a case over which the
court plainly has jurisdiction. The question raised by such cases and doctrines is whether
they are legitimate and/or constitutional.
Take for example the political “hot button” issue of the pledge of allegiance. As
many of you know, the Court of Appeals for the Ninth Circuit recently ruled that the
phrase “under God” in the Pledge was unconstitutional under the Establishment Clause of
the First Amendment. After much huffing and puffing by pols of every stripe, the
Supreme Court granted cert. and agreed to review the case. The case (Elk Grove Unified
School Dist. v. Newdow) was brought by the father of a kindergarten student in a
California public school. The school day began with a recitation of the Pledge of
Allegiance. The father was/is a devout atheist and argued that he had standing to sue
because the Pledge interfered with his ability to counsel his young daughter regarding
matters of religion. Given the fragility of marriage in this day and age, or perhaps
because he lived in California, Mr. Newdow was no longer married to the mother of his
daughter. The mother, who had either legal custody or joint legal custody (the record is
unclear), objected to the entire lawsuit and claimed that the daughter believed in God and
was happy to recite the Pledge. The Court of Appeals unanimously agreed that Newdow
had standing to pursue his claim.
Dodging this political hot potato, the Supreme Court ruled (in a five to three
opinion – Justice Scalia had to sit this one out having already announced his decision
long before oral argument was heard) that it would not reach the merits of the “under
God” controversy because Newdow lacked standing to pursue the claim. What is
particularly interesting about this standing decision is that every judge (either in the
majority or in dissent) agreed that the plaintiff Newdow had suffered an injury for
purposes of Article III (i.e. that this was a case or controversy for
purposes of Article III and the plaintiff was likely to obtain relief from his injury if he
obtained a favorable judgment). As Chief Justice Rehnquist explained in dissent: “the
daughter is not the source of respondent’s standing; instead it is their relationship that
provides respondent his standing....” (i.e. the pledge ceremony infringes on Newdow’s
rights to expose his daughter to his religious views).
What the majority (Stevens, Kennedy, Souter, Ginsburg, and Breyer) held was
that Newdow lacked “prudential” standing and distinguished this from Article III or
constitutional standing. “When hard questions of domestic relations are sure to affect the
outcome, the prudent course is for the federal court to stay its hand rather than reach out
to resolve a weighty question of federal constitutional law.” In other words, take this
matter to state court.
This part time law school professor knows of no other Supreme Court case that so
explicitly adopts the notion of “prudential standing.” The majority opinion quotes
language from Allen v. Wright that strongly implies that there exists a prudential
component to standing and then explicitly states: “our standing jurisprudence contains
two strands: Artlicle III standing, which enforces the Constitution’s case or controversy
requirement...and prudential standing, which embodies ‘judicially self-imposed limits on
the exercise of federal jurisdiction.” The dissenting justices (Rehnquist, O’Connor, and
Thomas) fully agree with this statement and also assert that there is (and should be) a
prudential component of standing. Where the dissenting justices disagree is the issue of
whether this is an appropriate case to decline jurisdiction on the doctrine of prudential
standing. And this disagreement may reveal the problem with any “prudential” standing
doctrine for a matter of prudence or discretion is rarely well defined – and it certainly is
not mentioned in the Constitution or in any jurisdictional statute.
The majority in Newdow admits that the Supreme Court has “not exhaustively
defined the prudential dimensions of the standing doctrine.” Somewhat defensively, the
Court states: “we have explained that prudential standing encompasses [1] the general
prohibition on a litigant’s raising another person’s legal rights,[2] the rule barring
adjudication of generalized grievances more appropriately addressed in the representative
branches, and [3]the requirement that a plaintiff’s complaint fall within the zone of
interests protected by the law invoked.”(citations omitted, numbers supplied). Consider
these three supposed examples of prudential standing. Examples 1 and 3 appear to relate
to whether the person has actually suffered an injury (i.e. an Article III, constitutional
“case or controversy” question and not a prudential concern). In any event, do any of
these three categories relate to Mr. Newdow and his claim? He was raising his own
claim (not his daughter’s or another third party’s). His complaint falls within the
Establishment Clause (i.e. he is claiming that the pledge constitutes an establishment of
religion). Finally, is this freedom of religion/establishment clause claim that type of
generalized grievance more appropriately addressed to Congress? Or is this the type of
claim that the unelected federal judiciary is especially envisioned to consider, i.e.
protecting individual liberties against the tyranny of the majority?
Whether one sides with the majority or minority on the Newdow standing
controversy, alarger issue looms. Should there be a prudential component of standing at
all? Is it constitutionally justifiable? Can it comport with Marbury? Does such a
doctrine have any neutral and principled boundaries? Is it simply an excuse for a court to
use wide ranging discretion to avoid tough issues? Is this a necessary evil in a complex,
heterogeneous democratic society that removes the federal courts from certain cultural
clashes and perhaps avoids fatal pressures being placed upon an institution that does not
have the powers of either the treasury or the sword? If so, where does Newdow go with
his lawsuit. He has suffered an injury and alleged a serious constitutional violation.
Apparently the Supreme Court believes he should take the claim to state court and rely
upon the general jurisdiction of the state court to resolve this federal constitutional issue.
Is this a wise result? Does this mean that it is the state court that should take the political
heat for deciding a controversial, widely-reported, and much-debated constitutional
issue? Is the state court more likely to withstand the withering criticism than the federal
court system?
Standing: Article III or Discretion, and the "the Supreme
Court's primary role in determining the constitutionality
of a law":
United States v. Windsor
by Richard E. Welch III
One of the "blockbuster" cases at the end of the Supreme Court's 2012
term was the 5 to 4 decision declaring the federal Defense of Marriage Act
(DOMA) unconstitutional. Although the news media focused on the merits
of the case, i.e. whether the constitution allowed the federal government to
deny federal benefits to single sex couples whose marriages were recognized
in various states, a major preliminary disagreement between the five member
majority (Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan) and three
members of the dissent (Roberts, Scalia, and Thomas) was the issue of
whether the parties had "standing" and, thus, whether the Supreme Court had
jurisdiction to hear and decide the case. The primary complication regarding
standing was that President Obama, in the midst of the district court
litigation over a substantial tax refund, decided that DOMA was
unconstitutional and directed the Department not to defend the
constitutionality of the law (yet, at the same time instructed the IRS and
other agencies to continue to enforce the law – i.e. not voluntarily give the
refund for the marriage tax exemption). Read the edited version of the case
below (which focuses on the standing issue) and note that the majority
(citing both the Allen v. Wright and Newdow cases) explicitly recognizes that
the standing doctrine contains components: 1) whether the dispute is an
Article III case or controversy and 2) a prudential component, i.e., whether
the court should hear the case as a matter of discretion. Justice Scalia's
dissent attacks this definition of standing and deserves attention. Given that
the House of Representatives intervened and provided a spirited defense of
DOMA, wasn't there a sufficiently adverse, particularized dispute for
standing purposes? Or is Scalia correct that Windsor redefines the doctrine
of standing?
In exercising its discretion to hear this case, the Supreme Court
majority noted that "were this Court to hold that prudential rules require it to
dismiss the case...district courts... throughout the Nation would be without
precedential guidance...rights and privileges of hundreds of thousands of
persons would be adversely affected...." The majority, trotting out the old
Marbury chestnut that "it is emphatically the province and duty of the
judicial department to say what the law is", also appeared concerned about
protecting the Court's "primary role in determining the constitutionality of a
law." Note Justice Scalia's particularly heated attack on this reasoning.
Which side has the better argument on this particular issue?
Although standing is often a dry – if not downright boring – issue, the spirited
debate in Windsor makes for rather interesting reading and emphasizes that the
doctrine may contain prudential or discretionary judgment calls that are influenced by
one's view of the proper role of the Supreme Court in our democracy. Interestingly
enough, and perhaps showing how subjective the doctrine of standing has become, a
different majority (Roberts, Scalia, Ginsburg, Breyer, and Kagan) found–on the same
day– a lack of standing in Hollingsworth v. Perry (the case challenging the
constitutionality of California's state constitutional ban on same sex marriage). In
dissent on the standing issue was the rather strange ideological collection of Kennedy,
Thomas, Alito and Sotomayor. Hollingsworth presented a somewhat different issue
than Windsor. In Hollingsworth, the defendants (various high ranking state officials)
did not appeal the district court judgment; instead the interveners (the individuals and
organizations that sponsored the initiative that amended the state constitution)
appealed. The majority found that the interveners had not been injured and that the
case presented a generalized grievance (not a "case or controversy"); Article III
standing "is not to be placed in the hands of concerned bystanders". The dissent
believed that proponents of successful state law initiatives possessed both motivation
and standing to vigorously litigate the issue.
UNITED STATES, PETITIONER v. EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS
EXECUTOR OF THE ESTATE OF THEA CLARA SPYER, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 26, 2013]
JUSTICE KENNEDY delivered the opinion of the Court.
Two women then resident in New York were married in a lawful ceremony in Ontario,
Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City.
When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the
estate tax exemption for surviving spouses. She was barred from doing so, however, by a federal
law, the Defense of Marriage Act, which excludes a same-sex partner from the definition of
“spouse” as that term is used in federal stat- utes. Windsor paid the taxes but filed suit to
challenge the constitutionality of this provision. The United States District Court and the Court
of Appeals ruled that this portion of the statute is unconstitutional and ordered the United
States to pay Windsor a refund.
.....
Spyer died in February 2009, and left her entire estate to Windsor. Because DOMA
denies federal recognition to same-sex spouses, Windsor did not qualify for the marital
exemption from the federal estate tax, which excludes from taxation “any interest in property
which passes or has passed from the decedent to his surviving spouse.” 26
U. S. C. §2056(a). Windsor paid $363,053 in estate taxes and sought a refund. The Internal
Revenue Service denied the refund, concluding that, under DOMA, Windsor was not a
“surviving spouse.” Windsor commenced this refund suit in the United States District Court for
the Southern District of New York. She contended that DOMA violates the guarantee of equal
protection, as applied to the Federal Government through the Fifth Amendment.
While the tax refund suit was pending, the Attorney General of the United States
notified the Speaker of the House of Representatives, pursuant to 28 U. S. C. §530D, that the
Department of Justice would no longer defend the constitutionality of DOMA’s §3. Noting that
“the Department has previously defended DOMA against . . . challenges involving legally
married same-sex couples,” App. 184, the Attorney General informed Congress that “the
President has concluded that given a number of factors, including a documented history of
discrimination, classifications based on sexual orientation should be subject to a heightened
standard of scrutiny.” Id., at 191. The Department of Justice has submitted many §530D letters
over the years refusing to defend laws it deems unconstitutional, when, for instance, a federal
court has rejected the Government’s defense of a statute and has issued a judgment against it.
This case is unusual, however, because the §530D letter was not preceded by an adverse
judgment. The letter instead reflected the Executive’s own conclusion, relying on a definition
still being debated and considered in the courts, that heightened equal protection scrutiny
should apply to laws that classify on the basis of sexual orientation.
Although “the President . . . instructed the Department not to defend the statute in
Windsor,” he also decided “that Section 3 will continue to be enforced by the Executive Branch”
and that the United States had an “interest in providing Congress a full and fair opportunity to
participate in the litigation of those cases.” Id., at 191–193. The stated rationale for this dualtrack procedure (determination of unconstitutionality coupled with ongoing enforcement) was to
“recogniz[e] the judiciary as the final arbiter of the constitutional claims raised.” Id., at 192.
In response to the notice from the Attorney General,the Bipartisan Legal Advisory Group
(BLAG) of the House of Representatives voted to intervene in the litigation todefend the
constitutionality of §3 of DOMA. ....
On the merits of the tax refund suit, the District Court ruled against the United States. It
held that §3 of DOMA is unconstitutional and ordered the Treasury to refund the tax with
interest. ...
There is no dispute that when this case was in the District Court it presented a
concrete disagreement between opposing parties, a dispute suitable for judicial resolution.
“[A] taxpayer has standing to challenge the collection of a specific tax assessment as
unconstitutional; being forced to pay such a tax causes a real and immediate economic
injury to the individual taxpayer.” Hein v. Freedom From Religion Foundation, Inc., 551 U.
S. 587, 599 (2007) (plurality opinion) (emphasis deleted). Windsor suffered a redressable
injury when she was required to pay estate taxes from which, in her view, she was exempt
but for the alleged invalidity of §3 of DOMA.
The decision of the Executive not to defend the constitutionality of §3 in court while
continuing to deny refunds and to assess deficiencies does introduce a complication. Even
though the Executive’s current position was announced before the District Court entered its
judgment, he Government’s agreement with Windsor’s position would not have deprived the
District Court of jurisdiction to entertain and resolve the refund suit; for her injury (failure
to obtain a refund allegedly required by law) was concrete, persisting, and unredressed. The
Government’s position—agreeing with Windsor’s legal contention but refusing to give it
effect—meant that there was a justiciable controversy between the parties, despite what the
claimant would find to be an inconsistency in that stance. Windsor, the Government, BLAG,
and the amicus appear o agree upon that point. The disagreement is over the standing of
the parties, or aspiring parties, to take an appeal in the Court of Appeals and to appear as
parties in further proceedings in this Court. ....
The amicus submits that once the President agreed with Windsor’s legal position and
the District Court issued its judgment, the parties were no longer adverse. From this
standpoint the United States was a prevailing party below, just as Windsor was.
Accordingly, the amicus reasons, it is inappropriate for this Court to grant certiorari and
proceed to rule on the merits; for the United States seeks no redress from the judgment
entered against it.
This position, however, elides the distinction between two principles: the jurisdictional requirements of
Article III and the prudential limits on its exercise. See Warth v. Seldin, 422 U. S. 490, 498 (1975). The latter are
“essentially matters of judicial self-governance.” Id., at 500. The Court has kept these two strands separate: “Article
III standing, which enforces the Constitution’s case-or-controversy requirement, see Lujan v. Defenders of Wildlife,
504 U. S. 555, 559–562 (1992); and prudential standing, which embodies ‘judicially self-imposed limits on the
exercise of federal jurisdiction,’ Allen [v. Wright,] 468 U. S. [737,] 751 [(1984)].” Elk Grove Unified School Dist. v.
Newdow, 542 U. S. 1, 11–12 (2004).
The requirements of Article III standing are familiar:
“First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent,
not “conjectural or hypothetical.”’ Second, there must be a causal connection between
the injury and the conduct complained of—the injury has to be ‘fairly . . . trace[able] to
the challenged action of the defendant, and not . . . th[e] result [of] the independent
action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to
merely ‘speculative,’ that the injury will be ‘redressed by a favor- able decision.’” Lujan,
supra, at 560–561 (footnote and citations omitted).
Rules of prudential standing, by contrast, are more flexible “rule[s] . . . of federal appellate
practice,” Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 333 (1980), designed to
protect the courts from “decid[ing] abstract questions of wide public significance even
[when] other governmental institutions may be more competent to address the questions
and even though judicial intervention may be unnecessary to protect individual rights.”
Warth, supra, at 500.
In this case the United States retains a stake sufficient to support Article III
jurisdiction on appeal and in proceedings before this Court. The judgment in question orders
the United States to pay Windsor the refund she seeks. An order directing the Treasury to
pay money is “a real and immediate economic injury,” Hein, 551 U. S., at 599, indeed as real
and immediate as an order directing an individual to pay a tax. That the Executive may
welcome this order to pay the refund if it is accompanied by the constitutional ruling it
wants does not eliminate the injury to the national Treasury if payment is made, or to the
taxpayer if it is not. The judgment orders the United States to pay money that it would not
disburse but for the court’s order. The Government of the United States has a valid legal
argument that it is injured even if the Executive disagrees with §3 of DOMA, which results
in Windsor’s liability for the tax. Windsor’s ongoing claim for funds that the United States
refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. It would
be a different case if the Executive had taken the further step of paying Windsor the refund
to which she was entitled under the District Court’s ruling....
It is true that “[a] party who receives all that he has sought generally is not
aggrieved by the judgment affording the relief and cannot appeal from it.” Roper, supra, at
333, see also Camreta v. Greene, 563 U. S. ___, ___ (2011) (slip op., at 8) (“As a matter of
practice and prudence, we have generally declined to consider cases at the request of a
prevailing party, even when the Constitution allowed us to do so”). But this rule “does not
have its source in the jurisdictional limitations of Art. III. In an appropriate case, appeal
may be permitted . . . at the behest of the party who has prevailed on the merits, so long as
that party retains a stake in the appeal satisfying the requirements of Art. III.” Roper,
supra, at 333–334.
While these principles suffice to show that this case presents a justiciable
controversy under Article III, the prudential problems inherent in the Executive’s unusual
position require some further discussion. The Executive’s agreement with Windsor’s legal
argument raises the risk that instead of a “‘real, earnest and vital controversy,’” the Court
faces a “friendly, non-adversary, proceeding . . . [in which] ‘a party beaten in the legislature
[seeks to] transfer to the courts an inquiry as to the constitutionality of the legislative act.’”
Ashwander v. TVA, 297 U. S. 288, 346 (1936) (Brandeis, J., concurring) (quoting Chicago &
Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892)). Even when Article III permits
the exercise of federal jurisdiction, prudential considerations demand that the Court insist
upon “that concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr,
369 U. S. 186, 204 (1962).
There are, of course, reasons to hear a case and issue a ruling even when one party is
reluctant to prevail in its position. Unlike Article III requirements—which must be satisfied
by the parties before judicial consideration is appropriate—the relevant prudential factors
that counsel against hearing this case are subject to “countervailing considerations [that]
may outweigh the concerns underlying the usual reluctance to exert judicial power.” Warth,
422 U. S., at 500–501. One consideration is the extent to which adversarial presentation of
the issues is assured by the participation of amici curiae prepared to defend with vigor the
constitutionality of the legislative act. ....
In the case now before the Court the attorneys for BLAG present a substantial
argument for the constitutionality of §3 of DOMA. BLAG’s sharp adversarial presentation of
the issues satisfies the prudential concerns that otherwise might counsel against hearing an
appeal from a decision with which the principal parties agree. Were this Court to hold that
prudential rules require it to dismiss the case, and, in consequence, that the Court of
Appeals erred in failing to dismiss it as well, extensive litigation would ensue. The district
courts in 94 districts throughout the Nation would be without precedential guidance not
only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving
over 1,000 federal statutes and a myriad of federal regulations. For instance, the opinion
ofthe Court of Appeals for the First Circuit, addressing the validity of DOMA in a case
involving regulations of theDepartment of Health and Human Services, likely would be
vacated with instructions to dismiss, its ruling and guidance also then erased. See
Massachusetts v. United States Dept. of Health and Human Servs., 682 F. 3d 1 (CA1 2012).
Rights and privileges of hundreds of thousands of persons would be adversely affected,
pending a case in which all prudential concerns about justiciability are absent. That
numerical prediction may not be certain, but it is certain that the cost in judicial resources
and expense of litigation for all persons adversely affected would be immense. True, the very
extent of DOMA’s mandate means that at some point a case likely would arise without the
prudential concerns raised here; but thecosts, uncertainties, and alleged harm and injuries
likely would continue for a time measured in years before the issue is resolved. In these
unusual and urgent circum stances, the very term “prudential” counsels that it is aproper
exercise of the Court’s responsibility to take jurisdiction. For these reasons, the prudential
and Article III requirements are met here; and, as a consequence, the Court need not decide
whether BLAG would have standing to challenge the District Court’s ruling and its
affirmance in the Court of Appeals on BLAG’s own authority.
The Court’s conclusion that this petition may be heard on the merits does not imply
that no difficulties would ensue if this were a common practice in ordinary cases. The
Executive’s failure to defend the constitutionality of an Act of Congress based on a
constitutional theory not yet established in judicial decisions has created a procedural
dilemma. On the one hand, as noted, the Government’s agreement with Windsor raises
questions about the propriety of entertaining a suit in which it seeks affirmance of an order
invalidating a federal law and ordering the United States to pay money. On the other hand,
if the Executive’s agreement with a plaintiff that a law is unconstitutional is enough to
preclude judicial review, then the Supreme Court’s primary role in determining the
constitutionality of a law that has inflicted real injury on a plaintiff who has brought a
justiciable legal claim would become only secondary to the President’s. This would
undermine the clear dictate of the separation-of-powers principle that “when an Act of
Congress is alleged to conflict with the Constitution, ‘[i]t is emphatically the province and
duty of the judicial department to say what the law is.’” Zivotofsky v. Clinton, 566 U. S. ___,
___ (2012) (slip op., at 7) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). Similarly,
with respect to the legislative power, when Congress has passed a statute and a President
has signed it, it poses grave challenges to the separation of powers for the Executive at a
particular moment to be able to nullify Congress’ enactment solely on its own initiative and
without any determination from the Court. .....[the Court goes on to hold DOMA
unconstitutional on 5th Amendment grounds].
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,and with whom THE CHIEF JUSTICE
joins as to
Part I,dissenting.
This case is about power in several respects. It is about the power of our people to
govern themselves, and the power of this Court to pronounce the law. Today’s opinion
aggrandizes the latter, with the predictable consequence of diminishing the former. We have
no power to decide this case. And even if we did, we have no power under the Constitution to
invalidate this democratically adopted legislation. The Court’s errors on both points spring
forth from the same diseased root: an exalted conception of therole of this institution in
America.....
The Court is eager—hungry—to tell everyone its view of the legal question at the
heart of this case. Standing in the way is an obstacle, a technicality of little interest to
anyone but the people of We the People, who created it as a barrier against judges’ intrusion
into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide
not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and
the Government agree entirely on what should happen in this lawsuit. They agree that the
court below got it right; and they agreed in the court below that the court below that one got
it right as well. What, then, are we doing here?
The answer lies at the heart of the jurisdictional portion of today’s opinion, where a
single sentence lays bare the majority’s vision of our role. The Court says that we have the
power to decide this case because if we did not, then our “primary role in determining the
constitutionality of a law” (at least one that “has inflicted real injury on a plaintiff ”) would
“become only secondary to the President’s.” Ante, at 12. But wait, the reader wonders—
Windsor won below, and so cured her injury, and the President was glad to see it. True, says
the majority, but judicial review must march on regardless, lest we “undermine the clear
dictate of the separation-of-powers principle that when an Act of Congress is alleged to
conflict with the Constitution, it is emphatically the province and duty of the judicial
department to say what the law is.” Ibid. (internal quotation marks and brackets omitted).
That is jaw-dropping. It is an assertion of judicial supremacy over the people’s
Representatives in Congress and the Executive. It envisions a Supreme Court standing (or
rather enthroned) at the apex of government, empowered to decide all constitutional
questions, always and every- where “primary” in its role.
This image of the Court would have been unrecognizable to those who wrote and
ratified our national charter. They knew well the dangers of “primary” power, and so
created branches of government that would be “perfectly coordinate by the terms of their
common commission,” none of which branches could “pretend to an exclusive or superior
right of settling the boundaries between their respective powers.” The Federalist, No. 49, p.
314 (C. Rossiter ed. 1961) (J. Madison). The people did this to protect themselves. They did
it to guard their right to self-rule against the black-robed supremacy that today’s majority
finds so attractive. So it was that Madison could confidently state, with no fear of
contradiction, that there was nothing of “greater intrinsic value” or “stamped with the
authority of more enlightened patrons of liberty” than a government of separate and
coordinate powers. Id., No. 47, at 301.
For this reason we are quite forbidden to say what the law is whenever (as today’s
opinion asserts) “‘an Act of Congress is alleged to conflict with the Constitution.’” Ante, at
12. We can do so only when that allegation will determine the outcome of a lawsuit, and is
contradicted by the other party. The “judicial Power” is not, as the majority believes, the
power “‘to say what the law is,’” ibid., giving the Supreme Court the “primary role in
determining the constitutionality of laws.” The majority must have in mind one of the
foreign constitutions that pronounces such primacy for its constitutional court and allows
that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the
Federal Republic of Germany, Art. 93. The judicial power as Americans have understood it
(and their English ancestors before them) is the power to adjudicate, with conclusive effect,
disputed government claims (civil or criminal) against private persons, and disputed claims
by private persons against the government or other private persons. Sometimes (though not
always) the parties before the court disagree not with regard to the facts of their case (or not
only with regard tothe facts) but with regard to the applicable law—in which event (and
only in which event) it becomes the “‘province and duty of the judicial department to say
what the law is.’” Ante, at 12.
In other words, declaring the compatibility of state or federal laws with the
Constitution is not only not the “primary role” of this Court, it is not a separate, free
standing role at all. We perform that role incidentally—by accident, as it were—when that
is necessary to resolve the dispute before us. Then, and only then, does it become “‘the
province and duty of the judicial department to say what the law is.’” That is why, in 1793,
we politely declined the Washington Administration’s request to “say what the law is” on a
particular treaty matter that was not the subject of a concrete legal controversy. 3
Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1893). And that is
why, as our opinions have said, some questions of law will never be presented to this Court,
because there will never be anyone with standing to bring a lawsuit. See Schlesinger v.
Reservists Comm. to Stop the War, 418 U. S. 208, 227 (1974); United States v. Richardson,
418 U. S. 166, 179 (1974). As Justice Bran- deis put it, we cannot “pass upon the
constitutionality of legislation in a friendly, non-adversary, proceeding”; absent a “‘real,
earnest and vital controversy between individuals,’” we have neither any work to do nor any
power to do it. Ashwander v. TVA, 297 U. S. 288, 346 (1936) (concurring opinion) (quoting
Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892)). Our authoritybegins
and ends with the need to adjudge the rights of an injured party who stands before us
seeking redress.
That is completely absent here. Windsor’s injury was cured by the judgment in her
favor. And while, in ordinary circumstances, the United States is injured by a directive to
pay a tax refund, this suit is far from ordinary. Whatever injury the United States has
suffered will surely not be redressed by the action that it, as a litigant, asks us to take. The
final sentence of the Solicitor General’s brief on the merits reads: “For the foregoing reasons,
the judgment of the court of appeals should be affirmed.” ....
What the petitioner United States asks us to do in the case before us is exactly what
the respondent Windsor asks us to do: not to provide relief from the judgment below but to
say that that judgment was correct. And the same was true in the Court of Appeals: Neither
party sought to undo the judgment for Windsor, and so that court should have dismissed the
appeal (just as we should dismiss) for lack of jurisdiction. Since both parties agreed with the
judgment of the District Court for the Southern District of New York, the suit should have
ended there. The further proceedings have been a contrivance, having no object in mind
except to elevate a District Court judgment that has no precedential effect in other courts, to
one that has precedential effect throughout the Second Circuit, and then (in this
Court)precedential effect throughout the United States.
We have never before agreed to speak—to “say what the law is”—where there is no
controversy before us. ....
The majority’s discussion of the requirements of Article III bears no resemblance to
our jurisprudence. It accuses the amicus (appointed to argue against our jurisdiction) of
“elid[ing] the distinction between . . . the jurisdictional requirements of Article III and the
prudential limits on its exercise.” Ante, at 6. It then proceeds to call the requirement of
adverseness a “prudential” aspect of standing. Of standing. That is incomprehensible. A
plaintiff (or appellant) can have all the standing in the world—satisfying all three standing
requirements of Lujan that the majority so carefully quotes, ante, at 7—and yet no Article
III controversy may be before the court. Article III requires not just a plaintiff (or appellant)
who has standing to complain but an opposing party who denies the validity of the
complaint. It is not the amicus that has done the eliding of distinctions, but the majority,
calling the quite separate Article III requirement of adverseness between the parties an
element (which it then pronounces a “prudential” element) of standing. The question here is
not whether, as the majority puts it, “the United States retains a stake sufficient to support
Article III jurisdiction,” ibid. the question is whether there is any controversy (which
requires contradiction) between the United States and Ms.Windsor. There is not.
I find it wryly amusing that the majority seeks to dismiss the requirement of partyadverseness as nothing more than a “prudential” aspect of the sole Article III requirement
of standing. (Relegating a jurisdictional requirement to “prudential” status is a wondrous
device, enabling courts to ignore the requirement whenever they believe it “prudent”—
which is to say, a good idea.) Half a century ago, a Court similarly bent upon announcing its
view regarding the constitutionality of a federal statute achieved that goal by effecting a
remarkably similar but completely opposite distortion of the principles limiting our
jurisdiction. The Court’s notorious opinion in Flast v. Cohen, 392 U. S. 83, 98–101 (1968),
held that standing was merely an element (which it pronounced to be a“prudential”
element) of the sole Article III requirement of adverseness. We have been living with the
chaos created by that power-grabbing decision ever since, see Hein v. Freedom From
Religion Foundation, Inc., 551 U. S. 587 (2007), as we will have to live with the chaos
created by this one. .....
It may be argued that if what we say is true some Presidential determinations that
statutes are unconstitutional will not be subject to our review. That is as it should be, when
both the President and the plaintiff agree that the statute is unconstitutional. Where the
Executive is en- forcing an unconstitutional law, suit will of course lie; but if, in that suit,
the Executive admits the unconstitutionality of the law, the litigation should end in an
order or a consent decree enjoining enforcement. This suit saw the light of day only because
the President enforced the Act(and thus gave Windsor standing to sue) even though he
believed it unconstitutional. He could have equally chosen(more appropriately, some would
say) neither to enforce nor to defend the statute he believed to be unconstitu- tional, see
Presidential Authority to Decline to Execute Un- constitutional Statutes, 18 Op. Off. Legal
Counsel 199(Nov. 2, 1994)—in which event Windsor would not have been injured, the
District Court could not have refereed this friendly scrimmage, and the Executive’s
determination of unconstitutionality would have escaped this Court’s desire to blurt out its
view of the law. The matter would have been left, as so many matters ought to be left, to a
tug of war between the President and the Congress, which has innumerable means (up to
and including impeachment) of compelling the President to enforce the laws ithas written.
Or the President could have evaded presentation of the constitutional issue to this Court
simply by declining to appeal the District Court and Court of Appeals dispositions he agreed
with. Be sure of this much: If a President wants to insulate his judgment of
unconstitutionality from our review, he can. What the views urged in this dissent produce is
not insulation from judicial review but insulation from Executive contrivance.
The majority brandishes the famous sentence from Marbury v. Madison, 1 Cranch
137, 177 (1803) that “[i]t is emphatically the province and duty of the judicial department to
say what the law is.” Ante, at 12 (internal quotation marks omitted). But that sentence
neither says nor implies that it is always the province and duty of the Court to say what the
law is—much less that its responsibility in that regard is a “primary” one. The very next
sentence of Chief Justice Marshall’s opinion makes the crucial qualification that today’s
majority ignores: “Those who apply the rule to particular cases, must of necessity expound
and interpret that rule.” 1 Cranch, at 177 (emphasis added). Only when a “particular case”
is before us—that is, a controversy that it is our business to resolve under Article III—do we
have the province and duty to pronounce the law....
There is, in the words of Marbury, no “necessity [to] expound and interpret” the law
in this case; just a desire to place this Court at the center of the Nation’s life.1 Cranch, at
177.
STANDING: THE ROLE OF THE COURTS AND ROLE OF CONGRESS
by Richard E. Welch III
In United States v. Richardson (a taxpayer lawsuit seeking to compel the CIA to
disclose its expenditures and alleging that a failure to so disclose violated the Constitution),
Justice Lewis Powell felt compelled to file a concurring opinion explaining why in that case the
plaintiff taxpayer did not have standing to attack Congress’ failure to require the CIA to detail its
expenditures. He stressed one theme in particular:
Repeated and essentially head-on confrontations between
the life-tenured branch and the representative branches of
government will not, in the long run, be beneficial to either.
The public confidence essential to the former and the
vitality critical to the latter may well erode if we do not
exercise self-restraint in the utilization of our power to
negative the actions of the other branches.... Indeed,
taxpayer or citizen advocacy, given democracy ought to be
employed against the branches that were intended to be
responsive to public attitudes about the appropriate
orientation of government.......
....The irreplaceable value of the power [of judicial
review].... lies in the protection it has afforded the
constitutional rights and liberties of individual citizens and
minority groups against oppressive or discriminatory
government action. It is this role, not some amorphous
general supervision of the operations of government, that
has maintained public esteem for the federal courts and
has permitted the peaceful coexistence of the
countermajoritarian implications of judicial review and the
democratic principles upon which our Federal
Government in the final analysis rests.
Justice Powell concluded that the standing doctrine would be abolished if one allowed “a
citizen qua citizen to invoke the power of the federal courts to negative the unconstitutional
acts of the Federal Government.”
Where would Powell have said the Marbury court got its power to declare the statute
unconstitutional? From some generalized separation-of-powers supervisory authority to
judge unconstitutional acts of the federal government?
What constitutional theory does Justice Powell’s concurrence remind you of? One
hint: it is first contained in a famous footnote written by Justice Stone and you read all about
it in first year Constitutional Law.
Note that Justice Powell argues that the federal courts, must, at times (such as with
taxpayer/citizen suits), “exercise self-restraint in the utilization of our power to negative the
actions of the other branches.” Is he talking about that part of the standing doctrine that is
constitutionally imposed (i.e., that it must be a case or controversy and not merely an
advisory opinion) or is he applying some self-imposed, prudential limitation that has been
granted onto the concept of standing given the public rights type of litigation that federal
courts often see? Does Congress have a role in telling the federal courts when and to what
extent to shed any self-imposed judicial/jurisdictional restraints?
Given Justice Powell’s views on when a federal court (and particularly the Supreme
Court) is most justified in having “head-on” confrontations (i.e. in providing protection to
minorities and in vindicating Bill of Rights protections that the will of the majority might
very well ignore), would he have taken the Bush v. Gore case for review? Or would he
have allowed that matter to be resolved by the representative branches of government?
What if Congress had authorized Mr. Richardson to sue the CIA (or any other
agency) in the event that the agency did not disclose its expenditures? Would this have
affected Justice Powell’s view? In this regard consider Justice John Harlan’s dissent in Flast
v. Cohen. (Remember that the well respected Powell, a justice who is often praised as
having no particular ideological slant but who sought a neutral application of the
Constitution and federal law, is often considered the ideological inheritor of the judicial
philosophy of the even more respected Harlan – there is a reason that all Federal Courts texts
frequently focus on the dissents and concurrences of these two past justices).
In the Flast dissent, Justice Harlan recognized that litigation was increasingly
become oriented toward public rights as opposed to the traditional private rights model. The
traditional plaintiff held “personal or pecuniary interest” while the public rights plaintiff
asserted more generalized rights (be it a constitutional right or another right shared by many)
that was “bereft of any personal or propriety considerations.” [Current Justice Anthony
Kennedy reiterated this same observation when he observed in his Lujan concurrence,
“Modern litigation has progressed far from the paradigm of Marbury suing Madison to get
his commission.”] Harlan found it clear that such public right defendants were “not
constitutionally excluded from the federal courts.” Harlan recognized that the Supreme
Court had previously held “that individual litigants have standing to represent the public
interest, despite their lack of economic or other personal interests, if Congress has
appropriately authorized such suits.” But, like Justice Powell after him, Harlan saw that
these “public actions brought to vindicate public right” presented “important hazards for the
continued effectiveness of the federal judiciary” and threatened to “alter the allocation of
authority among the three branches of the Federal government.” [Note that this concern is
repeatedly mentioned by Justice Scalia in Lujan and his dissent in FEC v. Atkins].
In light of these concerns, Justice Harlan opined that “individual litigants have
standing to represent the public interest, despite their lack of economic or other personal
interests, if [but only if] Congress has authorized such suits.” Justice Harlan explained that
“any hazards to the proper allocation of authority among the three branches of the
Government would be substantially diminished if public actions had been pertinently
authorized by Congress.”
Would Justice Scalia agree with Justice Harlan? Would Justice Kennedy and
Breyer? To answer these questions one would have to read Scalia’s Lujan opinion denying
standing to individuals who sued under a “citizen’s suit” provision of the Endangered
Species Act (i.e., a law in which Congress authorized such a public rights suit); Justice
Kennedy’s concurrence in that case; and Justice Breyer’s majority opinion and Scalia’s
dissent in FEC v. Atkins (another case involving a federal law where Congress allowed
citizens who felt aggrieved by an action – or in action – of an agency). In Lujan, Justice
Scalia admits that “our generalized grievance cases have typically involved Government
violation of procedures asserted ordained by the Constitution [e.g. Flast, Richardson, et al]
rather than by Congress [e.g. Lujan]. But there is absolutely no basis for making the Article
III inquiry turn on the source of the asserted right.” Would Justice Harlan and Powell agree
that it makes no difference whether Congress had defined the right to be vindicated and had
authorized the party to bring the lawsuit? On a related and perhaps more fundamental point,
would Justice Harlan and Powell have agreed with Scalia that this is an “Article III inquiry?”
Instead, would they have said this is a standing inquiry that focuses upon, not case or
controversy requirements, but prudential concerns about judicial self restraint in a
democracy?
Class 3
Congressional Restriction of Jurisdiction
A Current Example: What if Congress, concerned with the the Supreme Court’s recent
Hamdi ruling and similar “enemy combatant detention” cases (upholding jurisdiction to hear
a habeas corpus petition from someone being held at the U.S. Naval base of Guantanamo
Bay), passed a law that stated that “there shall be no jurisdiction” in “any federal court,
including the Supreme Court”, to hear “any appeal or claim” from anyone held in any
facility run or controlled by the United States that is located in Cuba, Europe, South
America, Australia, or Asia. Could Congress constitutionally do this?
Another Current Example: Recently some members of Congress have expressed concern
over the Supreme Court’s reliance on international law. What if Congress passed a law that
stated: “no federal court shall have jurisdiction to decide any case by relying upon or citing
any international law of any foreign country.” Is this constitutional?
1.
The Madisonian Compromise. Read attachment "The Madisonian Compromise:
Once Over Lightly".
2.
Introductory Notes on Power To Limit Federal Jurisdiction. Art. III Courts, pp. 435440 Exparte McCardle, pp. 440-443 and Notes on the Traditional View, pp. 443-454;
Notes on Competing Views, Sub Notes 1, 3, 4, 5, 6, 8 pp. 454-461. Read attachement
on "Power of Congress to Limit Jurisdiction on Constitutional Claims:
Thoughts on Webster v. Doe".
3.
Can Congress limit constitutional remedies? Can Congress eliminate the lower
Federal Courts? Can Congress exclude various constitutional challenges from the
Federal Courts?
What if Congress allowed the federal district court to try a criminal case or civil
enforcement action, but prohibited the defendant from raising a constitutional
challenge to the statute in that forum. Instead, the defendant would have to go to an
Article III court in Washington, D.C. to raise any constitutional challenge. Could
Congress split up a case in this way?
4.
Congressional Power to Revise or Reverse Judicial Decisions
1. Read “Section 2: The Power to Regulate Federal Rules of Decision and Judgments”, pp.
463-490. This includes the Plaut and French decisions. Then consider these questions:
A. The Court has had the power (at least since the Marbury decision) to “say what
the law is” (see Plaut); but can’t Congress disagree and change the law? At least isn’t this
true when one is talking about the Court’s interpretation of a statute? The holding of the
Klien case is very famous in constitutional circles; is it defensible?
B. Is Plaut consistent with Seattle Audubon? Could Congress create an entirely new
cause of action even after a court has rendered a final decision? Assume the Supreme Court
holds in Sept. 2009 that a congressional statute does not provide a private cause of action to
sue for damages (e.g. the Federal Food and Drug Act prohibits mislabeling drugs but does
not provide a remedy for consumers); then, Congress (in Nov. of 2009) decides that such a
cause of action would be a good idea and issues a new law that explicitly creates such a
private federal cause of action and provides that the statute of limitations for such actions is
five years from the discovery of the harm. In December 2009, Mary Miscarriage brings suit
under the new law for a misbranded drug that she took in 2006. Can Congress create such a
right? Does it violate the constitutional considerations discussed in Plaut? What if Congress
doesn’t pass an entirely new law, but simply amends the Food and Drug Act? Is this any
different than what Congress did in Plaut?
C. Does the Court’s effort to distinguish between Plaut and Miller make any sense?
If the Plaut holding really rests on a Constitutional basis, what difference is it that one
judgment is for monetary damages (Plaut) and the other is an injunction (Miller)?
THE MADISONIAN COMPROMISE: Once Over Lightly
by Richard E. Welch III
The drafting of the Constitution involved many famous compromises
from Roger Sherman's Connecticut Plan (that resolved the dispute between the
large and small states and established representation by population in the House
and state equality in the Senate) to the infamous three-fifths compromise
concerning slavery. The compromise struck by James Madison in drafting
Article III deserves special attention in this course.
The classic Hart and Wechsler textbook (Fallon, et al, Hart and
Wechsler's The Federal Courts and the Federal System, 6th ed.) contains an
excellent discussion of the so-called Madisonian Compromise (pp. 6-9; 275283). For those who want to go to the original source, see Farrand, The Records
of the Federal Convention (1911) (the quotes below come from these collected
records).What follows does not pretend to be a definative or comprehensive
analysis.
Section 1 of Article III creates a federal judicial branch and vests federal
judicial power in "one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish." This language
represents the Madisonian Compromise.
During the Constitutitional Convention, there was wide spread
agreement that a federal Supreme Court was necessary to resolve disputes
between the courts of different states and, particularly, to ensure state court
compliance with federal law. Thus, unlike the Articles of Confederation, a
national judicial branch was established. The mandate that "one supreme
Court" be established was quickly approved. The question of whether there
should exist lower federal courts was considerably more controversial. John
Rutledge argued that there was no need for federal "inferior" courts due to the
presence of long-established state courts. Roger Sherman agreed citing the
unnecessary expense of duplicating the work of the state courts.
James Madison strongly disagreed. Madison appeared to distrust the
state courts and argued that federal lower courts were necessary to reverse or
replace "biassed [sic] directions of a dependent [state court] judge, or the local
prejudices of an undirected jury". The majority, however, did not agree with
Madison's concerns and the provision for the creation of inferior courts initially
was struck from Article III. But, Madison did not give up. Instead, with the
support of John Dickinson and Wilson, he proposed more or less the current
wording of Section 1 explaining "there was a distinction between establishing
such tribunals absolutely, and giving a discretion to the Legislature to establish
or not establish them." Although Pierce Butler blasted the compromise and
predicted that "the States will revolt at such encroachments", the Madison
Compromise passed by a vote of 8 states to 2.
THE POWER OF CONGRESS TO LIMIT FEDERAL JURISDICTION
OF CONSTITUTIONAL CLAIMS: THOUGHTS ON WEBSTER v. DOE
The basic holding of the old and famous case of Sheldon v. Sill is that Congress can
limit the jurisdiction of the lower federal courts as it sees fit. At least that is what its broad
language says. In Sheldon, the Supreme Court dismissed a diversity case on the ground that
Congress had passed a statue that denied jurisdiction if the original parties to the contract
had not been “diverse” (i.e. from different states). The Court reasoned that the Congress’
power to create the lower courts pursuant to Article III carried with it an implicit power to
designate the jurisdiction of the lower courts. That jurisdiction, of course, could not exceed
the constitutional limits of Article III (that after all is the holding of Marbury v. Madison),
but Congress was in no way required to grant jurisdiction to the outer limit of Article III.
Indeed, Congress never has done so. Sheldon concludes that Congress can take away any
jurisdiction it wishes to (or not grant any jurisdiction it decides not to). In short, Article III
represents the ceiling of federal jurisdiction, but Congress sets the floor.
Sheldon dealt with Congress’ ability to limit jurisdiction in a contract case. Would
the question be different if Congress was attempting to limit the federal court’s ability to
decide a claim based upon an alleged constitutional violation? The language and reasoning
of Sheldon do not indicate any such distinctions. After all, the Madisonian Compromise is
premised upon the state courts of general jurisdiction being available to hear any claims that
cannot be presented in federal court and for a long time (until 1875) this included all federal
question cases.
But what happens if Congress precludes (at least implicitly) all federal courts and all
state courts the opportunity to hear a case that presents an alleged constitutional violation?
This was the issue that seized the attention of the Supreme Court in Webster v. Doe.
As can be seen from the textbook, Webster involved a federal statute where Congress
decided (due to national security concerns) that the Director of the Central Intelligence
Agency (obviously a high ranking Executive Department official) may terminate any
employee “at his discretion” whenever “the Director determines that such termination is in
the interest of the United States.” Mr. Doe was fired from the CIA because (he alleged) of
the fact that he was a homosexual. He brought suit claiming violations of the federal Civil
Service Act and the United States Constitution.
The seven member majority of the Court held that Congress’ language did exclude
review by any federal court of Doe’s claims of statutory violations, but did not deprive the
federal courts of jurisdiction to hear any claims based on alleged constitutional violations.
The majority opinion stated that the statute was not sufficiently explicit about precluding
jurisdiction for constitutional claims. The Court required that Congress make an
unmistakably clear statement excluding such jurisdiction before the Court would address the
issue. The Court reasoned that this clear statement requirement avoided the “serious
constitutional question should a federal statute deny any judicial forum for a colorable
constitutional claim.”
On the most general basis, the majority’s decision might be questioned because it has
the practical effect of negating the Congressional statute. Most any creative lawyer (and
quite a few pro se litigants) can convert a statutory civil service type claim into a “colorable”
constitutional claim (e.g. the CIA deprived me of “due process” under the Fifth Amendment
when it took away the property interest in my job; the CIA violated equal protection
principles when it fired me due to my: race, gender, sexual orientation, age, political beliefs,
national origin, etc.). Furthermore, this is a statute dealing with the most sensitive and
secretive areas of national defense and a statute where Congress gives another co-equal
branch of government the power to terminate a person’s employment completely at the
executive official’s discretion. Why should the Court get involved?
Justice Scalia took more fundamental objection to the Court’s reasoning in a
compelling dissent. Scalia vigorously disagreed that by precluding federal judicial review of
a constitutional claim, a “serious constitutional question” was presented. To the contrary,
such a limitation on the federal court’s jurisdiction was fully in accordance with the
Constitutional plan and occurred frequently. First, Scalia noted that the majority was just
plain wrong when it assumed that the statute denied review of the constitutional claim in
“any judicial forum”. Citing Sheldon v. Sill, Scalia noted that the sate courts presumably
would be open to a constitutional challenge (the civil service statutory claim plainly was not
within a state court’s jurisdiction because that statute grants exclusive jurisdiction to the
federal courts). Scalia saw a serious constitutional question arising (and then only possibly)
only if Congress eliminated jurisdiction to hear constitutional challenges “from the state
courts, and from this Court’s appellate jurisdiction over cases from the state courts …
involving such claims.” Is not Scalia correct? After all, isn’t this the holding of Sheldon and
the underpinning of the Madisonian compromise? Is the majority confusing the familiar
with the constitutionally necessary?
Never shy to wade into deeper constitutional waters, Scalia then dealt with the
situation where Congress did exclude any constitutional claim arising from the firing of a
CIA employee from the jurisdiction of either a state or federal court. As to this broader
proposition Scalia opined that there “surely [is] not some general principle that all
constitutional violations must be remediable in the courts.” Scalia supported this statement
with reference to constitutional language that provided that each House “shall be the Judge
of the Elections, Returns and Qualifications of its own Members” (but remember Powell v.
McCormack), and the Speech and Debate Clause, and (oddly enough, given his active
participation in granting an injunction and reaching the constitutional question in Bush v.
Gore) “the rather grave constitutional claim that an election has been stolen.” These issues,
he assured all, “cannot be addressed by the courts”. Scalia then buttressed this argument
with reference to the political question doctrine and sovereign immunity as other examples
where the courts are precluded from remedying some alleged constitutional wrong. To a
certain extent, does whether one agree with these statements depend upon how one reads
Marbury v. Madison? Where does a federal court get its power to redress alleged
constitutional violations? From some general separation of powers concerns or from the
power to decide a particular case? Remember that it is all a seamless web.
Scalia concludes this part of his dissent with the observation that it is “simply
untenable that there must be a judicial remedy for every constitutional violation.” And,
Scalia notes, Congress and high ranking officials of the Executive Branch “take the same
oath to uphold the Constitution that we do, and sometimes they are left to perform that oath
unreviewed, as we always are.”
But is there a distinction between political question cases (at least those cases where
the constitutional text appears to designate another coordinate federal branch as the decision
maker of the particular issue – e.g. United States v. Nixon or an election case) and a
situation where the Congress (not the Constitution) designates by statute that the courts are
not to decide a particular constitutional issue? If not, at least should not Congress be held to
clearly stating in the statute that the coordinate branch is the body to decide the question
cases when there is an assertion that the issue has been designated – by a “textually
demonstrable constitutional commitment” – to another co-equal branch?
What if Congress, plainly irritated by the Webster v. Doe, decision and very
concerned about the security breaches that had occurred during civil litigation over CIA
terminations, passed a new law that read, in pertinent part:
Due to national security concerns, the Director of the CIA shall have sole
discretion to termination any employee when he determines that such termination
is in the national interest. No state or federal court will have jurisdiction over any
case or claim involving such termination of employment, regardless of whether
such case claims a violation of any state or federal constitutional statutory
provision.
Assume further that a CIA employee has discovered illegal activity at the highest levels of the
CIA (e.g. the Director has authorized an assassination directly contrary to United States and
international law, or the Director is embezzling CIA funds for his personal use) and the Director
(in an effort to silence or at least marginalize this employee) fires the employee citing “grave
security concerns regarding this employee”. The employee files suit in federal court. Citing this
statute, the CIA moves to dismiss the complaint for lack of jurisdiction.
Would such a law constitutionally preclude jurisdiction from the federal courts to hear
constitutional claims arising out of someone’s termination from the CIA? Why or why not?
Richard E. Welch III
Class 4
Federal Authority and State Court Jurisdiction
Compare these quotes:
"The laws of the United States are laws in the several states, and just as much binding on the
citizens and courts thereof as the state laws are .... The two together form one system of
jurisprudence...." Scalia, J. concurring in Tafflin v. Levitt, quoting Claflin v. Houseman.
And this quote from Justice O'Connor when requiring the Georgia state courts to hear, and
provide a remedy for, a federal taking claim, despite the state's defense of sovereign immunity:"a
denial by a state court of a recovery of taxes exacted in violation of the laws or Constitution of
the United States by compulsion is itself in contravention of the 14th Amendment, the sovereign
immunity states traditionally enjoy in their own courts notwithstanding." Reich v. Collins
"Each state is a sovereign entity in our federal system...it is inherent in the nature of sovereignty
not to be amenable to the suit of an individual ..." Rehnquist, C. J. in Seminole Tribe v. Florida.
"The states thus retain 'a residuary and inviolable sovereignty.' They are not relegated to the role
of mere provinces or political corporations, but retain the dignity, though not the full authority,
of sovereignty." Kennedy, J. in Alden v. Maine.
1. Note on Power of State Courts to Hear Federal Questions, Read Tafflin case, pp. 30-32;
Felder v. Casey 34-35 and Testa v. Katt and cases 43-63.
Note particularly Justice Scalia’s astute discussion in Tafflin v. Levitt regarding where the
states get the authority to hear federal cases. Is this the underpinning upon which the Madisonian
Compromise rests?
2.
Duty of State Courts to Hear Federal Questions: Read attachment on " The Duty of
State Courts to Hear Federal Claims" which includes the Testa v. Katt decision.
What is the relationship between court’s obligation to enforce federal law and the Madisonian
Compromise?
Must a State Court of general jurisdiction provide a forum for each Federal claim?
May a State Court or legislature place certain non-discriminatory limits on any federal claim
litigated in State Court? Does the Tenth Amendment apply to this area? What does the Felder
decision really mean? Are federal civil rights claims different? Must the state provide a forum?
Read attached “Mandate of the Supreme Court.”
The Duty of the State Courts to Hear Federal Claims: Do the Supremacy Clause and the
Madisonian Compromise Collide with the Tenth Amendment?
by Richard E. Welch III
Although Congress can always designate federal courts as the exclusive forums to hear federal
claims, this happens infrequently. As Tafflin v. Levitt explains, it is presumed that there exists
concurrent jurisdiction between state and federal courts to hear federal claims. In these
circumstances, there is little doubt that a state court, with its general jurisdiction and guided by
the Supremacy Clause, has the power to hear most federal claims. After all, is not that the
underlying principle of the Madisonian Compromise?
The more difficult question is whether the state courts can be compelled to hear federal claims.
This was precisely the issue that Justice Hugo Black addressed in his pithy opinion of Testa v.
Katt:
The respondent was in the automobile business in Providence, Providence County, Rhode Island.
In 1944 he sold an automobile to petitioner Testa, who also resides in Providence, for $1100,
$210 above the ceiling price. The petitioner later filed this suit against respondent in the State
District Court in Providence. Recovery was sought under § 205 (e). The court awarded a
judgment of treble damages and costs to petitioner. On appeal to the State Superior Court, where
the trial was de novo, the petitioner was again awarded judgment, but only for the amount of the
overcharge plus attorney's fees. Pending appeal from this judgment, the Price Administrator was
allowed to intervene. On appeal, the State Supreme Court reversed, 71 R.I. 472, 47 A.2d 312. It
interpreted § 205 (e) to be "a penal statute in the international sense." It held that an action for
violation of § 205 (e) could not be maintained in the courts of that State....
For the purposes of this case, we assume, without deciding, that § 205 (e) is a penal statute in the
"public international," "private international," or any other sense. So far as the question of
whether the Rhode Island courts properly declined to try this action, it makes no difference into
which of these categories the Rhode Island court chose to place the statute which Congress has
passed. For we cannot accept the basic premise on which the Rhode Island Supreme Court held
that it has no more obligation to enforce a valid penal law of the United States than it has to
enforce a penal law of another state or a foreign country. Such a broad assumption flies in the
face of the fact that the States of the Union constitute a nation. It disregards the purpose and
effect of Article VI of the Constitution which provides: "This Constitution, and the Laws of the
United States which shall be be made in Pursuance thereof; and all Treaties made, or which shall
be made, under the Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding......
Enforcement of federal laws by state courts did not go unchallenged. Violent public
controversies existed throughout the first part of the Nineteenth Century until the 1860's
concerning the extent of the constitutional supremacy of the Federal Government. During that
period there were instances in which this Court and state courts broadly questioned the power
and duty of state courts to exercise their jurisdiction to enforce United States civil and penal
statutes or the power of the Federal Government to require them to do so. But after the
fundamental issues over the extent of federal supremacy had been resolved by war, this Court
took occasion in 1876 to review the phase of the controversy concerning the relationship of state
courts to the Federal Government. Claflin v. Houseman, 93 U.S. 130. The opinion of a
unanimous court in that case was strongly buttressed by historic references and persuasive
reasoning. It repudiated the assumption that federal laws can be considered by the states as
though they were laws emanating from a foreign sovereign. Its teaching is that the Constitution
and the laws passed pursuant to it are the supreme laws of the land, binding alike upon states,
courts, and the people, "any Thing in the Constitution or Laws of any State to theContrary
notwithstanding." It asserted that the obligation of states to enforce these federal laws is not
lessened by reason of the form in which they are cast or the remedy which they provide. And the
Court stated that "If an act of Congress gives a penalty to a party aggrieved, without specifying a
remedy for its enforcement, there is no reason why it should not be enforced, if not provided
otherwise by some act of Congress, by a proper action in a State court." Id. at 137. And see
United States v. Bank of New York, 296 U.S. 463, 479.
The Claflin opinion thus answered most of the arguments theretofore advanced against the power
and duty of state courts to enforce federal penal laws. And since that decision, the remaining
areas of doubt have been steadily narrowed. There have been statements in cases concerned with
the obligation of states to give full faith and credit to the proceedings of sister states which
suggested a theory contrary to that pronounced in the Claflin opinion. But when in Mondou v.
New York, N.H. & H.R. Co., 223 U.S. 1, this Court was presented with a case testing the power
and duty of states to enforce federal laws, it found the solution in the broad principles announced
in the Claflin opinion.
The precise question in the Mondou case was whether rights arising under the Federal
Employers' Liability Act, 36 Stat. 291, could "be enforced, as of right, in the courts of the States
when their jurisdiction, as fixed by local laws, is adequate to the occasion . . ." Id. at 46. The
Supreme Court of Connecticut had decided that they could not. Except for the penalty feature,
the factors it considered and its reasoning were strikingly similar to that on which the Rhode
Island Supreme Court declined to enforce the federal law here involved. But this Court held that
the Connecticut court could not decline to entertain the action. The contention that enforcement
of the congressionally created right was contrary to Connecticut policy was answered as follows:
"The suggestion that the act of Congress is not in harmony with the policy of the State,
and therefore that the courts of the State are free to decline jurisdiction, is quite
inadmissible, because it presupposes what in legal contemplation does not exist. When
Congress, in the exertion of the power confided to it by the Constitution, adopted that act,
it spoke for all the people and all the States, and thereby established a policy for all. That
policy is as much the policy of Connecticut as if the act had emanated from its own
legislature, and should be respected accordingly in the courts of the State." Mondou v.
New York, N.H. & H.R. Co., supra at 57.
So here, the fact that Rhode Island has an established policy against enforcement by its
courts of statutes of other states and the United States which it deems penal, cannot be
accepted as a "valid excuse." Cf. Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377,
388. For the policy of the federal Act is the prevailing policy in every state. Thus, in a
case which chiefly relied upon the Claflin and Mondou precedents, this Court stated that a
state court cannot "refuse to enforce the right arising from the law of the United States
because of conceptions of impolicy or want of wisdom on the part of Congress in having
called into play its lawful powers." Minneapolis & St. L.R. Co. v. Bombolis, 241 U.S.
211, 222.......
It is conceded that this same type of claim arising under Rhode Island law would be enforced
by that State's courts. Its courts have enforced claims for double damages growing out of the
Fair Labor Standards Act. Thus the Rhode Island courts have jurisdiction adequate and
appropriate under established local law to adjudicate this action. Under these circumstances
the State courts are not free to refuse enforcement of petitioners' claim. See McKnett v. St.
Louis & S.F.R. Co., 292 U.S. 230; and compare Herb v. Pitcairn, 324 U.S. 117; 325 U.S. 77.
The case is reversed and the cause is remanded for proceedings not inconsistent with this
opinion.
The Rhode Island Supreme Court in Testa obviously did not wish to hear this federal statutory
claim. The Supreme Court, however, believed that Rhode Island was compelled to provide a
forum for this federal statutory claim. Testa was relied upon in the more recent unanimous
decision of Howlett v. Rose (1990) where the Supreme Court explained:
Federal law is enforceable in state courts not because Congress has determined that federal courts
would otherwise be burdened or that state courts might provide a more convenient forum....but
because the Constitution and the laws passed pursuant to it are as much the laws in the states as
laws passed by the state legislature. The supremacy clause makes those laws “the supreme Law
of the Land,” and charges state courts with a coordinate responsibility to enforce that law
according to their regular modes of procedure.
As in Testa, the Court found the Supremacy Clause as containing at least an implicit requirement
that the states open their courts to such federal claims and enforce those federal laws. Notice the
similarity between the above quoted reasoning and Justice Scalia’s concurrence in Tafflin. This
understanding that federal laws are as much the law of the state as any state statute is, constitutes
a definition of federalism that far different that the “nullification” controversies of John J.
Calhoun and Southern statesmen. But, as Hugo Black observed, these “fundamental issues over
the extent of federal supremacy” where resolved by the Civil War. Still, compare Justice
O’Connor’s explanation of federalism in her Tafflin majority opinion:
We begin with the axiom that, under our federal system, the
States possess sovereignty concurrent with that of the Federal
Government, subject only to the limitations imposed by the
Supremacy Clause. Under this system of dual sovereignty, we
have consistently held that state courts have inherent authority,
and are thus presumptively competent, to adjudicate claims arising
under the laws of the United States.
Is this axiom accurate? Do the states have sovereignty “concurrent” to that of the federal
government? If this was so, how can the “dormant” Commerce Clause displace the law of such a
“dual” sovereign? More to the point, does O’Connor’s language, which harks back to various
Tenth Amendment decisions, indicate that this dual sovereign could refuse to hear a federal
claim?. Or, put differently, is Congress commandeering the state when it compels a state to hear
a federal statutory claim? Remember the current Supreme Court has struck down at least two
federal laws, citing the broad language of the Tenth Amendment, that attempted to compel states
to adequately treat hazardous waste (New York v. United States) and attempted to require local
state law enforcement to conduct background firearms checks on firearms (Printz v. United
States). The Supreme Court has tried to distinguish Testa and Howlett on the grounds that those
cases involved the Supremacy Clause. But is this an adequate explanation?
It is well established that a state court cannot discriminate against a federal claim. Howlett v.
Rose is an example of this principle that plainly is derived from the Supremacy Clause. In that
case the state of Florida had waived its sovereign immunity for state statutory and common
law claims against entities such as school boards. The Florida law, as interpreted by the Florida
Supreme Court, did not waive sovereign immunity for federal claims, such as the federal civil
rights 42 USC Section 1983 involved in Howlett. Such disparity in treatment was not permissible
in that it discriminated against the federal claim without any valid excuse. A valid excuse (i.e. a
limitation applied to all claims in the state forum, such as an objectively reasonable statute of
limitation, or a venue provision) has been held to permit a state to decline to hear a federal claim.
The most difficult question in this area, however, is whether the states – as part of their duty in
our plan of federalism as reflected in the Madisonian Compromise–have some sort of duty to
open their courts to certain federal claims regardless of whether they have refused to hear similar
state law claims. Felder v. Casey and other cases we will study (e.g. Reich v. Collins, General
Oil v. Crain) raise this issue. Why might such a requirement be necessary? Is it necessary at
least as to some constitutional claims? If so, doesn’t that more clearly raise a conflict with the
Tenth Amendment “anti-commandeering” principle announced by the Court in other contexts?
STATE COMPLIANCE WITH SUPREME COURT ORDERS:
The Mandate of the Supreme Court
Richard E. Welch III
Usually when the Supreme Court reverses a decision of the highest state court, the Supreme
Court remands the case to the state court with the instruction that the state court take proceedings
"not inconsistent" with the Supreme Court's decision. This is termed the mandate of the
Supreme Court. Notice that the mandate does not require the state court to do a particular thing
(other than take some sort of action). For example, it does not require the state court to enter
judgment on behalf of the winning side. Instead, the state court could hold a further hearing and
determine that even though its ruling on the federal question was in error, judgment should still
enter for the defendant because the police conduct violated the more broadly interpreted state
constitution. Likewise, the mandate allows the state court to tinker with the details of any
injunction or equitable relief to be granted. The Supreme Court obviously believes that the use
of mandate shows a respect for the state courts that is their due under "our federalism."
Of course, at times, the state court and/or the state officials may strongly disagree with the
Supreme Court's opinion and may seek to avoid compliance. In several cases, the Supreme
Court has assumed (without really pointing to any controlling authority) that it could issue a
mandamus to a lower state court to ensure that the Supreme Court ruling is enforced. Although
the Supreme Court has threatened to issue a mandamus in the past, it has not done so – assuming
that the threat was enough to convince the state court to "conform to our previous judgment."
General Atomic Co. v. Felter, 436 U.S. at 497-98.
Whether the Supreme Court (apparently relying upon the Supremacy Clause) could
constitutionally issue a mandamus to a state court has never been decided. Possibly certain
Tenth Amendment issues might arise.
There is little doubt that the Supreme Court could enter a judgment, as opposed to a mandate. A
federal statute explicitly permits this and the power of the Court to enter such a judgment (which
does not give the state court any other choice in forming a remedy – as opposed to a mandate)
has not been seriously questioned since the famous case of Martin v. Hunter's Lessee, 14 U.S.
304 (1816). See 28 U.S.C. 237(a). Still, the Supreme Court has been hesitant to formulate its
own decree for entry in the state court. For example, in NAACP v. Alabama ex rel. Flowers,
after eight years of litigation, including four trips to the Supreme Court, and obvious Alabama
state courts recalcitrance, the Supreme Court did not enter a judgment (although it commented
that "undoubtedly" had the power to do so) and stated that it preferred "to follow our usual
practice and remand the case to the Supreme Court of Alabama for further proceedings not
inconsistent with this opinion." The Supreme Court did add that "should we unhappily be
mistaken that the Supreme Court of Alabama will promptly implement this disposition", the
NAACP could reapply for an appropriate judgment. What explains the hesitation to enter
judgments? Is it a respect for the state courts? Or, is it the Supreme Court's distance from the
details of the case, the local problems, or the evidence at trial? Or, is it a wise course of action to
give as much flexibility to a local court in resolving the case in accordance with federal and state
law and with a knowledge of local conditions? Or, is it a combination of all or some of the
above?
United States v. Shipp, 203 U.S. 563 (1906). At times during the history of the United
States, there has existed widespread opposition to various Supreme Court rulings. One of the
earliest was Georgia's defiance of Chief Justice Marshall's order and the hanging of poor Corn
Tassel. The resistance to various federal court determinations reached a peak shortly prior to the
Civil War in connection with theories of nullification which lead eventually to war. But this was
not the end to failures to obey the mandates of the Supreme Court. One particularly shocking
incident is represented by the case of United States v. Shipp.
If one wanders in an abandoned graveyard on the side of Missionary Ridge in Chattanooga,
Tennessee, you may find the old gravestone of Ed Johnson which reads in part: "Born 1882 Died
March 19, 1906. God Bless You All. I am a innocent man." Ed Johnson was a poor black man
residing in Chattanooga at the turn of the century. He had no steady job, no home, no wife and
no children.
Nevada Taylor was a 21 year old pretty blond woman who still lived with her father in the same
city. On the evening of January 23, 1906, while coming home from work, she was choked until
she lost consciousness and then brutally raped. She could not identify her attacker but believed
he was black. The Chattanooga sheriff, James Franklin Shipp – who was running for reelection–
was immediately called. An intensive search revealed no witnesses and little evidence. The local
paper gave the story big play with many incendiary articles.
After a fruitless search, the sheriff offered a handsome reward and finally had a white man
identify Ed Johnson as an individual who had been in the area. Once arrested, the trial judge
assured an angry crowd that Johnson would be promptly tried, convicted and hung. Johnson was
represented by two lawyers who had never tried a criminal case. The evidence, to say the least,
was very weak. The trial was held in Chattanooga approximately three weeks after Johnson's
arrest and at least two jurors had to be restrained from attacking the defendant during the trial.
To say that the trial involved various violations of due process would be an understatement.
Johnson had no motive and no evidence supported the state's theory. In addition, Johnson had
numerous alibi witnesses who testified that he was a mile away from the scene at the time of the
crime. Justice Holmes (who was on the Court with the first John Marshall Harlan and hardly a
social or ideological soulmate) agreed with Harlan's assessment of the state court trial: the trial
was "a shameful attempt at justice" and "a case of an innocent man improperly branded as a
guilty brute and condemned to die from the start."
Ed Johnson was speedily convicted and that conviction was affirmed by the Tennessee appellate
courts. A new attorney filed a last minute appeal to the United States Supreme Court to stay the
scheduled execution. John Marshall Harlan, sitting as the single justice, heard the petition and
granted the stay on constitutional grounds.
Word of the stay reached Sheriff Shipp the next day. The Sheriff was housing Ed Johnson in his
jail. There had been a least one serious attempt to lynch Johnson before the trial. This was
thwarted when the mob discovered that Johnson secretly had been moved to another city
awaiting trial. Sheriff Shipp made no such protective efforts after Johnson's conviction by an all
white jury. Word of Justice Harlan's stay was publicized. That evening Sheriff Shipp took the
unusual step of telling his deputies that they had all been working long hours and should have a
night of rest. He ordered that every single deputy sheriff leave the jail and left the jail in the
hands of an elderly custodian. Shipp himself went home to enjoy a glass of wine and a large
chicken meal.
Not surprisingly, given the history of lynchings in the area and the passions stirred by the crime,
a large well armed mob gathered at the jail in the early evening. When first notified that the mob
had broken down the front door of the jail and were heading up to the floor housing Johnson,
Shipp announced that he did not want his dinner to be disturbed. Finally when the press called
his home a second time, the sheriff announced that he would come down to the jail. He did not
call for any assistance, but instead took a leisurely stroll of over a mile from his home to the jail.
During his walk he passed the national armory and the police station. He never requested any
help or inform anyone of the ongoing lynching attempt. When he reached the jail, he requested
that the mob not harm his jail and then retired to sit quietly in a bathroom, still armed with his
service pistol and without a guard or any type of restraint.
Soon thereafter, the two hour siege of the jail ended with the breaking down of the last door.
Johnson was seized and taken to a bridge. With a rope around his neck the crowd demanded a
confession. Johnson refused and uttered his last words: "God bless you all. I am innocent." He
was immediately hanged and then shot numerous times. Finally one mob leader pinned a note
to Ed Johnson's corpse which read: "To Justice Harlan. Come get your nigger now."
What, if anything, could the Supreme Court do about its order (or mandate) being ignored? This
case is perhaps the first example that the Supreme Court (at least when it has the assistance of the
executive department) can enforce its orders against unwilling state officials. But how was it
done?
For anyone interested in this rather remarkable case, see Curriden and Phillips, Contempt of
Court (Faber, 1999).
Class 5:
INDEPENDENT AND ADEQUATE STATE GROUNDS
The Relation Between State and Federal Law: The Independent and Adequate State Law
Doctrine.
A Current Example: Independent and Adequate State Grounds
Florida has various statutes regarding elections. One statute states that: “the Secretary of
State shall certify the election result no later than seven days after the election.” Another statute
(passed a few years later) allows for a recount of votes by hand in a close election and states that
such a hand recount must be requested within seven days of the election and may not be
requested after the votes are certified. A hand recount takes a considerable amount of time. A
presidential candidate (a/k/a Gore) requests a hand recount in a timely fashion, but the Florida
Secretary of State announces that she will certify the vote of the seventh day even though the
hand recount will not be close to completion. Gore appeals to the Florida State Courts for an
injunction. The Florida Supreme Court takes the case. That count enjoins the Secretary of State
from certifying the vote and interprets the two statutes to mean that the Secretary is to certify the
vote in seven days unless a hand recount is requested in a timely fashion. A furious George W.
Bush, claiming that the Florida Supreme Court has misinterpreted these statutes, appeals to the
U.S. Supreme Court. Does the U.S. Supreme Court have jurisdiction to review the Florida
decision under these facts? Why or why not?
Substantive and Procedural Law
1.
Introductory Note, pp. 88-92.
2.
Michigan v.Long, p. 92-101 and Notes on Independence of State Grounds,
pp. 104-105. Also read Bush v. Gore, 80-84.
Remember the Supreme Court’s approach to interpreting statutes
conferring concurrent or exclusive jurisdiction.
Is the “independent and adequate state ground”
doctrine
mandated by Article III? How does this doctrine relate to other
concepts already discussed in this course?
3.
What if a state provides more rights than the federal constitution demands
(e.g. makes a right retroactive when federal law does not)? Is this an independent
and adequate state ground? See Danforth v. Minnesota; pp. 896-897.
Independent and Adequate State Grounds and the State Requirement to Provide a
Forum for a Constitutional Violation
1.
Ward v. Love County, pp. 1132-1133; General Oil v. Crain, decision,
p. 1130-31; Reich v. Collins, 1131-35; and sub note 4; pp. 1135-37.
Why is the Supreme Court of Oklahoma’s findings regarding state
law not an independent and adequate ground? A valid excuse?
Does Ward relate to Henry Hart’s conclusion in his famous
“Dialogue” that Congressional restriction of federal jurisdiction is
generally unlimited as long as one has the state courts to rely upon.
How does Ward relate to the Madisonian Compromise? In what
way?
c.
Since Oklahoma provides no statutory
remedy, on what authority does Mr. Ward get his money back?
What proposition might Ward, General Oil v. Crain, and more
recently Reich v. Collins and Felder v. Casey stand for?
e.
Pay particular attention to General Oil v.
Crain. What claim is being made (statutory or constitutional)?
What relief was sought? Where was suit brought (federal or state
court)? Remember this case when you later read Alden v. Maine.
e. Such cases as Ward v. Love County and NAACP v. Alabama ex rel.Patterson
hold that federal review of a state court decision cannot be defeated when the
allegedly independent and adequate state ground is without any “fair or
substantial support.” Is C.J. Rhenquist’s plurality opinion in Bush v. Gore simply
an extension of these cases? In Bush, was the Supreme Court examining the
record to see if there was any factual or procedural support for the Florida
Supreme Court’s decision? Or, was the opinion simply disagreeing with the legal
interpretation of certain state law and phrases or words?
Class 6: FEDERAL COMMON LAW
Notes on Erie, sub-note 4 (first paragraph), p. 11; sub-note(iii), pp. 13-14 and sub-note 5, pp.
14-19. Read attachment, “Where Erie Fears to Tread”.
Clearfield Trust following Notes, pp. 111-114; Boyle v. United Technologies, pp. 119129.
If there is no “general federal common law” after Erie when is a federal court justified in
making “specialized” federal common law?
Does Boyle displace state law? Has Congress acted? Does the Constitution demand this
military contractor defense? Does the Court have the constitutional power to create such
a common law defense?
Federal Common Law/Implying Remedies
Implying statutory remedies. Notes on Implied Rights of Action to Enforce Federal
Statutes, Borak meets Justice Powell, pp. 145-151 (through note 3); then skip to sub-note
6, pp.153.
Implying constitutional remedies. Bivens, pp. 167-177; Also Notes on Private Rights of
Action After Bivens, pp. 177-189. Read attachment, “Constitutional Common Law and
Congress.”
a.
Remember Coleman Ward.
Has there been a change in the method by which the Court determines whether to imply a
cause of action from a federal statute? Is there an increasing reluctance to imply a cause
of action? Is some of this reluctance based upon a constitutional limitation for federal
courts? Is Borak consistent with Erie? See Powell’s renowned dissent in Cannon.
If Congress should be definite in setting forth a cause of action (see Cannon), does that
comport with the results in Lujan or Boyle?
Should the Court be more or less hesitant to imply a cause of action from the
Constitution? From particular Constitutional provisions? In this regard consider the
following footnote dropped by Justice Powell in his famous Cannon dissent (a footnote
that the text book authors–who edited it out of the text --apparently felt was unimportant):
Powell noted that "private actions could be implied directly from
Particular provisions of the Constitution....this Court's traditional
responsibility to safeguard constitutionally protected rights, as well
as the freer hand we necessarily have in the interpretation of the
Constitution, permits greater judicial creativity with respect to implied
constitutional causes of action. Moreover, the implication of remedies to
enforce constitutional provisions does not interfere with the legislative
process in the way that the implication of remedies from statutes can.
Is Powell's distinction between court implied constitutional and statutory causes of action
justifiable? Does this footnote relate to Powell's discussion in his U.S. v. Richardson
concurrence? Why might a court have a "freer hand" when protecting constitutional
rights or interpreting the constitution?
If the Court implies a cause of action (under a statute or constitutional provision), does it
have discretion to do so? What sort of factors should be considered? Compare Davis v.
Passman to Bush v. Lucas. Is Bivens constitutionally required? Could Congress alter
the Bivens remedy?
FEDERAL COMMON LAW: WHERE ERIE FEARS TO TREAD
“Judges are like umpires, they don’t make the rules, they apply them. My job is to call
balls and strikes, not pitch or bat.”
Chief Justice John Roberts, June 2005, initial
statement at his Senate confirmation hearing.
Compare this statement to the following:
“ The fair reading model fails to account for what the Constitution actually says, and it
fails just as badly to understand what judges have no choice but to do. The Constitution is
a pantheon of values, and a lot of hard cases are hard because the Constitution gives no
simple rule of decision for the cases in which one of the values is truly at odds with another.
Not even its most uncompromising and unconditional language can resolve every potential
tension of one provision with another, tension the constitution’s Framers left to be resolved
another day; and another day after that, for our cases can give no answers that fit all
conflicts, and no resolutions immune to rethinking when the significance of old facts may
have changed in the changing world. These are reasons enough to show how egregiously it
misses the point to think of judges in constitutional cases as just sitting there reading
constitutional phrases fairly and looking at reported facts objectively to produce their
judgments.” Justice David Souter, Commencement Address, Harvard University, May 27,
2010.
The United States Clean Water Act prohibits the discharge of any “pollutant” into the “waters of
the United States” without a permit. The Act defines the term “pollutant” as being any “waste,
chemical discharge, cellar dirt, rubbish, trash, or sewage”. The Act also defines a “water of the
United States” as being any navigable waterway including any wetland “associated with such
waterway”. “Navigable” is defined as a waterway having enough water flow to allow operation
of a “canoe, boat, or other vessel”.
Assume that a developer is filling in a large wetland that borders a tributary of the Teton River.
He is filling it with topsoil and rocks. The wetland does border the tributary. The tributary is
completely dry in the summer, but in the winter and spring it contains enough water to float a
canoe.
The United States sues the developer in federal court seeking an injunction and monetary
penalties. The developer moves for summary judgment claiming that: 1) the wetlands and the
tributary are not “waters of the United States” and 2) clean topsoil and rocks are not “pollutants”
as defined by the Clean Water Act.
What do you rule as the judge? What is your reasoning? Will your ruling be a precedent for the
next Clean Water Act wetlands case?
The federal Endangered Species Act directs the U.S. Fish and Wildlife Service to “take all steps
necessary to protect and preserve” any endangered species. The Act also contains the following
provision “the courts applying this law shall expansively interpret the terms of this law to ensure
the continued survival of all endangered species.
The federal Import Control Act (passed long before the Endangered Species Act) prohibits the
“importation of any vermin”. The term “vermin” is defined–in part-- as any “rodent, other than
rabbits, and any animal that is a danger to livestock such as wolves ....”
The gray timber wolf is an endangered species under the Endangered Species Act. Very few
wolves live in the continental United States. In an effort to protect the wolves’ survival, the U.S.
Fish and Wildlife Service decide to reintroduce wolves to Yellowstone National Park. To do
this, they import wolves from Canada (thus expanding the gene pool and assuring more healthy
wolves and more reproduction).
A Wyoming rancher is infuriated by this attempt to reintroduce wolves into a part of the West
where “these damn varmits” had long since been killed off. He owns a large cattle ranch
bordering Yellowstone National Park. He sues the Fish and Wildlife Service (seeking an
injunction) claiming that: 1) the importation of the wolves violates the Import Control Act; and
2) the terms “protect and preserve” in the Endangered Species Act do not include importing
wildlife from another country.
Who wins? What is your reasoning?
CONSTITUTIONAL COMMON LAW AND CONGRESS
By Richard E. Welch III
Federal common law is made when interpreting vague statutory phrases, or when reconciling two
conflicting federal laws, or when implying a private cause of action (a.k.a. an implied remedy) from
a federal statute. But this is hardly an exhaustive list. As we will see, the federal courts also make
federal common law when developing immunity doctrines (e.g. absolute and qualified immunity) or
determinations as to when an interlocutory appeal can be made. One would think that there is no
question that Congress could reverse or supplement or modify any federal common law made in this
realm. For example, if the court interpreted a statutory phrase in one way (e.g. “any animal” means
both wild and domestic animals), Congress later could amend the statute to clarify the phrase (e.g.
“any animal” means only wild animals). But see the Plaut v. Spendthrift Farms and Klein cases
discussed earlier. Given the particular judge, he or she might be more or less hesitant to make
federal common law (assuming one is not displacing state law in violation of Erie), but such conduct
is not inherently anti-democratic. Indeed, one of the justifications for (and safeguards concerning)
making common law is that the legislature always can correct any mistake made by the court. For
example, Congress apparently could eliminate or revise the “government contractor defense” created
by Justice Scalia in Boyle.
Questions arise, however, when the federal “common law” has its source not in a statute but in the
Constitution. The Bivens remedy, being implied from the Fourth Amendment, is often considered a
creation of federal common law, or (as professor Henry Monaghan coined the phrase many years
ago) “constitutional common law.” The Bivens decision (along with later decisions such as Bush v.
Lucas) indicates that Congress has a role in shaping the remedy if it wishes to (“an equally effective
remedy in the view of Congress”). Thus, like federal common law derived from statutes or common
law arising from the general supervision of the federal courts, Congress can at least shape or alter
(but perhaps not eliminate) such constitutional common law. Other examples of “constitutional
common law” might be considered to include “prophylactic” rules derived from Bill of Rights
guarantees. The Supreme Court’s famous recitation of rights to be given to suspects in police
custody prior to questioning, as established in the Miranda decision, might well be considered
constitutional common law. The so-called Miranda rights were derived from due process concerns
enshrined in the Fifth Amendment. The Miranda decision contains language that indicates that
Congress can implement other measures in lieu of the court suggested warnings, as long as they are
equally effective in protecting an individual’s due process protections. Numerous members of the
Supreme Court have written decisions indicating that the Miranda warnings were not Constitutional
necessities. Thus, it appears that Miranda warnings are another example of constitutional common
law that can be shaped by Congress. Or, so it seemed until Chief Justice Rehnquist’s opinion in
Dickerson v. Untied States.
Dickerson involved a Congressional statue that allowed into evidence a defendant’s confession as
long as it was voluntary. The statute set forth that the “voluntariness” of the statement was to be
determined (by a court) from the totality of the circumstances. One of the factors the court could
consider is whether the Miranda warnings were issued. The lack of Miranda warnings, however,
would not bar the statement into evidence if the court determined that it was truly voluntary. As
Justice Scalia argued in his dissent, it would be difficult to find such a Congressional statute to be
unconstitutional in that the Fifth Amendment due process clause is all about preventing any coerced
or involuntary confessions. The majority opinion (written by Chief Justice Rehnquist) did not rule
that the Congressional statute was unconstitutional. The Court, instead, held that “Miranda, being a
constitutional decision of this Court, may not be in effect overruled by an Act of Congress....”
Rehnquist explained that “Congress may not legislatively supercede our decisions interpreting and
applying the Constitution.” In essence, Rehnquist – and the majority – refused to acknowledge the
existence of constitutional common law. The majority decision set up a false choice: “this case
therefore turns on whether the Miranda Court announced a constitutional rule or merely exercised its
supervisory authority to regulate evidence in the absence of congressional direction.” In reality, the
Supreme Court in Miranda, Bivens, and other cases, may be doing something in between
constitutional interpretation and establishing rules of court, i.e. the Court is effectuating Bill of
Rights guarantees by creating remedies that are constitutionally inspired but not required. Of course,
Congress cannot reverse a constitutional interpretation of the Court by mere legislation, but it may
well have a role in shaping and tailoring such court created remedies.
Amicus curiae briefs filed in Dickerson argued that Miranda was constitutional common law; but,
this position was given short shrift and the majority quickly concluded, in any event, that the
congressional statute was not “an adequate substitute for the warnings required by Miranda.”
Justice Scalia’s dissent (joined only by Justice Thomas) roundly criticized the majority’s approach
stating that this “radical revision” of Miranda now “gives it a permanent place in our jurisprudence.”
Given the majority’s holding that Congress cannot revise the Miranda warnings without a
constitutional amendment, is not Scalia correct in saying that the warnings are permanently
enshrined in the Constitution? What about the Bivens remedy?
Like the majority, Scalia refuses to take the approach that the Miranda warnings were an exercise in
constitutional common law. While he acknowledges the concept, he considers the Supreme Court’s
adoption of “prophylactic rules to buttress constitutional rights” as “judicial overreaching” and a
“lawless practice.” This is an interesting statement by a judge who was not hesitant at all to engage
in making federal common law in the controversial case of Boyle. What appears to motivate Scalia’s
ire is that he recognizes that the majority’s approach imposes “extra constitutional constraints upon
the Congress and the States.” In other words, by saying that Miranda is a constitutionally required
interpretation of the due process clause, the Court is imposing its view of the most effective way to
protect those rights upon the country in an anti-democratic fashion. In short, Congress has been
taken out of the mix. What Scalia refuses to acknowledge is that a middle ground – i.e. court created
rules and remedies derived from constitutional rights may be created by the court, but those common
law rules can be altered and modified by the Congress – is available and avoids the concerns of
placing “constraints upon Congress”, or“judicial arrogance,” or judicial imperialism.
The creation of constitutional common law – or any federal common law – always can be criticized
as “judicial overreaching”. A judge might refuse to interpret any hazy phrase or fill in any statutory
gap and reason that it is solely Congress’ job to clarify the law. In the meantime, people’s rights are
being denied, statutes are not being enforced, and Congress may not listen to the request for
clarification. For this reason, the creation of common law is standard practice in most every federal
courtroom – and by every Supreme Court justice to ever wear a robe. The real difficulty with
constitutional common law may be in distinguishing between constitutional interpretation (that
cannot be altered except by constitutional amendment) and constitutional common law — i.e.
constitutionally inspired rules and remedies. But is that line so difficult to draw? The Fourth
Amendment, for example, prohibits “unreasonable searches and seizures”. When interpreting that
phrase, the Supreme Court might hold that searches of “open fields” (or “common areas” of an
apartment building or discarded trash) do not invade a reasonable expectation of privacy and thus are
not unreasonable. This is constitutional interpretation that cannot be altered by a Congressional
statute. In order to effectuate Fourth Amendment guarantees (and to discourage any future
violations of the Fourth Amendment), the Supreme Court has created the “fruit of the poisonous
tree” doctrine. Under that doctrine, any later legal seizure of evidence (e.g. pursuant to a valid
search warrant) is suppressed if it “flows” from an earlier illegal search. This doctrine might be
considered constitutional common law. It is inspired by the Fourth Amendment but it is not an
interpretation of the Amendment’s wording. It well may be that Congress could modify the doctrine
to allow for an equally effective deterrent. But, the current Supreme Court – at least if the justices
continue the reluctance to recognize constitutional common law as shown in Dickerson — may not
accept such reasoning.
**********************************
Davidson is an interesting insight into the Rehnquist Court. Before becoming Chief Justice,
Rehnquist frequently criticized the Miranda decision. The Davidson case, however, presented two
competing issues to Rehnquist: 1) a civil rights issue; and 2) a judicial supremacy issue. If the statute
modifying the Miranda warnings was upheld, it would be a recognition of Congress’ power to
influence court created constitutional rules. In Davidson, the Chief Justice chose to adopt the
position that the Court is the supreme interpreter of the Constitution – or anything resembling legal
interpretation – and that Congress has little or no role in such decision making. This is a strand that
runs through many of the decisions of the Rehnquist Court, i.e. a distrust of Congress and a belief
that the Court is especially endowed with the ability to interpret the Constitution and correct wrongs.
Although Scalia occasionally criticizes such decisions as the “Imperial Judiciary”, he was not
hesitant to adopt a similar stance in such decisions as Plaut, Bush v. Gore, and various 11th
Amendment pronouncements. Judicial activism may know no political stripe.
For a more detailed article on the concept of federal common law, particularly as it relates to
Federalism and the Tenth and Eleventh Amendments, see Welch, Mr. Sullivan's Trunk:
Constitutional Common Law and Federalism, 46 New England Law Review, 275-302 (2012).
CLASS SEVEN: FEDERAL COURT ENFORCEMENT OF FEDERAL RIGHTS
“The Great Writ”: Habeas Corpus in the Federal Courts
A Current Example: What if your client, a Mr. El Shahim from Indonesia is a legal resident of the
United States. One day, having misplaced his “green card”, he is placed into custody by the INS as
part of a “terrorism sweep”. The INS, believing Mr. El Shahim to be illegally in the country and,
perhaps, giving aid and comfort to the enemy, quickly transport him to the naval brig in Pensacola,
Florida. The INS begins expedited administrative proceedings to deport your client. You receive an
emergency phone call from his wife who reports the situation to you. What do you do? Note that the
INS will not be instituting any court proceeding, but will instead be deporting your client in a matter
of days.
1. Introductory Notes 1 and 2, pp. 827-829; “Section 6: Habeas Corpus and the War on Terror,” pp.
998-1026.
2. Back to the Future: Challenges to Executive Detention: Read attachment "The St. Cyr Case and
Congressional Restrictions Upon Habeas Corpus Relief"
Note that the writ of habeas corpus was the product of English common law and was originally
created to provide an avenue to review when the King (or, in this country, the Executive Department)
was holding a person. Over the last fifty years (if not more) habeas petitions are usually thought of as
arising from people who have been incarcerated as a result of a judicial trial, but the recent “War on
Terrorism” has brought attention to the original justification for the “great writ”.
Is some right to habeas corpus guaranteed by the Constitution? If not explicitly, implicitly through
the Suspension Clause? If so, what is the scope of such an implicit right to habeas corpus relief? For
example, would it be a right to habeas corpus as commonly understood when the Constitution was
ratified? If so, how would you define that right?
E.g.: Only American citizens held by the
Executive Department on American soil? Any legal resident of the United States held in any sort of
federal custody? Any prisoner held by state or federal authorities?
Notice that habeas corpus petitions are a statutory creation. The federal statutory right to a habeas
petition was granted in the First Judiciary Act of 1789. Prior to the Declaration of Independence and
the Constitution, each colony guaranteed habeas petitions through common law or as part of its
charter. Under the Suspension Clause of the Constitution, the writ cannot be suspended except in
time of war or rebellion. But what if Congress did not suspend the writ, but simply passed legislation
eliminating the right of habeas?
Note that most every state in the Union provides for habeas relief by statute or common law. But will
such habeas corpus petitions bring any relief to someone being held in federal custody? Will they
bring any relief to a state prisoner that the prisoner could not obtain my filing an appeal or motion for
new trial?
The St. Cyr Case and Congressional Restriction of the
Writ of Habeas Corpus
by
Richard E. Welch III
Current text books do a poor job examining an increasingly important federal courts issue, namely the
use of habeas corpus petitions to challenge a person’s detention by the executive department. Examples
of such detention include a person being held by the Immigration and Naturalization Service (INS), the
Department of Homeland Security, or the military. Given the increased scrutiny to illegal immigration
and the “War on Terror”, these detentions are likely to increase. Should that occur, the federal courts are
likely to be the primary battleground regarding such issues as the availability of habeas relief and whether
the detention is lawful.
The vast bulk of the case law deals with the more traditional use of habeas petitions, i.e. challenging a
state court conviction in federal court. But that was not the initial purpose of the great writ of habeas
corpus. The writ of habeas corpus was the product of English common law and was originally created to
provide an avenue to review when the King (or, in this country, the Executive Department) was holding a
person. Over the last fifty years (if not more) habeas petitions are usually thought of as arising from
people who have been incarcerated as a result of a judicial trial, but the recent “War on Terrorism” has
brought attention to the original justification for the “great writ”. The current troubled state of
international affairs has brought us back to the original use of the writ. But the people who will be
attempting to be released from the custody of the Executive Department are not the most popular of sorts,
e.g. people accused of terrorism, allegedly illegal immigrants, supposed security risks, etc. Thus,
Congress already has attempted to eliminate habeas review in certain instances and may well attempt
more extensive restrictions in the future. The St. Cyr case is a good example. In examining the case,
think of the answers to the following questions:
Is some right to habeas corpus guaranteed by the Constitution? If not explicitly, implicitly through the
Suspension Clause? Notice that habeas corpus petitions are a statutory creation. The federal statutory
right to a habeas petition was granted in the First Judiciary Act of 1789. Prior to the Declaration of
Independence and the Constitution, each colony guaranteed habeas petitions through common law or as
part of its charter. Under the Suspension Clause of the Constitution, the writ cannot be suspended except
in time of rebellion or invasion “the public Safety may require it”. But what if Congress did not suspend
the writ, but simply passed legislation eliminating the right of habeas?
The St. Cyr Case (INS v. St. Cyr, 533 U.S. 289 (2001))
St. Cyr, a citizen of Haiti, was legally admitted into the United States but later pled guilty to a state
felony drug charge. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Congress provided that any immigrant who was convicted of such a felony charge was to be
deported by the INS. Sure enough, the INS instituted deportation proceedings against St. Cyr. In a
companion case, the Supreme Court held that Congress had plainly precluded appellate review of the
deportation order in the Court of Appeals. Calcano-Martinez v. INS, 533 U.S. 348 (2001). But, St. Cyr
did not directly appeal from the deportation order under the statute. Instead, St. Cyr filed a habeas
petition under the general federal habeas statute, 28 USC Section 2241, challenging the
interpretation/constitutionality of the statute and requesting release. Thus, the question in the case was
whether in drafting the statute Congress had eliminated any habeas corpus review – leaving St. Cyr with
no remedy– or whether the statute permitted the Court jurisdiction to hear the habeas corpus petition.
The U.S. Attorney General argued that the Court lacked jurisdiction to hear the habeas petition because
Congress had specified in the IIRIRA and in a companion statute that judicial review was explicitly
precluded. The argument certainly had some force. One provision of the law was titled “Elimination of
Custody Review by Habeas Corpus” and another provision provided: “Notwithstanding any other
provision of law, no court shall have jurisdiction to review any final order of removal against an alien
who is removable by reason of having committed [the crime of drug trafficking to which St. Cyr pled
guilty].” By a closely divided 5-4 vote, the Supreme Court held that the IIRIRA must be interpreted not
to preclude jurisdiction. The majority opined that there is a strong presumption in favor of judicial
review of administrative action and that only a clear statement of Congress to repeal habeas jurisdiction
would overcome that presumption. The reason for a clear statement requirement, the Court stated, was
that interpreting the statute to preclude jurisdiction to hear the habeas petition would raise “serious
constitutional problems.” Despite wording that almost anyone could understand, the majority reasoned
that there was no clear statement. Straining mightily, Justice Stevens (writing for the majority) reasoned
that the statute’s preclusion of “judicial review” did not include precluding jurisdiction over habeas
corpus petitions. “In the immigration context, ‘judicial review’ and ‘habeas corpus’ have historically
distinct meanings.”
The majority emphasized that this petition challenging detention by the Executive Department was
similar to the “writ as it existed in 1789". In this situation, “it necessarily follows that a serious
Suspension Clause issue would be presented if we were to accept the INS’s submission that the
1996 statutes have withdrawn that power from federal judges and provided no adequate substitute
for the exercise.”
Notice that the majority focused on the writ of habeas corpus not as it existed at the ratification of the
Constitution, but as of 1789, the year of the First Judicial Act (which created the first federal habeas
petition).
Not surprisingly, Justice Scalia filed a withering dissent claiming that the majority had found “ambiguity
in the utterly clear language.” He claimed that the majority was fabricating a “superclear statement,
‘magic words’ requirement.” Isn’t Justice Scalia correct?
Unlike the majority, Justice Scalia found no Constitutional problem with the elimination of habeas
jurisdiction. In his view, the Suspension Clause does not “guarantee any particular habeas right” but only
ensures that whatever habeas rights exist at a particular time may not be suspended except in cases or
rebellion or invasion. “In the present case,” he wrote, “Congress has not temporarily withheld operation
of the writ, but has permanently altered its content. That is, to be sure , an act subject to majoritarian
abuse, as is Congress’s framing (or its determination not to frame) a habeas statute in the first place. But
that is not the majoritarian abuse against which the Suspension Clause was directed.” Is this portion of
Scalia’s opinion correct (only Rehnquist and Thomas joined in this portion; O’Connor wrote separately)?
Under Scalia’s theory, the Constitution does not demand any habeas petition rights. Is this a fair
understanding of the Framers’ beliefs in the fundamental importance of habeas corpus rights? Does it
take into account that fact that the Suspension Clause is premised upon the assumption that common law
or statutory law is to provide at least some minimal right to petition for release from unlawful detention?
Does the Suspension Clause protect much if it only protects against “temporary”suspensions of the
habeas statute? Under Scalia’s reasoning, does the Suspension Clause provide any protection against the
acts of Congress? Would Congress be likely to “temporarily” suspend habeas protections or legislate to
permanently change or eliminate them? Why shouldn’t the Suspension Clause be considered a protection
against majoritarian abuse?
Justice O’Connor joined Justice Scalia’s opinion except for the Suspension Clause discussion. She stated
in her short separate dissent: “assuming...that the Suspension Clause guarantees some minimum extent of
habeas review, the right asserted by the alien in this case falls outside the scope of that review.” Is
Justice O’Connor saying that the Suspension Clause might have a core component of protecting U.S.
citizens from unlawful detention by the Executive Department?
Does this case remind you of another case we studied earlier this semester?
CLASS EIGHT
Challenges to Federal Official Action
1.Federal Sovereign Immunity – Read attachment "Challanges to Official Action: Sovereign
Immunity".
2. Does the Constitution contain any reference to sovereign immunity? Does any particular provision
waive sovereign immunity? Consider First English Evangelical.
Challenges to State Official Action
1. Note on the Eleventh Amendment, pp. 1027-1032.
2. Of Fictions and Federalism: Ex Parte Young, pp. 1032-1036.
Rehnquist speaks on Young: Edelman v. Jordan, pp. 1032-1043 and Notes on State Immunity
Against Award of Damages, pp. 1053-1059 and Note on Nevada v. Hall, p. 1059-1060.
Read attachment: "Theodore Sedqwick and the Adoption of the 11th Amendment".
Note the authors' pointed statement on page 1056: "The 11th Amendment does not apply in state courts."
Is this correct? Remember Nevada v. Hall. If so, is the Amendment a constitutionally mandated choice of
forum provision – i.e. a constitutionally enshrined home court advantage for states? In other words, if
you want to sue a state, you must do it in state court?
FEDERAL COURTS AND THE FEDERAL SYSTEM
CHALLENGES TO OFFICIAL ACTION: SOVEREIGN IMMUNITY
Richard E. Welch III
Much of the remainder of this course deals with lawsuits brought in federal court by individuals
who assert that their rights have been denied by a federal or state official. Indeed, we have
already focused on such lawsuits when discussing the Bivens case. Why focus on such lawsuits
that constitute challenges to official (be it a federal or a state official) action? The reasons are
many but perhaps the most fundamental is that an individual’s ability to challenge wrongs done
to him or her by the government is the core to our concept of ordered liberty in the United States.
Such challenges to official action, however, raise numerous difficult issues for any lawyer. If the
United States government has denied some property or liberty interest, one must first determine
if one has a cause of action (either a statutory cause of action or one implied from a
constitutional guarantee). Then one must make sure that the federal court (if it is there that you
wish to file your claim) has jurisdiction. Closely related to this concept is the determination
whether your lawsuit against the United States, its agencies, or its officials (when the lawsuit
seeks to bind the federal government or to reach its coffers), barred by the ancient, but very well
established, doctrine of sovereign immunity. For example, remember poor Mr. Bivens. All
would agree that his rights were violated by federal officials (i.e. those six unknown, but named,
dug enforcement agents). He first had to find a cause of action. The federal statutes did not give
him one, but he convinced the Supreme Court to imply one from the Fourth Amendment. Then
he had to find a jurisdictional statute. That was easy in that his claim plainly raised a federal
question and there was no jurisdiction monetary amount that needed to be exceeded. Then he
confronted the issue of sovereign immunity. Why did he not sue the United States of America
(plainly a much deeper pocket than some drug enforcement agent), or the Bureau of Narcotics?
Why did he settle for naming the six unknown agents? The answer, obviously, was the doctrine
of sovereign immunity. Why is there such a doctrine? Where does it come from? Should it
exist in a democracy such as the United States? Does the Constitution contain any provisions
that, in effect, waive sovereign immunity for the federal government? If so what are those
provisions and should there be others?
One can search the Constitution and find not one reference to the doctrine of sovereign
immunity. When that document was drafted, the doctrine of sovereign immunity had enjoyed a
very long life in England where the King could do no wrong. The Constitution, of course, makes
the "people" sovereign and not a ruler. Thus, there might be some question as to whether the
doctrine was to be exported to the United States. Indeed, Article III envisions "Controversies to
which the United States shall be a Party". Despite a different governmental structure, the
Supreme Court early on assumed that the doctrine of sovereign immunity applied to suits against
the United States. See, e.g., Chisholm v. Georgia, 2 U.S. 419, 478 (1793)(Jay, C.J.); Cohens v.
Virginia, 19 U.S. 264, 383, 411-12 (1821)(Marshall, C.J.). The reasons supporting the doctrine
of sovereign immunity have never been well explained in any Supreme Court decision. See
United States v. Lee, 106 U.S. 196, 205 (1882)(holding that the U.S. "cannot be lawfully sued
without its consent in any case", but admitting that the principle of sovereign immunity "has
never been discussed or the reasons for it given, but it has always been treated as an established
doctrine"). Even the great Justice Holmes lamely justified the doctrine by relying on the "logical
and practical ground that there can be no legal right as against the authority that makes the law
on which the right depends." Kawananokoa v. Polyblank, 205 U.S. 349, 353 (1907). While this
may be of academic interest, the law is clear: the doctrine of sovereign immunity prohibits any
suits naming the United States as a party, unless the United States has rather clearly waived its
immunity.
There may, however, be an exception. Imagine the federal government taking your land to build
a highway and failing to give you fair compensation. You look at the federal statutes and find
not one that permits you to file suit against the United States. In other words, the United States
has not waived its sovereign immunity, but you wish to sue in order to obtain compensation.
What can you do? Perhaps, a good place to start is studying some dicta in the Supreme Court
decision of First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304,
885 (1987). In that case (a suit under the 5th Amendment takings clause against a county), the
Solicitor General argued that "principles of sovereign immunity establishes that the [Fifth]
Amendment itself is only a limitation on the power of the Government to act, not a remedial
provision." The Supreme Court rejected this argument and stated "the cases cited in the text, we
think, refute the argument...that the Constitution does not, of its own force furnish a basis for a
court to award money damages against the government....these cases make clear that it is the
Constitution that dictates the remedy for interference with property rights amounting to a
taking." Is this similar to a Bivens remedy. Think back to the remedies in Ward v. Love County
and Reich v. Collins. A seamless web? But see Alden v. Maine (which we will read later) and
City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 714 (1999).
The importance of federal sovereign immunity has declined substantially in the past fifty years.
The reason for this is the existence of numerous laws whereby Congress has consented to suit.
The primary examples are the Tucker Act (governing non-tort monetary claims against the
United States), the Federal Tort Claims Act, and a 1976 statute governing claims against the
United States for relief other than money damages (used particularly when seeking injunctive
relief or claims under the Administrative Procedures Act). All of these statutes substitute the
United States as the party to be sued (as opposed to the individual official) and contain various
limitations and restrictions.
While the importance of federal sovereign immunity has declined, the reverse is true for state
governmental immunity. A state does not truly have “sovereign immunity” in a federal court
proceeding (despite some sloppy language in certain cases). Rather states have immunity from
suit in federal court pursuant to the Eleventh Amendment. But that is another topic – and a
controversial one – which is to be studied with care.
Theodore Sedgwick and the Adoption of the
Eleventh Amendment
by
Richard E. Welch III
The Supreme Court’s decision in Chisholm v. Georgia certainly angered Georgian officials.
Being told by the Supreme Court that their state could be sued for damages by some out-ofstaters riled the Georgia legislature sufficiently to pass a law that anyone attempting to enforce or
collect upon the Chisholm judgment would be guilty of a felony and “shall suffer death, without
benefit of clergy, by being hanged.” This type of bellicose response might be expected from the
Georgians. After all, this is the State that later hung Corntassel and refused to even
acknowledge any of Chief Justice Marshall’s judgments in favor of the Cherokee Nation.
Somewhat surprisingly, however, the northern state of Massachusetts was equally incensed by
the Supreme Court decision. The reason? There was a case startlingly similar to Chisholm
pending against the Commonwealth of Massachusetts, and the Commonwealth was not in a
financial position to easily satisfy such monetary judgments. Thus, there was a strong response
from both a Massachusetts United Sates Representative and Senator.
Just one day after the Supreme Court issued its decision in Chisholm, the leading United States
Representative from Massachusetts, one Theodore Sedgwick, introduced a proposed amendment
to the Constitution designed to negate the effects of the Supreme Court decision. That proposed
amendment read:
That no state shall be liable to be made a party defendant
in any of the judicial courts, established, or which shall be
established under the authority of the United States, at the
Suit of any person or persons whether a citizen or citizens,
Or a foreigner or foreigners, or any body politic or corporate,
whether within or without the United States.
United States Senator Strong from Massachusetts soon thereafter filed a similar proposed
amendment in the Senate. Within a month of the Chisholm decision, the United States House
and Senate passed (for ratification by the States) the Eleventh Amendment as it is worded in the
Constitution. The United States House rejected the language of Theodore Sedgwick and, instead
passed a considerably different amendment. Why?
Apparently, the rejection of his proposed amendment was not because Theodore Sedgwick was
unpopular with his House of Representative colleagues. A few years later this leading Federalist
from Stockbridge, Massachusetts became the Speaker of the House. Nor was the failure to adopt
Sedgwick’s proposal the result of a lack of effort on the part of this strong willed and well
respected statesman. Sedgwick worked hard for his amendment because he felt that Chisholm
had undermined his personal reputation for integrity. As a leading Federalist of the day,
Sedgwick had strongly supported ratification of the Constitution at the Massachusetts ratification
convention. At that convention, he had personally assured constitution critics that the wording of
Article III – which mentions that federal jurisdiction extends to cases “between a State and
Citizens of another State”– would never lead to federal lawsuits against nonconsenting states.
After Chisholm, Sedgwick feared he, and other Federalists, would be accused of using “bait and
switch” tactics to obtain ratification of the Constitution. Still, his proposal did not pass. Does
this tell us something about the intended scope of the Eleventh Amendment? Does it tell us
something about how to interpret that Amendment?
CLASS NINE
Challenges to State Action and the Eleventh Amendment
I.
Congress and the Eleventh Amendment. Notes 1, 3, and 4 on Congressional Abrogation, pp.
1062-1064. Seminole Tribe of Florida v. Florida, 1066-1084, and Notes on Alden v. Maine,
College Savings Bank and Federal Maritime Commission, pp. 1084-1097. Pay particular
attention to Alden v. Maine. Remember the text book author’s confident assertion (supported by
language in such cases as Nevada v. Hall, Will v. Michigan Dep’t of State Police, and Maine v.
Thibitout) that the Eleventh Amendment does not apply in state court.
II.
State “Sovereign Immunity” and State Courts.
Is there tension between McKesson (and such cases as General Oil v. Crain and Ward v. Love
County) and the Alden v. Maine decision?
What laws can be passed pursuant to the 14th Amendment to waive 11th Amendment
Immunity?
Read City of Boerne and related cases, pp. 1097-1102 and Coleman case, 1102-1112 and
following Note on Abrogation of State Sovereign Immunity under Section 5 of the 14th
Amendment, pp. 1112-1121. Pay particular attention to Justice Scalia’s dissent in Tennessee v.
Lane. Read attachment "Supreme Court Limits Upon Congress Passing Legislation Under
the 14th Amendment."
10th Amendment Concerns. A reading of the full Alden v. Maine decision would reveal that the
Supreme Court relies upon both the 10th and the 11th Amendments in its reasoning. In 2013, the
Supreme Court cited the 10th Amendment again when striking down legislation passed pursuant to
Section 5 of the Fifteenth Amenment. The legislation in question was a portion of the historic 1965
Voting Rights Act, a law that was plainly directly related to the purpose of the 15th Amendment (i.e.
prohibiting racial discrimination in denying the right to vote). Read the attached "The Tenth
Amendment Confronts the Fifteenth" and consider some of the questions asked in that essay.
Is the State sovereign immunity recognized in Hans (or Seminole) grounded in the constitution (i.e. the
Eleventh Amendment?)
After Seminole, is any portion of this sovereign immunity a prudential doctrine? Should it be? If so,
what portion?
How can Congress abrogate a constitutional amendment? Does the 14th Amendment hold a special
position vis a vis the Eleventh? If so, why? Does Section 5 of the Fourteen Amendment really add
anything. Note that the Commerce Clause (and other congressional powers contained in Article I of the
Constitution, such as to the power to tax, spend, raise an army, mint money, etc.) do not contain an
explicit provision that states that Congress can pass laws to effectuate this power, but isn’t such power
implicit? And do not those powers implicitly or explicitly limit state power? Does the Eleventh
Amendment limit the takings clause? Consider First Evangelical, Ward, Crain, McKesson and Reich in
relation to the Eleventh Amendment.
Where do the states get their sovereignty? Do the majority positions in Alden and Seminole comport with
Justice Scalia’s concurrence in Tafflin v. Levitt? Does Seminole’s explanation of Fitzpatrick v. Bitzer
make any sense after Alden?
Does Alden undercut Ward, McKesson, and Crain?
The Rise of the Eleventh Amendment: A Current Example
Congress has passed several laws which prohibit an employer from discriminating against an employee
based upon his or her age or his or her medical or physical disability. These acts specify that an employee
who is discriminated against because of age or disability may sue the employer for damages. Employers
are defined and include the federal government, state and local government. Although the legislative
history is scanty, these bills were apparently enacted pursuant to the Constitution’s interstate commerce
clause. Suppose Massachusetts required all judges to retire at age 60. An aging judge sues the state (and
the state A.G.) in federal and state court. The plaintiff judge seeks past damages and injunctive relief.
What is the result? What is the reasoning?
THE SUPREME COURT’S LIMITS UPON CONGRESS PASSING LEGISLATION UNDER
THE FOURTEENTH AMENDMENT
For anyone interested in the dilemma raised by the Supreme Court’s recent Eleventh
Amendment jurisprudence and the line of cases that begins with City of Boerne and includes the
Florida Prepaid and others, a well written book by Judge John T. Noonan, Jr. entitled
Narrowing the Nation’s Power (Univ. Of California Press, 2002) is highly recommended
reading. Judge Noonan is highly critical of what he considers the Supreme Court’s power grab
when expanding the idea of state sovereignty. Whether one agrees with Judge Noonan or not,
the book makes for interesting – even entertaining – reading. One matter that the author touches
upon does seem rather incontrovertible: this debate over the sovereignty of the states is a
“recurrent struggle” that is being resumed. Remember our discussion over the scrapping of the
Articles of Confederation and the adoption of the Constitution. One passage from the book that
deserves notice follows. See if you agree.
“The States entered the federal system with their sovereignty intact.” If written in 1791, this
sentence would have been understood as an anti-federalist’s reservation as to the constitution.
Uttered fifty years later in 1841, it would have expressed the new sectionalism and, in particular,
the sensitivity of the South to any Northern encroachment on its peculiar institution of chattel
slavery. But this statement was not made in 1791 or 1841. It was made in 1991 and was not
made by an anti-federalist or a potential secessionist. It was made by the Supreme Court of the
United States.
Court repeated this statement with approbation in 1997 and again ... in 1999. It is foundational
for the current court’s claim that the immunity of sovereigns is enjoyed today by each of the fifty
states. To anyone familiar with the precedents of that court or with the text of the constitution of
the United States or with the history of the Civil War, it is an extraordinary statement.
The Tenth Amendment Confronts the Fifteenth: Striking Down the
Pre-Approval Enforcement Mechanism of the Voting Rights Act in
Shelby County v. Holder.
At the end of the 2012 term, the Supreme Court issued a 5-4 decision striking down a
famous provision of one of the most famous laws passed in the 20th century, the Voting Rights
Act of 1965. The Voting Rights Act occupies an important place in American history and the
civil rights movement. As you read through the following edited version of the Shelby County v.
Holder decision, ask yourself the following questions. The majority declared the enforcement
provision (passed pursuant to Section 5 of the Fifteenth Amendment) unconstitutional apparently
because it failed to pass the “rational basis” test for legislation. Given the vast Congressional
Record assembled by Congress, how was the 2006 reenactment of the Act not rationally related
to the goal of eliminating discrimination in voting? Is the majority really applying a rational
basis test, or is it giving the Act a higher degree of scrutiny? If so, on what basis?
The majority begins its opinion with noting “basic principles of federalism” and the
“equal sovereignty” of the states; later the majority cites the 10th Amendment. Do these concerns
permit the Court to apply a more stringent review (than the easily passed rational basis test) to
Congressional legislation?
Wasn’t the 15th Amendment explicitly passed to limit state power and authority? Hasn’t
the current 5 member majority stated in other cases that the post- Civil War Amendments, such
as the 15th Amendment, explicitly limit state power protected by the 10th and 11th Amendments
and have not the same justices acknowledged that Congress can pass legislation under Section 5
that restrict a state’s activities?
Could the court have rejected Shelby County’s appeal by simply stating that a facial
challenge to the Act was inappropriate? Or is this an example of dialogue between the Court and
Congress, e.g. the Court indicated its concerns over the constitutionality of the Act in Northwest
Austin and allowed Congress a chance to provide better evidence and, then, Congress did not
change the formula?
Isn’t Congress always in a much better position to determine the facts of whether blatant
or subtle voting discrimination exists and isn’t doesn’t Congress get substantial leeway in
creating remedies for those important constitutional violations? Does the majority acknowledge
that discrimination in voting still exist?
The majority opinion (authored by Chief Justice Roberts) complains that Congress has
left in place (since 1965) an inflexible system that requires only certain states to get preapproval
of its voting regulations. This, the majority seems to argue, violates some “equal sovereignty”
principle. Where does this “equal sovereignty” principle exist in the Constitution? What about
the dissent’s point that each State can opt-out of its preapproval status simply by showing that it
has complied with the Voting Rights Act during the past several years? Does not this provision
give the flexibility that the majority demands?
SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL.
CHIEF JUSTICE ROBERTS delivered the opinion of theCourt.
The Voting Rights Act of 1965 employed extraordinary measures to address an
extraordinary problem. Section 5 of the Act required States to obtain federal permission
before enacting any law related to voting—a drastic departure from basic principles of
federalism. And §4 of the Act applied that requirement only to some States—an equally
dramatic departure from the principle that all States enjoy equal sovereignty.
….
The Fifteenth Amendment was ratified in 1870, in the wake of the Civil War. It provides that
“[t]he right of citizens of the United States to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or previous condition of servitude,” and it gives
Congress the “power to enforce this article by appropriate legislation.”
“The first century of congressional enforcement of the Amendment, however, can only
be regarded as a failure.” Id., at 197. In the 1890s, Alabama, Georgia, Louisiana, Mississippi,
North Carolina, South Carolina, and Virginia began to enact literacy tests for voter registration
and to employ other methods designed to prevent African-Americans from voting. Katzenbach,
383 U. S., at 310. Congress passed statutes outlawing some of these practices and facilitating
litigation against them, but litigation remained slow and expensive, and the States came up with
new ways to discriminate as soon as existing ones were struck down. Voter registration of
African-Americans barely improved. Id., at 313–314.
Inspired to action by the civil rights movement, Congress responded in 1965 with the
Voting Rights Act. Section 2 was enacted to forbid, in all 50 States, any “standard, practice, or
procedure . . . imposed or applied . . . to deny or abridge the right of any citizen of the United
States to vote on account of race or color.” 79 Stat. 437. The current version forbids any
“standard, practice, or procedure” that “results in a denial or abridgement of the right of any
citizen of the United States to vote on account of race or color.” 42 U.S.C. §1973(a). Both the
Federal Government and individuals have sued to enforce §2, see, e.g., Johnson v. De Grandy,
512 U. S. 997 (1994), and injunctive relief is available in appropriate cases to block voting laws
from going into effect, see 42 U. S. C. §1973j(d). Section 2 is permanent, applies nationwide,
and is not at issue in this case.
Other sections targeted only some parts of the country. At the time of the Act’s passage, these
“covered” jurisdictions were those States or political subdivisions that had maintained a test or
device as a prerequisite to voting asof November 1, 1964, and had less than 50 percent voter
registration or turnout in the 1964 Presidential election. §4(b), 79 Stat. 438. Such tests or
devices included literacy and knowledge tests, good moral character requirements, the need for
vouchers from registered voters, and the like. §4(c), id., at 438–439. A covered jurisdiction could
“bail out” of coverage if it had not used a test or device in the preceding five years “for the
purpose or with the effect of denying or abridging the right to vote on account of race or color.”
§4(a), id., at 438. In 1965, the covered States included Alabama, Georgia, Louisiana,
Mississippi, South Carolina, and Virginia. The additional covered subdivisions included 39
counties in North Carolina and one in Arizona. See 28 CFR pt. 51, App. (2012). In those
jurisdictions, §4 of the Act banned all such tests or devices. §4(a), 79 Stat. 438. Section 5
provided that no change in voting procedures could take effect until it was approved by federal
authorities in Washington, D. C.—either the Attorney General or a court of three judges. Id., at
439. A jurisdiction could obtain such “preclearance” only by proving that the change had neither
“the purpose [nor] the effect of denying or abridging the right to vote on account of race or
color.” Ibid.
…..
In 2006, Congress again reauthorized the Voting Rights Act for 25 years, again without change
to its coverage formula. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights
Act Reauthorization and Amendments Act, 120 Stat. 577. Congress also amended §5 to prohibit
more conduct than before. §5, id., at 580–581; see Reno v. Bossier Parish School Bd., 528 U.
S. 320, 341 (2000) (Bossier II); Georgia v. Ashcroft, 539 U. S. 461, 479 (2003). Section 5 now
forbids voting changes with “any discriminatory purpose” as well as voting changes that diminish
the ability of citizens, on account of race, color, or language minority status, “to elect their
preferred candidates of choice.” 42 U. S. C. §§1973c(b)–(d).
…..
In Northwest Austin, we stated that “the Act imposes current burdens and must be
justified by current needs.” 557 U.S., at 203. And we concluded that “a departure from the
fundamental principle of equal sovereignty requires a showing that a statute’s disparate
geographic coverage is sufficiently related to the problem that it targets.” Ibid. These basic
principles guide our review of the question before us.
…..Outside the strictures of the Supremacy Clause, States retain broad autonomy in
structuring their governments and pursuing legislative objectives. Indeed, the Constitution
provides that all powers not specifically granted to the Federal Government are reserved to the
States or citizens. Amdt. 10. This “allocation of powers in our federal system preserves the
integrity, dignity, and residual sovereignty of the States.” Bond v. United States, 564 U. S. ___,
___ (2011) (slip op., at 9). But the federal balance “is not just an end in itself: Rather, federalism
secures to citizens the liberties that derive from the diffusion of sovereign power.” Ibid. (internal
quotation marks omitted). More specifically, “‘the Framers of the Constitution intended the
States to keep for themselves, as provided in the Tenth Amendment, the power to regulate
elections.’” Gregory v. Ashcroft, 501 U. S. 452, 461–462 (1991) (quoting Sugarman v. Dougall,
413 U. S. 634, 647 (1973); some internal quotation marks omitted). Of course, the Federal
Government retains significant control over federal elections. For instance, the Constitution
authorizes Congress to establish the time and manner for electing Senators and
Representatives. Art. I, §4, cl. 1; see also Arizona v. Inter Tribal Council of Ariz., Inc., ante, at 4–
6. But States have “broad powers to determine the conditions under which the right of suffrage
may be exercised.” Carrington v. Rash, 380 U. S. 89, 91 (1965) (internal quotation marks
omitted); see also Arizona, ante, at 13–15. And “[e]ach State has the power to prescribe the
qualifications of its officers and the manner in which they shall be chosen.” Boyd v. Nebraska ex
rel. Thayer, 143 U. S. 135, 161 (1892). Drawing lines for congressional districts is likewise
“primarily the duty and responsibility of the State.” Perry v. Perez, 565 U. S. ___, ___ (2012)
(per curiam) (slip op., at 3)(internal quotation marks omitted).
Not only do States retain sovereignty under the Constitution, there is also a “fundamental
principle of equal sovereignty” among the States. Northwest Austin, supra, at 203 (citing United
States v. Louisiana, 363 U. S. 1, 16 (1960); Lessee of Pollard v. Hagan, 3 How. 212, 223
(1845); and Texas v. White, 7 Wall. 700, 725–726 (1869); emphasis added). Over a hundred
years ago, this Court explained that our Nation “was and is a union of States, equal in power,
dignity and authority.” Coyle v. Smith{fs28, 221 U. S. 559, 567 (1911). Indeed, “the
constitutional equality of the States is essential to the harmonious
operation of the scheme upon which the Republic was organized.” Id., at
580. Coyle concerned the admission of new States, and Katzenbach
rejected the notion that the principle operated as a bar on differential
treatment outside that context. 383 U. S., at 328–329. At the same time,
as we made clear in Northwest Austin, the fundamental principle of
equal sovereignty remains highly pertinent in assessing subsequent
disparate treatment of States. 557 U. S., at 203.
The Voting Rights Act sharply departs from these basic principles. It suspends “all
changes to state election law—however innocuous—until they have been
precleared by federal authorities in Washington, D. C.” Id., at 202.
…….And despite the tradition of equal sovereignty, the Act applies to only nine
States (and several additional counties). While one State waits months or years and
expends funds to implement a validly enacted law, its neighbor can typically put
the same law into effect immediately, through the normal legislative process……
As we reiterated in Northwest Austin, the Act constitutes “extraordinary legislation
otherwise unfamiliar to our federal system.” 557 U. S., at 211.
…..
In 1966, we found these departures from the basic features of
our system of government justified. The “blight of racial
discrimination in voting” had “infected the electoral process in parts
of our country for nearly a century.” Katzenbach, 383 U. S., at 308.
Several States had enacted a variety of requirements and tests
“specifically designed to prevent” African-Americans from voting. Id.,
at 310. Case-by-case litigation had proved inadequate to prevent such
racial discrimination in voting, in part because States “merely
switched to discriminatory devices not covered by the federal decrees,”
“enacted difficult new tests,” or simply “defied and evaded court
orders.” Id., at
314. Shortly before enactment of the Voting Rights Act, only 19.4 percent of
African-Americans of voting age were registered to vote in Alabama, only 31.8
percent in Louisiana, and only 6.4 percent in Mississippi. Id., at 313. Those figures
were roughly 50 percentage points or more below the figures for whites. Ibid.
……
We explained that “[t]ests and devices are relevant to voting discrimination
because of their long history as a tool for perpetrating the evil; a low voting rate is
pertinent for the obvious reason that widespread disenfranchisement must
inevitably affect the number of actual voters.” Ibid. We therefore concluded that
“the coverage formula [was] rational in both practice and theory.” Ibid.
….
Nearly 50 years later, things have changed dramatically. Shelby County contends
that the preclearance requirement, even without regard to its disparate coverage, is
now unconstitutional….. Census Bureau data from the most recent election
indicate that African-American voter turnout exceeded white voter turnout in five
of the six States originally covered by §5, with a gap in the sixth State of less than
one half of one percent.
….
There is no doubt that these improvements are in large part because
of the Voting Rights Act. The Act has proved immensely successful at
redressing racial discrimination and integrating the voting process. See
§2(b)(1), 120 Stat.
577. During the “Freedom Summer” of 1964, in Philadelphia,
Mississippi, three men were murdered while working in the area to
register African-American voters. See United States v. Price, 383 U. S.
787, 790 (1966). On “Bloody Sunday” in 1965, in Selma, Alabama, police
beat and used tear gas against hundreds marching in sup- port of
African-American enfranchisement. See Northwest Austin, supra, at
220, n. 3 (THOMAS, J., concurring in judgment in part and dissenting
in part). Today both of those towns are governed by African-American
mayors. Problems remain in these States and others, but there is no
denying that, due to the Voting Rights Act, our Nation has made great
strides.
Yet the Act has not eased the restrictions in §5 or narrowed the scope of the
coverage formula in §4(b) along the way. Those extraordinary and unprecedented
features were reauthorized—as if nothing had changed.
…..
But history did not end in 1965. By the time the Act was reauthorized
in 2006, there had been 40 more years of it. In assessing the “current
need[]” for a preclearance system that treats States differently from one
another today, that history cannot be ignored. During that time, largely
because of the Voting Rights Act, voting tests were abolished,
disparities in voter registration and turnout due to race were erased,
and African-Americans attained political office in record numbers. And
yet the coverage formula that Congress reauthorized in 2006 ignores
these developments, keeping the focus on decades-old data relevant to
decades-old problems, rather than current data reflecting current
needs.
The Fifteenth Amendment commands that the right to vote shall not
be denied or abridged on account of race or color, and it gives Congress
the power to enforce that command. The Amendment is not designed to
punish for the past; its purpose is to ensure a better future. See Rice
v. Cayetano, 528 U. S. 495, 512 (2000) (“Consistent with the design of
the Constitution, the [Fifteenth] Amendment is cast in fundamental
terms, terms transcending the particular controversy which was the
immediate impetus for its enactment.”). To serve that purpose,
Congress—if it is to divide the States—must identify those jurisdictions
to be singled out on a basis that makes sense in light of current
conditions. It cannot rely simply on the past. We made that clear in
Northwest Austin, and we make it clear again today.
….
Regardless of how to look at the record, however, no one can fairly say
that it shows anything approaching the “pervasive,” “flagrant,”
“widespread,” and “rampant” discrimination that faced Congress in
1965, and that clearly distinguished the covered jurisdictions from the
rest of the Nation at that time. Katzenbach, supra, at 308, 315, 331;
Northwest Austin, 557 U. S., at 201.
But a more fundamental problem remains: Congress did not use the record it
compiled to shape a coverage formula grounded in current conditions. It instead
reenacted a formula based on 40-year-old facts having no logical relation to the
present day. The dissent relies on “second generation barriers,” which are not
impediments to the casting of ballots, but rather electoral arrangements that affect
the weight of minority votes. That does not cure the problem. Viewing the
preclearance requirements as targeting such efforts simply highlights the
irrationality of continued reliance on the §4 coverage formula, which is based on
voting tests and access to the ballot, not vote dilution. We cannot pretend that we
are reviewing an updated statute, or try our hand at updating the statute ourselves,
based on the new record compiled by Congress.
The dissent proceeds from a flawed premise. It quotes the famous sentence from
McCulloch v. Maryland,4 Wheat. 316, 421 (1819), with the following emphasis:
“Let the end be legitimate, let it be within the scope of the constitution, and all
means which are appropriate, which are plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit of the constitution, are
constitutional.” Post, at 9 (emphasis in dissent). But this case is about a part of the
sentence that the dissent does not emphasize—the part that asks whether a
legislative means is “consist[ent] with the letter and spirit of the constitution.”
…..
The dissent treats the Act as if it were just like any other piece of legislation, but
this Court has made clear from the beginning that the Voting Rights Act is far from
ordinary. At the risk of repetition, Katzenbach indicated that the Act was
“uncommon” and “not otherwise appropriate,” but was justified by “exceptional”
and “unique” conditions. 383 U. S., at 334, 335.
…..
And it would have been irrational to base coverage on the use of voting
tests 40 years ago, when such tests have been illegal since that time.
But that is exactly what Congress has done.
***
Striking down an Act of Congress “is the gravest and most delicate
duty that this Court is called on to perform.” Blodgett v. Holden, 275 U.
S. 142, 148 (1927) (Holmes, J., concurring). We do not do so lightly.
That is why, in 2009, we took care to avoid ruling on the
constitutionality of the Voting Rights Act when asked to do so, and
instead resolved the case then before us on statutory grounds. But in
issuing that decision, we expressed our broader concerns about the
constitutionality of the Act. Congress could have updated the coverage
formula at that time, but did not do so. Its failure to act leaves us today
with no choice but to declare §4(b) unconstitutional. The formula in that
section can no longer be used as a basis for subjecting jurisdictions to
preclearance.
Our decision in no way affects the permanent, nationwide ban on
racial discrimination in voting found in §2. We issue no holding on §5
itself, only on the coverage formula. Congress may draft another
formula based on current conditions. Such a formula is an initial
prerequisite to a determination that exceptional conditions still exist
justifying such an “extraordinary departure from the traditional course
of relations between the States and the Federal Government.” Presley,
502 U. S., at 500–501. 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.
The judgment of the Court of Appeals is reversed.
JUSTICE THOMAS, concurring.
I join the Court’s opinion in full but write separately to explain that I would find §5
of the Voting Rights Act unconstitutional as well. The Court’s opinion sets forth
the reasons.
JUSTICE GINSBURG, with whom JUSTICE BREYER, JUSTICE
SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
In the Court’s view, the very success of §5 of the Voting Rights Act demands its
dormancy. Congress was of another mind. Recognizing that large progress has
been made, Congress determined, based on a voluminous record, that the scourge
of discrimination was not yet extirpated. The question this case presents is who
1
decides whether, as currently operative, §5 remains justifiable, this Court, or a
Congress charged with the obligation to enforce the post-Civil War Amendments
“by appropriate legislation.” With overwhelming support in both Houses, Congress
concluded that, for two prime reasons, §5 should continue in force, unabated. First,
continuance would facilitate completion of the impressive gains thus far made; and
second, continuance would guard against backsliding. Those assessments were
well within Congress’ province to make and should elicit this Court’s unstinting
approbation.
….
After a century’s failure to fulfill the promise of the Fourteenth and
Fifteenth Amendments, passage of the VRA finally led to signal
improvement on this front. “The Justice Department estimated that in
the five years after[the VRA’s] passage, almost as many blacks
registered [to vote] in Alabama, Mississippi, Georgia, Louisiana, North
Carolina, and South Carolina as in the entire century before 1965.”
Davidson, The Voting Rights Act: A Brief History, in Controversies in
Minority Voting 7, 21 (B. Grofman & C. Davidson eds. 1992). And in
assessing the overall effects of the VRA in 2006, Congress found
that“[s]ignificant progress has been made in eliminating first
generation barriers experienced by minority voters, including increased
numbers of registered minority voters, minority voter turnout, and
minority representation in Congress, State legislatures, and local
elected offices. This progress is the direct result of the Voting Rights Act
of1965.” Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting
Rights Act Reauthorization and Amendments Act of 2006 (hereinafter
2006 Reauthorization), §2(b)(1), 120 Stat. 577. On that matter of cause
and effects there can be no genuine doubt.
Although the VRA wrought dramatic changes in the realization of
minority voting rights, the Act, to date, surely has not eliminated all
vestiges of discrimination against the exercise of the franchise by
minority citizens. Jurisdictions covered by the preclearance
requirement continued to submit, in large numbers, proposed changes
to voting laws that the Attorney General declined to approve, auguring
that barriers to minority voting would quickly resurface were the
preclearance remedy eliminated. City of Rome v. United States, 446 U.
S. 156, 181 (1980). Congress also found that as “registration and voting
of minority citizens increas[ed], other measures may be resorted to
which would dilute increasing minority voting strength.” Ibid. (quoting
H. R. Rep. No. 94–196, p. 10 (1975)). See also Shaw v. Reno, 509 U. S.
630, 640 (1993) (“[I]t soon became apparent that guaranteeing equal
access to the polls would not suffice to root out other racially
discriminatory voting practices” such as voting dilution). Efforts to
reduce the impact of minority votes, in contrast to direct attempts to
block access to the ballot, are aptly described as “second-generation
barriers” to minority voting.
……
In the long course of the legislative process, Congress “amassed a
sizable record.” Northwest Austin Municipal Util. Dist. No. One v.
Holder, 557 U. S. 193, 205 (2009).See also 679 F. 3d 848, 865–873
(CADC 2012) (describing the “extensive record” supporting Congress’
determination that “serious and widespread intentional discrimination
persisted in covered jurisdictions”). The House and Senate Judiciary
Committees held 21 hearings, heard from scores of witnesses, received a
number of investigative reports and other written documentation of
continuing discrimination in covered jurisdictions. In all, the legislative
record Congress compiled filled more than 15,000 pages.
H. R. Rep. 109–478, at 5, 11–12; S. Rep. 109–295, at 2–4,
15. The compilation presents countless “examples of flagrant racial
discrimination” since the last reauthorization; Congress also brought to
light systematic evidence that “intentional racial discrimination in
voting remains so serious and widespread in covered jurisdictions that
section 5 preclearance is still needed.” 679 F. 3d, at 866.
After considering the full legislative record, Congress made the
following findings: The VRA has directly caused significant progress in
eliminating first-generation barriers to ballot access, leading to a
marked increase in minority voter registration and turnout and the
number of minority elected officials. 2006 Reauthorization §2(b)(1).But
despite this progress, “second generation barriers constructed to
prevent minority voters from fully participating in the electoral process”
continued to exist, as well as racially polarized voting in the covered
jurisdictions, which increased the political vulnerability of racial and
language minorities in those jurisdictions. §§2(b)(2)–(3),120 Stat. 577.
Extensive “[e]vidence of continued discrimination,” Congress concluded,
“clearly show[ed] the continued need for Federal oversight” in covered
jurisdictions. The overall record demonstrated to the federal lawmakers
that, “without the continuation of the Voting Rights Act of 1965
protections, racial and language minority citizens will be deprived of the
opportunity to exercise their right to vote, or will have their votes
diluted, undermining the significant gains made by minorities in the
last 40 years.” §2(b)(9), id., at
578.
Based on these findings, Congress reauthorized preclearance for
another 25 years, while also undertaking to reconsider the extension
after 15 years to ensure that the provision was still necessary and
effective. 42 U. S. C. §1973b(a)(7), (8) (2006 ed., Supp. V). The question
beforethe Court is whether Congress had the authority under the
Constitution to act as it did.
….
It is well established that Congress’ judgment regarding exercise of its power to
enforce the Fourteenth and Fifteenth Amendments warrants substantial deference.
The VRA addresses the combination of race discrimination and the right to vote,
which is “preservative of all rights.” Yick Wo v. Hopkins, 118 U. S. 356, 370
(1886). When confronting the most constitutionally invidious form of
discrimination, and the most fundamental right in our democratic system,
Congress’ power to act is at its height.
The basis for this deference is firmly rooted in both constitutional text
and precedent. The Fifteenth Amendment, which targets precisely and
only racial discrimination in voting rights, states that, in this domain,
“Congress shall have power to enforce this article by appropriate
legislation.”2 In choosing this language, the Amendment’s framers
invoked Chief Justice Marshall’s formulation of the scope of Congress’
powers under the Necessary and Proper Clause:
“Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but consist with the
letter and spirit of the constitution, are constitutional.” McCulloch v.
Maryland, 4 Wheat. 316, 421 (1819) (emphasis added).
It cannot tenably be maintained that the VRA, an Act of Congress
adopted to shield the right to vote from racial discrimination, is
inconsistent with the letter or spirit of the Fifteenth Amendment, or
any provision of the Constitution read in light of the Civil War
Amendments. Nowhere in today’s opinion, or in Northwest Austin,3 is
there clear recognition of the transformative effect the Fifteenth
Amendment aimed to achieve. Notably, “the Founders’ first successful
amendment told Congress that it could ‘make no law’ over a certain
domain”; in contrast, the Civil War Amendments used “language [that]
authorized transformative new federal statutes to uproot all vestiges of
unfreedom and inequality” and provided a0 “sweeping enforcement
powers . . . to enact ‘appropriate’ legislation targeting state abuses.” A.
Amar, America’s Constitution: A Biography 361, 363, 399 (2005). See
also McConnell, Institutions and Interpretation: A Critique of City of
Boerne v. Flores, 111 Harv. L. Rev. 153, 182 (1997) (quoting Civil Warera framer that “the remedy for the violation of the fourteenth and
fifteenth amendments was expressly not left to the courts. The remedy
was legislative.”).
The stated purpose of the Civil War Amendments was to arm
Congress with the power and authority to protect all persons within the
Nation from violations of their rights by the States. In exercising that
power, then, Congress may use “all means which are appropriate, which
are plainly adapted” to the constitutional ends declared by these
Amendments. McCulloch, 4 Wheat., at 421. So when Congress acts to
enforce the right to vote free from racial discrimination, we ask not
whether Congress has chosen the means most wise, but whether
Congress has rationally selected means appropriate to a legitimate end.
“It is not for us to review the congressional resolution of [the need for its
chosen remedy]. It is enough that we beable to perceive a basis upon
which the Congress might resolve the conflict as it did.” Katzenbach v.
Morgan, 384
U. S. 641, 653 (1966).
Until today, in considering the constitutionality of the VRA, the Court
has accorded Congress the full measure of respect its judgments in this
domain should garner…..“As against the reserved powers of the States,
Congress may use any rational means to effectuate the constitutional
prohibition of racial discrimination in voting.” 383
U. S., at 324. Faced with subsequent reauthorizations of the VRA, the Court has
reaffirmed this standard. E.g., City of Rome, 446 U. S., at 178. Today’s Court does
not purport to alter settled precedent establishing that the dispositive question is
whether Congress has employed “rational means.”
….
This is not to suggest that congressional power in this area is
limitless. It is this Court’s responsibility to ensure that Congress has
used appropriate means. The question meet for judicial review is
whether the chosen means are “adapted to carry out the objects the
amendments have in view.” Ex parte Virginia, 100 U. S. 339, 346
(1880). The Court’s role, then, is not to substitute its judgment for that
of Congress, but to determine whether the legislative record sufficed to
show that “Congress could rationally have determined that [its chosen]
provisions were appropriate methods.” City of Rome, 446 U. S., at 176–
177.
In summary, the Constitution vests broad power in Congress to protect the right to
vote, and in particular to combat racial discrimination in voting. This Court has
repeatedly reaffirmed Congress’ prerogative to use any rational means in exercise
of its power in this area. And both precedent and logic dictate that the rationalmeans test should be easier to satisfy, and the burden on thestatute’s challenger
should be higher, when what is at issue is the reauthorization of a remedy that the
Court has previously affirmed, and that Congress found, from contemporary
evidence, to be working to advance the legislature’s legitimate objective.
The 2006 reauthorization of the Voting Rights Act fully
satisfies the standard stated in McCulloch, 4 Wheat., at 421:
Congress may choose any means “appropriate” and “plainly
adapted to” a legitimate constitutional end. As we shall see,
it is implausible to suggest otherwise.
….
All told, between 1982 and 2006, DOJ objections blocked over 700
voting changes based on a determination that the changes were
discriminatory. H. R. Rep. No. 109–478, at
21. Congress found that the majority of DOJ objections
included findings of discriminatory intent, see 679 F. 3d, at
867, and that the changes blocked by preclearance were
“calculated decisions to keep minority voters from fully
participating in the political process.” H. R. Rep. 109–478, at
21. On top of that, over the same time period the DOJ and
private plaintiffs succeeded in more than 100 actions to
enforce the §5 preclearance requirements. 1 Evidence of
Continued Need 186, 250.
…..
These examples, and scores more like them, fill the
pages of the legislative record. The evidence was indeed
sufficient to support Congress’ conclusion that “racial
discrimination in voting in covered jurisdictions [remained]
serious and pervasive.” 679 F. 3d, at 865.5
….
I turn next to the evidence on which Congress based its decision
to reauthorize the coverage formula in §4(b).Because Congress did
not alter the coverage formula, the same jurisdictions previously
subject to preclearance continue to be covered by this remedy. The
evidence just described, of preclearance’s continuing efficacy in
blocking constitutional violations in the covered jurisdictions, itself
grounded Congress’ conclusion that the remedy should be retained
for those jurisdictions. There is no question, moreover, that the
covered jurisdictions have a unique history of problems with racial
discrimination in voting. Ante, at 12–13. Consideration of this long
history, still in living memory, was altogether appropriate. The Court
criticizes Congress for failing to recognize that “history did not end in
1965.” Ante, at 20. But the Court ignores that “what’s past is
prologue.” W. Shakespeare, The Tempest, act 2, sc. 1. And “[t]hose
who cannot remember the past are condemned to repeat it.” 1
G. Santayana, The Life of Reason 284 (1905). Congress was especially
mindful of the need to reinforce the gains already made and to prevent
backsliding. 2006 Reauthorization §2(b)(9).
Of particular importance, even after 40 years and thousands
of discriminatory changes blocked by preclearance,
conditions in the covered jurisdictions demonstrated that the
formula was still justified by “current needs.”
….
Just as buildings in California have a greater need to be
earthquake proofed, places where there is greater racial polarization in
voting have a greater need for prophylactic measures to prevent
purposeful race discrimination. This point was understood by Congress
and is well recognized in the academic literature. See 2006
Reauthorization §2(b)(3), 120 Stat. 577 (“The continued evidence of
racially polarized voting in each of the jurisdictions covered by the
[preclearance requirement] demonstrates that racial and language
minorities remain politically vulnerable”); H. R.Rep. No. 109–478, at
35…. Critical components of the congressional design are the statutory
provisions allowing jurisdictions to “bail out” of preclearance, and for
court-ordered “bail ins.” See Northwest Austin, 557 U. S., at 199. The
VRA permits a jurisdiction to bail out by showing that it has complied
with the Act for ten years, and has engaged in efforts to eliminate
intimidation and harassment of voters. 42 U. S. C. §1973b(a) (2006 ed.
and Supp. V). It also authorizes a court to subject a noncovered
jurisdiction to federal preclearance upon finding that violations of the
Fourteenth and Fifteenth Amendments have occurred there. §1973a(c)
(2006 ed.).
Congress was satisfied that the VRA’s bailout mechanism
provided an effective means of adjusting the VRA’s coverage
over time.
….
This experience exposes the inaccuracy of the Court’s
portrayal of the Act as static, unchanged since 1965.
Congress designed the VRA to be a dynamic statute, capable
of adjusting to changing conditions. True, many covered
jurisdictions have not been able to bail out due to recent acts
of noncompliance with the VRA, but that truth reinforces the
congressional judgment that these jurisdictions were
rightfully subject to preclearance, and ought to remain under
that regime.
…..
Without even identifying a standard of review, the Court
dismissively brushes off arguments based on “data from the record,”
and declines to enter the “debat[e about] what [the] record shows.”
Ante, at 20–21. One would expect more from an opinion striking at
the heart of the Nation’s signal piece of civil-rights legislation. I note
the most disturbing lapses. First, by what right, given its usual
restraint, does the Court even address Shelby County’s facial
challenge to the VRA? Second, the Court veers away from controlling
precedent regarding the “equal sovereignty” doctrine without even
acknowledging that it is doing so. Third, hardly showing the respect
ordinarily paid when Congress acts to implement the Civil War
Amendments, and as just stressed, the Court does not even deign to
grapple with the legislative record.
……Shelby County launched a purely facial challenge to the VRA’s 2006
reauthorization. “A facial challenge to a legislative Act,” the Court has
other times said, “is, of course, the most difficult challenge to mount
successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.” United States
v. Salerno, 481 U. S. 739, 745 (1987).
“[U]nder our constitutional system[,] courts are not roving commissions
assigned to pass judgment on the validity of the Nation’s laws.”
Broadrick v. Oklahoma, 413 U. S. 601, 610–611 (1973). Instead, the
“judicial Power” is limited to deciding particular “Cases” and
“Controversies.” U.S. Const., Art. III, §2. “Embedded in the traditional
rules governing constitutional adjudication is the principle that a
person to whom a statute may constitutionally be applied will not be
heard to challenge that statute on the ground that it may conceivably
be applied unconstitutionally to others, in other situations not before
the Court.” Broadrick, 413 U. S., at 610. Yet the Court’s opinion in this
case contains not a word explaining why Congress lacks the power to
subject to preclearance the particular plaintiff that initiated this
lawsuit—Shelby County, Alabama. The reason for the Court’s silence is
apparent, for as applied to Shelby County, the VRA’s preclearance
requirement is hardly contestable.
Alabama is home to Selma, site of the “Bloody Sunday” beatings of
civil-rights demonstrators that served as the catalyst for the VRA’s
enactment. Following those events, Martin Luther King, Jr., led a
march from Selma to Montgomery, Alabama’s capital, where he called
for passage of the VRA. If the Act passed, he foresaw, progress could be
made even in Alabama, but there had to be a steadfast national
commitment to see the task through to completion. In King’s words,
“the arc of the moral universe is long, but it bends toward justice.” G.
May, Bending Toward Justice: The Voting Rights Act and the
Transformation of American Democracy 144 (2013). History has proved
King right. Although circumstances in Alabama have changed, serious
concerns remain. Between 1982 and 2005, Alabama had one of the
highest rates of successful §2 suits, second only to its VRA-covered
neighbor Mississippi. 679 F. 3d, at 897 (Williams, J., dissenting). In
other words, even while subject to the restraining effect of §5, Alabama
was found to have “deni[ed] or abridge[d]” voting rights “on account of
race or color” more frequently than nearly all other States in the Union.
…..
Today’s unprecedented extension of the equal
sovereignty principle outside its proper domain—the
admission of new States—is capable of much mischief.
Federal statutes that treat States disparately are hardly
novelties….The Court has time and again declined to upset
legislation of this genre unless there was no or almost no
evidence of unconstitutional action by States. See, e.g., City
of Boerne v. Flores, 521 U. S. 507, 530 (1997) (legislative
record “mention[ed] no episodes [of the kind the legislation
aimed to check] occurring in the past 40 years”). No such
claim can be made about the congressional record for
the2006 VRA reauthorization. Given a record replete with
examples of denial or abridgment of a paramount federal
right, the Court should have left the matter where it belongs:
in Congress’ bailiwick. Instead, the Court strikes §4(b)’s
coverage provision because, in its view, the provision is not
based on “current conditions.” Ante, at 17. It discounts,
however, that one such condition was the preclearance
remedy in place in the covered jurisdictions, a remedy
Congress designed both to catch discrimination before it
causes harm, and to guard against return to old ways. 2006
Reauthorization §2(b)(3), (9). Volumes of evidence supported
Congress’ determination that the prospect of retrogression
was real. Throwing out preclearance when it has worked and
is continuing to work to stop discriminatory changes is like
throwing away your umbrella in a rainstorm because you are
not getting wet…..
Beyond question, the VRA is no ordinary legislation. It is
extraordinary because Congress embarked on a mission long delayed
and of extraordinary importance: to realize the purpose and promise of
the Fifteenth Amendment. For a half century, a concerted effort has
been made to end racial discrimination in voting. Thanks to the Voting
Rights Act, progress once the subject of a dream has been achieved and
continues to be made. The record supporting the 2006 reauthorization
of the VRA is also extraordinary. It was described by the Chairman of
the House Judiciary Committee as “one of the most extensive
considerations of any piece of legislation that the United States
Congress has dealt with in the27½ years” he had served in the House.
152 Cong. Rec. H5143 (July 13, 2006) (statement of Rep.
Sensenbrenner). After exhaustive evidence-gathering and deliberative
process, Congress reauthorized the VRA, including the coverage
provision, with overwhelming bipartisan support. It was the judgment
of Congress that “40 years has not been a sufficient amount of time to
eliminate the vestiges of discrimination following nearly 100 years of
disregard for the dictates of the 15th amendment and to ensure that the
right of all citizens to vote is protected as guaranteed by the
Constitution.” 2006 Reauthorization §2(b)(7), 120Stat. 577. That
determination of the body empowered to enforce the Civil War
Amendments “by appropriate legislation” merits this Court’s utmost
respect. In my judgment, the Court errs egregiously by overriding
Congress’ decision.
* * * For the reasons stated, I would affirm the judgment of
the Court of Appeals.
CLASS TEN
Challenging State Action: Section 1983
1.
The amazing Section 1983/Individual Liability: Monroe v. Pape, pp. 1139-1147.
and following Notes, 1147-1152.
Are these cases consistent with the premise that State Courts of general jurisdiction are to be
important (and last ditch) guardians of Federal constitutional rights?
2.
Section 1983/For What Wrongs? Non-constitutional Rights Enforceable Under §1983,
Maine v. Thiboutot, and Note, pp. 1302-1321.
Is Thiboutot and its progeny e.g., Wright v. Roanoke consistent with the Court’s increasing
reluctance to imply causes of action? Do these cases create a large backdoor for private
enforcement of federal statutes? In this regard, pay particular attention to the Gonzaga University
case and the Abrams case (pp. 1318-1321).
Is Thiboutot consistent with Alden v. Maine?
CLASS ELEVEN
1.
Municipal Liability under Section 1983: Monnell and following note, pp. 11991215, and “King Arthur” case at 871 F.2d 1151 (1989).
Study in particular the Will v. Michigan Dep’t. of State Police decision. Remember that is
a Section 1983 suit brought in state court. The Supreme Court holds that a state (unlike a
municipality) is not a “person” for purposes of Section 1983. How does this comport with
Maine v. Thiboutot? The Supreme Court then noted that the plaintiff had also sued the
Director of the State Police in his official capacity. The plaintiff was seeking damages for
past wrongs. The Court quickly concluded that a state official “acting in his official
capacity”, while literally a “ person”, could not be a “person” for purposes of Section 1983
because such a lawsuit “is no different from a suit against the State itself.” At the same
time, the Court dropped a peculiar and important footnote (a footnote that the text book
authors failed to include in the text): “Of course a state official sued in his or her
official capacity, when sued for injunctive relief, would be a person under Section
1983....”How can a state official not be a “person” under Section 1983 when sued in state
court for retroactive relief, but suddenly become a “person” when injunctive relief is
requested? Is this a sensible way to interpret a statute? Justice Brennan began his dissent
as follows: “Because this case was brought in state court, the Court concedes, the Eleventh
Amendment is inapplicable here. Like the guest who would not leave, however, the
Eleventh Amendment lurks everywhere in today’s decision and, in truth, determines its
outcome.” Does interpreting the meaning of Section 1983 against the backdrop of
Eleventh Amendment jurisprudence (e.g. Edelman v. Jordan) make any sense? What was
the status of the Eleventh Amendment jurisprudence at the time that Section 1983 was
passed by Congress in 1871? Remember Hans v. Louisiana and related cases are not
decided until the 1890s and Edelman did not come along until the 1970s. Is the Court
really trying to determine the intent of 42nd Congress? See Will v. Mich. Dept. Of State
Police.
2.
The Scope of the 14th Amendment Protected by Section 1983. Read
Introductory Notes on Parratt v. Taylor (Parratt, Daniels and Hudson decisions), pp.
1281-1286.
Then, read Zinermon v. Burch, pp. 1286-1301 and following note, p. 1301-1302. Does
Parratt, in essence, undermine (or overrule) Monroe v. Pape? What is the reach of
Parratt after Daniels? What is the reach of Parratt after Hudson and Zinermon v.
Burch? How will the courts determine what constitutes “substantive due process” after
Zinermon?
CLASS TWELVE
Official Immunity
1.
Sub-note 2 on Absolute Immunity, pp. 1163-1165.
1. Sub-note 4 on Qualified Immunity (Harlow v. Fitzgerald), pp. 1167-1171, sub-note 5
(Anderson v. Creighton), and sub-notes 6, 8 and 10, pp. 1171-1174.
CLASS THIRTEEN
Abstention:
Colorado River Water, Notes 1 and 2, page 729.
Note on “Buford Abstention”: pp. 778-780
Pullman: pp. 768-770.
Younger: pp. 734-743
Final Exam