Tag: Supreme Court

Cite the Constitutional Authority or the Lack Thereof!

A new House rule requires that every new bill or joint resolution introduced in the House include a statement citing the specific powers in the Constitution granted to Congress to enact the proposed law.  In the absence of such a statement, the clerk of the House will not accept the bill and it will be returned to the sponsor.

This new rule may have two potentially valuable effects:

  • For some time, this rule may have a valuable educational effect, reminding new House members, returning members, and the public that Article 1, Section 8 of the Constitution authorizes only 18 federal powers – far fewer than the powers that the federal government has assumed, especially during the past 75 years.
  • The constitutional citations for House bills that are approved would be part of the legislative record that the Supreme Court may consider in subsequent litigation bearing on the constitutionality of Acts of Congress.

This rule, however, is also likely to have two potentially negative effects:

  • This rule, by limiting new legislation to federal activities for which there is express or implied authority in the Constitution, would severely limit the potential of Congress to exercise legislative authority over the many current federal  activities for which there is no such authority.
  • In the absence of  authority in the Constitution for many types of current federal activities or others that Congress may wish to approve, Congress – like the Supreme Court – is likely to rationalize their judgments by elastic interpretations of the general welfare clause, the interstate commerce clause, or the necessary and proper clause.

An alternative interpretation of this new rule, however, would maintain its potentially valuable effects, maintain the potential for Congress to exercise legislative authority over federal activities for which there is no authority in the Constitution, and avoid the equivocation that is characteristic of statements about the powers of the federal government for which there is no authority in the Constitution: A new bill should be cleared for a vote when accompanied by a statement that identifies either the constitutional authority for the federal activities addressed by the bill or the lack thereof.  In the latter case, a statement such as the following should be sufficient for the House clerk to clear a bill for a vote:

There is no authority in the Constitution for the federal activities addressed by this bill.  For such time as any relevant constitutional issues are not resolved and the measures addressed by this bill remain in force as positive law,  we accept the responsibility to assure that this activity is administered efficiently and fairly and to propose changes that would better serve the American people.

This alternative interpretation of the new rule would increase the opportunity for members of Congress to express their views about the constitutional issues bearing on the powers of the federal government but would maintain their potential to legislate.  It is important to maintain an effective separation of powers within the federal government.  Congress does not have an impressive record as a legislature, but it would be a lousy constitutional court.

An Imaginary Federal Election Commission

Jeff Patch and Zac Morgan of the Center for Competitive Politics report on the storm that is brewing at the Federal Election Commission over regulations to implement Citizens United. The three Democratic appointees propose regulations that would impose significant elements of the DISCLOSE Act, a bill that failed to pass Congress last year. The three Republican appointees, in contrast, propose to clarify existing law and clear away defunct regulations, all with an eye toward the holdings in Citizens United. The FEC seems unlikely to adopt the proposals by the Democratic appointees. After all, the Democratic commissioners do not have and are unlikely to obtain majority support for their agenda.

Imagine if the Federal Election Commission were directed by a seven-member board where one party or the other held a working majority. Imagine also the Democrats had a majority on this fictional commission. The regulations proposed by the three current Democratic commissioners would become the law of the land. They would become so despite the fact that Congress itself did not pass the DISCLOSE Act and the regulations contravene the spirit and perhaps the letter of a major Supreme Court decision.

How would that (imagined) outcome be compatible with American constitutional democracy? How would it comport with the rule of law?

Supreme Court Non-Rulings More Important Than Cases It Actually Hears

While all the hot constitutional action of late, on issues ranging from Obamacare to gay marriage to immigration, has been in the lower courts — or even in Congress! — the Supreme Court still goes about its daily business.  After last year’s blockbuster term, however, this term is pretty low-profile aside from a spate of First Amendment cases (funeral protests, violent video games, school choice tax credits, public financing of election campaigns, etc.).  And so it was yesterday, when Supreme Court arguments over securities law and Western water rights were overshadowed by news of cases on which the Court decided not to rule:

  • Without comment, the Court denied an unusual request — a petition for a writ of mandamus — in the Gulf Coast global warming lawsuit, Comer v. Murphy Oil.  This is the case, you may recall, where the Fifth Circuit lost its quorum as it was about to hear the en banc (whole court) appeal of a panel ruling that allowed the suit to proceed, resulting in the odd situation of the appeal being dismissed altogether and the district court decision to dismiss the lawsuit being the law of the case.  Those complicated procedural twists would’ve made for an ungainly case, but the Supreme Court will hear a different global warming–related case, which I also previously discussed and in which Cato filed a brief
  • The Court declined to review the constitutionality of a federal ban on felons’ possession of body  armor (e.g., a bulletproof vest) — in a challenge arguing that these are issues properly left to the states, there being no interstate commerce connection.  In ruling for the government, the Ninth Circuit (always them!) had applied a precedent that antedated the seminal cases of Lopez (1995) and Morrison (2000), where — as you know if you’ve been paying attention to the Obamacare lawsuits — the Court struck down the federal Gun-Free School Zones and Violence Against Women Acts, respectively, as beyond Congress’s power to regulate interstate commerce.  Notably, Justice Thomas, joined by Justice Scalia in all but one footnote, filed a trenchant dissent from this cert denial (starts on page 33 here), saying that, ” Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence…. [The lower court’s] logic threatens the proper limits on Congress’ commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States.”  Perhaps more notably, neither the Chief Justice nor Justice Alito joined Thomas’s dissent.  (H/T Josh Blackman)
  • The Court also declined to review the constitutionality of criminal convictions by non-unanimous juries — which are only allowed in Oregon (the place where this case originates) and Louisiana — denying a cert petition filed by UCLA law professor Eugene Volokh.  The interesting angle here is that it’s not at all clear whether (1) all the rights protected by the Bill of Rights — here the Sixth Amendment requirement that jury convictions be unanimous — are “incorporated” against the states and (2) whatever incorporation there is goes through the Due Process Clause or the Privileges or Immunities Clause (which is important for courts’ consideration of the scope of constitutional rights).  Recall that in McDonald v. Chicago, the Court extended the right to keep and bear arms to the states but could not agree on the jurisprudential methodology for doing so — yet still hinted that it would be open to revisiting these issues in a case relating to unanimous jury verdicts… but apparently not yet.
  • The Court took off its argument calendar a case regarding the sovereign immunity of Indian tribes, specifically whether that doctrine prevents the enforcement of property taxes against those legally peculiar entities.  This is a huge issue for federalism, state revenues, and a host of other policy matters — and is quite complex legally — but New York’s Oneida tribe, perhaps fearing what would have been an epic loss at the Supreme Court, here decided to waive its immunity claim and thus moot the case.

After all this “active non-action” — which may be how the government next tries to characterize the non-purchase of health insurance in its next attempt to somehow find constitutional authority for the individual mandate — the Court did release one opinion of note today.  The opinion itself, in a technical bankruptcy case regarding the compelling issue of whether a debtor can take a car-ownership deduction if she does not make loan or lease payments, is not particularly noteworthy, but the author — rookie Justice Elena Kagan — is.  And so, with 18 dry pages and over a lone dissent by Justice Scalia, the Kagan era has begun.

A Bizarre Case That Could Make Some Good Law

Carol Anne Bond learned that her best friend was having an affair with her husband, so she spread toxic chemicals on the woman’s car and mailbox. Postal inspectors discovered this plot after they caught Bond on film stealing from the woman’s mailbox. Rather than leave this caper to local law enforcement authorities to resolve, however, a federal prosecutor charged Bond with violating a statute that implements U.S. treaty obligations under the 1993 Chemical Weapons Convention.

Bond pled guilty and was sentenced but now appeals her conviction on the ground that the statute at issue violates the Tenth Amendment – in that her offense was local in nature and not properly subject to federal prosecution. The Third Circuit declined to reach the constitutional question, holding that Bond did not have standing to raise a Tenth Amendment challenge and that, following Supreme Court precedent, a state actor must be a party to the suit in order to challenge the federal government for impinging on state sovereignty. Bond now seeks Supreme Court review on the ground that the statute, as applied to her, is beyond the federal government’s enumerated powers.

Cato joined the Center for Constitutional Jurisprudence in filing a brief supporting Bond’s request. We argue not only that a defendant clearly has standing to challenge the constitutionality of the statute under which she was convicted, but that lower courts’ assumption that both the power to make treaties and Congress’s power to make laws executing those treaties are unconstrained by the Constitution. This assumption is premised on a perfunctory acceptance of an overly broad interpretation of Missouri v. Holland, 252 U.S. 416 (1920). That reading of Missouri v. Holland, however, is contrary to precedent, has been undermined by subsequent Court decisions, and if allowed to stand, will seriously undermine the notion that the federal government is one of only limited, enumerated powers.

The Court’s recognition that the constitutional issues Bond raises warrant serious review would begin the process of reconsidering the meaning of Missouri v. Holland and its progeny. Beyond the obviously erroneous ruling on standing here, this case offers the opportunity to reinforce limits on the expansion of federal criminal law into areas that should be handled at the state and local levels.

Many thanks to Cato legal associate Trevor Burrus for his help with our brief, which you can read here.  The Court will be deciding early in the new year whether to hear the case.

Supreme Court Should Tell Courts to Stay Out of Global Warming Cases

The Supreme Court is finally starting to put some interesting non-First Amendment cases on this term’s docket.

Today, the Court agreed to review American Electric Power Co., Inc. v. Connecticut, in which eight states, some non-profits, and New York City are suing a number of energy companies and utilities for harms they allegedly caused by contributing to global warming.  This is the third major lawsuit to push global warming into the courts (another being Comer v. Murphy Oil USA, in which Cato also filed a brief).  It’s America, after all, where we sue to solve our problems – even apparently, taking to court the proverbial butterfly that caused a tsunami.

Mind you, you can sue your neighbor for leaking toxic water onto your land. Courts are well positioned to adjudicate such disputes because they involve only two parties and have limited (if any) effects on others. But it is a different case when, using the same legal theory by which Jones sues Smith for his toxic dumping (called “nuisance”), plaintiffs selectively sue a few targeted defendants for a (quite literally) global problem.  As I discussed with reference to a previous such case, global warming is the type of issue that should be decided by the political branches. The Second Circuit ruled, however, that this suit could go forward. (Justice Sotomayor was involved in the case at that stage and so will be recused going forward.)  

The Supreme Court has always recognized that not all problems can or should be solved in the courtroom. Thus, the issue in AEP v. Connecticut – which the Court will now decide – is whether the states meet the legal requirements necessary to have their suit heard in court, what lawyers call “standing.” Historically, issues of policy have been decided by the legislative and executive branches while “cases and controversies” have been decided by courts. Therefore, when litigants have asked courts determine matters of broad-ranging policy, the Court has often termed the cases “political questions” and dismissed them. The reasoning is that, not only do unelected courts lack the political authority to determine such questions, they also lack any meaningful standards by which the case could be decided (called “justiciability”).

Indeed, even if the plaintiffs can demonstrate causation, it is unconstitutional for courts to make complex policy decisions — and this is true regardless of the science regarding global warming. Just as it’s unconstitutional for a legislature to pass a statute punishing a particular person (bill of attainder), it’s unconstitutional — under the “political question doctrine” — for courts to determine wide-ranging policies in which numerous considerations must be weighed against each other in anything but a bilateral way.  

We pointed out in our brief supporting the defendants’ request for Supreme Court review – and will again in the brief we plan to file at this next stage – that resolving this case while avoiding those comprehensive and far-reaching implications is impossible and that the Constitution prohibits the judicial usurpation of roles assigned to the other, co-equal branches of government.   After all, global warming is a global problem purportedly caused by innumerable actors, ranging from cows to Camrys. This fact not only underscores the political nature of the question, but it has constitutional significance: In order to sue someone, your injury must be “fairly traceable” to the defendant’s actions. Suits based on “butterfly effect” reasoning should not be allowed to move forward.

Perhaps surprisingly, the federal government –which is involved because one of the defendants is the Tennessee Valley Authority – agrees with Cato . The administration aptly played its role in our constitutional system by asserting that global warming policy was a matter for the executive and legislative branches to resolve, not the judiciary. 

Hmmm, Cato and Obama on the same side in a global warming dispute… but I still won’t be holding my breath awaiting an invite to the White House Christmas party.

University Speech Codes, Reborn As “Anti-Bullying” Rules?

The Foundation for Individual Rights in Education (FIRE) is out with this timely warning about the “Tyler Clementi Higher Education Anti-Harassment Act,” a bill introduced in Congress by Sen. Frank Lautenberg and Rep. Rush Holt, both New Jersey Democrats:

…the bill redefines [campus-based] harassment in a manner that is at odds with the Supreme Court’s exacting definition of student-on-student harassment, which successfully balances the need to respond to extreme behavior with the importance of free speech on campus. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Court defined student-on-student harassment as conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” This definition has been relied upon by courts for more than a decade and has been adopted by many institutions across the country, including the entire University of California system.

Flouting the Supreme Court’s carefully crafted balance, the bill removes the requirement that the behavior in question be objectively offensive. The loss of this crucial “reasonable person” standard means that those most interested in silencing viewpoints they don’t like will effectively determine what speech should be banned from campus. Unconstitutional definitions of “harassment” have already provided the most commonly abused rationale justifying censorship, having been applied to a student magazine at Tufts University that published true if unflattering facts about Islam, a Brandeis professor who used an epithet in order to explain its origins and condemn its use as a slur, and even a student at an Indiana college simply for publicly reading a book.

Because this bill has the potential to be a powerful tool for censorship, it would likely be ruled unconstitutional were it to become law. Indeed, since 1989 there have been at least sixteen successful challenges to campus codes that included similarly broad and vague harassment provisions. Every one of those lawsuits has resulted in the challenged policy either being declared unconstitutional or revised as part of an out-of-court settlement. If passed, the bill is likely to violate students’ rights while leading colleges into expensive, embarrassing, and unsuccessful litigation.

As FIRE President Greg Lukianoff points out, existing law gives universities (and civil authorities) ample authority to punish the serious breach of student privacy alleged in the Clementi case. Daniel Luzer of the Washington Monthly notes that Rutgers already had in place an anti-bullying policy of the sort envisioned by the bill.

Also of concern is the Lautenberg-Holt bill’s requirement that administrators move against off-campus or online student behavior. This provision, says FIRE, in practice “is likely to compel universities to monitor student behavior in unprecedented ways – including close and comprehensive monitoring of social networking sites like Facebook and Twitter – in order to ward off potential lawsuits.”