Saturday, January 21, 2006

The Supreme Court’s Power Grab

To be perfectly honest, one thing I like about blogging is that one never knows what is going to set off a post or what random conversation will finally crystallize an issue in such a way as to start a string of ideas that just needs to be written down and shared with you all. With so much having been written about this week’s Court decisions in both Gonzalez v. Oregon and Ayotte v. Planned Parenthood of Northern New England I wasn’t sure I could add anything substantive to the discussion. However, as I was complaining about the apparent inconsistencies with this week’s decisions, a co-worker said to me something to the effect of “you’re describing to me a Court that does not appear to understand or know what the law is.” Quite the contrary, in fact, I think this Court may be fairly accused of knowing all to well what the law is and how to use it to their own advantage. Click Read More to see what I mean.

Update 1/23/06: It seems that I may in fact be on to something. Today the Supreme Court, in Wisconsin Right to Life v. FEC, remanded a case back to the lower courts for consideration of an "as applied" remedy to what appears to be a facial challenge to the constitutionality of parts of the McCain-Fiengold (BCRA) campaign finance legislation. For what it's worth, Wisconsin v. FEC was a per curium decision, meaning that it was 9-0, but no single justice's name appears as the author. Some enlightened speculation indicates that it was Justice Breyer who wrote the opinion from the Court. (Hat tip: Orin Kerr of the The Volokh Conspiracy.)

Let’s start with Gonzales, while much as already been said about this decision, here and elsewhere, and much of it very good, I never could seem to get my own head around the decision itself. It’s not that I didn’t understand what it held, or what the words on the pages meant, it was rather that I couldn’t figure out how in the world the majority got from point A to point B. Then it hit me, this case wasn’t at all about whether the Executive Branch, Congress, or the States gets to make the decision about the Controlled Substances Act or physician-assisted suicide, it was about what role of the Courts are. Yes, while the case is primarily a statutory construction case, and while it is entirely fair to say that it not a “constitutional” decision, nevertheless it is not as my co-blogger Repeal22 put it a “banal administrative law decision.” In reality, I think it is something far greater, it is a power grab by the Court. To make its decision, the majority had to avoid two major administrative law decisions, Auer v. Robbins and Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. Those of you who are attorneys will likely be familiar with at least Chevron, but in this context Auer is arguably the more important decision.

In Auer, the Court held that executive branch agencies, when interpreting their own regulations, are entitled to substantial deference by the federal courts. For example, if the EPA, pursuant to a statutory grant of authority by Congress, has issued regulations implementing provisions of the Clean Air Act that say that X is permissible, then several years later determine that X, includes activity Y, thereby making Y also permissible, it is unlikely that a Court would reverse that interpretive decision absent some procedural defect, such as failure to publish in the Federal Register or otherwise give notice of the change. Given this, it would seem that this is exactly what happened in Gonzales, then-Attorney General Ashcroft issued an interpretive rule asserting that the phrase “legitimate medical practice” which is contained in DOJ regulations did not include physician-assisted suicide. Auer, it seemed was the applicable law. Not so fast, said the majority, Auer is not applicable because the AG’s original regulation merely “parroted” the statute, therefore it is not the regulation that the AG was interpreting, it was the statute itself, which is governed by a different standard. This is the part of the case, where I think Justice Scalia’s dissent actually gets the best of the majority. The Auer holding didn’t contain a “parroting” exception to its holding. In other words, the rule is not that deference is afforded unless the regulation merely parrots the statute; it is that deference is given when the agency is interpreting its own regulations. In my opinion, the Court, by creating this exception has subtlety, albeit very subtlety, granted itself a proverbial seat at the table. Now, whenever agencies are going to issue regulations they are going to have to be aware of how much “parroting” of the actual statute they are undertaking. Phrased another way, after Gonzales, it would appear that another available argument for persons seeking to reverse or enjoin an agency’s determination of the scope of its own regulations will be to argue that the regulations merely parrots the statute and, therefore, the agency should be afforded no judicial deference. The practical effect of this decision is that it arguably greatly increases the role of the federal courts in determining whether or not executive agencies are going too far in their exercise of regulatory authority. This to me is the hidden gem of Gonzales, the federalism, moral, and statutory interpretation implications and issues are interesting and important and I don’t mean to downplay them at all, however, I think that the increased role of the federal courts in the administrative rule making and interpretive process is by far the most novel part of the decision.

If one compares Gonzales with what the Court did in the abortion case, Ayotte v. Planned Parenthood of Northern New England, then hopefully my thesis of the Court’s power grab will be even more apparent. Ayotte is a strange decision on numerous levels, and likely is the result of a compromise by Justices O’Connor and Kennedy, but that’s the subject of another post. To fully understand the point I’m going to make about Ayotte, I think one first has to understand a bit about the strategy of abortion litigation.

As many of you all may know there are essentially two main types of constitutional challenges to legislative enactments. So-called facial challenges, which basically are assertions that the statute as written violate provisions of the Constitution. A good example would be a statute or ordinance that prevents giving any sort of speech at any time in a public park. Such a legislative enactment would be a clear violation of the First Amendment and would be challenged in court as such. The usual remedy for a facial challenge is generally that the statute is struck down as unconstitutional and none of its provisions are enforceable. Most recent abortion legislation has been challenged as a facial violation, usually because it fails to be consistent with pronouncements of the Court. For example, in Ayotte the challenge to the statue was it failed to provide a health exception for the mother, which the Court has required since its decision in Planned Parenthood of Southeastern Pa. v. Casey. The advantage to these types of challenges is that if the statute contains a constitutionally defective provision, the typical remedy has been to strike down the entire statute and issue an injunction prohibiting its enforcement. Thus, it has been fair to argue that pro-choice advocates have been quite successful in getting more than they may have been entitled to by bringing facial challenges. In other words, even if the challenged statutes contained constitutional restrictions on abortion, they were being struck down because the statutes also contained constitutional violations. The other general type of challenge is referred to as an as-applied challenge, which is just what it sounds like. As-applied challenges usually assert that while the statute on its face may be constitutional as-applied to their specific unique circumstances its enforcement violates the constitution. For example, Gonzales v. Raich was such as case. There the challengers were not asserting that the CSA itself was unconstitutional, rather that its application to the intrastate possession of marijuana was beyond the scope of Congress’s powers. Generally speaking, as-applied challenges are much more amenable to narrow specific injunctions rather than having an entire statute struck down.

Now to Ayotte, which as I mentioned was a facial challenge to New Hampshire’s parental notification/consent statute, which failed to provide the required health exception. Taking the usual course, the plaintiffs brought the facial challenge seeking to strike the statute down. The problem with that is that in the vast majority of the cases where the statute would have been used it would have been constitutional, it was only in this small percentage of situations where the statute was unconstitutional. Had this been a federal statute, the Court would clearly have had the authority to sever the statute and strike down only the unconstitutional portions. This, however, was a state statute and prior to Ayotte, the federal courts did not have the authority to “re-write” such statues. The Court, thus, was presented with a problem that it solves by remanding the decision back to the Court of Appeals for a determination as to whether the New Hampshire state legislature would have accepted a statute that contained the required health exception. If so, then the Court is instructed to craft a narrow injunction effectively re-writing the statute so that it contains the required exception. If the Court determines that the legislature would not have accepted such a revision it can strike the statute down in its entirety. In short the Court has compromised, granting an as-applied remedy to a facial challenge. Thus, the pro-life groups win a bit here as well. In fact, they arguably win much more than the pro-choice groups do as a result of this decision and its likely impact on future cases. It is entirely possible that the Court got this idea from Judge Easterbrook on the Seventh Circuit, who in Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999)(en banc) did exactly this, over the strong dissent of Judge Posner who argued that that this novelty came “at the cost of expanding federal judicial power over the states, by a method that the Supreme Court has never countenanced and that violates Article III of the Constitution.”

The intricacies of
abortion litigation, however, is not really what’s interesting to me about the case. Sticking with my initial thesis of a Court power grab, again I think its fair to say that the Court has granted itself more power and influence over the laws than it previously had. By extending their authority to sever statutes to state legislation, the Court is effectively inviting more litigation and as-applied constitutional challenges to state laws. This increase in authority may, if in fact I’m correct, result in much more work and influence for the federal courts. While generally I’m a big fan of increased federal court review, in this case, I’m not convinced that in the long run this is going to be a good thing. Most litigation with respect to state statutes are still handled by state courts, which is how it should be. With this new potential facial challenge as-applied remedy over state laws I think it’s reasonable to expect a new influx of cases being brought initially in federal court, or being removed there by zealous defendants looking for this new arguably more narrow remedy. My more conservative co-bloggers will likely argue that this is a bad thing as it tips the power from state to federal courts even more than before. I’m not sure they are wrong, but only time will tell whether this is ultimately as bad a result as they initially fear. One thing appears certain, the addition of a new Chief Justice didn’t really shift the Court to the right or prevent it from making a power grab. Further, given the voting patterns of the two cases, 6-3 in Gonzales and 9-0 in Ayotte, assuming that a Justice Alito is as conservative as he is being portrayed (both by many of his “liberal” attackers and by many of his “conservative” supporters (I used quotes merely to further qualify my generalizations)) it does not appear that he would have prevented these results, or even opposed them for that matter. Last thought, institutionally at least, some of this makes sense to a point. The federal courts, especially SCOTUS, have been under attack from both sides of the political spectrum and from both the institutions of the Executive and Congress for some time now. Thus, to see them assert their constitutional role in some of these major issues is not irrational, it may not be the best thing, but this is far from the first time in our constitutional history that such a thing has happened, nor, I predict, will it be the last.


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