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Archive for March, 2012

From J. Harvie Wilkinson, III, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance:

Most of us are wired in the belief that, of course, we are right. Judges in particular become vested in their own views with time. No electorate forces us to make adjustments. We are the kings and queens of our realms. All rise as we walk into the courtroom; no one is to interrupt the Honorable Judges as we hold forth in our robes from an elevated perch. This accumulation of tokens of our majesty makes it more difficult to practice restraint and more imperative to have internal checks in place. Especially in constitutional cases, the first question should be not “What do I decide?” but “May I in fact decide?” And in all cases, we must ask: might not the views of others be equal or superior to our own? These are questions that do not arise naturally or produce honest answers frequently. Most of us pose these questions only fitfully and episodically. All of us know we should do so all the time. But the struggle for restraint remains essentially a struggle against nature, and the stakes for self-governance have seldom been so high.

 

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From Federalist No. 78:

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges.

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The Fourth Circuit held today that section 212(h) of the Immigration and Nationality Act “does not bar an alien who adjusts post-entry to lawful permanent resident status from seeking a waiver of inadmissibility.” Judge Wynn wrote the opinion for the Court in Bracamontes v. Holder, in which Judge Agee joined. Judge Niemeyer concurred in part and dissented in part.

The split between the majority and the dissent focused on whether the statute unambiguously foreclosed the BIA’s interpretation of the relevant statutory provision. Judge Niemeyer’s dissent begins as follows:

While the majority has perhaps set forth a plausible construction of § 212(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(h), its construction is not the only, or even the most, plausible construction. Indeed, I conclude that the different construction given to § 212(h) by the BIA is not only plausible but is more consistent with the other provisions of the INA. But choosing the best construction is not our task. When a statute yields two plausible constructions, we should defer to the agency, especially when the statute pertains to immigration matters.

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The Supreme Court has had a hard time improving on Chief Justice Marshall’s McCulloch v. Maryland formulation of the doctrinal test for Congress’s power under the Necessary and Proper Clause. At one point in time, the Court even adopted that formulation as its test for the reach of Congress’s power under Section 5 of the Fourteenth Amendment. In City of Boerne v. Flores, however, the Court tried to do better in its Section 5 jurisprudence. That was a mistake. Boerne‘s congruence and proportionality test is a “flabby test” that is “a standing invitation to judicial arbitrariness and policy-driven decisionmaking,” as Justice Scalia reiterated in a solo concurrence just last week.

Based on this week’s oral arguments on the constitutionality of the “individual mandate,” at least some of the Justices appear willing to formulate a new doctrinal test for what counts as a “Proper” law under the Necessary and Proper Clause. As they were in Boerne, the Justices are on a search for a limiting principle on Congress’s power. In their attempt to not Garcia-ize the Commerce Clause and the Necessary and Proper Clause, let us hope that they do not Boerne-ize those powers instead.

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During today’s oral arguments about the severability of Section 5000A, neither the Justices nor counsel could come up with a case in which the Court had left standing the rest of a partially unconstitutional statute after “excising” its “heart.”

Justice Scalia pressed Edwin Kneedler, counsel for the federal government, for an example. Kneedler suggested United States v. Booker, but Justice Scalia rejected it as inapt. Mr. Kneedler then stated that “there is no example,” which led Justice Scalia to say: “This is really a case of first impression. I don’t know another case where we have been confronted with this — with this decision. Can you take out the heart of the Act and leave everything else in its place?”

One example that comes to mind, however, is the federal income tax, which the Supreme Court held partially unconstitutional and inseverable in Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895). This was the case later described by Justice Jackson, in The Struggle for Judicial Supremacy, as “a brilliant and smashing victory” for “the opponents of majority rule.” The Court held in Pollock that a tax on income from property was an unconstitutional direct tax. There was no similar constitutional problem with a tax on income from wages and salaries. But the Court held that the income tax was inseverable and therefore entirely unenforceable, not only as to income from property but also as to income from wages and salaries. This was a massive blow to the government. And it is commonly thought that, in Justice Jackson’s words, “the whole Act fell.” But that is incorrect. The income tax was part of a larger Act called the Wilson-Gorman Tariff Act of 1894. In Pollock, the Supreme Court rendered unenforceable sections 27 to 37 of this Act, but not the remainder. It is a judgment call whether the income tax provisions were the “heart” of this Act (just as the relative importance of Section 5000A to the PPACA can be debated as well). But the inclusion of the income tax was important to the overall legislative bargain because it was supposed to raise revenue that would be lost by the lowering of tariff rates. Given the importance of the income tax politically and the high-profile nature of the Supreme Court’s invalidation of it–ultimately leading to the Sixteenth Amendment–perhaps Pollock is the precedent the Court is looking for.

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If you’re interested in the severability of Section 5000A from the rest of the PPACA and would like a refreshingly clear-headed take on severability doctrine generally, check out Sense and Severability, the remarks of Tobias Dorsey at the University of Richmond Law Review’s 2011 Allen Chair Symposium, “Everything but the Merits: Analyzing the Procedural Aspects of the Health Care Litigation.” Dorsey’s prediction from last November  seems even more prescient today than when made:

[I]f we get to severability, I see a two-way split much like the two-way split in Booker, with the Chief Justice and Justice Kennedy joining the three more conservative Justices in holding the mandate unconstitutional, and the Chief Justice and Justice Kennedy joining the four more liberal Justices in taking the Solicitor General‘s point of view.

(more…)

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Perhaps the Solicitor General will have more luck with a different aspect of Printz tomorrow?

One of the more pointed lines of questioning directed toward the Solicitor General regarding the constitutionality of Section 5000A came from Justice Scalia with respect to “Proper” in “Necessary and Proper”:

JUSTICE SCALIA: Wait. That’s — it’s both  “Necessary and Proper.” What you just said addresses  what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to  be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure. The argument here is that this also is — may be necessary, but it’s not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what — what else can it not do?

GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that — this
is a regulation -­

JUSTICE SCALIA: No, that wasn’t my point. That is not the only constitutional principle that
exists.

GENERAL VERRILLI: But it -­

JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the
States and do not belong to the Federal Government. Do  you acknowledge that that’s a principle?

GENERAL VERRILLI: Of course we do, Your Honor.

JUSTICE SCALIA: Okay. That’s what we are talking about here.

Justice Scalia’s expansive invocation of quasi-Printz suggests a distinction that he perceives between HHS v. Florida and Gonzales v. Raich.

There is another aspect of Printz that the Solicitor General will rely on tomorrow with respect to severability. That is the Court’s’ refusal to adjudicate the severability of provisions that only burdened parties not before the court. After holding unconstitutional a provision requiring CLEOs (or Chief Law Enforcement Officers) to perform background checks on firearms purchasers, there remained a severability question whether firearms dealers remained obligated to forward to the CLEO the requisite background information and to wait five days before consummating the sale. These steps seemed a pointless formality after the invalidation of the CLEOs’ obligation to do background checks. But the Court’s opinion refused to address the issue:

These are important questions, but we have no business answering them in these cases. These provisions burden only firearms dealers and purchasers, and no plaintiff in either of those categories is before us here. We decline to speculate regarding the rights and obligations of parties not before the Court.

Relying on this aspect of Printz, the federal government has argued that the Supreme Court has no authority to decide the severability of provisions, even the guaranteed issue and community rating requirements, that do not burden the parties to the case.

Printz aside, I think the federal government is right about this as a matter of first principles. Unfortunately, severability has long been an area where first principles have been ignored. Perhaps tomorrow’s arguments will provide a chance for the Court to come face to face with the many problems of its severability doctrine, including the frankly legislative determinations it authorizes the judiciary to undertake.

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