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Archive for April, 2012

Holding that a criminal trial was tainted by the admission of prior “bad act” evidence, a split Fourth Circuit panel yesterday reversed an individual’s drug and gun convictions. In addition to addressing the admissibility of prior bad act evidence, the opinion contains an extensive discussion of the detention of a vehicle for a canine sniff. Judge Keenan wrote the opinion for the court in United States v. McBride, in which Judge Gregory joined. Judge Wilkinson wrote an opinion concurring in part and dissenting in part.

The improperly admitted evidence consisted of reliable audio and video recordings of a prior drug transaction in which the defendant sold crack cocaine to a government informant. The panel majority reasoned that the evidence surrounding this earlier transaction, which took place 18 months prior to the charged conduct, “was unrelated in time, place, pattern, or manner to the conduct” for which the defendant was indicted. The panel majority further reasoned that it could not conclude that it was “highly probable that the error did not affect the judgment.”

Judge Wilkinson’s dissent argues that the appellate court’s decision “regrettably pulls the trial process away from both the trial court and the jury, substituting its own assessment of the relevance and weight of the defendant’s criminal activity.” The dissent’s analysis begins with a comparison:

Appellant’s position overlooks simply this: that institutional relationships are to law what personal relationships are to life. And keeping the relationship of trial and appellate courts free of unwarranted encroachments is essential to the harmonious workings of our system. . . . The majority pays lip service to our deferential review of the district court’s evidentiary rulings, but fails to show any actual regard for the reasoned rulings of the trial judge in this case.

The dissent concludes by arguing that “[s]ending this case back to the district court for a second round diminishes the trial process”:

Retrials are like yesterday’s breakfast–always stale and seldom satisfying. Witnesses often try to remember what they said at the first trial rather than their actual recollections of the events in question. Everyone is farther removed from the events the trial process is designed to reconstruct. “The very act of trying stale facts may well, ironically, produce a second trial no more reliable as a matter of getting at the truth than the first.” Mackey v. United States, 401 U.S. 667, 691 (1971) (Harlan, J., concurring in part and dissenting in part).

It does more than merely inconvenience participants to put them through the process twice. Retrials can be traumatic, and criminal trials especially so, as witnesses are brought back for a second time to relive troubling events. As for the jurors here, it reduces to insignificance the time they spent in civic duty listening to evidence and argument and weighing facts whose accuracy is in no way questioned. The majority treads no ground here that was not covered at trial, reviewed by the district judge, and assessed by the jury in rendering a fair verdict. I would let the verdict stand in full. The district court applied proper legal standards, followed case law from ours and other circuits, made a sound and considered evidentiary inquiry, and admirably discharged its obligations throughout. With all respect to my fine colleagues in the majority, the trial court should be commended, not reversed.

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Severability doctrine is not only a “discretionary destructive device” that “calls on judges to act, consciously, like legislators,” but it also results in the creation of law without accountability.

Suppose that the Supreme Court holds the so-called individual mandate unconstitutional and fully severable. When insurance companies are stuck with guaranteed-issue and community ratings for sicker people, but without the revenue that comes from insuring healthier people, who is responsible for that? Congress, because it used an unconstitutional mechanism and did not include an inseverability provision? The Court, because it refused to hold the mandate inseverable from these other provisions? There is no good way to answer these questions, because the judiciary’s action is formally based on perceived congressional intent. Both Congress and the Court are responsible, and neither are.

The problem is not simply the existence of a law that Congress never enacted and the President never signed. A holding of unconstitutionality and inseverability that obliterated the PPACA entirely would raise a similar problem of accountability. When small businesses that benefit from tax credits in the PPACA or individuals that benefit from the ban on lifetime caps are deprived of the benefits that they currently enjoy under the PPACA, who do they blame? A case can be made against both Congress and the Court, and each institution also has a plausible defense.

The Supreme Court has often noted the connection between liberty and accountability. An important aspect of liberty is self-government, and self-government requires accountability. That is an important theme of the Court’s federalism jurisprudence. And it also underlies the Court’s recognition that the separation of powers also promotes individual liberty. Consider, for example, Justice Kennedy’s opinion for the Court last term in United States v. Bond, which stated:

Separation-of-powers principles are intended, in part, to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Constitution’s concern. The structural principles secured by the separation of powers protect the individual as well.

Within the excision-based framework of modern severability doctrine, there is simply no way for the judiciary to avoid illegitimate law creation or law destruction. And the federal judiciary’s presence in the legislative realm violates the separation of powers. “We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Congress, each of which must enact the new law and present it for the approval of a President, whom we also elect.” Sosa v. Alvarez-Machain (Scalia, J., concurring in part and concurring in the judgment). Once these laws are made, the federal judiciary has a proper role of deciding on their enforceability in cases or controversies. That judicial role is powerful, but limited. The limits come from the federal judicial power itself. For too long, modern severability doctrine  has located within the judicial power an avowedly legislative function. In future posts, I will lay out an alternative approach–the original approach to partial unconstitutionality–more deeply rooted in traditional understandings of the federal judicial role.

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When it comes to severability determinations–especially in the absence of a severability clause–the output of any hypothetical legislative intent test asking what Congress would have preferred is purely fictive. The doctrinal formula that generates it is a verbal shell with its meat scraped out and its insides filled with the fluid of judicial discretion. This failure of existing doctrine to provide an intelligible legal guidance is one reason to stop using it.

An even more fundamental reason for the Supreme Court to keep its hands off this destructive doctrinal tool is rooted in the separation of powers. Simply put, the doctrine calls on judges to act, consciously, like legislators.

The non-judicial nature of an inseverability holding came through clearly at oral argument in the healthcare litigation, although the Justices did not appreciate it at the time. Consider the following portion of the oral arguments, in which Edwin Kneedler of the DOJ presses the claim that the Supreme Court lacks authority to consider the continued enforceability of statutory provisions that the plaintiffs lack standing to challenge:

MR. KNEEDLER: Thank you, Mr. Chief Justice, and may it please the Court: There should be no occasion for the Court in this case to consider issues of severability, because as we argue, the — the minimum coverage provision is fully consistent with Article I of the Constitution. But if the Court were to conclude otherwise, it should reject Petitioners’ sweeping proposition that the entire Act must fall if this one provision is held unconstitutional. As an initial matter, we believe the Court should not even consider that question. The vast majority of the provisions of this Act do not even apply to the Petitioners, but instead apply to millions of citizens and businesses who are not before the Court -­

CHIEF JUSTICE ROBERTS: How does your proposal actually work? Your idea is that, well, they can take care of it themselves later. I mean, do you contemplate them bringing litigation and saying — I guess the insurers would be the most obvious ones -­ without — without the mandate, the whole thing falls apart, and we’re going to bear a greater cost, and so the rest of the law should be struck down. And that’s a whole other line of litigation?

MR. KNEEDLER: Well, I — I think the continuing validity of any particular provision would arise in litigation that would otherwise arise under that provision by parties who are actually -­

CHIEF JUSTICE ROBERTS: But what cause of action is it? I’ve never heard of a severability cause of action.

MR. KNEEDLER: Well, in the first place, I don’t — the point isn’t that there has to be an affirmative cause of action to decide this. You could — for example, to use the Medicare reimbursement  issue is one of the things that this Act does is change Medicare reimbursement rates. Well, the place where someone adjudicates the validity of Medicare reimbursement rates is through the special statutory review procedure for that. And the same thing is true of the Anti-Injunction Act -­

JUSTICE SCALIA: Mr. Kneedler, there are some provisions which nobody would have standing to challenge. If the provision is simply an expenditure of Federal money, it doesn’t hurt anybody except the taxpayer, but the taxpayer doesn’t have standing. That — that just continues. Even though it is — it should — it is so closely allied to what’s been struck down that it ought to go as well. But nonetheless, that has to continue because there’s nobody in the world that can challenge it. Can that possibly be the law?

MR. KNEEDLER: I think that proves our point, Justice Scalia. This Court has repeatedly said that just because there’s — no one may have standing to challenge — and particularly like tax credits or taxes which are challenged only after going through the Anti-Injunction Act, just because no one has standing doesn’t mean that someone must. * * *

JUSTICE SCALIA: But those are provisions that have been legitimately enacted. The whole issue here is whether these related provisions have been legitimately enacted, or whether they are so closely allied to one that has been held to be unconstitutional that they also have not been legitimately enacted. You can’t compare that to — to cases dealing with a statute that nobody denies is constitutional.

MR. KNEEDLER: This case is directly parallel to the Printz case, in our view. In that case, the Court struck down several provisions of the Brady Act, but went on to say it had no business addressing the severability of other provisions that did not apply to the people before [the Court].

The questions posed by Chief Justice Roberts and Justice Scalia here can be distilled to two:

(1) If the Court doesn’t address severability in this case, won’t that leave a mess that the federal judiciary might not be able to be sort out in further litigation?

(2) Should the federal judiciary permit provisions in the statute that nobody can challenge in court to stay in effect as law even though they are “closely allied to one that has been held to be unconstitutional”?

The correct answers to these two questions are Yes and Yes.

Yes, it would create a mess for the Supreme Court to hold the so-called individual mandate unconstitutional without addressing the continued enforceability of other PPACA provisions. But that mess is not the federal judiciary’s problem except to the extent that the enforceability of those other PPACA provisions can be challenged in a case or controversy by someone that they injure in a judicially cognizable way. True, there is no “severability cause of action.” But a regulated entity can, in some circumstances, seek a declaratory judgment and injunction on the ground that a federal statute purportedly applicable to it does not have the force of law. If it were a valid legal argument to say that a statutory provision, itself perfectly constitutional, should not be enforceable because Congress would not have enacted it in the absence of another statutory provision that is unconstitutional, then someone can raise that argument in an appropriate pre-enforcement claim for declaratory and injunctive relief. Under current severability doctrine, that could be a valid legal argument. It ought not to be, because the fact Congress would not have enacted the provision should not be allowed to undo the fact that Congress did pass the provision. But whether this is a valid legal argument and whether it ought to be are two different questions.

Yes, the federal judiciary should leave alone statutory provisions that cause no legally cognizable injury to the parties properly before a federal court in a case or controversy. The doctrines that define the case or controversy requirement set the boundaries of the judicial domain. Anything outside those boundaries is none of the federal courts’ business.

As Justice Scalia recognized in Hamdi v. Rumsfeld, the Supreme Court sometimes adopts a “Mr. Fix-it Mentality” in which the Court “seems to view it as its mission to “Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches’s actions and omissions.”  The oral arguments over the severability of the so-called individual mandate reveal a Court tempted to play this role.

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A divided Fourth Circuit panel yesterday affirmed the grant of summary judgment to an employer who refused to rehire to the same position an employee who went on disability leave. The decision turned on the application of Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), in which the Supreme Court addressed how courts should assess an ADA claim brought by an individual who has applied for and received Social Security Disability Insurance (SSDI) benefits.

Judge O’Grady (EDVA, sitting by designation) authored the unpublished opinion for the court in EEOC v. Greater Baltimore Medical Center, Inc., in which Judge Keenan joined. Judge Gregory wrote a dissenting opinion.

Although unpublished, the decision appears to be the first in which the Fourth Circuit has held that the Supreme Court’s decision in Cleveland applies not only to actions brought by individuals who have applied for and received SSDI, but also to actions brought by the EEOC on behalf of such individuals.

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The prospect of the Supreme Court deploying severability doctrine in any high-stakes litigation should fill legalists with dread. And the present challenge to the so-called individual mandate in the Patient Protection and Affordable Care Act is high-stakes litigation.

Severability doctrine is a discretionary destructive device. And when judges wield it to lay waste to legislative handiwork, everyone loses. The only winners are the cynics about law whose cynicism is vindicated by the judiciary’s adventuresome expansion of invalidity beyond unconstitutionality.

My first article-length law review piece, Partial Unconstitutionality, was about severability. I wrote it before the PPACA was enacted and without that legislation in mind. In fact, severability doctrine seemed at the time to be in the backwaters of scholarly and judicial interest. That was typical. Nobody pays attention to severability until it matters, and then the doctrine usually evades scrutiny by remaining in the shadows of the substantive constitutional rulings that occasion its application. Sure, there have been bouts of handwringing about severability–as when the Court was busy striking down New Deal legislation in the 1930s, or when INS v. Chadha‘s constitutional holding threatened over 200 statutes that also contained legislative vetoes in the early 1980s. But life would go on and severability would slink back into the shadows.

The recent oral arguments about the severability of the so-called individual mandate have shone a spotlight on severability. And what we have seen isn’t pretty.

The good news is that the Justices recognize an ugly doctrinal state of affairs. The bad news is that there appears little prospect when working within the assumptions of current doctrine to make it better. Barring some serious rethinking of the doctrine, its use in the health care litigation (if it ends up being used) can only make a bad doctrinal situation worse.

(more…)

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As the United States and a new Somali defendant gear up for trial this week in front of Judge Doumar, one question is on the mind of all concerned: Where are the Fourth Circuit’s piracy decisions?

The Fourth Circuit has been considering the definition of piracy for over a year now. Last spring, a three-judge panel consisting of Judge King, Judge Davis, and Judge Keenan heard oral arguments in an appeal arising out of an attack on the U.S.S. Ashland. Last September, the same panel heard oral arguments in an appeal arising out of an attack on the U.S.S. Nicholas. At the time of the Nicholas arguments, it appeared that the panel had put the case on some sort of fast track after the Ashland appeal was caught up in some procedural confusion. But the Nicholas appeal has not been quickly resolved even though, as I have previously argued, the procedural issue that seemed to dog the Ashland appeal has been resolved  by a different panel in a different case.

Regardless of the outcome of the Ashland appeal, it is curious that the decision in the Nicholas appeal has not yet been issued. Various judges on the panel did show interest at oral argument in issues beyond the definition of piracy, such as the extraterritorial application of Miranda and the unit of prosecution under 924(c). But the panel did not press the government very hard on the definition-of-piracy issues, as one would expect if the judges’ pre-argument review of the case pointed toward a ruling against the government.

There can be many reasons for the passage of so much time without a decision. And in big cases, the decisions can take a long time. Perhaps the panel is deeply fractured on one or more of the issues. Perhaps the judges have been busy working on other cases (as seems to be at least part of the explanation given lengthy or controversial opinions that have been released in recent months by the panel members in other cases). Or perhaps the opinion or opinions at issue raise knotty questions about other aspects of the Fourth Circuit’s case law that need to be smoothed out. At this point, it is all speculative from the outside.

That speculation could start building if more stories like yesterday’s AP story about the upcoming piracy trial begin to appear. As the story explains, “[t]he trial of a Somali man U.S. authorities consider the highest-ranking pirate they have ever captured will begin this week in Virginia under a cloud of uncertainty about what the definition of piracy is.” Part of the uncertainty is whether the crime of piracy requires that the pirate actually took possession of the target ship, committing robbery at sea. Two district courts have gone different ways on that question. These are the two cases currently on appeal to the Fourth Circuit.

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The Fourth Circuit today partially reversed a district court decision that had granted broad protection to Google against trademark infringement claims arising out of its use of trademarked terms in keywords and advertisement text. Chief Judge Traxler wrote the opinion for the court in Rosetta Stone v. Google, in which Judge Keenan and Senior Judge Hamilton joined.

The language software company Rosetta Stone sued Google in 2009 asserting claims of: (1) direct trademark infringement; (2) contributory infringement; (3) vicarious infringement; (4) trademark dilution; and (5) unjust enrichment (under Virginia law). The district court granted summary judgment to Google on all five counts (see here for district court’s trademark claims analysis). Today’s decision affirms the win for Google on vicarious infringement and unjust enrichment, but vacates and remands with respect to direct infringement, contributory infringement, and trademark dilution.

With respect to direct infringement, the appeals court rejected Rosetta Stone’s argument that it is reversible error for a district court to decline to address all factors in the Fourth Circuit’s nine-factor, non-exclusive, totality-of-the-circumstances test for likelihood of confusion. The opinion suggests, however, that “[i]n the future . . . a district court opting not to address a given factor or group of factors should provide at least a brief explanation of its reasons.” The appellate court did, however, fault the district court for applying a too-demanding standard to Rosetta Stone’s evidence of intent to cause confusion, actual confusion, and consumer sophistication. This portion of the opinion contains a discussion of anecdotal and survey evidence, including in-house studies on confusion performed by Google. The Fourth Circuit also criticized the district court’s functionality analysis for focusing on whether Rosetta Stone’s mark made Google’s product more useful, rather than considering whether the mark was functional as Rosetta Stone used it. The appellate disposition of this functionality affirmative defense precludes Google’s further use of it in the litigation, but the remainder of the disposition simply leaves open the path for future litigation over the facts.

On contributory infringement, the Fourth Circuit held that the district court relied too heavily on the Second Circuit’s decision in Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010), which was an appeal from a jury verdict rather than a decision at the summary judgment stage.

Finally (with respect to the claims that the Fourth Circuit vacated), the court held that the district court impermissibly collapsed good faith and nominative fair use into a single question in assessing trademark dilution. The appeals court further held that the district court mistakenly read Louis Vuitton Malletier S.A. v. Haute Diggity Dog, L.L.C., 507 F.3d 252 (4th Cir. 2007) to require proof of actual economic loss or reputational injury, rather than a likelihood of dilution.

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The Fourth Circuit yesterday issued a decision in a messy dispute among plaintiffs’ lawyers, car dealers, and car purchasers over the use of South Carolina’s FOIA law to obtain personal information about car purchasers for use in litigation against car dealers. Judge Davis wrote the opinion for the Court in Maracich v. Spears, in which Judge Duncan and Judge Wynn joined.

The court’s summary of its holding:

[W]e hold that the district court erred in ruling that the Lawyers did not engage in solicitation. Yet, the Lawyers indisputably made permissible use of the Buyers’ personal information protected by the DPPA, here, for use “in connection with [litigation],” including “investigation in anticipation of litigation.” 18 U.S.C. §2721(b)(4). Ultimately, the Buyers’ damages claims asserted under the DPPA fail as a matter of law, notwithstanding the fact that the Buyers can identify a distinct prohibited use (mass solicitation without consent) that might be supported by evidence in the record. In short, where, as a matter of settled state law and practice, as here, solicitation is an accepted and expected element of, and is inextricably intertwined with, conduct satisfying the litigation exception under the DPPA, such solicitation is not actionable by persons to whom the personal information pertains.

The opinion notes that its decision in favor of the lawyers largely tracks the approach of the Eleventh Circuit in Rine v. Imagitas, 590 F.3d 1215, 1226 (11th Cir. 2009). The buyers relied on the Third Circuit’s decision in Pichler v. UNITE, 542 F.3d 380 (3d Cir. 2008), but the court thought that decision to be “plainly distinguishable.”

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The degree to which the courts become converted into political forums depends not merely upon what issues they are permitted to address, but also upon when and at whose instance they are permitted to address them. As De Tocqueville observed:

“It will be seen . . . that by leaving it to private interest to censure the law, and by intimately uniting the trial of the law with the trial of an individual, legislation is protected from wanton assaults and from the daily aggressions of party spirit. The errors of the legislator are exposed only to meet a real want; and it is always a positive and appreciable fact that must serve as the basis of a prosecution.”

The great change that has occurred in the role of the courts in recent years results in part from their ability to address issues that were previously considered beyond their ken. But in at least equal measure, in my opinion, it results from the courts’ ability to address both new and old issues promptly at the behest of almost anyone who has an interest in the outcome. It is of no use to draw the courts into a public policy dispute after the battle is over, or after the enthusiasm that produced it has waned. The sine qua non for emergence of the courts as an equal partner with the executive and legislative branches in the formulation of public policy was the assurance of prompt access to the courts by those interested in conducting the debate. The full-time public interest law firm, as permanently in place as the full-time congressional lobby, became a widespread phenomenon only in the last few decades not because prior to that time the courts could not reach issues profoundly affecting public policy; but rather because prior to that time the ability to present those issues at will (to make “wanton assaults,” to use De Tocqueville’s pejorative characterization) was drastically circumscribed. The change has been effected by a number of means, including such apparently unrelated developments as narrowing the constitutionally permissible scope of laws against champerty and maintenance (so that the cause may now more readily seek a victim to represent), alteration in the doctrine of ripeness (so that suits once thought premature may now be brought at once), and–to return to the point–alteration in the doctrine of standing.

Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk. Univ. L. Rev. 881, 892-93 (1983).

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The Fourth Circuit today joined the Seventh and Eighth Circuits in their split from the Ninth Circuit over the correct application of Georgia v. Randolph, 547 U.S. 103 (2006), in a situation in which consent to search a shared home was given by one person with authority to consent in the absence of another individual who had previously refused consent. Compare United States v. Henderson, 536 F.3d 776 (7th Cir. 2008) (requiring physical presence of objecting co-tenant), and United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (en banc) (same), with United States v. Murphy, 516 F.3d 1117, 1125 (9th Cir. 2008) (allowing prior co-tenant’s refusal to operate even in the absence of continuing physical presence).  The court also upheld the federal anti-stalking statute, 18 U.S.C. § 2261A(2)(A), against a vagueness challenge. Judge Wilkinson wrote the opinion for the court in United States v. Shrader, which was joined in by Judge Motz and Judge Shedd.

With respect to the circuit split over Georgia v. Randolph, the opinion states that the Ninth Circuit’s approach of allowing refusal to operate even in the absence of the objecting co-tenant raises practical problems:

How broadly is constructive knowledge of a suspect’s prior refusal to consent to be imputed to other officers? Must a suspect expressly indicate that he has changed his mind in the future, or may that be assessed from the totality of the circumstances? Is there some point at which the passage of time renders a prior objection inoperative? The Murphy interpretation of Randolph would involve courts in such questions, diverting attention from the basic social expectations that underlie not only the opinion in Randolph, but the larger corpus of Fourth Amendment jurisprudence. Careful observance of the requirement that an objecting cotenant be physically present thus not only shows fealty to the Supreme Court’s precedent, but also focuses police and courts on the customary norms that form the basis for this area of law.

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The final two paragraphs of Law and Judicial Duty by Philip Hamburger:

In the end, the common law ideals of law and judicial duty can be considered attempts to secure a firm footing at the edge of a chasm of lawlessness. A body that was the final judge might come to view itself as above the law of the land and thus absolute, and after the king in this way took advantage of his claim to be the final judges of his prerogative, Parliament responded by expanding upon its own claim of absolute power, which it based on its status as the highest court in the realm. Even in Parliament, however, a power above law was dangerous, and this gave particular significance to the constitutional solution, which could be understood to deny a power above law to any part of government. From such a perspective, any human power above human law resided exclusively in the people, whose constitution established a government entirely under law.

The power above human law, however, has not remained entirely in the people. The attribution of this absolute power to the people avoided some of the dangers of its being concentrated in government, but the people have been no more divine in their exercise of will than their kings and legislatures, and many Americans, in their desire to prevent the people from abusing the power above law, have invited their judges to exercise it. Thus, after the power above the law of the land finally shifted from government to the people, it has come to be at least partly relocated in the judges. In taking up this power, the judges have found sophisticated support in the old academic sensibilities, and not unlike some kings and Parliament when they claimed to be the final arbiter, American judges have acquired a taste for power above the law. Perhaps every society needs this sort of power, but in denying absolute power to Parliament, Americans did not give it to the judges, and although it is questionable whether the people, being merely human, will always act wisely and justly in exercising their power above the law of the land, it is even more doubtful whether the judges or any other persons in government can be trusted with such a power. Men will ever be discontent with law and ambitious for power, and judges will ever be vain enough to aspire to a justice above human law, but it is therefore all the more important for judges to recall the common law ideals of law and judicial duty.

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Some recent comments by President Obama (later refined, but in some important respects legally erroneous) have induced a panel of Fifth Circuit judges to request (not order) a three-page, single-spaced letter from the Department of Justice. According to the transcript of the argument at ZiffBlog, the letter is to state “what is the position [of] the Attorney General and the Department of Justice in regard to the recent statements by the President, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review.”

The entire episode is unfortunate on both sides. But I am less interested at the moment in assessing comparative fault than in lamenting how the dynamic of this episode, together with much of the spectacle surrounding the healthcare litigation, only serves to reinforce judicial supremacy (as compared with departmentalism). The way that President Obama framed his remarks, the way that Judge Smith framed his questions, and the way that the DOJ attorney answered Judge Smith’s questions all show a common commitment to the idea that one role of federal courts is to “strike” or “overturn” statutes. Other commentators discussing the healthcare litigation have described the question as whether the Supreme Court will “repeal” the healthcare law. (See, e.g., James Capretta, John Fund, and Avik Roy, writing in the same NRO symposium).

These notions of a power to “strike,” “overturn,” or “repeal” legislation are convenient shorthand.  In fact, it is often difficult to speak of what a court is considering doing without speaking of a constitutional challenge as being a challenge to a statute, which then brings along some notion that the court is being asked to do something to the statute (like strike it, overturn it, or repeal it). But this terminology can be misleading, and it is helpful every now and then to point out why.

The federal judicial power does not contain some unconditioned power of “judicial review” that results in the striking, overturning, or repealing of legislation. What we call “judicial review” consists of a negative power to refuse to execute an unconstitutional law and a positive power to enjoin someone properly before the Court from executing an unconstitutional law (as well as the power to accomplish the same result indirectly through a declaratory judgment). In short, “judicial review” consists of a power to order judicial remedies (including the remedy of non-execution), together with the giving of reasons in support of the judicial action taken. By dint of precedent and preclusion doctrine, the reasons provided may extend the scope of the judicial non-execution more  broadly. But there is no stand-alone “judicial review” power that operates directly on statutes.

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Once we understand the distinction between constitutional law and the Constitution, once we see that constitutional decisions need not be seen as the last words in constitutional construction, once we comprehend that these decisions do not necessarily determine future public policy, once we see all of this, we can grasp a correlative point: constitutional interpretation is not the business of the Court only, but also properly the business of all branches of government.

The Supreme Court, then, is not the only interpreter of the Constitution. Each of the three coordinate branches of government created and empowered by the Constitution-the executive and legislative no less than the judicial-has a duty to interpret the Constitution in the performance of its official functions. In fact, every official takes an oath precisely to that effect.

Edwin Meese III, The Law of the Constitution

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Virginia Attorney General Ken Cuccinelli comments on a Justice Kennedy comment at oral argument over the constitutionality of 26 USC 5000A:

Justice Kennedy noted that the mandate was unique in light of its affirmative requirement of a citizen to purchase something, and that would appear to alter the relationship between the government and individuals in a “fundamental way.”  This is a powerful and deeply philosophical statement that I take great comfort in.

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Commentators are already suggesting that there could be a backlash against the Supreme Court if it rules by a 5-4 vote that the so-called individual mandate is unconstitutional. In part for reasons that Sandy Levinson has already identified (with support from an intriguing paper by political scientist James Gibson), however, the opposite may be true. The mandate is incredibly unpopular and a majority of Americans believe not only that it is unconstitutional but also that the Supreme Court will hold it unconstitutional. And many Americans want the Supreme Court to act like a super-legislature.  (“Super” in the senses of both “above” and “better.” “Legislature” in the sense of both making and unmaking the law.) This desire for the Court to act as a super-legislature stems less from ideological or partisan understandings of the relationship between the Court and the elected branches than from a sense that the Court should speak for the people when it speaks in the name of the Constitution.

A recent Kaiser Family Foundation poll of  a nationally representative random sample of over 1,200 people asked what factor should play the most important role in the justices’ decision in the healthcare case. The top answer was “the views of average Americans,” which came in at 34%. That beat out “the justices’ analysis and interpretation of the law,” which came in at 29%.

The remaining four choices were “whether the justices themselves hold  liberal or conservative views,” “national politics,” “whether a justice was appointed by a Republican or Democratic president,” and “the justices’ past personal experiences.” None of these choices received more than 5% agreement. The minimal role that people think ought to be played by these last four factors may seem like good news. But the aggregate percentage for these four factors taken together is 16%. When added to the 34% who think that the views of average Americans should play the most important role, a full 50% of respondents to this question think that something other than the justices’ analysis and interpretation of the law should be paramount in the Court’s consideration.

Answers to the question about what should play the most important role indicate what people think should give way when push comes to shove, but it need not exclude a significant role played by the law. When asked what should play a major role, the most popular choice was “the justices’ analysis and interpretation of the law,” receiving 53% agreement, followed by “the views of average Americans,” with 50% agreement.

Interestingly, only 27% of respondents thought that the views of average Americans would play a major role in the justices’ deliberations.  In other words, a much greater percentage of respondents thought that the views of average Americans should play a major role (50%) than thought that those views would play a major role (27%). While some legal elites criticize the Court’s conservative Justices for appearing to traffic in talk-radio hypotheticals, that sort of permeability between popular constitutionalism and Supreme Court decisionmaking seems to be what many Americans want.

Critics of a potential 5-4 holding that the so-called individual mandate is unconstitutional also overlook the possibility of a backlash against the Supreme Court for upholding the law. Respondents to the Kaiser poll were asked how they would feel if the mandate were ruled unconstitutional. Just 12% said that they would be angry, compared with 17% who said that they would be enthusiastic. Another 30% said that they would be disappointed but not angry, but 32% said that they would be satisfied but not enthusiastic. By contrast, respondents were asked how they would feel if the mandate were ruled constitutional. A whopping 25% said that they would be angry, while only 13% said that they would be enthusiastic. Another 30% said that they would be disappointed but not angry, while 26% said that they would be satisfied but not enthusiastic. When a nationally representative poll says that more than double the percentage of people will be angry if a law is upheld than if it is struck down, and 55% of respondents say that they will be either angry or disappointed with a ruling upholding the law, it is hard to see what kind of significant backlash would be generated by a decision holding the law to be unconstitutional.

This is not a case where the Court needs to think twice to rule “hey, give ‘em what they want.”

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