Monday, August 24, 2015

Will a Roving Court Tame a Lazy Congress?

The federal government of the United States is a creation. It did not come into existence of its own intention, will, or design. Thirteen free and independent States brought the federal government into being by the device of the Constitution. Those States ratified the Constitution and are, therefore, the creators of the federal government.

The Constitution provides a basic framework for that government. This is the stuff of junior high civics classes. The States pre-existed that federal government and were independent free States. As such, the States possessed all the rights, powers, and prerogatives belonging to them as such. From those powers that the States already possessed, they deliberately carved out aspects and parts and donated them via the act of ratifying the Constitution to the newly minted government. Nothing in the Constitution provides a bootstrapping power by which the federal government might increase the reservoir of its powers, expand the scope of its powers, or re-allocate those powers within the branches of the federal government.

Under the first three articles of the Constitution, the three branches of the federal government are devised and equipped with discrete powers. Article I deposits all legislative power that was being donated from the States to the federal government in the Legislative Branch, which consists of the House of Representatives and the Senate. Article II deposits all executive power that was being donated from the States to the federal government in the Executive Branch, which consists of the President. Article III deposits all judicial power that was being donated from the States to the federal government in the Judicial Branch, which consists of the Supreme Court and such inferior courts as Congress might subsequently create.

Over the course of two hundred twenty-six years, that framework has been bumped around, bent, twisted.

Evidence of the abuse of that framework is everywhere.

When the Executive Branch conducts proceedings that are, in their basic nature, judicial, the Executive Branch takes on powers not delegated to it in the Constitution, and it does so by stealing authority from the Judicial Branch. Does this happen? It does, every day, day in and day out. Administrative hearings by federal agencies are a plain example of Executive encroachment on the Judicial Branch.

Similarly, when the Supreme Court (or a lower court), "rewrites" a statute by construing its words to mean other than what its words actually say, the Court is, in effect, legislating from the bench. That habit of legislative encroachments by the Court was evidenced again, for example, when Chief Justice Roberts, in an opinion touching on Obamacare, ignored the plain words of the Patient Protection and Affordable Care Act in King v. Burwell. Roberts explained that, if the Court had given the words of the statute their literal meaning, the effect would have been to take federal tax subsidies away from approximately 8 million lower income health insurance subscribers. Thus, rather than leave the statute as Congress actually wrote its words, the Supreme Court decided to "read" the contested language differently. That act, acknowledging that a set of words had a particular meaning, acknowledging that by changing their meaning the effect of the statute would change, and then, in effect, changing the words of the statute, is the essence of a legislative act.

From time to time, although still doing its lifework of undermining the States, and of pursuing dominance over the Legislative and Executive Branches of the Federal government, the Supreme Court does push back against obvious excesses by the other federal branches.

One example is the Court's two century old decision in Marbury v. Madison. In Marbury, the Supreme Court chastised Congress, which had attempted to authorize the Supreme Court to entertain lawsuits (as though it was the trial court) over certain cases involving claimants against the government. Marbury, had he succeeded in a lawsuit he filed in the Supreme Court based on that law, would have gotten a judicial appointment as a magistrate. That appointment had been made by President John Adams and approved by the Senate, just prior to the Inauguration of Thomas Jefferson. Jefferson refused to provide Marbury with his commission, and he sued to get it.

Marbury's problem, however, was that he sued in the Supreme Court. He did that because Congress had passed a law, presumably in keeping with powers granted to it in Article III of the Constitution. The particular provision of Article III states that the Supreme Court does have that "original jurisdiction" (like a trial court) over certain explicitly stated categories of cases (for example, lawsuits affecting ambassadors), and that the Supreme Court would have appellate jurisdiction under terms and conditions set by Congress. Here's the relevant language:
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
As you can see, the Constitution did not say that Congress could extend the "original jurisdiction" of the Supreme Court to other cases. So, when the Supreme Court decided Marbury's case, they tossed his lawsuit out for lack of jurisdiction. The Court concluded that Congress exceeded the power afforded under that provision of Article III. As far as it goes, the Court's conclusion about Congressional power is correct and can't be gainsaid. [The Court goes further in Marbury, asserting things about its power, "to say what the law is."]

I am not one to complain that the Court has confined itself to what I understand to be its constitutional duties and limits. In Marbury, I find nothing objectionable in the Court's conclusion that it could not entertain the suit. Everything else the Court said in that case was simply unnecessary to that brief conclusion.

The Court has moved into its summer retreat. It will not be hearing arguments as the summer progresses. Justices will travel, teach, speak, recreate. In September, they will gather again in their Conference Room and begin the process of choosing cases to be considered in the October 2015 Term of Court.

That is not to say that there will not be anything going on at the Court.

Emergency petitions and applications, ones seeking stays of execution, will still be filed, and will still be acted on by individual justices, or, where necessary, by the whole Court. In addition, attorneys representing parties in cases that have already been granted review will be researching, writing, editing, refining and filing briefs about their cases with the Court. Among those cases, one has garnered my interest because it has the potential of affecting the numbers of cases in which federal courts are called on, and therefore tempted, to act like legislators who decide the propriety of laws, rather than as judges.

The case is Spokeo, Inc. v. Robins.

This case presents the Court with a question about the limits of Congressional power to authorize courts to hear cases. The Court agreed to consider this question:
Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.
One of the limits on the power of Courts to hear cases is the text of the Constitution which grants power to the Courts to hear "actual cases." This provision is often summarized as the "case or controversy" requirement. It embodies the idea that our courts should not be engaged in hypothesis on the law. Hypothesizing about the law -- forecasting how it would apply in future cases -- is much like legislating and belongs to the Congress, not the Courts.

There is great mischief tucked into a concept like the one the Court will examine:
Imagine deputizing individuals that have not suffered harm (and cannot show that they will) to sue farmers because their farming threatens a rare slug or beetle.
Imagine deputizing individuals that have not suffered harm (and cannot show that they will) to sue companies that build oil refineries, or coal-powered energy generation facilities over their compliance with regulations.
Spokeo, Inc. does not present quite the same lightning rod underlying issue, as do Endangered Species and EPA cases. But the principle to be decided in this case may serve to limit the ongoing overreach of federal courts.