February 26, 2013

Do Civil Rights Laws Become Invalid If They Work?

By Prof. Gabriel "Jack" Chin for ACSblog.

Tomorrow, the Court will hear argument in Shelby County, Alabama v. Holder, which raises the question of the continuing validity of the preclearance requirement of Section 5 of the Voting Rights Act.

Under Section 5, electoral changes in covered jurisdictions are suspended until the Attorney General or the U.S. District Court for the District of Columbia preclears them by determining that they have neither the purpose nor effect of denying or abridging the right to vote on account of race or color.  The specific issue is whether circumstances in the covered jurisdictions have changed so dramatically that Section 5 is no longer warranted; the Court suggested as much in their 2009 decision in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder

I strongly disagree, and believe that a facial challenge is improper because Section 5 is clearly permissible in federal elections.  As important and ominous as Shelby County is, there is a larger question about the Court’s reasoning which has the potential to undermine many other laws and constitutional principles protecting civil rights. 

The Court’s logic in NAMUDNO seems to be this: There was a problem with discrimination against racial minorities at the ballot box, particularly in certain jurisdictions.  Section 5 and other parts of the Voting Rights Act largely fixed that problem.  Because covered jurisdictions are no longer disproportionately proposing electoral rules or districting maps that have the purpose or effect of disadvantaging minority voters, Section 5 may have outlived its usefulness.  Laws must be necessary and proper to solve problems, not non-problems, or former problems. (Many of these facts are doubtful, but I am concerned here primarily with the Court’s logic).

The Court has made similar arguments with respect to the exclusionary rule, which requires the suppression of evidence seized in violation of the Constitution.  The Court noted that before the exclusionary rule, there was no other realistic alternative to judicial suppression. But now that there is judicial suppression, police agencies train their officers not to illegally search and seize.  Therefore, it is implied, perhaps it is time for the exclusionary rule to go, because the police themselves are training their officers to comply with the law.

The flaw in these arguments is that they do not account for the effects of the laws themselves.  If Section 5 works, the Court should expect it to deter improper electoral changes because they will not be precleared, and thus will never go into effect.  Similarly, an effective exclusionary rule should change police training and policy because police leaders have an interest in teaching officers to develop admissible, as opposed to inadmissible, evidence.  Only if legislators and police are invulnerable to incentives and oblivious to outcomes would they stubbornly adhere to tactics long after they are penalized under law.  

That measures designed to bring about change achieve that change says nothing about whether those measures are no longer necessary.  If burglaries decline for ten years after homeowners install good door and window locks, that does not imply that locks have become superfluous.  If speeds on a road decrease after a speed limit is set and posted, that does not imply that speeds will remain low even if the speed limit were removed.  If laws do not change behavior, there is little point in having them.  If laws do change behavior, that does not necessarily mean that the underlying motivations and values which led to the behavior no longer exist.

Accordingly, the question is not simply whether the law worked, or created incentives to which the lawbreakers responded.  One question is whether the law (or other social forces) has changed public attitudes or conditions on the ground to such a degree that the law is unnecessary.  Another is who gets to decide.     

Section 5’s validity might turn on a prediction about politics -- will jurisdictions which once discriminated leap at the first chance to discriminate again, or will they welcome minority voters with open arms?  The continued existence of racially polarized voting and the political utility to Republicans of suppressing the minority vote -- whether out of malice or simple recognition of how they are likely to cast their ballots -- precludes any confident conclusion that eliminating Section 5 would not revive the practices Section 5 was intended to suppress.  But even if the point is debatable, Congress is in a far better position than is the Court to determine facts, political realities and public attitudes relevant to a prediction about what would happen if Section 5 disappeared.   For this reason, and many others, the Court should defer to the political judgments of the political branches and leave Section 5 as it is.

February 22, 2013

Opinion recap: Court refuses to apply Padilla v. Kentucky retroactively

Cross-posted from SCOTUSblog.

In Padilla v. Kentucky (2010), the Supreme Court in a path-breaking decision held that an ineffective assistance of counsel claim under the Sixth Amendment could be based on the failure to inform a criminal defendant of the immigration consequences of a criminal conviction before entering into a plea agreement.  Earlier this week, in Chaidez v. United States, Justice Kagan, writing for six other Justices, concluded that, under the principles set out in Teague v. Lane (1989), Padilla should not apply retroactively to criminal convictions entered before March 2010.

The petitioner in the case, Roselva Chaidez, entered the United States from Mexico in 1971 and became a lawful permanent resident in 1977.  In connection with an automobile insurance fraud scam in which she had received less than two thousand dollars, she – on advice of her attorney – had pleaded guilty to two counts of mail fraud and was sentenced to probation and to pay restitution.  Her conviction became final in 2004.  According to Chaidez, her attorney never warned her that her conviction could result in her mandatory removal from the country.  In 2009, after Chaidez’s naturalization petition brought her and her conviction to the attention of the federal government, removal proceedings were instituted against her.  Through a writ of coram nobis, Chaidez sought to set aside her conviction.  While the petition was pending, the Court issued its decision in Padilla v. Kentucky.  The Seventh Circuit held in Chaidez’s case that Padilla does not apply to a challenge to a conviction that became final before it was decided.  On Wednesday the Supreme Court agreed.

At the outset, the Court observed that Teague v. Lane “makes the retroactivity of our criminal procedures decisions turn on whether they are novel.”  (emphasis added).  The Court notes that “garden-variety applications of the test in Strickland v. Washington (1984), for assessing claims of ineffective assistance of counsel do not produce new rules.”  However, the decision in Padilla v. Kentucky, in the Court’s view, “did something more” than that.  Before Padilla, the state and lower federal courts almost unanimously concluded that the Sixth Amendment does not require attorneys to advise their clients of a conviction’s collateral consequences, including possible removal from the country.  Padilla rejected that rule.  No precedent dictated the answer.  “Padilla’s holding that the failure to advise about a non-criminal consequence could violate the Sixth Amendment would not have been – in fact, was not – ‘apparent to all reasonable jurists’ prior to our decision. Padilla thus announced a ‘new rule.’”

In the last footnote of the opinion, the majority declined to address two arguments that the Court deemed were not properly raised in the lower courts – “that Teague’s bar on retroactivity does not apply when a petitioner challenges a federal conviction, or at least does not do so when he makes a claim of ineffective assistance.”  These issues may well reappear before the Supreme Court in the near future.

Justice Thomas, who dissented in Padilla, concurred in the judgment, still believing that the case was wrongly decided and, in any event, should not apply to Chaidez’s case.

Justice Sotomayor, joined by Justice Ginsburg, dissented.  She reasoned that, rather than establish a new rule, Padilla “did nothing more than apply the existing rule of Strickland v. Washington (1984),” governing ineffective assistance of counsel, “in a new setting.”

Chaidez is the latest application of the Teague v. Lane retroactivity test.  By most accounts, Padilla represented a significant change in the law.  Consequently, it proved challenging for Chaidez to prevail in showing that, for retroactivity purposes, Padilla did not in fact create a “new” or “novel” rule.  A majority of the Court ruled that the change in the law was sufficiently significant that it should not apply retroactively.

There is little reason to think that Chaidez will have much of an impact on the Court’s retroactivity or immigration jurisprudence.  The Court understood this to be a run-of-the mill application of the retroactivity principles of Teague v. Lane, with the junior Justice assigned the decision.  Moreover, although tangentially involving immigration law, the decision does not meaningfully address any issues of immigration law or change in any way the holding in Padilla v. Kentucky.

At the same time, the Supreme Court’s holding that Padilla v. Kentucky will not apply retroactively will no doubt affect large numbers of plea deals in which the convictions were entered into before March 2010.  The Obama administration has made it a priority to remove “criminal aliens” from the United States and has based many removal actions on convictions more than a few years old.  Ultimately, thousands, if not, tens of thousands, of lawful permanent residents facing removal are likely to be affected by Chaidez and likely to suffer significant hardships if removed from the United States.   Chaidez, for example, has lived in the United States for four decades and has three children and two grandchildren who are U.S. citizens.   Now facing removal, she faces the possibility of being stripped from the only community and family she really has ever known.


February 18, 2013

Reforms will require sober compromises

This op-ed appeared in Sunday's Sacramento Bee.

A rational national discussion about immigration reform has been a long time coming. Immigration has proved to be a contentious issue in the United States and historically has brought out some of the worst in the American people.

In the years leading up to the 2012 election, harsh immigration enforcement-only rhetoric from the Republican Party alienated Latino voters, who overwhelmingly supported President Barack Obama, even though his administration in one term deported more people than any administration in U.S. history. The growing clout of Latino voters has made clear the political writing on the wall. Within days of the inauguration, both the president and a bipartisan group of senators sought to end the immigration reform stalemate.

The president and the senators agree on the basics for reform: more enforcement; improvement of the legal avenues for immigration so as to prevent the emergence of a "new" undocumented population after the current one is legalized; and a legalization program for undocumented immigrants.

In one of few areas of agreement, Obama's State of the Union address and Sen. Marco Rubio's Republican response agreed on this tripartite approach to immigration reform.

If we hope to pass a reform measure in the coming months, we will need to discuss immigration reform clearly, soberly and carefully, and consider what is best for the nation, as well as what Congress as a practical matter can pass.

All of us should strive to avoid knee-jerk reactions – pro and con – and think hard about the problems, concerns and realities before the nation. Roughly 11 million undocumented immigrants continue to live and work in the United States. If we want to pass meaningful immigration reform, we must stop invoking debate-stopping talismans like "what part of illegal don't you understand?" and "you want open borders," or accusing opponents of reform as "racists."

Despite years of failure in enacting reform, there is every reason to be cautiously optimistic this time around – at least if the nation's leaders are willing to address the real issues and make compromises.

More Enforcement

The most significant of the enforcement proposals calls for a computer database that allows employers to quickly check the immigration status of workers, which in turn would allow the U.S. government to better police the ban on the employment of undocumented workers.

To this point in time, the federal government has failed to construct a database that has an error rate sufficiently low to withstand litigation. While Congress can make coming up with such a system an imperative, waiting for it to be perfected before the other parts of immigration reform kick in would be mistaken – and a likely deal-breaker. Millions of undocumented immigrants have been waiting many years for a path to legalization; their supporters almost certainly will not agree to make them wait many more years.

Moreover, critics, especially those who think that the president has already gone overboard on immigration enforcement, will say that spending even more money on it is wasteful. The best evidence is that the lack of jobs caused by the Great Recession, not more enforcement, has resulted in the reduction in the undocumented population from about 12 million in 2010 to the current 11 million.

Like it or not, increased enforcement measures are popular with the public and likely will be part of any serious reform bill. The question is whether more enforcement will somehow hold hostage the other two significant components of immigration reform.

Legal Immigration

One of the factors contributing to the growth of an undocumented population has been the lack of legal avenues for workers to lawfully come to the United States. This should not be surprising. The omnibus federal immigration law, the Immigration & Nationality Act of 1952, was forged at the height of the Cold War with the intent of restricting immigration and, by most accounts, needs a massive overhaul to address the nation's 21st-century economic needs for workers.

Lacking avenues to lawfully come to the United States, many immigrants who want nothing more than to work will likely continue to join the ranks of undocumented immigrants. Both the president and the senators agree on the need for the nation to attract and admit high-skilled workers and retain foreign Ph.D.s, especially in the sciences, graduating from American universities. The senators also recognize the need for legal avenues to ensure the migration of low-skilled workers who the economy relies upon, especially in agriculture.

One feature of U.S. immigration law has inadvertently created strong incentives for undocumented immigration. The "per country ceiling" generally limits immigration from any single country to roughly 75,000 immigrants a year. The result is that some very long lines – years if not decades – exist for immigrants in certain visa categories from high immigration nations, such as Mexico, India, China and the Philippines, to lawfully come to the United States.

Would-be immigrants in unrealistically long lines may not wait to rejoin family members. They may enter the country without proper documentation, or overstay their visas. In its reform efforts, Congress must consider elimination of the backlogs, which would require a significant number of immigrants to be admitted in the coming years.


By far, the aspect of comprehensive immigration reform that is likely to be the most controversial is a legalization program for undocumented immigrants. Any such proposal brings forth vehement attacks on a much-maligned "amnesty" for lawbreakers. But the lack of a path to legalization is a deal-breaker for the advocates of immigrants.

Recognizing the political realities, as well as the fact that it simply is not possible or just to deport 11 million undocumented immigrants, both the president and senators would require an undocumented immigrant to apply for legalization, pay a substantial fine and any back taxes, know English, and pass a background check. Criminals would be deported, not legalized.

The bipartisan group of senators would require a finding that the border has been secured before any path to legalization is implemented. The big question is what is necessary to trigger that finding and just how long it will be before undocumented immigrants in fact would be legalized. Further delay of legalization is unacceptable to immigrant rights advocates. Millions of people have been waiting for legalization for many years. Some reformers will reasonably contend that the Obama administration's aggressive enforcement measures and removal campaigns are sufficient to allow for immediate implementation of a legalization program.

To further complicate matters, both the president's and the senators' plans would require applicants for earned legalization to get behind anyone already in line. It makes no sense, however, to impose this requirement on undocumented immigrants, many of whom had no line to wait in for lawfully coming to work in the United States. Given that the lines already are very long for some prospective immigrants, putting undocumented immigrants at the end of the line could indefinitely delay their legalization. The only sensible solution to prevent undue delay is for Congress to eliminate the backlogs and legalize the applicants now.

The Upcoming Debate

The nation awaits a full-blown bill implementing the agreed upon reform principles. When a bill is introduced, expect lots of fireworks.

Some immigrant rights advocates will oppose more enforcement, demand greater reform to the current immigration laws, such as improved asylum provisions, recognition of same-sex marriage for immigration purposes and more. Opponents will object to an "amnesty," complain about the U.S. government's alleged failure to enforce the immigration laws and more.

Many Americans have an ideal immigration law in their minds. However, compromise is what will be needed for Congress to pass some kind of comprehensive immigration reform.

February 14, 2013

Does BLAG Have Standing in the Defense of Marriage Act (DOMA) Case in Front of the Supreme Court?

From Justia's Verdict.

In about six weeks, the Supreme Court will hear oral argument in two potentially blockbuster same-sex marriage cases. In one case, Hollingsworth v. Perry, the plaintiffs challenge California’s voter-adopted ban on same-sex marriage (Proposition 8), and in the other, United States v. Windsor, the plaintiffs contest the federal Defense of Marriage Act (DOMA), which prevents any agency of the United States from recognizing same-sex marriage for purposes of federal law, even in instances (such as that presented by Windsor) where the state in which the same-sex couple resides itself recognizes the same-sex marriage.

On the merits, both cases involve complex issues of liberty, equality, and (perhaps) federalism. Yet both cases also present tricky procedural obstacles that might dissuade (or prevent) the Court from reaching the merits. In the Proposition 8 case, the key procedural question is whether the sponsors of the Proposition 8 initiative have standing under Article III of the U.S. Constitution to defend the measure against constitutional challenge in federal court where, as here, the state elected officials who would normally be expected to defend state laws (the California Attorney General and Governor) have, in this instance, declined to do so. I have written extensively before (most recently here) about why, even if in some circumstances initiative sponsors should be conferred standing in federal court, I feel that there are good arguments that the Proposition 8 sponsors were never deputized by the voters of California, and thus should not enjoy federal standing in the present case. In the space below, I analyze the standing issue presented in the DOMA case.

The Background of the Windsor Case in the Lower Courts

Same-sex couple Edith Windsor and Thea Spyer were married in Canada and then moved to New York, where their marriage was recognized as valid. After Spyer passed away, Windsor sued the United States in federal district court to challenge the federal estate tax that she owed on account of the federal government’s failure (pursuant to the DOMA) to recognize her marriage under federal law. (Had the federal government considered her marriage valid, Windsor would have been entitled to the marital exemption to the federal estate tax.)

Not long after the suit was filed, the U.S. Attorney General notified Congress that he and the President had concluded that they agree with the position taken by Ms. Windsor, that DOMA is unconstitutional. The Attorney General stated that the United States would, however, continue to enforce DOMA until it is repealed or definitively declared invalid by the courts.

Because the Justice Department had made clear its intent not to defend DOMA in court challenges (even as it continues to enforce the terms of DOMA), an organization known as the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) sought to intervene as a defendant in the Windsor case in order to present a defense, on behalf of the DOMA and the House, to Windsor’s challenge. The district court ultimately allowed BLAG to intervene in the case, and then ruled in Windsor’s favor on the merits. The Department of Justice and BLAG both appealed to the United States Court of Appeals for the Second Circuit, although the DOJ continued to assert its agreement with Ms. Windsor on the merits of her challenge. The Second Circuit affirmed the district court on the merits, and the Department of Justice asked the Supreme Court to take review. The high Court granted review, but in so doing asked for briefing on whether BLAG is a proper party in the case under Article III of the federal Constitution and (if not) whether the agreement between the plaintiff and the United States government on the merits of the lawsuit prevents the Court from rendering an opinion on those merits. The Court then appointed law professor Vicki Jackson of Harvard to provide briefing on these questions of standing and justiciability.

An Analysis of the Arguments Advanced in Professor Jackson’s Brief

Professor Jackson filed her brief a few weeks ago, in which she argued that BLAG does not enjoy standing in federal court to defend the DOMA, and that in the absence of BLAG, the agreement between the U.S. government and Windsor should prevent or disincline the Court to address the merits of the dispute. (Of course, BLAG will respond with its own brief.)

As to the crucial question of BLAG’s ability to defend the DOMA when the executive branch won’t, Professor Jackson correctly identifies the 1983 Supreme Court case of INS v. Chadha as a key precedent in the area. There, the Court permitted the House and Senate to defend the federal statutory device known as the “legislative veto” when the federal executive branch refused to defend the device against constitutional challenge by a private person. A legislative veto is a mechanism by which one or both houses of Congress can, without involving the President, effectively block executive branch action after it has been taken but before it has gone into effect. In Chadha, the challenger and the federal executive branch both believed that the legislative veto gave Congress authority beyond what the Constitution conferred, and in so doing violated the principle of separation of powers. (On the merits, the Supreme Court agreed with the challenger and the executive branch, and invalidated the legislative veto in question there.)

Professor Jackson argues that the ability of the House and Senate to defend in Chadha is distinguishable from BLAG’s ability to defend in the DOMA case, for three reasons: (1) the statute being challenged in Chadha was one that conferred on each house of Congress particular powers (the ability to veto executive actions), and so Congress had a “special legislative prerogative” in defending the legislative veto, above and beyond the interest Congress has (presented by BLAG) in defending all congressional enactments; (2) both Houses of Congress participated in Chadha, whereas BLAG, at most, represents only the House of Representatives; and (3) in Chadha, pursuant to a federal statute, each house of Congress explicitly authored its chamber’s participation in the lawsuit, whereas there is no federal statute authorizing the House to participate, and the House of Representatives itself did not explicitly authorize BLAG to represent it until after the lower court had already processed Ms. Windsor’s case.

The first distinction is quite interesting. On one hand, the executive branch is in a particularly awkward position when it is asked to defend a statute that is not only arguably unconstitutional, but unconstitutional precisely because it invades the province of the executive branch vis-à-vis the legislature. In such circumstances where there is an institutional conflict of interest, it may be hard for the executive branch to give a robust defense, and we may not want to encourage the executive branch to defend the statute in a half-hearted way, but instead encourage (by allowing Congress to defend itself) the executive branch to stay out of the dispute altogether. (Notice that for these purposes, I am refining Professor Jackson’s first proffered distinction to focus not on the aggrandizement of congressional powers, but rather on the invasion of the executive’s powers. If Congress, for instance, tried to assert new powers to veto actions of the judiciary, the executive branch would not be placed in an awkward position, and so I think that the justification for congressional standing would be weaker than in Chadha, even though both settings might technically satisfy Professor Jackson’s criterion of the presence of a special legislative prerogative.)

On the other hand, Congress’ interest in having its laws defended certainly is not limited to those laws that specially empower Congress; many statutes that regulate or empower persons outside of Congress are very important to the congressional agenda as well. Moreover, four years after Chadha—in a case in which the Supreme Court held that a state legislature enjoyed standing in federal court to defend a measure when the state executive branch declined to do so, Karcher v. May—the statute at issue had nothing to do with expanding legislative powers, but instead required public schools to observe a moment of silence (which challengers argued violated the Establishment Clause of the First Amendment).

Professor Jackson tries to deal with Karcher on this point by asserting that because federal separation of powers principles “do not necessarily apply to the organization of state governments, judicially cognizable injuries for congressional and state legislators may differ.” It is true that state constitutions may permit state legislatures to do things that Congress cannot, but if the question is—as Professor Jackson rightly says it is—whether a legislature has any distinct interest that it is allowed to vindicate in federal court, Karcher does make it harder, though perhaps not impossible, for the Court to draw the first distinction that Professor Jackson offers.

Professor Jackson’s second and third bases for distinguishing Chadha are cleaner, I think. The second distinction—the need for both Houses of Congress, and not just one, to be involved before legislative standing is allowed—does draw support from the facts of Chadha (and those of Karcher, for that matter, where the leaders of both chambers of the New Jersey legislature intervened to defend), and also from the fact that Article I of the U.S. Constitution vests legislative power in a single “Congress,” to be comprised of two chambers. In the DOMA context, the House has no greater interest in defending the measure than does the Senate, so that the Senate’s absence from the litigation arguably undermines the House’s claim to judicial redress.

And as to the third basis for distinguishing Chadha—the need for actual authorization of a legislative chamber before anyone can assert federal standing on its behalf—Chadha is also quite different from the present situation, because both the House and Senate in Chadha explicitly authorized participation in the lawsuit. Moreover, although Professor Jackson’s brief doesn’t discuss Karcher in this regard, Karcher (even though it undermines Professor Jackson’s first distinction) is the best support for her third distinction—that formal authorization is required. In refuting the argument that leaders of the New Jersey legislature could not assert legislative standing because they were not authorized to do so, the Court in Karcher explicitly discussed how New Jersey law empowered the leader of each chamber to represent the body in court, and pointed out that the participation of the legislative leaders in that case was premised on that legislative authorization. Thus, in perhaps what is the Court’s most extensive discussion of legislative body standing (more elaborate than anything the Court said in Chadha), the Court indicated the need for authorization by the body in question for that body to participate. This is particularly important, because the Court has often observed that what it has done with regard to justiciability issues in past cases is much less important than what it has said when it was explicitly addressing such issues.

As an aside, I note that in concluding in Karcher that New Jersey law authorized the legislature to participate when the executive branch isn’t defending, the Court cited a New Jersey case that really didn’t support the U.S. Supreme Court’s conclusion: the New Jersey case that was cited involved the legislature participating alongside the executive branch, not in lieu of it, in defending a state statute. But even if the U.S. Supreme Court’s reading of New Jersey law was flawed, the important point here is the Court’s insistence that there be legislative authorization before legislative body standing can be permitted. And, in the present case, as Professor Jackson points out, the House’s formal approval of BLAG’s representation of it did not come until very late in the day—indeed, after the Supreme Court had granted cert. Moreover, there is no federal statute, akin to the state law the Court found to be present in Karcher, that authorizes the House to be involved at all.

How Will the Court Resolve the Issue of BLAG’s Standing or Lack Thereof?

 None of this is to say Professor Jackson’s arguments will necessarily carry the day. As noted above, BLAG will have a chance to present its counterarguments. Moreover, because the Supreme Court itself hasn’t been careful and/or fully explanatory in cases in which it has permitted individuals outside the executive branch to defend congressional statutes when the executive branch won’t, the Court is writing on a slate with some support on both sides of the ledger, and that gives it some wiggle room to support a decision either way.

 For example, in Dickerson v. U.S., the federal executive branch and the criminal defendant both agreed that the statute on which the Court of Appeals had relied was unconstitutional, and the judgment below should be reversed. And yet the Supreme Court nonetheless reached the merits of the case, by appointing a law professor to write a brief defending the statute. It is true, as Professor Jackson points out, that Dickerson (unlike Windsor) was not a case in which the United States sought Supreme Court review, but the fact remains that the Supreme Court in Dickerson resolved the merits of the dispute, without ever explaining why a “case or controversy” within the meaning of Article III was in existence at the time of its ruling, in light of the fact that both parties agreed that the law was unconstitutional and that the result below was wrong.

Another case that creates additional murkiness is the 2011 decision in Camreta v. Greene, in which the Court said that individual executive branch government officials had standing to appeal a decision by a lower court that had ruled in their favor on a damage claim against them, but that had also found their actions unconstitutional, because the officials had a cognizable interest in being able to perform their public duties unburdened by a wrongheaded judicial ruling. If individual executive branch officials (as distinguished from the executive branch representing the government more generally) have such an interest in being able to do their jobs the way that they want to and think is permissible, then why shouldn’t individual legislators or legislative chambers have the same interest? Members of Congress want to be able to do their jobs—vote on bills—without being affected by wrongheaded judicial rulings, and yet individual members of legislatures clearly have no standing. In short, the Court has not been clear or coherent in this corner of standing law, any more than it has in the overall doctrine of Article III standing. (Indeed, the Court has never adequately explained what the specific objectives of standing and other justiciability doctrines should be, and instead has offered only vague invocations of separation of powers.)

Still, this softness in standing doctrine may be something that the Court can use to its advantage. My guess is that the Court is not particularly eager to take up the merits of the DOMA case and has granted review only because a few federal appeals courts had held the DOMA invalid. By contrast, had the lower courts upheld the DOMA, I would have been surprised to see the Court grant review. The Court’s disinclination to resolve the DOMA merits may stem in part from the fact that—unless the Court were to strike down the DOMA purely on federalism grounds, as the First Circuit seemed to do—any ruling either upholding or invalidating the DOMA would likely have significant analytic implications for the laws in all the dozens of states that ban same-sex marriages. And the Court may not want to resolve the legality of all these state laws until more states come to rest on this question. (That is why the Court may be similarly hesitant to resolve the merits of the Proposition 8 case.) For these reasons, I won’t be surprised if the Court (or a large enough number of individual Justices on the Court) effectively defers these cases and avoids issuing dispositive rulings on the merits using the flexible justiciability doctrine. Such a move may buy the Court only a few years, but on this social question in particular, the pace of change across the national landscape has been remarkably rapid.

February 1, 2013

The No Budget, No Pay Bill, the Twenty-Seventh Amendment and the Debt Ceiling

From Justia's Verdict.

In this column, I explore what might be learned from the decision by the House of Representatives last week and the seemingly imminent (as of this writing) decision of the Senate this week to pass a bill that seems on its face to directly violate the clear text of the Constitution.

The No Budget, No Pay Bill and the Text of the Twenty-Seventh Amendment

The bill, one part of which temporarily suspended the debt ceiling, included another part referred to as the “No Budget, No Pay Act of 2013.” (I shall refer to it here as the “NBNP bill” or “NBNP proposal”). This latter part of the bill, which kicks in on April 16, prevents any member of Congress in a House of Congress (i.e., the House of Representatives or the Senate) from receiving her or his federal salary until the House of which s/he is a member adopts a budget, or until the last day of the 130th Congress (January 3, 2015), whichever comes first. In essence, the bill withholds salary from all members of a House during the time the house has failed to produce a budget.

On the face of it, the idea has some appeal. Why should federal legislators get paid until they do what most everyone would think is one of their most important parts of their jobs? Of course, some critics will say it is unfair or unwise to punish all members of a legislative body if only some members are causing an impasse. And withholding salary creates disparate impacts along class lines (independently wealthy legislators don’t rely on their salary for living expenses anyway) and also perhaps (because class and race are correlated) racial lines. But no punishment/incentive-creation is perfect, and this legislative proposal is certainly in the American mainstream as concerns precision.

But here’s the problem: The Twenty-Seventh Amendment (proposed in 1789, but not ratified until 1992) says: “No law, varying the compensation for the services of Senators and Representatives, shall take effect, until an election for Representatives shall have occurred.” That is, no law changing the compensation of members of Congress can be put into operation until after the next Congressional election has taken place.

At first blush, the textual argument against the NBPA bill seems to be a slam dunk. But what about the provision that gives all House and Senate members all of their withheld salary on the last day of the 130th Congress (January 2015), even if no budget has been passed by then? This provision was included, according to the text of the bill itself, “to ensure that this [law] is carried out in a manner that shall not vary the compensation of Senators or Representatives in violation of the twenty-seventh” amendment. Does it save the Act from 27th Amendment challenge?

I don’t see how it could. Assuming that federal legislators are currently paid bi-weekly or monthly, the NBNP proposal could mean a delay of almost two years for receipt of the salary earned in spring of 2013 (from April 2013 until January 2015). Given the time-value of money, such a delay would seem to change, or vary, the compensation a person receives. We all know that when it comes to paying or receiving cash, the “when” is an important factor in determining the “how much.” (For instance, if a person were due $150,000 in December 2013 and did not receive the money until April 2015, she would have lost, even in the current low-inflation, low-interest-rate environment, something more than $2,000.) Even if there is no constitutional entitlement of members of the House and Senate to be paid pursuant to any particular pay-period timeline, there is already a statutory prescription of a certain pay period in place, and changing that pay-period so drastically has to be understood as “varying the compensation.”

Indeed, if deferring the compensation by almost two years is not “varying” it, then why couldn’t Congress defer members’ compensation for 20 years? There is nothing magical, within the words of the 27th Amendment, about the expiration of the 113th Congress. Either changing the pay period and altering in a non-trivial way the date on which the money is received is varying compensation, or it is not. And yet who among us would deny that if the NBNP proposal had deferred compensation for 20 years if a budget was not passed by a certain deadline, such an approach would run afoul of the 27th Amendment?

Perhaps a few other hypotheticals will drive the point home. Imagine that Congress at the end of 1980 (when interest rates were well into the double-digits) amended then-current law to say that all pay for an entire session of Congress (two years’ worth) shall be received by each federal legislator on the first day of the new Congress? Does anyone think that this effective increase in pay (accomplished by giving legislators access to the money earlier, rather than later) would not constitute a compensation increase that would trigger the 27th Amendment?

Or imagine that Congress passed a law providing that, going forward, federal judges have to wait for 20 months to be paid for judicial services rendered. Would anyone doubt that such a law violates Article III, which says that “[c]ompensation [for federal judges] shall not be diminished during their Continuance in Office.” Indeed, even a statutory discontinuance of yearly cost-of-living adjustments for judges might constitute a change in compensation, whether or not cost-of-living adjustments are constitutionally required in the first place.

Now the NBNP bill might be more defensible if the money in the escrow account were earning interest that was also supposed to be given to each legislator when the salary payment was ultimately made. If so, the key questions would include whether the interest that each legislator ultimately received fully compensated him or her for the inability to use the money earlier—for example, whether the interest earned made up for any interest that the legislator might have had to incur on a loan taken out to pay living expenses during the interim. Even then, the hassle of a legislator who was not wealthy having to procure an alternative cash flow on which to live until the escrow funds were paid may constitute a variance in compensation. But we needn’t even consider such complexities because the bill does not provide that the funds in escrow can earn any interest to be paid to the legislators, and indeed says that the “remittance with respect to a [salary] payment deposited in [the] escrow account” shall be the “same [as] would apply . . . if the payment were not” ever placed in escrow, suggesting that only the salary itself (and no earnings on it) can be distributed to the legislator down the road.

Let me proceed on the view (whether or not I have convinced everyone that this view is correct) that the NBNP bill violates the plain terms of the 27th Amendment. What does it mean, about the Congress or about constitutional interpretation more generally, that federal legislators would pass this bill?

A (Hypocritical) Rejection of Textualism

Last week’s House vote may tell us that many conservative members of that chamber (and conservatives voted for the bill in much higher numbers than liberals) are somewhat hypocritical in their views on constitutional interpretation. Although each member of Congress certainly has his or her own nuanced understanding of the Constitution, the model for constitutional interpretation for many conservatives on Capitol Hill is Justice Scalia, who is well known for his commitment to textualism—to applying the text of the document as “intelligent and informed people of the time” of the document’s enactment would have. Under Scalia’s approach, the meaning that counts is “the original meaning of the text”—“how the text of the Constitution was originally understood” by interpreters of the day. What the original draftsmen (that is, the people who actually wrote the words) subjectively intended might be evidence of what the words meant at the time, but any divergence between the drafters’ subjective intentions and the most likely understandings of those words at the time of enactment would be resolved in favor of the latter.

It’s hard to imagine that the word “vary” meant anything different to intelligent readers in 1787 than it does today—to change or alter in any direction. Indeed, the 27th Amendment is one of the most textually straightforward provisions in the Constitution, unlike provisions such as those guaranteeing “due process” or concerning the”taking” of property, which appear to use terms of art.

To be sure, someone might argue that “varying” really should be understood to mean “increasing,” because the primary concern on the minds of the framers was preventing Congress from increasing its own salary and benefitting from that increase before the voters could throw the bums out. But the Constitution uses (a form of) the word “vary,” rather than the word “increase.” And the framers knew how to specifically describe salary raises. In Article I, Section 6, for example, the Constitution refers to offices “the emoluments thereof [which] shall have been increased. . .” Thus, the choice of the word “vary” in the 27th Amendment seems quite deliberate, and quite clear.

I should note also that one could easily imagine why the 27th Amendment’s framers wanted to safeguard against certain salary decreases as well as increases. Suppose, right after an election, a lame-duck Congress run by one party rams through a law drastically cutting Congressional salaries because the opposing party will be taking over Congress in a few weeks and the outgoing party wants to deprive the newcomers of money on which they can live while governing. The new Congress would be put in the awkward position of having to “increase” their own salaries right after they take office, simply to restore the salaries to their previous, unmanipulated, levels. Let us put aside the political difficulties of the new members of Congress trying to increase their salaries to the former levels (and we saw in the fiscal cliff machinations earlier this year that it matters, politically and rhetorically, whether someone is technically “raising” taxes—or salaries—even if the raise is simply a restoration). If the 27th Amendment used the word “increasing,” rather than “varying,” the unfair actions of the lame-duck Congress would be permitted, and any attempted restorative increase by the new Congress (even if politically viable) would not be able to take effect for two years because it would technically be an increase; as a result, the newcomers in Congress would be deprived of a fair wage for at least two years. By using the word “varying,” the 27th Amendment prevents this—and other partisan or discriminatory—salary reductions in the first place.

And in any event, such arguments about legislative purpose that are in tension with the clear text take us far away from the anchor of the words that Justice Scalia and other textualists (rightly) argue must constrain us. (In a similar fashion, arguing that a 30-year old should be eligible for the Presidency today because Article II’s requirement that Presidents must be at least 35 was included simply to ensure that Presidents are mature, and 30-year olds are mature today, would have little traction in light of the clarity of Article II’s words.)

Another Possible Inference: Congress Doesn’t View Its Job as Interpreting and Complying With the Constitution

Another reading of this episode may be that members of Congress do not view it as their jobs to decide constitutional interpretive questions when they pass laws; instead, that is for the courts to do. Certainly some other folks in the political branches seem to have taken that position in recent decades. Former President George Bush, for example, signed into law the McCain-Feingold Campaign Finance Reform Act, even though he thought the bill contained “provisions [that] present serious constitutional concerns” and “questions [that will] arise under the First Amendment,” and in spite of the fact that he had “reservations about the constitutionality of the broad ban on issue advertising.” In defending his decision to nonetheless sign the bill into law, President Bush said: “I expect that the courts will resolve the[] legitimate legal questions as appropriate under the law.”

Certainly not all Presidents think that constitutional interpretation is reserved only for the Courts. Andrew Jackson didn’t, Abraham Lincoln didn’t, and Barack Obama does not, as evidenced by his decision not to have his Justice Department defend the Defense of Marriage Act (DOMA) in federal court based on his belief that the statute is unconstitutional.

For me, it is hard to think that the job of a member of Congress does not include interpreting and complying with the Constitution. Every House member and Senator is required by the Constitution to take an oath to defend it as the Supreme Law of the Land, and many of the (compelling) arguments that Chief Justice John Marshall advanced in the famous Marbury v. Madison case justifying the power and duty of the federal courts to independently obey their understanding of the Constitution apply to the legislative branch as well.

A Protest Vote?

What if the folks in Congress know that the NBNP bill is unconstitutional, but do not care, because they want to send a political message? Sometimes it seems Congress does pass a law that it knows or expects that courts will not enforce, simply in order to express a particular view. For example, shortly after the Supreme Court struck down a Texas law banning flag burning as violative of the First Amendment in 1989, Congress passed a very similar federal ban on flag burning to show support for the flag. Although some members of Congress might have (wrongly) believed that the federal law was distinguishable from Texas’, others might simply have wanted to vent their strong feelings against a Supreme Court interpretation of the First Amendment with which they disagreed.

Even if venting one’s feelings against the Court’s judgment might make sense in some settings and at some level be legitimate, in the case of the NBNP proposal, the Congress – to the extent that it is venting its feelings here – would be venting against the words of the Constitution itself, rather than some judicial interpretation of them. Surely a more responsible form of protest would be a resolution decrying the limits of the 27th Amendment, or a well-crafted proposal to amend the 27th Amendment to permit (at least certain) immediate congressional pay decreases.

Where do things go from here? Assuming the Senate does pass the bill in its present form and it becomes law (either because the President signs it, or because his veto is overridden), someone in Congress who needs or wants her pay will likely bring suit. A legislator who has decided not to run for reelection in Congress in the future might be the ideal plaintiff; other plaintiffs may be deterred from suing for fear that their election opponents down the road can make use of their boldness in suing to be paid without having accomplished their job. Because the plaintiff’s personal paycheck would be affected, she would clearly have standing to sue in federal court (under the famous Powell v. McCormack case). It is an interesting question whether a legislator would have to wait until April 16 to sue. On the one hand, until we know whether each House has passed a budget as of that date, the injury and case are arguably unripe. On the other hand, a legislator might plausibly claim even before then that she does not want to feel influenced to vote for a budget bill simply to avoid losing some money to which she is constitutionally entitled.

Assuming that a federal court were to hear the case on the merits and agree with the straightforward reading of the 27th Amendment that I have advanced above, the real question would then come down to remedy. What should a court confronting the Act do? The bill in its present form does not seem to include a provision that provides for “severability,” that is, the idea that even if the NBNP part is invalid, the part suspending the debt ceiling still remains in force. Perhaps a court would find the two parts to be independent of each other, and save the debt-ceiling suspension, but it is remarkable that the House would not only pass a bill parts of which seem blatantly unconstitutional, but then also make no mention of whether the other parts should survive or not. One would hope for a more careful and serious job of drafting to have occurred when the stakes are so high.