Tuesday, January 17, 2012

Toward a Doctrine of "Constitutionalish" Laws

By Mike Dorf


In my latest Verdict column, I discuss the controversy over President Obama's recess appointments to the Consumer Financial Protection Bureau (CFPB) and the National Labor Relations Board.  When Republicans made clear that they would filibuster any of the President's nominees, he issued recess appointments, even though the Senate was still holding "pro forma" sessions.  The kerfuffle raises the constitutional question of whether the President's recess appointment power exists during such pro forma sessions.  I argue in the column that the answer to that question is not clear as a matter of constitutional law and that therefore, as a matter of constitutional politics, the right answer should depend on the underlying virtues and vices of the nominees and policies.

Here I want to propose a thought experiment inspired by the current case.  Let's suppose that, as threatened, the Republicans sue, and that they find some party with legal standing to do so.  One possible candidate would be a financial institution subject to some regulation enacted by the CFPB, arguing that a regulation applicable to it is invalid because it was adopted under the direction of Richard Cordray, whose appointment was invalid.  Let's suppose further that the Supreme Court ultimately agrees with the Republicans that Cordray was not properly appointed because the Senate's pro forma session blocked the recess appointment power.  Or suppose that the Court were to find that the appointments to the NLRB were invalid.  Does it necessarily follow that the plaintiffs in such cases would win the relief it sought?

Certainly it is possible that the Supreme Court or a lower federal court could decide that the output of an entity that was not properly constituted is, ipso facto, void.  And there is in fact a 2010 case involving the NLRB itself that does just that: New Process Steel v. NLRB.   There the Supreme Court held (as a matter of statutory interpretation rather than constitutional law), that the normally-five-member NLRB could not delegate its powers to a two-person board, because three board members are required to make a quorum.  The Supreme Court did not specify the remedy, but when the case went back down to the lower courts, they vacated the underlying order of the two-person board, sending it back to the NLRB for reconsideration once it had a quorum.

But let me emphasize that the Supreme Court majority itself did not exactly say in New Process Steel that every decision by an improperly constituted NLRB panel is invalid.  That principle might be thought to be implicit in the Court's ruling in New Process Steel: The dissenters in the Supreme Court appeared to assume it and the Seventh Circuit on remand did as well.  Yet other Supreme Court cases indicate that remedies other than invalidation of all of the output of an improperly constituted or appointed body are available.

First consider another 2010 case, Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB).  There the Court held that the double-insulation of PCAOB members from Presidential firing violated Article II, but it did not therefore conclude that everything the PCAOB did was invalid.  Instead it found that the invalid restrictions were severable from the rest of the Act.  To be sure, Free Enterprise Fund involved restrictions on the removal power, so the Court could simply grant a kind of tenure to the Board members, but the members had been appointed in conformity with the Constitution.

But now consider Northern Pipeline v. Marathon Pipe Line, in which the Court held that bankruptcy judges who were not Article III judges could not exercise some of the powers they had been granted.  The problem with the bankruptcy judges was, as in Free Enterprise Fund, related to their tenure, but the Court's remedy was not to convert the bankruptcy judges into Article III judges.  Instead, the Court said that the judges lacked the power to do what they had been doing, but that it would only enforce that rule prospectively.  Although Justice Brennan only wrote for a 4-Justice plurality, then-Justice Rehnquist added a fifth vote for the non-retroactivity holding.  Northern Pipeline could thus be taken to stand for the proposition that even when some party has been exercising federal power illegally, the remedy is not necessarily to invalidate everything that party has done.

An even more dramatic example (though obviously one that is not binding here) comes from Canada.  In the Manitoba Language Rights Case, the Canadian Supreme Court found that all of Manitoba's laws were invalid because they had not been printed and published in French as well as English, as required by the Canadian Constitution.  But rather than create anarchy in Manitoba, the Court treated the Manitoba laws as temporarily valid, while the province translated and published them.

The highly pragmatic (and sensible) actions of the U.S. and Canadian Supreme Courts in these respective cases illustrate what I would call a nascent doctrine of "constitutionalish" laws.  A constitutionalish law is unconstitutional but close enough to being constitutional that it can be treated as having some force, at least temporarily, if the costs of declaring it void ab initio would be very high.  To my mind, a law could be constitutionalish for one of two sorts of reasons: 1) It is clearly invalid but only in a technical way; or 2) It is invalid but government actors and others acting in good faith could have thought otherwise prior to the Court's ruling.  The Manitoba Language case strikes me as an example of category 1), while Free Enterprise Fund and Northern Pipeline fall into category 2).  Were the Court to find that Obama lacked the power to make recess appointments during a pro forma Senate session, that might also fall into category 2), and thus be eligible for non-retroactive application.

Of course, I realize that there is no official doctrinal category of constitutionalish laws.  Not yet, anyway!

13 comments:

tjchiang said...

Reading the column, it clarifies an exchange between us from a while ago about NPR vs. Fox News. In that exchange, you said the issue was "political all the way down" as if it ended the conversation, a point that I never understood. Now I understand (and I mean that in good faith), but I have to say that I strongly disagree with the view.

An almost universal norm across all of constitutional law is that we are looking for neutral principles. You are basically arguing against this premise. I praise you for your candor, but I think you are wrong.

There are numerous good reasons for the neutral principles norm, even if honored more in its breach in practice. I would prefer Senators to feel slightly embarrassed contradicting themselves on the filibuster, and at least make an effort (however futile) to give neutral principles. The logical endpoint fo your position--where things are, and ought to be, constitutional if Supreme Court justices like the result but not otherwise--is the very antithesis of what our legal system purports to be. I think it is a fair description of how the system actually works much of the time, but I also think there are very few people who would agree it is how the system ought to work.

Michael C. Dorf said...

Nope. I specifically say in the column that JUDGES can't admit that these issues are political and thus I describe the constitutional analysis that a court must perform without regard to the underlying policy. We seem to agree:
1)that judges in fact often will apply the nominally neutral principles in ways that are actually sensitive to their substantive policy views about outcomes in particular cases;
2) that they will never say so;
and
3) that it's normatively undesirable for judges to make these decisions in a way that consciously takes account of their policy judgments about the particular outcomes. (I don't think it's normatively desirable for judges to suppress all policy considerations, just those that are formally irrelevant, as in my example.)
Where we appear to disagree is over whether points 2 and 3 apply to political actors making constitutional judgments. That's why I talk about "constitutional politics" in the column, not just constitutional law.

tjchiang said...
This comment has been removed by the author.
tjchiang said...

Reading my prior post, it seems that I completely mangled what I was trying to say. So let me try again. (and I'll delete the mangled comment).

We agree on your three propositions, so that (a) judges will never admit when they are acting in a partisan manner, and (b) at least in an ideal world, judges will not be influenced by formally-irrelevant policy considerations (and, implicitly, that there are such formally-irrelevant considerations even if people don't completely agree on what they are).

To which I would add two more things, that I am sure you don't agree with. First, the same logic applies to non-judicial actors. Second, that the same logic applies because the moral justification for proposition (b) is a general justification.

Why do we think that judges should not be influenced by political considerations? One short answer is that, if they did, nobody would listen to what a bunch of unelected old men with no army and no purse said. In order to prevent this, judges appeal to the the constitution. But they only get that legitimacy value if the constitution is something more than itself a political document. Your premise is that everyone else should treat the constitution as a political document. The legitimacy value is therefore destroyed in every other context. I cannot see why it can then be preserved in the judicial context.

When judges appeal to the constitution, they must treat it as a neutral document, because that is the only way to gain legitimacy value from it. But when politicians appeal to the constitution, they too are trying to gain legitimacy value from it--it is the point of phrasing a point in constitutional rather than political terms--and it should be held to the same standard.

tjchiang said...

I'll add (and then leave the thread to you) one last point: My argument is that the appeal to legitimacy is the same, but obviously the success varies depending on how much the relevant actor is perceived to adhere to the neutral principles norm. Politicians get almost no legitimacy value out of constitutional arguments, because they have a terrible track record and so everyone knows it is opportunistic. Judges have something of a better track record (at least they put more effort into appearances), and thus get more value out of it.

The same is true of anybody else making a constitutional argument. A law professor who adopted your view (and you framed your argument as including "citizens," presumably including law professors) and always said his favored outcomes were dictated/allowed by the constitution would gain no audience; especially if he candidly said that he is reaching the outcome based on the policy preferences and reasoning backwards (why listen to a law professor talk about political issues?). Professor Tribe recently got much attention on the debt ceiling precisely because he argued for a neutral principle cutting against his presumed ideological sympathies, and the good policy outcome could hardly be doubted in that case, to boot. So it still seems to me that the logical endpoint of your argument, even if you disclaim it, is to destroy the neutral principles norm in all contexts, including with judges.

Ittai said...

Your doctrine of "constitutionalish" laws sounds somewhat like the the doctrine of "relative voidability," which instead of treating any unconstitutional law as null and void, allows judicial discretion in choosing the remedy according to the essence (or degree) of the unconstitutionality and to the circumstances of the case (including the degree of reliance on the statute, the extent of the reasonable expectations that it created, and the consequences that will arise from declaring it void).

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Evin Terna said...

It is clearly invalid but only in a technical way; or 2) It is invalid but government actors and others acting in good faith could have thought otherwise prior to the Court's ruling. The Manitoba Language case strikes me as an example of category 1), while Free Enterprise Fund and Northern Pipeline fall into categoryfifa coins online | cheap fifa coins | Buy The ESO Goldfifa 14 coins

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