The Elgin Case is a Cornucopia of Fed Courts Issues

By Mike Dorf

My latest Verdict column discusses the Supreme Court's decision on Monday in Elgin v. Dep't of Commerce.  By a vote of 6-3, the Court held that constitutional challenges to an administrative agency's dismissal decision must be brought before the Merit Systems Protection Board (MSPB), along with any statutory or other claims, rather than as freestanding claims in federal district court--even though the MSPB interprets its own jurisdiction as not extending to constitutional challenges.

In the column, I raise questions about two issues with respect to which there is agreement between the majority (written by Justice Thomas and joined by CJ Roberts and Justices Scalia, Kennedy, Breyer, and Sotomayor) and the dissent (written by Justice Alito and joined by Justices Ginsburg and Kagan). The two points of agreement are: 1) that administrative agencies generally should not address facial constitutional claims; and 2) that a law which stripped all federal courts of the power to hear a category of constitutional claims would be unconstitutional.  As I explain in the column, both propositions are controversial, and they are implicated, respectively, in the controversies over President Obama's decision not to defend the Defense of Marriage Act and his targeting of U.S. citizens for drone attacks based on solely executive process.

Because the column aims to reach a general readership, it necessarily glosses over some of the finer details of the case.  But a closer examination of the Elgin opinion reveals it to be a veritable cornucopia of federal courts questions.  And I mean "examination" literally.  Had the case been decided six weeks earlier, I might have simply handed it out to my Fed Courts students as a final exam with the one-word prompt: "Discuss."

Readers who find Fed Courts fun (and really, is there anybody who doesn't find Fed Courts fun?!), will see that the two main questions raised in my column respectively implicate two of the deepest mysteries in the subject area: 1) To what extent is judicial authority to interpret the Constitution exclusive of such authority within the political branches?  And 2) When, if ever, is there a constitutional right to a judicial forum?  With respect to the latter question, I say in the column that because Article III of the Constitution gives Congress substantial latitude to tinker with the jurisdiction of the federal courts, it is hard to justify finding in Article III a constitutional right to a federal judicial forum for constitutional claims.  That is true, so far as it goes, but it leaves out discussion of the two leading theories under which Article III does require a federal judicial forum.

One such theory was articulated by Justice Story in Martin v. Hunter's Lessee.  Under this view, the language of Article III mandates the vesting of jurisdiction in some federal court to hear all constitutional cases (and other federal question cases and some other cases).  Why?  Because Article III, Sec, 2, says: "The judicial Power shall extend to all Cases . . . arising under this Constitution . . . ."  Story's argument, in a nutshell, is that "shall" means "must" and "all" means "all."  Cf. The Simpsons ("Mono means one and rail means rail.")  Story's view has been revived in modern times by Akhil Amar and has a lot going for it as a matter of constitutional text, but it is much embarrassed by the Judiciary Act of 1789, which clearly did not vest federal courts with jurisdiction over all constitutional (or other federal) cases.

Another theory under which there is a right to a federal forum focuses on the Supreme Court.  This view, articulated most forcefully by Henry Hart and then, with some interesting tweaks by Larry Sager, says that Congress cannot take away the power of the Supreme Court to hear those cases necessary for the Court to perform its "essential functions" within our system of government.  A more substantial tweak within the Hart/Sager tradition came more recently from Dick Fallon and Dan Meltzer, who say that there is rarely a right to a particular forum for constitutional claims but that in general Congress must leave the courts with enough jurisdiction to keep the government within its bounds.  I am very sympathetic to this family of views, although it is hardly clear where the border is between permissible and impermissible jurisdiction stripping.  (Hart said, in his famously inscrutable 1953 Dialogue on all things mysterious, that the test for "essential functions" is no more vague than the tests the Supreme Court has made up under other constitutional provisions--and he had a damn good point.)

My column skips over the foregoing theories and heads right to the proposition that if there is a right to a judicial forum, that must be as a matter of due process.  One question would be whether a state court would be an adequate forum--and that question is puzzling because under the line of precedent going back to Tarble's Case in 1871, there are limits on the ability of state courts to issue injunctions that run against federal officials.  So there may not be any state court that can hear a case like Elgin.  Hence, a right to a judicial forum would necessarily mean a right to a federal judicial forum.

Does your brain hurt yet?  If not, consider one more Fed Courts issue raised (but barely acknowledged) in Elgin.  It involves the question of what kind of judicial review one can get of the facts underlying a federal constitutional claim.  In Elgin, Justice Thomas says the following for the majority:

Unlike petitioners, we see nothing extraordinary in a statutory scheme that vests reviewable factfinding authority in a non-Article III entity that has jurisdiction over an action but cannot finally decide the legal question to which the facts pertain. Congress has authorized magistrate judges, for example, to conduct evidentiary hearings and make findings of fact relevant to dispositive pretrial motions, although they are powerless to issue a final ruling on such motions. See 28 U. S. C. §§636(b)(1)(A)–(B); United States v. Raddatz447 U. S. 667, 673 (1980).
Fed courts gurus will recognize this statement as implicating the so-called "constitutional fact" doctrine traceable to Crowell v. Benson.  In Crowell, the Court said that where a party raises a constitutional claim, there is a right to a de novo judicial determination of the facts underlying that claim.  It's true that Raddatz cut back on the constitutional fact doctrine, but with two important qualifiers: 1) In general, magistrates and other "adjuncts" of Article III bodies have been given greater leeway than agencies on the theory that the former act in closer coordination with the Article III courts; and 2) In Raddatz, the Court acknowledged that the district judge was to make a de novo determination of the facts found by the magistrate (albeit on the basis of the evidence presented to the magistrate).  By contrast, Federal Circuit appellate review of MSPB is, by statute, the sort of deferential review of agency action one ordinarily finds in administrative law.  It's possible that the majority would say that with respect to constitutional facts, the reviewing court can make a de novo determination based on the MSPB evidentiary record, but the Court in Elgin does not come out and say that.

Accordingly, one could read Elgin as a nearly-final nail in the coffin of the constitutional fact doctrine.  That is a pretty dramatic result to accomplish just in passing.