When does the Justice Department decline to defend statutes?

Much of the flamethrowing in the blogosphere about the arguments filed by the Justice Department defending the constitutionality of DoMA concerns the extent to which Justice has the discretion not to defend a federal statute. Everyone agrees that taking such a step is extremely rare, but not unknown. I have been unable to find any DoJ document that sets out the criteria for making an exception to the rule that statutes will be defended.

What has come to my attention, though, is the following commentary posted on Balkinization by Marty Lederman four years ago. Marty was an attorney with the Office of Legal Counsel at DoJ during the Clinton administration, and he is back there now as a deputy assistant attorney general. Marty wrote this post in 2005 while he was a professor at Georgetown Law, in the context of assessing a 1990 brief filed by then DoJ attorney John Roberts. Roberts' brief declined to defend federal laws setting a preference for awarding broadcast licenses to entities with a certain level of minority ownership. The key sections from Marty's post are below; the entire post is after the jump.

As a general matter, the Department has traditionally adhered to a policy of defending the constitutionality of federal enactments whenever "reasonable" arguments can be made in support of such statutes -- i.e., whenever the constitutionality of the law is not fairly precluded by clear constitutional language or governing Supreme Court case law. This practice has been predicated on the notion that because the political branches -- the Congress that voted for the law and the President who signed it -- have already concluded that the statute was constitutional, it would be inappropriate for DOJ lawyers to take it upon themselves to reject the constitutional judgment shared by the President and the legislature.

There are, however, historical exceptions to this general practice. Almost all of the exceptions fall into one of three categories. The first category is cases in which intervening Supreme Court decisions have rendered the defense of the statute untenable. This category isn't really an "exception" to the "rule" as much as it is an illustration of how the rule operates in practice: The newly governing Supreme Court decision eliminates any reasonable argument that might have been made in the statute's defense, other than asking the Court to overrule its governing precedent (a tactic that the SG very rarely employs, but that is not unheard of, as in the second flag-burning case (Eichman), and in Agostini v. Felton). The second category involves statutes that in DOJ's view infringe the constitutional powers of the President himself (e.g., Chadha; Bowsher v. Synar). The third, and smallest, category involves statutes that the President has publicly condemned as unconstitutional. The most famous such case was probably U.S. v. Lovett, in 1946. More recently, after the first President Bush vetoed the "must-carry" provisions of a cable television bill on constitutional grounds and Congress overrode the veto, the Bush (41) Administration declined to defend the constitutionality of the must-carry provisions. (The Clinton Administration reversed this decision and subsequently prevailed in its defense of the law in the Supreme Court in the Turner Broadcasting litigation.)

A decision not to defend DoMA obviously could not be justified by either exception 1 or 2. As to the third category, although President Obama has gone on record calling for the repeal of DoMA, I am not aware of any statement by him that he believed DoMA to be unconstitutional. (Readers - please correct me if I am mistaken.)  I think that a good argument could also be made that a decision not to defend a statute could be based on well-reasoned federal appellate court decisions (below the level of the Supreme Court).  Unfortunately, no court has ever found DoMA to be invalid, although only a small number of decisions, all by trial level courts, have concluded that it is constitutional.

In short, while it is not impossible for DoJ to refuse to defend DoMA, it would be an extraordinary act for them to do so. I continue to believe that defending the statute while simultaneously contributing real muscle to a repeal effort is an understandable course for the administration to follow, even though my own belief is that DoMA fails even a Romer v. Evans rational basis test.

That said, how DoJ defends it makes all the difference. What is important now is for DoJ to file a completely rethought and rewritten brief when its response is due a week from Friday (June 26) in Gill v. OPM (the challenge brought by GLAD).

UPDATE: It is very likely that the plaintiffs in Gill v OPM will file an amended complaint this week, which will reset the clock for when DoJ has to respond. New due date for the response will probably fall in late summer.

 

From Balkinization

Thursday, September 08, 2005

John Roberts and the SG's Refusal to Defend Federal Statutes in Metro Broadcasting v. FCC

Marty Lederman

The Washington Post reports today that John Roberts was the point person in the Office of the Solicitor General in 1990 when that office decided not to defend the constitutionality of federal statutes that required minority preferences in broadcast licensing. (In fact, Roberts was the Acting Solicitor General for purposes of the case, because SG Starr had a conflict.) The case in question was Metro Broadcasting v. FCC, and it raised very interesting questions about the circumstances under which the Department of Justice will refrain from defending the constitutionality of federal statutes.

As a general matter, the Department has traditionally adhered to a policy of defending the constitutionality of federal enactments whenever "reasonable" arguments can be made in support of such statutes -- i.e., whenever the constitutionality of the law is not fairly precluded by clear constitutional language or governing Supreme Court case law. This practice has been predicated on the notion that because the political branches -- the Congress that voted for the law and the President who signed it -- have already concluded that the statute was constitutional, it would be inappropriate for DOJ lawyers to take it upon themselves to reject the constitutional judgment shared by the President and the legislature.

There are, however, historical exceptions to this general practice. Almost all of the exceptions fall into one of three categories. The first category is cases in which intervening Supreme Court decisions have rendered the defense of the statute untenable. This category isn't really an "exception" to the "rule" as much as it is an illustration of how the rule operates in practice: The newly governing Supreme Court decision eliminates any reasonable argument that might have been made in the statute's defense, other than asking the Court to overrule its governing precedent (a tactic that the SG very rarely employs, but that is not unheard of, as in the second flag-burning case (Eichman), and in Agostini v. Felton). The second category involves statutes that in DOJ's view infringe the constitutional powers of the President himself (e.g., Chadha; Bowsher v. Synar). The third, and smallest, category involves statutes that the President has publicly condemned as unconstitutional. The most famous such case was probably U.S. v. Lovett, in 1946. More recently, after the first President Bush vetoed the "must-carry" provisions of a cable television bill on constitutional grounds and Congress overrode the veto, the Bush (41) Administration declined to defend the constitutionality of the must-carry provisions. (The Clinton Administration reversed this decision and subsequently prevailed in its defense of the law in the Supreme Court in the Turner Broadcasting litigation.) (Quiz: Name the one case in which the President publicly concluded that a statute was unconstitutional and yet the SG nevertheless defended it in the Supreme Court. Hint: The SG in question was Erwin Griswold.)

What is (as far as I know) unique about Metro Broadcasting is that it appears to be the only case in recent memory that does not fall into any of these three categories. The case arose as a result of a longstanding FCC policy of awarding licensing preferences to broadcast stations having a certain level of minority ownership or participation. The FCC initiated a review of this policy under the Reagan Administration, in response to which Congress passed three appropriations riders, in 1988-1990, forbidding the FCC from using appropriated funds to examine or change its preference policies. In their signing statements, both President Reagan and President Bush raised constitutional objections to other provisions of the bills in question, but did not object to the minority-preference provisions. In a subsequent lawsuit challenging the preferences -- Metro Broadcasting -- the SG permitted the FCC to appear in Court through its own attorneys to defend the constitutionality of the preferences and the federal laws requiring them. The arguments in favor of the statutes were certainly "reasonable," especially in light of the view of several Justices in Fullilove v. Klutznick that congressionally authorized affirmative action programs should not be subject to the strict scrutiny that the Court had (in Croson) applied to state and local affirmative action programs.

The FCC Commissioners and General Counsel unanimously urged the Department to defend the statutes as well, emphasizing that the U.S. Court of Appeals had upheld the central policy and that "there is a solid foundation in the Supreme Court's precedents for the government to argue that the FCC's policies are constitutional." But, as the Post story today reports, a memo in the files of Associate White House Counsel Fred Nelson (see the back page of this) reveals that Roberts was "[r]eluctant to defend [the] commission's position." In the Supreme Court, the Department of Justice not only did not defend the federal statutes -- it urged the Court to declare them unconstitutional. Acting Solicitor General Roberts, appearing on behalf of the United States as amicus curiae, argued that insofar as the federal statutes required the FCC to continue its preference policies, they were unconstitutional. The Acting SG's amicus brief went further still: It urged the court to reject the deference to Congress suggested in Fullilove, and to apply strict scrutiny to federal affirmative action programs (a position that would, of course, restrict Congress's future legislative prerogatives -- i.e., that would substantially limit federal power).

Acting SG Roberts took this position attacking the federal enactments even though (i) there were more-than-reasonable grounds for defending them; (ii) they did not implicate the President's constitutional powers; and (iii) the President had not (publicly) indicated any constitutional objection to the provisions. (Not only had President Bush signed one of the laws -- he had also appointed three new FCC commissioners who each had expressly supported the diversity preferences in their confirmation hearings.)

The Supreme Court rejected the Acting SG's arguments by a 5-4 vote, although it would later hold in Adarand that strict scrutiny does apply even to federal affirmative action programs.

I should make clear that I although I do not agree with the substantive equal protection argument that John Roberts made in Metro Broadcasting, I do not think it was plainly inappropriate for the Acting SG to file a brief attacking the statutes, assuming the President had concluded that they were unconstitutional and that it was in the best interests of the United States that the Court apply strict scrutiny to federal affirmative action plans. What is odd about DOJ's brief in Metro Broadcasting is that the President signed the bill containing the provisions in question, and never publicly questioned their constitutionality. I think we have to assume that the White House -- that is to say, the first President Bush -- signed off on John Roberts's proposed course of action. (If the President did not do so, then Roberts's brief would, of course, be very troubling. And if the President did do so, then I do find it troubling that the President never publicly took responsibility for the decision and explained his change of mind.)

It would, in this respect, be extremely interesting to see the correspondence and memoranda between the White House and DOJ concerning the case, and to see how John Roberts convinced President Bush not only that a law he had signed was unconstitutional, but also that the Administration should urge the Court to invalidate it. However, the present Administration is resisting the request of Senators to see the Metro Broadcasting files, and therefore we may never learn the full story of this most unusual case of a DOJ refusal to defend federal laws.

In the absence of such documentation, and in light of the Nelson memo, I think it is fair to assume that it was John Roberts who was principally responsible for convincing the President to attack the constitutionality of the laws -- and to break new ground by doing so in circumstances where the Department had never before refused to defend the constitutionality of a federal enactment, i.e., (i) where the President himself had signed the law, without constitutional objection; (ii) where the Executive branch agency, led by the President's own apointees, was defending the law; (iii) where the statute did not implicate the President's own authorities; (iv) where reasonable (indeed, prevailing) arguments could be proffered in support of the statute; and (v) where the SG's arguments would, if adopted, dramatically restrict the future powers of the Congress and of the President.

As I say above, I don't think there was necessarily anything wrong (apart from the merits) with John Roberts having so persuaded the President. But if this is what happened, I think it is fair to assume this: that John Roberts himself had extremely strong, sincere views that federal affirmative action is constitutionally suspect and ought to be presumptively invalid -- views so strong that he was willing to go to the mat to persuade the President to act in such an unprecedented manner, and in the teeth of the opposition of the President's own FCC appointees. And, if it's the case that Roberts had such strong views about the constitutionality of federal affirmative action, I think we can also assume this: that his constitutional understandings and commitments are not determined by plain (or "original") meaning, or by original intent -- not that he has ever suggested otherwise.

Comments

[Diane]

I think you understate the change in the Constitutional landscape since DOMA was passed in 1996. There are strong arguments that Romer and Lawrence have rendered Section 3 of DOMA unconstitutional, and that City of Boerne has rendered Section 2 unconstitutional. A "fierce advocate" for LGBT rights would strenuously argue that these precedents make a defense of DOMA untenable. The Obama/Holder DOJ has chosen not to, in the strongest possible terms. The AG has broad discretion to decide whether and how to defend congressional enactments; California state AG Jerry Brown has demonstrated clearly what Obama/Holder could have done, but failed to do.

So much for fierce advocacy. I can only conclude that Obama is not even a friend of the LGBT community.

[Steve]

Nan, as much as I respect your analysis here, you overlook a major problem in being quite dismissive toward criticism of the brief (e.g. demeaning it as "flamethrowing"):

What will the Administration do when invited to file a brief in the case challenging the constitutionality of Prop. 8--a state law that the President has NO OBLIGATION WHATSOEVER to defend?

If the Administration files a brief arguing that Prop. 8 is unconstitutional, that it discriminates based on sex and sexual orientation, that it violates the fundamental right to marry, and that strict scrutiny applies, then I'll accept that the must-defend-federal-law rationale is something more than a convenience excuse here.

But when the Administration files the SAME BRIEF in a case challenging a STATE LAW (or files no brief at all), then the must-defend rationale will be confirmed as a politically expedient excuse.

We MUST anticipate and consider this problem before rushing to defend the DOJ here.

[Jeff]

That would work a lot better if the DOJ had not recently decided not to defend the 1994 Convention on Torture and the FOIA. Torture is constitutional? Really? Gay marriage is worth writing a brief, but torture isn't.

You could argue that Lawrence v Texas changed the landscape for DOMA. Scalia (whom I loathe to quote) even said that this could be a possibility stemming from this decision.

[Nan Hunter]

The big question here - behind all three comments - is what the role of the Justice Department should be. It is extremely rare for DoJ to argue for positions that have little or weak support in the case law if they are declining to defend a federal law. No court has ever found DoMA unconstitutional, although as I said in my main post, the number of decisions is small. Those decisions, however, were after Romer (as was the enactment of DoMA) and Lawrence. That said, however, I think there are ways to craft a VERY different brief for the Gill case (GLAD's challenge to DoMA). I think there is good reason to be hopeful that the next Justice brief on DoMA will be much better.

As for the Prop 8 cases, I think there is virtually no chance that DoJ will take any position on the constitutionality of a state law, which is fine.

[Steve]

No, Nan, the big question behind my comment was not about the role of the Justice Department. It is about the damage the Obama Administration is doing to progressive constitutional interpretation.

Antigay discrimination triggers only rational basis review under the equal protection clause? Is that the Administration's position? Do you honestly expect them to sudden call for heightened scrutiny in any other case? How can they, that would create a positional conflict? With this brief, they've signed onto a conservative, antigay interpretation of equal protection. So much for all the years of progressive scholars, lawyers, and judges trying to develop a progressive view of the Constitution!

The Reagan Justice Department inveighed against Roe v. Wade and repeatedly pressed the Court to overturn it, even though it was just as much the law of the land as DOMA.

The big question, Nan, is what is the constitutional philosophy of this White House? Is it the Federalist Society's understanding of the Constitution, or is it the ACS's understanding of the Constitution? We don't have two Constitutions: one for when the Administration wants to defend a federal statute, and one for other cases. There's only one Constitution, one Equal Protection Clause, and one answer to the question whether antigay discrimination triggers heightened scrutiny.

Is the Obama Administration more conservative on equal protection than the Republican-led Iowa Supreme Court???????

[Phoenix Woman]

Steve, here's the real question (and it's one that the people --cough*Aravosis*cough-- pimping the overheated orchestrated attacks choose to ignore):

Do you really want John Roberts adjudicating either the Smelt or the Gill briefs? Better to render them moot by Congressional action overturning DOMA, rather than allow Roberts his chance to pull a Plessy v. Ferguson and use a court challenge to strengthen DOMA.

[Steve]

I certainly agree with that, Nan. But if legislative action is not going to happen for a number of years, and no one can convince the Smelt or Gill plaintiffs (or Olsen-Boies plaintiffs) to drop their suits, we can't go into the Supreme Court with the Obama Administration arguing for rational basis review.

Yes, by all means, let the Obama DOJ argue now that Baker v. Nelson precludes lower courts from considering the marriage question. I'd have no objection to that. But the idea that the Obama DOJ would submit a brief arguing that sexual orientation-based classifications trigger only rational basis review because gays are so politically powerful, that discrimination against same-sex couples isn't discrimination at all because we can have opposite-sex partners, or that the right to privacy must be strictly limited to a narrowly defined historical tradition is extremely dangerous, isn't it?

I tend toward liberal argumentation rather than toward subordination theory, but isn't it true that the rules you describe about when the DOJ will decline to defend a law fundamentally bias the system in favor of conservative interpretations of the Constitution? Conservative interpretations usually result in defending government action by narrowing interpreting constitutional rights. No real conflict there with a conservative DOJ adhering to limited rules for declining to defend. But progressive interpretations often result in questioning government action (affirmative action aside) by broadly interpreting constitutional rights. A big conflict exists, then, with a progressive DOJ adhering to limited rules for declining to defend government action. Don't those very rules have a conservative bias?

[European Justice]

We can't hide the fact that criticism had been a problem for so long in so any countries, well besides criticism racism and injustice had been a major issue too.