Communicating with Congress

IU Law's Prof. Gerard Magliocca spoke to the Federalist Society in Indianapolis yesterday on "The Chief Justice on Capitol Hill: Opening a Dialogue Between The Branches." This post summarizes his remarks and offers a caveat.

There are concerns about the relationship between Congress and the federal courts. True, tensions are relatively minor compared to days gone by, not least because tensions tend to run highest when one faction has control of the political branches and the judges are perceived as being of another faction; but they are there nevertheless. In the main, however, they result from what Congress has failed to do rather than anything they have done.

Two examples crystallize the point. The better known is judicial pay; judges' pay is tied to Congress' pay, see generally 2 U.S.C. § 362(3)(A), and Congress finds it politically inexpedient to raise its own salary. This problem, "ignored far too long" and now posing "a constitutional crisis that threatens to undermine the strength and independence of the federal judiciary," according to the Chief's 2006 Report, is long-running1 and unlikely to be resolved this year. The less obvious stressor is immigration appeals. According to Magliocca, after 9/11, DoJ decided to streamline their processes, and reduced the number of IJs who hear immigration cases under the (to my mind utterly perverse) theory that this would speed up the process of deporting dangerous or undesirable persons. But this has led to a situation where the Board of Immigration Appeals, for want of resources, has become something of a rubber stamp, affirming (or less frequently reversing) with a one-word order. Since aliens ordered deported can appeal to the relevant federal court of appeals,2 the Seventh and Ninth Circuits in particular have been deluged by such appeals,3 often in cases where the record is sparse and the reasoning for the decision being reviewed is less than pellucid. The political branches have totally failed to address this problem, not least because it ties in to immigration more broadly, which is a controversial issue, and I trust we all remember Sir Humphrey's explanation of what that means.

Both issues are harmful to the judiciary in the long run, for obvious reasons. (The problems brought up by pay requires little explanation, but for those who want to know more, the Chief Justice made the case in his end-of-year report linked above; as to swamping the courts with immigration cases, to understand that federal courts are a scarce resource is to understand the problem.) But how can they be dealt with? One judge told Magliocca: we can write opinions identifying problems. We can even suggest solutions. But is Congress listening? Put another way, when the Supreme Court decides a case, it tends to have a high enough profile that Congress will act (an example of this, presumably, would be Congress' attempt - only partially successful4 - to nullify Employment Div. v. Smith5), but members of Congress do not generally read the opinions of the Federal Courts of Appeals and may therefore be unaware of brewing concerns. How can such matters be put onto Congress' radar?

One solution, Magliocca suggests, is to have some kind of commission - perhaps composed of retired judges - that could serve as a bridge between Congress and the courts. But we already have a better model, he thinks, in how the Federal Reserve interacts with Congress. The Chairman of the Fed is directed by statute to testify to Congress twice per year, including answering questions. That requirement came about because of similar concerns to those at issue here: there wasn't a good way for the Fed to talk to Congress, to communicate its concerns to Congress, and vice versa. Magliocca suggests that the Chief Justice - who is ex officio the Chairman of the Judicial Conference of the United States - could do much the same thing: appear before Congress regularly to testify and answer questions, raising matters that concern the federal judiciary. (Of course, the Fed isn't a coequal branch of government, so its Chairman can be summoned by statutory command in a way that the Chief can't - if the President decided to resurrect the practice of Presidents Jefferson through Wilson of sending the State of the Union report to Congress in writing, Congress couldn't force her/him to appear - so this would have to be a voluntary arrangement.) Granted some issues would have to be off-limits - issues involving pending cases and so forth - but some issues have to be off-limits when the Fed Chairman testifies, and those hearings are still useful.

Members of Congress who were present at an earlier presentation of this speech were asked their views and expressed concerns that a public hearing might encourage a circus (a point that's hard to refute in view of the recent trend of confirmation hearings) and discourage candor; perhaps, they suggested, a closed session or informal visits would be more productive. Perhaps so; I tend to think that informal visits would be beside the point, which is to share information with Congress rather than individual members who might glean much the same insights at a well-attended cocktail party. Closed sessions? Magliocca has no particular objection to that, and wraps with the suggestion that such might be acceptable if there's no public benefit from open hearings (presumably live on CSPAN) that would outweigh the risks. But he does suggest that part of the draw of having the Chief go up to the Hill to testify is that it would garner media attention, thus raise the profile of the concerns being raised, and thus (at least potentially) increase the pressure on Congress to resolve the issues and concerns.

The assumption that underlies the concept of the Chief Justice of the United States becoming, qua Chairman of the Judicial Conference, the Chief Lobbyist of the Federal Courts is that Congress fails to act because it doesn't know or understand the concerns of the courts. Most of the questions, all of which were good and most of which had a good answer, dealt with issues arising within that paradigm. But my first and foremost response would be that this assumption isn't necessarily accurate, and if the reason Congress has failed to act isn't that it's unaware, it becomes less clear whether it's helpful for the Chief to go to Congress to testify. I suggest that it may well be that Congress fails to act because it's incapable or just plain uninterested.

Those shouldn't necessarily be read as disjunctive; lack of interest is one reason why Congress may be incapable of acting. By phrasing the point in terms of Congressional incapacity, I mean to make clear that there are a wide range of reasons why Congress may fail to act even if it's fully aware of a problem. One reason might be the sort of institutional incompetence that (I take it) Prof. Clark was talking about recently. Another reason, one that Magliocca noted, is that a subject is politically poisonous; raising judicial salaries and changing deportation process play into larger controversies. But another reason - closely related, I concede, to lack of interest - is that Congressional attention is a scarce resource, and there may be a lack of sufficient interest to overcome competing demands on time. That's exemplified by a point raised by Justice Stevens earlier this term: "the logic of the 'special force' of stare decisis in the statutory context is that 'Congress remains free to alter what we have done.' But the amendment of an obscure statutory provision is not a high priority for a busy Congress, and we should remain mindful that enactment of legislation is by no means a cost-free enterprise."6 Furthermore, if we discard a unitary conception of Congress, wherein the institution as a whole (or at least the majority party) has a level of interest in a piece of legislation, but places it lower on the pecking order than more pressing concerns, for Congress as an institution to be interested in an issue in the first place, there are several critical threshold numbers of individual members who have to be interested to get the issue into play and move it through the process. Some members may be extraordinarily interested in resolving a given issue, but there may simply not be enough members to move a bill out of committee and through the legislative process.

Another way to look at this is through the prism of the reaction to Ledbetter v. Goodyear,7 last term's flagship Title VII case (our earlier coverage of which starts here). In that case, the court concluded that the filing period for a Title VII claim runs from the discriminatory action, and the ministerial duty of issuing a paycheque - rather than the decision setting the value of that paycheque - is not a "discrete act of discrimination." That result, in my view, was inescapable given the way that the statute was written, and that's not vitiated by the dissent's observation that such a rule is out of step with the realities of workplace; there's no rule of construction that says that the Court should correct Congress' homework when a statute's language fails to achieve its "broad remedial purpose," as the Ledbetter dissent put it, and nor could there be.8 Nevertheless, such a construction was politically unpopular, and at least arguably, the dissent was correct about the equities involved, albeit shockingly mistaken about statutory construction 101. Apropos, after the case was decided, "Democrats and legal groups on the left ... [did] their best to make Ledbetter a cause celebre." "We cannot allow this injustice to continue for other workers" said Rep. George Miller (D-Cal.). "Unless Congress Acts, this Supreme Court ruling will have far-reaching implications for women, and will gravely limit the rights of employees who have suffered pay discrimination based on their race, sex, religion or national origin. All Americans deserve equal pay for equal work and it is our responsibility to get this right," said Senator Clinton (D-NY). Despite the storm of noise and promises of nullification that greeted the decision, ten months later Congress is still sitting on its hands. HR 2831, the "Lily Ledbetter Fair Pay Act," was introduced, passed the House, and hit a blank wall of indifference once poured into the cooling saucer of the Senate.9 Concededly, none of this means that Congress won't act, but the chances aren't looking good. Congress is composed of politicians, and politicians are generally far more interested in looking concerned than taking action (compare the last paragraph of this post).

In any event, the point is merely that there are a broad range of reasons why Congress may not act to resolve a problem that don't have to do with ignorance. That doesn't necessarily mean that there's no use in the Chief testifying; it might put pressure on Congress to act on problems they're aware of, for example.

1. 1. Cf. Richard Posner, The Federal Courts: Challenge and Reform 21-36 (1996).
2. 2. "Relevant" being shorthand here for the "judicial circuit in which the immigration judge completed the proceedings," 8.U.S.C. § 1252(b)(2), or the D.C. Circuit specifically if removal was sought under 8 U.S.C. § 1533, see 8 U.S.C. § 1535(a)(1).
3. 3. To quantify that a little - if not exactly systematically - at time of writing, the Seventh Circuit's website lists 51 opinions issued in the last month, of which eight (Tchemkou v. Mukasey, Khan v. Mukasey, Negrete-Rodriguez v. Mukasey, Jimenez Viracacha v. Mukasey, Hussain v. Mukasey, Gao v. Mukasey, Escobar-Barraza v. Mukasey, and Haxhiu v. Mukasey) are BIA appeals.
4. 4. Compare City of Boerne v. Flores, 521 U.S. 507 (1997) with Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).
5. 5. 494 U.S. 872 (1990).
6. 6. John R. Sand & Gravel v. United States, 552 U.S. __, __ n.5 (2008) (slip op. at 5) (Stevens, J., dissenting) (citation omitted).
7. 7. 127 S. Ct. 2162 (2007).
8. 8. See Frank Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J. L. & Pub. Pol'y 59, 63 (1988):

   the original intent approach to legislation ignores the fact that laws are born of compromise. Different designs pull in different directions. To use an algebraic metaphor, law is like a vector. It has length as well as direction. We must find both, or we know nothing of value. To find length we must take account of objectives, of means chosen, and of stopping places identified.

   See also Rodriguez v. United States, 480 U.S. 522, 525-6 (1987) (per curiam):

   [N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice - and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law.

9. 9. Its putative companion bill was introduced on 7/20/07, referred to committee, and apart from tepid hearings in January has been largely ignored.