In the late 1990s a bank robbery suspect named Charles Dickerson made an incriminating statement while in FBI custody. Claiming that he had not received Miranda warnings, Dickerson moved to suppress the statement at his trial. The Fourth Circuit, while finding that no warnings were given, held that the statement was nonetheless admissible under 18 U.S.C. § 3501. The Supreme Court granted certiorari to consider the validity of section 3501.
Before the case was argued, a dispute arose between Congress and the Clinton Justice Department (at that time under the leadership of Attorney General Reno, Deputy Attorney General Holder, and Solicitor General Waxman). By letter of November 1, 1999, the Attorney General informed Speaker Hastert that the Justice Department would not defend the constitutionality of section 3501. (By law the Attorney General is required to inform Congress whenever the Department declines to defend the constitutionality of a federal statute.).
In a responsive letter dated February 16, 2000 (which I drafted on his behalf), Speaker Hastert strongly objected to the Justice Department’s refusal to defend the statute. Hastert noted the Department’s longstanding position that it “appropriately refuses to defend an act of Congress only in the rare case when the statute either infringes on the constitutional power of the Executive or when prior precedent overwhelmingly indicates that the statute is invalid.” Solicitor General Waxman, in his 1997 confirmation hearings, expressly affirmed that the Department “is bound to defend the constitutionality of all acts of Congress unless no reasonable arguments can be made in support.”
As Hastert pointed out, the Justice Department’s refusal to defend section 3501 could not be justified under this standard. There was, of course, no suggestion that the statute infringed upon executive power. Furthermore, there was plainly a reasonable argument in support of the law’s constitutionality in light of post-Miranda precedent (some of which is discussed in my previous post) and the decision of the Fourth Circuit in the Dickerson case itself.
Waxman later wrote a law review article attempting to explain the Justice Department’s position in the Dickerson case. Waxman claimed that the Justice Department’s obligation to defend a statute did not apply when doing so “would require the Solicitor General to ask the Supreme Court to overrule one of its constitutional precedents.” He explained that unlike the ordinary case in which the constitutionality of a statute is at issue, the instance “when a contrary constitutional ruling is directly on point” creates a “direct tension” between “the interests of the legislative and judicial branches.” The Solicitor General, he argued, “has an obligation to honor the important doctrine of stare decisis and a duty to respect the rulings of the Court.” These obligations evidently relieved the Solicitor General of the duty to defend section 3501.
Waxman’s argument, however, makes no sense. In the first place, whether or not upholding section 3501 required overruling a “constitutional precedent” (ie, Miranda) was itself one of the key issues in the Dickerson case. The Fourth Circuit, which lacks the power to overrule Supreme Court precedent, believed that it did not. The Justice Department believed otherwise, but Waxman does not explain why its judgment in this regard should be controlling. After all, the whole point of the duty to defend is that the Justice Department will defend a statute it believes to be unconstitutional, so long as it believes it can make a reasonable argument in support of the law’s constitutionality.
In the case of section 3501, the strongest argument in support of its validity was not the Miranda should be overruled, but that post-Miranda precedent had established the non-constitutional nature of Miranda’s requirements. Under this argument, section 3501 could be upheld without overruling Miranda. Of course, this approach might be characterized as overruling Miranda by implication or, perhaps more accurately, as holding that Miranda had already been overruled by implication. But these descriptions merely highlight the fact that there is no bright-line distinction between formally “overruling” a legal precedent and other rulings by the Court that have essentially the same effect. Waxman’s attempt to carve out an exception to the duty to defend is an invitation to confusion and mischief.
Even if defending section 3501 did require the Solicitor General to ask the Court to overrule Miranda, it is not at all apparent why this should make a difference to the duty to defend. Of course, if the Solicitor General believes that there is no reasonable basis for asking the Court to overrule a particular precedent or series of precedents, the duty to defend does not require him to do so. But if the Solicitor General can make a reasonable argument that the Court should overrule a particular precedent (because, for example, the rationale of a precedent has been undermined by subsequent caselaw), it is hard to see why it shows any disrespect to the Court’s decisions to ask it to do so.
Waxman clearly approaches this subject from the perspective of judicial supremacy, i.e., namely the concept that the courts are the sole and final arbiter of constitutional questions. Indeed, he says that “under Marbury v. Madison, the Supreme Court has the final word on the meaning of the Constitution.” This is, at best, a significant oversimplification of how constitutional issues are debated and sometimes settled in our system. But even if one accepts the concept of judicial supremacy, there is something disturbing about the notion that merely asking the Supreme Court to reconsider a precedent is inconsistent with the Solicitor General’s obligations to the Court.
Equally questionable is the idea that there is a “judicial interest” in adhering to a prior decision, even an erroneous one. One would think that the Court’s “interest,” if that is the right word, is in deciding cases correctly under the Constitution. Indeed, it is only the Court’s duty to follow the Constitution that justifies it, under Marbury, in declaring a federal statute unconstitutional. One might question whether declaring a federal statute unconstitutional solely on the basis of stare decisis, without reconsidering whether the initial decision correctly interpreted the Constitution, is itself an exercise of power authorized by Marbury’s reasoning. It certainly does not offend any judicial interest for the Solicitor General to make reasonable arguments in favor of applying the well-recognized exceptions to the doctrine of stare decisis.
It is interesting to compare the Justice Department’s position in Dickerson with its decision to defend the constitutionality of the Communications Decency Act. This ill-considered law made it a crime to make “indecent” or “patently offensive” materials available on the Internet to minors. As Waxman notes, two three-judge panels “found the law facially unconstitutional in every respect.” It is clear that the Justice Department also believed that it was unconstitutional. Nevertheless, Waxman defended it (unsuccessfully) before the Supreme Court; as he wryly notes, “there is nothing quite like standing in front of the Supreme Court to defend the constitutionality of a law that not a single judge has ever found to be constitutional in any respect.” The Government, it is true, did not ask the Supreme Court to overrule any precedents; instead, it argued that the statute was “plainly constitutional” under three Supreme Court precedents. To which the Court responded, also somewhat wryly, that “a close look at these cases, however, raises–rather than relieves–doubts concerning the constitutionality of the CDA.”
In the case of the CDA, the Solicitor General defended a law which was, at best, of dubious constitutionality under any reasonable reading of the First Amendment, as well as under numerous Supreme Court precedents. In the case of section 3501, on the other hand, the Solicitor General refused to defend a statute which was completely consistent with the historic understanding of the Fifth Amendment, and was, at worst, contrary to the Miranda decision, a widely-criticized precedent which had been undermined by subsequent Supreme Court decisions. As Judge Clark would say, I find it hard to wrap my mind around the differing approaches in the two cases.
Be that as it may, the Justice Department adhered to its position in Dickerson, and filed a brief with the Supreme Court arguing that section 3501 was unconstitutional under Miranda. Since both the prosecution and defendant were on the same side, the Court appointed Professor Paul Cassell to defend the constitutionality of the law. We also filed an amicus brief on behalf of the Speaker.
In my next post I will discuss the Dickerson decision (spoiler alert- we lost).
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