Author: Michael Stern

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Is a Special Election Required to Fill the Byrd Vacancy?

           Senator Robert Byrd (D-W.Va.), the longest serving Member of Congress in U.S. history, passed away today.  R.I.P. 

            The vacancy created by Byrd’s death will be filled by the Governor under § 3-10-3 of the West Virginia Code.  This statute provides that if the unexpired term of certain vacant offices, including that of U.S. Senator, is less than two years and six months, the appointment will be for the remainder of the unexpired term.  It should be noted that this provision raises some serious constitutional questions under the Seventeenth Amendment, particularly in light of the Seventh Circuit’s recent decision regarding the Senate vacancy in Illinois.  According to the court, the Seventeenth Amendment requires that “every time that a vacancy happens in the state’s senate delegation, the state must hold an election in which the people elect a permanent replacement to fill the vacant seat [and] the executive officer of the state must issue a writ of election that includes a date for such an election to take place.”  Under West Virginia law, however, neither of these requirements will be met whenever the vacancy occurs less than two years and six months prior to the end of the original term. 

            This issue may not directly arise in the present situation.  As of today, there are two years, six months and five days of Byrd’s unexpired term remaining.  Thus, it would seem that under West Virginia law a special election is required. 

            It is possible, however, that the Governor could take a contrary position.  First, the Governor might take the position that the vacancy does not “occur” until he receives formal notice from the Senate.  Were the Senate to fail to give notice of the vacancy this week, the Governor might argue that the unexpired term is less than that required to trigger a special election.  Second, the Governor might argue that the vacancy continues to occur so long as the office remains vacant, so that the length of the unexpired term is measured by whenever the temporary appointment is made.  Third, (closely related to but somewhat stronger than the second), the Governor could argue that the “unexpired term” referred to in the statute is measured by the temporary appointment, not by the vacancy.  Under either the second or third points, no special election would be required if the Governor fails to fill the vacancy until after July 3 (this Saturday). 

            I don’t know what West Virginia law may say about these points, but there are two good reasons for regarding them with skepticism.  First, it seems unlikely that the legislature intended to leave it up to the Governor’s discretion when the clock starts on the unexpired term.  (It is more likely that the legislature would have started the clock upon official notice from the Senate, but in that case one would expect that it would have said so explicitly).  This is particularly so since the legislature did not require the Governor to fill the vacancy within a specific period of time, raising the possibility that the Governor could wait weeks or even months to fill a vacancy in order to avoid a special election. 

            Second, and more importantly, any interpretation that prevents a special election from occurring at all would raise the serious constitutional questions previously mentioned.  Such an interpretation would fly in the face of “the Seventeenth Amendment’s primary objective of guaranteeing that senators are selected by the people of the states in popular elections,” as the Seventh Circuit put it.  Thus, the doctrine of constitutional avoidance strongly counsels in favor of an interpretation allowing a special election to take place. 

            For these reasons I conclude that a special election to fill Byrd’s seat is likely required.  I will turn to the question of when such a special election should occur in another post.

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The Tillmans on Shall and May

            Nora and Seth Tillman have published this fragment on the constitutional meaning of  “shall” and “may.”   They contend that in 18th Century America the word “shall” was used more often in a non-obligatory sense, ie, to indicate futurity as we would use the word “will,” than it would be today.  This may be important in construing certain constitutional provisions where the use of “shall” is arguably non-mandatory.   

For example, the Appointments Clause provides that the President “shall” nominate and appoint Ambassadors, Ministers and Consuls, Supreme Court Justices, and all other officers of the United States.  The word “shall” in this sentence could be  mandatory (must), directory (should) or permissive (may).  The Tillmans argue that we should not be too quick to assume that the word was used in the mandatory sense, as 18th century usage would be more consistent than current usage with the directory or permissive senses (though it seems to me unlikely that the framers would have used “shall” rather than “may” had they intended the Clause to be permissive).

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Illinois’s Unconstitutional Procedure for Filling the Obama Vacancy

An interesting Seventh Circuit opinion earlier this month considers the constitutionality of Illinois’s procedure for filling the Senate seat vacated by Barack Obama after his presidential election.  (hat tip, Election Law Blog).  Among other things, the court confirms my view that the term of Senator Burris (who was appointed by then-Governor Blagojevich as a temporary replacement pursuant to the Seventeenth Amendment) must end at the next general election in November 2010, not in January 2011 as claimed by Illinois Attorney General Lisa Madigan.

More importantly, the court indicates that Illinois is violating both the Constitution and state law by failing to schedule a special election to fill the Obama vacancy. Judge Wood’s opinion carefully examines the text, purpose and legislative history of the Seventeenth Amendment, as well as its relationship to other constitutional provisions, such as the House Vacancies Clause and the Elections Clause.

The relevant language of the Seventeenth Amendment provides: When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies:  Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

Analyzing this provision, the court concludes:

1.      The first part of the provision (the language preceding “Provided”) establishes a mandatory duty on the part of the state executive to issue a writ of election when a Senate seat becomes vacant.

2.      The second part of the provision (the language following “Provided”) is an elaboration of, not a freestanding alternative to, the first part.  Thus, the executive is required to issue a writ of election whether or not he appoints a temporary replacement.

3.      The phrase “as the legislature may direct” modifies the immediately preceding term “election.”  This phrase merely affirms that the Seventeenth Amendment was not intended to change the Elections Clause of the original Constitution, which provides that state legislatures shall prescribe the times, places and manner of holding congressional elections.

4.      Although the writ of election must contain the date of the election to fill the vacancy, “the state legislature may pass laws that establish a range of dates from which the state executive may choose, and might even limit that set to a single day.”

Illinois law clearly provides that a Senate vacancy must be filled by a special election on the date of the next general congressional election.  However, neither Governor Blagojevich nor his successor issued a writ of election with respect to the Obama vacancy.  Moreover, according to the evidence submitted to the Seventh Circuit, Illinois appears to have taken no steps to provide for a special election to fill the Obama vacancy.  To the contrary, the court notes that Attorney General Madigan has taken the position that Senator Burris’s term will end at the expiration of this Congress in January 2011, thus confirming that Illinois does not intend to hold a special election to fill the vacancy.

Judge Woods finds a strong likelihood that the plaintiffs will prevail on the merits of their claims that Illinois has violated the Seventeenth Amendment by failing (a) to issue a writ of election and (b) to provide for any special election to fill the Obama vacancy prior to the expiration of this Congress (at which point Obama’s original term will expire of its own accord).  Indeed, it is not clear whether Illinois has even offered a legal justification or explanation for its actions (or inactions) with regard to the Obama vacancy.

The case is now be remanded to the district court for consideration of how Illinois can arrange for a special election at this late date. One final note—the Seventh Circuit did not reach the question of whether Illinois’s law itself violates the Seventeenth Amendment by providing for an unreasonably long period (up to two years or so) for a “temporary” Senate appointment to last.  While the court does not directly address this issue, my sense is that it at least considered this a serious question, which would have potential implications not only for Illinois, but for other states which have similar provisions for filling Senate vacancies.

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Roll Call on OCE Referral

          Today Roll Call Columnist Simon Davidson discusses the risks that a private party faces in turning over information to the Office of Congressional Ethics.  He mentions my post last week questioning whether OCE has the authority to refer evidence to the Justice Department as it did with regard to the PMA investigation.   

            Roll Call has also editorialized about this issue, noting that OCE’s decision to turn over evidence to the Justice Department could chill cooperation by future witnesses needed in its investigations.  The editorial warns that this action could play into the hands of “OCE’s enemies,” who are looking for reasons to eliminate the office.

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Kagan’s White House Records and the Presidential Records Act

In preparation for the confirmation hearings for Supreme Court nominee Elena Kagan, the Senate Judiciary Committee has requested that the National Archivist produce records of Kagan’s service in the Clinton White House, where she served first as Associate White House Counsel and then as Deputy Assistant to the President for Domestic Policy.   It appears that the documents related to her domestic policy position have been largely, if not entirely, released, but those relating to her service as counsel are still being reviewed.

These records are subject to the Presidential Records Act, 44 U.S.C. § 2201, et seq., which provides that the records of an outgoing administration belong to the public and are to be transferred to the National Archives for preservation and processing.  After a specified period (up to 12 years depending on the type of record), the public may seek access to these records under the Freedom of Information Act.

Congressional committees are not subject to either the PRA’s time restrictions or to FOIA’s limitations on public access.  Nevertheless, the PRA recognizes that congressional requests for presidential records may be subject to claims of privilege.  44 U.S.C. § 2205(2).

In 2001, President Bush issued an executive order on presidential records which was widely criticized for, among other things, broadly interpreting the rights of both the incumbent and former President to prevent the disclosure of presidential records to Congress.  Bush’s order (1) allowed the former President a 21-day period to review records requested by a congressional committee and decide whether to assert a privilege, (2) gave the incumbent President a sequential 21-day period to make his own decision with regard to privilege, (3) permitted either to extend these periods indefinitely for “burdensome” requests, and (4) prohibited the National Archivist from disclosing the records unless both the former and incumbent Presidents agreed to do so.

President Obama, in one of his first official actions, revoked the Bush executive order and replaced it with a new executive order on presidential records.  The Obama order more closely tracks the National Archives regulations than did the Bush order.  Under the revised procedure, the Archivist is responsible for initially determining if records will be disclosed, whether in response to a congressional request or otherwise; the Archivist then provides the former and incumbent Presidents with a notice period (normally 30 days) during which either may invoke executive privilege.  However, the Archivist is only bound to follow the privilege decision of the current President; he may choose, unless otherwise instructed by the current President or his designee, not to honor a privilege invocation by the former President.  He must, however, provide the former President notice of this decision, thereby permitting the former President to seek judicial relief.

White House Counsel Bob Bauer has informed Senator Jeff Sessions, Ranking Member on Senate Judiciary, that “President Obama does not intend to assert executive privilege over any of the documents requested by the Committee.”  However, Bauer notes that the documents are being reviewed by a representative of President Clinton, and he leaves open the possibility that Clinton may assert a privilege with respect to some of the documents.  In that event, Bauer states that the administration would first try to reach a “mutually satisfactory accommodation” with the Committee and Clinton.  He doesn’t say what would happen if an accommodation cannot be reached, but, under the regulations and executive order, the Obama administration could decide to accept or reject Clinton’s claim, or it could leave the decision up to the Archivist.

If Clinton decides to invoke executive privilege for documents related to Kagan’s service as White House counsel, it will likely raise a number of unsettled issues.  Bush’s executive order, for example, claimed that executive privilege covers “legal advice or legal work,” but many in Congress hotly disputed this claim, arguing that common-law privileges such as attorney-client privilege are not part of the constitutionally-based executive privilege.  Moreover, as a former President, Clinton’s ability to claim privilege is subject to further uncertainty as the executive privilege tends to erode over time.

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Was OCE’s Referral to the Justice Department Ultra Vires?

On May 27, 2010, the Office of Congressional Ethics (OCE) announced that its Board had voted unanimously to refer to the Justice Department “certain evidence collected in the course of its investigation concerning appropriations earmarks and the now defunct PMA lobbying firm.”   The announcement contends the referral to the Justice Department was authorized “pursuant to Section 1(f)(B) of House Resolution 895 of the 110thCongress and Rule 13 of the OCE Rules for the Conduct of Investigations.”   However, for the reasons described below, I think the Board exceeded its authority in making this referral.

House Resolution 895 is the resolution which established OCE and provides it with its authorities.  Nowhere in that resolution is there any explicit authorization for OCE to make referrals or provide information to the Justice Department or any law enforcement authorities. Section 1(f)(B), on which OCE relies, provides as follows: “No testimony received or any other information obtained as a member of the board or staff of the Office shall be publicly disclosed by any such individual to any such person or entity outside the Office.  Any communication to any person or entity outside the Office may occur only as authorized by the board as necessary to conduct official business or pursuant to its rules.”

This section is evidently designed to sharply limit disclosures by OCE to any outside individual or entity.  Such an interpretation is consistent with the intent of the House task force that recommended the establishment of OCE.  The task force made clear that OCE’s work in conducting preliminary investigations and review of ethics matters would be conducted confidentially.   Report of the Democratic Members of the Special Task Force on Ethics Enforcement 10 (Dec. 2007) (“To ensure confidentiality and responsibility in the opening steps of the ethics process, the OCE will conduct all of its proceedings and deliberations in executive session.”)

Section 1(f)(B) does recognize that there will be circumstances under which OCE will need to have communications with outside persons or entities.  The House did not try to anticipate all of the circumstances in which such communications might be necessary, and it provided the OCE Board with the power either to authorize a particular communication or to adopt rules that would authorize a particular category of communication.  This rulemaking authority, however, can reasonably be read only to allow the Board to authorize narrow categories of disclosure necessary to conduct OCE’s business or achieve its objectives; otherwise, it would grant the Board the authority to eviscerate the entire confidentiality scheme.

The Board itself initially seems to have interpreted its authority in this limited fashion.  The draft rules that it distributed for public comment would have authorized OCE to provide information to state or federal law enforcement only in cases of “imminent harm or threat to public safety.”   This rule would have limited OCE to providing information to law enforcement only where there was a true necessity. However, the draft rule was criticized by groups like Citizens for Ethics and Responsibility in Washington as “unjustified and unwise.”  They wanted OCE to be able to refer evidence of legal violations, regardless of whether there was any imminent harm. Apparently in response to this criticism, the Board substantially broadened the rule (I do not know whether the House or the general public was given an opportunity to comment on the revised rule).

As ultimately promulgated, Rule 13 (D) of the OCE Rules of Investigation provides that “[t]he Staff, in consultation with the Chairman and Co-Chairman, may refer information to state and federal authorities in the event that information indicates a crime has occurred or is about to occur.”  This is the authority relied upon by OCE in making its PMA referral.

As interpreted by OCE, therefore, Rule 13 permits OCE to refer any evidence of criminal violations to federal or state authorities, regardless of the nature of the violations, the strength of the evidence, or the urgency of the matter.  Even more importantly, it permits OCE to refer evidence even after the same evidence has been submitted to the House Ethics Committee.  In the case of the PMA referrals, the House Ethics Committee received and reviewed the evidence, and concluded that no violations had occurred.  Whatever one thinks of this decision, it seems clear, under the ethics enforcement regime established by the House, that the decision was one for the Ethics Committee to make.

Moreover, House Rules explicitly provide for the circumstances in which the Ethics Committee can make referrals to law enforcement authorities.  House Rule XI, cl. 3(a)(3) provides that “[t]he committee may report to the appropriate Federal or State authorities, either with the approval of the House or by an affirmative vote of two-thirds of the members of the committee, any substantial evidence of a violation by a Member, Delegate, Resident Commissioner, officer, or employee of the House, of a law applicable to the discharge of his responsibilities that may have been disclosed in a committee investigation.”

In other words, even if a majority of the Committee believes that there is evidence warranting referral to the Justice Department, they may not be permitted to make such a referral.  But under OCE Rule 13 as interpreted by the Board, OCE’s staff could refer evidence even after (as here) the Committee unanimously determined that it warranted neither referral nor further investigation.  This makes no sense, and strongly suggests that OCE has acted beyond its authority in this case.

Finally, it should be noted that OCE’s interpretation of Rule 13 could have negative consequences for its future investigations.  It will give attorneys for Members under investigation a handy excuse, and perhaps a legitimate reason, for refusing to cooperate with OCE investigations.  After all, if OCE can make referrals of evidence to the Department of Justice or other law enforcement authorities, their clients may be relinquishing Speech or Debate or other privileges when they provide information to OCE.  Far better to wait until the matter reaches the Ethics Committee, where both formal rules and actual practice make referral much less likely.

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Northern Exposure

            The Canadians seem to be having their own version of the Karl Rove/Harriet Miers/Josh Bolten controversy that arose in during the Bush administration (when these White House officials asserted immunity from having to appear before congressional committees).  The Canadian government has declared only cabinet ministers, not their political staffs, can be called as witnesses before parliamentary committees. 

            Generally speaking, I presume the Canadian Parliament has the same inherent powers to call for testimony and records as does the Congress.  According to the Canadian House of Commons Procedure and Practice Manual, standing committees have the power to issue a summons for any person located on Canadian soil, with certain recognized exceptions.  These include the Queen (no surprise), the Governor General and provincial lieutenant-governors (who I think are the Queen’s representatives) and members of either Canadian provincial or federal legislative bodies. 

            Since parliamentary committees are not permitted to summon Members of Parliament (at least not without the specific authority of the House), it would seem that they cannot not compel the appearance of the prime minister or a cabinet minister (who are Members of Parliament).  In this case, however, the government is arguing that the committee must call the minister, rather than his or her political subordinates.   The basis of the argument, which I don’t fully understand, has something to do with the concept of “ministerial responsibility,” a system in which it is only the ministers (and not their subordinates) who are considered responsible to both the Parliament and the Canadian people.  A government spokesman distinguishes this system from that in the U.S., where (he says) “the American Congress calls people, grills them and does whatever they want.”

           

            Normally this type of issue would not arise in the Canadian system because the government and the Parliament would be controlled by the same party.  However, the current Conservative government has only a plurality in Parliament, and this apparently means that the opposition effectively controls at least some of the standing committees.  The latest controversy involves a request to a government official to testify before the House of Commons committee on access to information, privacy and ethics, which is chaired by a Liberal Democrat. 

            What happens if the government official refuses to appear and the parliamentary committee refuses to accept the failure to appear?  Like the Congress, the Canadian Parliament has the inherent power to punish for contempt, and to imprison recalcitrant witnesses.  The last time this authority was used, however, was 1913.

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A Final Word on Congress and Miranda

           From my last three posts on Miranda (see here, here and here), one can see the argument that would be made by opponents of a “public safety” exception statute.  They will say that Miranda’s requirements are “constitutional” in nature; ergo any exceptions are similarly of constitutional dimension.  Since it is the Court, not Congress, which decides what the Constitution means (at least in the mind of judicial supremacists), Congress’s view of the proper scope of the public safety exception is of little relevance. 

            It is certainly possible that the Court will take this view, but I don’t think that its precedents require it to do so.  There are at least two possible grounds on which the Court could uphold a public safety exception statute: (1) that Congress’s reasoned factfinding is relevant to the constitutional test as set forth in Quarles; and (2) that stare decisis does not require the Court to strike down statutes which do not attempt to reverse the general rule established in Miranda, but merely establish reasonable exceptions thereto. 

            Consider the following from the Court’s recent opinion in Citizens United v. FEC, 558 U.S. __ (2010): “When Congress finds that a problem exists, we must give that finding due deference, but Congress may not choose an unconstitutional remedy.”  By analogy, the Court must defer to a congressional finding that providing Miranda warnings to a terrorist would impede law enforcement from obtaining vital intelligence that might prevent an imminent attack, even though it need not defer to Congress’s ultimate determination on the admissibility of the terrorist’s unwarned statements.  Recall that in Quarles the Court concluded that “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for [Miranda’s] prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”  If this balancing test is the controlling constitutional test, a congressional finding on the public safety issue would seem clearly relevant to, if not dispositive of, admissibility. 

            Furthermore, while Dickerson affirms Miranda’s continuing validity as a “constitutional holding,” it is less than clear what that holding is.  As conceived by the Dickerson Court , Miranda is essentially a constitutional policy that “reliance on the traditional totality-of-the-circumstances test raise[s] a[n] [unacceptably great] risk of overlooking an involuntary custodial confession.” 

            We know that stare decisis prohibits Congress from simply reinstating the  totality-of-the-circumstances test, but this doesn’t necessarily preclude Congress from establishing exceptions for certain categories of cases.  Quarles and other post-Miranda cases demonstrate that the courts can still make determinations of voluntariness even when no warnings are given.  It is difficult to see a principled reason why Congress could not provide for admission of voluntary statements in limited circumstances. 

            In his Citizens United concurrence, Chief Justice Roberts explained that stare decisis “counsels deference to past mistakes, but provides no justification for making new ones.”  Would applying Miranda’s rules, developed for use in ordinary law enforcement in the 1960s, to intelligence-focused interrogations of suspected terrorists qualify as a “new mistake”?  Hard to say, but I wouldn’t rule it out. 

            Finally, one should not forget that Miranda itself left room for legislative action that provides alternative safeguards to ensure voluntariness.  Such safeguards would provide an additional basis on which the Court might defer to a public safety statute.  Although it might be politically controversial, for example, Congress could require that unwarned interrogations of terrorists be videotaped, in order to facilitate the court’s determination of voluntariness. 

            So I think that critics are premature when they dismiss the viability of a public safety exception statute for terrorist interrogations.

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The Dickerson Decision

           The majority opinion in Dickerson v. United States, 530 U.S. 428 (2000), was written by Chief Justice Rehnquist (the author of the Quarles decision).  The opinion states its hold succinctly at the outset: “We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.” 

            Note that the opinion does not say that Miranda was a correct constitutional decision.  On the contrary, the Court expressly notes that its holding is independent of “[w]hether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance.”  This is not surprising—we have already seen that Justice Rehnquist’s opinion in Quarles expressed considerable skepticism about Miranda. 

            The Court’s analysis begins with the proposition that “Congress may not legislatively supersede our decisions interpreting and applying the Constitution.”  This is a strange formulation.   The justification for judicial review, as set forth in Marbury, is that the Court has the authority and duty to determine whether a federal statute (presented in a case or controversy) complies with the Constitution.  In making this determination the Court will consider and generally adhere to the holdings and reasoning of its precedents, but this is different from claiming that Congress is forbidden from “legislatively supersed[ing]” a precedent that purports to interpret or apply the Constitution. 

            The distinction may be seen by reference to Hamilton’s observation, in Federalist No. 78, that the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment.”  Thus when the Court applies its precedents, it is (or should be) applying the judgment or reasoning of those cases to the case before it.  If the reasoning of precedent controls the case at hand, then it may result in striking down a federal statute.  But the assertion that Congress may not “legislatively supersede” a precedent suggests that Congress is required not merely to comply with the Constitution (the interpretation of which may be informed by judicial precedent), but is also required to comply with Supreme Court precedent as a declaration of judicial policy, ie, an act of will not merely judgment. 

            Of course, as is often observed (for example by Justice Sotamayor), the exercise of judgment may in effect make policy and may be influenced by the policy preferences of the judges.  This, however, is a byproduct of the unfortunate fact that laws cannot interpret, apply and enforce themselves, and therefore require human beings to do it for them.  It is a bug, not a feature, of the judicial system. 

            The distinction between precedent as judgment and precedent as policy is often difficult to detect, but the unusual nature of the Miranda decision makes it apparent.  If the Miranda rule were formulated as a judgment, it would go something like this: “absent warnings or some other special safeguards, admission of a custodial confession violates the Fifth Amendment.”  As the Dickerson dissent (Justice Scalia, joined by Justice Thomas) notes, this was the fairest reading of Miranda at the time that the initial decision was rendered.  Subsequent decisions, however, preclude this reading of Miranda.  Those decisions allow unwarned, but voluntary, custodial confessions to be admitted in the prosecution’s case in chief under some circumstances (Quarles), or allow them to be used for impeachment (Oregon v. Hass, 420 U.S. 714 (1975), or allow the fruits of such confessions to be admitted (Michigan v. Tucker, 417 U.S. 433 (1974)).  Both the results and reasoning of these cases establish that unwarned, but voluntary, confessions do not violate the Fifth Amendment.

  

            The Dickerson majority, while conceding that there “is language in some of our opinions that supports the view” of Miranda as a non-constitutional decision, concluded that Miranda’s constitutional nature was demonstrated by the fact that the Court had consistently applied its rule to the states.  Since the Court lacks supervisory authority over the states, the majority reasoned, this necessarily means that the Miranda rule must be one of constitutional dimension. 

            Note that the Court isn’t saying that section 3501 is invalid because it is inconsistent with the Constitution, or inconsistent with the Constitution as interpreted by Miranda, or even inconsistent with Miranda’s reasoning.  Instead, section 3501 is invalid because holding it valid would imply that Miranda is invalid and the Court is unwilling to consider, under stare decisis, whether Miranda is in fact valid.  The Court has traveled a ways from the traditional notion that congressional enactments are entitled to a presumption of constitutionality. 

            At the end of the day, the most plausible interpretation of Miranda seems to be that it was based on the assertion of a judicial authority to create prophylactic rules, not themselves required by the Constitution, in order to protect constitutional rights.  The Dickerson dissent points out that this interpretation was urged by both Dickerson and the government, and suggests that the fact that the majority does not mention it means that they, like the dissenters, reject the existence of any such authority.  However, the majority appears to be applying the doctrine of stare decisis to Miranda’s result, not its reasoning.  Thus, it may be that Miranda now stands only for the proposition that the Court has created a specific set of prophylactic rules to govern custodial confessions in most circumstances, not that the Court actually has the constitutional power to do so.  If this in fact is the proper interpretation of Dickerson, it is understandable that the Court may not have wanted to say so explicitly. 

             The Dickerson Court echoes Quarles in describing Miranda as essentially an exercise in balancing the costs and benefits of requiring warnings prior to a custodial interrogation.  On the cost side, the Court acknowledges the “disadvantage of the Miranda rule . . . that statements which may be by no means involuntary . .           . may nonetheless be excluded and a guilty defendant go free as a result.”  On the benefit side, it notes the Miranda Court found that the traditional totality of the circumstances test (ie, the approach endorsed by section 3501) created an “unacceptably great” risk of “overlooking an involuntary custodial confession.”  Moreover, the Dickerson Courtconcluded that the Miranda rule had shown itself to be easier for both law enforcement and the courts to apply than section 3501.

            This type of cost-benefit analysis would seem to be a quintessential legislative task, but the Dickerson majority evidently felt that it was under no obligation to consider, much less defer to, the factual findings and judgments made by Congress in enacting section 3501.  In my next (and final) post on this subject, I will consider the implications of Dickerson’s approach for a potential statute expanding and defining the public safety exception for terrorist interrogations.

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Miranda and the Justice Department’s Duty to Defend Federal Statutes

           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).