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Krishnakumar: More Than Meets the Eye in Justice Scalia’s Sykes Dissent?

The following is a guest post from Anita Krishankumar:

Justice Scalia’s dissenting opinion in Sykes v. United States issued last Thursday, has quickly received a fair amount of buzz in the blogosphere.  The buzz is understandable—the Sykes dissent is a Scalia classic:  pithy, full of colorful phrases, and entertainingly blunt.  But there is more to the opinion than just a few memorable Congress-bashing quotes.  Indeed, there seem to me to be at least two related statutory interpretation techniques, or methodological biases, at work in Justice Scalia’s dissent.  The first is an intolerance for imprecise statutory constructions that leave courts to engage in messy, case-by-case applications of a statute down the line.  The second is a limited, black-and-white view of the reasons why Congress might end up enacting a statute that calls for just such messy, case-by-case judicial judgments in the implementation of a given statute.

I have argued elsewhere that the Supreme Court sometimes employs an “anti-messiness” principle in interpreting statutes—meaning that it deliberately rejects statutory constructions that require case-by-case factual inquiries or judicial judgments that will prove “messy”/complicated/confusing for implementing courts to administer.  Justice Scalia is a strong proponent of this interpretive principle and his Sykes dissent very much reflects his commitment to such messiness avoidance.  For example, his dissent criticizes the majority opinion on the grounds that “instead of producing a clarification of the Delphic residual clause, [it] produces a fourth ad hoc judgment that will sow further confusion.”  In a bit of an I-told-you-so moment, his dissent also points to his opinion in James v. United States, an earlier case interpreting the ACCA’s residual clause, which warned that the Court’s interpretation “permit[ted] an unintelligible criminal statute to survive uncorrected, unguided, and unexplained.”  The intervening years, Justice Scalia’s Sykes dissent scolds, have proved that warning correct.  In Justice Scalia’s view, one of the Supreme Court’s roles as statutory interpreter is to give statutes a clear, predictable meaning that can be implemented almost automatically, without the need for further judicial line-drawing or clarification.  If such line-drawing or clarification become necessary, then the Court’s initial interpretation was by definition inadequate.  Hence his admonition in Sykes that “Four times is enough” and his sarcastic observation that “We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.”

Justice Scalia’s Sykes dissent also criticizes the Court, in terms reminiscent of formalist Judge Keen in the Legal Process classic the Speluncean Explorers, for teaching Congress bad habits by tolerating such hopelessly imprecise statutes.  “[O]ur indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution,” he complains.  But it is worth noting that Justice Scalia’s fair-notice-based constitutional argument is weak in cases involving sentencing provisions, as opposed to cases involving the definition or elements of a criminal offense.  There is no uncertainty as to the illegality of the defendant’s conduct in ACCA residual clause cases; what is at issue is the application of a sentencing enhancement to the defendant’s punishment.  The fair notice argument carries significantly less weight in this context than in the context of determining what underlying conduct is prohibited.

Notably, Justice Scalia saves his sharpest criticism for Congress itself, and this part of his Sykes dissent has garnered most of the attention in the blogosphere.  “Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation,” Justice Scalia accuses, “is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty.”  This harangue against Congress seems to assume that the ACCA’s residual clause intentionally was left vague by a Congress that was shirking its duty.  The problem with this argument is not that Congress never behaves in this fashion; it surely does in some cases.  But Justice Scalia’s dissent paints with a broad brush stroke and ignores the very real possibility that Congress may have had other, less objectionable, reasons for not providing an exhaustive list of the crimes that count for purposes of the ACCA’s residual clause.  Perhaps given the large universe of state crimes that present a “serious potential risk of physical injury to another,” Congress was loath to provide a lengthy list within the statute—on the theory that its list almost certainly would leave out some crimes that should be included and that those crimes then would be automatically excluded under an expressio unius argument.  Or perhaps Congress genuinely failed to anticipate the confusion that the ACCA’s residual clause would cause for implementing courts.  Alternatively, Congress may have made a judgment that courts, which are experienced in evaluating the elements of a crime, are better suited to drawing fine distinctions between specific offenses than is the legislature and may accordingly have left the sorting out of such crimes to judges in the implementation stage.  It also is possible that Congress, unlike Justice Scalia, has agreed with—or at least had no significant problems with—the manner in which the Court has applied the residual clause thus far; that is, perhaps Congress is satisfied with the Court’s ad-hoc judgments in James, Begay, and Chambers and has chosen to spend its resources legislating on other matters that it deems more pressing.

Justice Scalia seems to dismiss such possibilities with a glib flip of the hand, claiming that “Congress can quickly add what it wishes” to the statute.  But as Justice Scalia undoubtedly is aware, few things happen quickly or easily in Congress.  His Sykes dissent thus presents an interesting take on the Court-Congress dialogue:  He seems to be advocating that the Court should reject statutory language that requires messy, case-by-case judicial implementation and should seek—through a “void for vagueness” ruling—to force Congress to rework statutes that produce undue messiness in the application (“undue” as defined by Justice Scalia, since no other Justice joined his dissent)—and that it should do so irrespective of how satisfied Congress itself might be with the judiciary’s current implementation of such statutes.

Anita Krishnakumar

St. John’s University School of Law

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Brudney: The Boeing Complaint in Congress: Oversight or Overreach?

The following is a guest post from Jim Brudney.

Today, an Administrative Law Judge begins hearing argument and evidence in a complaint brought against the Boeing Company under the National Labor Relations Act.  The complaint was filed less than two months ago, and the trial process is just starting. Yet, I cannot recall any case that has attracted such intense and sustained congressional attention at such an early stage.

Ten Republican senators wrote to the Board’s acting General Counsel, Lafe Solomon, suggesting that his confirmation prospects would be linked to his position on the Boeing case. Nineteen Republican senators wrote to President Obama urging him to withdraw immediately Solomon’s nomination because of the Boeing complaint. Thirty-five Republican senators have cosponsored a bill to block the Boeing case by amending the law to immunize Boeing’s allegedly unlawful conduct. Last week, a Republican senator submitted a Freedom of Information Act request that Solomon turn over all documents (including email, call logs, memoranda, or meeting notes) generated by Labor Board members or staff that were used to support the filing of the Boeing complaint.

In the House, two separate committees demanded that Solomon produce all internal agency documents addressing the Boeing complaint and all documents referring or relating in any way to the agency’s investigation of Boeing—and do so in advance of the June 14 hearing. Solomon declined these document requests. He cited the confidential nature of affidavit testimony obtained from possible witnesses and the threat to a fair litigation process if strategic litigation plans were disclosed before trial. One committee chairman expressed extreme disappointment and promised to discuss the request further with Solomon. The other chairman requested that Solomon testify at an oversight hearing three days after the ALJ trial commences, and effectively compelled him to testify by threatening him with a subpoena. Solomon is scheduled to appear “voluntarily” this Friday before Congress as the trial process unfolds without him

Why all the fuss?

The complaint alleges that Boeing unlawfully established a second assembly line of aircraft production at a nonunion plant in South Carolina in retaliation against union workers at its main Seattle plant who had engaged in lawful strikes during prior collective bargaining negotiations.  Boeing denies the allegations. It argues that its decision was motivated by lawful considerations of economic cost, not unlawful anti-union animus. A major source of concern among Republican members of Congress is part of the requested remedy: if the company’s movement of work is deemed unlawful, the government seeks an order that Boeing’s second line be produced in Seattle and not South Carolina.

The complaint invokes five separate statements made by top Boeing executives and managers, suggesting that a desire to avoid lawful union activity may well have played a part in Boeing’s decision.  Whether it was the motivating factor is what the trial and subsequent appeals are there to resolve. It will be up to the ALJ to assess the allegations and defenses, to consider the nature of the relief sought, and to decide the case on its merits. That is how our system of due process works for adjudications—or at least how it should work.

My concern here is not with the merits of the complaint but with the threat to basic fairness resulting from the avalanche of congressional pressure.

Congress has an important constitutional role to investigate executive branch activities and conduct. This broad oversight power is more limited, however, when Congress investigates a pending adjudicatory proceeding. Such a proceeding resembles a court action. When agencies conduct adjudications, they are acting similarly to federal prosecutors and judges.

Federal appellate courts have expressed concern over congressional pressure focused intensely and extensively on the decisional processes of key agency officials in a case that is pending before the agency. A leading Fifth Circuit decision invalidated an agency adjudication, holding that congressional interrogation impermissibly tainted the agency’s decisional process.

More broadly, a central premise of the Administrative Procedure Act is that agency adjudicatory decisions be made exclusively on the record presented to the judge, and that the decision be based entirely on factors specified by the governing statute—in this case the NLRA.

Congress’s own ethics rules reiterate these abiding principles. The House Ethics Manual recognizes there are judicial opinions that discourage “inordinate pressure” on officials charged with responsibility for making agency decisions. It emphasizes that “a Member should not directly or indirectly threaten reprisal” against an agency official.

In the Boeing case, Congress has engaged in a relentless month-long series of public and often high-profile attacks, directed at the acting General Counsel for prosecuting the complaint. Congress needs to take a step back. The adjudicative process will ultimately yield a decision after the facts have been presented, arguments heard, remedial options reviewed, and appeals exhausted.  Congress will be able to alter the law going forward if it disagrees with the decision reached.  That is the appropriate way for legislators to take issue with an adjudicative result—as Congress has often done in the past.

I hope that the interrogations and threats do not ultimately intimidate acting General Counsel Solomon, who is not a politician but a career civil servant.  But there is reason to fear that Congress’s ongoing course of conduct may undermine neutral analysis and chill independent judgment by any reasonably attentive ALJ hearing this case.

Ironically, if the case ends up being decided in Boeing’s favor, a reviewing court might well overturn the result.  A judge could infer that the agency decided against the government’s position in response not to the facts or legal arguments, but rather to the browbeating from both House and Senate Republicans.

For members of Congress, as for all Americans, maintaining the integrity of the government’s decision-making process should matter no less than the outcome of any particular case.

James J. Brudney

Newton D. Baker-Baker & Hostetler Chair in Law

The Ohio State University Moritz College of Law

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