Gridlock and Judicial Power

August 21st, 2014

I have written about about the relationship between gridlock and executive power. (My article on that topic is currently running the Law Review gauntlet). The next chapter in this project focuses on the relationship between gridlock and judicial power.

How should courts act when they know that Congress wasn’t functioning as they may have once assumed? To use an example, should the Court take cognizance of the absolute mess that was the enactment of the ACA super statute. To use Halbig as an example, in a normal-functioning legislative process, if the “established by the states” language was an error (I’m not stating here whether it was or not), a rationally well-functioning congress would have fixed that language during committee and reconciliation work. NONE of that happened with the ACA, because of the election of Scott Brown. The Democrats lost their filibuster-proof majority, and they had to pass the draft bill that cleared the Senate on December 4, 2009.  Even though the bill was passed through the reconciliation process, there was no meaningful reconciliation that occurred. So we are stuck with an incomplete, draft version of the bill.

What should the court do, if anything, with that history. Should the court simply disregard it, and say that the bill passed the democratic process, and we shouldn’t care about what came before? Certainly this impacts the analysis whether the statute is ambiguous or not on its face. Should the court consider it in any way, perhaps with respect to the cannons of statutory interpretation–call it the incomplete cannon. Congress was forced to pass an incomplete version of the bill due to political gridlock, and we should treat it as an incomplete bill. I’m not sure which way this one would cut (I welcome your thoughts).

One answer would say, well, since Congress did a rush job, the Court should look to the bill’s overall purpose to fill in any gaps in the statute, and read the statute how Congress would have. (This argument is totally apart from Chevron Step 2, I’m still at Chevron Step 1 for ambiguity). Another answer would be say, well, Congress did a rush job, they probably had no cohesive thought on this particular provision (the legislative history is silent on this section), so let’s stick with the only thing that made it through the legislative gridlock and the President’s signature–the text. In other words, a certain realism about the impact of gridlock could great affect how judges read statutes enacted under these conditions.

A corollary of gridlock and judicial power, is when judges known, and take advantage of the fact that Congress isn’t functional after remand. Richard Re has written about the “doctrine of one last chance.” For example, in NAMUDNO, eight Justices on the Court sent Congress a warning–fix the Voting Rights Act or we will invalidate it. A few years later in Shelby County, Congress invalidated the coverage maps, but left the rest of the law intact, sending Congress another shot–fix the coverage map. Of course, in both cases, the Justices (reasonably) should have known there was absolutely no chance Congress would do what it wanted. The VRA re-authorization passed by a huge bipartisan majority. And there was no chance Congress would actually be able to pass new maps–the lack of progress in the last year has been evidence of the fact.

Here, the Justices seem to be relying on gridlock as a prop for judicial modesty. They can act as if the democratic process will work it out. The Justices aren’t making the Voting Rights Act unworkable. They are simply letting Congress fix it–even though they know it won’t happen. Passing the buck to a gridlocked Congress has a similar effect as the Court striking down the law itself. But, here the Court doesn’t need to assume the responsibility of invalidating the law.

In the first case, the Court can either ignore gridlock, and pretend the legislative process functioned normally, and apply all of the normal cannons of statutory interpretation. Or, they could take cognizance of the fact that none of the rules apply to a dysfunctional Congress, and go from there.

In the second case, the Court seems to be knowingly cognizant of the gridlock, but takes advantage of it by punting to a Congress they know won’t return the ball. This promotes a faux judicial modesty that seems to be a hallmark of the Roberts Court so far.

Another implication of gridlock and the judicial power, is that when laws are passed outside the normal legislative process–such as when the President takes unilateral executive action because Congress won’t enact his agenda–parties are forced to turn to litigation. As the New York Times recently explained, the normal rent-seeking and lobbying process is disturbed when the President–not Congress-decides which interests it will consider. In such cases, litigation very well may be the first opportunity for the minority party to have a say in a new policy. So here, the judicial power serves as a cog of the democratic policy to unlock gridlock.

I’ll develop these thoughts more.