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Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | the Appointments Clause, and determines the appropriate scope of the removal power. Thus, while I will subsequently discuss why our appointments and removal jurisprudence does not support today's holding, I begin with a consideration of the fountainhead of that jurisprudence, the separation and equilibration of powers. First, however, I think it well to call to mind an important and unusual premise that underlies our deliberations, a premise not expressly contradicted by the Court's opinion, but in my view not faithfully observed. It is rare in a case dealing, as this one does, with the constitutionality of a statute passed by the Congress of the United States, not to find anywhere in the Court's opinion the usual, almost formulary caution that we owe great deference to Congress' view that what it has done is constitutional, see, e. g., ; ; Columbia System, ; United and that we will decline to apply the statute only if the presumption of constitutionality can be overcome, see ; Columbia That caution is not recited by the Court in the present case because it does not apply. Where a private citizen challenges action of the Government on grounds unrelated to separation of powers, harmonious functioning of the system demands that we ordinarily give some deference, or a presumption of validity, to the actions of the political branches in what is agreed, between themselves at least, to be within their respective spheres. But where the issue pertains to separation of powers, *705 and the political branches are (as here) in disagreement, neither can be presumed correct. The reason is stated concisely by Madison: "The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers" Federalist No. 49, p. 314. The playing field for the present case, in other words, is a level one. As one of the interested and coordinate parties to the underlying constitutional dispute, Congress, no more than the President, is entitled to the benefit of the doubt. To repeat, Article II, 1, cl. 1, of the Constitution provides: "The executive Power shall be vested in a President of the United States." As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles if the following two questions are answered affirmatively: (1) Is the |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void. The Court concedes that "[t]here is no real dispute that the functions performed by the independent counsel are `executive'," though it qualifies that concession by adding "in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch." Ante, at 691. The qualifier adds nothing but atmosphere. *706 In what other sense can one identify "the executive Power" that is supposed to be vested in the President (unless it includes everything the Executive Branch is given to do) except by reference to what has always and everywhere if conducted by government at all been conducted never by the legislature, never by the courts, and always by the executive. There is no possible doubt that the independent counsel's functions fit this description. She is vested with the "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General." 28 U.S. C. 594(a) (1982 ed., Supp. V) Governmental investigation and prosecution of crimes is a quintessentially executive function. See 8 ; ; United As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute, but I cannot refrain from pointing out that the Court greatly exaggerates the extent of that "some" Presidential control. "Most importan[t]" among these controls, the Court asserts, is the Attorney General's "power to remove the counsel for `good cause.' " Ante, This is somewhat like referring to shackles as an effective means of locomotion. As we recognized in Humphrey's indeed, what Humphrey's Executor was all about limiting removal power to "good cause" is an impediment to, not an effective grant of, |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | cause" is an impediment to, not an effective grant of, Presidential control. We said that limitation was necessary with respect to members of the Federal Trade Commission, which we found to be "an agency of the legislative and judicial *707 departments," and "wholly disconnected from the executive department," because "it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will." What we in Humphrey's Executor found to be a means of eliminating Presidential control, the Court today considers the "most importan[t]" means of assuring Presidential control. Congress, of course, operated under no such illusion when it enacted this statute, describing the "good cause" limitation as "protecting the independent counsel's ability to act independently of the President's direct control" since it permits removal only for "misconduct." H. R. Conf. Rep. 100-452, p. 37 (1987). Moving on to the presumably "less important" controls that the President retains, the Court notes that no independent counsel may be appointed without a specific request from the Attorney General. As I have discussed above, the condition that renders such a request mandatory (inability to find "no reasonable grounds to believe" that further investigation is warranted) is so insubstantial that the Attorney General's discretion is severely confined. And once the referral is made, it is for the Special Division to determine the scope and duration of the investigation. See 28 U.S. C. 593(b) (1982 ed., Supp. V). And in any event, the limited power over referral is irrelevant to the question whether, once appointed, the independent counsel exercises executive power free from the President's control. Finally, the Court points out that the Act directs the independent counsel to abide by general Justice Department policy, except when not "possible." See 28 U.S. C. 594(f) (1982 ed., Supp. V). The exception alone shows this to be an empty promise. Even without that, however, one would be hard put to come up with many investigative or prosecutorial "policies" (other than those imposed by the Constitution or by Congress through law) that are absolute. Almost all investigative and prosecutorial decisions *708 including the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted involve the balancing of innumerable legal and practical considerations. Indeed, even political considerations (in the nonpartisan sense) must be considered, as exemplified by the recent decision of an independent counsel to subpoena the former Ambassador of Canada, producing considerable tension in our relations with that country. See N. Y. Times, May |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | our relations with that country. See N. Y. Times, May 29, 1987, p. A12, col. 1. Another pre-eminently political decision is whether getting a conviction in a particular case is worth the disclosure of national security information that would be necessary. The Justice Department and our intelligence agencies are often in disagreement on this point, and the Justice Department does not always win. The present Act even goes so far as specifically to take the resolution of that dispute away from the President and give it to the independent counsel. 28 U.S. C. 594(a)(6) (1982 ed., Supp. V). In sum, the balancing of various legal, practical, and political considerations, none of which is absolute, is the very essence of prosecutorial discretion. To take this away is to remove the core of the prosecutorial function, and not merely "some" Presidential control. As I have said, however, it is ultimately irrelevant how much the statute reduces Presidential control. The case is over when the Court acknowledges, as it must, that "[i]t is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity." Ante, at 695. It effects a revolution in our constitutional jurisprudence for the Court, once it has determined that (1) purely executive functions are at issue here, and (2) those functions have been given to a person whose actions are not fully within the supervision and control of the President, nonetheless to proceed further to sit in judgment of whether "the President's need to control the exercise of [the independent counsel's] *709 discretion is so central to the functioning of the Executive Branch" as to require complete control, ante, at 691 whether the conferral of his powers upon someone else "sufficiently deprives the President of control over the independent counsel to interfere impermissibly with [his] constitutional obligation to ensure the faithful execution of the laws," ante, at and whether "the Act give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties," ante, It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are. The utter incompatibility of the Court's approach with our constitutional traditions can be made more clear, perhaps, by applying it to the powers of the other two branches. Is it conceivable that |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | powers of the other two branches. Is it conceivable that if Congress passed a statute depriving itself of less than full and entire control over some insignificant area of legislation, we would inquire whether the matter was "so central to the functioning of the Legislative Branch" as really to require complete control, or whether the statute gives Congress "sufficient control over the surrogate legislator to ensure that Congress is able to perform its constitutionally assigned duties"? Of course we would have none of that. Once we determined that a purely legislative power was at issue we would require it to be exercised, wholly and entirely, by Congress. Or to bring the point closer to home, consider a statute giving to non-Article III judges just a tiny bit of purely judicial power in a relatively insignificant field, with substantial control, though not total control, in the courts perhaps "clear error" review, which would be a fair judicial equivalent of the Attorney General's "for cause" removal power here. Is there any doubt that we would not pause to inquire whether the matter was "so central to the *710 functioning of the Judicial Branch" as really to require complete control, or whether we retained "sufficient control over the matters to be decided that we are able to perform our constitutionally assigned duties"? We would say that our "constitutionally assigned duties" include complete control over all exercises of the judicial power or, as the plurality opinion said in Northern Pipeline Construction : "The inexorable command of [Article III] is clear and definite: The judicial power of the United States must be exercised by courts having the attributes prescribed in Art. III." We should say here that the President's constitutionally assigned duties include complete control over investigation and prosecution of violations of the law, and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States. Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. See Civil Rights Act of 19, Title VII, 42 U.S. C. 2000e et seq. (prohibiting "employers," not defined to include the United States, from discriminating on the basis of race, color, religion, sex, or national origin). No more so than that this Court should have the exclusive power to pronounce the |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. See United A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. As we reiterate this very day, "[i]t is a truism that constitutional protections have costs." Coy v. Iowa, post, at 0. While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty. *711 The checks against any branch's abuse of its exclusive powers are twofold: First, retaliation by one of the other branch's use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes, cf. United 8 U.S. 303 ; and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more "dangerous to the political rights of the Constitution," Federalist No. 78, p. 465) who are guilty of abuse. Political pressures produced special prosecutors for Teapot Dome and for Watergate, for example long before this statute created the independent counsel. See Act of Feb. 8, 1924, ch. 16, -6; The Court has, nonetheless, replaced the clear constitutional prescription that the executive power belongs to the President with a "balancing test." What are the standards to determine how the balance is to be struck, that is, how much removal of Presidential power is too much? Many countries of the world get along with an executive that is much weaker than ours in fact, entirely dependent upon the continued support of the legislature. Once we depart from the text of the Constitution, just where short of that do we stop? The most amazing feature of the Court's opinion is that it does not even purport to give an answer. It simply announces, with no analysis, that the ability to control the decision whether to investigate and prosecute the President's closest advisers, and indeed the President himself, is not "so central to the functioning of the Executive Branch" as to be constitutionally required to be within the President's control. Apparently that is so because we say it is so. Having abandoned as the basis for our decisionmaking the text of Article II that "the executive Power" must be vested in the President, the Court does not even attempt to |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | in the President, the Court does not even attempt to craft a substitute criterion a "justiciable standard," see, e. g., ; however remote from the Constitution that today governs, and in the future will govern, the decision of such questions. Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all. In my view, moreover, even as an ad hoc, standardless judgment the Court's conclusion must be wrong. Before this statute was passed, the President, in taking action disagreeable to the Congress, or an executive officer giving advice to the President or testifying before Congress concerning one of those many matters on which the two branches are from time to time at odds, could be assured that his acts and motives would be adjudged insofar as the decision whether to conduct a criminal investigation and to prosecute is concerned in the Executive Branch, that is, in a forum attuned to the interests and the policies of the Presidency. That was one of the natural advantages the Constitution gave to the Presidency, just as it gave members of Congress (and their staffs) the advantage of not being prosecutable for anything said or done in their legislative capacities. See U. S. Const., Art. I, 6, cl. 1; It is the very object of this legislation to eliminate that assurance of a sympathetic forum. Unless it can honestly be said that there are "no reasonable grounds to believe" that further investigation is warranted, further investigation must ensure; and the conduct of the investigation, and determination of whether to prosecute, will be given to a person neither selected by nor subject to the control of the President who will in turn assemble a staff by finding out, presumably, who is willing to put aside whatever else they are doing, for an indeterminate period of time, in order to investigate and prosecute the President or a particular named individual in his administration. The prospect is frightening (as I will discuss *713 at some greater length at the conclusion of this opinion) even outside the context of a bitter, interbranch political dispute. Perhaps the boldness of the President himself will not be affected though I am not even sure of that. (How much easier it is for Congress, instead of accepting the political damage attendant to the commencement of impeachment |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | accepting the political damage attendant to the commencement of impeachment proceedings against the President on trivial grounds or, for that matter, how easy it is for one of the President's political foes outside of Congress simply to trigger a debilitating criminal investigation of the Chief Executive under this law.) But as for the President's high-level assistants, who typically have no political base of support, it is as utterly unrealistic to think that they will not be intimidated by this prospect, and that their advice to him and their advocacy of his interests before a hostile Congress will not be affected, as it would be to think that the Members of Congress and their staffs would be unaffected by replacing the Speech or Debate Clause with a similar provision. It deeply wounds the President, by substantially reducing the President's ability to protect himself and his staff. That is the whole object of the law, of course, and I cannot imagine why the Court believes it does not succeed. Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support. Nothing is so politically effective as the ability to charge that one's opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, "crooks." And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution. The present statute provides ample means for that sort of attack, assuring that massive and lengthy investigations will occur, not merely when the Justice Department in the application of its usual standards believes they are called for, but whenever it *714 cannot be said that there are "no reasonable grounds to believe" they are called for. The statute's highly visible procedures assure, moreover, that unlike most investigations these will be widely known and prominently displayed. Thus, in the 10 years since the institution of the independent counsel was established by law, there have been nine highly publicized investigations, a source of constant political damage to two administrations. That they could not remotely be described as merely the application of "normal" investigatory and prosecutory standards is demonstrated by, in addition to the language of the statute ("no reasonable grounds to believe"), the following facts: Congress appropriates approximately $50 million annually for general legal activities, salaries, and expenses of the Criminal Division of the Department of Justice. See 1989 Budget Request of the Department of Justice, Hearings |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | See 1989 Budget Request of the Department of Justice, Hearings before a Subcommittee of the House Committee on Appropriations, 100th Cong., 2d Sess., pt. 6, pp. 284-285 (DOJ Budget Request). This money is used to support "[f]ederal appellate activity," "[o]rganized crime prosecution," "[p]ublic integrity" and "[f]raud" matters, "[n]arcotic & dangerous drug prosecution," "[i]nternal security," "[g]eneral litigation and legal advice," "special investigations," "[p]rosecution support," "[o]rganized crime drug enforcement," and "[m]anagement & administration." By comparison, between May and August 1987, four independent counsel (not all of whom were operating for that entire period of time) spent almost $5 million (one-tenth of the amount annually appropriated to the entire Criminal Division), spending almost $1 million in the month of August 1987 alone. See Washington Post, Oct. 21, 1987, p. A21, col. 5. For fiscal year 1989, the Department of Justice has requested $52 million for the entire Criminal Division, DOJ Budget Request 285, and $7 million to support the activities of independent counsel, In sum, this statute does deprive the President of substantial control over the prosecutory functions performed by the *715 independent counsel, and it does substantially affect the balance of powers. That the Court could possibly conclude otherwise demonstrates both the wisdom of our former constitutional system, in which the degree of reduced control and political impairment were irrelevant, since all purely executive power had to be in the President; and the folly of the new system of standardless judicial allocation of powers we adopt today. III As I indicated earlier, the basic separation-of-powers principles I have discussed are what give life and content to our jurisprudence concerning the President's power to appoint and remove officers. The same result of unconstitutionality is therefore plainly indicated by our case law in these areas. Article II, 2, cl. 2, of the Constitution provides as follows: "[The President] shall nominate, and by and with the Advice and Consent of the the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Because appellant (who all parties and the Court agree is an officer of the United States, ante, at 671, n. 12) was not appointed by the President with the advice and consent of the Senate, but rather by the Special Division of the United |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | Senate, but rather by the Special Division of the United States Court of Appeals, her appointment is constitutional only if (1) she is an "inferior" officer within the meaning of the above Clause, and (2) Congress may vest her appointment in a court of law. As to the first of these inquiries, the Court does not attempt to "decide exactly" what establishes the line between *716 principal and "inferior" officers, but is confident that, whatever the line may be, appellant "clearly falls on the `inferior officer' side" of it. Ante, at 671. The Court gives three reasons: First, she "is subject to removal by a higher Executive Branch official," namely, the Attorney General. Second, she is "empowered by the Act to perform only certain, limited duties." Third, her office is "limited in jurisdiction" and "limited in tenure." Ante, at 672. The first of these lends no support to the view that appellant is an inferior officer. Appellant is removable only for "good cause" or physical or mental incapacity. 28 U.S. C. 596(a)(1) (1982 ed., Supp. V). By contrast, most (if not all) principal officers in the Executive Branch may be removed by the President at will. I fail to see how the fact that appellant is more difficult to remove than most principal officers helps to establish that she is an inferior officer. And I do not see how it could possibly make any difference to her superior or inferior status that the President's limited power to remove her must be exercised through the Attorney General. If she were removable at will by the Attorney General, then she would be subordinate to him and thus properly designated as inferior; but the Court essentially admits that she is not subordinate. See ante, at 671. If it were common usage to refer to someone as "inferior" who is subject to removal for cause by another, then one would say that the President is "inferior" to Congress. The second reason offered by the Court that appellant performs only certain, limited duties may be relevant to whether she is an inferior officer, but it mischaracterizes the extent of her powers. As the Court states: "Admittedly, the Act delegates to appellant [the] `full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice.' " Ib quoting 28 U.S. C. 594(a) (1982 ed., Supp. V) (emphasis *717 added).[2] Moreover, in addition to this general grant of power she is given a broad range of specifically enumerated powers, including a power not even the Attorney General possesses: |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | powers, including a power not even the Attorney General possesses: to "contes[t] in court any claim of privilege or attempt to withhold evidence on grounds of national security." 594(a)(6).[3] Once all of this is "admitted," it seems *718 to me impossible to maintain that appellant's authority is so "limited" as to render her an inferior officer. The Court seeks to brush this away by asserting that the independent counsel's power does not include any authority to "formulate policy for the Government or the Executive Branch." Ante, at 671. But the same could be said for all officers of the Government, with the single exception of the President. All of them only formulate policy within their respective spheres of responsibility as does the independent counsel, who must comply with the policies of the Department of Justice only to the extent possible. 594(f). The final set of reasons given by the Court for why the independent counsel clearly is an inferior officer emphasizes the limited nature of her jurisdiction and tenure. Taking the latter first, I find nothing unusually limited about the independent counsel's tenure. To the contrary, unlike most high ranking Executive Branch officials, she continues to serve until she (or the Special Division) decides that her work is substantially completed. See 596(b)(1), (b)(2). This particular independent prosecutor has already served more than two years, which is at least as long as many Cabinet officials. As to the scope of her jurisdiction, there can be no doubt that is small (though far from unimportant). But within it she exercises more than the full power of the Attorney General. The Ambassador to Luxembourg is not anything less than a principal officer, simply because Luxembourg is small. And the federal judge who sits in a small district is not for that reason "inferior in rank and authority." If the mere fragmentation of executive responsibilities into small compartments suffices to render the heads of each of those compartments inferior officers, then Congress could deprive the President of the right to appoint his chief law enforcement officer by dividing up the Attorney General's responsibilities among a number of "lesser" functionaries. *719 More fundamentally, however, it is not clear from the Court's opinion why the factors it discusses even if applied correctly to the facts of this case are determinative of the question of inferior officer status. The apparent source of these factors is a statement in United that "the term [officer] embraces the ideas of tenure, duration, emolument, and duties." See ante, at 672. Besides the fact that this was dictum, it |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | at 672. Besides the fact that this was dictum, it was dictum in a case where the distinguishing characteristics of inferior officers versus superior officers were in no way relevant, but rather only the distinguishing characteristics of an "officer of the United States" (to which the criminal statute at issue applied) as opposed to a mere employee. Rather than erect a theory of who is an inferior officer on the foundation of such an irrelevancy, I think it preferable to look to the text of the Constitution and the division of power that it establishes. These demonstrate, I think, that the independent counsel is not an inferior officer because she is not subordinate to any officer in the Executive Branch (indeed, not even to the President). Dictionaries in use at the time of the Constitutional Convention gave the word "inferiour" two meanings which it still bears today: (1) "[l]ower in place, station,. rank of life, value or excellency," and (2) "[s]ubordinate." S. Johnson, Dictionary of the English Language (6th ed. 1785). In a document dealing with the structure (the constitution) of a government, one would naturally expect the word to bear the latter meaning indeed, in such a context it would be unpardonably careless to use the word unless a relationship of subordination was intended. If what was meant was merely "lower in station or rank," one would use instead a term such as "lesser officers." At the only other point in the Constitution at which the word "inferior" appears, it plainly connotes a relationship of subordination. Article III vests the judicial power of the United States in "one supreme Court, and in such inferior Courts as *720 the Congress may from time to time ordain and establish." U. S. Const., Art. III, 1 In Federalist No. 81, Hamilton pauses to describe the "inferior" courts authorized by Article III as inferior in the sense that they are "subordinate" to the Supreme Court. See n., 490, n. That "inferior" means "subordinate" is also consistent with what little we know about the evolution of the Appointments Clause. As originally reported to the Committee on Style, the Appointments Clause provided no "exception" from the standard manner of appointment (President with the advice and consent of the Senate) for inferior officers. 2 M. Farrand, Records of the Federal Convention of 1787, pp. 498-499, 599 (rev. ed. 1966). On September 15, 1787, the last day of the Convention before the proposed Constitution was signed, in the midst of a host of minor changes that were being considered, Gouverneur Morris moved to add the exceptions |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | were being considered, Gouverneur Morris moved to add the exceptions clause. No great debate ensued; the only disagreement was over whether it was necessary at all. -628. Nobody thought that it was a fundamental change, excluding from the President's appointment power and the Senate's confirmation power a category of officers who might function on their own, outside the supervision of those appointed in the more cumbersome fashion. And it is significant that in the very brief discussion Madison mentions (as in apparent contrast to the "inferior officers" covered by the provision) "Superior Officers." Of course one is not a "superior officer" without some supervisory responsibility, just as, I suggest, one is not an "inferior officer" within the meaning of the provision under discussion unless one is subject to supervision by a "superior officer." It is perfectly obvious, therefore, both from the relative brevity of the discussion this addition received, and from the content of that discussion, that it was intended merely to make clear (what Madison thought already was clear, see ) that those officers appointed by the President with Senate *721 approval could on their own appoint their subordinates, who would, of course, by chain of command still be under the direct control of the President. This interpretation is, moreover, consistent with our admittedly sketchy precedent in this area. For example, in United we held that the appointment by an Executive Branch official other than the President of a "vice-consul," charged with the duty of temporarily performing the function of the consul, did not violate the Appointments Clause. In doing so, we repeatedly referred to the "vice-consul" as a "subordinate" officer. See also United at (dicta); United (dicta). More recently, in United we noted that the Attorney General's appointment of the Watergate Special Prosecutor was made pursuant to the Attorney General's "power to appoint subordinate officers to assist him in the discharge of his duties." The Court's citation of Nixon as support for its view that the independent counsel is an inferior officer is simply not supported by a reading of the case. We explicitly stated that the Special Prosecutor was a "subordinate office[r]," ib because, in the end, the President or the Attorney General could have removed him at any time, if by no other means than amending or revoking the regulation defining his authority. Nor are any of the other cases cited by the Court in support of its view inconsistent with the natural reading that an inferior officer must at least be subordinate to another officer of the United States. In Ex parte we upheld the |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | of the United States. In Ex parte we upheld the appointment by a court of federal "Judges of Election," who were charged with various duties involving the overseeing *722 of local congressional elections. Contrary to the Court's assertion, see ante, at 673, we did not specifically find that these officials were inferior officers for purposes of the Appointments Clause, probably because no one had contended that they were principal officers. Nor can the case be said to represent even an assumption on our part that they were inferior without being subordinate. The power of assisting in the judging of elections that they were exercising was assuredly not a purely executive power, and if we entertained any assumption it was probably that they, like the marshals who assisted them, see were subordinate to the courts, see Similarly, in GoBart Importing where we held that United States commissioners were inferior officers, we made plain that they were subordinate to the district courts which appointed them: "The commissioner acted not as a court, or as a judge of any court, but as a mere officer of the district court in proceedings of which that court had authority to take control at any time." To be sure, it is not a sufficient condition for "inferior" officer status that one be subordinate to a principal officer. Even an officer who is subordinate to a department head can be a principal officer. That is clear from the brief exchange following Gouverneur Morris' suggestion of the addition of the exceptions clause for inferior officers. Madison responded: "It does not go far enough if it be necessary at all Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices." 2 M. Farrand, Records of the Federal Convention, of 1787, p. 627 (rev. ed. 1966) But it is surely a necessary condition for inferior officer status that the officer be subordinate to another officer. The independent counsel is not even subordinate to the President. The Court essentially admits as much, noting that "appellant may not be `subordinate' to the Attorney General *723 (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act." Ante, at 671. In fact, there is no doubt about it. As noted earlier, the Act specifically grants her the "full power and independent authority to exercise all investigative and prosecutorial functions of the Department of Justice," 28 U.S. C. 594(a) (1982 ed., Supp. V), and makes her removable only for "good cause," a limitation specifically |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | makes her removable only for "good cause," a limitation specifically intended to ensure that she be independent of, not subordinate to, the President and the Attorney General. See H. R. Conf. Rep. No. 100-452, p. 37 (1987). Because appellant is not subordinate to another officer, she is not an "inferior" officer and her appointment other than by the President with the advice and consent of the Senate is unconstitutional. IV I will not discuss at any length why the restrictions upon the removal of the independent counsel also violate our established precedent dealing with that specific subject. For most of it, I simply refer the reader to the scholarly opinion of Judge Silberman for the Court of Appeals below. See In re Sealed Case, 267 U. S. App. D. C. 178, I cannot avoid commenting, however, about the essence of what the Court has done to our removal jurisprudence today. There is, of course, no provision in the Constitution stating who may remove executive officers, except the provisions for removal by impeachment. Before the present decision it was established, however, (1) that the President's power to remove principal officers who exercise purely executive powers could not be restricted, see and (2) that his power to remove inferior officers who exercise purely executive powers, and whose appointment Congress had removed from the usual procedure of Presidential appointment with Senate consent, could be restricted, at least where the appointment had been made by *724 an officer of the Executive Branch, see ; United[4] The Court could have resolved the removal power issue in this case by simply relying upon its erroneous conclusion that the independent counsel was an inferior officer, and then extending our holding that the removal of inferior officers appointed by the Executive can be restricted, to a new holding that even the removal of inferior officers appointed by the courts can be restricted. That would in my view be a considerable and unjustified extension, giving the Executive full discretion in neither the selection nor the removal of a purely executive officer. The course the Court has chosen, however, is even worse. Since our 1935 decision in Humphrey's which was considered by many at the time the product of an activist, anti-New Deal Court bent on reducing the power of President Franklin Roosevelt it has been established that the line of permissible restriction upon removal of principal officers lies at the point at which the powers exercised by those officers are no longer purely executive. Thus, removal restrictions have been generally regarded as lawful for so-called "independent regulatory |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | have been generally regarded as lawful for so-called "independent regulatory *725 agencies," such as the Federal Trade Commission, see ; 15 U.S. C. 41, the Interstate Commerce Commission, see 49 U.S. C. 10301(c) (1982 ed., Supp. IV), and the Consumer Product Safety Commission, see 15 U.S. C. 2053(a), which engage substantially in what has been called the "quasi-legislative activity" of rulemaking, and for members of Article I courts, such as the Court of Military Appeals, see 10 U.S. C. 867(a)(2), who engage in the "quasi-judicial" function of adjudication. It has often been observed, correctly in my view, that the line between "purely executive" functions and "quasi-legislative" or "quasi-judicial" functions is not a clear one or even a rational one. See ante, at 689-691; ; But at least it permitted the identification of certain officers, and certain agencies, whose functions were entirely within the control of the President. Congress had to be aware of that restriction in its legislation. Today, however, Humphrey's Executor is swept into the dustbin of repudiated constitutional principles. "[O]ur present considered view," the Court says, "is that the determination of whether the Constitution allows Congress to impose a `good cause'-type restriction on the President's power to remove an official cannot be made to turn on whether or not that official is classified as `purely executive.' " Ante, at 689. What Humphrey's Executor (and presumably Myers) really means, we are now told, is not that there are any "rigid categories of those officials who may or may not be removed at will by the President," but simply that Congress cannot "interefere with the President's exercise of the `executive power' and his constitutionally appointed duty to `take care that the laws be faithfully executed,' " ante, at 689-690. One can hardly grieve for the shoddy treatment given today to Humphrey's Executor, which, after all, accorded the same indignity (with much less justification) to Chief Justice *726 Taft's opinion 10 years earlier in gutting, in six quick pages devoid of textual or historical precedent for the novel principle it set forth, a carefully researched and reasoned 70-page opinion. It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit. But one must grieve for the Constitution. Humphrey's Executor at least had the decency formally to observe the constitutional principle that the President had to be the repository of all executive power, see 295 U.S., -628, which, as Myers carefully explained, necessarily means that he must be able to discharge those who do not perform executive functions according to |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | discharge those who do not perform executive functions according to his liking. As we noted in Bowsher, once an officer is appointed " `it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey.' " quoting By contrast, "our present considered view" is simply that any executive officer's removal can be restricted, so long as the President remains "able to accomplish his constitutional role." Ante, at 690. There are now no lines. If the removal of a prosecutor, the virtual embodiment of the power to "take care that the laws be faithfully executed," can be restricted, what officer's removal cannot? This is an open invitation for Congress to experiment. What about a special Assistant Secretary of State, with responsibility for one very narrow area of foreign policy, who would not only have to be confirmed by the Senate but could also be removed only pursuant to certain carefully designed restrictions? Could this possibly render the President "[un]able to accomplish his constitutional role"? Or a special Assistant Secretary of Defense for Procurement? The possibilities are endless, and the Court does not understand what the separation of powers, what "[a]mbition counteract[ing] ambition." Federalist No. 51, p. 2 (Madison), is all about, if it does not expect Congress to try them. As far as I can discern from the Court's opinion, it is now *727 open season upon the President's removal power for all executive officers, with not even the superficially principled restriction of Humphrey's Executor as cover. The Court essentially says to the President: "Trust us. We will make sure that you are able to accomplish your constitutional role." I think the Constitution gives the President and the people more protection than that. V The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom. Those who hold or have held offices covered by the Ethics in Government Act are entitled to that protection as much as the rest of us, and I conclude my discussion by considering the effect of the Act upon the fairness of the process they receive. Only someone who has worked in the field of law enforcement can fully appreciate the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation. Justice Robert Jackson, when he was Attorney General under President Franklin Roosevelt, described it in |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | was Attorney General under President Franklin Roosevelt, described it in a memorable speech to United States Attorneys, as follows: "There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff will be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on *728 any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain. "If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself." R. Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys, April 1, 1940. Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect. Moreover, when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable *729 sense of proportion, the President pays the cost in political damage to his administration. If federal prosecutors "pick people that [they] thin[k] [they] should get, rather than cases that need to be prosecuted," if they amass many more resources against a particular prominent individual, or against a particular class of political protesters, or against members of a particular political party, than the gravity of the alleged offenses or the record of successful prosecutions seems to warrant, the unfairness will come home to roost in the Oval Office. I leave it to the reader to recall the examples of this in recent years. That result, of course, was precisely what the Founders had in mind when they provided that all executive powers would be exercised by a single Chief Executive. As Hamilton put it, "[t]he ingredients which constitute safety in the republican sense are a due dependence on the people, and a due responsibility." Federalist No. 70, p. 424. The President is directly dependent on the people, and since there is only one President, he is responsible. The people know whom to blame, whereas "one of the weightiest objections to a plurality in the executive. is that it tends to conceal faults and destroy responsibility." That is the system of justice the rest of us are entitled to, but what of that select class consisting of present or former high-level Executive Branch officials? If an allegation is made against them of any violation of any federal criminal law (except Class B or C misdemeanors or infractions) the Attorney General must give it his attention. That in itself is not objectionable. But if, after a 90-day investigation without the benefit of normal investigatory tools, the Attorney General is unable to say that there are "no reasonable grounds to believe" that further investigation is warranted, a process is set in motion that is not in the full control of persons "dependent on the people," and whose flaws cannot be blamed on the President. An independent counsel is selected, and the scope of his or her authority prescribed, by a *730 panel of judges. What if they are politically partisan, as judges have been known to be, and select a prosecutor antagonistic to the administration, or even to the particular individual who has been selected for this special treatment? There is |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | who has been selected for this special treatment? There is no remedy for that, not even a political one. Judges, after all, have life tenure, and appointing a surefire enthusiastic prosecutor could hardly be considered an impeachable offense. So if there is anything wrong with the selection, there is effectively no one to blame. The independent counsel thus selected proceeds to assemble a staff. As I observed earlier, in the nature of things this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as "picking the man and then searching the law books, or putting investigators to work, to pin some offense on him"? To be sure, the investigation must relate to the area of criminal offense specified by the life-tenured judges. But that has often been (and nothing prevents it from being) very broad and should the independent counsel or his or her staff come up with something beyond that scope, nothing prevents him or her from asking the judges to expand his or her authority or, if that does not work, referring it to the Attorney General, whereupon the whole process would recommence and, if there was "reasonable basis to believe" that further investigation was warranted, that new offense would be referred to the Special Division, which would in all likelihood assign it to the same *731 independent counsel. It seems to me not conducive to fairness. But even if it were entirely evident that unfairness was in fact the result the judges hostile to the administration, the independent counsel an old foe of the President, the staff refugees from the recently defeated administration there would be no one accountable to the public to whom the blame could be assigned. I do not mean to suggest that anything of this sort (other than the inevitable self-selection of the prosecutory staff) occurred in the present case. I know and have the highest regard for the judges on the Special Division, and the independent |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | for the judges on the Special Division, and the independent counsel herself is a woman of accomplishment, impartiality, and integrity. But the fairness of a process must be adjudged on the basis of what it permits to happen, not what it produced in a particular case. It is true, of course, that a similar list of horribles could be attributed to an ordinary Justice Department prosecution a vindictive prosecutor, an antagonistic staff, etc. But the difference is the difference that the Founders envisioned when they established a single Chief Executive accountable to the people: the blame can be assigned to someone who can be punished. The above described possibilities of irresponsible conduct must, as I say, be considered in judging the constitutional acceptability of this process. But they will rarely occur, and in the average case the threat to fairness is quite different. As described in the brief filed on behalf of three ex-Attorneys General from each of the last three administrations: "The problem is less spectacular but much more worrisome. It is that the institutional environment of the Independent Counsel specifically, her isolation from the Executive Branch and the internal checks and balances it supplies is designed to heighten, not to check, all of the occupational hazards of the dedicated prosecutor; the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect to the exclusion of other interests." Brief for Edward *7 H. Levi, Griffin B. Bell, and William French Smith as Amici Curiae 11. It is, in other words, an additional advantage of the unitary Executive that it can achieve a more uniform application of the law. Perhaps that is not always achieved, but the mechanism to achieve it is there. The mini-Executive that is the independent counsel, however, operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide. What would normally be regarded as a technical violation (there are no rules defining such things), may in his or her small world assume the proportions of an indictable offense. What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to him or her be an investigation that ought to go on for another year. How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment. How admirable the constitutional system that provides the means to avoid such a distortion. And how unfortunate the judicial decision that has permitted it. * * * The notion that every violation of law should be prosecuted, including indeed, especially every violation by those in high places, is an attractive one, and it would be risky to argue in an election campaign that that is not an absolutely overriding value. Fiat justitia, ruat coelum. Let justice be done, though the heavens may fall. The reality is, however, that it is not an absolutely overriding value, and it *733 was with the hope that we would be able to acknowledge and apply such realities that the Constitution spared us, by life tenure, the necessity of election campaigns. I cannot imagine that there are not many thoughtful men and women in Congress who realize that the benefits of this legislation are far outweighed by its harmful effect upon our system of government, and even upon the nature of justice received by those men and women who agree to serve in the Executive Branch. But it is difficult to vote not to enact, and even more difficult to vote to repeal, a statute called, appropriately enough, the Ethics in Government Act. If Congress is controlled by the party other than the one to which the President belongs, it has little incentive to repeal it; if it is controlled by the same party, it dare not. By its shortsighted action today, I fear the Court has permanently encumbered the Republic with an institution that will do it great harm. Worse than what it has done, however, is the manner in which it has done it. A government of laws means a government of rules. Today's decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law. It extends into the very heart of our most significant constitutional function the "totality of the circumstances" mode of analysis that this Court has in recent years become fond of. Taking all things into account, we conclude that the power taken away from the President here is not really too much. The next time executive |
Justice Scalia | 1,988 | 9 | dissenting | Morrison v. Olson | https://www.courtlistener.com/opinion/112139/morrison-v-olson/ | here is not really too much. The next time executive power is assigned to someone other than the President we may conclude, taking all things into account, that it is too much. That opinion, like this one, will not be confined by any rule. We will describe, as we have today (though I hope more accurately) the effects of the provision in question, and will authoritatively announce: "The President's need to control the exercise of the [subject officer's] discretion is so central to the functioning of the Executive Branch as to require complete control." This is not analysis; it is ad hoc judgment. And it fails to explain why it is not true that as the text of *734 the Constitution seems to require, as the Founders seemed to expect, and as our past cases have uniformly assumed all purely executive power must be under the control of the President. The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that "[t]he executive Power shall be vested in a President of the United States." |
Justice Breyer | 2,020 | 2 | majority | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4757657/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | The Constitution’s Appointments Clause says that the President “shall nominate, and by and with the Advice and Con- sent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States” Art. II, cl. 2 (emphasis added). In 2016, Congress enacted the Puerto Rico Oversight, Man- agement, and Economic Stability Act (PROMESA). 130 Stat. 549, 48 U.S. C. et seq. That Act created a Fi- nancial Oversight and Management Board, and it provided, as relevant here, that the President could appoint its seven members without “the advice and consent of the Senate,” i.e., without Senate confirmation. The question before us is whether this method of appoint- ment violates the Constitution’s Senate confirmation re- quirement. In our view, the Appointments Clause governs the appointments of all officers of the United States, includ- ing those located in Puerto Rico. Yet two provisions of the Constitution empower Congress to create local offices for the District of Columbia and for Puerto Rico and the Terri- tories. See Art. I, cl. 17; Art. IV, cl. 2. And the Clause’s term “Officers of the United States” has never been understood to cover those whose powers and duties are pri- marily local in nature and derive from these two constitu- tional provisions. The Board’s statutory responsibilities consist of primarily local duties, namely, representing Puerto Rico in bankruptcy proceedings and supervising as- pects of Puerto Rico’s fiscal and budgetary policies. We therefore find that the Board members are not “Officers of Cite as: 590 U. S. (2020) 3 Opinion of the Court the United States.” For that reason, the Appointments Clause does not dictate how the Board’s members must be selected. I A In 2006, tax advantages that had previously led major businesses to invest in Puerto Rico expired. See Small Business Job Protection Act of 1996, Many industries left the island. Emigration increased. And the public debt of Puerto Rico’s government and its instru- mentalities soared, rising from $39.2 billion in 2005 to $71 billion in 2016. See Dept. of Treasury, Puerto Rico’s Eco- nomic and Fiscal Crisis 1, 3, https://www.treasury.gov/ connect/blog/Documents/Puerto_Ricos_fiscal_challenges.pdf; GAO, U. S. Territories: Public Debt Outlook 12 (GAO–18– 160, 2017). Puerto Rico found that it could not service that debt. Yet Puerto Rico could not easily restructure it. The Federal Bankruptcy Code’s municipality-related Chapter 9 did not apply to Puerto Rico (or to the District of Columbia). See 11 U.S. C. 101(52). But at the same time, federal bankruptcy law invalidated Puerto Rico’s own local “debt- restructuring” statutes. Puerto Rico v. Franklin |
Justice Breyer | 2,020 | 2 | majority | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4757657/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | Rico’s own local “debt- restructuring” statutes. Puerto Rico v. Franklin Cal. Tax- Free Trust, 579 U. S. (2016). In 2016, in response to Puerto Rico’s fiscal crisis, Congress enacted PROMESA. 48 U.S. C. et seq. PROMESA allows Puerto Rico and its entities to file for federal bankruptcy protection. See 302, 130 Stat. 577, 579; cf. 11 U.S. C. (related to bankruptcies of lo- cal governments). The filing and subsequent proceedings are to take place in the United States District Court for the District of Puerto Rico, before a federal judge selected by the Chief Justice of the United States. PROMESA 308, PROMESA also created the Financial Oversight and Management Board—with seven members 4 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court appointed by the President and with the Governor serving as an ex officio member. (e), 554–555. PROMESA gives the Board authority to file for bankruptcy on behalf of Puerto Rico or its instrumentalities. The Board can supervise and modify Puerto Rico’s laws (and budget) to “achieve fiscal responsibility and access to the capital markets.” ; see at 563–575. And it can gather evidence and conduct investigations in support of these efforts. –561. As we have just said, PROMESA gives the President of the United States the power to appoint the Board’s seven members without Senate confirmation, so long as he selects six from lists prepared by congressional leaders. at 554–555. B On August 31, 2016, President Obama selected the Board’s seven members in the manner just described. The Board established offices in Puerto Rico and New York, and soon filed bankruptcy petitions on behalf of the Common- wealth and (eventually) five Commonwealth entities. Title III Petition in No. 17–BK–3283 (PR); see Order Pursuant to PROMESA Section 304(g), No. 17–BK–3283 Doc. 8829 (consolidating petitions filed on behalf of the Commonwealth of Puerto Rico, the Puerto Rico Sales Tax Financing Corporation, the Puerto Rico Highways and Transportation Authority, the Employees Retirement Sys- tem of the Government of the Commonwealth of Puerto Rico, the Puerto Rico Electric Power Authority, and the Puerto Rico Public Buildings Authority). And the Chief Justice then selected a federal judge to serve as bankruptcy judge for Puerto Rico. Designation of Presiding District Judge, No. 17–BK–3283 (PR, May 5, 2017), Doc. 4. After both court and Board had decided a number of mat- ters, several creditors moved to dismiss all proceedings on Cite as: 590 U. S. (2020) 5 Opinion of the Court the ground that the Board members’ selection violated the Appointments The court denied the motions. See In |
Justice Breyer | 2,020 | 2 | majority | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4757657/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | violated the Appointments The court denied the motions. See In re Financial Oversight and Management Bd. of Puerto Rico, The credi- tors appealed to the United States Court of Appeals for the First Circuit. That court reversed. It held that the selec- tion of the Board’s members violated the Appointments But it concluded that those Board actions taken prior to its decision remained valid under the “de facto officer” doctrine. at 862–863; see, e.g., (1895) (judicial decisions could not later be attacked on ground that an unlawfully sitting judge presided); Ball v. United States, The Board, the United States, and various creditors then filed petitions for certiorari in this Court, some arguing that the appointments were constitutionally valid, others that the de facto officer doctrine did not apply. Compare Pets. for Cert. in Nos. 18–1334, 18–96, 18–15 with Pets. for Cert. in Nos. 18–75, 18–1521. In light of the importance of the questions, we granted certiorari in all the petitions and consolidated them for argument. 588 U. S. II Congress created the Board pursuant to its power under Article IV of the Constitution to “make all needful Rules and Regulations respecting the Territory belonging to the United States.” cl. 2; see PROMESA 130 Stat. 553. Some have argued in these cases that the Ap- pointments Clause simply does not apply in the context of Puerto Rico. But, like the Court of Appeals, we believe the Appointments Clause restricts the appointment of all offic- ers of the United States, including those who carry out their powers and duties in or in relation to Puerto Rico. The Constitution’s structure provides strong reason to be- lieve that is so. The Constitution separates the three basic 6 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court powers of Government—legislative, executive, and judi- cial—with each branch serving different functions. But the Constitution requires cooperation among the three branches in specified areas. Thus, to become law, proposed legislation requires the agreement of both Congress and the President (or, a supermajority in Congress). See INS v. Chadha, (noting that the Consti- tution prescribes only four specific actions that Congress can take without bicameralism and presentment). At the same time, legislation must be consistent with constitu- tional constraints, and we usually look to the Judiciary as the ultimate interpreter of those constraints. The Appointments Clause reflects a similar allocation of responsibility, between President and Senate, in cases in- volving appointment to high federal office. That Clause re- flects the Founders’ reaction to “one of [their] generation’s greatest grievances against [pre-Revolutionary] executive |
Justice Breyer | 2,020 | 2 | majority | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4757657/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | to “one of [their] generation’s greatest grievances against [pre-Revolutionary] executive power,” the manipulation of appointments. ; see also The Federalist No. 76, p. 455 (C. Rossiter ed. 1961) (A. Hamilton) (the Ap- pointments Clause helps to preserve democratic accounta- bility). The Founders addressed their concerns with the ap- pointment power by both concentrating it and distributing it. On the one hand, they ensured that primary responsi- bility for nominations would fall on the President, whom they deemed “less vulnerable to interest-group pressure and personal favoritism” than a collective body. v. United States, See also The Fed- eralist No. 76, at 455 (“The sole and undivided responsibil- ity of one man will naturally beget a livelier sense of duty and a more exact regard to reputation”). On the other hand, they ensured that the Senate’s advice and consent power would provide “an excellent check upon a spirit of favorit- ism in the President and a guard against the appointment of unfit characters.” NLRB v. SW General, Inc., 580 U. S. (2017) (slip op., at 2) (internal quotation marks Cite as: 590 U. S. (2020) 7 Opinion of the Court omitted). By “limiting the appointment power” in this fash- ion, the Clause helps to “ensure that those who wielded [the appointments power] were accountable to political force and the will of the people.” ; see also 520 U.S., at “The blame of a bad nomination would fall upon the president singly and absolutely,” while “[t]he censure of rejecting a good one would lie entirely at the door of the senate.” (internal quotation marks omitted). These other structural constraints, designed in part to ensure political accountability, apply to all exercises of fed- eral power, including those related to Article IV entities. Cf., e.g., Metropolitan Washington Airports 270–271 (MWAA) (separation-of-powers principles apply when Congress acts under its Article IV power to leg- islate “respecting other Property”). See also, e.g., Act of Aug. 7, 1789, ch. 8, (the First Congress using bi- cameralism and presentment to make rules and regulations for the Northwest Territory). The objectives advanced by the Appointments Clause counsel strongly in favor of that Clause applying to the appointment of all “Officers of the United States.” Why should it be different when such an officer’s duties relate to Puerto Rico or other Article IV en- tities? Indeed, the Appointments Clause has no Article IV ex- ception. The Clause says in part that the President “shall nominate, and by and with the Advice and Con- sent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and |
Justice Breyer | 2,020 | 2 | majority | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4757657/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments shall be established by Law” Art. II, cl. 2. That text firmly indicates that it applies to the appointment of all “Officers of the United States.” And history confirms 8 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court this reading. Before the writing of the Constitution, Con- gress had enacted an ordinance that allowed Congress to appoint officers to govern the Northwest Territory. As soon as the Constitution became law, the First Congress “adapt[ed]” that ordinance “to the present Constitution of the United States,” Act of Aug. 7, 1789, in large part by providing for an appointment process consistent with the constraints of the Appointments In par- ticular, it provided for a Presidential-appointment, Senate- confirmation process for high-level territorial appointees who assumed federal, as well as local, duties. See n. (a); (appointment by President, and confir- mation by Senate, of Governor, secretary, and members of the upper house); Act of Sept. 11, 1789, ch. 13, 1 Stat. 68 (Governor “discharg[ed]” the federal “duties of superin- tendent of Indian affairs”). Later Congresses took a similar approach to later territorial Governors with federal duties. See Act of June 6, 1900, (appointment of Governor of Territory of Alaska by President with confir- mation by Senate); (federal duties of Alaska territorial Governor include entering into contracts in name of the United States and granting reprieves for federal of- fenses); Act of Mar. 2, 1819, § 10, 495 (similar for Governor of Arkansas). We do not mean to suggest that every time Congress chooses to require advice and consent procedures it does so because they are constitutionally re- quired. At times, Congress may wish to require Senate con- firmation for policy reasons. Even so, Congress’ practice of requiring advice and consent for these Governors with im- portant federal duties supports the inference that Congress expected the Appointments Clause to apply to at least some officials with supervisory authority over the Territories. Given the Constitution’s structure, this history, roughly analogous case law, and the absence of any conflicting au- thority, we conclude that the Appointments Clause con- strains the appointments power as to all “Officers of the Cite as: 590 U. S. (2020) 9 Opinion of the Court United States,” even when those officers exercise power in or related to Puerto Rico. III A The more difficult question before us is whether the Board members are officers of the United States such that the Appointments Clause requires Senate confirmation. |
Justice Breyer | 2,020 | 2 | majority | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4757657/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | United States such that the Appointments Clause requires Senate confirmation. If they are not officers of the United States, but instead are some other type of officer, the Appointments Clause says nothing about them. (No one suggests that they are “Am- bassadors,” “other public Ministers and Consuls,” or “Judges of the supreme Court.”) And as we shall see, the answer to this question turns on whether the Board mem- bers have primarily local powers and duties. The language at issue does not offer us much guidance for understanding the key term “of the United States.” The text suggests a distinction between federal officers—offic- ers exercising power of the National Government—and nonfederal officers—officers exercising power of some other government. The Constitution envisions a federalist struc- ture, with the National Government exercising limited fed- eral power and other, local governments—usually state governments—exercising more expansive power. But the Constitution recognizes that for certain localities, there will be no state government capable of exercising local power. Thus, two provisions of the Constitution, Article I, cl. 17, and Article IV, cl. 2, give Congress the power to legislate for those localities in ways “that would exceed its powers, or at least would be very unusual” in other contexts. Pal- Using these powers, Congress has long legislated for entities that are not States—the District of Columbia and the Territo- ries. See District of And, in doing so, Congress has both made local law directly and also created structures 10 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court of local government, staffed by local officials, who them- selves have made and enforced local law. Compare, e.g., Act of Mar. 2, 1962, (changing D. C. liquor tax from $1.25 per gallon to $1.50 per gallon), with District of Columbia Self-Government and Governmental Reorganiza- tion Act, (giving local D. C. government pri- mary legislative control over local matters). This structure suggests that when Congress creates local offices using these two unique powers, the officers exercise power of the local government, not the Federal Government. Cf. Ameri- can Ins. (Marshall, C. J.) (territorial courts may exercise the judicial power of the Territories without the life tenure and salary protections mandated by Article III for federal judges); Cin- cinnati Soap (territorial legislators may exercise the legislative power of the Territories without violating the nondelegation doc- trine). History confirms what the Constitution’s text and struc- ture suggest. See 524 (20) (relying on history and structure in interpreting the Recess Appointments Clause). See also McCulloch v. Maryland, (emphasizing the util- ity of historical practice in |
Justice Breyer | 2,020 | 2 | majority | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4757657/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | v. Maryland, (emphasizing the util- ity of historical practice in interpreting constitutional pro- visions). Longstanding practice indicates that a federal law’s creation of an office in this context does not automat- ically make its holder an “Officer of the United States.” Ra- ther, Congress has often used these two provisions to create local offices filled in ways other than those specified in the Appointments When the First Congress legislated for the Northwest Territories, for example, it created a House of Representatives for the Territory with members selected by election. It also created an upper house of the territorial legislature, whose members were appointed by the President (without Senate confirmation) from lists pro- Cite as: 590 U. S. (2020) 11 Opinion of the Court vided by the elected, lower house. And it created magis- trates appointed by the Governor. See Act of Aug. 7, 1789, n. (a). The practice of creating by federal law local offices for the Territories and District of Columbia that are filled through election or local executive appointment has continued una- bated for more than two centuries. See, e.g., (North- west Territories local offices filled by election); Act of Apr. 7, 1798, ; Act of May 7, 1800, ; Act of May 15, 1820, ; Act of Apr. 30, 1900, ; Act of Aug. 24, 1912, ; Act of Aug. 23, 1968, 82 Stat. 837 (Virgin Islands, same); Act of Sept. 11, 1968, Pub. L. 90–497, ; Act of May 4, 1812, ; Act of June 4, 1812, ; Act of Mar. 2, 1819, ; Act of June 6, 1900, ; Act of Sept. 11, 1968, Like JUSTICE THOMAS, post, at 6 (opinion concurring in judg- ment), we think the practice of the First Congress is strong evidence of the original meaning of the Constitution. We find this subsequent history similarly illuminates the text’s meaning. Puerto Rico’s history is no different. It reveals a longstanding practice of selecting public officials with im- portant local responsibilities in ways that the Appoint- ments Clause does not describe. In 1898, at the end of the Spanish-American War, the United States took responsibil- ity for determining the civil rights of Puerto Ricans as well as Puerto Rico’s political status. Treaty of Paris, Art. 9, Dec. 10, 1898, In 1900, the Foraker Act pro- vided for Presidential appointment (with Senate confirma- tion) of Puerto Rico’s Governor, the heads of six depart- ments, the legislature’s upper house, and the justices of its 12 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court high court. Organic Act |
Justice Breyer | 2,020 | 2 | majority | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4757657/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | INVESTMENT, LLC Opinion of the Court high court. Organic Act of 1900, 17, 18, 33, 84. But it also provided for the selection, through popular election, of a lower legislative house with the power (subject to upper house concurrence) to “alter, amend, modify, and repeal any and all laws of every character.” 27, 32, There is no indication that anyone thought members of the lower house, wielding important local re- sponsibilities, were “Officers of the United States.” Congress replaced the Foraker Act with the Jones Act in 1917. Organic Act of Puerto Rico, ch. 5, Un- der the Jones Act the Puerto Rican Senate was elected and consequently no longer satisfied the Appointments Clause criteria. See Similarly, the Governor of Puerto Rico nominated four cabinet members, confirmed by the Senate of Puerto Rico. at –956. The elected legislature retained “all local legislative powers,” including the power to appropriate funds. 25, 34, 37, 962, 964. Congress amended the Jones Act in 1947 to provide for an elected Governor of Puerto Rico, and granted that Gov- ernor the power to appoint all cabinet officials. See Act of Aug. 5, 1947, ch. 490, 1, 3, 771. The Presi- dent retained the power to appoint (with Federal Senate confirmation) judges, an auditor, and the new office of Co- ordinator of Federal Agencies, who was to supervise federal functions in Puerto Rico and recommend to higher federal officials ways to improve the quality of federal services. In 1950, Congress enacted Public Law 600, “in the nature of a compact” with Puerto Rico and subject to approval by the voters of Puerto Rico. Act of July 3, 1950, ch. 446, § 2, The Act adopted the Jones Act, as amended, as the Puerto Rican Federal Relations Act, and provided for the Jones Act’s substantial (but not complete) repeal upon the effective adoption of a contemplated Puerto Rican con- stitution. § 5, at 319–320. Among the provisions of Cite as: 590 U. S. (2020) 13 Opinion of the Court the Jones Act that Public Law 600 retained were several related to Puerto Rico’s public debt. Congress retained, for example, the triple-tax-exempt nature of Puerto Rican bonds. Jones Act, It also retained a (later repealed) cap on the amount of public debt Puerto Rico or its subdivisions could accumulate. In a public refer- endum, the citizens of Puerto Rico approved Public Law 600—including the limits on debt in of the Federal Rela- tions Act—and then began the constitution-making pro- cess. Pub. L. 600, § 3, ; see Act of July 3, 1, ; A. Fernós-Isern, Original Intent in |
Justice Breyer | 2,020 | 2 | majority | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4757657/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | of July 3, 1, ; A. Fernós-Isern, Original Intent in the Constitution of Puerto Rico 13 (2d ed. 2002). Puerto Rico’s popularly ratified Constitution, which Con- gress accepted with a few fairly minor changes, does not in- volve the President or the Senate in the appointment pro- cess for local officials. That Constitution provides for the election of Puerto Rico’s Governor and legislators. Art. III, Art. IV, And it provides for gubernatorial appoint- ment (and Puerto Rican Senate confirmation) of cabinet of- ficers. Art. IV, The upshot is that Puerto Rico’s history reflects long- standing use of various methods for selecting officials with primarily local responsibilities. This history is consistent with the history of other entities that fall within the scope of Article IV and with the history of the District of Colum- bia. See at 10–11. And it comports with our prece- dents, which have long acknowledged that Congress may structure local governments under Article IV and Article I in ways that do not precisely mirror the constitutional blue- print for the National Government. See, e.g., Cf. Glidden Co. v. Zdanok, 370 U.S. 530, (1962) (plurality opinion) (recognizing that local governments created by Congress could, like govern- ments of the States, “dispense with protections deemed in- herent in a separation of governmental powers”). Some- times Congress has specified the use of methods that would FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court satisfy the Appointments Clause, other times it has speci- fied methods that would not satisfy the Appointments Clause, including elections and appointment by local offi- cials. Officials with primarily local duties have often fallen into the latter categories. We know of no case endorsing an Appointments Clause based challenge to such selection methods. Indeed, to read Appointments Clause constraints as binding Puerto Rican officials with primarily local duties would work havoc with Puerto Rico’s (federally ratified) democratic methods for selecting many of its officials. We thus conclude that while the Appointments Clause does restrict the appointment of “Officers of the United States” with duties in or related to the District of Columbia or an Article IV entity, it does not restrict the appointment of local officers that Congress vests with primarily local du- ties under Article IV, or Article I, cl. 17. B The question remains whether the Board members have primarily local powers and duties. We note that the Clause qualifies the phrase “Officers of the United States” with the words “whose Appointments shall be established by Law.” And we also note that PROMESA says that the Board |
Justice Breyer | 2,020 | 2 | majority | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4757657/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | And we also note that PROMESA says that the Board is “an entity within the territorial government” and “shall not be considered a department, agency, establish- ment, or instrumentality of the Federal Government.” But the most these words show is that Congress did not intend to make the Board members “Officers of the United States.” It does not prove that, inso- far as the Constitution is concerned, they succeeded. But we think they have. Congress did not simply state that the Board is part of the local Puerto Rican government. Rather, Congress also gave the Board a structure, a set of duties, and related powers all of which are consistent with this statement. Cite as: 590 U. S. (2020) 15 Opinion of the Court The government of Puerto Rico pays the Board’s ex- penses, including the salaries of its employees (the mem- bers serve without pay). ; see at 556. The Board possesses investigatory powers. It can hold hearings. It can issue subpoenas, subject to Puerto Rico’s limits on personal jurisdiction and enforceable under Puerto Rico’s laws. ), And it can enforce those subpoenas in (and only in) Puerto Rico’s courts. 104(f )(2), 106(a), 562. From its own offices in or outside of Puerto Rico, the Board works with the elected government of Puerto Rico to develop a fiscal plan that provides “a method to achieve fis- cal responsibility and access to the capital markets.” If it finds it necessary, the Board can develop its own budget for Puerto Rico which is “deemed approved” and becomes the operative budget. It can ensure compliance with the plan and budget by reviewing the Puerto Rico government’s laws and spending and by “direct[ing]” corrections or taking “such [other] actions as it considers necessary,” including pre- venting a law from taking effect. 203(d), 204(a), at 569, 571. The Board controls the issuance of new debt for Puerto Rico. The Board also may initiate bankruptcy proceedings for Puerto Rico or its instrumentalities. It may take any related “action necessary on behalf of,” and it serves as “the representative of,” Puerto Rico or its instru- mentalities. 15, These proceedings take place in the U. S. District Court for Puerto Rico. 07, To repeat: The Board has broad investigatory powers: It can administer oaths, issue subpoenas, take evidence and demand data from governments and creditors alike. But these powers are backed by Puerto Rican, not federal, law: Subpoenas are governed by Puerto Rico’s personal jurisdic- tion statute; false testimony is punishable under the law of 16 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, |
Justice Breyer | 2,020 | 2 | majority | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4757657/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court Puerto Rico; the Board must seek enforcement of its sub- poenas by filing in the courts of Puerto Rico. See –561. These powers are primarily local in nature. The Board also oversees the development of Puerto Rico’s fiscal and budgetary plans. It receives and evaluates pro- posals from the elected Governor and legislature. It can create a budget “deemed” to be that of Puerto Rico. It can intervene when budgetary constraints are violated. And it has authority over the issuance of new debt. at 563–575. These powers, too, are quintessentially lo- cal. Each concerns the finances of the Commonwealth, not of the United States. The Board members in this respect discharge duties ordinarily held by local officials. Last, the Board has the power to initiate bankruptcy pro- ceedings. But in doing so, it acts not on behalf of the United States, but on behalf of, and in the interests of, Puerto Rico. The proceedings take place in federal court; but the same is true of all persons or entities who seek bankruptcy protec- tion. The Board here acts as a local government that might take precisely the same actions. See, e.g., 11 U.S. C. 921 (related to bankruptcies of local govern- ments). Some Board actions, of course, may have nationwide con- sequences. But the same can be said of many actions taken by many Governors or other local officials. Taking actions with nationwide consequences does not automatically transform a local official into an “Officer of the United States.” The challengers rely most heavily on the nation- wide effects of the bankruptcy proceedings. E.g., Brief for Aurelius et al. 31; Brief for Petitioner Unión de Trabaja- dores de la Industria Eléctrica y Riego, Inc. (UTIER) 49. But the same might be said of any major municipal, or even corporate, bankruptcy. E.g., In re Detroit, (Bkrtcy. Ct. ED Mich. 2013) (restructuring $18 billion in municipal debt). Cite as: 590 U. S. (2020) 17 Opinion of the Court In short, the Board possesses considerable power—in- cluding the authority to substitute its own judgment for the considered judgment of the Governor and other elected offi- cials. But this power primarily concerns local matters. Congress’ law thus substitutes a different process for deter- mining certain local policies (related to local fiscal respon- sibility) in respect to local matters. And that is the critical point for current purposes. The local nature of the legisla- tion’s expressed purposes, the representation of local inter- ests in bankruptcy proceedings, the focus of the Board’s |
Justice Breyer | 2,020 | 2 | majority | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4757657/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | inter- ests in bankruptcy proceedings, the focus of the Board’s powers upon local expenditures, the local logistical support, the reliance on local laws in aid of the Board’s procedural powers—all these features when taken together and judged in the light of Puerto Rico’s history (and that of the Territo- ries and the District of Columbia)—make clear that the Board’s members have primarily local duties, such that their selection is not subject to the constraints of the Ap- pointments IV The Court of Appeals, pointing to three of this Court’s cases, reached the opposite conclusion. See Buckley v. Valeo, v. Commis- sioner, and Lucia v. SEC, 585 U. S. It pointed out that the Court, in those cases, dis- cussed the term “Officer of the United States,” and it con- cluded that, for Appointments Clause purposes, an appoin- tee is such an “officer” if “(1) the appointee occupies a ‘continuing’ position established by federal law; (2) the ap- pointee ‘exercis[es] significant authority’; and (3) the signif- icant authority is exercised ‘pursuant to the laws of the United States.’ ” The Court of Appeals concluded that the Board members satisfied this test. See at 856–857. We do not believe these three cases set forth the critical legal test relevant here, however, and we do not apply any 18 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court test they might enunciate. Each of the cases considered an Appointments Clause problem concerning the importance or significance of duties that were indisputably federal or national in nature. In Buckley, the question was whether members of the Federal Election Commission—appointees carrying out federal-election related duties—were “officers” for Appointments Clause purposes. In the Court asked the same question about special federal trial judges serving on federal tax courts. And in Lucia the Court asked the same question about federal administrative law judges carrying out Securities and Exchange Commission duties. Here, PROMESA, a federal law, creates the Board and its duties, and no one doubts their significance. But we cannot stop there. To do so would ignore the history we have dis- cussed—history stretching back to the founding. See at 10–13. And failing to take account of the nature of an appointee’s federally created duties, i.e., whether they are primarily local versus primarily federal, would threaten in- terference with democratic (or local appointment) selection methods in numerous Article IV Territories and perhaps the District of Columbia as well. See, e.g., 48 U.S. C. (providing for an elected Governor of Guam); (same for Virgin Islands); District of Columbia Self-Government Act, ; |
Justice Breyer | 2,020 | 2 | majority | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4757657/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | (same for Virgin Islands); District of Columbia Self-Government Act, ; 87 Stat. 790 (describing D. C. Mayor’s appointment powers); 48 U.S. C. c (same for Guam’s Governor); (same for Virgin Islands). There is no reason to understand the Appointments Clause—which, at least in part, seeks to advance democratic accountability and broaden appoint- ments-related responsibility, see at 6–7—as making it significantly more difficult for local residents of such ar- eas to share responsibility for the implementation of (stat- utorily created) primarily local duties. Neither the text nor the history of the Clause commands such a result. Neither do or MWAA, help Cite as: 590 U. S. (2020) 19 Opinion of the Court those challenging the Board’s constitutional legitimacy. Lebron considered whether, for First Amendment purposes, Amtrak was a governmental or a private entity. 513 U.S., at 379. All here agree that the Board is a Government en- tity, but that fact does not answer the “primarily local ver- sus primarily federal” question. In MWAA, the Court held that separation-of-powers principles forbid Members of Congress to become members of a board that controls fed- erally owned –276 and INS v. Chadha, ). The Court expressly declined to answer any question related to the Appoint- ments n. 23. While we have found no case from this Court directly on point, we believe that the Court’s analysis in O’Donoghue v. United States, and especially v. United States, provides a rough analogy. In O’Donoghue, the Court considered whether Article III’s tenure and salary protections applied to judges of the courts in the District of Columbia. The Court held that they did. Those courts, it believed, were “ ‘courts of the United States’ ” and “recipients of the judicial power of the United States.” 289 U.S., at 548. The judges’ salaries conse- quently could not be reduced. In however, the Court reached what might seem the precisely opposite conclusion. A criminal defendant, in- voking O’Donoghue, argued that the D. C. Superior Court Judge could not constitutionally preside over the case be- cause the judge lacked Article III’s tenure protection, namely, life tenure. But the Court rejected the defendant’s argument. Why? How did it ex- plain O’Donoghue? The difference, said the Court, lies in the fact that, in the meantime, Congress had changed the nature of the District of Columbia court. at 406–407; see District of Columbia Court Reform and Criminal Procedure Act of 20 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court 1970, Congress changed what had been a uni- fied court system where judges adjudicated both local |
Justice Breyer | 2,020 | 2 | majority | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4757657/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | a uni- fied court system where judges adjudicated both local and federal issues into separate court systems, in one of which judges adjudicated primarily local issues. Courts in that category had criminal jurisdiction over only those cases brought “ ‘under any law applicable exclusively to the District of Columbia.’ ” Its judges served for 15-year terms. This Court, in considered a local judge presiding over a local court. Congress had created that court in the exercise of its Article I power to “exercise exclusive Legisla- tion in all Cases whatsoever” over the District of Columbia. See Art I, cl. 17. The “focus” of these courts was “pri- marily upon matters of strictly local concern.” 411 U.S., at 407. Hence, the nature of those courts was a “far cry” from that of the courts at issue in O’Donoghue. The Court added that Congress had created non-Article III courts under its Article IV powers. It wrote that Con- gress could also create non-Article III courts under its Arti- cle I powers. And it held that judges serv- ing on those non-Article III courts lacked Article III protections. concerned Article I of the Constitution, not Arti- cle IV. And it concerned “the judicial Power of the United States,” not “Officers of the United States.” But it provides a rough analogy. It holds that Article III protections do not apply to an Article I court “focus[ed],” unlike the courts at issue in O’Donoghue, primarily on local matters. Here, Congress expressly invoked a constitutional provision al- lowing it to make local debt-related law (Article IV); it ex- pressly located the Board within the local government of Puerto Rico; it clearly indicated that it intended the Board’s members to be local officials; and it gave them primarily local powers, duties, and responsibilities. In his concurring opinion, JUSTICE THOMAS criticizes the Cite as: 590 U. S. (2020) 21 Opinion of the Court inquiry we set out—whether an officer’s duties are primar- ily local or primarily federal—as too “amorphous,” post, at 10. But we think this is the test established by the Consti- tution’s text, as illuminated by historical practice. And we cannot see how Congress could avoid the strictures of the Appointments Clause by adding to a federal officer’s other obligations a large number of local duties. Indeed, we think that our test, tied as it is to both the text and the history of the Appointments Clause, is more rigorous than the bare inquiry into the “nature” of the officer’s authority that JUSTICE THOMAS proposes, and we believe it is more faith- ful to the Clause’s |
Justice Breyer | 2,020 | 2 | majority | Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC | https://www.courtlistener.com/opinion/4757657/financial-oversight-and-management-bd-for-puerto-rico-v-aurelius/ | we believe it is more faith- ful to the Clause’s original meaning. V We conclude, for the reasons stated, that the Constitu- tion’s Appointments Clause applies to the appointment of officers of the United States with powers and duties in and in relation to Puerto Rico, but that the congressionally man- dated process for selecting members of the Financial Over- sight and Management Board for Puerto Rico does not vio- late that Given this conclusion, we need not consider the request by some of the parties that we overrule the much-criticized “Insular Cases” and their progeny. See, e.g., (opinion of Brown, J.); (1922); (plurality opin- ion) (indicating that the Insular Cases should not be further extended); see also Brief for Official Committee of Unse- cured Creditors of All Title III Debtors (Other than COFINA) 20–25 (arguing that the Insular Cases support reversal on the Appointments Clause issue); Brief for UTIER 64–66 (encouraging us to overrule the Insular Cases); Brief for Virgin Islands Bar Association as Amicus Curiae 13–18 ; Cabranes, Citizenship and the Amer- ican Empire, 436–442 (1978) (criti- cizing the Insular Cases); Littlefield, The Insular Cases, 15 22 FINANCIAL OVERSIGHT AND MANAGEMENT BD. FOR PUERTO RICO v. AURELIUS INVESTMENT, LLC Opinion of the Court Harv. L. Rev. 169 Those cases did not reach this issue, and whatever their continued validity we will not extend them in these cases. See at Neither, since we hold the appointment method valid, need we consider the application of the de facto officer doc- trine. See (dis- cussing the doctrine); see also, e.g., Brief for Aurelius et al. 48–69 (arguing the doctrine does not apply in this context); Brief for UTIER 69–85 ; Reply Brief for United States 26–47 (insisting to the contrary); Brief for Cross-Re- spondent COFINA Senior Bondholders’ Coalition –46 Finally, as JUSTICE SOTOMAYOR recognizes, post, at 8 (opinion concurring in judgment), we need not, and there- fore do not, decide questions concerning the application of the Federal Relations Act and Public Law 600. No party has argued that those Acts bear any significant relation to the answer to the Appointments Clause question now be- fore us. For these reasons, we reverse the judgment of the Court of Appeals and remand the cases for further proceedings consistent with this opinion. It is so ordered. Cite as: 590 U. S. (2020) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES Nos. 18–1334, 18–75, 18–96, 18–15 and 18–1521 FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, PETITIONER 18–1334 v. AURELIUS INVESTMENT, LLC, ET AL. AURELIUS INVESTMENT, LLC, ET AL., PETITIONERS 18–75 |
Justice Brennan | 1,980 | 13 | concurring | Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY | https://www.courtlistener.com/opinion/110312/central-hudson-gas-elec-corp-v-public-serv-commn-of-ny/ | One of the major difficulties in this case is the proper characterization of the Commission's Policy Statement. I find it impossible to determine on the present record whether the Commission's ban on all "promotional" advertising, in contrast to "institutional and informational" advertising, see ante, at 559, is intended to encompass more than "commercial speech." I am inclined to think that MR. JUSTICE STEVENS is correct that the Commission's order prohibits more than mere proposals to engage in certain kinds of commercial transactions, and therefore I agree with his conclusion that the ban surely violates the First and Fourteenth Amendments. But even on the assumption that the Court is correct that the Commission's order reaches only commercial speech, I agree with MR. JUSTICE BLACKMUN that "[n]o differences between commercial speech and other protected speech justify suppression of commercial speech in order to influence public conduct through manipulation of the availability of information." Post, at 578. Accordingly, with the qualifications implicit in the preceding *573 paragraph, I join the opinions of MR. JUSTICE BLACKMUN and MR. JUSTICE STEVENS concurring in the judgment. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN joins, concurring in the judgment. I agree with the Court that the Public Service Commission's ban on promotional advertising of electricity by public utilities is inconsistent with the First and Fourteenth Amendments. I concur only in the Court's judgment, however, because I believe the test now evolved and applied by the Court is not consistent with our prior cases and does not provide adequate protection for truthful, nonmisleading, noncoercive commercial speech. The Court asserts, ante, at 566, that "a four-part analysis has developed" from our decisions concerning commercial speech. Under this four-part test a restraint on commercial "communication [that] is neither misleading nor related to unlawful activity" is subject to an intermediate level of scrutiny, and suppression is permitted whenever it "directly advances" a "substantial" governmental interest and is "not more extensive than is necessary to serve that interest." Ante, at 564 and 566. I agree with the Court that this level of intermediate scrutiny is appropriate for a restraint on commercial speech designed to protect consumers from misleading or coercive speech, or a regulation related to the time, place, or manner of commercial speech. I do not agree, however, that the Court's four-part test is the proper one to be applied when a State seeks to suppress information about a product in order to manipulate a private economic decision that the State cannot or has not regulated or outlawed directly. Since the Court, without citing empirical data or other authority, finds |
Justice Brennan | 1,980 | 13 | concurring | Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY | https://www.courtlistener.com/opinion/110312/central-hudson-gas-elec-corp-v-public-serv-commn-of-ny/ | the Court, without citing empirical data or other authority, finds a "direct link" between advertising and energy consumption, it leaves open the possibility that the State may suppress advertising of electricity in order to lessen demand for electricity. I, of course, agree with the Court that, *574 in today's world, energy conservation is a goal of paramount national and local importance. I disagree with the Court, however, when it says that suppression of speech may be a permissible means to achieve that goal. MR. JUSTICE STEVENS appropriately notes: "The justification for the regulation is nothing more than the expressed fear that the audience may find the utility's message persuasive. Without the aid of any coercion, deception, or misinformation, truthful communication may persuade some citizens to consume more electricity than they otherwise would." Post, at 581. The Court recognizes that we have never held that commercial speech may be suppressed in order to further the State's interest in discouraging purchases of the underlying product that is advertised. Ante, at 566, n. 9. Permissible restraints on commercial speech have been limited to measures designed to protect consumers from fraudulent, misleading, or coercive sales techniques.[1] Those designed to deprive consumers of information about products or services that are legally offered for sale consistently have been invalidated.[2] I seriously doubt whether suppression of information concerning the availability and price of a legally offered product is ever a permissible way for the State to "dampen" demand for or use of the product. Even though "commercial" speech is involved, such a regulatory measure strikes at the heart of the First Amendment. This is because it is a covert attempt *575 by the State to manipulate the choices of its citizens, not by persuasion or direct regulation, but by depriving the public of the information needed to make a free choice. As the Court recognizes, the State's policy choices are insulated from the visibility and scrutiny that direct regulation would entail and the conduct of citizens is molded by the information that government chooses to give them. Ante, at 566, n. 9 ("We review with special care regulations that entirely suppress commercial speech in order to pursue a nonspeech-related policy. In those circumstances, a ban on speech could screen from public view the underlying governmental policy"). See Rotunda, The Commercial Speech Doctrine in the Supreme Court, 1976 U. Ill. Law Forum 1080, 1080-1083. If the First Amendment guarantee means anything, it means that, absent clear and present danger, government has no power to restrict expression because of the effect its message is likely to have on the |
Justice Brennan | 1,980 | 13 | concurring | Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY | https://www.courtlistener.com/opinion/110312/central-hudson-gas-elec-corp-v-public-serv-commn-of-ny/ | the effect its message is likely to have on the public. See generally Comment, First Amendment Protection for Commercial Advertising: The New Constitutional Doctrine, Our cases indicate that this guarantee applies even to commercial speech. In Virginia Pharmacy we held that Virginia could not pursue its goal of encouraging the public to patronize the "professional pharmacist" (one who provided individual attention and a stable pharmacist-customer relationship) by "keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering." We noted that our decision left the State free to pursue its goal of maintaining high standards among its pharmacists by "requir[ing] whatever professional standards it wishes of its pharmacists." We went on in Virginia Pharmacy to discuss the types of regulation of commercial speech that, due to the "commonsense differences" between this form of speech and other forms, are or may be constitutionally permissible. We indicated that government may impose reasonable "time, *576 place, and manner" restrictions, and that it can deal with false, deceptive, and misleading commercial speech. We noted that the question of advertising of illegal transactions and the special problems of the electronic broadcast media were not presented. Concluding with a restatement of the type of restraint that is not permitted, we said: "What is at issue is whether a State may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and its recipients. [W]e conclude that the answer to this [question] is in the negative." Virginia Pharmacy did not analyze the State's interests to determine, whether they were "substantial." Obviously, preventing professional dereliction and low quality health care are "substantial," legitimate, and important state goals. Nor did the opinion analyze the ban on speech to determine whether it "directly advance[d]," ante, at 566, 569, these goals. We also did not inquire whether a "more limited regulation of commercial expression," ante, at 570, would adequately serve the State's interests. Rather, we held that the State "may not [pursue its goals] by keeping the public in ignorance." 425 U.S., (Emphasis supplied.) Until today, this principle has governed. In Linmark we considered whether a town could ban "For Sale" signs on residential property to further its goal of promoting stable, racially integrated housing. We did note that the record did not establish that the ordinance was necessary to enable the State to achieve its goal. The holding of Linmark, however, was much broader.[3] We stated: "The constitutional defect in this ordinance, however, *577 is far more basic. The Township Council here, like the Virginia Assembly |
Justice Brennan | 1,980 | 13 | concurring | Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY | https://www.courtlistener.com/opinion/110312/central-hudson-gas-elec-corp-v-public-serv-commn-of-ny/ | more basic. The Township Council here, like the Virginia Assembly in Virginia Pharmacy Bd., acted to prevent its residents from obtaining certain information which pertains to sales activity in Willingboro. The Council has sought to restrict the free flow of these data because it fears that otherwise homeowners will make decisions inimical to what the Council views as the homeowners' self-interest and the corporate interest of the township: they will choose to leave town. The Council's concern, then, was not with any commercial aspect of "For Sale" signswith offerors communicating offers to offereesbut with the substance of the information communicated to Willingboro citizens." The Court in Linmark resolved beyond all doubt that a strict standard of review applies to suppression of commercial information, where the purpose of the restaint is to influence behavior by depriving citizens of information. The Court followed the strong statement above with an explicit adoption of the standard advocated by Mr. Justice Brandeis in his concurring opinion in : "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression." also applied to content-based restraints on commercial speech the same standard of review we have applied to other varieties of speech. There the Court held that a ban on advertising of contraceptives could not be justified *578 by the State's interest in avoiding "`legitimation' of illicit sexual behavior" because the advertisements could not be characterized as "`directed to inciting or producing imminent lawless action and likely to incite or produce such action,'" quoting Our prior references to the "`commonsense differences'" between commercial speech and other speech "`suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired.'" Linmark quoting Virginia Pharmacy -772, n. 24. We have not suggested that the "commonsense differences" between commercial speech and other speech justify relaxed scrutiny of restraints that suppress truthful, nondeceptive, noncoercive commercial speech. The differences articulated by the Court, See ante, at 564, n. 6, justify a more permissive approach to regulation of the manner of commercial speech for the purpose of protecting consumers from deception or coercion, and these differences explain why doctrines designed to prevent "chilling" of protected speech are inapplicable to commercial speech. No differences between commercial speech and other protected speech justify suppression of commercial speech in order to influence public conduct through manipulation of the availability of information. The Court stated in : "Appellants suggest no |
Justice Brennan | 1,980 | 13 | concurring | Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY | https://www.courtlistener.com/opinion/110312/central-hudson-gas-elec-corp-v-public-serv-commn-of-ny/ | of information. The Court stated in : "Appellants suggest no distinction between commercial and noncommercial speech that would render these discredited arguments meritorious when offered to justify prohibitions on commercial speech. On the contrary, such arguments are clearly directed not at any commercial aspect of the prohibited advertising but at the ideas conveyed and form of expressionthe core of First Amendment values." 431 U. S., n. 28 *579 It appears that the Court would permit the State to ban all direct advertising of air conditioning, assuming that a more limited restriction on such advertising would not effectively deter the public from cooling its homes. In my view, our cases do not support this type of suppression. If a governmental unit believes that use or overuse of air conditioning is a serious problem, it must attack that problem directly, by prohibiting air conditioning or regulating thermostat levels. Just as the Commonwealth of Virginia may promote professionalism of pharmacists directly, so too New York may not promote energy conservation "by keeping the public in ignorance." Virginia Pharmacy 425 U. S., MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN joins, concurring in the judgment. Because "commercial speech" is afforded less constitutional protection than other forms of speech,[1] it is important that the commercial speech concept not be defined too broadly lest speech deserving of greater constitutional protection be inadvertently suppressed. The issue in this case is whether New York's prohibition on the promotion of the use of electricity through advertising is a ban on nothing but commercial speech. In my judgment one of the two definitions the Court uses in addressing that issue is too broad and the other may be somewhat too narrow. The Court first describes commercial speech as "expression related solely to the economic interests of the speaker and its audience." Ante, at 561. Although it is not entirely clear whether this definition uses the subject matter of the speech or the motivation of the speaker as the limiting factor, it seems clear to me that it encompasses speech that is entitled to the maximum protection afforded by the First Amendment. Neither a labor leader's exhortation to *580 strike, nor an economist's dissertation on the money supply, should receive any lesser protection because the subject matter concerns only the economic interests of the audience. Nor should the economic motivation of a speaker qualify his constitutional protection; even Shakespeare may have been motivated by the prospect of pecuniary reward. Thus, the Court's first definition of commercial speech is unquestionably too broad.[2] The Court's second definition refers to "`speech proposing a commercial |
Justice Brennan | 1,980 | 13 | concurring | Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY | https://www.courtlistener.com/opinion/110312/central-hudson-gas-elec-corp-v-public-serv-commn-of-ny/ | The Court's second definition refers to "`speech proposing a commercial transaction.'" Ante, at 562. A saleman's solicitation, a broker's offer, and a manufacturer's publication of a price list or the terms of his standard warranty would unquestionably fit within this concept.[3] Presumably, the definition is intended to encompass advertising that advises possible buyers of the availability of specific products at specific prices and describes the advantages of purchasing such items. Perhaps it also extends to other communications that do little more than make the name of a product or a service more familiar to the general public. Whatever the precise contours of the concept, and perhaps it is too early to enunciate an exact formulation, I am persuaded that it should not include the entire range of communication that is embraced within the term "promotional advertising." This case involves a governmental regulation that completely bans promotional advertising by an electric utility. This ban encompasses a great deal more than mere proposals to engage in certain kinds of commercial transactions. It prohibits all advocacy of the immediate or future use of electricity. *581 It curtails expression by an informed and interested group of persons of their point of view on questions relating to the production and consumption of electrical energyquestions frequently discussed and debated by our political leaders. For example, an electric company's advocacy of the use of electric heat for environmental reasons, as opposed to wood-burning stoves, would seem to fall squarely within New York's promotional advertising ban and also within the bounds of maximum First Amendment protection. The breadth of the ban thus exceeds the boundaries of the commercial speech concept, however that concept may be defined.[4] The justification for the regulation is nothing more than the expressed fear that the audience may find the utility's message persuasive. Without the aid of any coercion, deception, or misinformation, truthful communication may persuade some citizens to consume more electricity than they otherwise would. I assume that such a consequence would be undesirable and that government may therefore prohibit and punish the unnecessary or excessive use of electricity. But if the perceived harm associated with greater electrical usage is not sufficiently serious to justify direct regulation, surely it does not constitute the kind of clear and present danger that can justify the suppression of speech. *582 Although they were written in a different context, the words used by Mr. Justice Brandeis in his concurring opinion in 376-, explain my reaction to the prohibition against advocacy involved in this case: "But even advocacy of violation, however reprehensible morally, is not a justification for |
Justice Brennan | 1,980 | 13 | concurring | Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY | https://www.courtlistener.com/opinion/110312/central-hudson-gas-elec-corp-v-public-serv-commn-of-ny/ | of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated. "Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution." (Footnote omitted.)[5] *583 In sum, I concur in the result because I do not consider this to be a "commercial speech" case. Accordingly, I see no need to decide whether the Court's four-part analysis, ante, at 566, adequately protects commercial speechas properly defined in the face of a blanket ban of the sort involved in this case. MR. |
Justice Scalia | 1,997 | 9 | majority | Bennett v. Spear | https://www.courtlistener.com/opinion/118096/bennett-v-spear/ | This is a challenge to a biological opinion issued by the Fish and Service in accordance with the Endangered Species ct of 1973 (ES), as amended, 16 U.S. C. 1531 et seq., concerning the operation of the Klamath Irrigation Project by the Bureau of Reclamation, and the project's impact on two varieties of endangered fish. The question for decision is whether the petitioners, who have competing economic and other interests in Klamath Project water, have standing to seek judicial review of the biological opinion under the citizen-suit provision of the ES, 1540(g)(1), and the dministrative Procedure ct (P), as amended, 5 U.S. C. 701 et seq. I The ES requires the Secretary of the Interior to promulgate regulations listing those species of animals that are "threatened" or "endangered" under specified criteria, and *158 to designate their "critical habitat." 16 U.S. C. 1533. The ES further requires each federal agency to "insure that any action authorized, funded, or carried out by such agency. is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary. to be critical." 1536(a)(2). If an agency determines that action it proposes to take may adversely affect a listed species, it must engage in formal consultation with the Fish and Service, as delegate of the Secretary, ibid.; 50 CFR 402.14 after which the Service must provide the agency with a written statement (the Biological Opinion) explaining how the proposed action will affect the species or its habitat, 16 U.S. C. 1536(b)(3)(). If the Service concludes that the proposed action will "jeopardize the continued existence of any [listed] species or threatened species or result in the destruction or adverse modification of [critical habitat]," 1536(a)(2), the Biological Opinion must outline any "reasonable and prudent alternatives" that the Service believes will avoid that consequence, 1536(b)(3)(). dditionally, if the Biological Opinion concludes that the agency action will not result in jeopardy or adverse habitat modification, or if it offers reasonable and prudent alternatives to avoid that consequence, the Service must provide the agency with a written statement (known as the Incidental Take Statement) specifying the "impact of such incidental taking on the species," any "reasonable and prudent measures that the [Service] considers necessary or appropriate to minimize such impact," and setting forth "the terms and conditions. that must be complied with by the Federal agency. to implement [those measures]." 1536(b)(4). The Klamath Project, one of the oldest federal reclamation schemes, is a series of lakes, rivers, dams, and |
Justice Scalia | 1,997 | 9 | majority | Bennett v. Spear | https://www.courtlistener.com/opinion/118096/bennett-v-spear/ | reclamation schemes, is a series of lakes, rivers, dams, and irrigation canals in northern California and southern Oregon. The project was undertaken by the Secretary of the Interior *159 pursuant to the Reclamation ct of 1902, as amended, 43 U.S. C. 3 et seq., and the ct of Feb. 9, 1905, and is administered by the Bureau of Reclamation, which is under the Secretary's jurisdiction. In 1992, the Bureau notified the Service that operation of the project might affect the Lost River Sucker (Deltistes luxatus) and Shortnose Sucker (Chasmistes brevirostris), species of fish that were listed as endangered in 1988, see -233 (1988). fter formal consultation with the Bureau in accordance with 50 CFR 402.14 the Service issued a Biological Opinion which concluded that the "`longterm operation of the Klamath Project was likely to jeopardize the continued existence of the Lost River and shortnose suckers.' " pp. to Pet. for Cert. 3. The Biological Opinion identified "reasonable and prudent alternatives" the Service believed would avoid jeopardy, which included the maintenance of minimum water levels on Clear Lake and Gerber reservoirs. The Bureau later notified the Service that it intended to operate the project in compliance with the Biological Opinion. Petitioners, two Oregon irrigation districts that receive Klamath Project water and the operators of two ranches within those districts, filed the present action against the director and regional director of the Service and the Secretary of the Interior. Neither the Bureau nor any of its officials is named as defendant. The complaint asserts that the Bureau "has been following essentially the same procedures for storing and releasing water from Clear Lake and Gerber reservoirs throughout the twentieth century," ; that "[t]here is no scientifically or commercially available evidence indicating that the populations of endangered suckers in Clear Lake and Gerber reservoirs have declined, are declining, or will decline as a result" of the Bureau's operation of the Klamath Project, ; that "[t]here is no commercially or scientifically available evidence indicating that the restrictions on lake levels imposed in the Biological Opinion *160 will have any beneficial effect on the. populations of suckers in Clear Lake and Gerber reservoirs," ; and that the Bureau nonetheless "will abide by the restrictions imposed by the Biological Opinion," Petitioners' complaint included three claims for relief that are relevant here. The first and second claims allege that the Service's jeopardy determination with respect to Clear Lake and Gerber reservoirs, and the ensuing imposition of minimum water levels, violated 7 of the ES, 16 U.S. C. 1536. The third claim is that the imposition of minimum water |
Justice Scalia | 1,997 | 9 | majority | Bennett v. Spear | https://www.courtlistener.com/opinion/118096/bennett-v-spear/ | The third claim is that the imposition of minimum water elevations constituted an implicit determination of critical habitat for the suckers, which violated 4 of the ES, 16 U.S. C. 1533(b)(2), because it failed to take into consideration the designation's economic impact.[1] Each of the claims also states that the relevant action violated the P's prohibition of agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S. C. 706(2)(). The complaint asserts that petitioners' use of the reservoirs and related waterways for "recreational, aesthetic and commercial purposes, as well as for their primary sources of irrigation water," will be "irreparably damaged" by the actions complained of, pp. to Pet. for Cert. 34, and that the restrictions on water delivery "recommended" by the Biological Opinion "adversely affect plaintiffs by substantially reducing the quantity of available irrigation water," In essence, petitioners claim a competing interest in the water the Biological Opinion declares necessary for the preservation of the suckers. The District Court dismissed the complaint for lack of jurisdiction. It concluded that petitioners did not have *161 standing because their "recreational, aesthetic, and commercial interests. do not fall within the zone of interests sought to be protected by ES." The Court of ppeals for the Ninth Circuit affirmed. It held that the "zone of interests" test limits the class of persons who may obtain judicial review not only under the P, but also under the citizen-suit provision of the ES, 16 U.S. C. 1540(g), and that "only plaintiffs who allege an interest in the preservation of endangered species fall within the zone of interests protected by the ES," We granted certiorari. In this Court, petitioners raise two questions: first, whether the prudential standing rule known as the "zone of interests" test applies to claims brought under the citizensuit provision of the ES; and second, if so, whether petitioners have standing under that test notwithstanding that the interests they seek to vindicate are economic rather than environmental. In this Court, the Government has made no effort to defend the reasoning of the Court of ppeals. Instead, it advances three alternative grounds for affirmance: (1) that petitioners fail to meet the standing requirements imposed by rticle III of the Constitution; (2) that the ES's citizen-suit provision does not authorize judicial review of the types of claims advanced by petitioners; and (3) that judicial review is unavailable under the P because the Biological Opinion does not constitute final agency action. II We first turn to the question the Court of ppeals found dispositive: whether petitioners lack |
Justice Scalia | 1,997 | 9 | majority | Bennett v. Spear | https://www.courtlistener.com/opinion/118096/bennett-v-spear/ | question the Court of ppeals found dispositive: whether petitioners lack standing by virtue of the zone-of-interests test. lthough petitioners contend that their claims lie both under the ES and the P, we look first at the ES because it may permit petitioners to recover their litigation costs, see 16 U.S. C. 1540(g)(4), and because the P by its terms independently authorizes review *162 only when "there is no other adequate remedy in a court," 5 U.S. C. 704. The question of standing "involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." To satisfy the "case" or "controversy" requirement of rticle III, which is the "irreducible constitutional minimum" of standing, a plaintiff must, generally speaking, demonstrate that he has suffered "injury in fact," that the injury is "fairly traceable" to the actions of the defendant, and that the injury will likely be redressed by a favorable decision. ; Valley Christian In addition to the immutable requirements of rticle III, "the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing." Like their constitutional counterparts, these "judicially self-imposed limits on the exercise of federal jurisdiction," are "founded in concern about the properand properly limitedrole of the courts in a democratic society," at ; but unlike their constitutional counterparts, they can be modified or abrogated by Congress, see Numbered among these prudential requirements is the doctrine of particular concern in this case: that a plaintiff's grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit. See at ; Valley The "zone of interests" formulation was first employed in ssociation of Data Service Organizations, There, certain data processors sought to invalidate a ruling by the Comptroller of the Currency authorizing national banks to sell data processing *163 services on the ground that it violated, inter alia, 4 of the Bank Service Corporation ct of 1962, which prohibited bank service corporations from engaging in "any activity other than the performance of bank services for banks." The Court of ppeals had held that the banks' data-processing competitors were without standing to challenge the alleged violation of 4. In reversing, we stated the applicable prudential standing requirement to be "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Data Data and its companion case, applied the zone-of-interests test to suits under the P, but later cases have applied it also in |
Justice Scalia | 1,997 | 9 | majority | Bennett v. Spear | https://www.courtlistener.com/opinion/118096/bennett-v-spear/ | the P, but later cases have applied it also in suits not involving review of federal administrative action, see U.S. 439, ; Boston Stock ; see also Note, Defense of the "Zone of Interests" Standing Test, 1983 Duke L. J. 447, 455-456, and nn. 40-49 (cataloging lower court decisions), and have specifically listed it among other prudential standing requirements of general application, see, e. g., at ; Valley We have made clear, however, that the breadth of the zone of interests varies according to the provisions of law at issue, so that what comes within the zone of interests of a statute for purposes of obtaining judicial review of administrative action under the "`generous review provisions' " of the P may not do so for other purposes, (quoting Data ). Congress legislates against the background of our prudential standing doctrine, which applies unless it is expressly negated. See Cf. ssociated Gen. Contractors of Cal., The first question in the present case is whether the ES's citizen-suit provision, set forth in pertinent part in the margin,[2] negates the zone-of-interests test (or, perhaps more accurately, expands the zone of interests). We think it does. The first operative portion of the provision says that "any person may commence a civil suit"an authorization of remarkable breadth when compared with the language Congress *165 ordinarily uses. Even in some other environmental statutes, Congress has used more restrictive formulations, such as "[any person] having an interest which is or may be adversely affected," 33 U.S. C. 1365(g) (Clean Water ct); see also U.S. C. 1270(a) (Surface Mining Control and Reclamation ct) ; "[a]ny person suffering legal wrong," 15 U.S. C. 797(b)(5) (Energy Supply and Environmental Coordination ct); or "any person having a valid legal interest which is or may be adversely affected. whenever such action constitutes a case or controversy," 42 U.S. C. 9124(a) (Ocean Thermal Energy Conversion ct). nd in contexts other than the environment, Congress has often been even more restrictive. In statutes concerning unfair trade practices and other commercial matters, for example, it has authorized suit only by "[a]ny person injured in his business or property," 7 U.S. C. 25(c); see also 15 U.S. C. 72 or only by "competitors, customers, or subsequent purchasers," 298(b). Our readiness to take the term "any person" at face value is greatly augmented by two interrelated considerations: that the overall subject matter of this legislation is the environment (a matter in which it is common to think all persons have an interest) and that the obvious purpose of the particular provision in question is to encourage enforcement |
Justice Scalia | 1,997 | 9 | majority | Bennett v. Spear | https://www.courtlistener.com/opinion/118096/bennett-v-spear/ | of the particular provision in question is to encourage enforcement by so-called "private attorneys general"evidenced by its elimination of the usual amount-in-controversy and diversity-ofcitizenship requirements, its provision for recovery of the costs of litigation (including even expert witness fees), and its reservation to the Government of a right of first refusal to pursue the action initially and a right to intervene later. Given these factors, we think the conclusion of expanded standing follows a fortiori from our decision in which held that standing was expanded to the full extent permitted under rticle III by 810(a) of the Civil Rights ct of 1968, 42 U.S. C. 3610(a) (1986 ed.), that authorized *166 "[a]ny person who claims to have been injured by a discriminatory housing practice" to sue for violations of the ct. There also we relied on textual evidence of a statutory scheme to rely on private litigation to ensure compliance with the ct. See -211. The statutory language here is even clearer, and the subject of the legislation makes the intent to permit enforcement by everyman even more plausible. It is true that the plaintiffs here are seeking to prevent application of environmental restrictions rather than to implement them. But the "any person" formulation applies to all the causes of action authorized by 1540(g)not only to actions against private violators of environmental restrictions, and not only to actions against the Secretary asserting underenforcment under 1533, but also to actions against the Secretary asserting over enforcement under 1533. s we shall discuss below, the citizen-suit provision does favor environmentalists in that it covers all private violations of the ES but not all failures of the Secretary to meet his administrative responsibilities; but there is no textual basis for saying that its expansion of standing requirements applies to environmentalists alone. The Court of ppeals therefore erred in concluding that petitioners lacked standing under the zone-of-interests test to bring their claims under the ES's citizen-suit provision. III The Government advances several alternative grounds upon which it contends we may affirm the dismissal of petitioners' suit. Because the District Court and the Court of ppeals found the zone-of-interests ground to be dispositive, these alternative grounds were not reached below. respondent is entitled, however, to defend the judgment on any ground supported by the record, see ; Matsushita Elec. Industrial The asserted grounds were *167 raised below, and have been fully briefed and argued here; we deem it an appropriate exercise of our discretion to consider them now rather than leave them for disposition on remand. The Government's first contention is that petitioners' complaint fails |
Justice Scalia | 1,997 | 9 | majority | Bennett v. Spear | https://www.courtlistener.com/opinion/118096/bennett-v-spear/ | remand. The Government's first contention is that petitioners' complaint fails to satisfy the standing requirements imposed by the "case" or "controversy" provision of rticle III. This "irreducible constitutional minimum" of standing requires: (1) that the plaintiff have suffered an "injury in fact"an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained ofthe injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Defenders of 504 U. S., at Petitioners allege, among other things, that they currently receive irrigation water from Clear Lake, that the Bureau "will abide by the restrictions imposed by the Biological Opinion," pp. to Pet. for Cert. 32, and that "[t]he restrictions on lake levels imposed in the Biological Opinion adversely affect [petitioners] by substantially reducing the quantity of available irrigation water," The Government contends, first, that these allegations fail to satisfy the "injury in fact" element of rticle III standing because they demonstrate only a diminution in the aggregate amount of available water, and do not necessarily establish (absent information concerning the Bureau's water allocation practices) that petitioners will receive less water. This contention overlooks, however, the proposition that each element of rticle III standing "must be supported in the same way as any other matter on which the plaintiff bears the burden *168 of proof, i. e., with the manner and degree of evidence required at the successive stages of the litigation." Defenders of Thus, while a plaintiff must "set forth" by affidavit or other evidence "specific facts" to survive a motion for summary judgment, Fed. Rule Civ. Proc. 56(e), and must ultimately support any contested facts with evidence adduced at trial, "[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we `presum[e] that general allegations embrace those specific facts that are necessary to support the claim.' " Defenders of ). Given petitioners' allegation that the amount of available water will be reduced and that they will be adversely affected thereby, it is easy to presume specific facts under which petitioners will be injuredfor example, the Bureau's distribution of the reduction pro rata among its customers. The complaint alleges the requisite injury in fact. The Government also |
Justice Scalia | 1,997 | 9 | majority | Bennett v. Spear | https://www.courtlistener.com/opinion/118096/bennett-v-spear/ | complaint alleges the requisite injury in fact. The Government also contests compliance with the second and third rticle III standing requirements, contending that any injury suffered by petitioners is neither "fairly traceable" to the Service's Biological Opinion, nor "redressable" by a favorable judicial ruling, because the "action agency" (the Bureau) retains ultimate responsibility for determining whether and how a proposed action shall go forward. See 50 CFR 402.15(a) "If petitioners have suffered injury," the Government contends, "the proximate cause of their harm is an (as yet unidentified) decision by the Bureau regarding the volume of water allocated to petitioners, not the biological opinion itself." Brief for Respondents 22. This wrongly equates injury "fairly traceable" to the defendant with injury as to *169 which the defendant's actions are the very last step in the chain of causation. While, as we have said, it does not suffice if the injury complained of is "`th[e] result [of] the independent action of some third party not before the court,' " Defenders of at ), that does not exclude injury produced by determinative or coercive effect upon the action of someone else. By the Government's own account, while the Service's Biological Opinion theoretically serves an "advisory function," (1986), in reality it has a powerful coercive effect on the action agency: "The statutory scheme. presupposes that the biological opinion will play a central role in the action agency's decision making process, and that it will typically be based on an administrative record that is fully adequate for the action agency's decision insofar as ES issues are concerned. [] federal agency that chooses to deviate from the recommendations contained in a biological opinion bears the burden of `articulat[ing] in its administrative record its reasons for disagreeing with the conclusions of a biological opinion.' (1986). In the government's experience, action agencies very rarely choose to engage in conduct that the Service has concluded is likely to jeopardize the continued existence of a listed species." Brief for Respondents 20-21. What this concession omits to say, moreover, is that the action agency must not only articulate its reasons for disagreement (which ordinarily requires species and habitat investigations that are not within the action agency's expertise), but that it runs a substantial risk if its (inexpert) reasons turn out to be wrong. Biological Opinion of the sort rendered here alters the legal regime to which the action agency is subject. When it "offers reasonable and prudent alternatives" *170 to the proposed action, a Biological Opinion must include a so-called "Incidental Take Statement"a written statement specifying, among other things, those "measures that |
Justice Scalia | 1,997 | 9 | majority | Bennett v. Spear | https://www.courtlistener.com/opinion/118096/bennett-v-spear/ | Statement"a written statement specifying, among other things, those "measures that the [Service] considers necessary or appropriate to minimize [the action's impact on the affected species]" and the "terms and conditions. that must be complied with by the Federal agency. to implement [such] measures." 16 U.S. C. 1536(b)(4). ny taking that is in compliance with these terms and conditions "shall not be considered to be a prohibited taking of the species concerned." 1536(o )(2). Thus, the Biological Opinion's Incidental Take Statement constitutes a permit authorizing the action agency to "take" the endangered or threatened species so long as it respects the Service's "terms and conditions." The action agency is technically free to disregard the Biological Opinion and proceed with its proposed action, but it does so at its own peril (and that of its employees), for "any person" who knowingly "takes" an endangered or threatened species is subject to substantial civil and criminal penalties, including imprisonment. See 1540(a) and (b) (authorizing civil fines of up to $25,000 per violation and criminal penalties of up to $50,000 and imprisonment for one year); see also The Service itself is, to put it mildly, keenly aware of the virtually determinative effect of its biological opinions. The Incidental Take Statement at issue in the present case begins by instructing the reader that any taking of a listed species is prohibited unless "such taking is in compliance with this incidental take statement," and warning that "[t]he measures described below are non discretionary, and must be taken by [the Bureau]." pp. 92-93. Given all of this, and given petitioners' allegation that the Bureau had, until issuance of the Biological Opinion, operated the Klamath Project in the same manner throughout the 20th century, it is not *1 difficult to conclude that petitioners have met their burden which is relatively modest at this stage of the litigationof alleging that their injury is "fairly traceable" to the Service's Biological Opinion and that it will "likely" be redressed i. e., the Bureau will not impose such water level restrictionsif the Biological Opinion is set aside. B Next, the Government contends that the ES's citizen-suit provision does not authorize judicial review of petitioners' claims. The relevant portions of that provision provide that "any person may commence a civil suit on his own behalf "() to enjoin any person, including the United States and any other governmental instrumentality or agency. who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or "(C) against the Secretary [of Commerce or the Interior] where there is |
Justice Scalia | 1,997 | 9 | majority | Bennett v. Spear | https://www.courtlistener.com/opinion/118096/bennett-v-spear/ | the Secretary [of Commerce or the Interior] where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary." 16 U.S. C. 1540(g)(1). The Government argues that judicial review is not available under subsection () because the Secretary is not "in violation" of the ES, and under subsection (C) because the Secretary has not failed to perform any nondiscretionary duty under 1533. 1 Turning first to subsection (C): that it covers only violations of 1533 is clear and unambiguous. Petitioners' first and second claims, which assert that the Secretary has violated 1536, are obviously not reviewable under this provision. However, as described above, the third claim alleges *172 that the Biological Opinion implicitly determines critical habitat without complying with the mandate of 1533(b)(2) that the Secretary "tak[e] into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." This claim does come within subsection (C). The Government seeks to avoid this result by appealing to the limitation in subsection (C) that the duty sought to be enforced not be "discretionary with the Secretary." But the terms of 1533(b)(2) are plainly those of obligation rather than discretion: "The Secretary shall designate critical habitat, and make revisions thereto, on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." (Emphasis added.) It is true that this is followed by the statement that, except where extinction of the species is at issue, "[t]he Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat." However, the fact that the Secretary's ultimate decision is reviewable only for abuse of discretion does not alter the categorical requirement that, in arriving at his decision, he "tak[e] into consideration the economic impact, and any other relevant impact," and use "the best scientific data available." It is rudimentary administrative law that discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decision making. See Since it is the omission of these required procedures that petitioners complain of, their 1533 claim is reviewable under 1540(g)(1)(C). 2 Having concluded that petitioners' 1536 claims are not reviewable under subsection (C), we are left with the question *173 whether they are reviewable under subsection (), which authorizes injunctive actions against any person |
Justice Scalia | 1,997 | 9 | majority | Bennett v. Spear | https://www.courtlistener.com/opinion/118096/bennett-v-spear/ | under subsection (), which authorizes injunctive actions against any person "who is alleged to be in violation" of the ES or its implementing regulations. The Government contends that the Secretary's conduct in implementing or enforcing the ES is not a "violation" of the ES within the meaning of this provision. In its view, 1540(g)(1)() is a means by which private parties may enforce the substantive provisions of the ES against regulated partiesboth private entities and Government agenciesbut is not an alternative avenue for judicial review of the Secretary's implementation of the statute. We agree. The opposite contention is simply incompatible with the existence of 1540(g)(1)(C), which expressly authorizes suit against the Secretary, but only to compel him to perform a nondiscretionary duty under 1533. That provision would be superfluousand, worse still, its careful limitation to 1533 would be nullifiedif 1540(g)(1)() permitted suit against the Secretary for any "violation" of the ES. It is the "`cardinal principle of statutory construction' [that] [i]t is our duty `to give effect, if possible, to every clause and word of a statute' rather than to emasculate an entire section." United pplication of that principle here clearly requires us to conclude that the term "violation" does not include the Secretary's failure to perform his duties as administrator of the ES. Moreover, the ES uses the term "violation" elsewhere in contexts in which it is most unlikely to refer to failure by the Secretary or other federal officers and employees to perform their duties in administering the ES. Section 1540(a), for example, authorizes the Secretary to impose substantial civil penalties on "[a]ny person who knowingly violates. any provision of [the ES]," and entrusts the Secretary with the power to "remi[t] or mitigat[e]" any such penalty. We know *174 of no precedent for applying such a provision against those who administer (as opposed to those who are regulated by) a substantive law. Nor do we think it likely that the statute meant to subject the Secretary and his officers and employees to criminal liability under 1540(b), which makes it a crime for "[a]ny person [to] knowingly violat[e] any provision of [the ES]," or that 1540(e)(3), which authorizes law enforcement personnel to "make arrests without a warrant for any violation of [the ES]," was intended to authorize warrantless arrest of the Secretary or his delegates for "knowingly" failing to use the best scientific data available. Finally, interpreting the term "violation" to include any errors on the part of the Secretary in administering the ES would effect a wholesale abrogation of the P's "final agency action" requirement. ny procedural default, |
Justice Scalia | 1,997 | 9 | majority | Bennett v. Spear | https://www.courtlistener.com/opinion/118096/bennett-v-spear/ | of the P's "final agency action" requirement. ny procedural default, even one that had not yet resulted in a final disposition of the matter at issue, would form the basis for a lawsuit. We are loathe to produce such an extraordinary regime without the clearest of statutory direction, which is hardly present here. Viewed in the context of the entire statute, 1540(g) (1)()'s reference to any "violation" of the ES cannot be interpreted to include the Secretary's maladministration of the ES. Petitioners' claims are not subject to judicial review under 1540(g)(1)(). IV The foregoing analysis establishes that the principal statute invoked by petitioners, the ES, does authorize review of their 1533 claim, but does not support their claims based upon the Secretary's alleged failure to comply with 1536. To complete our task, we must therefore inquire whether these 1536 claims may nonetheless be brought under the dministrative Procedure ct, which authorizes a court to "set aside agency action, findings, and conclusions found to be. arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S. C. 706. *175 No one contends (and it would not be maintainable) that the causes of action against the Secretary set forth in the ES's citizen-suit provision are exclusive, supplanting those provided by the P. The P, by its terms, provides a right to judicial review of all "final agency action for which there is no other adequate remedy in a court," 704, and applies universally "except to the extent that(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law," 701(a). Nothing in the ES's citizen-suit provision expressly precludes review under the P, nor do we detect anything in the statutory scheme suggesting a purpose to do so. nd any contention that the relevant provision of 16 U.S. C. 1536(a)(2) is discretionary would fly in the face of its text, which uses the imperative "shall." In determining whether the petitioners have standing under the zone-of-interests test to bring their P claims, we look not to the terms of the ES's citizen-suit provision, but to the substantive provisions of the ES, the alleged violations of which serve as the gravamen of the complaint. See National The classic formulation of the zone-of-interests test is set forth in Data 397 U. S., : "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." The Court of ppeals concluded that this test was not met here, since petitioners are |
Justice Scalia | 1,997 | 9 | majority | Bennett v. Spear | https://www.courtlistener.com/opinion/118096/bennett-v-spear/ | that this test was not met here, since petitioners are neither directly regulated by the ES nor seek to vindicate its overarching purpose of species preservation. That conclusion was error. Whether a plaintiff's interest is "arguably. protected. by the statute" within the meaning of the zone-ofinterests test is to be determined not by reference to the overall purpose of the ct in question (here, species preservation), but by reference to the particular provision of law *176 upon which the plaintiff relies. It is difficult to understand how the Ninth Circuit could have failed to see this from our cases. In Data itself, for example, we did not require that the plaintiffs' suit vindicate the overall purpose of the Bank Service Corporation ct of 1962, but found it sufficient that their commercial interest was sought to be protected by the anti competition limitation contained in 4 of the ctthe specific provision which they alleged had been violated. See Data s we said with the utmost clarity in National "the plaintiff must establish that the injury he complains of. falls within the `zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. " See also ir Courier U.S. 517, In the claims that we have found not to be covered by the ES's citizen-suit provision, petitioners allege a violation of 7 of the ES, 16 U.S. C. 1536, which requires, inter alia, that each agency "use the best scientific and commercial data available," 1536(a)(2). Petitioners contend that the available scientific and commercial data show that the continued operation of the Klamath Project will not have a detrimental impact on the endangered suckers, that the imposition of minimum lake levels is not necessary to protect the fish, and that by issuing a Biological Opinion which makes unsubstantiated findings to the contrary the defendants have acted arbitrarily and in violation of 1536(a)(2). The obvious purpose of the requirement that each agency "use the best scientific and commercial data available" is to ensure that the ES not be implemented haphazardly, on the basis of speculation or surmise. While this no doubt serves to advance the ES's overall goal of species preservation, we think it readily apparent that another objective (if not indeed the primary one) is to avoid needless economic dislocation *177 produced by agency officials zealously but unintelligently pursuing their environmental objectives. That economic consequences are an explicit concern of the ES is evidenced by 1536(h), which provides exemption from 1536(a)(2)'s no-jeopardy mandate where there are no reasonable and prudent alternatives to the agency |
Justice Scalia | 1,997 | 9 | majority | Bennett v. Spear | https://www.courtlistener.com/opinion/118096/bennett-v-spear/ | there are no reasonable and prudent alternatives to the agency action and the benefits of the agency action clearly outweigh the benefits of any alternatives. We believe the "best scientific and commercial data" provision is similarly intended, at least in part, to prevent uneconomic (because erroneous) jeopardy determinations. Petitioners' claim that they are victims of such a mistake is plainly within the zone of interests that the provision protects. B The Government contends that petitioners may not obtain judicial review under the P on the theory that the Biological Opinion does not constitute "final agency action," 5 U.S. C. 704, because it does not conclusively determine the manner in which Klamath Project water will be allocated: "Whatever the practical likelihood that the [Bureau] would adopt the reasonable and prudent alternatives (including the higher lake levels) identified by the Service, the Bureau was not legally obligated to do so. Even if the Bureau decided to adopt the higher lake levels, moreover, nothing in the biological opinion would constrain the [Bureau's] discretion as to how the available water should be allocated among potential users." Brief for Respondents 33. This confuses the question whether the Secretary's action is final with the separate question whether petitioners' harm is "fairly traceable" to the Secretary's action (a question we have already resolved against the Government, see Part III, ). s a general matter, two conditions must be satisfied for agency action to be "final": First, the action must *178 mark the "consummation" of the agency's decision making process, Chicago & Southern ir Lines, it must not be of a merely tentative or interlocutory nature. nd second, the action must be one by which "rights or obligations have been determined," or from which "legal consequences will flow," Port of Boston Marine Terminal ssn. v. Rederiaktiebolaget Transatlantic, It is uncontested that the first requirement is met here; and the second is met because, as we have discussed above, the Biological Opinion and accompanying Incidental Take Statement alter the legal regime to which the action agency is subject, authorizing it to take the endangered species if (but only if) it complies with the prescribed conditions. In this crucial respect the present case is different from the cases upon which the Government relies, and In the former case, the agency action in question was the Secretary of Commerce's presentation to the President of a report tabulating the results of the decennial census; our holding that this did not constitute "final agency action" was premised on the observation that the report carried "no direct consequences" and served "more like a tentative |
Justice Scalia | 1,997 | 9 | majority | Bennett v. Spear | https://www.courtlistener.com/opinion/118096/bennett-v-spear/ | carried "no direct consequences" and served "more like a tentative recommendation than a final and binding determination." nd in the latter case, the agency action in question was submission to the President of base closure recommendations by the Secretary of Defense and the Defense Base Closure and Realignment Commission; our holding that this was not "final agency action" followed from the fact that the recommendations were in no way binding on the President, who had absolute discretion to accept or reject them. -4. Unlike the reports in Franklin and Dalton, which were purely advisory and in no way affected the legal rights of the relevant actors, the Biological Opinion at issue here has direct and appreciable legal consequences. * * * *179 The Court of ppeals erred in affirming the District Court's dismissal of petitioners' claims for lack of jurisdiction. Petitioners' complaint alleges facts sufficient to meet the requirements of rticle III standing, and none of their ES claims is precluded by the zone-of-interests test. Petitioners' 1533 claim is reviewable under the ES's citizensuit provision, and petitioners' remaining claims are reviewable under the P. The judgment of the Court of ppeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice O'Connor | 1,984 | 14 | majority | Minnesota State Bd. for Community Colleges v. Knight | https://www.courtlistener.com/opinion/111100/minnesota-state-bd-for-community-colleges-v-knight/ | The State of Minnesota authorizes its public employees to bargain collectively over terms and conditions of employment. It also requires public employers to engage in official exchanges of views with their professional employees on policy questions relating to employment but outside the scope of mandatory bargaining. If professional employees forming an appropriate bargaining unit have selected an exclusive representative for mandatory bargaining, their employer may exchange views on nonmandatory subjects only with the exclusive representative. The question presented in these cases is whether this restriction on participation in the nonmandatory-subject exchange process violates the constitutional rights of professional employees within the bargaining unit who are not members of the exclusive representative and who may disagree with its views. We hold that it does not. I A In 1971, the Minnesota Legislature adopted the Public Employment Labor Relations Act (PELRA), et seq. (1982), to establish "orderly and constructive relationships between all public employers and their employees." 179.61. The public employers covered by the law are, broadly speaking, the State and its political subdivisions, agencies, and instrumentalities. 179.63. In its amended form, as in its original form, PELRA provides for *274 the division of public employees into appropriate bargaining units and establishes a procedure, based on majority support within a unit, for the designation of an exclusive bargaining agent for that unit. 179.67, 179.71, 179.741. The statute requires public employers to "meet and negotiate" with exclusive representatives concerning the "terms and conditions of employment," which the statute defines to mean "the hours of employment, the compensation therefor and the employer's personnel policies affecting the working conditions of the employees." 179.63, 179.67, 179.71. The employer's and employees' representatives must seek an agreement in good faith. 179.63, subd. 16. PELRA also grants professional employees, such as college faculty, the right to "meet and confer" with their employers on matters related to employment that are outside the scope of mandatory negotiations. 179.63, 179.65. This provision rests on the recognition that "professional employees possess knowledge, expertise, and dedication which is helpful and necessary to the operation and quality of public services and which may assist public employers in developing their policies." 179.73. The statute declares it to be the State's policy to "encourage close cooperation between public employers and professional employees" by providing for "meet and confer" sessions on all employment-related questions not subject to mandatory bargaining. There is no statutory provision concerning the "meet and confer" process, however, that requires good-faith efforts to reach agreement. See Minneapolis Federation of Teachers Local PELRA requires professional employees to select a representative to "meet and confer" with their |
Justice O'Connor | 1,984 | 14 | majority | Minnesota State Bd. for Community Colleges v. Knight | https://www.courtlistener.com/opinion/111100/minnesota-state-bd-for-community-colleges-v-knight/ | to select a representative to "meet and confer" with their public employer. Minn. Stat. 179.73 (1982). If professional employees in an appropriate bargaining unit have an exclusive representative to "meet and negotiate" with their employer, that representative serves as the "meet and confer" representative as well. *275 Indeed, the employer may neither "meet and negotiate" nor "meet and confer" with any members of that bargaining unit except through their exclusive representative. 179.66, subd. 7. This restriction, however, does not prevent professional employees from submitting advice or recommendations to their employer as part of their work assignment. Moreover, nothing in PELRA restricts the right of any public employee to speak on any "matter related to the conditions or compensation of public employment or their betterment" as long as doing so "is not designed to and does not interfere with the full faithful and proper performance of the duties of employment or circumvent the rights of the exclusive representative if there be one." 179.65, subd. 1. B Appellant Minnesota State Board for Community Colleges (State Board) operates the Minnesota community college system. At the time of trial, the system comprised 18 institutions located throughout the State. Each community college is administered by a president, who reports, through the chancellor of the system, to the State Board. Prior to 1971, Minnesota's community colleges were governed in a variety of ways. On some campuses, faculty had a strong voice in administrative policymaking, expressed through organizations such as faculty senates. On other campuses, the administration consulted very little with the faculty. Irrespective of the level of faculty involvement in governance, however, the administrations of the colleges retained final authority to make policy. Following enactment of PELRA, appellant Minnesota Community College Faculty Association (MCCFA)[1] was designated the exclusive representative of the faculty of the *276 State's community colleges, which had been deemed a single bargaining unit.[2] MCCFA has "met and negotiated" and "met and conferred" with the State Board since 1971. The result has been the negotiation of successive collective-bargaining agreements in the intervening years and, in order to implement the "meet and confer" provision, a restructuring of governance practices in the community college system. On the state level, MCCFA and the Board established "meet and confer" committees to discuss questions of policy applicable to the entire system. On the campus level, the MCCFA chapters and the college administrations created local "meet and confer" committees also referred to as "exchange of views" committees to discuss questions of policy applicable only to the campus. The committees on both levels have discussed such topics as the |
Justice O'Connor | 1,984 | 14 | majority | Minnesota State Bd. for Community Colleges v. Knight | https://www.courtlistener.com/opinion/111100/minnesota-state-bd-for-community-colleges-v-knight/ | committees on both levels have discussed such topics as the selection and evaluation of administrators, academic accreditation, student affairs, curriculum, and fiscal planning all policy matters within the control of the college administrations and the State Board. App. to Juris. Statement A-49. The State Board considers the views expressed by the statewide faculty "meet and confer" committees to be the faculty's official collective position. It recognizes, however, that not every instructor agrees with the official faculty view on every policy question. Not every instructor in the bargaining unit is a member of MCCFA, and MCCFA has selected only its own members to represent it on "meet and confer" committees. Accordingly, all faculty have been free to communicate to the State Board and to local administrations their views on questions within the coverage of the statutory "meet and confer" provision. at A-50, A-52. They have frequently done so.[3] With the possible exception *277 of a brief period of adjustment to the new governance structure, during which some administrators were reluctant to communicate informally with faculty, individual faculty members have not been impeded by either MCCFA or college administrators in the communication of their views on policy questions. at A-50. Nor has PELRA ever been construed to impede such communication.[4] *278 C Appellees are 20 Minnesota community college faculty instructors who are not members of MCCFA. In December 1974, they filed suit in the United States District Court for the District of Minnesota, challenging the constitutionality of MCCFA's exclusive representation of community college faculty in both the "meet and negotiate" and "meet and confer" processes. A three-judge District Court was convened to hear the case. A Special Master appointed by the court conducted the trial in 1980 and submitted recommended findings of fact in early 1981. at A-54 to A-81. The three-judge District Court issued its findings of fact in late 1981, at A-32 to A-54, and its decision on the legal claims in early 1982, The court rejected appellees' attack on the constitutionality of exclusive representation in bargaining over terms and conditions of employment, relying chiefly on The court agreed with appellees, however, that PELRA, as applied in the community college system, infringes First and Fourteenth Amendment speech and associational rights of faculty who *279 do not wish to join MCCFA. By granting MCCFA the right to select the faculty representatives for the "meet and confer" committees and by permitting MCCFA to select only its own members, the court held, PELRA unconstitutionally deprives non-MCCFA instructors of "a fair opportunity to participate in the selection of governance representatives." The court granted |
Justice O'Connor | 1,984 | 14 | majority | Minnesota State Bd. for Community Colleges v. Knight | https://www.courtlistener.com/opinion/111100/minnesota-state-bd-for-community-colleges-v-knight/ | participate in the selection of governance representatives." The court granted declaratory relief in accordance with its holdings and enjoined MCCFA from selecting "meet and confer" representatives without providing all faculty the fair opportunity that its selection practice had unconstitutionally denied. Appellees, the State Board, and MCCFA all filed appeals with this Court, invoking jurisdiction under 28 U.S. C. 1253. The Court summarily affirmed the judgment insofar as the District Court held the "meet and negotiate" provisions of PELRA to be valid. The Court thus rejected appellees' argument, based on A. L. A. Schechter Poultry and on that PELRA unconstitutionally delegated legislative authority to private parties. The Court's summary affirmance also rejected the constitutional attack on PELRA's restriction to the exclusive representative of participation in the "meet and negotiate" process. On March 28, 1983, the Court noted probable jurisdiction in the appeals by the Board and MCCFA. Several weeks later, following an election held pursuant to a newly established scheme for selecting "meet and confer" representatives, the three-judge District Court modified its injunction to require a specific voting system for the selection of faculty "meet and confer" representatives.[5] This Court *280 permitted appellants to add to their appeal a challenge to this new relief. We now reverse the District Court's holding that the "meet and confer" provisions of PELRA deprive appellees of their constitutional rights. II A Appellees do not and could not claim that they have been unconstitutionally denied access to a public forum. A "meet and confer" session is obviously not a public forum. It is a fundamental principle of First Amendment doctrine, articulated most recently in Perry that for government property to be a public forum, it must by long tradition or by government designation be open to the public at large for assembly and speech. Minnesota college administration meetings convened to obtain faculty advice on policy questions have neither by long tradition nor by government designation been open for general public participation. The District Court did not so find, and appellees do not contend otherwise. *281 The rights at issue in these cases are accordingly wholly unlike those at stake in Madison Joint School District No. The Court in that case upheld a claim of access to a public forum, applying standard public-forum First Amendment analysis. See Perry at 45 (citing Madison Joint School District as an example of a case involving a "forum generally open to the public" for expressive activity). The school board meetings at issue there were "opened [as] a forum for direct citizen involvement," and "public participation [was] permitted," The First Amendment was |
Justice O'Connor | 1,984 | 14 | majority | Minnesota State Bd. for Community Colleges v. Knight | https://www.courtlistener.com/opinion/111100/minnesota-state-bd-for-community-colleges-v-knight/ | involvement," and "public participation [was] permitted," The First Amendment was violated when the meetings were suddenly closed to one segment of the public even though they otherwise remained open for participation by the public at large.[6] These cases, by contrast, involve no selective closure of a generally open forum, and hence any reliance on the Madison case would be misplaced. Indeed, the claim in these cases is not even a claim of access to a nonpublic forum, such as the school mail system at issue in Perry A private organization *282 there claimed a right of access to government property for use in speaking to potentially willing listeners among a group of private individuals and public officials not acting in an official capacity. The organization claimed no right to have anyone, public or private, attend to its message. See also United States Postal ; ; ; Appellees here make a claim quite different from those made in the nonpublic-forum cases. They do not contend that certain government property has been closed to them for use in communicating with private individuals or public officials not acting as such who might be willing to listen to them. Rather, they claim an entitlement to a government audience for their views. "Meet and confer" sessions are occasions for public employers, acting solely as instrumentalities of the State, to receive policy advice from their professional employees. Minnesota has simply restricted the class of persons to whom it will listen in its making of policy. Thus, appellees' principal claim is that they have a right to force officers of the State acting in an official policymaking capacity to listen to them in a particular formal setting.[7] The nonpublic-forum cases concern government's authority to provide assistance to certain persons in communicating with other persons who would not, as listeners, be acting for the government. As the discussion below makes clear, the claim that government is constitutionally obliged to listen to appellees involves entirely different considerations from those on which resolution of nonpublic-forum cases turn. Hence, the nonpublic-forum cases are *283 largely irrelevant to assessing appellees' novel constitutional claim.[8] The District Court agreed with appellees' claim to the extent that it was limited to faculty participation in governance of institutions of higher education. The court reasoned that "issues in higher education have a special character." Tradition and public policy support the right of faculty to participate in policymaking in higher education, the court stated, and the "right of expression by faculty members also holds a special place under our Constitution." Because of the "vital concern for academic freedom," |
Justice O'Connor | 1,984 | 14 | majority | Minnesota State Bd. for Community Colleges v. Knight | https://www.courtlistener.com/opinion/111100/minnesota-state-bd-for-community-colleges-v-knight/ | our Constitution." Because of the "vital concern for academic freedom," the District Court concluded, "when the state compels creation of a representative governance system in higher education and utilizes that forum for ongoing debate and resolution of virtually all issues outside the scope of collective bargaining, it must afford every faculty member a fair opportunity to participate in the selection of governance representatives." This conclusion is erroneous. Appellees have no constitutional right to force the government to listen to their views. They have no such right as members of the public, as government employees, or as instructors in an institution of higher education. I The Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy. In Investment this Court rejected a claim to such a right founded on the Due Process *284 Clause of the Fourteenth Amendment. Speaking for the Court, Justice Holmes explained: "Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule." In Madison Joint School District No. which sustained a First Amendment challenge to a restriction on access to a public forum, the Court recognized the soundness of Justice Holmes' reasoning outside the due process context. The Court stated: "Plainly, public bodies may confine their meetings to specified subject matter and may hold nonpublic sessions to transact business." n. 8. Policymaking organs in our system of government have never operated under a constitutional constraint requiring them to afford every interested member of the public an opportunity to present testimony before any policy is adopted. Legislatures throughout the Nation, including Congress, frequently enact bills on which no hearings have been held or on which testimony has been received from only a select group. Executive agencies likewise make policy decisions of widespread application without permitting unrestricted public testimony. Public officials at all levels of government daily make policy decisions based only on the advice they decide they need and choose to hear. To recognize a constitutional right to participate directly in government policymaking |
Justice O'Connor | 1,984 | 14 | majority | Minnesota State Bd. for Community Colleges v. Knight | https://www.courtlistener.com/opinion/111100/minnesota-state-bd-for-community-colleges-v-knight/ | recognize a constitutional right to participate directly in government policymaking would work a revolution in existing government practices. *285 Not least among the reasons for refusing to recognize such a right is the impossibility of its judicial definition and enforcement. Both federalism and separation-of-powers concerns would be implicated in the massive intrusion into state and federal policymaking that recognition of the claimed right would entail. Moreover, the pragmatic considerations identified by Justice Holmes in Investment are as weighty today as they were in 1915. Government makes so many policy decisions affecting so many people that it would likely grind to a halt were policymaking constrained by constitutional requirements on whose voices must be heard. "There must be a limit to individual argument in such matters if government is to go on." Absent statutory restrictions, the State must be free to consult or not to consult whomever it pleases. However wise or practicable various levels of public participation in various kinds of policy decisions may be, this Court has never held, and nothing in the Constitution suggests it should hold, that government must provide for such participation. In the Court rejected due process as a source of an obligation to listen. Nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals' communications on public issues. Indeed, in the Court rejected the suggestion. No other constitutional provision has been advanced as a source of such a requirement. Nor, finally, can the structure of government established and approved by the Constitution provide the source. It is inherent in a republican form of government that direct public participation in government policymaking is limited. See The Federalist No. 10 (J. Madison). Disagreement with public policy and disapproval of officials' responsiveness, as Justice Holmes suggested in is to be registered principally at the polls. *286 2 Appellees thus have no constitutional right as members of the public to a government audience for their policy views. As public employees, of course, they have a special interest in public policies relating to their employment. Minnesota's statutory scheme for public-employment labor relations recognizes as much. Appellees' status as public employees, however, gives them no special constitutional right to a voice in the making of policy by their government employer. In a public employees' union argued that its First Amendment rights were abridged because the public employer required employees' grievances to be filed directly with the employer and refused to recognize the union's communications concerning its members' grievances. The |
Justice O'Connor | 1,984 | 14 | majority | Minnesota State Bd. for Community Colleges v. Knight | https://www.courtlistener.com/opinion/111100/minnesota-state-bd-for-community-colleges-v-knight/ | to recognize the union's communications concerning its members' grievances. The Court rejected the argument. "The public employee surely can associate, and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so. See ; But the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it." The Court acknowledged that "[t]he First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances." The government had not infringed any of those rights, the Court concluded. "[A]ll that the [government] has done in its challenged conduct is simply to ignore the union. That it is free to do." The conduct challenged here is the converse of that challenged in Smith. There the government listened only to *287 individual employees and not to the union. Here the government "meets and confers" with the union and not with individual employees. The applicable constitutional principles are identical to those that controlled in Smith.[9] When government makes general policy, it is under no greater constitutional obligation to listen to any specially affected class than it is to listen to the public at large. 3 The academic setting of the policymaking at issue in these cases does not alter this conclusion. To be sure, there is a strong, if not universal or uniform, tradition of faculty participation in school governance, and there are numerous policy arguments to support such participation. See American Association for Higher National Association, Faculty Participation in Academic Governance ; Brief for American Association of University Professors as Amicus Curiae 3-10. But this Court has never recognized a constitutional right of faculty to participate in policymaking in academic institutions. In several cases the Court has recognized that infringement of the rights of speech and association guaranteed by the First and Fourteenth Amendments " `in the case of teachers brings the safeguards of those amendments vividly into operation.' " Those cases, however, involved individuals' rights to express their views and to associate with others for communicative purposes. See, e. g., ; (7). These rights do not entail any government obligation to listen. Smith v. Arkansas *288 State Highway Even assuming that speech rights guaranteed by the First Amendment take on a special meaning in an academic setting, they do not require government to allow teachers employed by it to participate in institutional policymaking. Faculty involvement in academic governance has much to recommend it as |
Justice O'Connor | 1,984 | 14 | majority | Minnesota State Bd. for Community Colleges v. Knight | https://www.courtlistener.com/opinion/111100/minnesota-state-bd-for-community-colleges-v-knight/ | involvement in academic governance has much to recommend it as a matter of academic policy, but it finds no basis in the Constitution. B Although there is no constitutional right to participate in academic governance, the First Amendment guarantees the right both to speak and to associate. Appellees' speech and associational rights, however, have not been infringed by Minnesota's restriction of participation in "meet and confer" sessions to the faculty's exclusive representative. The State has in no way restrained appellees' freedom to speak on any education-related issue or their freedom to associate or not to associate with whom they please, including the exclusive representative. Nor has the State attempted to suppress any ideas. It is doubtless true that the unique status of the exclusive representative in the "meet and confer" process amplifies its voice in the policymaking process. But that amplification no more impairs individual instructors' constitutional freedom to speak than the amplification of individual voice impaired the union's freedom to speak in Moreover, the exclusive representative's unique role in "meet and negotiate" sessions amplifies its voice as much as its unique role in "meet and confer" sessions, yet the Court summarily affirmed the District Court's approval of that role in these cases. Amplification of the sort claimed is inherent in government's freedom to choose its advisers. A person's right to speak is not infringed when government simply ignores that person while listening to others.[10] *289 Nor is appellees' right to speak infringed by the ability of MCCFA to "retaliate" for protected speech, as the District Court put it, by refusing to appoint them to the "meet and confer" committees. The State of Minnesota seeks to obtain MCCFA's views on policy questions, and MCCFA has simply chosen representatives who share its views on the issues to be discussed with the State. MCCFA's ability to "retaliate" by not selecting those who dissent from its views no more unconstitutionally inhibits appellees' speech than voters' power to reject a candidate for office inhibits the candidate's speech. See Similarly, appellees' associational freedom has not been impaired. Appellees are free to form whatever advocacy groups they like. They are not required to become members of MCCFA, and they do not challenge the monetary contribution they are required to make to support MCCFA's representation activities.[11] Appellees may well feel some pressure *290 to join the exclusive representative in order to give them the opportunity to serve on the "meet and confer" committees or to give them a voice in the representative's adoption of positions on particular issues. That pressure, however, is no different from the pressure |
Justice O'Connor | 1,984 | 14 | majority | Minnesota State Bd. for Community Colleges v. Knight | https://www.courtlistener.com/opinion/111100/minnesota-state-bd-for-community-colleges-v-knight/ | issues. That pressure, however, is no different from the pressure they may feel to join MCCFA because of its unique status in the "meet and negotiate" process, a status the Court has summarily approved. Moreover, the pressure is no different from the pressure to join a majority party that persons in the minority always feel. Such pressure is inherent in our system of government; it does not create an unconstitutional inhibition on associational freedom.[12] *291 C Unable to demonstrate an infringement of any First Amendment right, appellees contend that their exclusion from "meet and confer" sessions denies them equal protection of the laws in violation of the Fourteenth Amendment. This final argument is meritless. The interest of appellees that is affected the interest in a government audience for their policy views finds no special protection in the Constitution. There being no other reason to invoke heightened scrutiny, the challenged state action "need only rationally further a legitimate state purpose" to be valid under the Equal Protection Clause. Perry PELRA certainly meets that standard. The State has a legitimate interest in ensuring that its public employers hear one, and only one, voice presenting the majority view of its professional employees on employment-related policy questions, whatever other advice they may receive on those questions. Permitting selection of the "meet and confer" representatives to be made by the exclusive representative, which has its unique status by virtue of majority support within the bargaining unit, is a rational means of serving that interest. If it is rational for the State to give the exclusive representative a unique role in the "meet and negotiate" process, as the summary affirmance in appellees' appeal in this litigation presupposes, it is rational for the State to do the same in the "meet and confer" process. The goal of reaching agreement makes it imperative for an employer to have before it only one collective view of its employees when "negotiating." See[13]*292A Similarly, the goal of basing policy decisions on consideration of the majority view of its employees makes it reasonable for an employer to give only the exclusive representative a particular formal setting in which to offer advice on policy. Appellees' equal protection challenge accordingly fails. III The District Court erred in holding that appellees had been unconstitutionally denied an opportunity to participate in their public employer's making of policy. Whatever the wisdom of Minnesota's statutory scheme for professional employee consultation on employment-related policy, in academic or other settings, the scheme violates no provision of the Constitution. The judgment of the District Court is therefore Reversed. *292B |
Justice Scalia | 1,988 | 9 | majority | Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp. | https://www.courtlistener.com/opinion/112039/puerto-rico-dept-of-consumer-affairs-v-isla-petroleum-corp/ | I this case we must determie whether federal legislatio providig for cotrols over the allocatio ad pricig of petroleum products, passed i respose to the oil crisis of the early 1970's, or the legislatio subsequetly elimiatig those cotrols, pre-empts gasolie price regulatio by the Commowealth of Puerto Rico. I I 1973, Cogress passed the Emergecy Petroleum Allocatio Act (EPAA), Stat. 627, 15 U.S. C. 751 et seq., i reactio to severe market disruptios caused by a embargo o oil exports to the Uited States. The cetral provisio of the legislatio, upo which all the rest depeded, was 4, 15 U.S. C. 753, which required the Presidet to promulgate regulatios goverig allocatio ad pricig of petroleum products. The Act also cotaied a express pre-emptio provisio, 6(b), 15 U.S. C. 755(b), precludig state ad local regulatio of allocatio ad pricig i coflict with a regulatio or order uder 4.[*] As origially *498 eacted, the EPAA provided for termiatio of the Presidet's regulatory authority early i 1975, but durig that year Cogress provided for temporary extesios, ad the eacted the Eergy Policy ad Coservatio Act (EPCA), Stat. 871 (codified i scattered Titles ad sectios of Uited States Code), which ameded the EPAA to provide for gradual decotrol. The EPCA exteded the Presidet's EPAA regulatory obligatios for 40 moths, ad thereafter grated him discretioary regulatory authority util September 30, ; o that date, the statute prescribed that "[t]he authority to promulgate ad amed ay regulatio or to issue ay order uder [the EPAA] shall expire." 461, 15 U.S. C. 760g. Before eactmet of the EPAA, Puerto Rico had regulated the prices of gasolie ad other petroleum products sold i the Commowealth. The Puerto Rico Departmet of Cosumer Affairs (referred to i this litigatio as DACO, apparetly the acroym of its Spaish title, Departameto de Asutos del Cosumidor) was charged with regulatig these ad other commodities, but suspeded its regulatio of petroleum products whe the EPAA was passed i 1973. I 1975, aticipatig the expiratio of the EPAA, DACO issued a regulatio to restore its regulatory authority, but after the EPCA was passed it modified this regulatio to make it effective oly after federal price cotrols were lifted. The i the sprig of (4 1/2 years after the Presidet's regulatory authority was termiated), the Legislature of Puerto Rico imposed a excise tax o oil refiers, ad DACO issued the regulatios that are the subject of the challege here. DACO Orders of March 26, April 23, ad May 20, (App. to Pet. for Cert. 42a-45a, App. 7-12, 21-29). Amog other requiremets, these regulatios prescribed that the |
Justice Scalia | 1,988 | 9 | majority | Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp. | https://www.courtlistener.com/opinion/112039/puerto-rico-dept-of-consumer-affairs-v-isla-petroleum-corp/ | 7-12, 21-29). Amog other requiremets, these regulatios prescribed that the Secretary of DACO be give 15 days' otice of price icreases, prohibited *499 wholesalers from passig o the cost of the excise tax to retailers, ad imposed maximum profit margis o sales by wholesalers to retailers. Respodets, several oil compaies, brought actios that were cosolidated i the Uited States District Court for the District of Puerto Rico allegig, iter alia, that DACO's orders were ucostitutioal o pre-emptio grouds, ad requestig declaratory ad ijuctive relief. The District Court ejoied DACO from eforcig its regulatios, i part o the grouds that DACO's authority was pre-empted by Cogress' decisio to decotrol petroleum prices, ad petitioers appealed this determiatio to the Temporary Emergecy Court of Appeals (TECA). (Petitioers also challeged certai other aspects of the District Court's decisio i a appeal to the Uited States Court of Appeals for the First Circuit, which has stayed its proceedigs.) A divided pael of the TECA affirmed. Because of the importace of the issue preseted, we grated the petitio for certiorari. II Although Puerto Rico has a uique status i our federal system, see, e. g., Examiig the parties have assumed, ad we agree, that the test for federal pre-emptio of the law of Puerto Rico at issue here is the same as the test uder the Supremacy Clause, U. S. Cost., Art. VI, cl. 2, for pre-emptio of the law of a State. See 48 U.S. C. 734 (statutory laws of the Uited States geerally "have the same force ad effect i Puerto Rico as i the Uited States"); Helfeld, How Much of the Uited States Costitutio ad Statutes Are Applicable to the Commowealth of Puerto Rico?, 110 F. R. D. 452, 469 (Supremacy Clause applies to Puerto Rico). Cf. Examiig Board, ; Our Supremacy Clause cases typically ivolve aalysis of the *500 scope of pre-emptive itet uderlyig statutory provisios that impose federal regulatio. See, e. g., Louisiaa Public Service ; ; While the EPAA was operative, that typical questio posed relatively little difficulty, sice 6(b) explicitly pre-empted state regulatio "i coflict" with a EPAA regulatio or order. Here, however, we are preseted with the decidedly utypical claim that federal pre-emptio exists despite, ot oly the absece of a statutory provisio specifically aoucig it, but the absece of ay extat federal regulatory program with which the state regulatio might coflict ad which might therefore be thought to imply pre-emptio. Respodets' cotetio, i a utshell, is that the EPAA eviced a federal itet to eter the field of petroleum allocatio ad price regulatio, ad that the EPCA |
Justice Scalia | 1,988 | 9 | majority | Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp. | https://www.courtlistener.com/opinion/112039/puerto-rico-dept-of-consumer-affairs-v-isla-petroleum-corp/ | of petroleum allocatio ad price regulatio, ad that the EPCA ever coutermaded that itet, but merely chaged the ature of the federally imposed regime from oe of federal hads-o regulatio to oe of federally madated free-market cotrol. We have suggested elsewhere that the Costitutio permits cogressioal creatio of such a regime. See, e. g., Arkasas Electric Cooperative But to say that it ca be created is ot to say it ca be created subtly. As we have repeatedly stated, " ` "we start with the assumptio that the historic police powers of the States were ot to be superseded by the Federal Act uless that was the clear ad maifest purpose of Cogress." ' " Hillsborough quotig i tur quotig We do ot fid that clarity ad maifestess i the statutory scheme respodets rely upo here, which cosists of o more tha (1) provisios for detailed Presidetial regulatio, which remai i the curret *501 versio of the Uited States Code, but whose effect has, by subsequet statute, specifically bee decreed to expire, ad (2) a provisio pre-emptig state laws that coflict with ay Presidetial regulatio or order uder this expired authority. I the last aalysis, what respodets rely upo cosists of othig more tha excerpts from the legislative history of the EPCA which i their view (though ot i the view of petitioers) evidece a cogressioal itet that there be a free market i petroleum products. While we have frequetly said that pre-emptio aalysis requires ascertaiig cogressioal itet, see, e. g., Louisiaa Public Service Comm', we have ever meat that to sigify cogressioal itet i a vacuum, urelated to the givig of meaig to a eacted statutory text. There is o text here either 6(b), which oly pre-empts coflicts with actual federal regulatio, or ay extat federal regulatio that might plausibly be thought to imply exclusivity to which expressios of pre-emptive itet i legislative history might attach. Respodets have brought to our attetio statemets that may reflect geeral cogressioal approval of a free market i petroleum products, or geeral cogressioal belief that such a market would result from eactmet of the EPCA, or eve geeral cogressioal desire that it result. But ueacted approvals, beliefs, ad desires are ot laws. Without a text that ca, i light of those statemets, plausibly be iterpreted as prescribig federal pre-emptio it is impossible to fid that a free market was madated by federal law. Today's coclusio that the DACO regulatios are ot pre-empted was plaily foreshadowed by our decisio i I that case, the TECA had held that the EPAA pre-empted a |
Justice Scalia | 1,988 | 9 | majority | Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp. | https://www.courtlistener.com/opinion/112039/puerto-rico-dept-of-consumer-affairs-v-isla-petroleum-corp/ | case, the TECA had held that the EPAA pre-empted a state provisio barrig oil compaies from passig o to subsequet purchasers the cost of the State's gross-receipts tax. Sice, by the time we decided that appeal, the EPCA-imposed expiratio date for Presidetial authority uder the EPAA had already passed, we vacated the judgmet, agreeig * with the TECA's ow determiatio that expiratio of the EPAA " `will sigal the ed of federal cocer i this area.' " quotig Our actio was based o the theory that the pre-emptig legislatio was o ad 2. Istead of followig our decisio i Tully, the TECA relied o laguage i our subsequet decisio i Trascotietal Pipe Lie Corp. v. State Oil ad Gas Bd. of Miss., apparetly fidig there a modificatio of our pre-emptio doctrie. I Trascotietal, we retured to a issue we had previously cosidered i Norther Natural Gas Co. v. State Corporatio Comm' of Kasas, : whether a state regulatio requirig a pipelie compay to purchase gas ratably from owers with commo iterests i a gas source was pre-empted by federal legislatio. The affirmative aswer i Norther Natural had bee based o the Court's costructio of the Natural Gas Act (NGA), 15 U.S. C. 717 et seq. I Trascotietal, the questio preseted was whether the Natural Gas Policy Act of 1978 (NGPA), 15 U.S. C. 3301 et seq., "altered those characteristics of the federal regulatory scheme which provided the basis i Norther Natural for a fidig of pre-emptio." The strogest evidece of such alteratio was the NGPA's withdrawal of the type of gas purchases at issue i Trascotietal from the jurisdictio of the Federal Eergy Regulatory Commissio (FERC). We cocluded, however, that the pre-emptive force of the NGA recogized i Norther Natural was equalled by the pre-emptive force of the NGPA, because the NGPA did ot alter the comprehesive ature of the scheme, ad did ot elimiate the federal iterest i cosumer protectio, At oe poit i our Trascotietal opiio, we phrased the questio as "whether Cogress, i revisig a comprehesive federal regulatory scheme to give market forces a more sigificat role i determiig the supply, the demad, ad *503 the price of atural gas, iteded to give the States the power it had deied FERC." I the decisio below, the TECA apparetly iterpreted this as the euciatio of a ew pre-emptio test, ad proceeded to search the legislative history of the EPCA for evidece of a affirmative itetio that the States assume the price-regulatig role that the Federal Govermet was abadoig. Fidig oe, ad further fidig the expressio of cogressioal setimets |
Justice Scalia | 1,988 | 9 | majority | Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp. | https://www.courtlistener.com/opinion/112039/puerto-rico-dept-of-consumer-affairs-v-isla-petroleum-corp/ | Fidig oe, ad further fidig the expressio of cogressioal setimets favorig the free market, it cocluded that the States were pre-empted. This mistook our itet. Trascotietal was ot meat to aouce a ew rule of burde-shiftig wheever the Federal Govermet termiates or reduces its regulatio of a field of commerce, replacig the ormal eed for fidig a federal itet to pre-empt with a eed to fid a federal itet to retrasfer authority to the States. To the cotrary, a "clear ad maifest purpose" of pre-emptio is always required. We demaded a affirmative itet to retrasfer authority i Trascotietal because oly that could have refuted the pre-emptive itet already maifest i the revised, but oetheless "comprehesive," federal regulatory scheme. Respodets would draw exaggerated ifereces from aother statemet i Trascotietal, to the effect that " `[a] federal decisio to forgo regulatio i a give area may imply a authoritative federal determiatio that the area is best left uregulated, ad i that evet would have as much pre-emptive force as a decisio to regulate.' " Ib quotig Arkasas Electric Cooperative Corp., 461 U. S., at That was obviously ot meat i a uqualified sese; otherwise, deliberate federal iactio could always imply pre-emptio, which caot be. There is o federal pre-emptio i vacuo, without a costitutioal text or a federal statute to assert it. Where a comprehesive federal scheme itetioally leaves a portio of the regulated field without cotrols, the the pre-emptive iferece ca be draw ot from federal iactio aloe, but from iactio joied with actio. *504 That is ot what we have here. Cogress has withdraw from all substatial ivolvemet i petroleum allocatio ad price regulatio. There beig o extat actio that ca create a iferece of pre-emptio i a uregulated segmet of a otherwise regulated field, pre-emptio, if it is iteded, must be explicitly stated. To adopt the imagiative aalogy set forth i the Solicitor Geeral's amicus brief, repeal of EPAA regulatio did ot leave behid a pre-emptive gri without a statutory cat. For the reasos stated, the judgmet of the TECA is Reversed. JUSTICE O'CONNOR took o part i the cosideratio or decisio of this case. |
Justice Rehnquist | 1,978 | 19 | second_dissenting | First Nat. Bank of Boston v. Bellotti | https://www.courtlistener.com/opinion/109836/first-nat-bank-of-boston-v-bellotti/ | This Court decided at an early date, with neither argument nor discussion, that a business corporation is a "person" entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment. Santa Clara Likewise, it soon became accepted that the property of a corporation was protected under the Due Process Clause of that same Amendment. See, e. g., Nevertheless, we concluded soon thereafter that the liberty protected by that Amendment "is the liberty of natural, not artificial persons." Northwestern Nat. Life Ins. Before today, our only considered and explicit departures from that holding have been that a corporation engaged in the business of publishing or broadcasting enjoys the same liberty of the press as is enjoyed by natural persons, and that a nonprofit membership corporation organized for the purpose of "achieving equality of treatment by all government, federal, state and local, for the members of the Negro community" enjoys certain liberties of political expression. The question presented today, whether business corporations have a constitutionally protected liberty to engage in political activities, has never been squarely addressed by any previous decision of this Court.[1] However, the General Court *823 of the Commonwealth of Massachusetts, the Congress of the United States, and the legislatures of 30 other States of this Republic have considered the matter, and have concluded that restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible. The judgment of such a broad consensus of governmental bodies expressed over a period of many decades is entitled to considerable deference from this Court. I think it quite probable that their judgment may properly be reconciled with our controlling precedents, but I am certain that under my views of the limited application of the First Amendment to the States, which I share with the two immediately preceding occupants of my seat on the Court, but not with my present colleagues, the judgment of the Supreme Judicial Court of Massachusetts should be affirmed. Early in our history, Mr. Chief Justice Marshall described the status of a corporation in the eyes of federal law: "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created." Dartmouth The appellants herein either were created by the Commonwealth or were admitted into the Commonwealth only for the limited purposes described in their |
Justice Rehnquist | 1,978 | 19 | second_dissenting | First Nat. Bank of Boston v. Bellotti | https://www.courtlistener.com/opinion/109836/first-nat-bank-of-boston-v-bellotti/ | the Commonwealth only for the limited purposes described in their charters and regulated by *824 state law.[2] Since it cannot be disputed that the mere creation of a corporation does not invest it with all the liberties enjoyed by natural persons, United our inquiry must seek to determine which constitutional protections are "incidental to its very existence." Dartmouth at There can be little doubt that when a State creates a corporation with the power to acquire and utilize property, it necessarily and implicitly guarantees that the corporation will not be deprived of that property absent due process of law. Likewise, when a State charters a corporation for the purpose of publishing a newspaper, it necessarily assumes that the corporation is entitled to the liberty of the press essential to the conduct of its business.[3]Grosjean so held, and our subsequent cases have so assumed. E. g., Time, ; New York Times[4] Until recently, it was not thought that any persons, natural or artificial, had any protected right to engage in commercial speech. See Virginia State Board of Although the Court has never explicitly recognized a corporation's right of commercial speech, such a right might be considered necessarily incidental to the business of a commercial corporation. It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes.[5] A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as *826 an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist. So long as the Judicial Branches of the State and Federal Governments remain open to protect the corporation's interest in its property, it has no need, though it may have the desire, to petition the political branches for similar protection. Indeed, the States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed.[6] I would think that any particular form of organization *827 upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation. One need not adopt such a restrictive view of the political liberties of business corporations to affirm the |
Justice Rehnquist | 1,978 | 19 | second_dissenting | First Nat. Bank of Boston v. Bellotti | https://www.courtlistener.com/opinion/109836/first-nat-bank-of-boston-v-bellotti/ | of the political liberties of business corporations to affirm the judgment of the Supreme Judicial Court in this case. That court reasoned that this Court's decisions entitling the property of a corporation to constitutional protection should be construed as recognizing the liberty of a corporation to express itself on political matters concerning that property. Thus, the Court construed the statute in question not to forbid political expression *828 by a corporation "when a general political issue materially affects a corporation's business, property or assets." I can see no basis for concluding that the liberty of a corporation to engage in political activity with regard to matters having no material effect on its business is necessarily incidental to the purposes for which the Commonwealth permitted these corporations to be organized or admitted within its boundaries. Nor can I disagree with the Supreme Judicial Court's factual finding that no such effect has been shown by these appellants. Because the statute as construed provides at least as much protection as the Fourteenth Amendment requires, I believe it is constitutionally valid. It is true, as the Court points out, ante, at 781-783, that recent decisions of this Court have emphasized the interest of the public in receiving the information offered by the speaker seeking protection. The free flow of information is in no way diminished by the Commonwealth's decision to permit the operation of business corporations with limited rights of political expression. All natural persons, who owe their existence to a higher sovereign than the Commonwealth, remain as free as before to engage in political activity. Cf. I would affirm the judgment of the Supreme Judicial Court. |
Justice Ginsburg | 2,010 | 5 | dissenting | Schwab v. Reilly | https://www.courtlistener.com/opinion/148796/schwab-v-reilly/ | In Chapter 7 bankruptcies, debtors must surrender to the trustee-in-bankruptcy all their assets, 11 U.S. C. but may reclaim for themselves exempt property, Within 30 days after the meeting of creditors, the trustee or a creditor may file an objection to the debtor’s designation of property as exempt. Fed. Rule Bkrtcy. Proc. 4003(b). Absent timely objection, “property claimed [by the debtor] as exempt is exempt.” The trustee in this case, petitioner William G. Schwab, maintains that the obligation promptly to object to exemp tion claims extends only to the qualification of an asset as exemptible, not to the debtor’s valuation of the asset. Respondent Nadejda Reilly, the debtor-in-bankruptcy, urges that the timely objection requirement applies not only to the debtor’s designation of an asset as exempt; the requirement applies as well, she asserts, to her estimate of the asset’s market value. That is so, she reasons, because the asset’s current dollar value is critical to the determi nation whether she may keep the property intact and outside bankruptcy, or whether the trustee, at any time during the course of the proceedings, may sell it. The Court holds that challenges to the debtor’s valua tion of exemptible assets need not be made within the 30 2 SCHWAB v. REILLY GINSBURG, J., dissenting day period allowed for “objection[s] to the list of property claimed as exempt.” Rule 4003(b). Instead, according to the Court, no time limit constrains the trustee’s (or a creditor’s) prerogative to place at issue the debtor’s evaluation of the property as fully exempt. The Court’s decision drastically reduces Rule 4003’s governance, for challenges to valuation have been, until today, the most common type of objection leveled against exemption claims. See 9 Collier on Bankruptcy ¶4003.04, p. 4003–15 (rev. 15th ed. 2009) (hereinafter Collier) (“Nor mally, objections to exemptions will focus primarily on issues of valuation.”). In addition to departing from the prevailing understanding and practice, the Court’s deci sion exposes debtors to protracted uncertainty concerning their right to retain exempt property, thereby impeding the “fresh start” exemptions are designed to foster. In accord with the courts below, I would hold that a debtor’s valuation of exempt property counts and becomes conclu sive absent a timely objection. I Nadejda Reilly is a cook who operated a one-person catering business. Unable to cover her debts, she filed a Chapter 7 bankruptcy petition appending all required schedules and statements. Relevant here, her filings included a form captioned “Schedule B - Personal Prop erty,” which called for enumeration of “all personal prop erty of the debtor of whatever kind.” App. 40a. On that |
Justice Ginsburg | 2,010 | 5 | dissenting | Schwab v. Reilly | https://www.courtlistener.com/opinion/148796/schwab-v-reilly/ | of the debtor of whatever kind.” App. 40a. On that all-encompassing schedule, Reilly listed “business equip ment,” i.e., her kitchen equipment, with a current market value of $10,718. 9a. Reilly also filed the more particular form captioned “Schedule C - Property Claimed as Exempt.” at 56a. Schedule C contained four columns, the first headed “De scription of Property”; the second, “Specify Law Providing Each Exemption”; the third, “Value of Claimed Exemp Cite as: 560 U. S. (2010) 3 GINSBURG, J., dissenting tion”; and the fourth, “Current Market Value of Property Without Deducting Exemptions.” at 57a. In the first column of Schedule C, Reilly wrote, as she did in Schedule B’s description-of-property column: “See attached list of business equipment.” at 58a. On the list appended to Schedules B and C, Reilly set out by hand a 31-item inven tory of her restaurant-plus-catering-venture equipment. Next to each item, e.g., “Dough Mixer,” “Gas stove,” “Hood,” she specified, first, the purchase price and, next, “Today’s Market Value,” which added up to $10,718 for the entire inventory. at 51a–55a.1 As the laws securing exemption of her kitchen equip ment, Reilly specified in the second Schedule C column, the exemption covering trade tools, and the “wildcard” exemption. at 58a.2 In the value-of-claimed-exemption column, she listed $1,850, then the maximum trade-tools exemption, and $8,868, drawn from her wildcard exemption, amounts adding up to $10,718. And in the fourth, current-market value, column, she recorded $10,718, corresponding to the total market value she had set out in her inventory and reported in Schedule B. Before the 30-day clock on filing objections had begun to run, an appraiser told Schwab that Reilly’s equipment was worth at least $17,000. Brief for Petitioner 15; App. 164a. Nevertheless, Schwab did not object to the $10,718 market value Reilly attributed to her business equipment in —————— 1 Reilly’s Schedules B and C, and the inventory she attached to the forms, are reproduced in an Appendix to this opinion. 2 Unlike exemptions that describe the specific property debtors may preserve, e.g., 11 U.S. C. (debtor may exempt her “aggregate interest, not to exceed [$1,850] in value, in any implements, profes sional books, or tool[s] of [her] trade”), the “wildcard” exemption per mits a debtor to shield her “aggregate interest in any property” she chooses, up to a stated dollar limit, In re Smith, 640 F.2d 888, 891 (CA7 1981). 4 SCHWAB v. REILLY GINSBURG, J., dissenting Schedule C and the attached inventory. Instead, he al lowed the limitations period to lapse and then moved, unsuccessfully, for permission to sell the equipment at auction. at 141a–143a.3 |
Justice Ginsburg | 2,010 | 5 | dissenting | Schwab v. Reilly | https://www.courtlistener.com/opinion/148796/schwab-v-reilly/ | for permission to sell the equipment at auction. at 141a–143a.3 From Reilly’s filings, the Bankruptcy Judge found it evident that Reilly had claimed the property itself, not its dollar value, as exempt. at 168a–169a (“I know there’s an argument that the property identified as exempt is really the [valuation] column, [i.e., $10,718,] but that’s not what the forms say. The forms say property declared as exempt and to see attached list. So, they’re exempting all the property. If the Trustee believes that all the property cannot be exempt, [he] should object to it.”). The District Court and Court of Appeals similarly con cluded that, by listing the identical amount, $10,718, as the property’s market value and the value of the claimed exemptions, Reilly had signaled her intention to safeguard all of her kitchen equipment from inclusion in the bank ruptcy estate. In re Reilly, 338–339 (MD Pa. 2006); In re Reilly, Both courts looked to and Federal Rule of Bank ruptcy Procedure 4003(b), which state, respectively: “The debtor shall file a list of property that the debtor claims as exempt Unless a party in inter est objects, the property claimed as exempt on such list is exempt.” —————— 3 Schwab informed Reilly at the meeting of creditors that he planned to sell all of her business equipment. App. 137a. She promptly moved to dismiss her bankruptcy petition, stating that her “business equip ment is necessary to her livelihood and art, and was a gift to her from her parents.” at 138a. She “d[id] not desire to continue with the bankruptcy,” she added, because “she wishe[d] to continue in restaurant and catering as her occupation.” The Bankruptcy Court denied Reilly’s dismissal motion simultaneously with Schwab’s motion to sell Reilly’s equipment. at 149a–170a. Cite as: 560 U. S. (2010) 5 GINSBURG, J., dissenting “A party in interest may file an objection to the list of property claimed as exempt only within 30 days after the meeting of creditors held under is con cluded The court may, for cause, extend the time for filing objections if, before the time to object ex pires, a party in interest files a request for an exten sion.” Rule 4003(b).4 Schwab having filed no objection within the allowable 30 days, each of the tribunals below ruled that the entire inventory of Reilly’s business equipment qualified as exempt in full. App. 168a; ; 534 F. 3d, at The leading treatise on bankruptcy, the Court of Appeals noted, is in accord: “Normally, if the debtor lists property as exempt, that listing is interpreted as a claim for exemption of |
Justice Ginsburg | 2,010 | 5 | dissenting | Schwab v. Reilly | https://www.courtlistener.com/opinion/148796/schwab-v-reilly/ | that listing is interpreted as a claim for exemption of the debtor’s entire interest in the property, and the debtor’s valuation of that interest is treated as the amount of the exemption claimed. Were it other wise—that is, if the listing were construed to claim as exempt only that portion of the property having the value stated—the provisions finalizing exemptions if no objections are filed would be rendered meaningless. The trustee or creditors could [anytime] claim that the debtor’s interest in the property was greater than the value claimed as exempt and [then] object to the debtor exempting his or her entire interest in the property after the deadline for objections had passed.” 9 Collier ¶4003.02[1], pp. 4003–4 to 4003–5. Agreeing with the courts below, I would hold that Reilly, by her precise identification of the exempt property, and her specification of $10,718 as both the current market value of her kitchen equipment and the value of the —————— 4 In this prescription was recodified without material change and designated Rule 4003(b)(1). 6 SCHWAB v. REILLY GINSBURG, J., dissenting claimed exemptions, had made her position plain: She claimed as exempt the listed property itself—not the dollar amount, up to $10,718, that sale of the property by Schwab might yield. Because neither Schwab nor any creditor lodged a timely objection, the listed property became exempt, reclaimed as property of the debtor, and therefore outside the bankruptcy estate the trustee is charged to administer. II A Pursuant to Reilly filed a list of property she claimed as exempt from the estate-in-bankruptcy. Her filing left no doubt that her exemption claim encompassed her entire inventory of kitchen equipment. Schwab, in fact, was fully aware of the nature of the claim Reilly asserted. At the meeting of creditors, Reilly reiterated that she sought to keep the equipment in her possession; she would rather discontinue the bankruptcy proceeding, she made plain, than lose her equipment. See n. 3. Bankruptcy Rule 4003(b) requires the trustee, if he contests the debtor’s exemption claim in whole or part, to file an objection within 30 days after the meeting of credi tors. Absent a timely objection, “the property claimed as exempt is exempt.” ; Rule 4003. That prescrip tion should be dispositive of this case. The Court holds, however, that Schwab was not obliged to file a timely objection to the exemption Reilly claimed, and indeed could auction off her cooking equipment any time prior to her discharge. In so holding, the Court de crees that no objection need be made to a debtor’s valua tion of her property. |
Justice Ginsburg | 2,010 | 5 | dissenting | Schwab v. Reilly | https://www.courtlistener.com/opinion/148796/schwab-v-reilly/ | be made to a debtor’s valua tion of her property. To support the conclusion that Rule 4003’s timely objec tion requirement does not encompass the debtor’s estima tion of her property’s market value, the Court homes in on the language of exemption prescriptions that are subject to Cite as: 560 U. S. (2010) 7 GINSBURG, J., dissenting a monetary cap.5 Those prescriptions, the Court points out, “define the ‘property’ a debtor may ‘clai[m] as exempt’ as the debtor’s ‘interest’—up to a specified dollar amount—in the assets described in the category, not as the assets themselves.” Ante, at 10. So long as a debtor values her claimed exemption at a dollar amount below the statutory cap, the Court reasons, the claim is on-its face permissible no matter the market value she ascribes to the asset. To evaluate the propriety of Reilly’s declared “interest” in her kitchen equipment, the Court concludes, Schwab was obliged promptly to inspect “three, and only three, entries on Reilly’s Schedule C: the description of the business equipment ; the Code provisions governing the claimed exemptions; and the amounts Reilly listed in the column titled ‘value of claimed exemption.’ ” Ante, at 12–13.6 —————— 5 Section 522(d) catalogs exemptions of two types. Most exemptions— and all of those Reilly invoked—place a monetary limit on the value of the property the debtor may reclaim. See, e.g., (“motor vehicle”); (“household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments”); (“jewelry”). For certain exemptions not at issue here, the Bankruptcy Code authorizes reclamation of the property in full without any cap on value. See, e.g., (“unmatured life insurance contract”); (“[p]rofessionally prescribed health aids”); (“award under a crime victim’s reparation law”). 6 In support of its view that market value is not relevant to determin ing the “property claimed as exempt” for purposes of Rule 4003(b)’s timely objection mandate, the Court observes that Schedule C did not require the debtor to list this information until 1991. Ante, at 14–15. Prior to 1991, however, debtors recorded market value on a different schedule. See Interim Fed. Rule Bkrtcy. Proc. Official Form 6, Sched ule B–2 (1979) (requiring debtor to list the “[m]arket value of [her] interest [in personal property] without deduction for exemptions claimed”). Trustees assessing the “property claimed as exempt,” therefore, have always been able, from the face of the debtor’s filings, to compare the value of the claimed exemption to the property’s declared market value. See Brief for National Association of Consumer Bank ruptcy Attorneys et al. as Amici Curiae 34. 8 SCHWAB v. REILLY GINSBURG, J., dissenting B |
Justice Ginsburg | 2,010 | 5 | dissenting | Schwab v. Reilly | https://www.courtlistener.com/opinion/148796/schwab-v-reilly/ | Curiae 34. 8 SCHWAB v. REILLY GINSBURG, J., dissenting B The Court’s account, however, shuts from sight the vital part played by the fourth entry on Schedule C—current market value—when a capped exemption is claimed. A debtor who estimates a market value below the cap, and lists an identical amount as the value of her claimed ex emption, thereby signals that her aim is to keep the listed property in her possession, outside the estate-in bankruptcy. In contrast, a debtor who estimates a market value above the cap, and above the value of her claimed exemption, thereby recognizes that she cannot shelter the property itself and that the trustee may seek to sell it for whatever it is worth.7 Schedule C’s final column, in other words, alerts the trustee whether the debtor is claiming a right to retain the listed property itself as her own, a right secured to her if the trustee files no timely objection.8 Because an asset’s market value is key to determining —————— 7 By authorizing exemption of assets that a debtor would want to keep in kind, such as her jewelry and car, but limiting the exemptible value of this property, Congress struck a balance between debtors’ and creditors’ interests: Debtors can reclaim items helpful to their fresh start after bankruptcy, but only if those items are of modest value. Assets of larger worth, however, are subject to liquidation so that creditors may obtain a portion of the item’s value. Cf. In re Price, (“[B]ankruptcy law is bilateral, replete with protections and policy considerations favoring both debtors and creditors.”). 8 The significance of market value is what differentiates capped ex emptions from uncapped ones that permit debtors to exempt certain property in kind regardless of its worth. See For uncapped exemptions, the nature of the property the debtor has re claimed is clear: If the exemption is valid, the debtor gets the asset in full every time. For capped exemptions, however, market value is a crucial component in determining whether the debtor gets the item itself or a sum of money representing a share of the item’s liquidation value. Reading Bankruptcy Rule 4003(b) to require objections to valuation thus does not, as the Court contends, “elid[e] the distinction” between capped and uncapped exemptions, ante, at 12 (emphasis added), but instead accounts for that distinction. Cite as: 560 U. S. (2010) 9 GINSBURG, J., dissenting the character of the interest the debtor is asserting in that asset, Rule 4003(b) is properly read to require objections to valuation within 30 days, just as the Rule requires timely |
Justice Ginsburg | 2,010 | 5 | dissenting | Schwab v. Reilly | https://www.courtlistener.com/opinion/148796/schwab-v-reilly/ | valuation within 30 days, just as the Rule requires timely objections to the debtor’s description of the property, the asserted legal basis for the exemption, and the claimed value of the exemption. See 4 Collier ¶522.05[1], p. 522– 28 (“[T]o evaluate the propriety of the debtor’s claim of exemption,” trustees need the informa tion in all four columns of Schedule C; “[market] value” is “essential” to judging whether the claim is proper because “[e]xemption provisions often are limited according to [the property’s] value.”). 9 C Requiring objections to market valuation notably facili tates the debtor’s fresh start, and thus best fulfills the prime purpose of the exemption prescriptions. See, e.g., (Bank ruptcy provisions “must be construed” in light of policy “to give the bankrupt a fresh start.”). See also Rousey v. —————— 9 Suggesting that this interpretation of Rule 4003(b) “lacks statutory support,” ante, at 13, n. 11, the Court repeatedly emphasizes that the Bankruptcy Code defines the “property claimed as exempt,” to which a trustee must object, as “the debtor’s ‘interest’—up to a specified dollar amount—in the assets described in [capped exemption] categor[ies],” ante, at 10; see, e.g., ante, at 11; ib n. 9; ante, 1, n. 19. But the commonly understood definition of a property “interest” is “[a] legal share in something; all or part of a legal or equitable claim to or right in property. Collectively, the word includes any aggregation of [such] rights.” Black’s Law Dictionary 828 Schwab, therefore, could not comprehend whether Reilly claimed a monetary or an in-kind “interest” in her kitchen equipment without comparing her market valuation of the equipment to the value of her claimed exemp tion. See at 8–9. In line with the statutory text, a debtor’s market valuation is an essential factor in determining the nature of the “interest” a debtor lists as exempt. Bankruptcy “forms, rules, treatise excerpts, and policy considerations,” ante, corroborate, rather than conflict with, this reading of the Code. 10 ; United ; ante, at 19. The 30-day deadline for objections, this Court has recognized, “prompt[s] parties to act and produce[s] finality.” As “there can be no possibility of further objection to the exemptions” after this period elapses, the principal bankruptcy treatise observes, “if the debtor is not yet in possession of the property claimed as exempt, it should be turned over to [her] at this time to effectuate fully the fresh start purpose of the exemptions.” 9 Collier ¶4003.03[3], p. 4003–13. With the benefit of closure, and the certainty it brings, the debtor may, at the end of the 30 days, plan for her future |
Justice Ginsburg | 2,010 | 5 | dissenting | Schwab v. Reilly | https://www.courtlistener.com/opinion/148796/schwab-v-reilly/ | the end of the 30 days, plan for her future secure in the knowledge that the possessions she has exempted in their entirety are hers to keep. See 534 F.3d, at 180. If she has reclaimed her car from the estate, for example, she may accept a job not within walking distance. See Brief for National Association of Consumer Bankruptcy Attorneys et al. as Amici Curiae 2–3 (herein after NACBA Brief). Or if she has exempted her kitchen equipment, she may launch a new catering venture. See App. 138a (Reilly “wishe[d] to continue in restaurant and catering as her occupation” postbankruptcy.). By permitting trustees to challenge a debtor’s valuation of exempted property anytime before discharge, the Court casts a cloud of uncertainty over the debtor’s use of assets reclaimed in full. If the trustee gains a different opinion of an item’s value months, even years, after the debtor has filed her bankruptcy petition,10 he may seek to repossess the asset, auction it off, and hand the debtor a check for —————— 10 Schwab states that “[c]ases in which there are assets to administer can take ‘one to four years’ to complete.” Brief for Petitioner 32 (quoting Dept. of Justice, U. S. Trustee Program, Preliminary Report on Chapter 7 Asset Cases 1994 to p. 7 (June 2001)). Cite as: 560 U. S. (2010) 11 GINSBURG, J., dissenting the dollar amount of her claimed exemption.11 With this threat looming until discharge, “[h]ow can debtors rea sonably be expected to restructure their affairs”? NACBA Brief 25. See In re Polis, (Posner, J.) (“If the assets sought to be exempted by the debtor were not valued at a date early in the bankruptcy proceeding, neither the debtor nor the creditors would know who had the right to them.”). III The Court and Schwab raise three concerns about read ing Rule 4003 to require timely objection to the debtor’s estimate of an exempt asset’s market value: Would trus tees face an untoward administrative burden? Would trustees lack fair notice of the need to object? And would debtors be tempted to undervalue their property in an effort to avoid the monetary cap on exemptions? In my judgment, all three questions should be answered no. A The Court suggests that requiring timely objections to a debtor’s valuation of exempt property would saddle trus tees with an unmanageable load. See ante, at 18 (declin ing to “expand the universe of information an inter ested party must consider in evaluating the validity of a claimed exemption”). See also Brief for Petitioner 32–33; Brief for United States as Amicus Curiae |
Justice Ginsburg | 2,010 | 5 | dissenting | Schwab v. Reilly | https://www.courtlistener.com/opinion/148796/schwab-v-reilly/ | for Petitioner 32–33; Brief for United States as Amicus Curiae 24.12 But trus —————— 11 Money generated by liquidation of an asset will often be of less utility to a debtor, who will have to pay more to replace the item. See H. R. Rep. No. 95–595, p. 127 (1977) (noting that “household goods have little resale value” but “replacement costs of the goods are generally high”). 12 This concern is questionable in light of the prevailing practice, for, as earlier noted, valuation objections are the most common Rule 4003(b) challenge. See By lopping off valuation disagree ments from the timely objection requirement, see, e.g., ante, at 10–11, n. 8, the Court so severely shrinks the Rule’s realm that this question 12 SCHWAB v. REILLY GINSBURG, J., dissenting tees, sooner or later, must attempt to ascertain the market value of exempted assets. They must do so to determine whether sale of the items would likely produce surplus proceeds for the estate above the value of the claimed exemption, see the only question, then, is when this market valuation must occur—(1) within 30 days or (2) at any time before discharge? Removing valuation from Rule 4003’s governance thus does little to reduce the labors trustees must undertake. The 30-day objection period, I note, does not impose on trustees any additional duty, but rather guides the exer cise of existing responsibilities; under Rule 4003(b), a trustee must rank evaluation of the debtor’s exemptions as a priority item in his superintendence of the estate.13 And if the trustee entertains any doubt about the accuracy of a debtor’s estimation of market value, the procedure for interposing objections is hardly arduous. The trustee need only file with the court a simple declaration stating that an item’s value exceeds the amount listed by the debtor.14 —————— arises: Why are trustees granted a full 30 days to lodge objections? Under the Court’s reading of the Rule, trustees need only compare a debtor’s Schedule C to the text of the exemption prescriptions to assess an exemption claim’s facial validity, with no further investigation necessary. That comparison should take no more than minutes, surely not a month. 13 Trustees, it bears noting, historically had valuation duties far more onerous than they have today. Rule 4003’s predecessor required trustees in the first instance, rather than debtors, to estimate the market value of property claimed as exempt. See Rule 403(b) (1975). Trustees had to provide this valuation to the court within 15 days of their appointment. See 14 The leading bankruptcy treatise supplies an illustrative valuation objection: “[Name of Trustee], the |
Justice Ginsburg | 2,010 | 5 | dissenting | Schwab v. Reilly | https://www.courtlistener.com/opinion/148796/schwab-v-reilly/ | treatise supplies an illustrative valuation objection: “[Name of Trustee], the duly qualified and acting trustee of the estate of the debtor, would show the court the following: “1. The debtor is not entitled under [the automobile exemption] to an interest of more than $3,225 in an automobile. The automobile claimed by debtor as exempt has a value substantially greater than $3,225. Cite as: 560 U. S. (2010) 13 GINSBURG, J., dissenting If the trustee needs more than 30 days to assess market value, moreover, the time period is eminently extendable. Rule 4003(b) prescribes that a trustee may, for cause, ask the court for an extension of the objection period. Alterna tively, the trustee can postpone the conclusion of the meeting of creditors, from which the 30-day clock runs, simply by adjourning the meeting to a future date. Rule 2003(e). A trustee also may examine the debtor under oath at the creditors’ meeting, Rule 2003(b)(1); if he gath ers information impugning her exemption claims, he may ask the bankruptcy court to hold a hearing to determine valuation issues, Rule 4003(c). See Taylor, 503 U.S., at (“If [the trustee] did not know the value of [a claimed exemption], he could have sought a hearing on the issue or asked the Bankruptcy Court for an extension of time to object.”). See also NACBA Brief 19, 21–23 (listing ways trustees may enlarge the limitations period for objections). Trustees, in sum, have ample mechanisms at their disposal to gain the time and information they need to lodge objections to valuation. B On affording trustees fair notice of the need to object, the Court emphasizes that a debtor must list her claimed exemptions “in a manner that makes the scope of the exemption clear.” Ante, 0. If a debtor wishes to ex empt property in its entirety, for example, the Court coun sels her to write “full fair market value (FMV)” or “100% of FMV” in Schedule C’s value-of-claimed-exemption column. —————— “WHEREFORE Trustee prays that the court determine that debtor is not entitled to the exemptio[n] claimed by him, that the [property claimed as exempt] which [is] disallowed be turned over to the trustee herein as property of the estate, and that he have such other and further relief as is just.” 13A Collier p. CS 17–22 (rev. 15th ed. 2009). See also Rules 9013–9014. 14 SCHWAB v. REILLY GINSBURG, J., dissenting Ante, 0–21 (internal quotation marks omitted). See also Tr. of Oral Arg. 6–7, 26–29; In re Hyman, 967 F.2d 1316, 1319–1320, n. 6 (Trustees must be able to assess the validity of an exemption |
Justice Ginsburg | 2,010 | 5 | dissenting | Schwab v. Reilly | https://www.courtlistener.com/opinion/148796/schwab-v-reilly/ | must be able to assess the validity of an exemption from the face of a debtor’s schedules.). Our decision in the Court notes, is instructive. In Taylor, the debtor recorded the term “$ unknown” as the value of a claimed exemption, which, the Court observes, raised a “warning fla[g]” because the value “was not plainly within the limits the Code allows.” Ante, at 17. True, a debtor’s schedules must give notice sufficient to cue the trustee that an objection may be in order. But a “warning flag” is in the eye of the beholder: If a debtor lists identical amounts as the market value of exempted property and the value of her claimed exemption, she has, on the face of her schedules, reclaimed the entire asset just as surely as if she had recorded “100% of FMV” in Sched ule C’s value-of-claimed-exemption column. See Brief for Respondent 36. See also 9 Collier ¶4003.03[3], p. 4003–14 (“Only when a debtor’s schedules specifically value the debtor’s interest in the property at an amount higher than the amount claimed as exempt can it be argued that a part of the debtor’s interest in property has not been ex empted.” (emphasis added)). In this case, by specifying $10,718 as both the current market value of her kitchen equipment and the value of her claimed exemptions, Reilly gave notice that she had reclaimed the listed property in full. See –6. To borrow the Court’s terminology, Reilly waved a “warn ing flag” that should have prompted Schwab to object if he believed the equipment could not be reclaimed in its en tirety because its value exceeded the statutory cap. 534 F.3d, at 179. See 4 Collier ¶522.05[2][b], p. 522–33 (“Nor mally, if a debtor lists an asset as having a particular value in the schedules and then exempts that value, the schedules should be read as a claim of exemption for the Cite as: 560 U. S. (2010) 15 GINSBURG, J., dissenting entire asset, to which the trustee should object if the trustee believes the asset has been undervalued.”). Training its attention on trustees’ needs, moreover, the Court overlooks the debtor’s plight. As just noted, the Court counsels debtors wishing to exempt an asset in full to write “100% of FMV” or “full FMV” in the value-of claimed-exemption column. But a debtor following the instructions that accompany Schedule C would consider such a response nonsensical, for those instructions direct her to “state the dollar value of the claimed exemption in the space provided.” Fed. Rule Bkrtcy. Proc. Official Form 6, Schedule C, Instruction 5 (1991) (emphasis |
Justice Ginsburg | 2,010 | 5 | dissenting | Schwab v. Reilly | https://www.courtlistener.com/opinion/148796/schwab-v-reilly/ | Proc. Official Form 6, Schedule C, Instruction 5 (1991) (emphasis added). Chapter 7 debtors are often unrepresented. How are they to know they must ignore Schedule C’s instructions and employ the “warning flag” described today by the Court, if they wish to trigger the trustee’s obligation to object to their market valuation in a timely fashion? See In re Anderson, (Bkrtcy. App. Panel CA6 2007).15 C Schwab finally urges that requiring timely objections to a debtor’s market-value estimations “would give debtors a perverse incentive to game the system by undervaluing their assets.” Brief for Petitioner 35; see Brief for United States as Amicus Curiae 27. The Court rejected an argu ment along these lines in Taylor, and should follow suit here. Multiple measures, Taylor explained, discourage undervaluation of property claimed as exempt. 503 U. S., —————— 15 Trustees, in contrast, are repeat players in bankruptcy court; if this Court required timely objections to market valuation, trustees would, no doubt, modify their practices in response. See 1 Collier ¶8.06[1][c][ii], p. 8–75 (rev. 15th ed. 2009) ], trustees rarely fail to closely scrutinize vague exemption claims.”). Moreover, because valuation objections are already the norm, see and 11, n. 12, few trustees would have to adjust their behavior. 16 SCHWAB v. REILLY GINSBURG, J., dissenting at Among those measures: The debtor files her exemption claim under penalty of perjury. See Rule 1008. She risks judicial sanction for signing documents not well grounded in fact. Rule 9011. And proof of fraud subjects her to criminal prosecution, 18 U.S. C. extends the limitations period for filing objections to Schedule C, Rule 4003(b); and authorizes denial of dis charge, 11 U.S. C. See also NACBA Brief 29–33 (detailing additional checks against inadequate or inaccurate filings). Furthermore, the objection procedure is itself a safe guard against debtor undervaluation. If a trustee sus pects that the market value of property claimed as exempt may exceed a debtor’s estimate, he should do just what Rule 4003(b) prescribes: “[F]ile an objection within 30 days after the meeting of creditors.” * * * For the reasons stated, I would affirm the Third Cir cuit’s judgment. Cite as: 560 U. S. (2010) 17 Appendix to opiniondissenting J. GINSBURG, J., of GINSBURG APPENDIX 18 SCHWAB v. REILLY Appendix to opiniondissenting J. GINSBURG, J., of GINSBURG Cite as: 560 U. S. (2010) 19 Appendix to opiniondissenting J. GINSBURG, J., of GINSBURG 20 SCHWAB v. REILLY Appendix to opiniondissenting J. GINSBURG, J., of GINSBURG Cite as: 560 U. S. (2010) 21 Appendix to opiniondissenting J. GINSBURG, J., of GINSBURG 22 SCHWAB v. REILLY Appendix to |
per_curiam | 2,004 | 200 | per_curiam | Brosseau v. Haugen | https://www.courtlistener.com/opinion/137736/brosseau-v-haugen/ | Officer Rochelle Brosseau, a member of the Puyallup, Washington, Police Department, shot Kenneth Haugen in the back as he attempted to flee from law enforcement authorities in his vehicle. Haugen subsequently filed this action in the United States District Court for the Western District of *195 Washington pursuant to Rev. Stat. 1979, 42 U.S. C. 1983. He alleged that the shot fired by Brosseau constituted excessive force and violated his federal constitutional rights.[1] The District Court granted summary judgment to Brosseau after finding she was entitled to qualified immunity. The Court of Appeals for the Ninth Circuit reversed. Following the two-step process set out in the Court of Appeals found, first, that Brosseau had violated Haugen's Fourth Amendment right to be free from excessive force and, second, that the right violated was clearly established and thus Brosseau was not entitled to qualified immunity. Brosseau then petitioned for writ of certiorari, requesting that we review both of the Court of Appeals' determinations. We grant the petition on the second, qualified immunity question and reverse. The material facts, construed in a light most favorable to Haugen, are as follows.[2] On the day before the fracas, Glen Tamburello went to the police station and reported to Brosseau that Haugen, a former crime partner of his, had stolen tools from his shop. Brosseau later learned that there was a felony no-bail warrant out for Haugen's arrest on drug and other offenses. The next morning, Haugen was spray painting his Jeep Cherokee in his mother's driveway. Tamburello learned of Haugen's whereabouts, and he and cohort Matt Atwood drove a pickup truck to Haugen's mother's house to pay Haugen a visit. A fight ensued, which was witnessed by a neighbor who called 911. Brosseau heard a report that the men were fighting in Haugen's mother's yard and responded. When she arrived, Tamburello and Atwood were attempting to get Haugen into *196 Tamburello's pickup. Brosseau's arrival created a distraction, which provided Haugen the opportunity to get away. Haugen ran through his mother's yard and hid in the neighborhood. Brosseau requested assistance, and, shortly thereafter, two officers arrived with a K-9 to help track Haugen down. During the search, which lasted about 30 to 45 minutes, officers instructed Tamburello and Atwood to remain in Tamburello's pickup. They instructed Deanna Nocera, Haugen's girlfriend who was also present with her 3-year-old daughter, to remain in her small car with her daughter. Tamburello's pickup was parked in the street in front of the driveway; Nocera's small car was parked in the driveway in front of and facing the Jeep; and the |
per_curiam | 2,004 | 200 | per_curiam | Brosseau v. Haugen | https://www.courtlistener.com/opinion/137736/brosseau-v-haugen/ | driveway in front of and facing the Jeep; and the Jeep was in the driveway facing Nocera's car and angled somewhat to the left. The Jeep was parked about 4 feet away from Nocera's car and 20 to 30 feet away from Tamburello's pickup. An officer radioed from down the street that a neighbor had seen a man in her backyard. Brosseau ran in that direction, and Haugen appeared. He ran past the front of his mother's house and then turned and ran into the driveway. With Brosseau still in pursuit, he jumped into the driver's side of the Jeep and closed and locked the door. Brosseau believed that he was running to the Jeep to retrieve a weapon. Brosseau arrived at the Jeep, pointed her gun at Haugen, and ordered him to get out of the vehicle. Haugen ignored her command and continued to look for the keys so he could get the Jeep started. Brosseau repeated her commands and hit the driver's side window several times with her handgun, which failed to deter Haugen. On the third or fourth try, the window shattered. Brosseau unsuccessfully attempted to grab the keys and struck Haugen on the head with the barrel and butt of her gun. Haugen, still undeterred, succeeded in starting the Jeep. As the Jeep started or shortly after it began to move, Brosseau jumped back and to the left. She fired one shot through the rear driver's side window *197 at a forward angle, hitting Haugen in the back. She later explained that she shot Haugen because she was "`fearful for the other officers on foot who [she] believed were in the immediate area, [and] for the occupied vehicles in [Haugen's] path and for any other citizens who might be in the area.'" Despite being hit, Haugen, in his words, "`st[ood] on the gas'"; navigated the "`small, tight space'" to avoid the other vehicles; swerved across the neighbor's lawn; and continued down the street. After about a half block, Haugen realized that he had been shot and brought the Jeep to a halt. He suffered a collapsed lung and was airlifted to a hospital. He survived the shooting and subsequently pleaded guilty to the felony of "eluding." Wash. Rev. Code 46.61.024 (1994). By so pleading, he admitted that he drove his Jeep in a manner indicating "a wanton or wilful disregard for the lives of others." He subsequently brought this 1983 action against Brosseau. * * * When confronted with a claim of qualified immunity, a court must ask first the following question: "Taken in the light |
per_curiam | 2,004 | 200 | per_curiam | Brosseau v. Haugen | https://www.courtlistener.com/opinion/137736/brosseau-v-haugen/ | must ask first the following question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" As the Court of Appeals recognized, the constitutional question in this case is governed by the principles enunciated in and These cases establish that claims of excessive force are to be judged under the Fourth Amendment's "`objective reasonableness'" standard. Specifically with regard to deadly force, we explained in Garner that it is unreasonable for an officer to "seize an unarmed, nondangerous suspect by shooting him dead." But "[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical *198 harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force." We express no view as to the correctness of the Court of Appeals' decision on the constitutional question itself. We believe that, however that question is decided, the Court of Appeals was wrong on the issue of qualified immunity.[3] Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation. It is important to emphasize that this inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." As we previously said in this very context: "[T]here is no doubt that clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough. Rather, we emphasized in Anderson [v. Creighton] `that the right the official is alleged to have violated must have been "clearly established" in *199 a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.' 483 U.S. [635,] 640 [(1987)]. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." -202. The Court of Appeals acknowledged |
per_curiam | 2,004 | 200 | per_curiam | Brosseau v. Haugen | https://www.courtlistener.com/opinion/137736/brosseau-v-haugen/ | the situation he confronted." -202. The Court of Appeals acknowledged this statement of law, but then proceeded to find fair warning in the general tests set out in Graham and -874. In so doing, it was mistaken. Graham and Garner, following the lead of the Fourth Amendment's text, are cast at a high level of generality. See Of course, in an obvious case, these standards can "clearly establish" the answer, even without a body of relevant case law. See See also (explaining in a Fourth Amendment case involving an officer shooting a fleeing suspect in a vehicle that, "when we look at decisions such as Garner and Graham, we see some tests to guide us in determining the law in many different kinds of circumstances; but we do not see the kind of clear law (clear answers) that would apply" to the situation at hand). The present case is far from the obvious one where Graham and Garner alone offer a basis for decision. We therefore turn to ask whether, at the time of Brosseau's actions, it was "`"clearly established"'" in this more "`particularized'" sense that she was violating Haugen's Fourth Amendment right. 533 U.S., at *200 202. The parties point us to only a handful of cases relevant to the "situation [Brosseau] confronted": whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.[4] Specifically, Brosseau points us to and In these cases, the courts found no Fourth Amendment violation when an officer shot a fleeing suspect who presented a risk to others. ; 954 F. 2d, at 347 (noting "a car can be a deadly weapon" and holding the officer's decision to stop the car from possibly injuring others was reasonable). Smith is closer to this case. There, the officer and suspect engaged in a car chase, which appeared to be at an end when the officer cornered the suspect at the back of a dead-end residential street. The suspect, however, freed his car and began speeding down the street. At this point, the officer fired a shot, which killed the suspect. The court held the officer's decision was reasonable and thus did not violate the Fourth Amendment. It noted that the suspect, like Haugen here, "had proven he would do almost anything to avoid capture" and that he posed a major threat to, among others, the officers at the end of the street. *201 Haugen points us to Estate of where the court found summary judgment inappropriate on a Fourth Amendment claim involving |
Justice White | 1,980 | 6 | majority | United States v. Havens | https://www.courtlistener.com/opinion/110267/united-states-v-havens/ | The petition for certiorari filed by the United in this criminal case presented a single question: whether evidence suppressed as the fruit of an unlawful search and seizure may nevertheless be used to impeach a defendant's false trial testimony, given in response to proper cross-examination, where the evidence does not squarely contradict the defendant's testimony on direct examination. We issued the writ, I Respondent was convicted of importing, conspiring to import, and intentionally possessing a controlled substance, cocaine. According to the evidence at his trial, Havens and John McLeroth, both attorneys from Ft. Wayne, Ind., boarded a flight from Lima, Peru, to Miami, Fla. In Miami, a customs officer searched McLeroth and found cocaine sewed into makeshift pockets in a T-shirt he was wearing under his outer *622 clothing. McLeroth implicated respondent, who had previously cleared customs and who was then arrested. His luggage was seized and searched without a warrant. The officers found no drugs but seized a T-shirt from which pieces had been cut that matched the pieces that had been sewn to McLeroth's T-shirt. The T-shirt and other evidence seized in the course of the search were suppressed on motion prior to trial. Both men were charged in a three-count indictment, but McLeroth pleaded guilty to one count and testified against Havens. Among other things, he asserted that Havens had supplied him with the altered T-shirt and had sewed the makeshift pockets shut. Havens took the stand in his own defense and denied involvement in smuggling cocaine. His direct testimony included the following: "Q. And you heard Mr. McLeroth testify earlier as to something to the effect that this material was taped or draped around his body and so on, you heard that testimony? "A. Yes, I did. "Q. Did you ever engage in that kind of activity with Mr. McLeroth and Augusto or Mr. McLeroth and anyone else on that fourth visit to Lima, Peru? "A. I did not." App. 34. On cross-examination, Havens testified as follows: "Q. Now, on direct examination, sir, you testified that on the fourth trip you had absolutely nothing to do with the wrapping of any bandages or tee shirts or anything involving Mr. McLeroth; is that correct? "A. I don'tI said I had nothing to do with any wrapping or bandages or anything, yes. I had nothing to do with anything with McLeroth in connection with this cocaine matter. "Q. And your testimony is that you had nothing to *623 do with the sewing of the cotton swatches to make pockets on that tee shirt? "A. Absolutely not. "Q. Sir, |
Justice White | 1,980 | 6 | majority | United States v. Havens | https://www.courtlistener.com/opinion/110267/united-states-v-havens/ | pockets on that tee shirt? "A. Absolutely not. "Q. Sir, when you came through Customs, the Miami International Airport, on October 2, 1977, did you have in your suitcase Size 38-40 medium tee shirts?" An objection to the latter question was overruled and questioning continued: "Q. On that day, sir, did you have in your luggage a Size 38-40 medium man's tee shirt with swatches of clothing missing from the tail of that tee shirt? "A. Not to my knowledge. "Q. Mr. Havens, I'm going to hand you what is Government's Exhibit 9 for identification and ask you if this tee shirt was in your luggage on October 2nd, 1975 [sic]? "A. Not to my knowledge. No." Respondent Havens also denied having told a Government agent that the T-shirts found in his luggage belonged to McLeroth. On rebuttal, a Government agent testified that Exhibit 9 had been found in respondent's suitcase and that Havens claimed the T-shirts found in his bag, including Exhibit 9, belonged to McLeroth. Over objection, the T-shirt was then admitted into evidence, the jury being instructed that the rebuttal evidence should be considered only for impeaching Havens' credibility. The Court of Appeals reversed, relying on and The court held that illegally seized evidence may be used for impeachment only if the evidence contradicts a particular statement made by a defendant in the course of his direct examination. We reverse. *624 II In a defendant charged with conspiracy to sell a package of cocaine testified on direct examination that he had possessed the packages involved but did not know what was in them. On cross-examination, he denied ever having seen narcotics and ever having seen a can of cocaine which was exhibited to him and which had been illegally seized from his apartment. The can of cocaine was permitted into evidence on rebuttal. Agnello was convicted and his conviction was affirmed by the Court of Appeals. This Court reversed, holding that the Fourth Amendment required exclusion of the evidence. The Court pointed out that "[i]n his direct examination, Agnello was not asked and did not testify concerning the can of cocaine" and "did nothing to waive his constitutional protection or to justify cross-examination in respect of the evidence claimed to have been obtained by the search." 269 U.S., The Court also said, quoting from Silverthorne Lumber Co. v. United that the exclusionary rule not only commands that illegally seized evidence "shall not be used before the Court but that it shall not be used at all." 269 U.S., The latter statement has been rejected in our later |
Justice White | 1,980 | 6 | majority | United States v. Havens | https://www.courtlistener.com/opinion/110267/united-states-v-havens/ | U.S., The latter statement has been rejected in our later cases, however, and Agnello otherwise limited. In the use of evidence obtained in an illegal search and inadmissible in the Government's case in chief was admitted to impeach the direct testimony of the defendant. This Court approved, saying that it would pervert the rule of Weeks v. United to hold otherwise. Similarly, in and statements taken in violation of and unusable by the prosecution as part of its own case, were held admissible to impeach statements made by the defendant in the course of his direct testimony. Harris *625 also made clear that the permitted impeachment by otherwise inadmissible evidence is not limited to collateral matters. These cases were understood by the Court of Appeals to hold that tainted evidence, inadmissible when offered as part of the Government's main case, may not be used as rebuttal evidence to impeach a defendant's credibility unless the evidence is offered to contradict a particular statement made by a defendant during his direct examination; a statement made for the first time on cross-examination may not be so impeached. This approach required the exclusion of the T-shirt taken from Havens' luggage because, as the Court of Appeals read the record, Havens was asked nothing on his direct testimony about the incriminating T-shirt or about the contents of his luggage; the testimony about the T-shirt, which the Government desired to impeach first appeared on cross-examination, not on direct. It is true that Agnello involved the impeachment of testimony first brought out on cross-examination and that in Walder, Harris, and the testimony impeached was given by the defendant while testifying on direct examination. In our view, however, a flat rule permitting only statements on direct examination to be impeached misapprehends the underlying rationale of Walder, Harris, and These cases repudiated the statement in Agnello that no use at all may be made of illegally obtained evidence. Furthermore, in Walder, the Court said that in Agnello, the Government had "smuggled in" the impeaching opportunity in the course of cross-examination. The Court also relied on the statement in Agnello, that Agnello had done nothing "to justify cross-examination in respect of the evidence claimed to have been obtained by the search." The implication of Walder is that Agnello was a case of cross-examination having too tenuous a connection with any subject opened upon direct examination to permit impeachment by tainted evidence. *626 In reversing the District Court in the case before us, the Court of Appeals did not stop to consider how closely the cross-examination about the T-shirt and the |
Justice White | 1,980 | 6 | majority | United States v. Havens | https://www.courtlistener.com/opinion/110267/united-states-v-havens/ | consider how closely the cross-examination about the T-shirt and the luggage was connected with matters gone into in direct examination. If these questions would have been suggested to a reasonably competent cross-examiner by Havens' direct testimony, they were not "smuggled in"; and forbidding the Government to impeach the answers to these questions by using contrary and reliable evidence in its possession fails to take account of our cases, particularly Harris and In both cases, the Court stressed the importance of arriving at the truth in criminal trials, as well as the defendant's obligation to speak the truth in response to proper questions. We rejected the notion that the defendant's constitutional shield against having illegally seized evidence used against him could be "perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." See also Both cases also held that the deterrent function of the rules excluding unconstitutionally obtained evidence is sufficiently served by denying its use to the government on its direct case. It was only a "speculative possibility" that also making it unavailable to the government for otherwise proper impeachment would contribute substantially in this respect. Neither Harris nor involved the impeachment of assertedly false testimony first given on cross-examination, but the reasoning of those cases controls this one. There is no gainsaying that arriving at the truth is a fundamental goal of our legal system. We have repeatedly insisted that when defendants testify, they must testify truthfully or suffer the consequences. This is true even though a defendant is compelled to testify against his will. Bryson v. United ; United v. It is essential, *627 therefore, to the proper functioning of the adversary system that when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth. The defendant's obligation to testify truthfully is fully binding on him when he is cross-examined. His privilege against self-incrimination does not shield him from proper questioning. Brown v. United He would unquestionably be subject to a perjury prosecution if he knowingly lies on cross-examination. Cf. United v. Apfelbaum, ; Bryson v. United United v. United v. Wong, In terms of impeaching a defendant's seemingly false statements with his prior inconsistent utterances or with other reliable evidence available to the government, we see no difference of constitutional magnitude between the defendant's statements on direct examination and his answers to questions put to him on cross-examination that are plainly within the scope of the defendant's direct examination. Without this opportunity, the normal function |
Justice White | 1,980 | 6 | majority | United States v. Havens | https://www.courtlistener.com/opinion/110267/united-states-v-havens/ | the defendant's direct examination. Without this opportunity, the normal function of cross-examination would be severely impeded. We also think that the policies of the exclusionary rule no more bar impeachment here than they did in Walder, Harris, and In those cases, the ends of the exclusionary rules were thought adequately implemented by denying the government the use of the challenged evidence to make out its case in chief. The incremental furthering of those ends by forbidding impeachment of the defendant who testifies was deemed insufficient to permit or require that false testimony go unchallenged, with the resulting impairment of the integrity of the factfinding goals of the criminal trial. We reaffirm this assessment of the competing interests, and hold that a defendant's statements made in response to proper cross-examination reasonably suggested by the defendant's direct examination are subject to otherwise proper impeachment *628 by the government, albeit by evidence that has been illegally obtained and that is inadmissible on the government's direct case, or otherwise, as substantive evidence of guilt. In arriving at its judgment, the Court of Appeals noted that in response to defense counsel's objection to the impeaching evidence on the ground that the matter had not been "covered on direct," the trial court had remarked that "[i]t does not have to be covered on direct." The Court of Appeals thought this was error since in its view illegally seized evidence could be used only to impeach a statement made on direct examination. As we have indicated, we hold a contrary view; and we do not understand the District Court to have indicated that the Government's question, the answer to which is sought to be impeached, need not be proper cross-examination in the first instance. The Court of Appeals did not suggest that either the cross-examination or the impeachment of Havens would have been improper absent the use of illegally seized evidence, and we cannot accept respondent's suggestions that because of the illegal search and seizure, the Government's questions about the T-shirt were improper cross-examination. McLeroth testified that Havens had assisted him in preparing the T-shirt for smuggling. Havens, in his direct testimony, acknowledged McLeroth's prior testimony that the cocaine "was taped or draped around his body and so on" but denied that he had "ever engage[d] in that kind of activity with Mr. McLeroth" This testimony could easily be understood as a denial of any connection with McLeroth's T-shirt and as a contradiction of McLeroth's testimony. Quite reasonably, it seems to us, the Government on cross-examination called attention to his answers on direct and then asked whether |
Justice Stevens | 1,990 | 16 | concurring | Metro Broadcasting, Inc. v. FCC | https://www.courtlistener.com/opinion/112484/metro-broadcasting-inc-v-fcc/ | Today the Court squarely rejects the proposition that a governmental decision that rests on a racial classification is never permissible except as a remedy for a past wrong. Ante, at 564-565. I endorse this focus on the future benefit, rather than the remedial justification, of such decisions.[1] I remain convinced, of course, that racial or ethnic characteristics provide a relevant basis for disparate treatment only in extremely rare situations and that it is therefore "especially important that the reasons for any such classification be clearly identified and unquestionably legitimate." The Court's opinion explains how both elements of that standard are satisfied. Specifically, the reason for the classification the recognized interest in broadcast diversity is clearly identified and does not imply any judgment concerning the abilities of owners of different races or the merits of different kinds of programming. Neither the favored nor the disfavored class is stigmatized in any way.[2] In addition, the Court demonstrates that these cases fall within the extremely narrow category of governmental decisions for which racial or ethnic heritage may provide a rational basis for differential treatment.[3] The public interest in broadcast diversity *602 like the interest in an integrated police force,[4] diversity in the composition of a public school faculty[5] or diversity in the student body of a professional school[6] is in my view unquestionably legitimate. Therefore, I join both the opinion and the judgment of the Court. |
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